Partly allowed

B.K.Prakasha v. B.K.Sundara Shetty

Karnataka HC15 Mar 2021RFA/1714/2020

Case brief

AI extract

What is this about?

This appeal challenges a partition decree. The appellate court held that the trial court erred by failing to frame necessary issues on whether specific properties were self-acquired or joint family property. Consequently, the trial court's judgment on those items was set aside and the matter remanded. Additionally, the final decree procedures were irregular and remanded.

What did the court decide?

The judgment and decree in respect of specific disputed properties were set aside. The matter was remanded to the trial court to frame necessary issues and consider objections to the Commissioner's re

B.K.Prakasha Vs B.K.Sundara Shetty — Specific Performance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF MARCH, 2021

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PRESENT

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THE HON’BLE MRS. JUSTICE S.SUJATHA

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AND

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THE HON’BLE MR.JUSTICE P.N.DESAI

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REGULAR FIRST APPEAL No.134/2012

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C/W

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REGULAR FIRST APPEAL No.1714/2020

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IN REGULAR FIRST APPEAL No.134/2012

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BETWEEN:

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SRI B.K. PRAKASH, S/O LATE B.S. KRISHNASHETTY, AGED ABOUT 61 YEARS, RESIDING AT BEGURU VILLAGE, BEGURU HOBLI, GUNDLUPET TALUK, CHAMARAJANAGAR DISTRICT - 571 111.

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...APPELLANT

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(BY SRI. B. SHARATH KUMAR, ADVOCATE)

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AND

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SRI. B.K. SUNDARA SHETTY, S/O LATE B.S. KRISHNASHETTY,

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AGED ABOUT 59 YEARS, RESIDING AT BEGURU VILLAGE, BEGURU HOBLI, GUNDLUPET TALUK, CHAMARAJANAGAR DISTRICT - 571 111.

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SMT. SUBBALAKSHMI, D/O LATE B.S. KRISHNASHETTY, W/O C.V. BASAVARAJU, AGED ABOUT 63 YEARS, R/AT CHIKKA ANGADI BEEDI, CHAMARAJANAGARA - 571 111.

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SMT. PREMA, D/O LATE B.S. KRISHNASHETTY, W/O PRAKASH, AGED ABOUT 55 YEARS, R/AT CHIKKAMALURU VILLAGE, CHENNAPATNA TALUK, RAMANAGAR DISTRICT - 571 501.

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SMT. MANJULA, D/O LATE B.S. KRISHNASHETTY, W/O PRAKASH, AGED ABOUT 49 YEARS, R/AT CHIKKA ANGADI BEEDI, CHAMARAJANAGAR TOWN - 571 313.

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RESPONDENTS

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(BY SRI. H.M. MANJESH, ADV. FOR R1; SRI. MANJUNATH B.K, ADV. FOR R.2 TO R.4)

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THIS APPEAL IS FILED UNDER SECTION 96 OF C.P.C. AGAINST THE JUDGMENT AND DECREE DATED 29.10.2011 PASSED IN O.S. NO.19/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE AND CJM, CHARAMAJANAGAR, DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

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IN REGULAR FIRST APPEAL No.1714/2020

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BETWEEN

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B.K. PRAKASHA, SON OF LATE B.S. KRISHNA MURTHY, AGED ABOUT 64 YEARS, R/AT BEGUR VILLAGE AND HOBLI, GUNDLUPET TALUK, CHAMARAJNAGAR DISTRICT - 571 313. ...APPELLANT

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(BY SRI. B. SHARATH KUMAR, ADVOCATE)

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AND

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B.K.SUNDARA SHETTY, SON OF LATE B.S. KRISHNA MURTHY, AGED ABOUT 64 YEARS, R/AT BEGUR VILLAGE AND HOBLI, GUNDLUPET TALUK, CHAMARAJNAGAR DISTRICT - 571 313.

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SMT. SUBBALAKSHMI, D/O LATE B.S. KRISHNA MURTHY, W/O C.V. BASAVARAJU, AGED ABOUT 68 YEARS, R/AT CHIKKA ANGADI BEEDHI, CHAMARAJNAGAR - 571 313.

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SMT. PREMA, D/O LATE B.S. KRISHNA MURTHY, W/O PRAKASH, AGED ABOUT 60 YEARS, R/AT CHIKKAHALLI VILLAGE, CHANNAPATNA TALUK, RAMANAGARA DISTRICT - 571 511.

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SMT. MANJULA D/O LATE B.S. KRISHNA MURTHY, W/O PRAKASH, AGED ABOUT 54 YEARS,

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R/AT CHIKKA ANGADI BEEDHI, CHAMARAJNAGAR - 571 313.

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RESPONDENTS

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(BY SRI. H.M. MANJESH, ADV. FOR R1; SRI. MANJUNATH B.K, ADV. FOR R.2 TO R.4)

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THIS APPEAL FILED UNDER SECTION 96 C.P.C. AGAINST THE ORDER DATED 28.07.2016 PASSED IN FDP NO.14/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC AT CHARAMAJANAGAR, DRAWING FINAL DECREE AS PER COMMISSIONER REPORT.

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THESE APPEALS COMING ON FOR FURTHER ARGUMENTS THIS DAY, P.N. DESAI, J, DELIVERED THE FOLLOWING:

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J U D G M E N T

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RFA No. 134/2012 is filed challenging the Judgment and preliminary decree dated 29.10.2011 in O.S No.19/2008 passed by Senior Civil Judge, Chamarajanagar, wherein the suit filed by the plaintiff for partition came to be decreed.

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RFA No.1714/2020 is filed assailing the final decree passed in FDP No.14/2011 dated 28.07.2016 by Senior Civil Judge, Chamarajanagar which arose out of

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preliminary decree passed in O.S No.19/2008 dated 29.10.2011.

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RFA No.134/2012

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The appellant was the first defendant before the trial Court. First respondent was the plaintiff and other respondents were defendant Nos.2 to 4 before the trial Court. The parties will be referred as per their respective ranks before the trial Court.

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The case of the plaintiff in brief is that, the plaintiff and defendant No.1 are the son and daughter of late one B.S. Krishnashetty and Bhagyamma of Begur Village. It is the contention of plaintiff that the suit properties were earlier belonging to one Subbashetty, who is the grand-father of the plaintiff and defendants. The said Subbashetty had two sons, by name B.S. Krishnashetty and Ramashetty. During the life time of plaintiff and defendants, the said Subbashetty had partitioned the ancestral properties between his sons. As per that partition they were residing separately. After the death of the said

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B.S. Krishnashetty on 08.09.2005, the plaintiff and defendants continued to be in joint family and they were carrying on agriculture and running business of provision stores in the name of B.S. Krishnashetty. The first defendant being the eldest male member of the family was managing the family affairs as kartha. It is contended that the first defendant created a document and changed the khatha of item Nos.8, 13 and 14 of suit schedule properties and got mutated his name in respect of those properties. Some differences arose in the family affairs, then plaintiff demanded first defendant for partition and separate possession of his share but same was denied. Hence, the suit came to be filed seeking 1/5^th share in suit schedule properties which are all agricultural lands.

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The first defendant filed written statement. He admitted his relationship with the plaintiff, but denied that the suit schedule properties are joint family properties and they are in joint possession. He has denied other averments as all false. The contention of defendant No.1 is

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that the item Nos.8, 13 and 14 schedule properties are his self acquired properties. In addition to that, B.S. Krishna shetty also acquired survey No.102 measuring 16 guntas in Gundlupet taluk out of his own earning. B.S. Krishna shetty has executed a settlement deed in respect of his self acquired property in favour of first defendant on 14.03.2005. As such these four properties were not available for partition. The provision store business was started by the first defendant only. The late B.S. Krishna shetty was trading in agriculture produce like paddy, turmeric and cotton. Out of the income derived from that business he was able to purchase the properties. Late B.S. Krishnashetty acquired plaint schedule item No.8 property through a gift deed from Krishnashetty’s grandmother Nanjamma, when late B.S. Krishnashetty was a minor. Late B.S. Krishnashetty purchased 2 38 guntas of lands in survey No.54/3 through a registered sale deed in the year 1947. This property is described as item No.13 in the suit schedule. Item No.14 property was purchased by Krishnashetty through registered sale deed

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in the year 1943. Defendant No.1 further contends that he has no objection for partition of remaining items of suit properties except item Nos.8, 13 and 14.

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Defendant No.1 filed additional written statement contending that item No.15 of the schedule property is not joint family property. It belongs to Smt. H.S. Lakshmi, daughter of Bhagyamma, who is also wife of the first defendant, as such the suit property in item No.15 is not available for partition.

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Second and fourth defendants supported the claim of the plaintiff and they also claimed 1/5^th share. A memo was filed by the 3rd defendant adopting written statement filed by defendant Nos.2 and 4.

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On the basis of the above pleadings, the trial

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Court framed the following issues:

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1. Do the plaintiff prove that the suit properties are joint family properties?

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1. Does the plaintiff entitled 1/5^th share in the suit schedule properties?

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3) What Decree or order?

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Plaintiff got examined himself as PW1 and got marked 15 documents Ex.P1 to P15. The defendant No.1 got examined as DW1, his wife was examined as DW2 and got marked 5 documents Ex.D1 to D5.

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After hearing the arguments, the learned trial Judge decreed the suit allotting 1/5^th share to the plaintiff in all the suit schedule properties. Aggrieved by the same, the first defendant has filed this appeal.

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We have heard the learned counsel for appellant and respondents. The learned counsel for appellant argued that though defendant No.1 has pleaded in his written statement that item Nos.8, 13, 14 and 15 are not the joint family properties, but they are self acquired properties of defendant No.1 and his wife Smt. H.S. Lakshmi, the trial Court has not framed any issue in this regard. The defendant No.1 has produced the settlement deed, sale deed and gift deeds which are

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marked in D-series. But the trial Court without appreciation of evidentiary value of Exs.D1 to D5, without framing any issue decreed the suit, which is perverse. Ex.D2 registered sale deed shows item No.15 of the suit property was purchased in the name of wife of defendant No.1 by name Smt. H.S. Lakshmi she is not made as a party in the suit. No issue was framed regarding nonjoinder of necessary parties.

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The learned counsel further argued that the drawing up of final decree was not within the knowledge of plaintiff as they were also insisting for early hearing of appeal as FDP was pending. But by that time FDP was already closed. In fact during the pendency of this appeal, there was stay of preliminary decree. The learned counsel further argued that only one line order regarding drawing up of final decree as per Commissioner’s report is passed wherein no specific shares were allotted by metes and bounds. The final decree drawn is not in accordance with law and needs to be set aside. The counsel for appellant

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submit that the matter may be remanded to trial Court for framing and determining an issue, as to whether item Nos.8, 9, 13 and 15 are joint family properties or they are self acquired properties of defendant No.1 and Smt. H.S. Lakshmi and whether Smt. H.S. Lakshmi is a necessary party to suit.

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On the other hand, the learned counsel for respondents argued that the suit was pending for a long time. If the entire matter is remanded, the plaintiff will be put to much hardship. The learned counsel further submitted that the trial Court findings is based on pleading and evidence. He supported the Judgment and preliminary decree. The learned counsel further argued for confirmation of preliminary decree in respect of admitted items of suit schedule properties and remand only for limited purpose in respect of framing issue about burden of proof and availability of properties item Nos.8, 9, 13 and 15 for partition. The learned counsel argued that the

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preliminary decree regarding admitted properties be proceeded.

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In view of the above, the following points arise

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for our consideration:

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1. Whether non-framing of issue regarding nature of item Nos.8, 9, 13, 15 of suit schedule properties and not appreciating documentary evidence at Exs.D1 to D5 resulted in miscarriage of justice?

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1. Whether the trial Court Judgment is perverse and needs to be interfered by the Court? If so in respect of which items of properties?

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1. Whether final decree passed in FDP No.14/2011 is in accordance with law?

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1. What order?

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We have perused the Judgment of trial Court

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and evidence on record and re-appreciated the evidence.

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It is evident from the plaint averments and written statement of the defendant No.1 that the relationship of the parties is admitted. It is contended by

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defendant No.1 that the suit properties at item Nos.8, 13 and 14 and survey No.102 are not available for partition. According to him, they are not joint family properties. On the other hand they are self acquired properties of defendant No.1 and his wife. Defendant No.1 clearly admitted in written statement that he has no objection for partition in the remaining items of properties except item Nos.8, 13, 14 and 15.

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So it is evident from pleading and evidence that the parties are not at issue in respect of other items of suit properties except item Nos.8, 13, 14 and 15. In view of the pleading, evidence and the relationship between the parties, allotting 1/5^th share in the properties, which are admitted by both parties as joint family properties, the Judgment of trial Court is to be confirmed. Therefore, the Judgment of trial Court in respect of entitlement of 1/5^th share in suit schedule properties except item Nos.8, 13, 14 and 15 is confirmed.

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18. It is evident that trial Court has not framed

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issue regarding burden of proof in respect of item Nos.8, 13, 14 and 15 of the suit schedule properties even though defendant No.1 has taken such contentions in his written statement. It is settled principal of law that though there is a presumption with regard to joint family status, but there can be no presumption that the joint family possesses joint family properties. In a suit of partition, when the defendant takes a contention that some of the properties are his self acquired properties, then burden of proving that those properties are self acquired properties is on the defendant. If the defendant disputes the joint family nature of some of the properties and contends that they are his self acquisition properties or separate properties, then a issue casting the burden on the plaintiff to prove that those properties are also joint family properties and a issue casting the burden on the defendant to prove that they are his self acquisition or separate properties have to be framed. Therefore the trial Court has to frame an issue in this regard, as to whether the said suit properties i.e.,

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item Nos.8, 13 and 14 are self acquired properties of defendant No.1 and item No.15 of property is the self acquired property of Smt. H.S. Lakshmi, wife of defendant No.1 and they are not amenable for partition. When once the defendant No.1 discharges his initial burden, the burden shifts on the plaintiff to show that these properties are also joint family properties and available for partition. The trial Court neither framed any issue in this regard nor the documentary evidence at Exhibit D1 to D5 produced by defendant No.1 are discussed or appreciated. Such a course has resulted in miscarriage of justice.

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We find that the trial Court without assigning any reasons came to the wrong conclusion that, the father of B.S. Krishnashetty acquired properties item Nos.8, 13, 14 and 15 out of the income from ancestral properties, hence they are joint family properties. Such a conclusion is not based on any evidence. The learned trial Judge has not at all discussed anything about the Sale Deeds Ex.D2 dated 12.04.2011 and Ex.D3 dated 17.03.1943, Gift Deed

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Ex.D4 dated 08.07.1921 and Sale Deed Ex.D5 dated 03.04.1947. There is absolutely no discussion about any of the documentary evidence produced by the defendant No.1. Simply on assumption and presumption without framing any issue regarding burden of proof, the trial Court held that all the suit properties are the joint family properties and ancestral properties of plaintiff and defendant and allotted 1/5^th share. The findings of trial Court without appreciating pleading and evidence is perverse and needs to be set aside. The matter is to be remanded to trial Court for framing issue as discussed in above paras.

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The learned counsel for both sides submitted that Smt. H.S. Lakshmi is not a party to the suit. In view of the contention urged before us, a liberty is to be given to plaintiff to implead Smt. H.S. Lakshmi, wife of defendant No.1 in whose name item No.15 of the suit schedule property is standing, as a party to the suit. If she is made as a party, an opportunity should be given to her

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to file written statement within the stipulated time. Thereafter trial Court shall frame additional issue in view of the observations made above and shall provide an opportunity to both the parties to adduce additional evidence on these additional issues to be framed and decide suit in accordance with law.

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RFA No.1714/2020

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It is evident that the final decree proceedings came to be closed on 28.07.2016 stating that respondents absent and have not filed any objections to Commissioner's report. Hence, the Commissioner's report is accepted and final decree drawn as per Commissioner's report. It appears an Execution No.09/2019 was filed by the plaintiff. It is also evident that the Commissioner's report does not satisfy the requirement of law. It is settled principle of law that the Court cannot straight away pass a final decree without considering the report of Commissioner and objection, if any by the parties. While drawing final decree the division of the property has to be

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made. The Court has to consider equitable partition also by metes and bounds. The Court should give appropriate directions regarding proper partition of suit properties. But it appears the trial Court without properly considering the Commissioner's report straight away proceeded to pass one line order to draw the final decree. The learned counsel for the appellant relied upon the decision of Single Judge of this Court reported in ILR 2004 KAR 5277 in

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case of Gavadu & Others vs. Suresh Kallappa Makavi

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& Others . It is useful to refer the same as the reasons for

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setting aside such a final decree and effect of passing one line order is discussed by learned Single Judge. The order challenged in that appeal is more or less similar to the order passed by trial Court in this FDP proceedings.

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At para-5, it is held;

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"I have heard the learned Counsel appearing for petitioner and the learned Counsel appearing for respondents 1 and 2 for considerable length of lime on 8th November 2004 and today also. After careful evaluation of the material available on record, it is not in dispute that, the petitioner has

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filed a suit and the said suit has been decreed and thereafter it has been modified in Regular Appeal. The respondents 1 and 2 have filed the F.D.P No. 5/1995 on the file of the Principal Civil Judge, Junior Division, Khanapur. The said matter had come up for consideration before the Trial Court on 5th June 2000. Learned Counsel appearing for petitioner has prayed for time for filing objections. But, the Trial Court has rejected the said request at the very threshold itself and taken on record that the petitioner has not filed any objections and straightaway has passed a one line order directing to draw final decree as per the preliminary decree. The said reasoning given by the Trial Court while passing the impugned order is contrary to the mandatory provisions of Order XX Rule 18 (1) of the Code of Civil Procedure. Further, it is significant to note that, the entire order sheet has been produced before this Court at ink page 9 of this petition. It can be seen that, the matter has been posted on 10th September 1991 and no proceedings took place on that day and on 5th June 2000, on the first day of the posting of the matter, the counsel for the defendant has prayed for time, but the Trial Court has straightaway rejected the said request and directed to draw the final decree

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as per the preliminary decree. The manner in which the Trial Court has proceeded and passed the impugned order cannot be sustained, as rightly pointed out by the learned Counsel appearing for the petitioner. The learned Counsel appearing for the petitioner has relied upon the law laid down by his Court in the case of A. MANJUNDAPPA vs. SONNAPPA and Others (AIR 1965 MYS 73). In the said judgment, it has been clearly observed as to how the procedure should be followed while drawing the final decree. The relevant portion of the said judgment reads as follows:-

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" .........The preliminary decree determines the moieties of the respective parties and thereby furnishes the basis upon which the division of the property has to be made. There are other matters in addition to the moieties of the parties that have to be considered and decided before an equitable final partition can be effected. Among them are the realisation of common outstandings, the discharge of common liabilities, the distribution of the profits of the properties realised pending the suit, either in cash or by allotment of property of requisite value, the grant of ovelty, the provisions of maintenance to parties entitled thereto, the allotment of lands on which improvements have been effected to the

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share who has improved them, the alienated lands to the share of the alienor and other similar matters. Even after the passing of the preliminary decree it is open to the Court to give appropriate directions regarding all or any of these matters either suo motu or on the application of the parties. Order XX Rule 18 Civil Procedure Code does not prohibit the Court from issuing such directions after the stage of a preliminary decree, xxx".

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But, in the instant case, the Trial Court without proper application of mind has straightaway proceeded to pass a one line order, directing to draw final decree proceedings as per the preliminary decree, very much contrary to the judgment and decree passed by both the Courts. It is the duty cast on the Trial Court to pass appropriate order as per the decree, stating therein as to which are the survey numbers the petitioner is entitled, which are the agricultural lands entitled by respondents 1 and 2 and others and also in respect of which house property, the decree has to be drawn, etc. The Trial Court must pass the order in consonance with the decree passed in Regular Appeal No. 18/1981 and thereafter, it can direct that, the petitioner and the respondents are entitled to their respective shares in respect of the

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agricultural lands and the house properties. This settled law has been laid down as early as in the year 1965 and the Trial Court has not looked into this aspect of the matter and has mechanically proceeded to pass the impugned order. Therefore, the manner in which the impugned order has been passed by the Trial Court is not sustainable."

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So in light of what is stated above, if the order in final decree is considered, it is evident that the said decree is liable to be set aside. Even when there is an interim order of stay of proceedings, trial Court proceeded to pass final decree, which is illegal. Both the learned counsel submits that the final decree in respect of admitted suit schedule properties be continued and an opportunity be given to both the sides to make the submission regarding Commissioner's report before the trial Court.

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We are of considered view that the matter is to be remanded back to the trial Court to consider the final decree proceedings afresh after giving an opportunity to

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both the sides to file their objections to the Commissioner's report if any then proceed to pass final decree in accordance with provision of Order 20 Rule 18 of Civil Procedure Code in respect of suit schedule properties except properties at item Nos.8, 13, 14 and 15 of the suit schedule properties. In the result, we pass the following,

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ORDER

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In RFA No.134/2012

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i) RFA No.134/2012 is partly allowed.

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ii) The Judgment and decree dated 29.10.2011 in O.S No.19/2008 on the file of the Senior Civil Judge and CJM at Chamarajanagar in respect of entitlement of 1/5^th share of the suit schedule properties except item Nos.1 to 7, 10, 11, 12 and 14 is hereby confirmed and in regard of item Nos.8, 9, 13 and 15, the Judgment and decree is set aside.

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iii) The matter is remanded to the trial Court with a direction to frame necessary issue as to, inasmuch as, "whether item Nos.8, 13 and 14 properties are self acquired properties of defendant No.1 and item No.15 of suit schedule property is self acquired property of Smt. H.S. Lakshmi, wife of defendant No.1 as

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contended by the defendant No.1 or the joint family properties amenable to partition".

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iv) It is needless to observe that the plaintiff is at liberty to implead Smt. H.S. Lakshmi, wife of defendant No.1 in whose name, item No.15 of the suit schedule property is standing.

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v) If Smt. H.S. Lakshmi is impleaded as party, an opportunity shall be given to her to file written statement, if any within the period prescribed in Code of Civil Procedure.

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vi) The trial Court shall provide an opportunity to both the parties to adduce fresh evidence, if any, on these additional issues to be framed and thereafter shall proceed to dispose of the matter in accordance with law, in an expedite manner.

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vii) All the rights and contentions of the parties are left open.

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In RFA No.1714/2020

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i) RFA No.1714/2020 is allowed.

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ii) The order dated 28.07.2016 and decree dated 08.08.2016 passed in FDP No.14/2011 on the file of the Senior Civil Judge and CJM at Chamarjanagar is set aside.

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iii) The learned trial Judge shall hold an enquiry as per Section 54 of Code of Civil Procedure

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and then decided the apportionment of the suit schedule properties as per Order 20 Rule 18(2) of CPC as per preliminary decree dated 29.10.2011 passed in O.S No.19/2008 on the file of the Senior Civil Judge and CJM at Chamarajanagar except item Nos.8, 13, 14 and 15 of the suit schedule properties and then pass the final decree by allotting the shares by metes and bounds, in accordance with law.

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iv) Such exercise shall be made in an expedite manner.

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v) In view of disposal of the appeals, all the pending I.A’s stand disposed of.

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Sd/JUDGE

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Sd/JUDGE

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B.K.Prakasha v. B.K.Sundara Shetty

Case brief

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B.K.Prakasha v. B.K.Sundara Shetty

Case brief

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