AI Structured Summary
Not yet generated for this judgment
Judgment
N. Kumar J.
This is defendants'' appeal challenging the judgment and decree of the Trial Court which has decreed the suit of the plaintiff as prayed for granting one-half share in the plaint schedule property.
The subject matter of the suit is land with dwelling house, cut house and other buildings and erections thereon forming part of Old No.12, and New No.26, building situated on Richmond Road, Richmond Town Civil and Military Section, bearing present New No.79, Richmond Road Bangalore, measuring on the East 203 ft., on the West 195 ft., on the North 100 ft., and on the South 100 ft. bounded by the boundaries as clearly set out in the schedule to the plaint (hereinafter referred to as schedule property).
The defendant M.S. Lakshmipathi Naidu is the brother of the plaintiff M.S. Govindaarahulu Naidu. They are the only two sons of Late M.V. Sreeramalu Naidu @ M.V. Raju. The father of the plaintiff and the defendant died on 11.02.1963. During his life time he has purchased the plaint schedule property under a registered sale deed dated 22.11.1946. From the date of his purchase till the date of his death, their father was in possession, and enjoyment of the schedule property. After the death of their father, the plaintiff and defendant are entitled to succeed to the schedule properly as lawful and, legal heirs in equal share Defendant being the elder brother and the eldest son of their father, got the Katha of the entire schedule property changed to his name long back. Plaintiff and defendant are in physical possession and enjoyment of the suit schedule property. The plaintiff has been deranging for partition and separate possession of his one-half share in the schedule properly. The defendant has been giving some untenable replies and has failed to effect partition and give plaintiff his one-half share in the schedule property. He has also failed to give one half of the rents and proceeds of the suit schedule property, though the plaintiff lawfully and legally is entitled to the same. Therefore, the plaintiff got issued a legal notice dated 06.03.1970 calling upon the defendant to effect partition and to pay one half of the rents and proceeds of the suit schedule property, for which the defendant gave an untenable reply. However as per the advice of the elders and well wishers, the plaintiff agreed to wait for some time The defendant did not give him his share. Therefore, again he got issued a legal notice dated 29.11.1988 demanding partition. The defendant sent an untenable reply denying the plaintiffs claim. Therefore, he was constrained to file a suit for partition and separate possession of his one-half share in the plaint schedule property and for mesne profits.
After service of summons, the defendant entered appearance and filed his written statement. The relationship between the parties was not disputed. The execution of the sale deed in respect to the schedule property in favor of their father was not disputed. However, he denied that their father purchased the schedule property out of his own funds. He denied plaintiffs possession over the suit schedule property. It is his specific case that the plaintiff was newer in possession of the suit schedule property at any time either along with the father or with the defendant. Even after the demise of their father he was not in possession. The plaintiff had deserted the family in 1940, He converted form. Hindu religion to Christian religion and became a Christian. Thereafter he married a Christian woman according to the customs and rituals of the Christian religion. The plaintiff deserted the family of the defendant and his- father and went out of the fold of Hindu religion and he seized to be a Hindu by religion. The plaintiff is not entitled to succeed to the schedule property as lawful legal heir. The Hindu Succession Act applies to a person who is a Hindu by religion and a co-parcener or co-owner as the case may be in a family which is governed by the provision of Hindu Succession Act. The plaintiff having converted himself into a Christian, be cannot claim the status of a Hindu and as he cannot either claim that he is the co-owner or co-parcener in the family consisting of his father, defendant and himself. The property in the hands of their father was not ancestral ''property or was his self-acquired property. But the property stood nominally in the name of the father of the defendant and it is only the defendant who will inherit the property since the plaintiff has already ceased to be a Hindu and the property is not either joint family property or the co-parcenary property at the hands of Late M.V. Sreeramalu Naidu. The plaintiff is residing at No.42, Langford Road Cross, Shantinagar, Bangalore - 25 and be is not in possession, of any portion of the plaint schedule property. The plaintiff has suppressed the contents of the earlier legal notice. Their father was a chronic patient and was ailing from 1933 onwards and one of his lung was not functioning and he was under the care and protection from 1935 onwards with the defendant He was not able to work or earn anything on account of his serious illness and he was confined only to the bed. It is the defendant who has worked in the Garage, with his hard work the defendant was able to earn money and had purchased the property by paying the sale consideration in the name of his father. The plaintiff deserted his ailing father and mother in the year 1936 and had become a Christian and had married a Christian woman and had got children. There were litigations between the father of the defendant and the defendant against Palai Central Bank and Shambumal Gangaram Bankers vs. S.R. Ramaswamy Iyengar. The defendant who fought the cases and the property which is the subject matter of this suit having been attached, defendant paid the amount to the decree holders and got the attachments removed. In para 9 of the plaint it id specifically pleaded that the plaintiff was excluded from having possession and enjoyment of the schedule property and the allegation made by the plaintiff that he is in joint possession and enjoyment of the suit schedule property is a utter false one. Defendant filed a suit O.S.No.228/1978 (old) O.S.No.4312/1980 (new) against the tenants for recovery of arrears of rent. The defendant has sent a reply to the legal notice issued by the plaintiff claiming partition. At para 11, he categorically states that the suit schedule properly is not a joint family property of M.V. Sreeramalu Naidu. It is the self-acquired property of the defendant. The plaintiff is not entitled to claim partition of the said property. The plaintiff is ousted from making any claim or seeking partition of the schedule property. Therefore, he is not entitled to claim partition. The suit is barred by limitation since the first notice was issued on 06.03.1970 and the suit having been filed in 1993. The suit is not properly valued and the suit filed u/s 35(1) of the Karnataka Court Fees and Suits Valuation Act, Court fee paid is insufficient. The defendant has exercised absolute ownership over the schedule property. By filing suit against the tenants, he is in continuous possession and perfected the title lay-prescription. He has exercised the right of ownership by collecting rent and without sharing the income from the property with the plaintiff. He has paid taxes. The plaintiff allowed the defendant to exercise the ownership of the schedule property, but the defendant has openly asserted and hostile title against the plaintiff and the defendant is in exclusive possession and therefore, the suit Sled after 12 years from the date of exclusion of the plaintiff from the schedule property is not maintainable. Therefore, he sought for dismissal of the suit. An additional written statement also came to be filed after the death of the plaintiff contending that the plaintiffs wife Anthamma, who is the legal heir to the estate of the plaintiff is not made a party to the suit and the suit for, partition without impleading her is barred by non joinder of necessary parties.
On the aforesaid pleadings, the Trial Court framed the following 6 issues;
1) Is the plaintiff entitled to one-half share of the suit property and separation and for possession?
2) Is the suit property self-acquired property of the defendant?
3) Is the suit property the joint family of the plaintiff and defendant?
4) Is the suit barred by limitation?
5) Does the defendant prove that the plaintiff has last his right if any over the suit property by ouster?
6) To what, relief?
Subsequently, it framed the following additional two issues on 26.03.1997:
1) Whether the Court fee paid by the plaintiff is insufficient?
2) Whether the plaintiff has undervalued the property?
It recasted additional issue No. 1 on 21.09.1999:
Whether the plaintiff proves that proper Court fee has been paid, on the plaint?
One more additional issue was framed;
Whether the first defendant proves that the suit-is bad for non-Joinder of necessary party as contended in his additional written statement?
The plaintiff in order to substantiate his claim examined his son G. Rajkumar as PW.1 and produced 9 documents which are marked as Exa.P1 to P9, On behalf of the defendant no witness was examined. Defendant did not step into the witness box. However, 4 documents such as legal notice and reply which are admitted in the case were confronted to PW. 1 and they were marked as Exs.D1 to D4.
The Trial Court on appreciation of the aforesaid oral and documentary evidence on record held that the defendant has failed to establish that the plaint schedule property is the self-acquired property. It held that the property belongs to the father of the parties who died intestate living behind his two sons. On his death, the plaintiff and defendant are entitled to one half share in the schedule property. It also held that defendant did dot enter into the witness box. His plea is that the sale deed in favor of his father is a nominal one and he paid the entire sale consideration, is not established- It also held that the plea of exclusion and ouster is not proved as no evidence is adduced in support of the said contention. Therefore, it held that the suit is not barred by time. Though the wife of the plaintiff was not made a party, it held that in suit between two brothers the estate of the plaintiff was sufficiently represented and therefore, on that score it cannot be held that the suit is not maintainable. It also held that the plaintiff is deemed to be in joint possession of the schedule property and therefore, valuation of the suit u/s 35(2) of the Karnataka Court Fees and Suits Valuation Act is proper. Accordingly, the suit came to be decreed as prayed for. Aggrieved by the judgment and decree the defendant has preferred this appeal
In the appeal the defendant has also filed additional application under Order 41 Rule 27 for production of additional evidence. The additional evidence sought to foe produced are in the nature of documents showing that he has paid money to creditors when the property was attached, suits were filed and therefore, in the event the decree is to ''be confirmed. Plaintiff who is entitled to one-half share also he made liable for this liability to the extent of the share granted in his favor.
Learned Senior Counsel appearing for the appellant assailing the impugned order contended that the case falls under article 110 of the Limitation Act which provided that a suit, by a person excluded from a joint family property to enforce a right of share therein is to be filed within 12 years from the date of execution becomes known to the plaintiff. He contended in the year 1978, when the plaintiff issued a legal notice claiming one-half share in the property, the said notice was duly replied. He specifically contended that the plaintiff is not in possession of the plaint schedule property, he has been excluded and therefore, the suit for partition commences from the date of the said reply notice, Admittedly the suit is filed 23 years thereafter and therefore, suit is clearly barred by time. This aspect has not been property considered by the Trial Court and therefore, he submits the judgment and decree of the Trial Court is liable to be set aside.
Per contra, learned counsel for the plaintiff supported the impugned order.
In the light of the aforesaid facts and rival contentions, the point that arise for our consideration is:
Whether the suit is barred by time and falls within the mischief of article 110 of the Limitation Act, 1963?
The facts are not in dispute. The plaintiff and the defendant are brothers. The suit schedule property was purchased in the name of their father under the registered sale deed dated 22.11.1946. The plaintiffs'' father was in possession of the schedule property till his death. He has died intestate leaving behind his two sons. Therefore, plaintiff'' and defendant are entitled to one-half share each in the schedule property. It is the case of the defendant that though the property was purchased in the name of the father, the entire consideration mentioned in the sale deed for purchase of the suit schedule property was paid, by the defendant. The sale deed was nominally taken in the name of the father. In fact, the schedule property is his self-acquired property. In order to establish his case he did not step into the witness box. He has not produced any documents before the Trial Court to show that the consideration for sale has flown from him. Be has not produced any documents to show what was the income he was earning, what was the source of income and he has also not established why the property was purchased in the name of the father when he did not step into the witness box, burden of proving this issue is on the defendant and the Trial Court committed no illegality in holding that the case set out by the defendant is not proved. Insofar as limitation is concerned, the plaintiff in the year 1970 issued a legal notice calling upon the defendant to partition the property and give his shore after the death of his father, it is dated. 06.03.1970, It was replied contending that the plaintiff has no right, it is the self-acquired property of the defendant and therefore, the plaintiff is not entitled to a share
Article 110 of the Limitation Act applies to a case where the property under dispute should be a joint family property. Therefore, before a person invokes aid of article 110 he must admit the property in dispute is a joint family property, he must concede the right of the plaintiff to a share in the joint family property. When the plaintiff who has a share in the joint family property has been excluded from the enjoyment of the schedule property then the period of limitation for filing a suit to seek share and possession commences form the date of exclusion becomes known to the plaintiff. This is broadly described as a plea of ouster. Though a plea of ouster is taken in the written statement when the defendant has not stepped into the witness box to substantiate the plea of ouster, the plea has remained as a plea and therefore, the Trial Court on appreciation of the entire evidence on record, the statutory provisions governing the case and the judgments tendered by various courts on the point rightly held that a plea of ouster is not established. Therefore, suit for partition is not barred by time.
In that view of the matter, we find no infirmity with the well considered judgment of the Trial Court Hence, we pass the following order:
ORDER
No merit. Appeal is dismissed.