Karnataka High Court
Mallamma W/O Virupaxappa vs Eshwaramma W/O Gangshetti Patil on 1 February, 2012
Bench: N.Kumar, B.Sreenivase Gowda
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 1ST DAY OF FEBRUARY, 2012
PRESENT
THE HON'BLE MR. JUSTICE N.KUMAR
AND
THE HON'BLE MR. JUSTICE B. SREENIVASE GOWDA
REGULAR FIRST APPEAL NO. 2412 OF 2006
BETWEEN:
1. MALLAMMA. W/O VIRUPAXAPPA
2. VIRUPAXAPPA. S/0 NAGAPPA
3. SIDRAM, S/0 VIRUPAXAPPA
4. KAILASH. Sb VIRUPAXAPPA
5. NAGESH, Sb VIRUPAXAPPA
ALL ARE MAJORS. AGRICULTURISTS
RESIDENTS OF' MANAHALLI VILLAGE,
TQ. AND DIST: BIDAR 585 401.
APPELLANTS
(BY SRI R. S. SIDHAPURKAR, ADVOCATE FOR
SRI PRAVEEN KUMAR RAIKOTE ADVOCATES)
AND:
ESHWARAMMA,
W/O GANGSHEYH PATIL.
AGE: MAJOR,
0CC: HOUSEHOLD,
RESIDENT OF KOLA (B) VILLAGE
TQ, AND DIST: BIDAR- 585 401,
RESPONDENT
(BY SRI HARSHAVARDHAN R.MALIPATIL. ADVOCATE)
ThIS RFA IS FILED U/S 96 OF CPC AGAINST THE JUDGMENT
AND DECREE DATED 28-09-2006 PASSED IN 0.S. NO.114/2001 ON
ThE FILE OF THE PRL. CIVIL JUDGE (SR.DN.,) BIDAR. PARTLY
DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, KUMAR J,
DELIVERED THE FOLLOWING:-
JUDGMENT
This is defendants' appeal challenging the judgment and decree of the trial Court which has decreed the suit of the plaintiff for partition and separate possession in all the plaint schedule property except 'C' schedule property.
2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.
3. Plaintiff is the younger sister of defendant No.1 both of them are daughters of late Kashamma W/o. Ramalingappa * . 3 Kanna. Defendant No.2 Is the husband of defendant No.1 and defendant Nos.3 to 5 are their sons. One Chandranuna W/o. Irsangappa was the grand mother of the plaintiff and defendant No.1 and mother of Kashamma. Since Chandramma had no male Issues, her daughter Kashamma lived with her along with her husband Baslingappa. After the death of Chandramma, Kashamma her daughter succeeded to the properties of Chandramma. Kashamma had also no male Issues. Defendant No.1 after the marriage with defendant No.2 resided with her mother at village Manhalli along with her husband. The plaintiff after her marriage in the year 1973 started living with her husband at village Kolar (B) but she was often visiting Manahaffi to look after her mother. Kashamma died in the year 2000 at Manhaili village. Chandraxnma was the absolute owner and possessor of the suit schedule A properties land Sy.No.69 measurIng 16 acres and 17 guntas RA. Rs.25.25 and Sy.No.104 measuring 16 guntas RA 0-21 both situated at Manhalli viliage and the suit schedule 'B' properties house Nos. 676, 677. 678 and open 4 space bearIng No.679 are all situated at village Manhalli and 8 shops bearing Nos.607, 574, 553, 566, 590, 479 and 481 all situated at village Manhalli and one shop bearing CMC No.6-6-32 (old) 6-6-34 (new) situated at Osman ganj. Bidar. The above said properties were being supervised and looked after by Kashamma as the head of family. Defendant Nos. 1 and 2 had no other independent source of income except the above said properties. The plaintiff and defendant No.1 and their mother were thus the joint owners and possessors of the above said properties. Defendant No.2 being a male member was also helping In the supervision of the lands etc., The marriage of defendant No.1 and the plaintiff was performed by their mother Kashamma from out of the Income of the above said properties. The mother of the plaintiff and defendant No.1 In order to Improve the agricultural land and also to develop the properties sold 6 shops of village Manhalli and also one shop situated at Osman ganj, Bidar and out of the said sale proceeds purchased open site at Vidyanagar colony Bidar and constructed the house bearing CMC No.9-12-557 S 5 (old) 9-12-529 (new) and another house bearing CMC No.9- 12-395 (new) with an open space of 60" x 60". The said properties are In the name of defendant No.2 In the CMC record, but It Is only nominal and In fact the mother of plaintIff Kashamma was the owner of the said properties. Defendant No.2 is not and cannot be the owner of the said properties, and he had no Independent source of Income. Defendant Nos. 1 and 2 were residing with Kashamma have taken undue advantage and a bogus mutation In respect of the agricultural land shown In schedule 'A' has got sanctioned mutation In the name of defendant No.1 In the year 1975. The said mutation Is ifiegal and without any valid document of title or order of any competent Court or authority. The said mutation will not create any title In favour of defendant Nos.2 to 5. The plaintiff has got half share In schedule 'A' to 'C' properties. Except the plaintiff and the defendant No.1, no other person has got any right title or share In the suit schedule properties. Plaintiff sought for her legitimate share In the properties of the defendant but 6 it was refused. Therefore, they have filed this suit for partition and separate possession of half share in all the plaint schedule properties.
4. Defendants filed written statement. They did not dispute the relationship set out in the plaint. However, it is their ease after the death of Chandramma, Kashamma had succeeded to the properties as a successor. Chandramma died on 20.03.1979 and during her life time only, she had transferred the property which was standing in her name into the name of her grand daughter Mallamma-defendant No.1 and mutation was also effected, The date of death of Kashamma is 11.02.2000 and she has also during her life time transferred her self acquired suit land Sy.No.69/AA in the name of defendant No.1 and accordingly mutation was sanctioned on 23.06.1975. Item No.1 of 'A' schedule property was purchased by Kashamma and therefore it was not belonging to Chandramma at all, It is only item No.2 in the 'A' schedule property in Sy.No. 104 measuring 0.16 guntas of 7 land was belonging to Chandramma. The B' schedule property was purchased by defendant No.2 in the name of his wife defendant No. 1. The property mentioned in schedule is fuse one there was no such property left by them.
5. In para 10 of the written statement, first defendant has set out what according to her the real facts; according to them, father of the plaintiff and defendant No.1 was native of Kadwad first married with Nagamma about 15 years prior to the marriage with Kashamma as there was no issue with the first wife and then married with Kashamma. As there was no male issue in the family of Chandramma and Mallamma, as defendant No.2 married in the year 1965 with defendant No.1 and defendant No.2 became the ilitom son-in-law of that family. After the said marriage, father of the plaintiff and defendant No.1 namely Basalingappa left the house of Manhalli village and went to the village of Kadwad where he contacted a 3rd marriage in the year 1966 with one Prabhavathi and used to reside there only. He never returned 8 to the village Manhalli. Grand mother Chandramma expired on 20.03.1979 due to paralysis. Due to her illness as there was no source of Income, she was compelled to dispose of three shops, one to Nabisab and two shops to one Gopal Rao Abaji to meet out the expenses for her treatment. Chandraxnma who out of love and affection had transferred 3 shops and 5 houses and one plot of Manhalli and Sy.No. 104 measurIng 16 guntas to defendant No.1. Thus defendant No.1 had become the absolute owner of 3 shops, 5 houses and one plot at Manhaill village. The marriage of plaintiff was performed by the defendant Nos. 1 and 2 and In the marriage they had paid Z10,000/- towards Hunda and 35 tolas of gold and 50 tolas of silver. Even after the marriage, defendant Nos.1 and 2 have gIven 20 tolas of gold to the plaintiff tifi she has filed this suit. The mother of the plaintiff and defendant No.1 was also bed ridden due to paralysis for a period of one year before her death. For the management of these affairs the defendant No.1 was compelled to sell 3 shops and one house and 16 guntas of land In Sy.No. 104 durIng the life time 9 of her grand mother and mother. Defendant No.2 who was the sole and only son of their parents and whose father was expired earlier to the marriage of defendant No.2 with defendant No.1 came to the village of Manhalli along with his mother, gold and cash and the defendant No.2 purchased an open plot measuring 60" x 60" In the name of defendant No.1 and constructed a house bearing Municipal No.9-12-529 (old) 9-12-557 (new). There is only one house and open space at Vidhyanagar colony, Bidar, and there are no two houses. During the municipal assessment in the year 1995, the name of defendant No.2 was entered as owner and possessor with the consent of defendant No.1 thus, the property at Bidar was neither belonging to late Chandrainma nor the same was purchased from the ancestors' common fund. Even after the marriage of the plaintiff, defendant Nos. 1 and 2 were looking after the grand mother and mother of plaintiff and defendant No.1 and they were managing the affairs of the house etc., so the mother of defendant No.1 who had purchased the land in Sy.No.69/A2 measuring 16 acres 17 guntas transferred the 10 said land with her free consent and will to the defendant No. 1 accordingly, mutation was sanctioned in her name on 23.06.1975. Thus, during lifetime of mother itself, defendant No.1 became absolute owner. Thereafter with the consent of her mother, defendant No. 1 transferred an area of 4 acres 17 guntas in the name of defendant No.2, accordingly mutation was effected. Defendant No.2 by obtaining loan etc., for the development of land dig a borewell in the portion and still there is due of 1,04,867/- (rupees one lakh four thousand eight hundred sixty seven only. Again with the consent of the family members, the defendant No. 1 further transferred an area of 4 acres to the defendant No.3 and an area of 2 acres 20 guntas each to defendant Nos.4 and 5 and accordingly mutation was sanctioned on 13.12.1999. Chandramma also transferred three houses hearing Panchavat No.676, 677. 678, 679 and open plot to her grand daughter defendant No.1 and accordingly. the mutation was sanctioned on 19.03.1977. Therefore, defendant No.1 is the absolute owner and possessor of the said properties and 11 plaintiff has no right In the suit properties and therefore, she sought for dismissal of the suit.
6. On the aforesaid pleadings, the trial Court has framed the following Issues:
1. Whether plaintiff proves that the suit schedule properties are Hindu joint family ancestral properties liable for partition?
2. Whether the plaintiff further proves that she Is entitled for half share and separate possession of the suit schedule properties effecting partition by metes and bounds?
3. What order or decree?
7. The plaintiff In order to substantiate her case examined herself as PW1 and has produced 10 documents, which were marked as Exs.P1 to PlO. The defendant No.1 herself examined as DW1 and also examined three witnesses as DWs.2 to 4 and they have produced 38 documents, which were marked as Exs.D1 to D38. The Trial Court considering the oral and documentary evidence on record held admittedly, Chandramma and Kashamma died without making any 1--
12settlement. Plaintiff and first defendant are the legal heirs who succeeded to the properties. Merely because mutation entries are made In the name of defendant Nos. 1 and 2 It does not create title. All the properties which belong to Chandramma and Kashamma are the properties In which both plaintiff and first defendant have got equal share. It also held all the schedule properties are properties belonging to the Hindu Joint family and therefore plaintiff and first defendant are entitled to equal share In 'A' and 'B' schedule properties and as no property Is mentioned In 'C' schedule, the suit In respect of 'C' schedule property was dismissed.
8. AggrIeved by the said Judgment and decree of the trial Court the defendants have preferred this appeal.
9. Learned Counsel for the appellants-defendants assailing the Impugned Judgment and decree contended Insofar as Item No.2 of 'B' schedule property Is concerned It Is the property purchased by the first defendant In her name. In fad that property was purchased by the second defendant, 13 In fact that property was purchased by the second defendant, her husband out of the income which he had brought from his father's place. Therefore, it is not a joint family property or property belonging to Kashamma as such plaintiff has no right in the property.
10. Per contra, learned Counsel for the plaintiff- respondent submitted first defendant and her husband were lived with Kashamma during her life time all the properties belong to Kashamma and Chandramma were in their possession. It is from the income derived from these properties item No.2 of 'B' schedule property was purchased in the name of first defendant therefore, it is a joint family property in which the plaintiff has also a right as rightly held by the Trial Court. Therefore, there is no ease for interference is made out.
11. In the light of the aforesaid facts and the rival contentions the point that arise for our consideration in the appeal is as under:
14
Whether Item No.2 of 13' schedule property is sef acquired property offirst defendant or is it ajoint family property in which plaint ff is entitled to haif share?
12. The material on record discloses Chandramma had a daughter by name Kashamma. The property was inherited by Chandramma to Kashamma as there was no male issues. Even Kashamma had no male issues and she had two daughters plaintiff and first defendant. Therefore, whatever property acquired by Kashamma is inherited from her mother Chandramma was inherited to plaintiff and first defendant in equal share, Admittedly, except item No.2 in 'B' schedule property remaining properties were in the name of Kashamma. In the said properties after the death of Kashamma plaintiff and first defendant being daughter are entitled to equal share, Though the first defendant has taken the plea that Chandramma and Kashamma have given property exclusively to her and mutation entries was transferred in her name and in turn mutation entries have 4 15 been transferred In the name of first defendant and their sons, as mutation entry Is not a document of title and would not have the effect of transferring the title In the said property. Based on the mutation entries, one cannot hold that the defendants are the owners of the properties exclusively and the plaintiff has no right. The Trial Court was right In holding that all thesç properties are standing In the name of Kashamma and Chandramma. Plaintiff and defendants are entitled to equal share.
13. Insofar as Item No.2 of the 'B' schedule property Is concerned It Is not In dispute that the registered sale deed of the year 1976 stands In the name of first defendant. Case of the plaintiff Is the said property was purchased In the name of first defendant by his mother out of the joint family nucleus. In fact It Is averred In the plaint that several shop premises were sold and out of the sale consideration this property was purchased and other properties were developed. Absolutely no evidence Is adduced on record to substantiate '-V 16 this claim. On the contrary. we have the evidence of the defendants, which shows the second defendant after marrying first defendant came to the place of first defendant along with his mother as he lost his father. He came along with assets, which is inherited from his father. It is from those funds item No.2 of 'B' schedule property was purchased in the name of first defendant and therefore, it is self acquired property of the first defendant. When once property stands in the name of a woman it is her property. The person who wants to establish that it is not her property and she is holding the property as a benami has to establish the said case. Merely because she was residing with her mother after her marriage and looking after her mother and properties, property purchased by her cannot be said to have been purchased out of the income derived from out of the joint family property. No such inference is permissible in law. At the same time, no evidence is adduced by the plaintiff to show what is the income derived from other properties standing in the name of her mother and what is the consideration for which this 17 property was purchased. On the contrary. there is evidence to show Chandramma suffered paralysis stroke, she was in the bed for more than a year. They had no income to take care of her therefore, they were forced to sell some properties belonging to her. Similarly, Kashamma also suffered paralysis stroke, to meet the medical expenses again some more properties were sold. Both of them were looked after by defendant No. 1 and her husband. The evidence also shows second defendant's mother also lived with them. Thus, second defendant not only took care of the land, he also took care of each and every family members of the joint family. In the light of the facts and circumstances, it is not possible to hold that there was any income available in the hands of Kashamma or first defendant after meeting the medical expenses, which has been utilized for purchase of item No.2 of B' schedule property. Joint family of two sisters and mother is not known to Hindu Law. Merely because daughter and son-in-law lived with her mother, under law it does not constitute joint family. Here the Trial Judge committed an 18 error without looking at in whose name the sale deed stands. He did not appreciate the evidence on record to find out whether so called joint family had any income, nucleus which • was utilized for purchasing Item No.2 of the 'B' schedule property. To that extent Judgment and decree of the Trial Court is unsustainable and Is liable to be set aside.
14. Item No.2 of the 'B' schedule property Is the self acquired property of defendants in which the plaintiff has no fight.
15. It is also brought to our notice when the suit was filed Item No.2 of 'A' schedule property as It was sold in the year 1978 to meet the medical expenses of Chandramma and that was the property in the name of Chandramma. If the property Is already sold It Is not available for partition, the plaintiff Is also not entitled to half share in the property.
16. In that view of the matter we pass the following order: 1--• 19 ORDER
1. Appeal is partly allowed.
2. Judgment and decree passed by the Thai Court insofar as 'A' schedule property, item No.1 of the 'B' Schedule property and 'C' schedule property it is affirmed.
3. In respect of item No.2 of the 'B' schedule property is concerned it is set aside and it is held that ft is the self-acquired property of the first defendant, plaintiff has no right over the same.
4. Parties to bear their own costs.
Sd/s JUDGE Sc?
NB GE