Karnataka High Court
Hanumappa S/O Munivenkatappa vs Sarojamma W/O B M Venkataramanappa on 26 September, 2012
Author: N.Kumar
Bench: N. Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26th DAY OF SEPTEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE N. KUMAR
RFA No. 1469/05
BETWEEN:
1. HANUMAPPA S/O MUNIVENKATAPPA
AGED 68 YRS R/AT BANTAHALLI VILLAGE
LAKKUR HOBLI
MALUR TQ-563 130 ... APPELLANT
(By Sri. V B SHIVA KUMAR, ADVOCATE)
AND
1. SAROJAMMA W/O B M VENKATARAMANAPPA
AGED 56 YRS R/AT BANTAHALLI VILLAGE
LAKKUR HOBLI, MALUR TQ-563130
2. RAMAKKA W/O B M KRISHNAPPA
AGED 52 YEARS, R/AT BANTAHALLI VILLAGE
LAKKUR HOBLI, MALUR TQ-563130
3. NANJAMMA W/O LATE THIMMAIAH
AGED 58 YEARS, R/AT BANTAHALLI VILLAGE
LAKKUR HOBLI, MALUR TQ-563130
4. SAMPANGAMMA,
SINCE DECEASED BY LRS
(a)LALITHAMMA W/O KRISHNAPPA AGED 46 YRS
R/AT HOTTUR, NEAR UDDANAPALLI
DENKANIKOTE TQ
2
DHARMAPURI DIST, TAMILNADU
(b)MANJULA, AGED 46 YRS
W/O KRISHNAPPA
R/AT KODICHERUVU VILLAGE
SRINIVASAPURA TQ
KOLAR DIST- 563131.
(c)LEELAMMA W/O NARAYANASWAMY
AGED 40 YEARS, R/AT DEVASHETTIHALLI
HOSKOTE TQ BANGALORE NORTH-562 114
(d)PADMA, W/O MANJUNATH
"MANJUNATH TAILORS"
MARUTHI EXTENSION
MALUR TOWN, KOLAR DIST-563 130
(e)PRAKASH S/O HANUMAPPA
AGED 38 YRS
R/AT BANTAHALLI VILLAGE
LAKKUR HOBLI, MALUR TQ-563 130
(f)NARAYANASWAMY, AGED 34 YRS
S/O HANUMAPPA
R/AT BANTAHALLI VILLAGE
LAKKUR HOBLI, MALUR TQ-563 130
5. MUNIYAMMA W/O VENKATAGIRIYAPPA
AGED 88 YRS
SINCE DECEASED
6. KONDAPPA S/O MUNISWAMY
AGED 41 YRS
R/AT BANTAHALLI VILLAGE LAKKUR HOBLI
MALUR TQ-563 130 ... RESPONDENTS
(By Sri.GANGI REDDY, ADVOCATE FOR R1-2; R-3; R-
4(a)(b)(c)(e) and (f) ARE SERVED; R-5 DEAD, R-4(d)
DISMISSED V/O. DATED 9.12.2009)
-0-0-0-0-0-
3
THIS RFA IS FILED U/S.96 OF CPC AGAINST THE
JUDGMENT AND DECREE DT.4.6.2005 PASSED IN
O.S.NO.19/99 ON THE FILE OF THE ADDL. CIVIL
JUDGE (SR.DN), KOLAR, PARTLY DECREEING THE
SUIT FOR PARTITION AND SEPARATE POSSESSION.
This appeal coming on for hearing this day, the
Court delivered the following:-
JUDGMENT
This is a defendant's appeal against the judgment and decree of the trial Court which has decreed the suit of the plaintiffs partly granting 1/4th share to each of the plaintiffs in suit item Nos.1 to 6, 10, 12 to 16.
2. For the purpose of convenience, the parties are referred to as they are referred to in the plaint.
3. One Sri.Chavadi Venkatagiriyappa, was a permanent resident of Bantahalli, Lakkur Hobli, Malur Taluk. He was an agriculturist by profession. He owned and possessed the suit schedule properties which are 16 in numbers. Item Nos.1 to 15 are all agricultural properties whereas item No.16 is a house 4 property. He died on 31.7.1989 leaving behind his four daughters and a widow. Plaintiffs 1 and 2, defendants 1 and 2 are his daughters and third defendant was his widow. The plaintiffs and defendants 1 to 3 are in joint possession and enjoyment of the suit schedule properties after the death of Chavadi Venkatagiriyappa. All the four daughters are married. The fourth defendant is the husband of the second defendant. Fifth defendant is the son-in-law of the first defendant. After the death of Chavadi Venkatagiriyappa, plaintiffs 1 and 2, defendants 1 to 3 succeeded to the estate of the deceased Chavadi Venkatagiriyappa as Class-I heirs and they are entitled to 1/5th share each. The plaintiffs demanded a division in all the suit schedule properties. Defendants 1 to 3 evaded the partition. Therefore, the plaintiffs were constrained to file a suit for partition and separate possession of their 1/5th share in all the suit schedule properties. It was their further case that the husbands of defendants 1 and 2 have manipulated the revenue records to deprive and defraud the plaintiffs of 5 their legitimate rights in the joint family properties. The first defendant also made sham and colourable deeds in favour of the fifth defendant to defraud the plaintiffs of their share in the joint family properties. Therefore, 4th and 5th defendants were made parties to the suit. Subsequently, by way of an amendment, it was pleaded that the first defendant has sold out the suit items 7,8 and 9 of the plaint schedule under a registered sale deed dated 30.6.1988 for Rs.15,000/- in favour of her son-in-law-5th defendant. The said sale is illegal and liable to be set aside as not binding on the plaintiffs. The first plaintiff has preferred an appeal challenging the mutation entries in favour of husbands of defendants 1 and 2. The said appeal is pending before the Assistant Commissioner. The plaintiffs are entitled to mesne profits. Therefore, they filed a suit for partition and separate possession. Subsequent to the filing of the suit, the 3rd defendant-widow died intestate. Therefore, the plaint was amended claiming 1/4th share in all the plaint schedule properties. They also sought 6 for cancellation of sale deed dated 30.6.1988 executed in favour of the fifth defendant.
After service of summons, defendants 1, 2, 4 and 5 filed a common written statement. They admitted the relationship between the parties. After denying all the allegations in the plaint, they specifically pleaded that with an intention to grab the property of the defendants, the plaintiffs have filed this frivolous suit. Formerly Venkatagiriyappa and defendants 1 and 2 and plaintiffs 1 and 2 were in joint possession and enjoyment of some of the suit schedule properties. Venkatagiriyappa being the Manager of the family has made a statement before the revenue authorities and according to his statement the revenue authorities have mutated the katha in the name of the defendants. The fourth defendant is the husband of second defendant. The first defendant was given in marriage to one Thimmaiah, who is no more. The fifth defendant is the son-in-law of the first defendant. Since the said Venkatagiriyappa had no male issues, the husband of first defendant-Thimmaiah 7 and the fourth defendant Hanumappa were taken by Venkatagiriyappa to his house during their minority and fostered them and later on given his daughters namely defendants 1 and 2 to them. The said Thimmaiah and the fourth defendant-Hanumappa remained in his house as illtom son-in-laws. All the agricultural operations and other family affairs of the family was looked after by Thimmaiah and Hanumappa. During the lifetime of Venkatagiriyappa to avoid future complications he decided to settle his properties to all his four daughters. According to his will and wish and also statement made before the revenue authorities on 2.6.1981, the katha of the particular properties have been mutated in the names of Thimmaiah and Hanumappa. Whatever the share fallen to his respective daughters, the said properties were given to them, possession was also separately delivered. However, for convenient management of the properties, the katha has been mutated in the names of Thimmaiah and Hanumappa. However, the plaintiffs have not 8 chosen to mutate the khata in their names. But they are in possession and enjoyment of the properties fallen to their shares. The properties mentioned in Paragraph 12 of the plaint were allotted to the share of defendants 1 and 2 and exclusive possession was delivered to them. However, the katha of the said properties were mutated in the name of their respective husbands. Ever since the date of the said statement of Venkatagiriyappa, defendants 1, 2, 4 and late Thimmaiah handed possession and enjoyment of the above said property. Thimmaiah died about three years back prior to the filing of the suit. After his death his daughter Nanjamma-first defendant inherited his estate and accordingly, she has exercised all her rights over the schedule property and even today, they are in possession and enjoyment of the same. The plaintiffs are also in separate possession and enjoyment of the remaining properties of late Venkatagiriyappa and they have no manner of right or possession over the property fallen to the share of defendants 1 and 2. The land 9 bearing Sy.Nos.178/5, 238/2, 238/3, 244/1 were formally belonged to K.Muniswamy, the father of the fifth defendant Kondappa and he has sold the said property in favour of the first defendant Nanjamma under registered sale deed 4.7.1977. The said properties are her self acquired properties purchased out of the funds given by her parents. Again she has sold the said properties to the fifth defendant Kondappa under registered sale deed dated 30.6.1988 and delivered possession to him for valid consideration. Since then he is in lawful possession and enjoyment of the said properties. The plaintiffs without any valid right, title or possession have illegally included the said properties in the plaint schedule. The said properties are the absolute properties of fourth defendant Kondappa. The katha and pahani stands in his name. During the life time of Venkatagiriyappa, he has sold the house properties in favour of fourth defendant under registered sale deed dated 2.6.1981 for valid consideration and delivered possession to him and since 10 then he is in possession and enjoyment of the said house property. Katha is also transferred in his name. The plaintiffs and defendants 1 and 2 are enjoying the properties separately according to the settlement made by their father Venkatagiriyappa. Therefore, the suit of the plaintiffs is bad and they wanted the suit to be dismissed. After the suit was amended, additional written statement came to be filed by these defendants. They pleaded that the father of the fifth defendant namely K.Muniswamy was the owner of item Nos.7 to 9 of suit properties and he has sold the same in favour of the first defendant-Nanjamma and thus the said properties are her self acquired properties. She being the absolute owner of the said properties sold the same to the fifth defendant under a registered sale deed dated 30.6.1980 and delivered possession to him and since then, he is in lawful possession and enjoyment of the same. The plaintiffs absolutely have no right, title and possession over the said properties. The plaintiffs are not entitled to the relief of cancellation 11 of sale deed dated 30.6.1980 as the plaintiffs are strangers to the suit properties, item Nos.7 to 9. Therefore, they sought for dismissal of the suit.
The defendants 1, 2 and 5 filed a memo adopting the additional written statement of defendant NO.4.
On the aforesaid pleadings, the trial Court framed the following issues:-
"(1)Whether the plaintiffs prove that the suit properties are the properties of Venkatagiriyappa and they are entitled for 1/5th share in the suit schedule properties?
(2)Whether the plaintiffs further prove that the defendants 1 and 2 fraudulently sold some items of the properties in favour of fifth defendant that is his son-in-law under the reasons stated in para 5 and 6 of the plaint?
3.Whether the plaintiffs are entitled for mesne profits?
12
4.Whether the defendants 1, 2, 4 and 5 prove that the land bearing Sy.No.178/5, 238/2, 328/3 and 244/1 is the self acquired properties of the first defendant having purchased the same out of the funds given by her parents and she sold the said properties in favour of the fourth defendant under the registered sale deed dated 30.6.1988 and the plaintiffs having no right over these properties?
5.What order or decree?"
The plaintiffs in order to substantiate their claim examined the first plaintiff as P.W.1 and one Narayanappa was examined as P.W.2 and got marked 17 documents namely Exs.P1 to P17. On behalf of the defendants, 4th defendant-Hanumappa was examined as D.W.1 and one Narayanappa, a witness was examined as D.W.2. They produced 38 documents which are marked as Exs.D1 to D38. The trial Court on appreciation of the oral and documentary evidence on record held the plaintiff has proved that item Nos.1 to 6, 13 10, 12 to 16 are joint family properties in which the plaintiffs have equal share. However, it held that Item Nos.7 to 9 and 11 are not the joint family properties and the plaintiffs have no right over the same. The trial Court also recorded a finding that the plaintiffs have failed to prove that defendants 1 and 2 fraudulently sold some of the items of the property in favour of the fifth defendant. It held that defendants have proved that the land bearing Nos.178/5, 244/1, 238/3 and 238/2 are the self acquired properties of the first defendant having purchased the same out of the funds given to her by her parents and she sold the properties in favour of the fourth defendant under a registered sale deed dated 30.6.1988 and the plaintiffs are having no right over the said properties. Therefore, the suit of the plaintiffs came to be decreed partly. Aggrieved by the said judgment and decree of the trial Court decreeing the suit of the plaintiffs, the defendants have preferred this appeal.14
4. The plaintiffs have no objection to the dismissal of the suit in respect of suit item Nos.7 to 9 and 11.
5. The defendants assailing the impugned judgment of the trial Court contended that admittedly the mutation entries in respect of all the plaint schedule properties were effected in favour of husbands of defendants 1 and 2 on the basis of the statement made by the deceased Venkatagiriyappa before the revenue authorities. The said statement is in turn based on the oral partition in the family. In the said partition, the plaintiffs have also been given their share in the joint family properties. Insofar as the plaint schedule properties are concerned, the plaintiffs have no right. Therefore, he submits that the judgment and decree of the trial Court is erroneous and requires to be set aside.
6. Per contra, the learned counsel appearing for the plaintiffs supported the impugned judgment and decree.15
7. In the light of the aforesaid facts and rival contentions, the point that arises for consideration in this appeal is:-
"Whether the finding of the trial Court that suit item Nos.1 to 6, 10, 12 to 16 are joint family properties of plaintiffs 1 and 2 and defendants 1 and 2 and as such they are entitled to equal share calls for any interference?"
8. The facts are not in dispute. The deceased Venkatagiriyappa died on 31.7.1989 leaving behind four daughters and his widow. All the suit schedule properties belonged to him. They were joint family properties. They were ancestral properties. All the four daughters were married. During the pendency of the suit his widow died intestate. Therefore, the four daughters succeeded to the estate of the deceased Venkatagiriyappa in equal share being Class-I legal heirs. Therefore each one of them is entitled to 1/4th share in all the suit schedule properties. The defence is 16 Venkatagiriyappa brought up the husbands of defendants 1 and 2 from their younger days and then he married his daughters to them. They were all living together. He effected partition giving the suit schedule properties 1 to 6, 10, 12 to 16 to them. He has also made a statement before the revenue authorities requesting them to mutate their names. Accordingly, the mutation entries were effected. The plaintiffs have been given their due share in the properties. As the schedule properties exclusively belong to them, they have no right. The plea of partition is not proved by any acceptable evidence on record. The statements said to have been given by Venkatagiriyappa before the revenue authorities on the basis of which mutation entries were made are also not proved. Even if such statements were made that would not have an effect of transferring the schedule properties in favour of the husband of defendants 1 and 2. Mere mutation entry in the name of a person do not extinguish the right of the owner of the said property. Admittedly, the husbands of 17 defendants 1 and 2 did not acquire any interest in the immovable property in the manner known to law. Therefore, their names could not have been entered in the mutation record. If an entry is made on the basis of the so-called statement that entry by itself would not vest the property in the husbands of defendants 1 and
2. Thus, defendants 1 and 2 acquired no interest in the property. It is not disputed that suit properties 1 to 6, 10 and 12 to 16 are all the properties of their father and their mother having died the four daughters are entitled to equal share in the said property. That is precisely what the trial Court has held on appreciation of the oral and documentary evidence on record. Therefore, I do not find any infirmity in the said finding recorded by the trial Court which is based on legal evidence. Therefore, no case for interference is made out.
9. For the aforesaid reasons, I proceed to pass the following:-
18
ORDER The appeal is dismissed.
The parties to bear their own costs.
Sd/-
JUDGE.
*alb/-.