Subhadra vs K.M. Naresh

K.L. Manjunath, J.—Though matter is listed for orders, by consent of the parties, the appeal is heard on merits.

The appellants were the plaintiffs in O.S. No. 3356/2003 before the City Civil Court, Bangalore. Plaintiffs filed the suit for partition and separate possession of 5/10th share in all the plaint schedule properties. The appellants are the married daughters of one Late Nageshwara Rao. Defendant Nos. 1 to 3 are the brothers of the plaintiffs. Defendant Nos. 4 to 8 are the legal representatives of deceased K.M. Ramachandra Rao, the first son of Nageshwara Rao.

According to the plaint averments, the father of the plaintiffs Nageshwara Rao was an employee in a dyeing factory situated at Jumma Masjid, Bangalore. Out of his savings, he had purchased two sites measuring 60x40 feet each situated at No. 20, Ist Main Road, CKC Garden, Bangalore. After purchasing the sites, he started his own dyeing factory at No. 20, CKC Garden, Lalbagh Road, Bangalore. Out of the business income, a building was constructed by him on the sites purchased by him, which is described as suit item No. 1 and it is his self acquired property. Nageshwara Rao died intestate. He had also purchased sites at Hanumanthanagar, Konnanakunte and Thavarekere in the name of his sons. Out of the income by the dyeing factory, another property was purchased at 1st A Cross, Nanjappa Block, Adugodi, Bangalore, which is described as suit item No. 2 and though, it was purchased by the father of the plaintiffs, it was purchased in the name of the mother of the plaintiffs Smt. Amba Bai. After the death of Nageshwara Rao in the year 1987, the mother of the plaintiffs constructed a house in the suit item No. 2. The site purchased at Hanumanthanagar was sold by them and presently there are only two properties, which are suit item Nos. 1 and 2. In the circumstances, suit is filed claiming partition and separate possession equally in both the properties.

The defendants contested the suit. According to them, the suit filed by the plaintiffs was not maintainable. It was specifically contended by the defendants that during the life time of their father, he had divided the suit item No. 1 equally to his sons under the registered partition deed dated 28.6.1985 and since then they are in possession of the respective shares allotted to them, which fact is known to the plaintiffs. According to the defendants, the suit filed by the plaintiffs is barred by limitation. In the circumstances, they requested the Court to dismiss the appeal.

On the basis of the above pleadings, following issues came to be framed by the Court below:

1) Whether the plaintiffs prove that suit properties are the joint family properties consisting of themselves defendants and they are in joint possession as alleged?

2) Whether the defendants prove the factum of partition under the registered partition deed dated 28.6.1985 as alleged in para-7 of the written statement?

3) Whether defendants prove that suit item No. 2 property is the self-acquired property of Ramachandra Rao and defendants No. 1 to 3 as alleged?

4) Whether the plaintiffs are entitled for partition and separate possession of joint 5/10th share in the suit schedule properties as prayed?

5) To what reliefs, if any, the parties are entitled?

Addl. Issue

Whether plaintiffs are entitled for mesne profits? If so, to what amount and from whom?

To prove their contentions, on behalf of the plaintiffs plaintiff No. 1 has been examined as PW-1 and they have relied upon 3 documents. On behalf of the defendants, defendant No. 1 and defendant No. 9 have been examined as DW-1 and 2 respectively and they have relied upon 2 documents.

The Trial Court after appreciating the evidence let in by the parties held issue No. 1 and 4 in partly affirmative, issue No. 2 in the affirmative, issue No. 3 in the negative and additional issue in the negative and consequently decreed the suit in part holding that plaintiffs are jointly entitled for partition and separate possession of their 5/10th share in the suit item No. 2 and dismissed the suit in respect of item No. 1 Challenging the non-granting of decree for partition and separate possession in respect of item No. 1, the present appeal is filed.

Even according to the plaint averments and the admission of the parties, the suit item No. 1 was the self acquired property of the father of the plaintiffs. In respect of suit item No. 2, though it was self acquired property of their father, it was purchased in the name of their mother Smt. Amba Bai. Since Amba Bai died intestate, after her death, suit item No. 2 has been rightly divided amongst all her children equally. Therefore, we cannot find fault with the non-granting of share to the plaintiffs in suit item No. 1. Moreover, the judgment and decree of the Trial Court in regard to granting of share in suit item No. 2 has become final, since the defendants have not challenged the same. The only question is that if suit item No. 1 was the self acquired property of Nageshwara Rao and if he has divided this property amongst his children under a registered partition deed. vide Ex. D-1, whether such partition can be questioned by the plaintiffs and whether plaintiffs are entitled for a share. The plaintiffs are not questioning the partition effected by their father vide Ex. D-1 in the year 1985, a registered document. When the plaintiffs are not attacking the partition deed effected by their father dividing item No. 1 in favour of his sons, we are of the view that the plaintiffs cannot claim share in suit item No. 1 contending that it is self acquired property of their father and their father died intestate. Even if their father died intestate after disposing of the property in the manner known to law through a registered partition deed and when the registered document is not questioned by the plaintiffs, the plaintiffs cannot have any grievance in not granting share in their favour.

In the result, we do not see any merit in the appeal. Accordingly, the appeal is dismissed.