Karnataka High Court
Shri M Armugam vs Smt Devakiammal on 15 January, 2021
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
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IN THE HIGH COURT OF KARNATAKA BENGALURU
DATED THIS THE 15th DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR FIRST APPEAL NO.316 OF 2006 (PAR)
BETWEEN:
SHRI M.ARMUGAM,
AGED ABOUT 40 YEARS,
S/O LATE A.MURUGAN ACHARI,
R/AT NO.155, KULLAPPA COLONY,
MURUGESHPALYA, HAL POST,
BANGLAORE - 560 017.
... APPELLANT
(BY SRI.M.A.SEBASTIAN, ADVOCATE)
AND:
1. SMT.DEVAKIAMMAL,
AGED ABOUT 68 YEARS,
W/O LATE A.MURUGAN ACHARI.
2. SHRI M.BALASUBRAMANIAM
AGED ABOUT 35 YEARS,
S/O LATE M.RAJENDRAN.
3. SMT.KAMAKSHI,
AGED ABOUT 30 YEARS,
W/O M.RAJENDRA.
ALL R/AT NO.154, KULLAPPA COLONY,
MURUGESHPALYA, HAL POST,
BANGALORE - 560 017.
4. SMT.PALANIAMMAL,
AGED ABOUT 43 YEARS,
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W/O K.R.DORAISWAMY,
R/AT NO.25, PILLAIR KOVIL,
BLACK STREET, KASPA
VELLORE - 632 001.
5. SMT.LAKSHMI,
AGED ABOUT 38 YEARS,
W/O S.SUNDARAMURTHY,
R/AT NO.97, III MAIN,
RAMAKRISHNAPURAM,
EAST THAMBRAM,
CHENNAI - 600 059. ... RESPONDENTS
[(BY SRI C.C.POOVAIAH, ADVOCATE FOR
R1 TO R3 (ABSENT)
NOTICE SERVED TO R4 & R5]
THIS RFA IS FILED UNDER SECTION 96 OF CIVIL
PROCEDURE CODE, 1908, CHALLENGING THE JUDGMENT AND
DECREE DATED 25.10.2005 PASSED BY THE XXVIII ADDITIONAL
CITY CIVIL JUDGE, MAYOHALL UNIT, BANGALORE IN
O.S.NO.15269/2003.
THIS RFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THIS COURT DELIVERED THE FOLLOWING:
JUDGMENT
Sri.M.A.Sebastian, learned counsel for appellant has appeared in-person.
2. This regular first appeal is filed by the first defendant.
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3. For the sake of convenience, the parties are referred to as per their rankings before the trial Court.
4. The short facts are these; one Murugan Achari and Devakiammal are husband and wife. They had three sons and three daughters. Murugan Achari, died intestate on 21.09.2001. He has left behind his certain suit properties which are his self acquired properties and the same is inherited by his sons and daughters who are parties to the suit.
The eldest son by name - M. Panneer Selvam, who was in the Army died as a Bachelor and intestate. It is averred that from the service benefits of their son- M.Panneer Selvam, the father purchased a house property at No.155, Kullappa Colony, Murugeshpalya H.A.L. Bangalore, which is more fully described as 'A' schedule property in the name of the first defendant as he was living with his parents at that time.
Plaintiffs stated that defendant No.1 got a job in Army on compassionate grounds as a Civilian employee. A residential house described as 'B' schedule property is also 4 the self-acquired property of Late Murugan Achari and 'A' schedule property is in exclusive possession of defendant No.1. Late Murugan Achari had also acquired agricultural lands at N.Gangapathu Thirvanamalai under three different sale deeds. The schedule 'D' property in Sy.No.58/8A was also purchased by Late Murugan Achari on 26.04.1975, likewise, schedule 'E' property was purchased on 25.11.1989.
Therefore, plaintiffs stated that schedule 'B' to 'E' properties are the self acquired properties of Late Murugan Achari to be inherited by all the legal heirs equally and though schedule 'A' property was purchased in the name of defendant No.1 out of service benefits of Late M.Panneer Selvam, the same should be partitioned amongst the parties. After the death of Sri.Murugan Achari, defendant No.1 refused to grant share and therefore, they were constrained to initiate action seeking partition and separate possession in respect of the suit schedule property.
On service of summons, defendant No.1 appeared and filed written statement and he denied the plaint averments. Defendant No.1 admitted the relationship between the parties. He has stated that his father died on 21.09.2001 and 5 that during his life time, he has partitioned the immovable properties, whereby, plaintiffs were given schedule 'B' premises and defendant No.1 was given schedule 'A' property with the consent of the parties.
It is further submitted that schedule 'A' property is his self acquired property. Among other grounds, he prayed for the dismissal of the suit.
On the basis of the above said pleadings, the trial Court framed the following issues: -
"1. Whether the plaintiffs prove that suit schedule properties are joint family properties and that they are co-parceners of the joint family property as mentioned in the suit schedule?
2. Whether the first defendant proves that suit schedule A property is his self acquired property and that he is the sole and absolute owner of schedule A property?
3. Whether the defendant No.1 proves that the properties of his father late Murugan Achari was partitioned amongst the family members by way of family settlement during the lifetime of Murugan Achari?6
4. Whether the suit is bad for non-joinder of necessary parties?
5. Whether the plaintiffs are entitled for a share in the suit schedule properties? If so, to what extent?
6. What order or decree?"
In support of the claim, plaintiff No.2 was examined as PW-1 and produced seven documents which were marked as Exs.P1 to P7. On behalf of defendants, defendant No.1 was examined as DW-1 and produced twenty-three documents which were marked as Exs.D1 to D23.
On the trial of the action, the suit came to be decreed holding that plaintiffs and defendants are entitled for 1/6th share in the suit schedule properties. Aggrieved by the judgment and decree, defendant No.1 has preferred this appeal under Section 96 of CPC.
5. Sri.M.A.Sebastian, learned counsel for appellant submitted that judgment and decree of the trial Court is un- sustainable in law and therefore, the same is liable to be set aside.
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Next, he submitted that the suit schedule 'A' property was purchased by defendant No.1 vide registered sale deed dated 11.01.1989 and it is his separate property.
A further submission was made that defendant No.1 was aged about 22 years. He was working as a Carpenter and has sufficient source of income to purchase the property. It is urged that that suit 'A' schedule property is separate property and the property purchased in his name cannot be treated as joint family property under any stretch of imagination. Therefore, he submitted that the learned Judge has erroneously decreed the suit and granted 1/6th share in suit 'A' schedule property.
Counsel submitted that the trial Court has failed to understand the difference between coparcenary property and joint family property and separate property.
Counsel vehemently contended that for a property to get included as joint family property there should be first of all a joint family as understood under Mitakashara Law. It is an undisputed fact that the father of defendant No.1 was working in BEML and suit schedule properties 'B' to 'E' 8 properties were purchased by Murugan Achari. They are self- acquired properties of Murugan Achari and therefore, the children do not get any right by birth.
It has been contended that the suit schedule 'B' to 'E' properties are the properties of Murugan Achari. Therefore, under Section 8 of the Hindu Succession Act, 1956, parties to the lis are equally entitled for one share each. Insofar as 'A' schedule property, it is sought to urge that plaintiffs are not entitled for any share as it is the separate property of defendant No.1.
Among other grounds, he submitted that the judgment and decree is unsustainable in law and is liable to be set aside insofar as suit 'A' schedule property is concerned.
6. To substantiate his claim, he has relied upon the following decisions: -
1. AIR 1969 SC 1330 - STATE BANK OF INDIA v. GHAMANDI RAM (DEAD) BY HIS LEGAL REPRESENTATIVE GURBUX RAI
2. AIR 1976 SC 109 - SURJIT LAL CHHABDA V. COMMISSIONER OF INCOME-TAX, BOMBAY.9
3. AIR 1953 SC 495 - C.N.ARUNACHALA MUDALIAR V. C.A.MURUGANATHA MUDALIAR AND ANOTHER
7. I have heard the contentions urged on behalf of appellant and perused the material on record with care.
For the sake of convenience, the genealogy is referred to as under.
GENEALOGICAL TREE MURUGAN ACHARI SMT.DEVAKI AMMAL
1. BALASUBRAMANIAN
2. KAMAKSHI
3. M.ARMUGAM
4. PLANIAMMAL
5. LAKSHMI
6. M.PANNER SALVAM
8. The facts have been sufficiently stated. As could be seen from the pleadings, the relationship between parties is not in dispute.
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Murugan Achari died intestate on 21.09.2001 leaving behind his wife, two sons and three daughters to succeed to his estate. The partition suit is filed by the wife of Murugan Achari along with one son and one daughter against other siblings.
Plaintiffs have sought for the partition of five items of the properties described in the suit schedule as schedule 'A' to 'E'. The trial Court decreed the suit. This appeal is by the first defendant. It is confined to 1 item which is described in suit schedule 'A' a house measuring 600 sq feet situated at Nanjareddy Colony, Murugeshpalaya, Bengaluru.
Bearing these facts in mind, the point which would arise for consideration is whether the trial Court justified in granting 1/6th share in schedule 'A' property by holding that schedule 'A' property is the joint family property?
Before I answer the point, it would be relevant to know the law on the classification of the property.
Property, according to the Hindu law, may be divided into two classes, namely: (1) joint family property; and (2) separate property.
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Joint family property may be divided according to the source from which it comes into:
(1) ancestral property; and (2) separate property of coparceners thrown into the common coparcenary stock.
Property jointly acquired by the members of a joint family, with the aid of ancestral property, is joint family property. Property jointly acquired by the members of a joint family without the aid of ancestral property may or may not be joint family property; whether it is so or not, is a question of fact in each case. The term joint family property is synonymous with coparcenary property. Separate property includes 'self- acquired 'property.
Generally speaking, 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. It is needless to say that there is no presumption that a family, because it is joint possesses joint property or any property. When in a suit for partition, a party claims that any particular item of the property is joint family property, a party contends that the property is joint family 12 property, the burden of proving it rests on the party asserting it.
To render the property joint, the plaintiff must prove that the family was possessed some property, with the income of which the property could have been acquired, or from which the presumption could have be drawn that all the property possessed by the family is joint family property.
Where the plaintiff failed to discharge the burden of proving that the property had been acquired out of joint family funds, and the defendant was able to prove separate earnings and other records were also in his name, the suit for partition is liable to be dismissed. Thus, when properties were proved to be self-acquired properties, coupled with the fact that there was no evidence as regards joint family nucleus, such properties could be dealt with for disposition in any manner, as they were self-acquired.
In the background of these legal principles, let me see what is the nature of the property in the present case? 13
This is a defendant's appeal. The appellant is the son of late A.Murugan Achari. A.Murugan Achari died intestate on 21.09.2001 leaving behind his wife, two sons and three daughters to succeed to his estate. The partition suit is filed by the wife of late A.Murugan Achari along with one son and one daughter against other siblings.
The appeal is confined to Item No.2 of the suit schedule property described in schedule 'A' measuring 600 sq ft situated at Nanjjareddy Colony, Murugeshpalya, Bengaluru.
It is the specific case of appellant that he purchased the suit schedule 'A' property vide registered sale deed dated 11.01.1989 as per Ex.P2. Plaintiffs are claiming a share in the said property contending that it is a joint family property. The trial Court while answering Issue No.2 held that suit schedule 'A' property joint family property and not the self- acquired property of defendant No.1.
In this regard it would be relevant to consider the plaint averments.
In the plaint, in paragraph 4, plaintiffs have specifically stated that the husband of the first plaintiff who is the father 14 of other plaintiffs and defendants Sri.Mrugan Achari who died intestate on 21.09.2001 to inherit the properties left behind by him which are self acquired properties.
They filed a suit for partition and claims that schedule 'A' property is the joint family property. Hence, the burden of proving that it is the joint family property rests on the plaintiffs. But plaintiffs have failed to discharge the burden of proving that schedule 'A' property had been acquired out of joint family funds.
On the contrary, defendant No.1 was able to prove that he had a separate earnings and he has purchased the schedule 'A' property.
If we carefully read the plaint, it makes clear that there is no ancestral property inherited by plaintiffs or defendants and the question of coparcenary property does not arise and the parties are not coparceners.
On the other hand, the evidence on record show that defendant No.1 was working as a Carpenter and was earning sufficiently. He has purchased the property. 15
Ex.P2 is the certified copy of the sale deed. The sale deed is executed on 11.01.1989. Defendant No.1 has purchased the property for Rs.50,000/-. It would be relevant to notice that defendant No.1 has paid the amount from his personal account and he has issued bearing No A.287142 dated 18.01.1989, drawn on State Bank of India before the Sub Registrar Bangalore.
The second plaintiff was examined as PW-2. In his chief examination, he has stated that 'A' schedule property is in the name of defendant No.1, it was purchased by parents out of the death /service benefits for the benefit of the family. It is not the self-acquired property of defendant No.1. He has deposed that the death benefits of Panneer Selvam was received by his mother and later the amount has been transferred to Armugam- defendant No.1 .
Defendant No.1 was examined as DW-1. He has denied the suggestion that the schedule 'A' property was purchased by his parents out of the death benefits of Paneer Selvam. In fact, a suggestion was made that he was not working between 1982 and 1991 and that he was not having sufficient income to purchase the property. But the same has been denied by 16 him. On the other hand, he has deposed that he was doing carpentry work and he has purchased the 'A' schedule property.
As could be seen from the above evidence, though PW.1 has deposed that 'A' schedule property was purchased out of the death benefits of his brother and the property was purchased in the name of defendant No.1 for the benefit of the family. Hence, it is the joint family property.
But there is nothing on record to show that the property was purchased from the death benefits as contended by plaintiffs. On the other hand, the sale consideration was paid by defendant No.1. The sale deed is in his name.
As already noted above, suit schedule 'A' property was purchased by defendant No.1 on 11.01.1989 and the property is not in the name of Murugan Achari and therefore, the said property cannot be considered as property left behind by Murugan Achari, so as to seek partition.
It would be relevant to note that in the present case, there was no joint family and parties are not coparceners. The properties are self-acquired properties of father Murugan 17 Achari, except suit schedule 'A' property. Plaintiffs have failed to discharge the burden of proving that the property had been acquired out of joint family funds, and the defendant was able to prove separate earnings.
The resultant position is that when properties were proved to be self-acquired properties, coupled with the fact that there was no evidence as regards joint family nucleus, such properties could be dealt with for disposition in any manner, as they were self-acquired.
The suit schedule 'A' property is the self-acquired property of defendant No.1. It is not the joint family property or the property of the father Murguan Achari as contended by plaintiffs. Therefore, question of presumption that the family is joint and the properties are joint family properties is unsustainable in law. Hence, the suit for partition is liable to be dismissed insofar as schedule 'A' property is concerned.. Accordingly, the suit is dismissed.
Accordingly, appeal is allowed and judgment and decree of the trial Court is set aside insofar as schedule 'A' property.
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Registry to draw up the decree accordingly. Parties to bear their own cost in the appeal.
Sd/-
JUDGE VMB