Bangalore District Court
Smt.Shanta vs Smt.Revamma on 22 July, 2016
IN THE COURT OF XVIII ADDL.CITY CIVIL JUDGE,
AT BENGALURU CITY [CCH.NO.10]
Dated this day the 22nd July 2016
PRESENT
SRI MUSTAFA HUSSAIN.S.A., B.A., LL.M.
XVIII Addl.City Civil Judge.
O.S.No.800/2006
Plaintiffs 1. Smt.Shanta,
W/o Late Gangadharamurthy,
Aged about 53years,
2. G.Madhusudana,
S/o Late Gangadharamurthy,
Aged about 33 years,
3. G.Nataraja,
S/o Late Gangadharamurthy,
Aged about 30 years,
4. G.Ashok,
S/o Late Gangadharamurthy,
Aged about 26 years,
All are R/at No.2 (Out house)
7th Cross, 2nd main, Shivanagar,
Rajajinagar,
Bangalore - 560 010.
[By Sri.N.J.R.,Advocate]
2 OS.No.800/2006
/VS/
Defendants: 1. Smt.Revamma
(SINCE DEAD BY LRS)
(a) Gangahanumaiah,
S/o Late Revamma,
Aged about 40 years,
(b)Narasima Murthy,
S/o Late Revamma,
Aged about 36 years,
(c) Seshadri,
S/o Late Revamma,
Aged about 34 years,
(d) Hanumantha,
S/o Late Revamma,
Aged about 34 years,
(e) Smt.Lilavathi,
D/o Late Revamma,
Aged about 25 years,
(f) Smt.Jayalakshmi,
D/o Late Revamma,
Aged about 23 years,
D1(a) to (f) are R/at No.38,
11th C cross, Andanappa Badavane,
Kamakshipalya,
Bangalore - 560 079.
3 OS.No.800/2006
2. Jayanna,
S/o Late Gangappa @ Ganganna,
Aged about 55 years,
R/at No.52/1, 7th Cross,
2nd Main, Near Government School
Shivananagar, (Shivanahalli),
Rajajinagar,
Bangalore - 560 010.
3. Smt. Deviramma
(SINCE DEAD BY LRS)
(a) Smt.Manjula,
D/o Late Deviramma
W/o K.T.Krishnamurthy,
Aged about 40 years,
R/at Siddappa Layout,
Manjunathnagara,
Thawarekere, Kengeri Road,
Bangalore South Taluk.
4.Smt.Hombalamma @ Poorni,
D/o LateGangappa @ Ganganna,
Aged about 51 years,
5. Shivananjappa,
S/o Late Gangappa @ Ganganna,
Aged about 49 years,
6. Smt.Dhakshayani,
D/o Late Gangappa @ Ganganna,
Aged about 46 years,
All are R/at No.2, Main House,
7th Cross, 2nd main, Shivanagar,
4 OS.No.800/2006
(Shivanahalli) Rajajinagar,
Bangalore - 560 010.
7. B.Chikkanna,
(SINCE DEAD BY LRS.)
a) Smt.Susheela,
W/o late B.Chikkanna,
Aged about 55 years,
b) C.Nandeesha,
S/o Late B.Chikkanna,
Aged about 28 years,
Both are R/at No.2968, 1st Main,
C-Block, Gyathrinagara,
Bangalore - 560 021.
[By Sri.D.P.Advocate for D1,
Sri.K.N.S., Adv.,for D2,
Sri.N.L.Adv., for LRs.,of D3,
Sri.H.D.,Adv.,for D4 to 6 and
Sri. T.M.P., Adv., for D7.]
Date of institution of 25.1.2006
suit
Nature of the suit Partition & separate possession,
(Suit on pronote, suit declaration and mesne profits
for declaration and
possession suit for
injunction, etc.
Date of the 16.10.2014
commencement of
recording of the
evidence.
Date on which the 22.07.2016
5 OS.No.800/2006
Judgment was
pronounced.
Year/s Month/s day/s
Total duration: 10 05 27
(MUSTAFA HUSSAIN.S.A.)
XVIII Addl.City Civil Judge, Bangalore.
JUDGMENT
The plaintiffs have filed this suit against the defendants for the relief of partition and separate possession of their 1/5th share in the suit properties and put them in possession of the shares allotted and to declare that the Will dtd.4.12.1997 said to have been executed by Gangappa @ Ganganna is not binding on them, with mesne profits and costs.
2. Before adverting to the other aspects, it is necessary to mention that originally suit was filed against defendant No.1 to 6. Defendant No.1 & 3 died during the pendency of the suit and their LRs., were brought on record. Defendant No.7 was subsequently impleaded in the suit and he also died as such, his LRs., are brought on record.
3. The brief and relevant facts as alleged in the plaint are as follows:
6 OS.No.800/2006The Plaintiffs have filed this suit in respect of property bearing No.1, old No.2, situated at 7th Cross, 2nd Main, shivanahalli, measuring east-west 43 feet and north-south 38 feet in Sy.No.33/1, property bearing No.9, situated at 1st C Main Road, Shivanahalli, Rajajinagar, Bangalore, formed in Sy.No.31/4, measuring east-west 46 feet and north-south 41 feet and property bearing No.52/1, situated at 2nd main road, Shivanahalli formed in Sy.No.31/4, measuring east-west 50 feet and north-south 39 ½ feet which are suit item Nos.1 to 3 properties (hereinafter referred to as suit property for the purpose of brevity and convenience).
4. Plaintiffs have alleged that the 1st plaintiff is the wife and plaintiffs No.2 to 4 are children of late Gangadharamurthy. It is the case of the plaintiffs that one Gangappa @ Ganganna is a common propositor who had seven children, out of which husband of 1st plaintiff and father of plaintiff No.2 to 4 Late Gangadharamurthy was the eldest son. It is further alleged that defendant No.2 to 6 are the siblings of Late Gangadharamurthy and they constitute Joint Hindu Family governed by Mittakshara Law.
7 OS.No.800/20065. It is further alleged that the common propositor Gangappa @ Ganganna was the son of Parvathaiah and there was partition between Parvathaiah and Gangappa @ Ganganna in respect of family properties under a registered partition deed dtd. 11.3.1948. It is further alleged that in the said partition, common propositor got land in Sy.No.22/3 measuring 9 ½ guntas and the suit item No.2 & 3 properties. It is further alleged that as on the date of partition, common propositor Gangappa @ Ganganna was working as a helper in Minerva Mills from 1.11.1944 and was drawing salary of 5 Anas (30 Paise) and except this income, he had no other source of income. It is further alleged that as on the date of aforesaid partition, Gangappa @ Ganganna was married and had two children. And thereafter Gangappa @ Ganganna and his wife were doing agriculture and had earnings and out of the income derived from the said land and suit Item No.2 & 3 properties, Gangappa @ Ganganna purchased suit item No.1 for valuable consideration of Rs.200/- under a registered sale deed dtd. 3.7.1950. It is further alleged that subsequently Gangappa @ Ganganna sold his half guntas of land for a consideration of Rs.1000/- under registered sale deed dtd. 15.9.1960 and out of the sale proceeds got constructed roof tiled house in suit item No.1.
8 OS.No.800/20066. It is further alleged that as there was increase in the members of the family, Gangappa @ Ganganna purchased cows and started milk vending business. It is further alleged that the 1st daughter attained marriageable age and he mortgaged the house property under conditional sale deed dtd. 16.11.1967 without possession and raised loan of Rs.1,000/-. It is further alleged that out of the said loan proceeds he put up further construction of the house and performed the marriage of his daughter. It is further alleged that said mortgage was subsequently redeemed on 14.7.1977. It is further alleged that there after Gangappa @ Ganganna decided to construct additional accommodation for the convenience of the family and accordingly he sold the land bearing Sy.No.22/3, measuring 9 ½ guntas which was allotted to him for a valuable consideration of Rs.1000/- under registered sale deed dtd. 19.9.1960 and out of the sale proceeds put up additional construction in suit item No.1 property. It is further alleged that subsequently Gangappa @ Ganganna purchased site bearing Corporation No.2, measuring east-west 33 feet, north-south 33 feet together with Mangalore tiled house in Sy.No.33/1 for valuable consideration of Rs.1000/-, from one Varadaiah under registered sale deed dtd.14.2.1977 and started residing in the said property along with his family. It is 9 OS.No.800/2006 further alleged that Gangappa @ Ganganna retired from his service from Minerva Mills even prior to the marriage of Late Gangadharamurthy and Late Gangadharamurthy was also working in various private factories and HOPCOMS and had independent earnings and was also contributing his earnings for the maintenance of the family and so also purchase of suit Item No.1 property.
7. It is further alleged that Late Gangadharamurthy got married in the year 1972 and since the house was insufficient, therefore he started residing in a small house adjacent to suit item No.1 property along with his wife and his father, brothers and sisters continued to stay in suit item No.1 property. It is further alleged that Late Gangadharamurthy died on 13.9.1999 leaving the plaintiffs as his Legal heirs.
8. It is further alleged that the joint family also purchased a piece of land measuring 43 X 4feet on the northern side of suit item No.1 under a registered sale deed dtd. 8.10.1979 and thus measurement of suit item No.1 property was increased to 48 X 38 feet. It is further alleged that katha of the suit properties were standing in the name of Gangappa @ Ganganna in the capacity of head of joint family.
10 OS.No.800/20069. It is further alleged that in the year 1989 Late Gangadharamurthy came to know that his father and defendants 2 to 5 were trying to alienate the suit item No.1 property in favour of one Sri.J.Parasmull and immediately he filed a suit for partition against his father and other family members in OS.No.4868/1992 which was subsequently dismissed for default. It is further alleged that defendants 4 to 6 managed to obtain a Will dtd. 4.12.1992 from Gangappa @ Ganganna in respect of joint family properties, but later on Gangappa @ Ganganna died on 18.9.1993. It is further alleged that defendants 4 to 6 based on the Will dtd.4.12.1992 filed the suit in OS.No.707/1996 against Late Gangadharamurthy for the relief of declaration and possession which was came to be dismissed on 16.7.2005. It is further alleged that defendants 4 to 6 have no independent right or title over suit item No.1 property and the Will is also not binding on the plaintiffs. It is further alleged that plaintiffs being the LRs., of Late Gangadharamurthy, continued their joint possession and enjoyment of the suit properties.
10. It is further alleged that the afore said J.Parasmull also filed a suit against Gangappa @ Ganganna and defendants 2 & 5 in OS.No.1509/1992 for specific 11 OS.No.800/2006 performance which was dismissed on 16.11.1998 and thereafter no appeal was preferred. It is further alleged that all the suit properties are the joint family properties and the plaintiffs have got equal 1/5th share along with defendants 2 to 6. Hence this suit.
11. The defendants Nos.2 to 5 & 7 have resisted the suit by filing their written statement interalia contending as under:
The Defendants 2 & 3 have admitted the plaint allegations and rather supported the case of the plaintiffs and even have consented for passing decree.
12. Defendant Nos.4 to 6 have also admitted suit item No.2 & 3 as their family properties, but have denied in respect of suit item No.1 and contends that suit item No.1 property was self acquired property of Gangappa @ Ganganna who had purchased the same out of his own earnings. Defendant No.5 has also filed another separate written statement wherein he has also admitted suit item No.2 & 3 property as joint family properties and even contended that suit item No.1 property was the self acquired property of Gangappa @ Ganganna. In 12 OS.No.800/2006 addition to that 5th defendant has contended that suit item No.1 property was purchased by Gangappa @ Ganganna on 3.7.1950 under registered sale deed, out of his own earnings and even thereafter constructed a roofed tile house in the said property. It is further contended that late Gangappa @ Ganganna took voluntary retirement on 8.10.1979 and out of his salary savings purchased piece of land measuring 43 X 4 feet on the northern side of the suit property.
13. It is further contended that late Gangappa @ Ganganna sold house No.2 on 16.11.1967 in favour of Varadaiah for family necessities and repurchased the same under a registered sale deed dtd. 14.2.1977 from the said Varadaiah. It is further contended that none of the family members including Late Gangadharamurthy contributed anything for the acquisition of suit item No.1 property.
14. It is further contended that Late Gangadharamurthy got married in the year 1972 and immediately started residing separately along with his wife and as such there was severance of joint family status. Earlier partition between late Gangappa @ Ganganna and his father is admitted. It is also contended that land bearing Sy.No.22/3 13 OS.No.800/2006 measuring 9 ½ guntas allotted to Gangappa @ Ganganna was sold by him to meet the medical expenses of Late Gangadharamurthy in the year 1960. It is further contended that the house property purchased in the year 1950 was sold in favour of one Varadaiah on 16.11.1967 and subsequently repurchased by him.
15. It is further contended that in the year 1989 late Gangappa @ Ganganna had obtained loan of Rs.85,000/- from J.Parasmull for the family necessities and executed agreement of sale dtd. 4.5.1989 along with defendant No.2 & 5. The suit filed by J.Parasmull is admitted and it is further contended that the said suit was partly decreed, directing the defendants to repay advance amount with interest. It is contended that subsequent to the judgment, J.Parasmull got issued notice dtd. 2.2.2006 calling upon the defendants to repay the amount. It is further contended that late Gangappa @ Ganganna bequeathed suit item No.1 property in favour of defendant No.4 to 6 as it was his self acquired property.
16. The defendant No.7 is the purchaser of suit item No.1 property, in his written statement has supported the defense taken by defendant No.4 to 6 and has contended that 14 OS.No.800/2006 after verifying the Will executed by late Gangappa @ Ganganna in favour of defendant No.4 to 6, he purchased suit item No.1 property, as such he is a bonafide purchaser for valuable consideration. Therefore on all these grounds defendant No.2 has sought for decreeing the suit, defendant No.2 to 7 have sought for dismissal of the suit as against item No.1 property and defendant No.2 to 6 have no objection for passing decree in respect of suit item No.2 & 3 properties.
17. On the basis of the rival pleadings and contentions, my learned predecessor has framed the following issues and additional issues :
(1) Whether plaintiffs prove that item No.1 of the plaint schedule property was purchased out of the amount contributed by Gangadharamurthy?
(2) Whether plaintiffs prove that item No.2 & 3 of the plaint schedule properties are the ancestral property of plaintiffs and defendants?
(3) Whether plaintiffs prove that the sale agreement entered in to by Sri.Ganganna and defendant Nos.2 to 5 with J.Parasmull Jain was not for the benefit of the joint family?15 OS.No.800/2006
(4) Whether plaintiffs prove that they and defendants constitute a Hindu Undivided Joint Family?
(5) Whether plaintiffs prove that dismissal of suit in OS.No.4868/1992 do not affect their right to claim share in the suit schedule properties?
(6) Whether defendant Nos.4 to 6 prove the alleged Will dated 4.12.1992 executed by Sri.Ganganna?
(7) Whether plaintiffs are entitle for partition? If so, what is the quantum of their share and in which item of the property?
(8) What order or decree the parties are entitled to?
18. The plaintiffs got examined 3rd plaintiff as PW1, got marked Ex.P1 to P21on their behalf and closed their side. On the other hand, defendants got examined 5th defendant as DW1, got marked Ex.D1 to D18 on their behalf and closed their side.
19. During the course of arguments the learned counsel for the plaintiffs vehemently argued that the plaintiffs are the Legal heirs of Late Gangadharamurthy and the said Late Gangadharamurthy was the son of late Gangappa @ 16 OS.No.800/2006 Ganganna. It was further argued that all the suit properties are joint family properties, out of which suit item No.2 & 3 properties were allotted to the share of late Gangappa @ Ganganna in the partition between himself and his father Parvathaiah under a registered partition deed. It was further argued that late Gangappa @ Ganganna was working in Minerva Mills and had a meager income of 30 Paise per month and had no other source of income. It was further argued that salary of late Gangappa @ Ganganna itself was not sufficient to meet the family expenses, but however late Gangappa @ Ganganna was getting income from suit item No.2 & 3 properties and so also was cultivating the land allotted to his share and out of said income from agricultural land purchased suit item No.1 property and hence the said property is also ancestral property of the parties. It was further argued that late Gangappa @ Ganganna had no absolute right or title over suit item No.1 property and that he sold the suit item No.1 property and thereafter repurchased the same out of sale proceeds of the land allotted to his share in the family partition. It was further argued that Late Gangadharamurthy, soon after his marriage started residing in a separate residence abutting suit item No.1 property along with his wife for the sake of convenience and there was no division of family 17 OS.No.800/2006 properties. It was further argued that Late Gangadharamurthy being the eldest son was also working as helper and had earnings from HOPCOMS and had contributed his earnings for the welfare of the joint family. It was further argued that late Gangappa @ Ganganna along with defendant No.2 & 5 attempted to sell suit item No.1 and immediately after coming to know this fact, Late Gangadharamurthy filed suit for partition against his father and brothers and during the pendency of the suit, Gangappa @ Ganganna died and thereafter the suit was dismissed for default. It was further argued that subsequently defendant No.4 to 6 also filed suit claiming absolute right over suit item No.1 property on the basis of the Will, alleged to have been executed by late Gangappa @ Ganganna in OS.No.707/1996 which was came to be dismissed on merits and they have not challenged the said judgment before any court. It was further argued that defendant No.4 to 6 have sold suit item No.1 property in favour of defendant No.7 during the pendency of the suit without any absolute title and hence the said alienation as well as Will executed by late Gangappa @ Ganganna is not binding on the plaintiffs and plaintiffs have got equal 1/5th share in suit item No.1 to 3 properties.
18 OS.No.800/200620. Repelling the said arguments, the learned counsel for the defendant No.4 also argued at equal vehement stating that the defendants have not disputed the suit item No.2 & 3 properties, as ancestral properties. According to him, entire dispute is only about suit item No.1 property. Learned counsel further argued that suit item No.2 & 3 properties are available for partition and hence defendants have no objection for division of suit item No.2 & 3 properties. It was further argued that suit item No.1 was sold in favour of defendant No.7 on the basis of the Will executed by late Gangappa @ Ganganna and hence suit item No.1 property is not available for partition.
21. It was further argued that suit item No.1 property was subsequently purchased by late Gangappa @ Ganganna and according to him, late Gangappa @ Ganganna was not only working in Minerva Mills, but was also doing milk vending business and had sufficient earnings at his disposal. It was further argued that suit item No.1 property was acquired by late Gangappa @ Ganganna under registered sale deed dtd.3.7.1950 and at that time, Late Gangadharamurthy was a minor and aged about 5 years. According to him the alleged contribution towards purchase of suit item No.1 19 OS.No.800/2006 property cannot believed. It was further argued that subsequently late Gangappa @ Ganganna sold suit item No.1 property in favour of Varadaiah under registered sale deed dtd. 16.11.1967 and repurchased the same under registered sale deed dtd.14.7.1977. It was further argued that land measuring 9 ½ guntas allotted to the share of late Gangappa @ Ganganna was sold by him under a registered sale deed in the year 1960 to meet medical expenses of Late Gangadharamurthy and the said sale proceeds was not utilized for acquisition of any property at that time, hence the claim of the plaintiffs that suit item No.1 property is also ancestral property cannot be accepted. It was further argued that defendant No.4 to 6 had filed suit in OS.No.707/1996 for declaration of their title over suit item No.1 property on the basis of the Will and the said suit was dismissed due to non-examination of attesting witnesses and no finding is recorded that suit item No.1 property was ancestral property of the plaintiff in the said suit. Therefore according to him, said judgment in OS.No.707/1996 does not helps the case of the plaintiffs. He further argued that late Gangappa @ Ganganna along with his two sons defendants No.2 & 5 had agreed to sell suit item No.1 property in favour of J.Parasmull under a agreement of sale for valuable consideration of Rs.1,00,000/- and had received 20 OS.No.800/2006 Rs.85,000/- as advance sale consideration amount for the purpose of performing marriage of his elder daughter. It was further argued that subsequently the purchaser, J.Parasmull also filed suit in OS.No.1509/1992 for specific performance of contract, which was decreed in part and the sellers were directed to reimburse entire amount with interest in favour of purchaser. It was further argued that subsequently, defendant No.5 repaid entire amount under Ex.D9 and got the agreement of sale cancelled. It was argued that neither Late Gangadharamurthy nor the plaintiffs have contributed anything for the welfare of the family and they are simply claiming their share in suit properties. Therefore has sought for dismissal of suit as against suit item No.1 property.
22. Having regards to the materials placed on record and arguments heard, my findings on the above issues are as under:
Issue No.1 : In the negative
Issue No.2 : In the affirmative
Issue No.3 : Does not survive for consideration
Issue No.4 : In the affirmative
Issue No.5 : In the affirmative
Issue No.6 : Does not survive for consideration
Issue No.7 : Partly affirmative
Issue No.8 : As per final order,
for the following:
21 OS.No.800/2006
REASONS
23. Issue Nos.1 & 4: The plaintiffs have asserted that the suit item No.1 property is also joint family property and late Gangadharamurthy also contributed towards the purchase of said property and themselves and defendants constitute joint Hindu family. Per contra, the defendants have denied the alleged joint family status as well as contribution of Late Gangadharamurthy towards purchase of suit item No.1 property. They have come up with a specific defense that suit item No.1 property was self acquired property of late Gangappa @ Ganganna. With these rival pleadings and contentions the parties lead oral and documentary evidence on their behalf.
24. The plaintiffs got examined 3rd plaintiff as PW1 and this PW1 has sworn to affidavit by way of his examination in chief which is on par with the allegations made in the plaint about joint family status as well as contribution of Late Gangadharamurthy towards purchase of suit item No.1 property. According to PW1, suit item No.1 property is also joint family property. In support of his evidence PW1 has got marked various documents as per Ex.P1 to P19, so also Ex.P20 & 21 by contributing to DW1. Ex.P1 and 1(a) are the 22 OS.No.800/2006 certified copy of registered partition deed dated 11.3.1948 and its typed copy, Ex.P2 & 2(a) are the certified copy of sale deed dtd.14.2.1977 and its typed copy, Ex.P3 is the certified copy of registered sale agreement dated 4.5.1989.Ex.P4 is the certified copy of order sheet in OS.No.1509/92, Ex.P5 is the certified copy of plaint in OS.No.4868/1992, Ex.P6 is the certified copy of order sheet in OS.No.4868/92, Ex.P7 is the certified copy of plaint in OS.no.707/1996, Ex.P8 is the certified copy of judgment & decree in OS.707/96, Ex.P9 & 10 are the encumbrance certificates, Ex.P11 & 12 are the service certificates of Gangadharamurthy, Ex.P13 is the death certificate of Gangadharamurthy, Ex.P14 to 18 are the photographs, Ex.P19 are the negatives of Ex.P14 to 18, Ex.P20 is the photographs and Ex.P21 is the certified copy of legal notice issued.
25. In the cross examination directed to PW1 on behalf of defendant No.4 to 6, he admits that his grand father Gangappa @ Ganganna purchased suit item No.1 property on 3.7.1950 and has volunteered that suit item No.1 property was purchased by his grand father by selling 9 ½ guntas of ancestral land. He admits that late Gangappa @ Ganganna was working in Minerva Mills, but denied that suit item No.1 23 OS.No.800/2006 property was purchased by late Gangappa @ Ganganna out of his own earnings. It is brought on record that he has no documents to show that suit item No.1 property was purchased by selling 9 ½ guntas of ancestral land. He pleads ignorance about the loan borrowed by late Gangappa @ Ganganna from J.Parasmull. But admitted the agreement of sale between late Gangappa @ Ganganna and J.Parasmull in respect of suit item No.1 property on 4.5.1992. He also admits the suit filed by J.Parasmull in OS.No.1509/1992 for specific performance of contract. He pleads ignorance about the repayment made by defendant No.5 to said J.Parasmull and so also pleaded ignorance about cancellation of agreement between defendant No.5 and J.Parasmull. He is unable to speak the contribution of his father towards the marriage of defendant No.6.
26. The 5th Defendant got examined himself as DW1 and this DW1 has sworn to affidavit by way of his chief examination, wherein he has corroborated the contentions taken in his written statement. In particular it is the evidence of DW1 that Late Gangadharamurthy was residing separately along with his wife soon after his marriage and did not contribute anything for the purchase of suit item No.1 24 OS.No.800/2006 property. And there was severance of joint family status and hence it is the evidence of DW1 that there was no joint family status between the parties to the suit. In support of his evidence DW1 has got marked various documents at Ex.D1 to D18. Ex.D1 to 3 are the notices for payment of gratuity of Gangaiah, Ex.D4 & 5 are the invitation cards with covers, Ex.D6 is the Uttarapathra, Ex.D7 is the Assessment Register Extract, Ex.D8 is the Registered Will dated 4.12.1992, Ex.D9 is the deed of cancellation dated 9.4.2007, Ex.D10 & 11 are the sale deeds dated 12.4.2007, Ex.D12 to 14 are the certified copy of plaint, WS and Order sheet in OS.No.4868/1992, Ex.D15 to 18 are the certified copy of order sheet, plaint, written statement and Judgment in OS.No.1509/1992.
27. In the cross examination directed to DW1, it is brought on record that he is also deposing on behalf of defendant No.4 & 6 and they have no objection to allot share in respect of suit item No.2 & 3 properties in favour of plaintiffs. It is his evidence that himself and defendant No.4 & 6 are claiming suit item No.1 property based on the Will executed by Gangappa @ Ganganna and he admits that suit in OS.No.707/1996 filed by himself and defendant No.4 & 6 for declaration of their title and possession on the Will was 25 OS.No.800/2006 dismissed. He admits that same Will is also produced in the present case. He reiterates that his father was managing his family out of his salary and admits that his father had 7 children, out of which Late Gangadharamurthy was eldest son born in the year 1944. He reiterates that his father apart from working in Minerva Mills, also doing milk vending business and purchased the suit item No.1 property out of his own earnings. He admits that the suit filed by Late Gangadharamurthy in OS.No.4868/1992 against his father for partition and separate possession was dismissed for default. In his further cross examination he reiterates that late Gangappa @ Ganganna was borrowing and discharging the loans for the family necessities and according to him, late Gangappa @ Ganganna borrowed loan from Varadaiah and Paramashivaiah and discharged the same. He reiterates that himself and his sisters repaid the loan borrowed from J.Parasmull. An attempt is made to establish that late Gangappa @ Ganganna had no independent source of income to purchase suit item No.1 property, which he has denied. This is all the oral and documentary evidence placed on record.
26 OS.No.800/200628. Before adverting to the other aspects, it is necessary to understand the principles regarding presumption of jointness in Hindu family. The normal state of every Hindu family is joint. Presumably, every such family is joint in food, worship and estate. In the absence of proof of division, such is the legal presumption. But however, presumption of jointness is not an absolute one and it may be displaced by direct evidence of prior partition. There is no presumption that a family because it is joint, possesses joint family property. The burden of proving that any particular property is a joint family property is on the first instance upon the person who claims it as a coparcenary property. Where possession of a nucleus of joint family property is proved or admitted, an acquisition made by a member of family is presumed to be a joint family property. Unless and until adequate nucleus is shown, onus is not on the acquirer to prove that the property standing in his name was purchased from joint family funds. If possession of adequate nucleus is shown, onus shifts on to the person who claims property as self acquisition, affirmatively to make out that the property was acquired without any aid from the joint family estate. With these principle in my mind, let me consider the entire materials placed on record.
27 OS.No.800/200629. As could be seen from the materials on record, it is an admitted fact that there was a partition between late Gangappa @ Ganganna and his father parvathaiah in which late Gangappa @ Ganganna was allotted 3 properties including suit item No.2 & 3. The other property is land bearing Sy.No.22/3 measuring 9 ½ guntas is also admitted. It is further an admitted fact that Late Gangadharamurthy and defendants 1 to 6 are children of late Gangappa @ Ganganna. It is further an admitted fact that late Gangappa @ Ganganna was working in Minerva Mills and he was also doing milk vending business. The fact that late Gangappa @ Ganganna purchased suit item No.1 property in the year 1950 is concerned, is also admitted. It is further an admitted fact that late Gangappa @ Ganganna sold suit item No.1 property in the year 1967 and thereafter repurchased the same in the year 1977 from one Varadaiah. It is an admitted fact that the land measuring 9 ½ guntas was also sold by late Gangappa @ Ganganna. It is further an admitted fact that late Gangappa @ Ganganna entered in to an agreement of sale with J.Parasmull in respect of suit item No.1 property and received part of consideration amount. It is also an admitted fact that J.Parasmull filed suit in OS.No.1509/1992 for specific performance of contract which was decreed in part. It is also 28 OS.No.800/2006 an admitted fact that Late Gangadharamurthy also filed suit for partition against his father late Gangappa @ Ganganna in OS.No.4868/1992 which was later dismissed for default. It is further an admitted fact that late Gangappa @ Ganganna executed Will in favour of defendant No.4 to 6 bequeathing suit item No.1 property in their favour and it is admitted that subsequently defendant No.4 to 6 filed suit for declaration of their title on the basis of Will in OS.No.707/1996 which came to be dismissed. The defendants have not disputed item No.2 & 3 properties as joint family properties.
30. The plaintiffs have asserted that themselves and defendants 1 to 6 are members of joint Hindu family. But the defendants have come up with a defense that Late Gangadharamurthy was residing separately soon after his marriage, hence there was severance of joint family status. It is pertinent to note that defendants have admitted that suit item No.2 & 3 properties are joint family properties and there is no evidence placed on record by the defendants to show that there was already a partition in the family as such family has lost its status as a joint Hindu family. Therefore in view of the admitted fact and in the absence of any evidence of earlier partition it has to be presumed that the family consists of 29 OS.No.800/2006 plaintiffs and defendants 1 to 6 continued to be joint Hindu Family.
31. But now the entire dispute lingering between the parties with regard to suit item No.1 property. Plaintiffs asserts that suit item No.1 property was purchased out of joint family nucleus and Late Gangadharamurthy also contributed towards the purchase. Defendants have denied these allegations and have come up with a specific defense that suit item No.1 property was self acquired property of late Gangappa @ Ganganna. But as plaintiffs have come up with the suit, therefore initial burden lies on them to establish that the joint family had sufficient nucleus at the time of purchase of suit item No.1 property in the year 1950 so also about contribution made by Late Gangadharamurthy.
32. As stated supra, plaintiffs have lead oral as well as documentary evidence. PW1 is 3rd plaintiff, who is examined before court and in his chief examination, he has sworn to affidavit which is on par with the allegations made in the plaint. But in the cross examination it is brought on record from his mouth that suit item No.1 property was purchased by late Gangappa @ Ganganna by alienating 9 ½ guntas of land 30 OS.No.800/2006 which was allotted to his share in the partition. At this juncture if the plaint is perused, plaintiffs at para 6(a) have pleaded that late Gangappa @ Ganganna and his wife were doing agriculture in their land and raising various crops and out of the agricultural income, as well as the income from other two properties, purchased suit item No.1 property for a consideration of Rs.200/- on 3.7.1950. But interestingly plaintiffs have not pleaded as to how many lands the family had at that particular point of time. According to the materials placed on record late Gangappa @ Ganganna had only 9 ½ guntas of land which was allotted to him in the family partition and there is no evidence placed on record by the plaintiffs to show that 9 ½ guntas was under cultivation and family was also getting sufficient income through the said land. Therefore the evidence of PW1 on this aspect does not inspire the confidence of this court. It is also the case of the plaintiffs that late Gangappa @ Ganganna was also getting income from other two properties. Admittedly the other two properties are none other than suit item No.2 & 3 properties. And there is no pleadings on behalf of the plaintiffs to show the exact earning from these two properties at that point of time. But according to PW1, late Gangappa @ Ganganna sold 9 ½ guntas of land and purchased suit item No.1 property. At 31 OS.No.800/2006 this juncture if plaint at page 8 is perused, plaintiffs themselves have pleaded that the said 9 ½ guntas of land was sold in favour of one Smt.Sarojamma under a registered sale deed dtd. 19.9.1960. It is an admitted case of the parties that suit item No.1 property was initially purchased by late Gangappa @ Ganganna on 3.7.1950 which is almost one decade earlier to the sale of 9 ½ guntas of land. Therefore question of making use of consideration amount for the purpose of purchase in 1950 does not arise. Therefore pleadings on this aspect is very vague and what is pleaded by the plaintiffs are not proved by them and what is attempted to be proved is not pleaded properly.
33. This apart it is further pertinent to note that according to the plaintiffs Late Gangadharamurthy also contributed for the purchase of suit item No.1 property. It is an admitted evidence of PW1 that his father Gangadharamurthy was born in the year 1944 and the suit item No.1 property was purchased in the year 1950. Therefore as on the date of purchase of suit item No.1 property, Late Gangadharamurthy was aged around six years. That being so how this Late Gangadharamurthy contributed for the 32 OS.No.800/2006 purchase of suit item No.1 property is not explained by the plaintiffs properly.
34. This apart it is further pertinent to note that according to the plaintiffs, late Gangappa @ Ganganna sold suit item No.1 property in 1967 in favour of one Varadaiah under a registered sale deed dtd. 16.11.1967 for consideration of Rs.1,000/-. Defendants have contended that late Gangappa @ Ganganna sold suit item No.1 property in the year 1967 for family necessity. Interestingly Late Gangadharamurthy was major as on the date of sale in 1967 and there is no evidence placed on record by the plaintiffs to show that Late Gangadharamurthy objected for the sale of property on the ground that it is joint family property. It is further pertinent to note that this property was once again purchased by late Gangappa @ Ganganna under registered sale deed dtd.14.2.1977 and the plaintiffs themselves have produced the certified copy of the sale deed as per Ex.P2 and there is no evidence placed on record by the plaintiffs to show what was the contribution of Late Gangadharamurthy when suit item No.1 property was repurchased under Ex.P2. Even there is no evidence placed on record to show that sale proceeds of the land which was sold on 19.9.1960 was utilized for the 33 OS.No.800/2006 repurchase of suit item No.1 property in the year 1977. Admittedly Late Gangadharamurthy started residing separately along with his wife soon after his marriage in a small portion abutting suit item No.1 property. There is no evidence placed on record to show that, what was the earnings of Gangadharamurthy at that point of time. Therefore the plaintiffs have failed to discharge the initial burden to establish that the family had sufficient nucleus at its disposal and the so called contribution of Late Gangadharamurthy for the purchase of suit item No.1 property. Therefore the onus never shifts on the defendants to prove that the suit item No.1 property was self acquired property of late Gangappa @ Ganganna. The entire evidence placed on record on this aspect by the plaintiffs is insufficient to hold that the suit item No.1 property is also joint family property.
35. But however, DW1 in his evidence has spoken it was self acquisition of late Gangappa @ Ganganna and there is no effective cross examination directed to him. And the entire materials placed on record probabalises the defense taken by the defendants than the case put forth by the plaintiffs. Therefore, in the considered opinion of this court plaintiffs have utterly failed to establish that suit item No.1 property 34 OS.No.800/2006 was purchased out of joint family nucleus and from the contribution of Late Gangadharamurthy. But however, they are able to prove that themselves and defendants 1 to 6 constitute Joint Hindu Family, hence I record my finding on issue No.1 in the negative and issue No.4 in the affirmative.
36. Issue No.2: Plaintiffs have asserted that item No.2 & 3 properties are their ancestral properties. The defendants have admitted this aspect in their written statement and virtually there is no dispute between the parties in so far as item No.2 & 3 properties are concerned. Hence this issue is answered in the affirmative.
37. Issue No.3: Plaintiffs have asserted that the agreement executed by late Gangappa @ Ganganna in favour of J.Parasmull is not for the benefit of the joint family. Admittedly the suit filed by J.Parasmull was decreed in part and DW1 has also got marked certified copy of the judgment in OS.No.1509/92 as perEx.P18 and it is also the evidence of DW1 that subsequently 5th defendant also entered in to a deed of cancellation with J.Parasmull under Ex.D9 and the amount received as part of sale consideration was also repaid to J.Parasmull and now there is no dispute in so far as the claim 35 OS.No.800/2006 of J.Parasmull on the basis of the agreement of sale. Therefore, in view of the above facts and circumstances this issue has become infructuous and does not survive for consideration.
38. Issue No.5: Plaintiffs have asserted that the dismissal of the suit in OS.No.4868/1992 does not affect their right to claim share in the suit properties. Plaintiffs have also relied on the decision reported in 2013(1) KCCR 672(DB) wherein it is held as under:
"Hindu Law-Suit for partition - Dismissal for default - Effect of - Property continues to be joint - Right of co-sharers to seek partition - Also continues as a recurring cause of action -Dismissal for default would not have effect of filing yet another suit for partition on same cause of action."
39. The principles laid down in the above authority also applicable to the case on hand. Admittedly earlier suit was dismissed for default and the rights of the parties were not adjudicated and in view of the law laid down by our own High 36 OS.No.800/2006 Court, the present suit is maintainable. Hence I record my finding on this issue in the affirmative.
40. Issue No.6: The defendant No.4 to 6 have contended that late Gangappa @ Ganganna executed Will in their favour, bequeathing suit item No.1 property on 4.12.1992. DW1 in his evidence has also spoken to that effect. In support of his evidence he has got marked the original Will as per Ex.D8. In his cross examination at page 10, DW1 has also spoken that he is claiming right on the basis of the Will as per Ex.D8. It is an admitted fact that defendant No.4 to 6 also claimed their title over suit item No.1 property on the basis of Ex.D8 by filing the suit in OS.No.707/1996 which was admittedly came to be dismissed under Ex.P8. The plaintiffs have also got marked the certified copy of the plaint in OS.No.707/1996 as per Ex.P7 in which they sought the relief of declaration of their title on suit B property which is none other than suit item No.1 property herein. On perusal of Ex.P8, it is noticed that the suit filed by the defendants 4 to 6 was came to be dismissed by holding that they failed to prove the Will which was marked as Ex.P1 in the said suit. The judgment in Ex.P8 has not been challenged by preferring appeal nor it is reversed by any court. Therefore, the 37 OS.No.800/2006 judgment in Ex.P8 has become final and operates in personam as against defendant No.4 to 6. The right of defendant No.4 to 6 under Ex.D8 was already adjudicated in Ex.P8. Therefore now, Defendants No.4 to 6 are estopped from claiming right under Ex.D8 over suit item No.1 property. Therefore in view of findings recorded in Ex.P8, I am of the opinion that this issue has become infructuous and hence does not survive for consideration.
41. Issue No.7: The plaintiffs have claimed partition and separate possession of their 1/5th share along with 1/7th share in the share of late Gangappa @ Ganganna over suit item No.1 to 3 properties. They also sought for a declaration that the Will dtd. 4.12.1992 does not binds them and for mesne profits. It is an admitted fact that suit item No.1 to 3 properties are joint family properties. While recording finding on issue No.1, this court has come to the conclusion that suit item No.1 property was the self acquired property of late Gangappa @ Ganganna. It is pertinent to note that though late Gangappa @ Ganganna bequeathed suit item No.1 property under Ex.D8 in favour of defendant No.4 to 6, but their claim on the basis of Ex.D8 was negatived under Ex.P8. Defendants 4 to 6 have not challenged the said judgment in Ex.P8 and that has become 38 OS.No.800/2006 final. Therefore when once the title of defendant No.4 to 6 on the basis of Ex.D8 is negatived, the suit item No.1 property reverts back to late Gangappa @ Ganganna. Now due to the death of late Gangappa @ Ganganna, it become ancestral property of the plaintiffs as well as defendants 1 to 6 and devolve by succession on them.. And accordingly they are entitled for their respective share in suit item No.1 to 3 properties.
42. At this stage, it is pertinent to mention that defendant No.7 who is the purchaser of suit item No.1 property has also contended that he verified the Will and purchased suit item No.1 property from defendant Nos.4 to 6 under a registered sale deed dtd. 12.4.2007. According to him he is bonafide purchaser of suit item No.1 property. Admittedly the supplemental defendant No.7(a) & (b) have not lead their evidence to establish their bonafide. Even otherwise it is pertinent to note that the claim of defendant no.4 to 6 on the basis of Ex.D8 was rejected by the court under Ex.P8 and this judgment in Ex.P8 was delivered on 15.7.2005. Therefore almost two years prior to the date of alienation in favour of defendant No.7 and the deceased defendant No.7 without verifying this important aspect, has ventured to purchase suit 39 OS.No.800/2006 item No.1 property and contends that after verifying Ex.D8, he purchased suit item No.1 property cannot be accepted. The deceased defendant No.7 ought to have exercised more diligence while purchasing suit item No.1 property, therefore it cannot be held that deceased defendant No.7 is a bonafide purchaser of suit item No.1 property. Even otherwise as on the date of alienation of suit item No.1 property, this suit was already pending for adjudication. The deceased defendant No.7 perhaps did not verify the pendency of this suit and ventured to purchase the suit item No.1 property. Therefore the alienation so made in favour of defendant No.7 is also hit by doctrine of lis-pendence as provided u/s.52 of Transfer of Property Act.
43. As stated supra plaintiffs have claimed 1/5th share as well as 1/7th share in the share of late Gangappa @ Ganganna over suit properties. The defendants 2 to 6 have also claimed share in suit item No.2 & 3 properties. It is an admitted fact that late Gangappa @ Ganganna died on 18.9.1993 leaving behind Late Gangadharamurthy, husband of 1st plaintiff and father of plaintiff No.2 to 4 and defendant No.1 to 6 as his LRs. On perusal of the plaint and evidence it is noticed that, late Gangappa @ Ganganna had 3 sons and 4 40 OS.No.800/2006 daughters and died on 18.9.1993. Therefore soon after the death of late Gangappa @ Ganganna succession opens to his male coparceners. The 4 daughters of late Gangappa @ Ganganna are also claiming right in the suit properties, but as Gangappa @ Ganganna died on 18.9.1993, therefore daughters were not coparceners in their own right and hence they are not entitled for equal right in the suit properties. Therefore the daughters of late Gangappa @ Ganganna takes share only in the share of late Gangappa @ Ganganna and not on par with male coparceners. In this connection I would like to rely on the decision reported in (2016) 2 SCC page 36 wherein Hon'ble Supreme Court was pleased to held as under:
Family and Personal Laws- Hindu Succession Act, 1956 - S.6 [as substituted by Hindu Succession (Amendment) Act, 39 of 2005] -
Applicability - Not retrospective in operation - Applies only when both coparcener and his daughter were alive on date of commencement of Amendment Act ie., 9.9.2005, irrespective of date of birth of daughter and coparcener who died thereafter.
The principles laid down in the above authority are also amply applicable to the case on hand and in the instant case late 41 OS.No.800/2006 Gangappa @ Ganganna died in the year 1993 itself and the daughters will not get equal right, since Gangappa @ Ganganna was not alive as on the date of commencement of Hindu Succession (Amendment) Act 2005. Therefore notional partition has to be effected between Gangappa @ Ganganna and his 3 sons as on 18.9.1993, in which late Gangappa @ Ganganna and his 3 sons being male coparceners take 1/4th share each in suit item No.1 to 3 properties and the share allotted to late Gangappa @ Ganganna to the extent of 1/4th has to be further divided among all his sons and daughters who are 7 in number and accordingly all the children of late Gangappa @ Ganganna takes 1/7th share each out of share allotted to deceased Gangappa @ Ganganna. Therefore Late Gangadharamurthy, defendant No.2 & 5 takes 1/4th share in their own right and gets 1/7th share out of 1/4th share of late Gangappa @ Ganganna. The defendant No.1, 3, 4 & 6 take 1/7th share in the 1/4th share of late Gangappa @ Ganganna. Hence the plaintiffs being the legal heirs of late Gangadharamurthy are together entitled for his 1/4th share and the 1/7th share out of the share of deceased Gangappa @ Ganganna.42 OS.No.800/2006
44. The plaintiffs have also sought for declaration that the Will executed by Gangappa @ Ganganna on 4.12.1992 is not binding on them. As stated supra, defendant No.4 to 6 have failed to establish their right under Ex.D8 and the property also reverted back to late Gangappa @ Ganganna and hence the Will as per Ex.D8 does not binds the plaintiffs to the extent of their share.
45. The plaintiffs have also claimed separate possession of their share as well as mesne profits. Plaintiffs are entitled for partition and separate possession to the extent of their share and question of mesne profits is kept open for adjudication during final decree proceedings. Hence I record my finding on this issue in partly affirmative.
46. Issue No.8: For the foregoing discussions and reasons stated therein suit of the plaintiff succeeds and deserves to be decreed in part. In the result I proceed to pass the following:
ORDER Suit of the plaintiff is hereby decreed in part.43 OS.No.800/2006
The plaintiffs 1 to 4 together are entitled for partition and separate possession of 1/4th share plus 1/7th share out of 1/4th share of late Gangappa @ Ganganna in suit item No.1 to 3 properties by metes and bounds.
The defendants 1 to 6 shall effect partition and put the plaintiffs in separate possession of their shares in the suit item No.1 to 3 properties. Failing which the plaintiffs to take their share by initiating final decree proceedings.
It is declared that the Will dtd. 4.12.1992 executed by late Gangappa @ Ganganna in favour of defendant No.4 to 6 and the alienation made by defendant No.4 to 6 in respect of suit item no.1 property in favour of defendant No.7 is not binding on the plaintiffs to the extent of their shares.44 OS.No.800/2006
There shall be a separate enquiry for mesne profits under order 20 rule 12 CPC.
Draw decree accordingly.
[Dictated to the Judgment Writer on computer, computerised, and print out taken by him, corrected and then pronounced by me in open court, this day the 22nd July 2016].
(MUSTAFA HUSSAIN.S.A.) XVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU ANNEXURE
1. No.of witnesses examined on behalf of plaintiff/s:
PW1 : G.Nataraja
2. No.of documents marked on behalf of plaintiff/s:
Ex.P1, 1(a): Certified copy of registered partition deed dtd.11.3.1948 and its typed copy Ex.P2, 2(a): Certified copy of sale deed dtd.14.2.1977 and its typed copy Ex.P3 : CC of registered sale agreement dated 4.5.1989. Ex.P4 : Certified copy of order sheet in OS.No.1509/92 Ex.P5 : Certified copy of plaint in OS.No.4868/1992 Ex.P6 : Certified copy of order sheet in OS.No.4868/92 Ex.P7 : Certified copy of plaint in OS.no.707/1996 Ex.P8 : Certified copy of judgment & decree in OS.707/96 45 OS.No.800/2006 Ex.P9 & 10: Encumbrance certificates Ex.P11 & 12:Service certificates of Gangadharamurthy Ex.P13 : Death certificate of Gangadharamurthy Ex.P14 to 18: Photographs Ex.P19 : Negatives Ex.P20 : Photographs(confronted to DW1) Ex.P21 : Certified copy of legal notice issued.
3. No. of witnesses examined on behalf of defendant/s:
DW1: Shivananjappa
4. No. of documents marked on behalf of defendant/s:
Ex.D1 to 3: Notices for payment of gratuity of Gangaiah Ex.D4 & 5: Invitation cards with covers Ex.D6 : Uttarapathra Ex.D7 : Assessment Register Extract Ex.D8 : Registered Will dated 4.12.1992 Ex.D9 : Deed of cancellation dated 9.4.2007 Ex.D10 & 11: Sale deeds dated 12.4.2007 Ex.D12 to 14: Certified copy of plaint, WS and Order sheet in OS.No.4868/1992 Ex.D15 to 18: Certified copy of order sheet, plaint, WS, and Judgment in OS.No.1509/1992.
XVIII Addl. City Civil Judge Bangalore City.46 OS.No.800/2006
Judgment pronounced in the open court vide separate judgment. The operative portion of judgment reads thus:
ORDER Suit of the plaintiff is hereby decreed in part.
The plaintiffs 1 to 4 together are entitled for partition and separate possession of 1/4th share plus 1/7th share out of 1/4th share of late Gangappa @ Ganganna in suit item No.1 to 3 properties by metes and bounds.
The defendants 1 to 6 shall effect partition and put the plaintiffs in separate possession of their shares in the suit item No.1 to 3 properties. Failing which the plaintiffs to take their share by initiating final decree proceedings.
It is declared that the Will dtd. 4.12.1992 executed by late Gangappa @ Ganganna in favour of defendant No.4 to 6 and the alienation made by defendant No.4 to 6 in respect of suit item no.1 property in favour of defendant No.7 is not binding on the plaintiffs to the extent of their shares.
There shall be a separate enquiry for mesne profits under order 20 rule 12 CPC.
Draw decree accordingly.
XVIII Addl.C.C. & S.J., Bangalore