Karnataka High Court
Sri K Surendra Kumar vs K Subramanyam on 7 August, 2014
Bench: K.L.Manjunath, A.V.Chandrashekara
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 7TH DAY OF AUGUST 2014
PRESENT
THE HON'BLE MR.JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR.JUSTICE A.V.CHANDRASHEKARA
REGULAR FIRST APPEAL NO.294 OF 2007 (PAR)
C/W
REGULAR FIRST APEPAL NO.606 OF 2007 (PAR)
IN RFA 294/2007:
BETWEEN:
Sri.K.Surendra Kumar
S/o K.Subramanyam
Aged about 46 years
R/at 441, Bazaar Street
Mandya - 571 401
...APPELLANT
(By Sri.Venkat Sathyanarayana.A, Advocate)
2
AND:
1. K.Subramanyam
S/o K.Sheshaiah
Aged about 83 years
R/at No.1214, 3rd Cross
Ashokanagar
Mandya Town - 571 401
(Deleted vide Court Order dated 07.08.2014
as Respondent No.1 died on 02.04.2014 by leaving
his LRS the appellant and R2 to R4, R7, R8, R9
who are already party to this appeal)
2. K.Nagendra Kumar
S/o K.Subramanyam
Aged about 54 years
C/o Rajamma Compound
D/No.1298, Chikka Yellamma Temple Road
Doorvaninagar, Bangalore - 16
3. K.Sathyanarayana
S/o K.Subramanyam
Aged about 44 years
Ganapati Nilaya
House No.2, C.M.S.School
Madhuvana Extension, Mysore - 570 001
4. K.Gopalakrishna
S/o K.Subramanyam
Aged about 41 years
R/o No.1214, 3rd Cross
Ashokanagar, Mandya Town - 570 001
5. K.Thimmegowda
S/o Kempegowda
3
Aged about 40 years
R/at Kalenahalli Village
Kothathi Hobli
Mandya Taluk and District - 571 401
6. C.Chandrashekar
S/o Kempegowda
Aged about 38 years
R/at Kalenahalli Village
Kothathi Hobli
Mandya Taluk and District - 571 401
7. Smt.Bhagyamma
W/o late Muddanna
Aged about 90 years
R/at Sheshashai Traders
Darga Road, Penukonda
Ananthapur District, A.P. - 515 110
8. Smt.Subalakshmamma
W/o M.K.Venkatachalapathi
Aged about 70 years
No.38, 4th Main Road, 5th Cross
Maruthi Extension, SRirampura
Bangalore - 21
9. Smt.Lakshmikanthamma
W/o late Vasudevashetty
Aged about 60 years
R/at "Kailasa Krupa"
D.No.6, Upstair
Behind Techno Compact
Vinayanakanagar, Tiptur
Tumkur District - 572 201
...RESPONDENTS
(By Sri.Vinayak N.V., Advocate, for
Sri.Madhukar.M.Deshpande, and
4
Sri.Santhosh S.Nagarale, Advocates for R3 & 4
Sri.K.A.Chandrashekara, Advocate, for C/R5 & R6
R2, R7, and R9 are Sd/- and Unreptd. )
*****
IN RFA 606/2007:
BETWEEN:
K.Sathyanarayana
Major
Haralehalli Road
Nehrunagar, Mandya - 571 401
...APPELLANT
(By Sri.P.Srinivasaiah, Advocate )
AND:
1. Sri.K.Surendra Kumar
S/o K.Subramanyam
R/at 441, Bazaar Street
Mandya - 571 401
2. K.Subramanyam
S/o Sheshaiah
3. K.Gopal Krishna
S/o K.Subramanyam
Both are residing at
No.1214, III Cross
Ashok Nagar, Mandya - 571 401
4. K.Nagendra Kumar
S/o K.Subramanyam
Major, Merchant
Sri.Subramanyeshwara Traders
5
Mandipet, Garudagambada Beedi
Channarayapatna - 573 116
5. K.Thimmegowda
S/o Kempegowda
Major
6. Chandrashekar
S/o Kempegowda
Major
Both are residing at Kallanehalli Village
Kothathi Hobli, Mandya Taluk - 571 401
7. Smt.Bhagyamma
W/o Late Muddanna, 90 years
Residing at Sheshashai Traders
Durga Road, Penukonda
Anantapur District, A.P.-515 001
8. Smt.Subbalakshamma
W/o M.K.Venkatachalapathi
No.38, 4th Main Road
5th Cross, Maruthi Extn.
Srirampura
Bangalore - 560 011
9. Smt.Lakshmikanthamma
W/o Late Vasudevashetty
60 years, Residing at
Kailasa Krupa, D.No.-6
Upstairs, Behind Techno Compact
Vinayaka Nagar, Tiptur
Tumkur District - 571 101
...RESPONDENTS
6
These RFAs are filed under Section 96 of CPC
against the judgment and decree dated 23.11.2006
passed in O.S.No.122/1995 on the file of the Addl. Civil
Judge (Sr.Dn.), Mandya, dismissing the suit for
partition and separate possession.
These RFAs coming on for Hearing this day,
K.L.Manjunath J., delivered the following:-
COMMON JUDGMENT
These matters were heard in full. Before dictating the judgment a memo is filed by the learned counsel for the appellant reporting the death of first respondent in RFA 294/2007.
2. The first respondent is none other than the father of the appellant, respondents 2 to 4, 8 and 9. The appellant, respondents 2 to 4, 7 to 9 are the surviving legal heirs of the deceased respondent No.1. Therefore, learned counsel appearing for the parties submit that these persons may be treated as LRs of deceased respondent No.1. Counsel for the appellant is directed to amend the cause title.
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3. The appellant in RFA 294/2007 was plaintiff in O.S.No.122/95 and the appellant in RFA 606/2007 was the third defendant in O.S.No.122/1995 which was on the file of the Additional Civil Judge (Sr.Dn.), Mandya. The suit was filed by the appellant in RFA 294/07 him claiming partition and separate possession of his 1/5th share in the suit schedule properties and the third defendant has filed RFA 606/2007 challenging the findings of the trial court on certain issues.
4. According to the plaint averments, the first defendant is the father, defendants 2 to 4 are brothers and defendants 8 and 9 are his married sisters and these persons are the members of Hindu Undivided Joint Family living together and jointly doing their business. According to the plaintiff, his father was a native of Nagasamudra Village in Andra Pradesh and left Nagasamudra by selling all the joint family 8 properties and settled down in Mandya and established his own business and on account of joint efforts of the first defendant and his sons, the suit schedule properties were purchased. They have established a factory known as Kaparthi Confectionery and they are also agents and distributors for several other business/es. Contending that it is not possible for him to live in the joint family, suit came to be filed for partition and separate possession. During the pendency of the suit, suit item No.3 of plaint 'A schedule property was sold. Therefore defendants 5 and 6 who are the purchasers of the said property have been arrayed as defendants 5 and 6 in the suit.
5. The suit was contested by the defendants. The written statements filed by the first defendant was adopted by the 4th defendant. At the first instance, plaintiff did not implead his sisters. Later on they were impleaded as defendants 7 to 9. The defendants 7 and 9 8 also adopted the written statement filed by the first defendant.
6. The contention of the first defendant in the written statement is as hereunder:
1) He admitted his relationship with the plaintiffs, defendants 1 to 4 and 7 to 9. He also admitted that his native place was Nagasamudra Village and he left the village in 1937 and lived in Bangalore for 3 to 4 years and subsequently in the year 1944 he got married.
According to him what was available to him and his family members at Nagasamudra was only a small mud house and one acre of dry land. The small house and one acre of land was disposed of by his mother and his elder brother in order to celebrate marriages of his younger sisters in the year 1946 to 1948; that he did not get any nucleus to acquire the property or to commence any business of his own. According to him the plaint schedule properties are his self acquired 10 properties. After shifting from Nagasamudra, he and his elder brother K.Nagaiah Shetty were doing business jointly and out of the joint business, as co-owners lived together till 13.04.1960 and thereafter the properties acquired by him and his brother were divided under a registered partition deed.
2) It is also the case of the first defendant that after partition, he started a butter business under the name and style of K.Subramanyam Butter and General Merchants, Bazar Street at Mandya and that the plaintiff and other defendants had not even attained the majority. According to him 20 years prior to filing of his written statement he commenced partnership business in the name and style of Sri Subramanyeshwara Agencies with the second defendant and plaintiff since by then he had attained majority and subsequently other defendants also joined as partners of the said firm and 15 years prior to filing of the suit and after 11 celebrating the marriage of the second defendant, the second defendant retired/released from the partnership business by taking his share and commenced his business in the name of his daughter Sreevalli Traders at Mandya which business was closed six years prior to filing the written statement. Thereafter second defendant started his business at Channapatna and commenced business under the name and style of "Subramanyeshwara Traders" and also secured agency of Kwality Biscuits. It is the case of the first defendant that the second defendant has purchased the shop building out of his business and shifted his business to his own building
3) That the plaintiff and first defendant alone continued the business of Sri.Subramanyeshwara Agencies and defendants 3 and 4 also went out of the business by taking their respective shares. According to him defendants 3 to 4 along with their mother 12 commenced a partnership business under the name and style of Sri Subramanyeshwara Enterprises. He also denied that the Kaparthi Confectionery is a joint family business.
4) According to him item No.1 of suit 'B Property is the partnership property of the first defendant and the plaintiff and defendants 3 to 4. He contended that item NO.2 of 'B' Schedule Property belongs to 3rd defendant. Item No.3 of Schedule property is not in existence. According to him items 1, 2 5 of schedule 'C' properties are the separate properties of the first defendant and his wife. he also contended the details of item No.5 in 'C' Schedule property has not been furnished in order to answer the same.
5) He further contends that the plaintiff, defendants 3 and 4 have commenced a partnership business under the name and style of "Kaparthi Confectionery". Investment to the said business was 13 made by the plaintiff, defendants 1, 3 and 4 from out of their business profits in Subramanyeshwara Enterprises and Subramanyeshwara Agencies and also obtaining loan from KSFC. Therefore, he submitted that there was no joint family property or joint family business and the suit for partition is not maintainable.
7. The third defendant filed his written statement separately. He has also admitted the relationship between the parties. According to him on 03.06.1992, partition was effected between plaintiff and defendants. In the partition, suit 'C' schedule properties mentioned in the partition deed were allotted to the share of plaintiff and he and defendants are not living together in the joint family. He also admitted that the first defendant was a native of Nagasamudra and he denied all the averments made in the plaint about the existence of joint family business and other facts. He contended that plaintiff had taken movable properties 14 towards his share since then there was a loan of Rs.Eight Lakhs in respect of Kaparthi Confectionery. According to him the plaintiff is living separately and the suit filed by him is not maintainable.
8. The purchasers, defendants 5 and 6 filed their common written statement contending that they have purchased the property from the first defendant, which were his self acquired and exclusive properties and that they are the notified purchasers for valuable sale consideration.
9. The 9th defendant who is one of the sisters of the plaintiff has also filed the written statement contending that there was a partition between plaintiff and defendants 1 to 4 on 03.06.1992 and it came into effect on account of the differences among the family members.
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10. Based on the above pleadings, the following issues were framed by the Trial court:
1. " Whether the third defendant proves that plaintiff and defendants have divided joint family properties under partition deed dated 03.06.1992?
2. Whether the third defendant further proves that plaintiff was allotted 'C' schedule properties under partition deed and he was allotted 'D' schedule properties?
3. Whether third defendant proves that plaintiff has lost his right by relinquishing the rights in the partnership firm in the kaparthi confectionery?
4. Whether the third defendant proves that item No.1 of 'B' Schedule property i.e., Kaparthi confectionery exclusively belong to first defendant and defendants 3 & 4?
5. Whether defendants further prove that item No.2 of 'B' Schedule property i.e., 16 the Shanthi Traders is the exclusive property of third defendant?
6. Whether the defendants further prove that item No.3 of 'B' schedule quality biscuits agency belongs to third defendant, fourth defendant and Shanthamma?
7. Whether defendants further prove that item No.3 of 'C' schedule property the Tata lorry belongs to partnership firm and plaintiff has no right over it?
8. Whether first defendant proves that his brother K.Nagaiah Shjetty and himself were divided on 13.04.1960?
9. Whether the first defendant proves the first defendant proves that second defendant released from partnership firm about 15 years back?
10. Whether the plaintiff proves that the suit schedule properties are joint family 17 properties and they are in joint possession?
11. Whether plaintiff further proves that item No.1 of 'B' schedule is the joint family business?
12. Whether the plaintiff is entitled for 1/5th share in all the suit schedule properties?
13. Whether plaintiff is entitled for mesne profits?
14. What order?"
Additional Issue:-
"Whether first defendant proves that 'A' schedule properties are his self acquired properties?"
In order to prove their respective contentions, on behalf of the plaintiff, plaintiff is examined as PW1 and examined another witness as PW2 and got marked Exhibits P1 to P10. On behalf of the defendants, defendants 1 to 3, 5 and 6 have been examined as DWs 18 1, to 3, 7 and 8 respectively and got marked exhibits D1to D13.
11. The trial court, after considering the entire evidence let-in by the parties, has held issues 1 to 5, 7, 10 to 13 in Negative. Issues 8 and 9 and additional issue in affirmative and ultimately the suit came to be dismissed.
12. Challenging the legality and correctness of the same the unsuccessful plaintiff has filed this appeal. The connected appeal RFA 606/2007 is filed by the 3rd defendant challenging the findings of the trial court on certain issues. Therefore, these two appeals are heard together.
13. According to the learned counsel for the appellant-plaintiff, the trial court has committed an error in holding that the plaint schedule properties as the self acquired properties of their father and there was 19 no joint family or joint family business. According to him the appreciation of evidence by the court below is perverse. He further contends that when the first defendant has not denied about inheriting a house and an agricultural land at Nagasamudra in Andhra Pradesh and having accepted the selling of the two properties and commenced business along with his brother K.Nagaiah Shetty exclusively proves that the scheduled properties were acquired by the first defendant from out of the joint family nucleus of sale proceedings of Nagasamudra in Andra Pradesh. Therefore he requests the court to re-appreciate the entire evidence and set aside the findings of the trial court.
14. In the connected appeal RFA 606/2007 filed by K.Sathyanarayana was defendant No.3 before the trial court. He contends that when the trial court has come to the conclusion that the plaint schedule 20 properties are the self acquired properties of their father, there was no need for the trial court to give a finding on the partition set up by the third defendant and on account of such finding, the right of the third defendant to claim a share in the suit property is tenable. Therefore, he also request court to set aside the findings of the trial court on the question of partition set up by the third defendant dated 03.06.1992.
15. Per contra, learned counsel appearing for the other defendants-respondents submit that there is nothing on record to show that out of Nagasamudra property, first defendant has commenced his business and out of such business income, the schedule properties are acquired by him. According to him the finding of the trial court on the question of acquisition of the property by the first defendant is just and proper and there is no perversity. It is further contended that 21 the evidence of DW1 K.Subramanyam, the father of the parties that Nagasamudra property was sold by his mother along with his elder brother K.Nagaiah Shetty in the year 1949. All the properties of Nagasamudara i.e., the old mud house was sold for Rs.10/- and for Rs.1,000/-, one acre of land. It is the specific case of the defendant No.1 that after receiving the sale proceeds of Nagasamudra property, his mother, his elder brother and himself celebrated the marriage of his two unmarried sisters and they incurred loan for celebrating their marriage.
16. Since the evidence of DW1 is not challenged seriously and no evidence is available to show that the business is commenced by the first defendant along with his elder brother utilizing the sale proceeds as nucleus to commence the business. It is difficult to accept the contention of the plaintiff that out of the sale proceeds from Naga Samudra property, the 22 business was commenced by the first defendant along with his elder brother K.Nagaiah Shetty. He further contends that K.Nagaiah Shetty and first defendant divided their self acquired properties as per Ex.D1 in the year 1960. It is a registered partition deed and the same is produced by the lawful custodian. The registered partition deed of 1960 has not been rebutted by the plaintiff. Therefore they request the court to dismiss these appeals.
17. Having heard the learned counsel for the parties, we have to consider the following points in these two appeals:
1. "Whether the plaintiff has proved existence of the joint family and joint family properties?
2. Whether the finding of the trial court that first defendant is the absolute owner of 23 the plaint schedule properties as perverse?
3. Whether the finding of the trial court that the defendant No.3 and defendant No.9 have failed to prove the partition dated 03.06.1992? and
4. If the said partition is held to be in negative, whether the third defendant is also entitled to claim for a share in the event, the first defendant died intestate?"
Since all these points are interlinked with each other, we would like to deal with them together.
18. The relationship between the parties is not in dispute. The main contention of the plaintiff in suit is that the plaintiff, defendants 1 to 4 are members of a Hindu Undivided Joint Family and suit properties are the joint family properties. The contention of the first defendant-father is that all are his self acquired 24 properties and some of them are out of partnership ones. On account of partition and on account of differences, partition was drawn on 03.06.1992 and therefore the suit filed by the plaintiff is not maintainable and the first defendant - father has denied the partition dated 03.06.1992.
19. In this background, this court has to consider whether the plaintiff has proved the existence of the joint family and joint family business and joint family properties. If the same is held in favour of the appellant whether the finding of the trial court requires to be set aside by this court.
20. To prove the contention of the appellant- plaintiff, except his oral testimony, there is nothing on record to show that the business set up by the first defendant along with his brother K.Nagaiah shetty was out of the sale proceeds from Nagasamudra Property. It 25 is also not in dispute that the properties held by the first defendant and his brother K.Nagaiah Shetty at Nagasamudra were only a old mud house and one acre of dry land. According to the plaintiff by selling the said property defendant No.1 and his elder brother K.Nagaiah Shetty commenced the business and therefore any acquisition made out of such income from the business are to be treated as the joint family income and joint family properties.
21. To dispel same, the first defendant has deposed that old mud house and one acre of land at Nagasamudra was sold by his mother and brother in order to celebrate the marriages of two of his sisters and also to clear the family debt. The plaintiff has not placed any material to show that the evidence of defendant No.1 as incorrect because, plaintiff was not even born when the property at Nagasamudra was sold and as a matter of fact, the first defendant was not even 26 married. To show that there was no joint family business or joint family income, or joint family property acquired by the first defendant, the first defendant has relied upon Ex.D1 registered partition deed dated 13.04.1960 drawn between his elder brother K.Nagaiah Shetty and himself.
22. On perusal of the entire partition deed, it is clear to us that K.Nagaih shetty and first defendant commenced business on their own and since they could not continue together, they decided to divide the properties between them and accordingly they have divided their self acquired properties. This document is of the year 1960 and the suit was instituted in the year 1995. By that time, Ex.D1 was more than 30 years old. The document is produced from the proper custody of first defendant who is a partner in the partition deed. Entire evidence is not rebutted by the plaintiff to hold that the first defendant and his brother have 27 commenced the business jointly out of their joint family nucleus.
23. When the first defendant has not inherited any joint family property, any property acquired by him in his name cannot be considered as a joint family property. As it is not the case of the plaintiff that though they are the self acquired properties, the first defendant as a kartha of the family as threw the same into the hotch-pot of the family. In the circumstances, we are of the view that the finding of the trial court that the plaint schedule properties are the self acquired properties of the first defendant cannot be held to be perverse or not based on proper appreciation of other evidence. Accordingly we hold the said point against the appellant.
24. So far as the ground urged in the connected appeal RFA 606/2007 is concerned, though the 28 appellant-third defendant has set up a plea on the partition dated 03.06.1992 that the same is not proved in accordance with law. What is produced before the trial court is only the xerox copy of the partition deed which is said to have taken place on 03.06.1992 vide Ex.D8. For the reasons best known to him, the original partition deed is not produced. It is an unregistered partition deed. When the court has given a finding that the suit schedule properties are the self acquired properties of the first defendant, the plaintiff and the defendants 2 to 4 who are the sons of first defendant cannot claim any share. If at all the first defendant has given any share to the to the third defendant, on his own or to any of his sons, the same shall be under a registered deed and not byway of an unregistered document. Even if the defendant No.3 was not in possession of the original partition deed, it was for him to summon the document from the custodies with 29 whom the Ex.D8 was. When such a request was made, the first defendant has categorically deposed and stated that he has not executed any partition deed, and no such document is available with him. In the circumstances, the trial court has given a finding that there is no partition as set up by the third defendant and the ninth defendant. This court cannot interfere with the same and the finding of the trial court on these issues cannot held to be perverse.
25. We have also seen that for the reasons best- known to the third defendant, the partition as set up by him dated 03.06.1992 has not even confronted to the PW1 and so also to his brothers when they were examined as witnesses. In the circumstances we do not see any merits in the connected appeal (RFA 606/2007).
26. So far as the apprehension of the third defendant that on account of the finding on partition 30 deed dated 03.06.1992 the third defendant cannot not claim a share in the event the first defendant died intestate is only a mere apprehension when the court has held that the first defendant is the absolute owner of the property. If the first defendant has died intestate, it is for the parties to work out their remedies in accordance with law.
In the result, both the appeals are dismissed. There is no order as to costs.
Sd/-
JUDGE Sd/-
JUDGE Bsv