Mangala and Others vs Mallappa and Others

B.V. Nagarathna, J.—1. The appellants are legal representatives of Ramu Balu Musle. They have assailed judgment and decree passed in R.A. No. 5/2006 by the Fast Track and Ad hoc District Judge, Hukkeri, dated 28.07.2010, by which, the judgment of the Civil Judge, (Jr.Dn.) Sankeshwar, dated 4.10.2005 in O.S. No. 113/1998 has been affirmed.

For the sake of convenience, the parties shall be referred to, in terms of their status before the Trial Court.

The legal representatives of Ramu Balu Musle filed the suit seeking partition and separate possession of his 1/3rd share in the suit schedule properties comprising of agricultural land bearing RS. No. 1/1 situated at Baad village, measuring 3 acres 29 guntas, having two wells and a house property constructed in the suit land. According to the plaintiffs, Balu Musle was the tenant of the suit schedule property and thereafter he purchased it on 24.07.1968 under a registered sale deed for a sum of Rs. 3,300/- and from the date of purchase, which was done in the name of original propositus, he was in actual possession and enjoyment of the same. Thereafter, his five sons became successors and they are in joint possession and enjoyment of the suit properties. That at the time of purchase of the property, plaintiffs had paid 1/3rd of the sale consideration and others had paid together 2/3rd of the consideration. The properties were purchased in the name of the original propositus Balu Musle and it was treated as a joint family property since 24.07.1968, the date of registration of the said properties in his name. There was an agreement between the father and his sons to divide the property giving the plaintiffs 1/3rd share and the other sons who are his brothers totally 2/3rd share. This agreement was made at the time of purchase of the suit property. But in the year 1980, defendants entered their names in the record of rights which came to the knowledge of the plaintiffs. They filed an appeal on 08.07.1997 before the Tahasildar. The Tahasildar ordered that the rights had to be determined before the Civil Court. Hence, he filed the suit. It is the case of the plaintiffs that the agreement between the original propositus and his sons is binding on all the sons.

In response to the suit summons and court notices, defendant Nos. 3, 4, 6, 9, 10, 11 and 14 filed written statement and contended that R.S. No. 1/1 contains three wells and not two wells as mentioned in the plaint. The value of the property is over Rs. 3,00,000/-. That the suit schedule property was purchased in the name of original propositus as he was the Manager and Kartha of the family. That at no point of time, the plaintiffs had contributed 1/3rd share of the sale consideration. That there was no agreement between the father and sons at any point of time with regard to the giving 1/3rd share in the suit property to the plaintiffs. That after the death of the original propositus his five sons had 1/5th equal share in the suit property and that is how it has been recorded in diary No. 3116. Thus, the question of granting 1/3rd share to the plaintiffs did not arise. That the sons of the original propositus are entitled to 1/5th share each. Therefore, they sought for dismissal of the suit.

Defendants 2, 5, 12, 8 and 13 adopted the written statement of other defendants who filed it.

On the basis of the aforesaid rival pleadings, the trial court framed the following issues for its consideration:

"1. Whether the plaintiff is entitled for 1/3rd share with separate possession?

Whether the plaintiff proves that he is entitled for partition of 1/3rd share and separate possession?

Whether the plaintiff proves that the suit schedule properties are the joint family properties?

Whether the defendant proves that there was already partition and does he further prove that plaintiff is having 1/5th share and the defendant are having 1/5th share in these properties involving in this suit?

Whether the suit is barred by limitation?

Whether the defendants are entitled for the properties mentioned in para 17(A) to (F) as their 1/5th share?

Whether the defendants prove that this court has no pecuniary jurisdiction to entertain the suit?

Whether the defendants prove that all the properties of the plaintiff and defendants families are not brought in one common hot-potch for partition?

What order or decree?"

In support of their case, the plaintiffs examined four witnesses and produced 17 documents which were marked as Ex. P.1 to P.12. The defendants examined one witness. They produced two documents which were marked as Ex. D.1 to D.2.

On the basis of the said evidence, the Trial Court answered issue Nos. 1, 2, 5, 7 and 8 in the negative and issue Nos. 3, 4, and 6 in the affirmative. The trial court by judgment and decree dated 4.10.2005 dismissed the suit.

Being aggrieved by the judgment and decree of the trial court, plaintiffs preferred R.A. No. 5/2006 before the I Appellate Court, which on hearing the learned Counsel for the respective parties framed the following points for its consideration:

"1. Whether the Appellants prove that there are just and reasonable grounds to condone the delay in filing these appeals?

Whether the Appellants prove that the judgment and decree passed by learned Civil Judge, Sankeshwar in O.S. No. 113/1998 dated 04.10.2005 is suffering from any irregularities or illegality and called for any interference by this court in this appeal?

Whether the Appellant proves that they are entitled for partition and separate possession of their 1/3rd share as per agreement 24.07.1968?

What order or decree?"

It answered point No. 1 in the affirmative and point Nos. 2 & 3 in the negative and dismissed the appeal by confirming the judgment of the trial court.

Being aggrieved by the judgment and decree of the I Appellate Court, the plaintiffs have preferred this second appeal.

I have heard the learned Counsel for the appellants and learned Counsel for respondent Nos. 1, 2, 4, 5, 6, 9, 11 to 14, 17 and 18. Respondents 3 and 8 are served and un-represented. Notice on respondent No. 7 is held sufficient. The appeal against respondents 10 and 16 has abated. Notice to respondent No. 15 is dispensed with. I have perused the material on record.

It is contended on behalf of the appellants that both the courts below have failed to appreciate the fact that although the suit schedule property was purchased in the name of the original propositus by his five sons nevertheless Ramu Balu Musale had contributed 1/3rd share towards the sale consideration. His four brothers had together contributed 2/3rd share towards sale consideration. Though the property was purchased in the name of original propositus, he had declared that at the time of division of the suit property, 1/3rd share must be given to the plaintiffs in accordance with the contribution towards purchase of the property. But the defendants failed to accede to the request of the plaintiffs. Therefore, legal representatives of Ramu Musale filed a suit seeking 1/3rd share in the suit schedule property. The suit schedule property though purchased by the sons in the name of their father was treated as a joint acquisition. But at the time of division, it was to be divided equally between the five sons. In terms of the wish made by their father and the original propositus a division had to take place i.e. for legal representatives of Ramu Balu Musale, 1/3rd share in the suit property had to be given. The Trial Court as well as the I Appellate Court did not appreciate these aspects of the matter and erroneously granted 1/5th share to each of the sons of the original propositus, which is not correct. That substantial question of law would arise in the appeal. Therefore, the appeal may be admitted for a detailed hearing.

Per contra, learned Counsel for respondent Nos. 1, 2, 4, 5, 6, 9, 11 to 14, 17 and 18 supporting the judgment and decree of the First Appellate Court which has confirmed the judgment and decree of the trial court, contended that whatever may have been the extent of contribution made by any of the parties for the purchase of the suit property, the same was purchased in the name of original propositus. It may have been a wish of the original propositus that the same must be divided in consonance with the share of the contribution for the purchase of the suit property. There was no such agreement which was acted upon by the parties. The same was only an intention of the original propositus. Once the original propositus in whose name the property was purchased died, law of succession came into play. In such an event, each of the sons would be entitled to 1/5th share equally. Hence, the courts below were right in granting 1/5th share to each son of the original propositus, in the suit schedule property. In fact on that basis the sons of the original propositus have already divided their respective shares and are enjoying the same. That the suit filed by the original plaintiff was futile. In fact, in an earlier suit which he had filed in O.S.263/93, the original plaintiff had sought only 1/5th share in the suit property. That suit was dismissed for non-prosecution. The admission made in the plaint and in that suit and also in his examination-in-chief cannot be resiled from by his legal representatives in the present suit. He therefore contended that no substantial questions of law would arise in the appeal and the appeal may be dismissed in limine.

A detailed narration of facts would only give rise to an irresistible conclusion that the facts are not in dispute. The original propositus Balu Musale had five sons, namely, Santaram, Gundu, Krishna, Dondiba and Ramu. It is also not in dispute that the suit schedule property was purchased in the name of their father, Balu. Whatever may been the extent of consideration that had been contributed by each of the sons in the purchase of the property, but the fact remains that it was purchased in the name of original propositus. He died intestate. On his death, the property would devolve on his sons in equal measure. There may have been some kind of understanding during the life time of original propositus with regard to the manner in which the suit property had to be divided. But no such firm understanding in that regard was established by any documentary evidence. Per contra, Ramu Musale sought only 1/5th share in the suit property when he had filed suit in O.S.263/99. That admission is binding on him and his legal representatives. The present suit filed by him once again seeking 1/3rd share is without any basis and is not supported by any legal evidence to that effect. Therefore, plaintiffs'' share in the suit property was only 1/5th. The courts below have rightly appreciated that aspect of the matter and dismissed the suit by holding that the parties had already partitioned the suit schedule property to an extent of 1/5th share each and there was no need for the court to once again look into the aspect as to whether plaintiffs were entitled to 1/3rd share. Prior partition between the parties had crystalised the rights of the parties vis-�-vis suit schedule property. Therefore, the trial court as well as the First Appellate Court rightly dismissed the suit.

I do not find any infirmity in the judgment and decree of the courts below. No substantial question of law would arise in the appeal.

The appeal is dismissed. Parties to bear their respective costs.