Channigaiah vs Somiah Dead by LRs. Smt Jayamma and Basaviah

Huluvadi G. Ramesh, J.—This second appeal is by the Defendant assailing the judgment and decree dated 19.1.2005 passed by the Addl. Civil Judge (Sr. Dn.), Sri Rangapatna in R.A. No. 72/1997.

Suit was filed before the Addl. Munsiff & JMFC, Sri Rangapatna in O.S. No. 271/1993 by the Plaintiffs seeking for partition and separate possession of their 173rd share in the suit schedule property which consists of 16 guntas of agricultural land in Sy. No. 48 of Kennal village, Kasaba Hobli, Pandavapura taluk, which is said to have fallen to the share of the mother of the parties by name Devamma. The matter was contested by the Appellant-Defendant on the ground that, he discharged the loan raised by his mother and as such, he is entitled for the entire suit schedule property as per the recital at Ex.D1. The trial Court on raising relevant issues, after enquiry, as regards issue No. 1 - whether the Plaintiffs prove that the schedule property being the joint family ancestral property of themselves and the Defendant, after the demise of their mother-Devamma, they are all entitled for equal share in the suit schedule property, has held in the affirmative and in so far as issue No. 2 - whether Defendant proves that the suit schedule property is given to him exclusively, as he cleared the debts that was due by deceased-Devamma and this fact is known to the Plaintiffs as contended in para 3 of his written statement, has held in the negative and as regards issue No. 3 - whether the Plaintiffs are entitled for partition and separate possession of their share as prayed, has held in the negative and accordingly, has dismissed the suit of the Plaintiffs, as against which, in the appeal preferred by the Plaintiffs before the Addl. Civil Judge, (Sr. Dn.), Sri Rangapatna, the lower appellate Court has allowed the appeal, by setting aside the order of the trial Court and decreed the suit of the Plaintiffs holding that Plaintiffs are entitled for 1/3rd share each in the suit property. Against the said order, the Defendant is before this Court, on the ground that, as per the recital at Ex.D1, since he has discharged the loan, he is entitled for the entire property and the order of the lower appellate Court and so also the finding given by the trial Court that the Defendant has failed to prove that he has discharged the debts of his deceased mother Devamma, are erroneous.

Heard.

At the time of admission on 27.7.05, the following substantial questions of law were raised for consideration by this Court:

(i) Whether the findings of the First Appellate Court reversing the judgment and decree passed by the trial Court and decreeing the suit of the Plaintiffs for partition and possession of 1/3rd share is perverse and arbitrary, being contrary to law and material evidence on record?

(ii) Whether the findings of the First Appellate Court that the loan that was discharged by the Appellant is in a different bank than the bank mentioned in Ex.D1 is contrary to the contents of the documents?

According to the learned Counsel for the Appellant-Defendant, as per the recital at Ex.D1, although all the three brothers are entitled to equal share in the property, but when the Plaintiffs have failed to discharge the loan and the same was undertaken by the Defendant and he discharged the loan, the entire property which has fallen to the share of Devamma which she enjoyed during her lifetime, in view of the loan being discharged by the Defendant, should have been fallen to his share exclusively.

Per-contra, the learned Counsel appearing for the Respondents has submitted that, Ex.D1 has to be properly interpreted. The decree of the lower appellate Court cannot be found fault with since no material has been produced by the Defendant for having discharged the loan of Devamma in respect of the property in question. Accordingly he has sought for dismissal of the appeal.

As per Ex.D1, the property in question ought to have been divided among the three brothers. The trial Court has negatived the contention of the Defendant that he has Discharged the debt on the ground that, he has not placed any material in this regard. However, according to the Defendant, Ex.D1 is the basis on which he is entitled for the entire property, which has fallen to the share of Devamma in the joint family partition since he has discharged the loan and the recital has not been properly taken into consideration. Hence, in the context, while answering the substantial questions of law raised, Ex.D1, the deed which is said to have been created by Devamma has to be properly interpreted and reconsidered once again by the lower appellate Court as to whether all the three brothers are entitled or the person/Defendant who has discharged the loan alone is entitled for the entire suit schedule property.

In the absence of non-consideration of material evidence on record, appeal is allowed and the impugned order passed by the lower appellate Court is set aside. The matter is remanded to the lower appellate Court for disposal of the same, in accordance with law, after affording opportunity to both the parties, if need be by allowing them to lead additional evidence.