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Judgment
A.S. Pachhapure, J.—The appellants have challenged the judgment and decree of the Trial Court granting relief of partition and separate possession in the suit properties and dismissal of their appeal by the First Appellate Court. The facts relevant for the purpose of this appeal are as under:
Parties will be referred as per their rank before the Trial Court for the sake of convenience.
The appellants herein are defendants 1 and 2 and respondents 1 to 3 are the plaintiffs whereas other respondents are defendants 3 to 11. Respondents 1 and 2 instituted the suit for partition and separate possession of their share in the suit properties at Sl. Nos. 1 to 11 described in the schedule to the plaint. One Korachappa the propositus had two daughters by name Yellamma and Dyavamma. Dyavamma died issueless and she is said to have executed the Will in favour of second defendant. Korachappa had gifted the properties at Sl. Nos. 2, 6, 9 and 10 to the said Dyavamma under a gift deed, whereas eldest daughter had two sons by name Venkataswamygowda and Yelachegowda. Her daughter by name Venkatamma died without leaving any legal representatives. Venkataswamygowda had two wives and defendant No. 1 is his son, whereas the second wife is plaintiff No. 1 and plaintiffs 2 and 3 are their children. All the suit properties were the joint family properties. As the defendants did not give the share of plaintiffs in the suit properties, the present suit came to be instituted.
Defendants 1 and 2 filed written statement denying the allegations made and it was their contention that all the suit properties were gifted by Korachappa to his daughter Dyavamma who in turn under a Will bequeathed the suit properties to second defendant. Hence, it was their contention that the plaintiffs cannot maintain a suit for partition.
On the basis of these pleadings, the Trial Court framed the issues and permitted the parties to lead their evidence. Accordingly, plaintiff examined herself as PW1 and two witnesses P.Ws. 2 and 3 and in their evidence, documents Exs. P1 to P33 were marked. The second defendant was examined as DW1 and two witnesses D.Ws. 2 and 3 and in their evidence, documents Exs. D1 to D3 were marked. During the pendency of suit, an application was filed by the plaintiffs to delete the properties at Sl. Nos. 2, 6, 9 and 10. The amendment application was allowed and the said properties were deleted from the schedule to the plaint. The Trial Court heard the respective counsel for parties and on appreciation of the evidence on record, decreed the suit as prayed for. Aggrieved by the judgment and decree, the defendants 1 and 2 preferred RA No. 68/2006 and it came to be dismissed on merits. Aggrieved by the concurrent findings of the Courts below, the present appeal is filed.
At the time of admission, this Court has raised the following substantial question of law for consideration:
When the plaintiffs had deleted the suit properties at Sl. Nos. 2, 6, 9 and 10 by amending the plaint, whether the Courts below was justified in granting share in those properties as well?
I have heard learned Counsel for both the parties.
It is the submission of learned Counsel for the appellants that the suit properties are not joint family properties and the plaintiffs herein were ousted from joint possession by gift deed executed by Korachappa in favour of second daughter Dyavamma who in turn under a Will had bequeathed her properties to the second defendant. Therefore, it is the contention that the Courts below committed an error in granting the share in suit properties. It is his further contention that plaintiffs were not entitled to the share in the properties at Sl. Nos. 2, 6, 9 and 10 as the plaintiffs themselves by an amendment to the plaint had deleted these properties and therefore, inclusion of these properties in the decrees of Courts below is improper and erroneous.
On the other hand, learned counsel for the respondents has supported the judgment and decrees of the Courts below.
Perusal of the material placed on record would reveal that the plaintiffs had filed an application for amendment of plaint and the said application was allowed and at the instance of plaintiffs, suit properties i.e., item Nos. 2, 6, 9 and 10 were deleted. This amendment was carried out by deleting the said properties from the schedule to the plaint. In such circumstances, the plaintiffs were not entitled to the share in the aforesaid properties. The decrees of both the Courts below to the extent of granting share in the suit properties i.e., suit item Nos. 2, 6, 9 and 10 needs modification.
So far as the contention that the properties were in exclusive possession of Dyavamma and she bequeathed all these suit properties in favour of second defendant has not been proved satisfactorily by the appellants in the Courts below. The gift deed which is said to have been executed inclusive of the properties of 2, 6, 9 and 10 is not in respect of other properties. So when the other properties were not gifted by Korachappa in favour of second daughter, the question of Dyavamma being in possession of the aforesaid properties does not arise for consideration. In these circumstances, on the basis of material placed on record and the evidence adduced the Courts below have rightly granted the share in other properties except the properties at Sl. Nos. 2, 6, 9 and 10. Hence, the substantial question of law is answered in ''Negative''.
In the result, the appeal is allowed in part. The judgment and decrees of the Courts below are modified by deleting the properties at Sl. Nos. 2, 6, 9 and 10 and affirming the judgment and decrees of the Courts below so far as properties at Sl. Nos. 1, 3 to 5, 7, 8 and 11.
Draw a decree accordingly.