Karnataka High Court
K.S. Basavarajappa S/O Eranna @ ... vs Veerabhadrappa S/O Eranna @ Subbaiah on 2 July, 2007
Equivalent citations: 2007(5)KARLJ292, AIR 2007 (NOC) 2432 (KAR.) = 2007 (5) AIR KAR R 250, 2007 (5) AIR KAR R 250, 2007 A I H C 3570, (2008) 3 CIVILCOURTC 135, (2007) 2 HINDULR 554, (2007) 5 KANT LJ 292, (2007) 4 ICC 670
JUDGMENT H.V.G. Ramesh, J.
1. This appeal is against the judgment and decree poised by the Civil Judge & JMFC, Hunsur, in OS 8/1993.
2. The suit is filed for partition and possession by the plaintiffs in respect of the properties comprised of land, house and moveable articles. The 1st plaintiff is the younger brother and 2nd plaintiff is the elder sister of the defendant against whom the plaintiffs joined together, filed a suit for partition and possession. It is stated that their father died 35 years ago and that the suit properties are the joint family properties and they are in joint possession, and that defendant is trying to alienate the suit schedule properly despite the attempt made by the plaintiffs to effect partition and since defendant did not accede to the request, the suit is filed.
3. In the written statement filed by the defendant, it is his specific case that during 1963 itself there was a partition effected between the two brothers and at that time 1 acre of land was gifted to the 2nd plaintiff on 26.9.1963 jointly executed by both the parties as such, she is not entitled for a share and the 2nd plaintiff got married in the year 1959 itself. Alter partition, the defendant is said to have migrated to Hosa Agrahara from Kodiyala and subsequently acquired plaint B & C Schedule properties. Even according to the defendant, the plaintiff also sold 1.10 acres of land allotted to the share of the mother Ningamma in the year 1965. Staling that four items of properties were allotted to him at Kodryala, Bommenahalli and Doddavaddragudi to an extent of about 8.08 acres and that 1st plaintiff has been allotted nearby 11 acres of land at Kodryala and Somanathapur village and there was also division of movables and cattle and also a house property has been divided among the brothers.
4. The trial court based on the pleadings raised as many as five issues. On behalf of the plaintiffs, six witnesses have been examined and on behalf of the defendant, the defendant himself got examined and two of the witnesses were examined on his behalf and several documents were got marked. The trial court based on the material evidence on record, has dismissed the suit of the plaintiffs holding that there was a prior partition during 1963 and that the 2nd plaintiff has got 1 acre of land by way of gift towards her share. Being aggrieved by the same, this appeal is by the plaintiffs on various grounds.
5. Heard the counsel for the appellants and the counsel representing the respondent.
6. Counsel for the appellants/plaintiffs submitted that there enjoyment of some property separately does not amount to partition. Even after the alleged partition in the year 1963, some of the properties were sold in the joint name of the 1st plaintiff and defendant which goes to show that there was no such partition between the brothers and as a matter of arrangement, some properties are enjoyed by the plaintiff and some other properties are enjoyed by the defendant but, that by itself will not constitute a partition. It is also contended no where it is suggested to the witnesses of the plaintiff and the plaintiff regarding 1963 partition as such, defendant has not made out a case as regards partition between himself and the plaintiff and as per the legal position, among brothers presumption is always towards jointness and there was heavy burden on the defendant to prove the partition of the year 1963. Neither any material evidence is produced nor any witness who are parties to the panchayat have been examined in this regard and accordingly submitted, even out of the property which was being sold, some other properties were subsequently acquired and that the trial court has erred in forming a presumption on its own to make out a case for the defendant and in dismissing the suit.
7. In support of his argument, learned counsel has relied upon the case of Trojan & Co. v. RM N N Nagappa Chettiar to contend that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the party was not entitled to grant the relief as prayed for.
8. Learned counsel has also relied upon the Division Bench decision of this Court in the case of Fakirappa Bailappa Kambar and Ors. v. Krishtuppa Bailoppa Kambar and Ors. 1985 (2) KLJ 312 and also in the case of Girijanandini Devi and Ors. v. Bijendra narias Choudhary and in the case of Bharat Singh and Ors. v. Mst. Bhagirahi in support of his case to contend that there were properties purchased subsequently by the defendant out of the nucleus of the joint family funds and there was no other source of income for the defendant to purchase the same. Accordingly, he submitted that the trial court has committed an error in passing an order only on presumptions and assumptions without there being a specific case of the defendant to stand by the 1963 partition.
9. Per contra, counsel for the respondent submitted, way back in the year 1963 itself the partition had taken place. After the partition, the defendant has left the village and settled at Hosa Agrahara and thereafter, he also started a business in the year 1964 by running a kirana shop and hotel and out of his earnings, he has acquired some more properties. As regards selling of the property standing in the joint name of the 1st plaintiff and defendant, it is his submission that the amount has been shared between the two and no such acquisition of property was made out of the proceeds. Even the subsequent compensation was received by the plaintiff himself which is indicative of the fact that there is equitable partition. It is also submitted that to the share of the plaintiff, more than the share of the defendant has been given. The house property and even most of the properties have been sold by the plaintiff after such partition between the brothers and in fact, as regards the properties subsequently acquired by the defendant, the plaintiff is making hectic efforts to get a share and has filed a case after a long time which goes to show that it is only an after thought and separate entries are also made in respect of the properties in the name of the plaintiff and defendant in respect of the respective properties held by them and there is also separate messing and separate living. Accordingly it is contended that the decisions relied upon by the appellants' counsel are not applicable to the case on hand. The trial court having rightly appreciated the evidence on record and also having noted the case of the defendant that he has specifically pleaded and proved that there was a partition in the year 1963, there is no question of saying that no evidence is produced, has dismissed the suit.
10. In the light of the arguments advanced, let the consider whether the trial court was justified in holding that the plaintiff failed to prove that all the suit properties are joint family properties; whether the trial court is justified in holding that there is a family partition in the year 1963 and, whether the trial court is justified in holding that 1st plaintiff is not entitled for any partition and separate possession as sought for by him.
11. The principle governing partition in respect of a hindu joint family of course, has been laid down from time to time in a catena of decisions. In Bharat Singh's case cited supra, the Apex Court has held that there is a strong presumption in favour of hindu brothers constituting a joint family. It is for the person alleging severance of the joint hindu family to prove it The mere fact that after the death of the father mutation entry was made in favour of three brothers and indicated the share of each to be one third, by itself could be no evidence of the severance of the joint family which, after the death of the fattier consisted of the three brothers who were minors. Mutation entry in favour of the widow of one of the three brothers on his death might have been made without the knowledge of the other two brothers who were minors at the time. Their minority will also explain the absence of objection to the mutation being made in her favour. The two brothers, who were minors, might not have attended the Public Assembly and could not have understood the significance of any general notice, if any, issued in that connection land the garnering of people. It is not for the revenue authorities to make any regular enquiry about the devolution of title. They make entries for revenue purposes about the person who is considered prima facie successor of the deceased. A widow would be considered an ostensible successor to her husband unless it be known that her husband was a member of a joint hindu family and the property over which mutation was to be made was joint family property. Thus mere fact of the mutation entry being made in favour of the widow on the death of her husband will not be a clear indication that there was no joint hindu family of the three brothers at the time of death.
12. In Fakirappa Bailappa's case cited supra, this Court has held thus:
It is open to the members of the coparcenary to arrange amicably separate possession and enjoyment of the family properties without effecting partition or disruption of the joint family, but at the same time whether co-owners in exclusive possession of different portions of joint family property held the same in partition or under an arrangement as to the possession, depends upon the intention of the parties which has to be gathered from the facts and circumstances of the case. Where direct evidence of intention is available, there is no difficulty in determining the question. In cases where such direct evidence of intention is wanting, the fact that the members have been living separately and enjoying the properties separately may be taken into consideration in arriving at the conclusion, but that is not conclusive.
13. Having noted the legal position, let the consider whether the finding of the trial court is justified in holding that there was an earlier partition in the year 1963. Of course, as rightly argued by the appellant's counsel, though it is the case of the defendant that there was a partition as early as in the year 1963 between the 1st plaintiff and himself, in the cross-examination of PW1 himself it is noted that there is a suggestion made to him/her that during 1963
14. December, there was a partition between the brother and himself which has been denied. Thus, the contention of the appellant's counsel that there was no suggestion being made to the plaintiff that there was a partition in the year 1963 is not correct.
15. The trial court has noted the evidence of the parties and also that of the defendant So far as raising of funds is concerned, there is evidence of DW2 that the defendant has constructed the house at Hosaagrahara and he has lent money to purchase the lands by the defendant DW2 has supported the case of the defendant for having purchased the property and also for construction of the house and also similar is the evidence of DW 3 who supports the case of the defendant to the effect that he has lent money to the defendant to purchase the properties. The trial court having noted the fact that defendant has specifically stated that there is no documentary evidence of the partition and the persons who were present at that time are not alive and according to the defendant the partition was effected in the Kodiyala house. Further according to the defendant after he left Kodiyala and started residing at Hosa Agrahara, he has built a house in the year 1965. It has also noted that the defendant has sold the southern half of the house in Kodiyala about 10 to 15 years back to one Veerappaji and this fact has been admitted by the plaintiff himself and later, plaintiff purchased that portion of the house which Veerappajji had purchased and is said to be in occupation of the entire house. Havmg taken note of this aspect, the trial court has found that if really the house belonged to the joint family as pleaded in the plaint, it is most unlikely the defendant has sold half of the house to Veerappaji and subsequently the same was purchased by the plaintiff. Ex. D39 is produced to the effect that the house bearing No.13/A stood in the name of the defendant and has been purchased by one Veerappaji On the other hand house bearing No.90 stood in the name of the 1st defendant as per Ex.D41-42. Thus, the trial court has come to the conclusion, having noted the fact that plaintiff was residing at Kodiyala and defendant was residing at Hosa Agrahara after building a house and Ex.P12 -assessment register that is produced on behalf of the plaintiff, does not prove the fact of joint family. The trial court also having taken note of several documents produced on behalf of the defendant like the voters list for the proof of defendant residing in Hosa Agrahara village and voters list extract of the year 1988 itself, has come to the conclusion that if really there was jointness in the family, defendant also should have very much stayed back at Kodiyala and not at Hosa Agrahara. The other aspect which the trial court has noticed is, Sy.No.2/2 has originally fallen to the share of the plaintiff as contended by the defendant, to the extent of 22 guntas said to have been acquired for canal purpose and plaintiff is said to have received compensation in that regard.
16. Of course the appellants' counsel has sought to produce few documents wherein subsequent to 1963 two of the properties are said to have been sold in the joint name of the plaintiff as well as the defendant to some other person and also according to him, there was a recital to the effect that amount has been utilised to purchase joint family properties. Of course, these document) are sought to be produced by the plaintiff at a belated stage to fill up the lacunae and he was not diligent enough to produce those documents at the relevant point of time. Might be that, as noted by the trial court, there is no registered partition and only in a panchayat the properties ate divided between the parties and if the property is sold, their signature is found in the joint sale, and that fact cannot be made much of. Even the evidence of the defendant is to the effect that some of the properties were purchased by the defendant at the new place i.e., Hosa Agrahara and he has examined some of the witnesses viz., DW 3 who is said to be one of the witnesses for the purchase of the property by the defendant.
17. In the decision cited by the learned counsel regarding making some mutation entries in respect of the properties, the said case was regarding minors and stating that minors were not aware of the fact of those transactions, the Apex Court has held that such transactions will not be binding on the parties and that may not form the basis to hold that there was a partition. But in the instant case, admittedly as noted by the trial court, plaintiff as well as the defendant were sufficiently old at the time they entered into partition and even the movables were listed including the cattle, etc. Para 5 and 6 of the trial court judgment clearly depicts that the properties were equally divided. Further more, none of the witnesses who are said to be the panchas to the fact of partition were examined and according to the defendant, the persons who had participated in the panchayat were not alive. Apart from that, the properties which were shared between the parties are shown to be not inequitable.
18. The trial court has also noted the fact that if really the defendant was Manager of the joint family as on the date of filing of the suit as pleaded, there was no need for the 1st plaintiff to change the katha in his name that too only in respect of five items in Schedule A to the plaint and also the fact that in respect of the land situate in Kodiyala the plaintiff has not sought for change of katha on the ground that the said land was allotted to the share of the defendant It appears the controversy has been raised by the plaintiff on the ground that there are subsequent acquisitions of the property after 1963 at Hosa Agrahara and else where by the defendant and the plaintiff has sought for division of those properties also.
19. In so far as conduct of the parties are concerned, to gather there was a real partition or not, as noted in the order of the trial court, the properties are substantially shared between the plaintiff and defendant and secondly, some of the properties which have fallen to the share of Ningamma the mother of the parties is also said to have been sold by the plaintiff and that aspect has not been disputed and depicting the fact of partition there are some revenue entries made in respect of the properties. More over, there is separate messing and separate living of tins plaintiff and defendant According to the defendant, after partition in the year 1963, he left Kodiyala Village and stayed at Hosa Agrahara and he is also said to have built a house and also acquired some properties out of the income from the hotel and kirana shop which he was running. Even the plaintiff does not dispute the fact of defendant running a kirana shop and a hotel The trial court having noted several transactions and the manner in which they have taken place, has rejected the claim of the plaintiff. As noted by the Apex Court and also by this Court, the question whether there is severance between the other members is one of the fact to be determined on reviewing of all attendant circumstances. In the case on hand, as rightly noted by the trial court all the attendant circumstances are in favour of the defendant to show that there is a partition in the year 1963 and it appears to be in the form of an oral partition as there are no documents produced. Corroborating the said aspect, the conduct of the parties as well as the equal division of the properties formed the basis for the trial court to hold that there is partition. I do not find any illegality or error committed by the trial court in arriving at the conclusion in dismissing the suit of the plaintiff.
20. For the foregoing reasons, the appeal fails and accordingly, is dismissed. Parties to bear their own costs.