Chikkegowda and Others vs Ugraiah and Others

N. Kumar, J.—As these three appeals are preferred against the very same Judgment, they are taken up together for final hearing by consent of the parties and disposed of by this Common Judgment.

For the purpose of convenience, the parties are referred to as they are referred to in the original suit.

One late Doddanarasimhaiah was the propositus. The plaintiff and defendant No. 1 are the sons of said late Doddanarasimhaiah and defendant No. 2 is his wife. Defendant No. 3 is the subsequent purchaser. Doddanarasimhaiah died in the year 1982 leaving behind the plaintiff and defendants 1 and 2 as his legal heirs. During his life-time, he had acquired several immovable properties in his name and also in the name of defendant No. 1. He died intestate when the plaintiff was minor at the age of 12 years. After the death of Doddanarasimhaiah, the plaintiff and defendants 1 and 2 continued to live together in the joint family house. The 1st defendant being the eldest son became kartha of the family and was managing its affairs. The 2nd defendant is a widow and she is a house wife and uneducated. The plaintiff was given to understand by the 1st defendant that the joint family properties were partitioned long back and the kathas were accordingly changed in all the revenue records by getting mutation effected, etc., on the statement made by himself and defendant No. 2. The plaintiff was not a party to the said partition. Believing the said version, he was looking after the said properties, which were changed to his name. The said partition was not actually just and proper and equal to the plaintiff and the defendants 1 and 2. The entire joint family properties even subsequent to 20.04.1982 were in joint possession and enjoyment of the plaintiff and defendants 1 and 2. Even though the katha and mutation revenue entries in respect of some other properties were changed and made in the names of the plaintiff and defendant No. 1, the 1st defendant himself using his position as elder brother and was coercing undue influence, has taken signature of the plaintiff on several papers for making several representations. Because of the difference among the women folks in the family, they also started living separately. The plaintiff requested the 1st defendant to effect equitable partition of the joint family properties. The 1st defendant refused. The plaintiff also came to know that defendant No. 1 under two Sale Deeds dated 28.10.1998 has alienated the family properties in favour of defendant No. 3, which is not binding on the plaintiff. Under these circumstances, the plaintiff filed a suit for declaration that he had got 12/27 undivided share in the said schedule properties and for reopening and partitioning of the suit schedule properties by metes and bounds and for a declaration that the Sale Deed dated 28.10.1998 executed in favour of the 3rd defendant is not binding on him and for other consequential reliefs. All the properties belonging to the joint family were included in the schedule.

After service of the summons, the 1st defendant entered appearance and contested the suit. He denied all the allegations in the plaint. He contended that during the year 1982, there was a partition among the joint family members. On the basis of the said partition, mutation entries have been effected and the parties are enjoying the properties separately and independently and therefore, on the date of the suit there was no joint family in existence. The plaintiff has collected the compensation from the National Power Corporation and the Horticulture Department in respect of the lands acquired. He was allotted to his share a sum of Rs. 1,87,728-00. The plaintiff has also sold the land in Sy. No. 32/1B, measuring 15 gunts situated at Kasaghatta, Doddabelavangala Hobli, Doddaballapur Taluk in favour of Smt. B.S. Soubhagyamma under the Sale Deed dated 15.12.2003, in which there is a reference to the partition dated 20.04.1982. The plaintiff also mortgaged the property fallen to his share with the Vijaya Bank and availed a loan of Rs. 5,00,000-00. The plaintiff has also entered into Agreement to Sell with one A.C. Siddalingappa to sell the land in Sy. No. 61/4, measuring 1 acre 7 gunts. There is also an agreement between the plaintiff and the 1st defendant in respect of sharing water and also making use of the road on 01.12.1990. In all these documents, the earlier partition is referred to. The plaintiff has also mortgaged his property to VSSN Hulikunte and availed a loan of Rs. 30,000-00 and executed a Mortgaged Deed as a guarantee. As a security for the loan availed, he has mortgaged the properties which have now fallen to his share in the schedule properties. He also put boundaries after the partition and has been in peaceful possession and enjoyment of the properties, which have fallen to his share. He is cultivating the same. Further it is stated that he was working as a Secretary in the Service Co-operative Society from 1974 to 1976 and also Secretary to VSSN, Doddabelavangala from 1976 to 1986 and out of his personal earnings, he has acquired land bearing Sy. No. 5/1 and Sy. No. 6/1 under registered Sale Deeds from its original owners and therefore, he submits that the suit is misconceived and sought for dismissal.

The 2nd defendant''s mother i.e., 3rd defendant has also filed a detailed written statement. She has supported the plaintiff. The 3rd defendant-purchaser has also filed the written statement.

On the basis of the aforesaid pleadings, the trial Court framed the following issues:

1) Whether the plaintiff proves that the suit schedule properties are the joint family properties, which were managed by the first defendant?

2) Whether the plaintiff proves that though the mutation were changed as per the partition dated 20.04.1982, all the joint family properties are in joint possession of the plaintiff and defendants No. 1 & 2?

3) Whether the plaintiff proves that the two Sale Deeds executed by the first defendant on 28.10.1998 are without the knowledge of the plaintiff?

4) Whether the third defendant proves that there was already a partition of the joint family properties of the plaintiff and defendants No. 1 & 2?

5) Whether the defendant No. 1 proves that the Sale Deed executed by defendant No. 1 and his son in respect of Item No. 10 of the suit schedule properties in favour of 3rd defendant is for the benefit on the family of plaintiff, defendants No. 1 & 2?

6) What order or decree?

The plaintiff in order to substantiate his claim, examined himself as P.W. 1 and produced 21 documents, which are marked as Exs. P1 to 21. On behalf of the defendants, the 1st defendant was examined as D.W. 1, examined 3 witnesses viz., Hanumaiah, Nasgaraja and Basappa as D.Ws. 2, 3 and 4 respectively and the 2nd respondent was examined as D.W. 5. They also produced 52 documents, which are marked as Exs. D1 to 52.

The trial Court on appreciation of the aforesaid oral and documentary evidence on record held that the plaintiff has proved that the suit schedule properties are all joint family properties and it was managed by the 1st defendant as kartha of the joint family. However, it held that the plaintiff has failed to prove that though the mutation were changed as per Partition dated 20.04.1982, all the joint family properties are in joint possession of the plaintiff and defendants 1 and 2. Further it held that the plaintiff has failed to prove that the Sale Deeds dated 28.10.1998 were executed without his knowledge. It also held the contentions of the defendants that there was a partition earlier in the family is proved. It also upheld the Sale Deeds executed by the 1st defendant in favour of the 3rd defendant. It also recorded a finding that the two properties which were claimed by the 1st defendant as self-acquired properties are not proved to be self-acquired properties. Therefore, the suit of the plaintiff was decreed partly, declaring that the plaintiff and defendant No. 2 are entitled to 1/3 share in the two properties purchased by defendant No. 1 during the lifetime of his father and in respect of all other claim the suit was dismissed.

Aggrieved by the said Judgment and Decree of the trial Court, the plaintiff has preferred R.F.A. No. 157/2010, the 2nd defendant Smt. Ningamma has preferred R.F.A. No. 554/2010 and the 1st defendant Uggraiah has also preferred R.F.A. No. 69/2010, challenging the Judgment and Decree of the trial Court to the extent against their interest.

Today, learned counsel for the parties submitted that the daughters of late Doddanarasimhaiah have filed a suit in O.S. No. 195/2013, after disposal of the suit and during the pendency of the appeal, claiming a share in all the schedule properties on the ground that by virtue of amendment to Section 6 of the Hindu Succession Act by Act 39 of 2005, they have been conferred the status of coparceners and that there was no partition evidenced by registered Deed prior to 20th December, 2004 and they are entitled to equal share along with the son. Interestingly, the said daughters were not made parties to the present suit. Even on the day, when the suit was filed in 2007, they had a right in the properties. They were necessary parties to the suit. In their absence, there cannot have been a proper adjudication. However, the facts remains that they were not made parties and therefore, they legitimately filed the suit in O.S. No. 195/2013 impleading all the persons/parties to the suit and claiming their respective shares. Therefore, they submit that it is appropriate that the Judgment and Decree passed in this case is to be set aside, the suit be restored and remitted back to the trial Court to be heard along with O.S. No. 195/2013, where the rights of all the parties as well as nature of the properties would be gone into comprehensively. We find substance in the said contention. Admittedly, the partition pleaded by the defendant is not evidenced by the registered Partition Deed. It is clear from Explanation 5 to Section 6 that for the purposes of Section 6, the "partition" has to be made by execution of a registered document. In that view of the matter, it is appropriate that this matter be sent back to the trial Court to decide O.S. No. 195/2013. Hence, we pass the following:

(a) All the 3 appeals are allowed.

(b) The impugned Judgment and Decree passed by the trial Court are hereby set aside.

(c) The original suit in O.S. No. 518/2007 is restored to its original file with a direction that the same shall be tried along with O.S. No. 195/2013, which is now pending on the file of the City Civil Court at Bengaluru.

(d) In the circumstances, Misc. Cvl. 1739/2010 filed for temporary injunction in R.F.A. No. 157/2010 and I.A. No. 1/2013 filed for early hearing in R.F.A. No. 69/2010 do not survive for consideration and they are accordingly rejected.

(e) No costs.