Venkatesh vs Devindrappa

A.V. Chandrashekara, J.—The present appeal is filed under Section 96, C.P.C. challenging the judgment and decree passed by the Civil Judge (Senior Divn.), Yadgir, in a case in O.S. 48/04 dated 26.6.2006. This appeal is by defendants 1 to 5 in the said suit. The 3rd defendant-Mallamma (3rd appellant) died intestate and hence her son is brought on record. Appellants 1, 2, 4 and 5 are defendants 1, 2, 4 and 5 in the suit. Respondents herein are plaintiff Nos. 1 to 3.

The suit was filed for partition and separate possession in respect of the properties mentioned in the schedule to the plaint apart from seeking a share in respect of 32 guntas of land in Survey No. 261 of Ashinal village. It is this judgment and decree dated 26.6.2006 which is called in question on various grounds as set out in the appeal memo.

The facts leading to the filing of the suit seeking partition and separate possession of the properties are as follows:

a) One person by name Mahadevapa died intestate in the year 2004. He was the head master of Govt. Higher Primary School. He had two wives, one named Mahadevamma (1st defendant) and another, Basamma @ Mahadevamma (2nd plaintiff). Plaintiffs 1 and 3 are the children of the 2nd plaintiff-Basamma. Defendants 2 to 5 are the children of the 1st defendant-Mahadevamma. Defendant No. 6 (respondent No. 6) is a formal party.

b) According to the plaintiffs, the suit properties are ancestral properties of Mahadevappa who is said to have married 1st defendant-Mahadevamma after the coming into force of the Hindu Marriage Act, 1955, (hereinafter referred to as the Act, for brevity) and therefore the children born to them, i.e. defendants 2 to 5 are not entitled to get any share. Somehow the defendants are said to be in possession.

c) Defendants 1 to 5; chose to file a detailed written statement admitting the relationship. The averment that Mahadevappa married Mahadevamma after the coming into force of the Act has been specifically denied. According to them, 32 guntas of land in Survey No. 261 of Ashinal village is also joint family property and the same having not been included, the suit suffers from nonjoinder of necessary parties. The said land is said to have been purchased by the 1st plaintiff during his minority being represented by his father and that it was purchased out of joint family funds. It is their further case that there was division in the family during the lifetime of Mahadevappa itself and therefore the suit is not maintainable. With these pleadings they had requested the court to dismiss the suit.

d) In the light of the above pleadings, the following issues were framed by the trial court:

1) Whether plaintiffs prove that P-2 Basamma is the first wife of deceased Mahadevapa?

2) Whether plaintiffs prove that first plaintiff and Late Mahadevappa were only two coparceners in the family?

3) Whether plaintiffs prove their joint possession, enjoyment with defendants over suit properties?

4) Whether plaintiffs prove that D-1 and D-2 got their names entered to suit houses and the suit shop behind their back?

5) Whether plaintiffs prove the alleged alienation by defendants?

6) Whether defendants prove that already division I the family properties has taken place during lifetime of Late Mahadevappa itself?

7) Whether suit is bad for non inclusion of all the family properties into hotch-pot?

8) Is the suit not maintainable?

9) Is there no cause of action for the suit?

10) Is the suit bad for mis-joinder of parties?

11) To what relief the parties are entitled?

On behalf of the plaintiffs, the 1st plaintiff is examined as PW 1. On behalf of the defendants, 5th defendant-Savithri one witness, Devindrappa have been examined as DW 1 and DW 2 respectively. Nine exhibits have been marked on behalf of the plaintiffs and 23 exhibits have been marked on behalf of the defendants.

e) After hearing the arguments and perusing records, the learned judge has answered issue Nos. 1, 4 to 6 and 8 and 9 in the negative and issue Nos. 2 and 3 in the affirmative and issue No. 7 partly in the affirmative. While decreeing the suit, the learned judge has included 32 guntas of land in Survey No. 261 as part and parcel of the joint property and a share has been granted.

f) The operative portion of the order dated 26.6.2006 is relevant and is reproduced hereunder:

ORDER

A) The suit is decreed in respect of immovable properties only with no costs.

B) It is declared that P-1 Devendrappa is entitled for 8/21 share, P-2 Basamma is entitled for 1/42 share, P-3 Sumangala is entitled for 1/21 share in the suit properties plus Sy. No. 261 to the extent of 32-Gof Ashinal.

C) Separate enquiry, if opted by plaintiffs be held regarding movable properties.

D) Draw decree for partition and separate possession of share of plaintiffs in accordance with Sec. 54 of CPC.

E) Draw preliminary decree accordingly.

Several grounds have been urged in the appeal memo contending that the learned judge having answered issue No. 1 in the negative, the suit could not have been decreed in favour of the plaintiffs. It is further argued that from the age of defendants 1 and 3, it is very evident that the marriage of Mahadevamma had taken place with Mahadevappa prior to the coming into force of the Hindu Marriage Act and that 3rd defendant-Mallamma was born prior to the coming into force of the Act. It is argued that plaintiffs 1 and 3 are born to Basamma and Mahadevappa after the coming into force of the Act and this aspect has been virtually ignored by the trial court. It is argued that trial court has adopted a wrong approach to the state of affairs and has not assessed the evidence in the right perspective.

Learned counsel for respondents 1 to 3 has supported the impugned judgment holding that burden is equally on the 1st defendant to prove that her marriage had taken place prior to the coming into force of the Act, and herself and her children are entitled to a share I the ancestral properties of Mahadevappa.

After going through the records and hearing arguments, the following points arise for consideration of this court:

1) Whether the trial court is justified in not granting a share to the defendants, more particularly in view of answering issue No. 1 in the negative?

2) Whether any interference is called for?

REASONS

Point Nos. 1 and 2: Both these points are interrelated and hence they are taken up together. The fact that Devendrappa died intestate is not in dispute. Both Basamma (2nd plaintiff) and Mahadevamma (1st defendant) are the wives of Mahadevappa is also not disputed. The burden was on the plaintiffs to prove that Mahadevamma married Basamma prior to the coining into force of the Act. Learned judge has answered issue No. 1 in the negative. In the light of such a finding, it was incumbent on the plaintiffs to file a separate appeal or cross-objections challenging the said finding.

What is argued before this court by the learned counsel for the plaintiff is that notwithstanding the appeal or cross-objections being not filed against the negative finding on issue No. 1, they can still challenge the order of the trial court under Order XLI Rule 33, C.P.C. If the age of is considered Mahadevamma (1st defendant) is considered as 70 years in the year 2004, necessarily she was married prior to the coming into force of the Act. The age of Mallamma (3rd defendant) is shown as 50 years in 2004. This means she was probably born in the year 1954, i.e. prior to the coming into force of the Act.

Admittedly the learned judge has not given any finding about the approximate year in which the marriages of the two wives, Mahadevamma and Basamma were solemnized with Mahadevappa. Even if one were to accept that both the marriages were solemnized prior to the coming into force of the Act, the surviving wives and their respective children are entitled for share in respect of the ancestral properties of deceased Mahadevappa who was the sole surviving coparcener under Section of Hindu Succession Act, 1956 allotting one notional share to Mahadevappa.

The trial court has come to the conclusion that 32 guntas of land in Survey No. 261 of Ashinal village in the name of Devendrappa was purchased by his father-Mahadevappa out of joint family funds and therefore the said property is included for partition. In the light of the death of Mahadevappa intestate after 1956, the properties will have to be divided and shares will have to be allotted as under:

i) Notional 1/3rd share to Mahadevappa,

ii) 1/3rd share to plaintiff No. 1-Devendrappa and

iii) 1/3rd share to 2nd defendant-Venkatesh

The notional share of Mahadevappa the deceased will have to be equally divided between his two wives and all the six children. Thus the trial court is not justified in not granting any share to the defendants.

In the light of the above observation, the suit will have to be decreed granting the legitimate share of all plaintiffs and defendants 1 to 5. In the result, I pass the following order:

ORDER

The appeal is allowed in part granting 1/3rd share each to the 1st plaintiff-Devendrappa and 2nd defendant-Venkatesh and 1/8th share each to all the plaintiffs and defendants out of the 1/3rd notional share allotted to deceased Mahadevappa. The decree of the trial court stands modified accordingly.

The defendants shall pay the respective court fee to get their share.

Office to draw modified preliminary decree. There shall be no inquiry under Order XX Rule 12, C.P.C.