L. Siddaraju vs L. Murthy and Anr.

N. Kumar. J.—This is the plaintiff�s regular first appeal challenging the Judgment and Decree of the trial court dismissing the suit of the plaintiff which was filed for partition and separate possession of his one-third share in the schedule property.

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

The subject-matter of the suit is house property bearing Kaneshmari No. 118/147 being western portion in site No. 60 and whole of site No. 61/B, new No. Div. No. 37, House No. 151/1 consisting of ground, first and second floor measuring 20� x 50�, Ananthramaiah Compound, Chamarajpet, Mysore Road. Bengaluru - 560 018 which is more particularly described in the schedule to the plaint and hereinafter referred to as �schedule property�.

The case of the plaintiff is, plaintiff and Defendants 1 and 2 are children of Smt Jayamma. Smt. Jayamma acquired the suit schedule property under a sale deed dated 23.6.1977. She had constructed two floor building in the schedule property. Plaintiff. Defendant No. 2 are living in the first floor separately. Defendant No. 1 is residing in the ground floor. The mother of the plaintiff died on 25.4.2007 leaving behind the plaintiff and defendants as her sole heirs who jointly succeeded to the schedule property. The defendants without giving legitimate share of the plaintiff, got sale deed executed in favour of the Defendant No. 1 from his mother on 21.2 1990 behind the back of the plaintiff. The said fact came to the notice of the plaintiff before filing the suit. On the basis of concocted sale deed, the defendants started denying the share of the plaintiff and tried to dispossess the plain tiff from the schedule property before filing the suit. In spite of several demands, the defendants failed to give the share of the plaintiff. Therefore, the plaintiff has filed the suit for partition and separate possession of one-third share in the suit schedule property and for declaration that the sale deed executed by the mother of the plaintiff in the name of Defendant No. 1 on 21.2.1990 is null and void and not binding on the plaintiff and for a permanent injunction.

After service of summons, the Defendant No. 1 filed the written statement admitting the relationship pleaded in the plaint. He denied that during the lifetime of the mother of the plaintiff and the defendants, Smt. Jayamma constructed three floors building in the suit schedule property. Purchase of the site by her was admitted. He also denied that the plaintiff and defendants succeeded to the schedule property after the death of their mother. He also denied interference pleaded in the plaint. He contended that the mother of the plaintiff and the defendants performed the marriage of Defendants 1 and 2 in the years 1987 and 1989 respectively. She had incurred heavy debts towards performance of their marriage and also for construction of the ground floor. Smt. Jayamma was a chronic heart patient. Their father was suffering from cancer. In order to overcome the impasse, their mother decided to sell the schedule property which was her self acquired property. The Brother-in-law of the plaintiff and Defendant No. 1 and one Chikkanna persuaded the Defendant No. 1 to purchase the schedule property. In order to avoid falling of the properties in the hands of the third parties in the presence of the plaintiff and Defendant No. 2 negotiations took place. After obtaining loan from the Canara Bank, the Defendant No. 1 purchased the schedule property from his mother. Thus, he became the absolute owner of the suit schedule property. The plaintiff suppressing these facts has filed the suit for partition even though the sale deed was executed in the year 1990 by the mother in favour of the Defendant No. 1. The present suit has been filed by the plaintiff to blackmail the Defendant No. 1 to obtain wrongful gain. In pursuance of the sale deed, name of the Defendant No. 1 was recorded in the Corporation records. At no point of time, the suit schedule property was the joint family property of the plaintiff and the defendants. The plaintiff and defendants never jointly succeeded to the schedule property and therefore the plaintiff had no share in the schedule property. The valuation arrived at and court fee paid is insufficient and he prayed for dismissal of the suit.

On the aforesaid pleadings, the Trial Court framed the following five issues.

"1. Whether the plaintiff proves that the suit properties are the joint family properties liable for partition?

Whether the plaintiff is entitled for ⅓ share?

Whether the sale deed executed by mother of the plaintiff in favour of defendant No. 1 dated 21/2/1990 is not binding on plaintiff?

Whether the defendant No. 2 proves that the suit property being the self acquired property of mother of plaintiff sold the same in favour of defendant No. 1 who became the absolute owner of the same?

What order or decree?"

One Mangala Gowri, the GPA Holder of the plaintiff was examined as PW. 1. Exhibits P1 to P7 were marked. The defendants did not cross-examine PW. 1. The defendants did not adduce any evidence on their behalf.

The Trial Court, on considering the oral and documentary evidence on record, held admittedly the schedule property belongs to mother of the plaintiff. It was her self acquired property. She had sold the said property in favour of the Defendant No. 1 under a registered sale deed dated 21.2.1990. Thus, on the date of her death i.e.. on 25.4.2007, she had no right in the said property. Therefore the case of the plaintiff that after her death, the plaintiff and defendants 1 and 2 jointly succeeded to the schedule property is without any substance. Therefore, the question of intestate succession would not arise. Accordingly, suit came to be dismissed. Aggrieved by the said Judgment and decree, the plaintiff is in appeal.

Learned Counsel for the plaintiff assailing the impugned judgment and decree, contended that the mother of the plaintiff was a housewife. She had no independent income. Defendant No. 1 has managed to obtain sale deed in respect of the schedule property without the knowledge of the plaintiff. The said sale deed did not bind him. As the property belongs to his mother, after her death, all the three sons have jointly succeeded to the property and therefore plaintiff is entitled to one-third share of the property. The Trial Court has not properly appreciated the material on record and committed serious error in dismissing the suit of the plaintiff.

We do not find any substance in any of those contentions. Admittedly, the schedule property was purchased by Smt. Jayamma-mother of the plaintiff and defendants under a registered sale deed on 23.6.1977. The material on record shows that she had put up ground floor premises. According to the plaintiff, she had no independent source of income. Admittedly, now three floors are constructed. Smt. Jayamma has executed a registered sale deed in favour of the Defendant No. 1 on 21.2.1990. Khata has been made out in the name of Defendant No. 1. Admittedly, three floors building exists on the schedule property. All of them are living in the said building. The mother died on 25.4.2007. She was alive for 17 long years after execution of the sale deed. She did not choose to challenge the said sale deed. Plaintiff and defendants are living in the very same building. The Defendant No. 1 has been paying the taxes. Under these circumstances, it is hard to believe that the plaintiff was not aware of the execution of the sale deed by mother in favour of the Defendant No. 1. Admittedly, after purchase, two floors are put up on the building. Therefore, as pointed out by the trial Judge, on the date mother died, the schedule property ceased to be her property. Therefore, her sons did not succeed to the schedule property as it did not belong to the mother. It was the Defendant No. 1�s property which was his self acquisition. Under the circumstances, we do not see any merit in the appeal.

Accordingly, the appeal is dismissed at the stage of admission.