S. Gangadhar vs Shankarappa

B.S. Patil, J.—This appeal is by the unsuccessful plaintiff whose suit for partition has been dismissed. The relationship between the parties is not in dispute. For the sake of convenience, parties are referred to by their rank in the Trial Court.

Plaintiff and 2nd defendant are the sons of 1st defendant and 3rd defendant is the daughter of 1st defendant. Plaintiff filed the suit seeking partition and separate possession of his 1/3rd share in the suit schedule properties and for exclusive possession of the same and also for mesne profits. Properties described in schedule ''A'' consisted of two items of immovable properties. Item No. 1 is premises bearing Door No. 523 situated at High School Extension, Harihar and item No. 2 property consisted of four shop premises and two houses bearing common Door Nos. 1628/1518/1632 situated at Shimoga Road, Harihar. Schedule ''B'' properties are five items of movable properties.

Case of the plaintiff was that he had studied Diploma in Mechanical Engineering and thereafter started a factory for producing and manufacturing Tractor, Trailer-tiller spare parts and furnitures. As the 1st defendant was the head of the family, plaintiff was handing over his income earned from the industry to 1st defendant. The 1st defendant got divided from his father and was allotted Item No. 1 of Schedule ''A'' property viz., a house and the same was the joint family property. 1st defendant as Karta of the family acquired Item No. 2 in schedule ''A'' property and therefore, the said Item No. 2 was also a joint family property. It is contended by the plaintiff that his wife died by committing suicide and there was a criminal case filed against defendants 1 to 3 by the parents-in-laws of the plaintiff under Section 498-A and 306 IPC. It is urged that after the death of his wife, plaintiff had been residing separately running the workshop in two of the shops mentioned at Item No. 2 of Schedule ''A'' property.

As the 1st defendant was trying to alienate the suit schedule properties and threatened the plaintiff that he would be evicted from the two shop premises under his occupation, he was forced to file the suit seeking partition and separate possession of his 1/3rd share. It is noticed that initially 3rd defendant, sister of the plaintiff was not made party to the suit, but subsequently, she has been impleaded.

Defendants entered appearance and resisted the suit. Defendants 1 & 2 filed common written statement, whereas 3rd defendant filed separate written statement. All of them have denied the assertions made by the plaintiff.

It is urged in the written statement that 1st defendant was an ex-employee of the Mysore Kirloskar Limited and worked there from 1962 to 1993. Out of his hard work, he earned money and in order to augment resources and to uplift the family, he took up the work of electrical wiring, motor fitting, pipeline fitting, flour mill wiring and other works during his spare time. By dint of hard labour he saved money and constructed building in Item No. 2 of schedule ''A'' property. It is urged that the said building consisting of 4 shops was constructed exclusively with his earnings. After the completion of construction of building, 1st defendant thought of starting an industry for manufacturing of grills, furnitures, tractor trailers, etc., and therefore, he purchased machineries by raising loan in the name of plaintiff in a sum of Rs. 35,000/- under self employment scheme. The other machineries required were purchased with the self earnings of 1st defendant.

1st defendant contended that the shops were let out to different tenants. Out of the amount derived from rental of the premises and also with the financial help from his brother -Manjunath in a sum of Rs. 65,000/-, he started the workshop. The workshop was started in the name of the plaintiff as he was a diploma holder in Mechanical Engineering and was unemployed. He has further asserted that with difficulty by spending money, 1st defendant got educated the plaintiff. 2nd defendant being a skilled worker, both defendants 1 & 2 trained the plaintiff to work on the machine after the establishment of the workshop. They obtained loan from State Bank of Mysore under self employment scheme in the name of plaintiff during 1989. Plaintiff though received earnings of the entire workshop, did not discharge the loan.

He further contended that the machineries in the workshop premises viz., 3 welding machines, drilling machines, one hand drilling machine, one bench grinding machine, one hand grinding machine, etc., totally amounting to 14 items which were in the workshop were removed by the plaintiff by taking undue advantage of the ex parte interim order obtained by him. Thus, it was contended that plaintiff was not entitled for partition of 1/3rd share as claimed by him.

3rd defendant also denied the plaint averments and contended that plaintiff had not disclosed the existence of machineries and instruments and therefore, the suit was bad as all the properties had not been included in the plaint schedule.

Based on the pleadings, Trial Court framed the following issues.

"(i) whether the plaintiff proves that the suit schedule properties are the ancestral and joint family properties of himself and defendants?

(ii) whether he further proves that he has got 1/3rd share in the suit schedule properties and he is entitled for partition and separate possession of 1/3rd share by metes and bounds?

(iii) whether he is entitled for mesne profits?

(iv) whether he is entitled for partition and separate possession as sought for?

(v) to what reliefs the parties are entitled?

Additional Issues:

(i) whether 3rd defendant has 1/4th share in the suit schedule properties?

(ii) whether the suit is not maintainable as contended in para 9 of written statement of 3rd defendant?"

Plaintiff has examined himself as PW-1 and three witnesses as PWs-2, 3 & 4. Exs. P-1 to P-32 have been produced and marked. 1st defendant has examined himself as D.W. -1 and examined two witnesses by name Manjunatha and Renuka as D.Ws.-2 & 3. Exs. D-1 to D-19 have been produced and marked.

The Trial Court, on appreciation of evidence on record, has dismissed the suit holding that as the plaintiff had not included the machineries/movables in the workshop, the suit was not maintainable. Aggrieved by the judgment and decree, plaintiff has filed the present appeal.

I have heard the learned Counsel for all the parties. They have taken me through the pleadings, evidence and the judgment under challenge. In the light of the contentions urged by them, following points arise for consideration in this appeal.

"(i) Whether the plaintiff has established that suit properties are the joint family properties consisting of himself and defendants 1 to 3 wherein he has got 1/3rd share?

(ii) Whether the Trial Court has committed any illegality in dismissing the suit on the ground that certain machineries in the workshop had not been included in the plaint schedule and therefore, the suit was not maintainable, and plaintiff was not entitled for partial partition?"

The Trial Court has found that plaintiff has failed to establish that suit schedule properties were ancestral joint family properties of himself and the defendants. It has recorded a finding that although plaintiff had contended that he had contributed from his own earnings for the establishment of the workshop by availing loan in his own name, he had failed to produce any document to show that he had contributed financially to the 1st defendant by producing any document. Therefore, Item No. 2 property has been held to be self-acquired property of the 1st defendant. The Trial Court has found that 1st defendant had asserted that he had availed loan from Housing Board Society and that he had sold a site in Kumarapatanam and that Item No. 2 of the suit schedule property was granted in his name by the Government. All these facts have been admitted by the plaintiff in his evidence. In the light of this admission, the Trial Court has found that 1st defendant was the absolute owner of Item No. 2 property. It has disbelieved the version of the plaintiff that Item No. 1 property was purchased out of the contribution made by the plaintiff from the income derived from the workshop by him. These findings recorded on Issue No. 1 cannot be characterized as perverse or illegal. They are based on the admission made by PW-1 and the evidence of D.W. -1. The Trial Court has rightly found that till the year 1988, plaintiff was not engaged in any employment, and therefore, it was highly improbable that during 1989 when he started the workshop, he had any money with him. No documents are produced in this regard. His admission that after three years from the date of completion of his studies, he started the workshop, has been rightly taken note of by the Trial Court to hold that he could not have invested his own money for the establishment of the workshop.

Plaintiff has admitted that he had not maintained any account with regard to the loan obtained and the machineries purchased and as also the income derived from the workshop and how the said income had been spent. The documents produced by him have been considered and appreciated by the Trial Court while coming to the conclusion that merely because he had produced certain proforma delivery challans and invoices, it could not be concluded that machineries had been purchased by him out of his own earnings. The Trial Court has also rightly taken note of the evidence of the uncle of the plaintiff - Manjunath who is none other than the brother of 1st defendant, regarding the financial help extended by him. Thus, the Trial Court has rightly come to the conclusion that machineries purchased were the properties of the joint family consisting of plaintiff and defendants.

As regards the nature of Item No. 2 property, though the land was granted by the State Government, the same cannot be treated as self-acquired property of the 1st defendant and exclusively owned by him. The grant has been made in his name when the family consisting of plaintiff and defendants were joint. Therefore, such grant by the State Government made in favour of the kartha of the family cannot be termed as a grant exclusively made in favour of the said person and that members of the family did not have any right over the same. The grant, in such circumstances, has to be treated as grant in respect of the entire family, and therefore, plaintiff and all the other defendants are entitled for the same. Even otherwise, in the facts and circumstances of the case, 1st defendant has not treated this land as his exclusive property. He has put it for common use for the members of the family. Therefore, the property has been placed in common hotchpot for the enjoyment of all the members of the family. Hence, Item No. 2 of the suit schedule property has to be regarded as joint family property.

In so far as Item No. 1 is concerned, 1st defendant himself has admitted that it is a joint family property, in which all the members of the family have got right. Therefore, it has to be held that Item Nos. 1 & 2 of the suit schedule properties are the joint family properties.

In so far as the finding recorded by the Trial Court regarding the maintainability of the suit without including the machineries found in the workshop in Schedule B Property and the consequent finding that suit was required to be dismissed on that ground, I am of the view that the approach adopted by the Trial Court is erroneous.

It is the case of the plaintiff that machineries and several movable properties of the workshop had been purchased by him exclusively out of his earnings, and therefore, he was exclusively entitled for it. In such circumstances, he could not be expected to include them in the suit scheduled conceding any share in favour of the defendants. It was for the defendants to take up necessary plea holding that the said properties were also joint family properties and therefore they were entitled for a share in those movable properties. Indeed, such a defence has been taken by defendants 1 & 2.

The Trial Court has rightly found that plaintiff has failed to establish that the machineries in the workshop were his absolute properties. In fact, he had contended that the entire workshop belonged to him and it was he who started the same with his own earnings and out of the loan obtained from the bank. But, this has not been proved. Therefore, the natural consequence in respect of the machineries found in the workshop would be that all the members of the family would be entitled to a share.

The nature of the machineries, their description has been found in the evidence on record. In fact, defendants 1 & 2 in their written statement at paragraph 7 have described 14 machineries which were in existence in the workshop. They have contended that after the institution of the suit, taking advantage of the ex parte order of temporary injunction, plaintiff had removed the said materials from the workshop. Evidence on record discloses and in fact the findings recorded by the Trial Court supports the fact that all these machineries are in possession and enjoyment of the plaintiff. Therefore, question of dismissing the suit on the ground that these machineries were not included in the plaint schedule does not arise. Plaintiff is required to account for these machineries and defendants will be entitled to have a share in the machineries or share in the value of the machineries at the time when the final decree proceedings are drawn. Therefore, dismissal of the suit on the ground that machineries had not been mentioned in the plaint schedule is totally erroneous.

As regards the share to which all the parties are entitled, there cannot be any dispute that 3rd defendant who is a family member is entitled for equal share along with the co-parceners having regard to the amendment brought to the Hindu Succession Act. Plaintiff did not choose to implead her initially, and therefore, he had sought for 1/3rd share in the suit schedule property. Subsequently, 3rd defendant has come on record and has filed her written statement. The Trial Court has rightly come to the conclusion that she will be entitled for equal share in the joint family properties. Therefore, it has to be held that plaintiff and defendants are entitled for 1/4th share each in the suit schedule properties. Hence, points raised for consideration are answered accordingly.

In the result and for the foregoing, this appeal is allowed in part. The judgment and decree of the Trial Court is modified. The suit filed by the plaintiff is partly decreed holding that he is entitled for 1/4th share in all the suit schedule properties. As the plaintiff has claimed that he is in possession of the workshop and the house and has been enjoying the income derived from the workshop, question of directing enquiry into the mesne profits will not arise. However, at the time of drawing up of final decree, machineries in the workshop claimed to be in possession of the plaintiff shall be accounted for by the plaintiff and defendants will be entitled for equal share in the same. Parties to bear their respective costs.