Karnataka High Court
Elizabeth D/O Late Arogya Swamy vs Smt Mariyamma W/O Late Arogyaswamy on 23 January, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 23RD DAY OF JANUARY, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
REGULAR SECOND APPEAL NO. 466/2009
BETWEEN:
Elizabeth,
D/o Late Arogya Swamy,
Aged about 44 years,
R/at Hosabeedhi,
Begur,
Bangalore South Taluk,
Bangalore. ... Appellant
(By Sri.Mithun, Advocate for M/s
G.D.Ashwathanarayana, Advocates)
AND:
1. Smt. Mariyamma,
W/o late Arogyaswamy,
Aged about 79 years.
2. Smt. Ragena,
D/o late Arogyaswamy,
W/o Balaraj,
Aged about 53 years,
R/at Shamanna Layout,
Lingarajapura,
Bangalore -560 084.
3. Sri.A.Chinnappa,
S/o late Arogyaswamy,
2
Aged about 51 years.
4. Smt. Arogya Mary,
D/o late Arogya Swamy,
W/o late Mariyappa,
Aged about 44 years,
R/at near Govt. Hospital,
Begur,
Bangalore-48.
5. Sri.A.Francis,
W/o late Arogya Swamy,
Aged about 42 years,
R/at Hongasandra,
Asis Nagar, Begur Hobli,
Bangalore - 560 068.
6. Smt. A.Margaret,
D/o late Arogya Swamy,
W/o Lasor,
Aged about 39 years,
R/at near Canara Bank,
Begur Hobli,
Bangalore - 560 068.
7. Sri.A.Mariraju,
S/o late Arogya Swamy,
Aged about 36 years.
8. V.Thiagarajana,
S/o C. Valliappa,
Aged about 37 years,
R/at No. 5/8,
Burton Cross Road,
Bangalore - 560 025. ... Respondents
(By Sri.Prakash.T.Hebbar, Advocate for R-8;
R-1 and R-5 served; R-2, R-3, R-4, R-6 & R-7
service held sufficient.)
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This Appeal is filed Under Section 100 of C.P.C.
praying against the judgment & decree dated
13.11.2008 passed in R.A.No.19/2008 on the file of the
I Addl. District Judge, Bangalore Rural District,
Bangalore, dismissing the appeal and confirming the
judgment and decree dated 13.12.2007 passed in O. S.
No. 52/2004 on the file of the Prl. Civil Judge (SR.DN)
Bangalore Rural District, Bangalore.
This Appeal coming on for Orders this day, the
Court delivered the following:
JUDGMENT
This is a plaintiff's appeal questioning the correctness and legality of the judgment and decree passed by I Additional District Judge, Bangalore Rural District, Bangalore dated 13.11.2008 in R.A.No.19/2008 whereunder the judgment and decree passed in O.S.No.52/2004 dated 13.12.2007 dismissing the suit for partition came to be affirmed.
2. Though matter is listed for hearing on interlocutory application, by consent of learned Advocates, it is taken up for final disposal. I have heard the arguments of Sri Mithun, learned Advocate 4 appearing for the appellant, Sri Prakash T Hebbar, learned Advocate appearing for respondent No.8, respondents-1, 2 to 7 are served and unrepresented. Service of notice has been held sufficient on respondent Nos.2 to 4 and 6 to 7 vide order dated 28.05.2012. Perused the judgment and decree passed by trial Court as well as by lower appellate Court.
3. The main thrust of the argument advanced by learned Advocate appearing for the appellant is two fold;-
(1) trial Court as well as lower appellate Court committed an error in dismissing the suit on the ground that suit for partial partition is not maintainable ; and (2) that an application has been filed in the present appeal seeking amendment of the plaint in Misc.Civil.No.10518/2010 and same be allowed by setting aside the judgment and decree passed by the Courts below and matter 5 be remitted to the trial Court for adjudication afresh in view of the defect in the plaint which is now sought to be cured by way of amendment of plaint.
Elaborating his submissions, he contends that in view of the above contentions, substantial questions of law formulated in the appeal memorandum would arise for being formulated, adjudicated and answered in favour of the appellant.
He would also submit that first point canvassed by him is supported by the following judgments, (1) TARINI CHARAN CHAKRAVARTY AND ANR.
VS. DEVENDRA LAL DEY AND ORS. (163 INDIAN CASES 583) (2) APOORVA SHANTILAL SHAH, V. COMMISSIONER OF INCOME-TAX, GUJARAT I, AHMEDABAD (AIR 1983 SC 409) 6 He would also contend that unless it is established by evidence that prejudice is being caused as regards equal distribution of joint family properties, general rule of suit for partial partition should not be applied and it should be held that suit in question is maintainable.
4. Per contra, Sri P T Hebbar, learned Advocate appearing for respondent No.8 would support the judgment and decree passed by the trial Court as affirmed by lower appellate Court and contends that the trial Court has taken into consideration admission of P,.W.1 elicited in the cross examination which was to the effect that there were and are joint family properties available as on the date of filing of the suit. Hence, he contends, non-inclusion of all the properties in a suit for partition would not be maintainable for partial partition. In support of his submissions, he would rely upon following two judgments:
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1) KENCHEGOWDA (SINCE DECEASED) BY LEGAL REPRESENTATIVES Vs. SIDDEGOWDA ALIAS MOTEGOWDA (1994 (4) SCC 294);
2) G.M. MAHENDRA Vs. G.M. MOHAN AND ANOTHER (2011 (4) KCCR 2461 (DB))
5. Having heard the learned advocates appearing for the parties and on perusal of judgment and decree passed by the trial Court, as affirmed by lower appellate Court, it would emerge from the pleadings and the evidence that appellant herein filed a suit for partition and separate possession of the property bearing No.314/2, Begur village, Kasaba Hobli, Bangalore South Taluk measuring 6 acres 20 guntas together with 28 guntas of kharab land contending interalia that said property belonged to one Sri Chinnaiah, father in law of first defendant and grand father of plaintiff as well as defendants - 2 to 7 and he had executed a Will in favour of his son Sri Arogyaswamy with a life interest in favour of his wife Smt.Arogyamma and on their demise, 8 plaintiff and defendants 2 to 7 succeeded to the suit property and they are in joint possession of the same. It was also specifically contended that plaintiff being a spinster and social worker working in a Christian missionary was visiting countries and used to visit India once in a while and she is now settled down at Kerala from the year 2003 and on making a request to partition the suit schedule property, her brothers and sisters did not comply with her demand as such, she sought for partition and separate possession of her share in the suit schedule property.
6. Defendant No.1 to 5 & 7 were set exparte by trial Court. 6th defendant alone filed her written statement and admitted the relationship and also took up the plea that 8th defendant who is the purchaser of suit schedule property had been intimated about right of the plaintiff and in view of assurance given by 8th defendant that sale consideration was not given to plaintiff, said 8th defendant would be liable to answer 9 her claim and as such, she prayed for suitable judgment being passed.
7. 8th defendant filed his written statement denying averments made in the plaint in toto. It was contended that suit schedule property was purchased by him on 14.03.1996 and plaintiff having been ordained as Nun had given up her worldly life in 1982 itself and as such, suit filed after lapse of 22 years is barred by time. It was also contended that 8th defendant has got converted the suit schedule property into non agricultural residential use and has formed sites and in the event of plaintiff having any right, she would be at liberty to proceed against defendants 1 to 7 in respect of other properties belonging to the family. It was also contended that 8th defendant had spent a sum of Rs.50 lakhs for formation of sites and property has been given as security to Nedungadi Bank Limited which has since been taken over by Punjab National Bank and as such, 10 amongst other pleas raised in the written statement, he sought for dismissal of the suit.
8. On the basis of pleadings of the parties, trial Court framed following issues for its consideration:
1. "Whether the plaintiff proves that she has succeeded to the suit schedule property along with defendants 1 to 7 after the death of Arogya Swamy?
2. Whether the plaintiff proves that she is the daughter of late Arogya Swamy?
3. Whether the plaintiff proves that she is in joint possession of the suit property with defendants 1 to 7?
4. Whether the suit is not valued properly and the court fee paid is insufficient?
5. Whether the 8th defendant proves that the suit is bad for non-
joinder of necessary party as contended in para 5 of the written statement?
6. Whether the plaintiff proves that the sale deed dated 15/3/1995 executed by defendants 1 to 7 in favour of 8th defendant is sham 11 and collusive document and not binding the share of the plaintiff in respect of the suit schedule property?
7. Whether the plaintiff is entitle for 1/8th share in the suit schedule property?
8. Whether the plaintiff is entitled for partition and separate possession as prayed for?
9. To what order or decree?"
9. Plaintiff got herself examined as P.W.1 and produced three documents and got them marked as per Exs.P-1 to P-3. None were examined on behalf of defendants-1 to 7. 8th defendant got himself examined as D.W.1 and in all produced 12 documents and got them marked as Ex.D-1 to D-12. On appreciation of evidence both oral and documentary, trial Court held that suit for partial partition is not maintainable in view of admission of P.W.1 in her cross examination that family possessed other properties other than the suit schedule properties and such properties belonging to the joint family was not included in the suit.12
10. Aggrieved by this judgment and decree, plaintiff filed an appeal in R.A.No.19/2008. Lower appellate Court after considering the arguments advanced by respective learned advocates formulated following points for its consideration:
1. "Whether the suit property is liable for partition? If so, to what share the plaintiff is entitled?
2. Is interference to the findings of the Trial Court necessary?
3. What Order?"
On re-appreciation of evidence, it has confirmed the judgment and decree passed by trial Court and dismissed the appeal.
11. At the outset it has to be noticed that this being a second appeal, it is only the substantial question of law which gives rise for this Court to clutch the jurisdiction and answer the said question of law as otherwise, this 13 Court would lack jurisdiction to entertain a second appeal.
12. It is not in dispute that plaintiff was not aware of the admission made by P.W.1 in her cross examination which was to the effect that the family possessed other properties also apart from suit schedule property. If the plaintiff really intended to cure the technical defect, first opportunity that was available to her was before the lower appellate Court. No attempt whatsoever was made by plaintiff to incorporate or include other joint family properties in the plaint schedule. It is not the case of the plaintiff that joint family do not possess any other property. She was aware of this factual aspect. At this stage of second appeal, other properties are sought to be included in the plaint by seeking amendment of the plaint by filing Mis.Cvl.10518/2010. The cause for not seeking amendment at an earlier point of time, no reasons are forthcoming. Averments made in the affidavit 14 supporting the application is not only bald but it is as vague as vagueness could be. As already noticed hereinabove, present appeal being a second appeal and scope being limited and plaintiff having not exhibited due diligence, this Court is of the considered view that application filed seeking for amendment of the plaint deserves to be rejected and accordingly it is rejected by answering the second point canvassed by learned counsel for the appellant in the negative and against the appellant.
13. Insofar as the plea with regard to maintainability of the suit is concerned, Sri Mithun has relied upon the judgment of the High Court of Calcutta referred to supra whereunder it has been held as follows:
"3. Mr. Mayne does not appear to have relied on any special rule of Hindu Law for the above observations. The ordinary rule is that a suit for partition must embrace all joint properties owned by the parties thereto. But there is also the complimentary rule that a suit for partition cannot include properties in which each of the parties 15 does not claim an interest. It is true that the general rule that a partition suit should embrace all joint property ensures a just partition; otherwise parties might be greatly prejudiced as regard equitable distribution, retention of possession, liability for improvements and adjustment of accounts; see Rajendra Kumar Bose v.
Bojendra Kumar Bose 77 Ind.
Cas.790."
14. Even in the case of APPOORVA SHANTILAL supra, Hon'ble apex Court, while considering the contentions raised by the appellant therein, which can be noticed at para 9 held that partial partition of joint family property between father and minor sons is permissible.
"9. In this appeal before us, two main contentions have been urged on behalf of the appellant. The first contention urged is that the High Court went wrong in holding that the father cannot effect any valid partial partition between himself and his minor sons of joint family property belonging to a Hindu undivided family consisting of himself, his wife and minor sons who are governed by the Mitakashra School of Hindu Law. The other contention raised is that the High Court erred in coming to the conclusion that in the facts and circumstances of 16 this case, the partial partitions were invalid."
"20. If the father in exercise of his superior right or of his right as patria potestas is entitled to bring about a complete disruption of the joint family and to effect a complete partition of joint family properties of a Hindu joint family consisting of himself and his minor sons even against the wishes of the minors and if partial partition be permissible with the consent of sons when they have all become major, we see no reason to limit the power or authority of the father to effect the partition only to a case where the partition is total. The superior right or the right of patria potestas which a father enjoys is always expected to be exercised in the best interest of the members of the family and more particularly his minor sons. The father, undoubtedly, enjoys the right to bring about a complete disruption of the joint family consisting of himself and his minor sons and to effect a complete partition of the joint family properties even against the Will of the minor sons. It is also now recognised that partial partition of joint family properties is permissible. When father can bring about a complete partition of joint family properties between himself and his minor sons even against the Will of the minor sons and when partial partition under the Hindu Law is not accepted and recognised as valid by judicial decisions, we fail to appreciate on what logical ground it can be said that the father who can bring about a complete partition of the joint 17 family properties between him self and his minor sons will not be entitled to effect a partial partition of joint family properties between himself and his minor sons, if the father in the interest of the joint family and its members feels that partial partition of the properties will be in the best interest of the joint family and its members including the minor sons. Even if the test of consent is to apply, the father as the natural guardian of the minor sons will normally be in a position to give such consent and it cannot be said as a matter of universal application that in all such cases of partition, partial or otherwise, there is bound to be conflict of interest between the father and his sons. If the father does not act bonafide in the matter when he affects partition of joint family properties between himself and his minor sons, whether wholly or partially, the sons on attaining majority may challenge the partition and ask for appropriate reliefs including a proper partition. In appropriate cases even during minority, the minor sons through a proper guardian may impeach the validity of the partition brought about by the father either in entirety of the joint family properties or only in respect of part thereof, if the partition had been effected by the father to the detriment of the minor sons and to the prejudice of their interests."
In the said case, the Apex Court was seized of a situation where the High Court had held that father 18 could not have effected a valid partition between himself and his minor sons of joint family property belonging to a Hindu undivided family consisting of himself, his wife and minor sons; that there is nothing in either ancient Hindu Law or customary or Judge made law which does not authorize the father in exercise of his superior right or 'peculiar power' or 'patria potestas' to bring about complete disruption of the joint family and partial partition and it is permissible with the consent of sons when they all become major and as such, partial partition of joint family properties is permissible. There cannot be any dispute with regard to this proposition of law. Question would be as to whether a suit for partial partition is permissible?
15. It is no doubt true that coparceners or joint family members by consent can bring about partial partition of joint family properties. However, when a suit is brought for partition of joint family property, question would be whether only certain property or 19 properties alone can be brought for partition or in other words, whether certain properties admittedly belonging to the joint family can be excluded in a suit for partition. A complete answer to this question can be found in judgment of KENCHEGOWDA's case referred to supra wherein it has been held as follows:
"15. Equally incorrect is the assumption made by the High Court that the court of first appeal had not accepted the case of partition. On the contrary, what the appellate court has found is as follows:
"With regard to the partition alleged by the defendants even though the plaintiff's own witness PW 1 has admitted that there was a partition amongst the plaintiff's mother Ningamma, himself and the 1st defendant in the two suits. There is no satisfactory evidence to prove that in that partition the suit property was allotted to the share of the 1st defendant in the two suits jointly."
"16. Therefore, what has been held is that the property had not been allotted in favour of the first defendant in the partition. That is very different from holding that the case of partition had not been accepted by the first appellant court. This being so, a decree for 20 partition could not have been passed on a mere application for amendment.
In fact, as rightly urged by the learned counsel for the appellant that the causes of action are different and the reliefs are also different. To hold that the relief of declaration and injunction are larger reliefs and smaller relief for partition could be granted is incorrect. Even otherwise, a suit for partial partition in the absence of the inclusion of other joint family properties and the impleadment of the other co-sharers was not warranted in law. Thus, we find no difficulty in allowing these appeals which are accordingly allowed. The judgment and decree of the trial court as affirmed by the first appellate court are restored. However, there shall be no order as to costs".
(emphasis supplied)
16. A Division Bench of this Court has also noticed this aspect in G M MAHENDRA's case referred to above and has held as follows:
"Also held, that the finding of the Trial Court as to the oral partition was perverse and was not based on proper appreciation of the document and its interpretation. The plaintiff could not have challenged the sale deed executed by his father as not for benefit of the joint family and without including all other joint family 21 properties. The fact that the plaintiff, on the date of filing of the suit, had not even seen the sale deed executed by his father in favour of the 2nd defendant showed that the suit was filed only at the instigation of the father, the 1st defendant."
17. A Co-ordinate Bench of this Court in the case of SRI TUKARAM vs SRI SAMBHAJI & OTHERS (ILR 1998 KAR 681), after referring to the catena of judgments has held as under:
"19. It has been contended by the Learned Counsel for the appellants that the finding of the I Appellate Court to the effect that the suit by one of the co-parceners for partition with respect to one of the items of the Joint Hindu Family property is maintainable in the special circumstances is not proper. During the course of the order, the Appellate court has observed that Section 261 of Mulla Hindu Law 15th Edn. At pages 351 and 352 makes it clear that non-alienating co-parceners are entitled in Bombay, Madras and Allahabad to sue the purchaser for partition of the alienated property without bringing a suit for a general partition. In the present case on hand all the non-alienating co-parceners have not filed the suit. The mere fact that the other non-alienating co-22
parceners viz., defendants-7 to 9 did not join the plaintiff in filing the suit is not material. The right of non- alienating co-parcener in Bombay area does not depend upon the whims and fancies of remaining no-alienating co- parceners who for reasons best known to them, may not join the plaintiff in filing suit. Patna and Andhra Pradesh High Courts held that one of the several no-alienating co-parceners cannot sue the purchaser for his own share of the alienated property. It has been observed by the I Appellate Court the law applicable in Bombay area does not prohibit the suit by one of the several no-alienating co-parceners. the I Appellate Court considered the ruling in AIR 1983 SC 124 wherein it has been held that a purchaser can be impleaded even when decree for partition of agricultural lands is pending before the Collector for effecting partition. But it is not the case in the present it. In ILR 1989 Kar 1895 it is held that a partition suit should comprise of all the available properties, as far as possible. That decision has been distinguished by the I Appellate Court as that was not a case of no-alienating co-parceners filing a suit for partition of alienated property. The view that has been taken by the I Appellate Court cannot be stated to be a correct one in the circumstances of the case. It is to be seen that the plaintiff, defendant-1 and defendants-7 to 15 are the members of Joint Hindu Family. There is no 23 partition by metes and bounds of the family properties. The present suit is filed in respect of the suit land only. There are other lands in other villages and also other house properties which have not been included in the suit which are admittedly the joint family properties. It has been observed in Mulla's Hindu Law- 13th Edn.
regarding the rights of purchaser of co- parceners interest. It has been stated that the no-alienating co-parceners are entitled in Bombay, Madras and Allahabad to sue the purchaser for partition of the alienated property without bringing a suit for general partition. It sis to be noted that in AIR 1984 AP 84 it has been held that normally a suit instituted for partition should be one for partition of the entire joint family properties and all the interested co-sharers should be impleaded. The suit of partition of specified items can only be an exception. In the present case on hand, the 1st defendant has alienated the suit land in favour of defendants-2 to 6. the 1st defendants is the member of the Joint Hindu Family. As already stated that the family has got other several lands and house properties which are the joint family properties. It has been contended by the Learned Counsel or the alieness while allotting the share to defendant-1 in the family properties equitable rights of purchasers on partition has to be considered and those rights can be considered only when all the joint family properties are 24 included in the suit for partition. Otherwise, it would be difficult to apply principles of equitable partition. The inclusion of all the joint family properties in the instant suit for partition was necessary and without bringing all the joint family properties into the hotch-pto, the suit for partition of the shares of the members of the joint family in one property which amounts to partial partition is not maintainable. this contention in the circumstances of the case, has force and the same has to be upheld. The reason being, the present suit ahs been filed by one f the no-alienating co- parceners of the joint family property. The suit has been filed by the no- alienating co-parceners with respect to the only property which has been alienated. This is not a suit for general share of the plaintiff to be worked out if all the joint family properties had been included in the schedule then, at a partition, the share of the 1st defendant would have been worked out in order to give equitable relief to the alienees also as they have purchased the property by the 1st defendant. In that view of the matter, the present suit filed by the plaintiff without including all the joint family properties and which prejudices the rights of the alienees who have also been impleaded as parties to the suit, in the circumstances of the case, has to be held that the suit filed by the plaintiff for partial partition without including all the joint family properties is bad in 25 law. The finding given by the trial Court with respect to the sixth issue has to be maintained and the finding given by the I Appellate Court that the suit is maintainable without including all the joint family properties cannot be held to be proper in the circumstances of the case. Hence, the finding of the A Appellate Court holding that the suit of the plaintiff for partial partition is maintainable should be set aside and the finding of the Trial Court with respect to the sixth issue that the suit is bad for non--joinder of necessary properties to be included in the suit has to be upheld.
18. The dicta laid down by Hon'ble Apex Court and the Division Bench of this Court as well as Co- ordinate Bench of this Court would clearly establish the fact that a suit for partition would not be maintainable when filed seeking partition of alienated item only particularly when the joint family owned number of properties and non inclusion of all other properties belonging to the family in the plaint would be fatal. In that view of the matter, it has to be held that a suit for partial partition was not maintainable when admittedly joint family possessed other properties and plaintiff 26 being conscious of this fact did not include those properties in the suit and as such the very frame of the suit itself was not maintainable.
19. It has been noticed by a Co-ordinate Bench of this Court that in TUKARAM's case referred to supra that rights of the purchasers of coparcener's interest is circumscribed by seeking for general partition. Even though the High Court of Calcutta held that there can be departure from general rule by way of exception if it is established that no injustice is being caused or prejudice being caused to parties suit can be entertained, it would not assist the plaintiff in the instant case since, factual matrix stares against the appellant plaintiff in the instant case, inasmuch as, alienation of suit schedule property by defendants-2 to 7 was in the year 1996 i.e., on 14.03.1996. Suit came to be filed on 09.01.2004 i.e., after a lapse of 8 years during which interregnum period, 8th defendant has spent considerable amount of money over the suit 27 schedule property by obtaining conversion of the land as per Ex.D-1 and the nature of suit schedule property having been changed from agricultural properties to that of residential sites, there is bound to be prejudice or inconvenience caused to 8th defendant since third parties rights have already stepped in and as such, at his peril (8th defendant as also 3rd parties) suit cannot be entertained or be decreed in favour of the plaintiff.
19. In that view of the matter, I am of the considered view that first contention raised by learned Counsel appearing for plaintiff-appellant deserves to be rejected and accordingly it is hereby rejected.
20. For the reasons aforesaid, following order is passed:
(i) Appeal is hereby dismissed by rejecting the contentions raised in appeal Memorandum and there being no substantial questions of law involved.28
(ii) Judgment and decree passed by the trial Court in O.S.52/2004 dated 13.12.2007 as affirmed in R.A.No.19/2008 on 13.11.2008 is hereby affirmed.
Parties to bear their respective costs.
Sd/-
JUDGE *sp