Ashok vs Anusaya

Ravi V. Malimath, J.—Aggrieved by the judgment and decree passed by the trial Court granting 1/5th share to the plaintiff and 1/5th share to each of the defendants 1 to 3, the 4th defendant has filed the present appeal.

The parties are referred to as per their rank in the court below.

The case of the plaintiff is that defendant No. 1 is the father of the plaintiff, defendant No. 2 is the mother. Defendant Nos. 3 and 4 are her bothers. The suit schedule properties as well as house property are ancestral joint family properties of the family. The properties are in the joint possession and enjoyment of the plaintiff and defendants. The defendants Nos. 3 and 4 behind the back of the plaintiff have mutated their names with respect to Sl. No. 1 to 3 of the suit lands. The plaintiff came to know of the same. Since the defendants intended to alienate the same, the plaintiff requested for her share in the suit schedule properties by effecting partition. It was denied. Hence, the instant suit was filed claiming her 1/5th share in the suit schedule properties.

On service of summons defendant Nos. 1 to 3 entered appearance through their counsel. Defendant No. 4 was represented by a separate counsel. Defendant Nos. 1 to 3 filed their written statement admitting the family genealogical tree relationship. The defendants admitted the plaint averments and sought for a counter claim by way of effecting partition in the suit schedule properties by allotting their legitimate 1/5th share each in the suit properties. They have also paid the court fee on their share claimed by them.

Defendant No. 4 even though was represented by learned counsel, no written statement was filed by him. On the basis of the pleadings, the trial Court framed the following issues.

Issues

Whether the plaintiff proves that suit properties i.e. landed and house property are the ancestral joint family properties of plaintiff and defendants and they are in joint possession and enjoyment of the same till today?

Whether the plaintiff proves that defendant No. 3 and 4 have got created false mutation M.R. No. 452/07-08 and 453/07-08 and got transferred suit land in their name behind the back of the plaintiff?

Whether the plaintiff entitled her legitimate 1/5th share in the suit properties?

Whether the defendant No. 1 to 3 are entitled counter claim by way of allotting their legitimate 1/5th share each in the suit properties as prayed in para No. 6 of their written statement?

What order or decree?

The plaintiff examined herself as PW.1 and got marked in all 13 documents i.e. Exs. P1 to P.13. Defendant No. 1 examined himself as DW. 1.

All issues were answered in the affirmative. Consequently, the suit was decreed. Plaintiff was entitled to her legitimate 1/5th share in the suit landed properties and defendant Nos. 1 to 3 were held entitled to their legitimate 1/5th share each in the suit landed properties. Aggrieved by the same, defendant No. 4 has filed the present appeal.

Learned counsel for the appellant contends that the impugned judgment and decree is bad in law and liable to be set aside. That adequate opportunity was not granted to defendant No. 4 to make out his case. Defendant No. 4 was a resident of Bombay. He was under the bonafide impression that his father, defendant No. 1 would take care of his legitimate interest. His specific case is that there was a prior partition between the family members, which was reduced into writing. Further he pleads that in view of the prior partition, the question of decreeing the suit does not arise. That it is only the prior partition that could be given effect to.

On hearing learned counsel, the following question arises for consideration:

"Whether the judgment and decree passed by the Trial Court is in accordance with law and facts and whether any interference is called for?"

It is a fact that adequate opportunity was granted to the defendant No. 4 to contest the suit. He has entered appearance through his counsel. However, no written statement is filed. Therefore, it cannot be said that he was not given an adequate opportunity.

The plea setout by defendant No. 4 is that there was a prior partition which was reduced into writing as stated by him in the para-14 of his appeal memo. However, there is no material to show as to when the prior partition was effected and whether he is in possession of the document. Further there is no material to show that in terms of prior partition the same has been acted upon to the benefit of the sharers.

Further even assuming that there was a prior partition, the same would have to be a just and equal partition between the members of the joint family. There are five members in the joint family. Therefore each one of them are entitled to 1/5th share. In the instant case, the suit has been decreed by granting 1/5th share to each one of the sharers. It is in accordance with law. Therefore it cannot be said that the decree is unjust to defendant No. 4 or that it is opposed to law. The decree as granted by the trial Court is in terms of law and is an equitable partition made by the trial Court. Each one of the sharers have received an equal share. Under these circumstances, even if the contention of defendant No. 4 is accepted, it cannot be said that the judgment of the trial Court is perverse or otherwise. Consequently the issue is answered in the negative by holding that the judgment and decree of the Trial Court is just and in accordance with the law. The same has been passed while properly appreciating the evidence and material on record. No interference is called for. Consequently, the appeal being devoid of merit, is dismissed.

No costs.