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Judgment
The Appellants were Plaintiffs in O.S. No. 99/1997 on the file of Civil Judge, (Sr. Dn.), Chikmagalur. They are challenging the judgment and decree of the court below dt.2.12.2004 only on the ground that though the Trial Court considered their share properly in paragraph-29 of the Judgment, the Trial Court has committed an error in excluding the property sold by Defendant-1 and father of Defendants-2 to 4 in favour of Defendants-7 and 8. In order to get a clarification, the present appeal is filed.
We have heard the learned Counsel for the parties.
The Plaintiffs filed the suit for partition and separate possession of their share by metes and bounds in all the plaint schedule properties. According to the plaint averments, one Byregowda had 5 sons by name, G.B. Lokegowda- Defendant-1, G.B. Bomme gowda father of Defendants-2 to 4, G.B. Gopala Gowda husband and father of Defendants 5 and 6 and G.B. Chandre gowda, husband and father of the Plaintiffs-1 to 3, later the Defendants-5 and 6 were transposed as Plaintiffs-4 and 5 and G.B. Ninge Gowda the 7th Defendant. The fourth son Chandre Gowda died on 28.12.1988 leaving behind him the Plaintiffs-1 to 3 and his wife and children. According to them, Loke Gowda, Bomme Gowda and Ningegowda had take their share from out of the joint family properties as per the partition deed dt. 7.9.1977. The Defendant-1 was managing the family as a karta and when the partition took place on 7.9.1977 Chandre Gowda and late Gopala Gowda were not alive. Chandregowda had 1/5 share in all the joint family properties. The Defendants-6 to 8 claim that they have purchased the suit schedule property as per the registered sale deed dt. 23.5.1988 and the sale deed of the year 1993 and 1996. In other words they have sold the property in favour of Defendants-6 to 8. Contending that the Plaintiffs are'' not bound by the sale deeds, they demanded for a partition in the first week of May. As the Defendant-1 did not effect, the partition and allotted their share, the suit was instituted. The Defendants--7 and 8 filed the written statement separately contending that they are the bonafide purchasers for valuable sale consideration and they deny the rights of the Plaintiffs in the suit property. It is contended by the 7th Defendant that late Thimma Setty purchased the suit item No. 6 on 27.2.1982 from G.B. Bommegowda for a valuable sale consideration of Rs. 8,000/-. Since Bomme gowda had been allotted item No. 6 of the plaint schedule property, Bomme gowda had mortgaged suit item No. 6 along with other properties to one Kumara Swamy, Large Cooperative Society Limited, Gowdahalli. In order to clear the said loan, suit item No. 6 was sold to the husband of the 7th Defendant for a valuable sale consideration. Similarly, on 1.4.1992 Defendant-1 has sold item No. 5 to Thimma Shetty, the husband of the Defendant-7 for a valuable sale consideration of Rs. 11,000/- which property had also been allotted to him in the partition deed dated 7.9.1977. The Defendant-8 contended that he is not aware of the relationship of the Plaintiffs-1 to 3 with late Chandre gowda. He also do not know the relationship of the entire family. According to him, Chandre gowda, the 4th son of Byregowda died unmarried prior to 1977 and that item No. 8 of the plaint schedule property has fallen to the share of the father of Defendants-2 to 4 in the partition and that the same was sold to the 8th Defendant under a registered sale deed for a valuable sale consideration. Therefore, he requested the court to dismiss the suit. The contesting Defendants did not contest the case properly.
Based on the above pleadings, the following issues were framed:
1) Whether the Plaintiffs prove that all the suit schedule properties are joint family properties, in which late Sri G.B. Chandregowda, husband of 1st Plaintiff and father of minor Plaintiffs 2 and 3 had 1/5 undivided right and are they entitled to 1/5th share in plaint schedule properties?
2) Whether the additional Plaintiffs 4 and 5 prove that they have 1/5th right in the suit schedule properties?
3) Whether the Plaintiffs are entitled to accounts and mesne profits under order 20 Rule 12 and 18 Code of Civil Procedure?
4) Whether the Defendants 6 to 8 prove that they are bonafide purchasers and that the alienation was for family necessity and benefit and binding upon the Plaintiffs.
5) Whether the Plaintiffs are entitled to partition and separate possession and enquiry for mesne profits?
6) What order or decree?
In order to prove their respective contentions, the 1st Plaintiff, Krishna Bai got examined herself as PW-1. She relied upon Ex.P1 to P22. On behalf of the Defendants, 8th Defendant - Rodrigues got examined himself as DW1 and one Subba Shetty was examined as DW2. The Defendants relied upon Ex.D1 to 19. The Trial Court came to the conclusion that issues-1 to 3 and 5 are proved, accordingly held in affirmative. Issue-4 is held in negative and ultimately the suit of the Plaintiffs came to be decreed holding each of them entitled for 1/5th share in the plaint schedule property. Accordingly, preliminary decree has been drawn.
The present appeal is filed by the Plaintiffs on the ground that in para-29 of the judgment the Trial Court by confusing its decision has held that while the Plaintiffs are entitled to get their share, the properties sold to Defendants-7 and 8 are to be excluded. Only to get a clarification, the present appeal is filed.
We have heard the learned Counsel for the Appellants, Mr. C.N. Kamath and Mr. Bhat for Respondent-7 and Smt. Pushpalatha, the learned Counsel for the Respondent-8.
The main contention of the Appellants counsel Mr. C.N. Kamath, is when the court below has held that the sale of the property in favour of the 7th Defendant''s husband and 8th Defendant is not binding on the Plaintiffs share and having held that the husband of the 7th Defendant and 8th Defendant are not bonafide purchasers, the Trial Court was not justified in holding that the properties sold to the 7th Defendant and 8th Defendant are to be excluded while considering the share of the Plaintiffs. Therefore, he contends that the said paragraph has to be clarified.
Per contra, the learned Counsel appearing for the 7th and 8th Respondent contend that the Trial Court has clarified how the properties are allotted in para-31 of the Judgment. According to them, after excluding the area sold to 7th and 8th Defendant measuring 7 acres 16 guntas, the family is having a remaining 7 acres 37 guntas and therefore the Plaintiffs can claim their share in the remaining property of the family excluding the property sold to 7th and 8th Respondents. In the circumstances, they contend that there is no necessity to seek clarification from this Court by the Appellants. In the circumstances, they request the court to dismiss the appeal.
Having heard the counsel for the parties, the only point to be considered by us in this appeal is in view of the operative portion of the judgment and decree of the Trial Court holding that each of the Plaintiffs are entitled for 1/5th share in the plaint schedule properties, whether this Court requires to clarify the doubt which has been entertained by the Appellants-Plaintiffs.
Since the rights of the parties are not in dispute, and it is also not in dispute that the Defendant-1 and the father of the Defendants-2 to 4 have sold 7 acres 16 guntas to 7th and 8th Defendants and that the Trial Court having come to the conclusion that 7th and 8th Defendants are not the bonafide purchasers, we are of the opinion that the Trial Court is justified in holding that the Plaintiffs are entitled to 1/5th share each in all the joint family properties including the property sold in favour of 7th and 8th Respondent. However, the Trial Court considering that the 7th and 8th Respondents have improved the properties after purchasing the property from the 1st Defendant and father of the Defendants-2 to 4, instead of allowing the parties to make a request in the final decree proceedings to consider the equity pleaded by the 7th and 8th Respondents, while drawing a preliminary decree itself has held that the property purchased by 7th and 8th Defendants shall be allotted to the share of Defendants-1, 2 and 4 and allot the remaining property to the share of the Plaintiffs excluding the area sold in favour of the Defendants-7 and 8 as the remaining extent of the family holding is also more or less equal to the property sold by Defendant-1 and father of Defendants-2 to 4.
Considering the nature of judgment of the Trial Court, we are of the opinion the equity pleaded by the 7th and 8th Defendants has been clarified in the preliminary decree proceedings instead of directing the parties to get their rights adjudicated in the final decree proceedings. Therefore, we are of the opinion that no injustice is caused to the Plaintiffs and we have to clarify that the Plaintiffs share of 1/5 property in the entire joint family properties has to be considered in the final decree proceedings taking into account the entire extent of the family held prior to the sale of the property by Defendant-1 and father of Defendants-2 to 4 and the property now retained by the family be allotted to the share of the Plaintiffs and in case the properties remained after exclusion of the property sold to Defendants-7 and 8 is insufficient to consider the share of the Plaintiffs, in such case, in the Final decree proceedings the court shall consider the difference of area out of the property purchased by Defendants-7 and 8.
With the above clarification, the appeal is dismissed.