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Judgment
V. Suri Appa Rao, J.—These appeals are filed challenging the judgment and decree in O.S. No. 7944/2003 on the file of XXII Addl. City Civil Judge, Bangalore, whereby the learned XXII Addl. City Civil Judge, Bangalore (hereinafter referred to as the ''Trial Court'' for brevity) by its judgment dated 08.07.2005 dismissed the suit of the plaintiffs for partition and separate possession of 1/5TH share each and allowed the claim of the second plaintiff for relief of injunction in respect of her possession and enjoyment of the first floor in item No. 3 of the suit schedule property. Being aggrieved by the judgment and decree passed by the Trial Court, the plaintiffs have filed RFA No. 1296/2005, defendant No. 1 has filed RFA No. 1503/2005 and defendant Nos. 2 and 3 have filed RFA No. 1369/2005 praying to set aside the judgment and decree.
For the sake of convenience, the parties are referred to as arrayed in the suit.
Brief facts leading to these appeals are as hereunder:
Marigowda of Vasan Village, Naragund Taluk, Dharwad District had two sons viz., Ramana Gowda Patil (R.M. Patil) and Ningana Gowda Patil. Marigowda had a bit of landed property which was sufficient to eke out his livelihood. He brought up and educated his son R.M. Patil with great difficulty. R.M. Patil did his Degree in Law and started practicing law at Dharwad. Marigowda left the landed property to his elder son Ningana Gowda Patil, who remained as agriculturist. R.M. Patil married Chinnawa and they begot three sons and two daughters viz., the first plaintiff, the husband of second plaintiff Vijay R. Patil and defendant Nos. 1 to 3. Later on, R.M. Patil became Public Prosecutor in Dharwad District Court After resigning the said post, he entered politics during the year 1957 and became a successful politician and was elected as MLA representing Navalgund Constituency Dharwad District for about 15 years. He also served as Cabinet Minister having various portfolios such as Health Minister, Home Minister etc., and mankind knew him for honesty, sincerity and service. The suit schedule properties are the self-acquired properties of R.M. Patil which are situate in Dharwad and Bangalore from out of his own earnings. Item Nos. 1 and 2 of the schedule properties were purchased by him during the year 1956 under the registered sale deeds from its lawful owners. He purchased item No. 3 of the schedule property i.e., site at Palace Orchards bearing No. 399 and he constructed the house in the said site and he was the absolute owner of the same till his death. Item Nos. 4 and 5 were also acquired by Sri R.M. Patil during his lifetime and enjoyed them till his death. While so, on 19.10.1977, R.M. Patil died leaving behind his wife, three sons and two daughters. During his lifetime he had not executed any Will. Consequent upon his death, the khata with respect of the suit schedule item Nos. 1 and 2 were changed in the names of the plaintiff No. 1, husband of plaintiff No. 2 and defendants, whereas the khata with respect to suit schedule item No. 3 continues in the name of late R.M. Patil even to this day.
Chinnavva, W/o Late R.M. Patil also died during the year 1983. Thereafter, the first defendant being the eldest son of late R.M. Patil was looking after the suit schedule properties, for and on behalf of the plaintiffs and other defendants and started living in ground floor of item No. 3 at Bangalore. He used to collect rents for item No. 1 and upstairs of item No. 3 of the suit schedule properties from 1983 onwards. Subsequently, due to the intervention of the elders, the husband of second plaintiff who had no residence at Bangalore occupied first floor of item No. 3 of the suit property in the month of April 2003. Subsequently, her husband expired during the month of July 2003. The first defendant used to collect rents pertaining to the first floor of item No. 3 for and on behalf of the plaintiffs and other defendants and utilised the same for his personal needs without caring for others shares and therefore, he is liable to render accounts for the rents collected by him. The first defendant is using the Car and library of R.M. Patil. The plaintiffs and the defendants being the successors of the self-acquired properties of R.M. Patil are entitled to 1/5th share each with mesne profits.
The first defendant filed written statement resisting the claim of the plaintiffs for mesne profits. He contended in the written statement that the suit filed by the first plaintiff seeking partition and her alleged share with respect to the dwelling house/i.e., item No. 3 in respect of suit schedule property is not maintainable. So also the suit for partition filed by the second plaintiff is also not maintainable, as the second plaintiff is not the member of the Joint Hindu Family. It is contended that the brother of the first defendant late Vijay R. Patil married the second plaintiff according to the custom and the rites of the Christian community and he embraced Christianity. Therefore, the suit filed by the second plaintiff is hit by Section 26 of the Hindu Succession Act, 1955. It is further contended in the written statement that the suit in respect of the other schedule properties is also not maintainable as the first plaintiff got married in the year 1960 and thus the suit filed by plaintiff Nos. 1 and 2 is liable to be dismissed. It is further contended that the suit is also liable to be dismissed for non-joinder of necessary parties i.e., Ningana Gowda Patil, brother of late R.M. Patil, who is no more and his children are necessary parties to the suit. After the demise of Marigowda, there was no partition between his two sons Ningana Gowda Patil and R.M. Patil. The plaintiffs have deliberately not included the joint family properties/ancestral properties of late R.M. Patiland they have not impleaded the children of late Ningana Gowda Patil, elder brother of R.M. Patil. Therefore the suit filed by the plaintiffs for partition is not maintainable.
The first defendant has further contended in the written statement that after the death of his mother Chinnavva Patil, his brother Vijay R. Patil i.e., the husband of the second plaintiff was collecting rents from the suit schedule properties. After evicting the tenants from item No. 1 of the suit schedule property, the said property was kept vacant and it was not fetching any rent. While the first defendant was spending money for engaging watchman to safeguard the property, the plaintiffs and other defendants did not contribute their share. He further contended that the rents collected by him were spent for the education of second plaintiffs husband, who was studying at Indira Gandhi Open University at Bangalore during 1990-92. Thereafter, his brother Vijay R. Patil who was unemployed after coming out of the partnership firm was paid substantial amount from out of the rents collected by him and the said amount was invested for Ambay Project. He also spent rents for maintenance of item Nos. 1 and 3 of the schedule properties for payment of property tax and maintenance of the buildings which was done once in every three years. Further, the second plaintiffs husband had borrowed huge money from one Habib. When he incurred heavy loss in his business he came down to Bangalore and stayed with the first defendant and when the said Habib demanded money,. the first defendant borrowed money from his friend and discharged the entire loan amount incurred by Vijay R. Patil. Thus he never used the rents collected by him for his personal affairs. Moreover he spent more than what he has collected from the suit schedule property.
It is further contended that in the year 1973, the first defendant joined the Chambers of his father R.M. Patil and worked with him till he passed away in the year 1977 and he paid a sum of Rs. 17,500/-towards estate duty. After the death of his father he is continuing the profession and he is a practicing Advocate. Though he worked under his father as junior, he never used to receive any remuneration from his father. From out of his income and his father''s income, the first defendant paid LIC loan obtained for construction of the residential house i.e., item No. 3 of the suit schedule property and therefore, neither the plaintiffs nor defendant Nos. 2 and 3 have any right in item No. 3 of the schedule property.
It is further contended in the written statement that he is not using the FIAT Car which belonged to his deceased father as alleged in the plaint. The Car is idly lying in the shed and there is no need for the first defendant to use the same, since he is having his own car.
Along with the written statement, the first defendant has filed schedule of properties pertaining to item Nos. 1 to 4 and contended that item No. 1 of the said schedule describes that the property was purchased in the name of the first plaintiff and that the entire consideration amount, allotment charges for acquiring the property was paid by his father R.M. Patil.
On the said site, first plaintiff constructed three storeyed building by taking finance of Rs. 45,000/- from the father late R.M. Patil. Therefore, the first defendant is also entitled for a share in item No. 1 of suit schedule property.
It is further contended that the second defendant after his appointment as Engineer in a Company at Hospet took one lorry load of household articles worth Rs. 50,000/ - in those; days.
The site mentioned at item No. 2 in the schedule property mentioned in the written statement, was allotted by the then C.I.T.B in the name of the second defendant. The second defendant acquired the property for and on behalf of R.M. Patil and his family. The consideration and allotment charges were paid by first defendant''s father R.M. Patil and it is fetching rent of Rs. 40,000/-. Out of the said income, the second defendant also purchased item No. 3 and it is also liable for partition.
It is further contended that item No. 4 of the schedule property was allotted by the C.I.T.B in favour of the husband of third defendant. :The entire consideration of Rs. 16,800/- was paid by the first defendant and his father late R.M. Patil. Out of the said amount, the first defendant contributed a sum of Rs. 8,000/-. Therefore, the said property is also liable for partition as it was acquired by the joint family nucleus.
The first defendant further contended that R M. Patil performed the marriage of his sisters viz., plaintiff No. 1 and defendant No. 3 by spending huge amount. He also paid Rs. 34,000/- towards airfare to USA for third defendant and her husband after their marriage. Therefore, the first defendant contends that he is also entitled for 1/4th share in item Nos. 1 to 4 of the schedule mentioned properties attached to the written statement.
The second defendant has filed a separate written statement, wherein it is contended that the properties mentioned in the schedule are self-acquired properties of his father late R.M. Patil. Therefore, he has no objection for partition of the plaint schedule properties.
The third defendant has also filed a separate written statement contending that the plaint schedule properties are self-acquired properties of R.M. Patil. Therefore all of them are entitled for partition and separate possession of 1/5th share in each of the schedule mentioned properties and he has no objection for decreeing the suit for partition.
On the basis of the above pleadings, the trial Court framed the following issues:
Issues:
Whether the plaintiffs prove that the 1st defendant used to collect the rents with respect to Item No. 1 and upstairs portion of item No. 3 and utilized it for his personal use, as alleged in the plaint?
Whether the 1st defendant prove that the 1st plaintiff cannot maintain a suit for partition of the suit schedule properties as contended in Para 2 and 4 of his written statement?
Whether the 1st defendant proves that the suit filed by the plaintiff is bad for non-joinder of necessary parties as contended in his written statement?
Is the valuation made proper and the Court fee paid is sufficient?
Whether the 1st defendant proves that the written statement schedule properties also belong to their joint family as alleged in his written statement?
Whether the defendant No. 1 proves that he is entitled to get 1/4th share as claimed in his written statement?
Whether the plaintiffs and 2nd and 3rd defendants prove that they are entitled to get 1/5th share each?
What order? What decree?
Addl. Issue No. 1:
Whether the 1st defendant proves that the suit filed by the 2nd plaintiff for partition is not maintainable as contended in Para - 3 of his written statement?
Addl. Issue No. 2:
Whether the 1st defendant proves that 1st plaintiff has no right to demand for partition as contended in Para-10 of his written statement?
On behalf of the plaintiffs PWs.1 to 4 are examined and Exs.P1 to P44 are marked. On behalf of the defendants, DWs. 1 to 4 were examined and Exs.D1 to D76 were marked.
Considering the oral and documentary evidence adduced by both the parties, the Trial Court dismissed the suit for partition and granted relief of injunction only in respect of first floor of item No. 3 of the schedule property in favour of the second plaintiff on the ground that the suit for partition is not properly constituted.
The learned Counsel for the appellants-plaintiffs submitted that the plaint schedule properties are the self-acquired properties of late R.M. Patil who died intestate. Therefore the plaintiffs and defendants who are the children of the deceased are equally entitled to share in the properties and hence, the plaintiffs are entitled for partition of schedule properties and for separate possession of 1/5th share each.
Per contra, the learned Counsel for the respondents-defendant No. 1 submitted that the children of Ningana Gowda Patil who are the necessary parties to the suit are not included as parties to the suit. The schedule properties attached to the written statement filed by the first defendant are all purchased in the name of husbands of first plaintiff and defendant No. 3 and second defendant from out of the funds of late R.M. Patil. Therefore, the first defendant is also entitled for a share in item Nos. 1 to 4 of the schedule properties attached to the written statement filed by first defendant.
While answering issue Nos. 3 and 5, the Trial Court has observed that Marigowda father of R.M. Patiland Ningana Gowda Patil possessed ancestral properties consisting of agricultural lands and a residence. After the demise of Marigowda, there was no partition between his two sons namely Ningana Gowda Patil and R.M. Patil. It is further observed by the Trial Court that the first defendant had also not included the ancestral property of his father in the schedule annexed to his written statement, although he contended that the properties standing in the name of plaintiff No. 1, defendant No. 2 and husband of defendant No. 3 described as item Nos. 1 to 4 are also the joint family properties. When defendant No. 1 has made out a case that the said properties mentioned in the schedule to the written statement are also joint family properties, it stands to reason how he could have omitted to include the ancestral properties left behind by the porosities Marigowda in favour of R.M. Patil and Ningana Gowda Patil. It is further observed in the judgment that once the existence of joint family nucleus is established, the question that falls for consideration is whether the joint family nucleus was capable of acquiring any of the suit schedule properties. It is therefore, matter of proof and to contest such case, the parties representing the branch of Ningana Gowda Patil are absolutely necessary and proper parties. It is the case of the plaintiffs that Marigowda, father of R.M. Patil brought up his elder son R.M. Patil and educated him with great difficulty. Therefore, R.M. Patil was able to complete Degree in Law and started practicing law at Dharwad. Late Marigowda left the landed property to the other son Ningana Gowda Patil who remained as an agriculturist. The plaintiffs therefore contend that R.M. Patil has not taken any share in the properties of porosities Marigowda. Therefore, the plaintiffs filed a suit claiming share in the self-acquired properties of late R.M. Patil, who acquired the plaint schedule properties during his lifetime while he was practicing as an Advocate and while he was in politics prior to his death.
The Trial Court has clearly mentioned in para No. 14 of the judgment that the first defendant has Witted to include the ancestral properties left behind by the porosities Marigowda in favour of his sons R.M. Patil and Ningana Gowda Patil in the schedule of the written statement filed by him and that he has chosen to include the properties purchased in the name of husbands of first plaintiff, second plaintiff and third defendant. Thus the conduct of the plaintiffs and defendants in not including the ancestral properties left behind by the porosities Marigowda clearly indicates that their father late R.M. Patil never claimed partition of ancestral properties of Marigowda and he allowed his brother Ningana Gowda Patil to enjoy the properties.
The averments made in the plaint also clearly indicate that the porosities Marigowda allowed Ningana Gowa Patil to enjoy the agricultural properties who remained as agriculturist, while R.M. Patil was got educated by his father Marigowda who settled in the legal profession and subsequently entered politics. When the plaintiffs and defendants are conscious about the fact that their father R.M. Patil never claimed or enjoyed the properties of his father Marigowda and never claimed share in the properties being enjoyed by his brother Ningana Gowda Patil during his lifetime, both the plaintiffs and first defendant have intentionally omitted to mention the properties enjoyed by Ningana Gowda Patil during the lifetime of their father R.M. Patil either in the plaint schedule or in the written statement schedule claiming share in the properties. It is not the case of either the plaintiffs or the defendants that late R.M. Patil has acquired the plaint schedule properties from out of the joint family nucleus consisting of agricultural lands, at Vasan Village. The plaintiffs as well as the defendants contended that item Nos. 1 to 5 of the plaint schedule properties are the self-acquired properties of late R.M. Patil. Neither in the oral evidence nor in the documentary evidence, none of the parties have asserted that their father R.M. Patil purchased the schedule item Nos. 1 to 5 from out of the joint family nucleus consisting of himself and his brother Ningana Gowda Patil. The conduct of Marigowda in allowing his son Ningana Gowda Patil to enjoy the agricultural properties for himself even as per the contention of the plaintiffs clearly indicates that late R.M. Patil during his lifetime never claimed share in the landed properties enjoyed by his brother Ningana Gowda Patil on the ground of ouster. Therefore, the Trial Court was not justified in dismissing the suit for partition on the ground that the children of Ningana Gowda are proper and necessary parties to the suit filed by the plaintiffs. When the first defendant himself has not chosen to claim the share in the properties enjoyed by his paternal uncle Ningana Gowda by adding the properties in the schedule to the written statement, the question of adding the legal heirs of Ningana Gowda in the suit for partition filed by the plaintiffs claiming share in the self-acquired properties of R.M. Patil does not arise.
The oral evidence adduced by the parties and the documents produced by them clearly indicates that item Nos. 1 to 5 of the plaint schedule properties. are self-acquired properties of late R.M. Patil. In the written statement and also in the evidence, the first defendant has categorically admitted that the plaint schedule properties in which the plaintiffs are claiming share, are the self-acquired properties of his father late R.M. Patil. In the cross-examination, at para-6 of the evidence, the first defendant has clearly admitted that Ningana Gowda Patil and his children are not concerned to the suit schedule properties. Admittedly, the suit schedule properties are the self-acquired properties of R.M. Patil. The title deeds in respect of the suit schedule properties stands in the name of late R.M. Patil. He has also admitted in the evidence that after the demise of his father, he gave an affidavit before the revenue authorities seeking change of entries in the name of himself, his brothers, his mother and his sisters. Ex.P45 is the letter addressed by him to the Revenue Authorities. It is further admitted that item No. 3 of the schedule property was allotted to his father by the C.I.T.B. and his father paid the sale price and after obtaining loan and constructed the house in the site. He denied the suggestion that his father alone discharged the debt taken by him for construction purpose. He stated that he and his father discharged the debts by their joint earnings in the year 1975. He further admitted in the cross-examination that in the year 1975, he started practicing and was working as junior to his father and he was not getting any remuneration while working as junior. He further states that has is not having any documentary evidence to show that he also contributed funds for discharge of the said loan along with his father.
In the cross-examination, he has further admitted that item No. 1 of the property mentioned in the schedule to the written statement was allotted to Y.R. Sawkar, husband of first plaintiff in the year 1980. But he contends that his father R.M. Patil assisted financially for construction of the house, but in the evidence he has clearly stated that he has no document to show that R.M. Patil assisted Y.R. Sawkar financially for construction of the house. In the cross-examination he has pleaded ignorance about Y.R. Sawkar availing loan from Karnataka Housing Board and Canara Bank for construction of the house and also does not know whetlier he discharged the loan amount. He has clearly admitted that the documents pertaining to the property bearing No. 409 at Rajajinagar stands in the name of Y.R. Sawkar, husband of first plaintiff who was selected as District Munsiff, in the year 1964 itself.
In the cross-examination, the first defendant further admitted that his brother D.R. Patil, purchased item No. 3 of the schedule property mentioned in the written statement in the year 2001. He also admitted that the property situated in Koramangala was allotted by the BDA in favour of his brother D.R. Patil and he let out the said property. He has further admitted that out of the rental income derived from Koramangala property, his brother D.R. Patil purchased the flat in Cox Town.
At para No. 12 of the evidence of DW-1, has further clearly admitted that item No. 4 of the schedule property was allotted by the BDA in favour of the husband of third defendant. Further the evidence clearly indicates that the property mentioned in the written statement are allotted in the name of husbands of first plaintiff, second plaintiff and third defendant. The plaintiff Nos. 1 and 2 and defendant Nos. 2 and 3 have filed documents to prove that the schedule properties mentioned in the written statement are their exclusive properties allotted in their name and purchased by them by raising loans and they have discharged the loans.
The defendants also have clearly admitted in their evidence that the properties mentioned in the plaint schedule properties are allotted in the names of husbands of plaintiff Nos. 1 and 2 and defendant Nos. 2 and 3. If the property is purchased in the name of any individual it would be considered as his own property.
In the case of Mudi Gowda Gowdappa Sankh Vs. Ram Chandra Ravagowda Sankh, the Hon''ble Supreme Court has held as follows:
The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as coparcenery property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is, however, subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claim the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate.
Similarly in Ranganayaki Ammal and Others Vs. S.R. Srinivasan and Others, , another Bench of this Court has held that unless a strong link or nexus is established between the available surplus income and the alleged joint family properties, the person who come to Court with such bare allegations without any substantial proof to back it up should fail.
It is dear from the aforesaid decisions when there is a joint family nucleus and the acquisition by a co-parcener is out of the income from such nucleus, the property acquired by a co-parcener can be said to be joint family property.
In the instant case, the first defendant has clearly admitted that the properties mentioned along with the schedule to the written statement are purchased in the names of husbands of first plaintiff, second plaintiff and defendant Nos. 2 and 3 and in the evidence they have clearly stated that the said properties were allotted in their names and constructed houses by availing loans and subsequently discharged the loans. Therefore, the contention of the first defendant that the properties mentioned in the schedule to the written statement are also liable for partition, cannot be believed. Consequently, the first defendant is not entitled to any share in the properties mentioned in the schedule to the written statement, as they are the exclusive properties of the husbands of first plaintiff, second plaintiff and defendant Nos. 2 and 3.
Insofar as the plaint schedule properties are concerned, the first defendant himself has admitted in his evidence that after the death of his father, he made an application to the Revenue authorities as per Ex.P45, for mutation of the properties purchased by late R.M. Patil in his name and names of his brothers and sisters. If at all, the first defendant has spent the rents collected by him for maintenance of the building, payment of salaries to the watchman to safeguard the property and for payment of property tax, the same can be worked out and claimed during the final decree proceedings.
Accordingly, the judgment dated 08.07.2005 passed by the XXII Addl. City Civil Judge, Bangalore in O.S. No. 7944/2003 in respect of partition of suit schedule properties, is set aside. The appeals are allowed insofar as partition of item Nos. 1 to 4 of plaint schedule properties. The suit for partition of item No. 5 of the plaint schedule property is dismissed. The plaintiff Nos. 1 and 2 and defendant Nos. 1 to 3 who are legal heirs of the deceased R.M. Patil are entitled for 1/5th share each in item Nos. 1 to 4 of the suit schedule properties which were acquired by R.M. Patil during his lifetime. Insofar as item No. 5 i.e., library books purchased and maintained by late R.M. Patil during his lifetime is concerned, the plaintiffs have averred in the plaint that the value of the library books is about Rs. 1 lakh and it was purchased about 30 years back, but no documentary evidence are produced to show the total value of the library/law books, therefore, the plaintiffs are in no way concerned with the library books. Therefore item No. 5 is treated as valueless. Since the first defendant was working as junior under his father till his death i.e., 1975 and is continuing his legal profession, he is entitled to retain the library books with him.
Draw the decree accordingly. No order as to costs.