Karnataka High Court
G Mallikarjuna vs Jyothi on 18 February, 2020
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 18th DAY OF FEBRUARY 2020
BEFORE
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
RSA NO.100647 OF 2014 (PARTN. & SEP.POSSN.)
BETWEEN
G.MALLIKARJUNA, S/O NAGAPPA,
AGE: 64 YEARS, OCC: RETIRED TEACHER,
R/O: TAKAYAKANAHALLI VILLAGE,
TQ: KUDLIGI, DIST: BELLARY-583218.
... APPELLANT
(BY SRI.HANUMANTHA REDDY SAHUKAR, ADV.)
AND
1. JYOTHI, D/O MALLIKARJUNA,
AGE: 26 YEARS, OCC: STUDENT,
2. SHIVAPRASAD S/O MALLIKARJUNA
AGE: 24 YEARS, OCC: STUDENT,
3. DEVEERAMMA W/O MANJANNA
D/O MALLIKARJUNA,
AGE: 42 YEARS, OCC: HOUSE DURUGAPPA,
4. NAGAMMA W/O SATYANNA
AGE: 42 YEARS, OCC: HOUSE WIFE,
5. NINGAMMA W/O VASANTHA
AGE: 38 YEARS, OCC: HOUSE WIFE,
ALL ARE R/O: MAKANADAKU VILLAG,E TQ: KUDLIGI,
DIST: BELLARY-583218
6. G.TIPPESWAMY S/O THIPPANNA
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AGE: 84 YEARS, OCC: AGRICULTURIST,
R/O: TAYAKANAHALLI VILLAGE,
TQ: KUDLIGI, DIST: BELLARY-583218
7. SHANTHAMMA D/O MALLIKARJUNA
AGE: 32 YEARS, OCC: NOT KNOWN,
R/O: MAKANADAKLU VILLAGE,
TQ: KUDLIGI, DIST: BELLARY-583218.
... RESPONDENTS
(BY SRI.T. BASAVAN GOUD , ADV. FOR R1 -R5 & R7)
(R6-SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 28.07.2014
PASSED IN R.A.NO.11/2010 ON THE FILE OF THE SENIOR CIVIL
JUDGE & JMFC., KUDLIGI, DISMISSING THE APPEAL FILED
AGAINST THE JUDGMENT AND DECREE DATED 22.12.2009 AND
THE DECREE PASSED IN O.S.NO.68/2003 ON THE FILE OF THE
CIVIL JUDGE AND JMFC., KUDLIGI, DECREEING THE SUIT FILED
FOR PARTITION AND POSSESSION.
THIS RSA COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by defendant No.1 challenging the judgment and decree dated 22.12.2009 passed by the learned Civil Judge, JMFC, Kudligi, in O.S. No.68 of 2003 which was confirmed in R.A. No.11 of 2010 dated 28.07.2014 by the learned Senior Civil Judge and JMFC, Kudligi.
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2. For the purpose of convenience, the parties would be referred to as per their ranking before the trial Court.
3. Brief facts of the case are that the plaintiffs 1 to 3 and defendants 2 to 4 are the daughters and sons of defendant no.1 through his wife Thippamma. There was difference of opinion between 1st defendant and his wife Thippamma. It has come to light that 1st defendant has undergone 2nd marriage with Karibasamma who is the daughter of Batralli Basanna of Sidegallu village at Maddaneswari temple at Hudegolla village. Criminal and civil proceedings has been initiated against the 1st defendant for having performed second marriage during the subsistence of first marriage. All the suit properties are the ancestral properties of 1st defendant. The plaintiffs and defendants 2 to 4 have got right and share in the suit schedule properties by birth. The 1st defendant has 4 undergone second marriage and he is trying to alienate the suit schedule properties & other properties with an intention to defeat the rights of his children born out of his 1st wife. The plaintiffs demanded for partition and separate possession but the first defendant has not effected the partition. Hence, the plaintiffs constrained to file a suit for partition and separate possession.
4. After service of summons, defendants appeared through their counsel. Defendant No.1
5. filed written statement and defendant Nos.2 to 5 did not file written statement. Defendant No.1 admitted that the plaintiffs and defendants 2 to 4 are his daughters and sons through his wife Thippamma. First defendant has denied the allegations that he has undergone second marriage with one Karibasamma. He further denied that the 5 suit schedule properties are the ancestral properties and they are his properties. He contended that item No.1 property is not standing in his name and he is not in possession and enjoyment of the suit schedule property. Item Nos.2 and 4 properties are only ancestral properties and item Nos.3 and 5 property are the self acquired properties of 1st defendant. Item No.6 property has been sold by him in favour of Thippeswamy son of Thippanna of Thayakanahalli village. Through a registered sale deed prior to filing of the suit. Defendant No.1 has mortgaged item Nos.2 to 5 properties in favour of Thippeswamy for legal necessity and for performance of marriage of his daughters and their education; further contended that the land bearing Sy.No.36, 37, 40, 142 and 143 are purchased by first defendant in the name of his wife Thippamma and got registered in her name in the year 1972 and 1974. The said properties are the joint 6 family properties and they are not included in the suit; that there is no cause of action for filing a suit and Hence prayed to dismiss the suit.
6. The trial Court on the basis of the above pleadings, framed the following issues:
1. Whether the plaintiffs prove that all the suit properties are the ancestral properties of the 1st defendant by birth?
2. Whether the plaintiffs further prove that by birth the plaintiffs and the defendant Nos.2 to 4 have got right and share in all the suit properties?
3. Whether the plaintiffs are entitled for 3/7th share or any share in the suit schedule properties?
4. What order or decree?
7. In order to prove their case, plaintiff No.1 examined herself as PW-1 and got marked documents ExsP-1 to P-6. On behalf of the defendants, defendant No.1 examined himself as DW-1 and also 7 examined two witnesses as PWs.2 and 3 and got marked documents Exs.D1 to D24.
8. The trial Court considering the pleadings oral and documentary evidence on record held that the plaintiffs have proved that all the suit schedule properties are the ancestral properties of the 1st defendant and that the plaintiffs and defendants 2 to 4 have got right and share in all the suit schedule properties and accordingly decreed the suit of the plaintiffs granting 3/7th share in the suit schedule properties in tem Nos.2 to 5. the plaintiffs did not press the relief in respect of item No.1 of the suit schedule properties. Hence, the trial Court did not grant any share in respect of item No.1 of suit schedule property.
9. Defendant No.1 aggrieved by the judgment and decree passed by the trial Court 8 preferred R.A. No.11 of 2010 before the learned Senior Civil Judge and JMFC, Kuldligi. The appellate Court framed the following points for consideration:
1. Whether the plaintiffs prove that all the suit properties are the ancestral properties of the 1st defendant by birth?
2. Whether defendant No.1 proves that item Nos.3 to 5 properties are the self acquired properties of the defendant?
3. What order?
The appellate court after re-appreciation of the evidence and material on record held that the plaintiffs have proved that the suit schedule properties are the ancestral properties of the 1st defendant and that defendant No.1 has failed to prove that item Nos.3 to 5 are the self acquired properties of the defendant and refused to interfere with the judgment and decree passed by the trial Court and consequently dismissed the appeal confirming the judgment and decree passed by the trial Court.
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10. Defendant No.1 aggrieved by the judgment and decree passed by the Courts below has filed this appeal.
11. Heard the learned counsel for the appellant-defendant No.1 as well as the learned counsel for the respondents.
12. Learned counsel for the appellant submits that the suit for partial partition is not acceptable as the properties are standing in the name of Thippamma are not included i.e., Sy. Nos.36, 37, 40, 142 and
143. He further submits that the partition deed shows that partition has been effected between the wife and sons of defendant No.1 and the Courts below have failed to take into consideration he same while passing the impugned judgment and decree. He further submits that the appellate Court has failed to consider the grounds urged in the memorandum of appeal with 10 respect to non framing of issues in respect of the suit for partial partition. Hence, the trial Court committed an error in decreeing the suit of the plaintiffs and the appellate Court has also committed an error in confirming the judgment and decree of the trial Court. Hence, sought for allowing the appeal.
13. Per contra, learned counsel for the respondent supports the impugned judgment and decree passed by the Courts below.
14. Perused the records. It is not in dispute that the plaintiffs and defendant Nos.2 to 4 are the daughters and sons of defendant No.1 through his first wife Thippamma. It is also not in dispute that item Nos.2 to 4 are the ancestral properties of the parties to the suit. It is the case of defendant No.1 that item Nos.3 to 5 are the properties purchased by defendant No.1 out of his own income. In fact 11 defendant No.1 has not placed any material to show that he was having income for purchasing the property. On the contrary, the plaintiffs have produced the records to show that the family was owning 2 lands i.e., Item Nos.2 and 4. Said properties are the ancestral properties of the parties to the suit and the parties are getting an income from the above said properties. The plaintiffs have proved that item Nos.3 and 5 are the properties purchased out of the income derived from item Nos.2 and 4. On the contrary defendant No.1 has not produced any records to show that he was having separate source of income and he has purchased the same out of his own earning except the statement made by him. Defendant No.1 has not examined any other witness in order to prove his income. Further, Defendant No.1 has clearly admitted in the course of cross- examination that, at the time of purchasing the 12 properties he has got 6 acres ancestral property. The said admission is sufficient to hold that the family having nucleus for purchasing item Nos.3 and 5. Defendant No.1 has not pleaded in the written statement what was the source of income and how much he was getting for purchasing item Nos.3 and 5. When the defendants have failed to prove that defendant No.1 has no source of income, the trial Court has rightly held that item Nos.3 and 5 are the joint family properties of plaintiffs and defendant Nos.1 to 4 holding that the suit schedule properties are the ancestral joint family properties of the parties to suit and has rightly granted a share to the plaintiffs.
15. The learned counsel for the appellants submits that Sy.Nos.36, 37, 40, 142 and 143 are not included in the suit as the above said properties are the joint family properties and the same have been 13 purchased by defendant No.1 in the name of Tippamma, hence, the above said properties are the joint family properties of parties to the suit, the said properties are not included. Hence, suit for partial partition is not maintainable. He further submits that the trial Court has failed to frame an issue in regard to maintainability of the suit on the ground that suit for partial partition is not maintainable. In fact Sy.Nos.36, 37, 40, 142 and 143 are purchased by Tippamma and the sale deeds are in the name of Tippamma. As per Section 14 of the Hindu Succession Act, if a property owned by a female Hindu, the said properties are absolute properties and they are not joint family properties. Further, defendant No.1 has not produced any record to show that the said properties are purchased by defendant No.1 out of joint family nucleus. Hence, the said properties cannot said to be the joint family properties.
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16. As far as non framing of an issue is concerned, though defendant has taken a contention in the written statement that said properties are the joint family properties and purchased in the name of Tippamma and the parties after having understood the pleadings went for trial and have lead the evidence. Mere omission to frame an issue is not fatal to the trial of the suit unless it has affected disposal on the merits. Though no issue is framed on the fact, the parties adduce evidence on the fact in the suit, partial partition is not maintainable, but though there is a pleading and parties have lead evidence and there was a finding recorded by the trial Court on appreciation of evidence lead by the parties, omission to frame an issue does not vitiate the judgment. I would like to place reliance on the judgment of this Court in the case of M.C.Suresh Vs Sri.B.Srinivas Naik and Others reported in ILR 2009 KAR 3897, 15 wherein this Court has held that, "merely because an issue has not been framed casting the burden on defendant Nos.1 and 2 regarding plea of discharge is not fatal to the case. - Therefore, when a finding has been recorded on appreciation of the evidence lead by the parties, omission to frame the issue does not vitiate the judgment."
17. In view of the judgment rendered by this Court, though trial Court has appreciated the evidence on the ground that above said properties are not the joint family properties and the said properties are purchased by Tippamma with the financial assistance of her father, the contention of the appellants that non-framing of an issue in regard to maintainability of the suit for partial partition cannot be accepted for the reasons stated above.
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18. The learned counsel also submits that the plaintiff failed to include National Savings Certificate bonds, but the defendant has failed to establish that National Savings Certificate bonds worth Rs.2,72,200/- are being purchased by defendant No.1 out of joint family funds. But even on this ground also, the contention of the appellant that the said certificates have not been included cannot be accepted for the reasons stated above.
19. The trial Court after considering the material on record has rightly held that item Nos.2 to 5 are the ancestral joint family properties of the parties to the suit and rightly held that the plaintiffs and defendant Nos.2 to 4 are entitled to share in the suit schedule properties and the first appellate Court has rightly confirmed the judgment and decree passed by the trial Court. I do not find any ground to interfere with the impugned judgment and decree passed by 17 the Courts below and also find any substantial question of law in the present appeal.
Accordingly, the appeal is dismissed.
Sd/-
JUDGE Kmv upto para 12 MBS/-
Ct./-Hmb