AI Structured Summary
Not yet generated for this judgment
Judgment
K.L. Manjunath, J.—All these appeals arise out of judgment and decree passed by the Civil Judge (Sr. Dn.) Mandya in O.S. No. 25/1993. The appellant in R F A No. 428/2005 is the first defendant in the aforesaid suit. He died during the pendency of this appeal. His L.Rs.. are prosecuting the aforesaid appeal.
R F A No. 429/2005 is filed by Mahadev, who was defendant No. 4 in the suit.
R F A No. 430/2005 is filed by M Krishna, who was defendant No. 5 in the suit.
R F A No. 431/2005 is filed by one Nagarathna, who was defendant No. 6 in the suit.
Since all these appeals arise out of the judgment and decree passed in one suit, all these appeals are heard together. For the sake of convenience, the parties would be referred to as per their status before the court below.
The plaintiff Chandramohan filed the suit for partition and separate possession of his one-sixth share in the plaint schedule property. According to him, the defendants 2 to 5 and one Mahadev who was husband of the 6th defendant are the sons of the first defendant Madaiah. At the first instance, suit is filed against defendants 1 to 6 contending that they are the members of the Hindu Undivided Joint family and the suit schedule properties are their joint family properties. Each of them is having equal share. Accordingly the suit is filed for partition and separate possession of his one-sixth share. Later defendants 7 to 9 came on record by filing an impleading application contending that the 7th defendant Madaiah is the younger brother of first defendant Madaiah and defendants 8 & 9 are the children of 7th defendant and they are entitled to one-half share in all the suit schedule properties since first and seventh defendant are the coparceners and are having equal rights in the suit schedule properties.
The defendants 1 to 5 filed different written statements contending that there is no joint family and there is no joint family properties for partition and separate possession. According to them, the properties purchased by each of the defendants are their self-acquired properties and the suit filed by the plaintiff was not maintainable. Similarly, the defendants 7 to 9 contended that they are entitled for half share on the ground that the first defendant and seventh defendant being the only coparceners and sons of late Kenchegowda, the joint family properties were not divided. In the circumstances, they requested the court to grant decree in respect of their half share.
The trial court framed the following issues:
(1) Whether the plaintiff proves that there was sufficient joint family nucleus to acquire the suit properties?
(2) Whether the plaintiff proves that the suit properties are all their joint family properties?
(3) Whether the defendant-1 proves that the suit item No. 1, 5, 12 and 13 are his self acquired properties?
(4) Whether the defendant-6 proves that the suit items No. 4, 6, 7 are her separate properties?
(5) Whether the suit item No. 8 covers the suit item 97?
(6) Whether the defendant-4 proves that the suit items No. 2, 3, 8, 9 and lorry on CNK 6896 and lorry No. CNO, 9327 are his self-acquired properties?
(7) Whether the defendant-5 proves that the suit item No. 11 & 12 lorries (CTX 8942, CNX 5994) are his self acquired properties?
(8) Whether the plaintiff is entitled for share, if so, what is it and in which of the suit properties?
(9) What order or decree?
In order to prove their respective contentions, the plaintiff was examined himself as PW-1 and relied upon the evidence of PW-2 to PW-5. On behalf of the defendants, in all 19 witnesses were examined. The plaintiff relied upon Ex. P1 to P49. The defendants relied upon Ex. D1 to D37. The trial court after appreciating the evidence let in by the parties, held issues 1, 2 & 5 in the affirmative, issue Nos. 3, 4,6 & 7 in negative and decreed the suit of the plaintiff that plaintiff and defendants 1 to 5 are entitled to 1/12th share and defendant Nos. 7 to 9 are entitled to one-sixth share by the judgment and decree dated 28.01.2005. Challenging the legality and correctness of the judgment and decree of the court below, these four appeals are filed by the defendants.
We have heard the Learned Counsel for all the parties.
The main contention of Sri M Shivappa, learned Senior counsel appearing for the appellants is that the trial court has committed serious error in holding that there is a joint family and the joint family possessed joint family properties and he further contends that granting one-half share in favour of the defendants 7 to 9 is wholly misconceived and unheard of, because the court below did not frame any issue in regard to the rights of the defendants 7 to 9 and no evidence is given in regard to their rights. In the circumstances, only on this technical ground, the judgment and decree of the trial court has to be set aside. He further submits that when the plaintiff has failed to prove issue Nos. 1 & 2, the question of granting decree in respect of the property purchased by the respective defendants either to the plaintiff or to defendants 7 to 9 does not arise for consideration. He further submits that, there is nothing on record to show that the first defendant had inherited any property from his father or he succeeded any property from his father and out of such nucleus, he had acquired the properties standing in his name and he further contends that no evidence is let in by the plaintiff or defendants 7 to 9 that the properties standing in the name of defendants 2 to 5 are acquired out of such joint family income or nucleus. In the circumstances, he requests the Court to allow the appeal and set aside the judgment and decree passed by the court below.
The Learned Counsel for the respondents made their sincere efforts to support the judgment and decree of the trial.
Having heard the counsel for parties, we have to consider the following points in these appeals:
(1) Whether the court below is justified in granting the decree in favour of defendants 7 to 9 without framing issues in regard to their rights and evidence on those issues?
(2) Whether the trial court is justified in granting decree in favour of the plaintiff in respect of his alleged 1/12th share? And
(3) Whether the judgment and decree of the court below has to be confirmed or set aside?
The relationship between the parties are not in dispute. The dispute is only in regard to the nature of properties held by the defendants 1 to 6. Whether these properties were the self-acquired properties of the defendants or were acquired cut of the joint family nucleus and whether there was any joint family property and similarly whether the defendants can claim half share in all the plaint schedule properties.
So far as these points are concerned, admittedly the court below has failed to frame issue in regard to the rights of defendants 7 to 9 in order to grant half share in plaint schedule property. Without there being proper pleadings, issues and evidence, no court can grant a decree in favour of defendants 7 to 9. Therefore, granting of share in favour of defendants 7 to 9 is unknown to civil jurisprudence and therefore on this count alone the entire judgment and decree has to be set aside. Similarly, the trial'' court has proceeded with the presumption that if there was a joint family and the joint family had joint family properties and the first defendant had inherited or succeeded to Such properties and out of such income, the suit schedule properties were acquired. But in order to give its finding, the trial court has not assigned any reasons and similarly there is no discussion about the properties acquired by the first defendant or other defendants in order to grant a decree to the plaintiff. In the circumstances, we have no other option than to remand the matter by setting aside the findings on all the issues with a direction to frame proper and appropriate issues considering the written statement of defendants 7 to 9 and then proceed with the matter in accordance with law. It is also open to the defendants 1 to 6 to file a reply statement to the claim made by the defendants 7 to 9 as they are seeking partition and separate possession as defendants in the suit filed by the plaintiff by impleading themselves as parties subsequent to the suit. In the result, all these appeals are allowed. The judgment and decree passed by the Civil Judge (Sr.Dn.) at Mandya dated 28.1.2005 in O S No. 25/93 is hereby set aside. The matter is remanded to the trial court for fresh consideration. It is open for the defendants 1 to 6 to file their reply or written statement to the claim made by defendants 7 to 9 and we further direct the trial court to frame issues based on the claim of the defendants 7 to 9 and giving opportunity for the parties to amend their pleadings and by giving opportunity to the parties to lead any further evidence. dispose of the suit in accordance with law within a period of six months from today. Parties to bear their own costs.