Sri Jagadish Vs B S Prema

RSA FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 5.3.2013 PASSED IN R.A.NO.40/2011 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT, SRIRANGAPATA, PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGEMENT AND DECREE DTD 07.02.2012 PASSED IN OS.NO.270/2006 ON THE FILE OF ADDITIONAL CIVIL JUDGE(SR.DN.), SRIRANGAPATNA.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 05.03.2013 passed in R.A.No.40/2011 by the learned District Judge, Fast Track Court at Srirangapatna, and the judgment and preliminary decree dated 07.02.2011 passed in O.S.No.270/2006 by the learned Additional civil Judge (Sr.Dn.), Srirangapatna.

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For convenience, the parties are referred to, based on their rankings before the trial Court. The deceased appellant was defendant No.1, respondent No.1 was plaintiff No.1, and the deceased respondent No.2 was defendant No.3.

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Brief facts, leading rise to the filing of this appeal, are as follows:

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The plaintiff filed a suit against the defendants for partition and separate possession. It is the case of the plaintiff that one Venkategowda was the original propositor. The plaintiff and defendant Nos.1 and 2 are the children of the original propositor, i.e., Venkategowda,

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who passed away on 18.12.2005 leaving behind the plaintiff and defendant Nos.1 and 2. The plaintiff and defendant Nos.1 and 2 are the members of a Hindu undivided family and no partition is effected. The suit schedule properties are the ancestral properties of the plaintiff and defendant Nos.1 and 2. The plaintiff demanded for partition and separate possession, but defendants Nos.1 and 2 refused to effect a partition. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession claiming 4/9^th share in the suit schedule properties.

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3.1. The defendants filed a written statement

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denying the averments made in the plaint and contended that during the lifetime of Venkategowda, the plaintiff and

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1^st defendant's marriage was solemnized and it is

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contended that, during the marriage, to meet out the marriage expenses, he sold 3 acres 20 guntas of land in Sy.No.53 of Mogarahalli Village under sale deed dated 10.03.1980 under two registered sale deeds and retained item No.2 of the suit schedule property. It is contended that during the lifetime of Venkategowda, Panchayath was held and in the said Panchayath, under oral partition, and an oral partition was effected in the presence of Panchayathdars. In the said partition, item No.1 was allotted to the share of Venkategowda, and item No.2 was allotted to the share of defendant No.1. As of the date of filing the suit, there was a severance of status in the family and defendant Nos.1 and 2 have succeeded to the said property and on the basis of oral partition, the properties were transferred in the name of defendant Nos.1 and 2. It is contended that defendant No.1 being the owner of item No.2 sold the said land in favour of

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defendant No.3. Hence, prays to dismiss the suit against defendant Nos.1 and 2.

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3.2. Defendant No.3 filed a written statement

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contending that defendant No.1 being the owner of item No.2 of the suit schedule property sold the said land in favour of defendant No.3 under a registered sale deed dated 25.07.2007 for valid consideration. From the date of purchase of item No.2, defendant No.3 is in possession of the said suit schedule property as the owner and it is also contended that the suit for partial partition is not maintainable as the plaintiff has failed to include house property situated at Belagola village standing in the name of Devamma. Hence, prays to dismiss the suit against defendant No.3.

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3.3. The Trial Court, based on the above said pleadings, framed the following issues and additional issue:

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Issues:

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1) Whether the plaintiff proves that the suit schedule properties are the ancestral and joint family properties and are amenable for partition?

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2) Whether the defendants prove that there is already a oral partition in the family and in the said partition item No.2 had fallen to the share of 1^st defendant and item No.1 had fallen to the share of deceased Venkategowda?

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3) Whether the defendants further prove that for the family necessity they have sold item No.2 which was allotted their share?

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4) Whether the plaintiffs are entitled for 4/9^th share in the suit property?

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5) What is the relief parties are entitled to?

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6) What order or decree?

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Addl. Issue framed on 07.12.2010 :

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1) Whether the suit is bad for partial partition?

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3.4. The plaintiff, to substantiate her case,

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examined herself as PW.1, and marked 6 documents as Exs.P1 to P6. In rebuttal, defendant No.3 was examined as DW.1, defendant No.1 was examined as DW.2 and also to

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prove the partition, examined two witnesses as DW.3 and

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DW.4 and no documents were marked.

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3.5. The Trial Court, after recording the evidence of the parties, hearing both sides, and after assessing the verbal and documentary evidence, answered issue Nos.1 and 4 in the affirmative, issue Nos.2, 3 and additional issue No.1 in the negative, issue No.5 the plaintiff is entitled for 4/9^th share and issue No.6 as per the final order. The suit of the plaintiff was decreed vide judgment dated 07.02.2011, by holding that the plaintiff is entitled for 4/9^th share in the suit schedule properties.

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3.6. Defendant Nos.1 and 2, aggrieved by the judgment and preliminary decree passed in O.S.No.270/2006, preferred an appeal in R.A.No.40/2011 on the file of the Learned District Judge, Fast Track Court, Srirangapatna.

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3.7. The First Appellate Court, after hearing the

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learned counsel for the parties, framed the following points for consideration:

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1) Whether the pleading and proof is sufficient to uphold the plea of the defendants that, already oral partition took place during the lifetime of Venkategowda @ Shivegowda, and item No.2 of the schedule property was allotted to the share of defendant No.1.?

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2) Whether the pleading and proof is sufficient to uphold the plea of the appellants that, the trial Court has failed to frame the legal issues?

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3) Whether the judgment and decree of the trial Court requires interference in appeal?

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4) What order?

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3.8. The First Appellate Court, on hearing the parties

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and after re-appreciating the verbal and documentary evidence, answered point Nos.1 and 3 in the negative, point No.2 partly in the affirmative and partly in the negative, and point No.4 as per the final order. The First Appellate Court allowed the appeal in part and modified the judgment and decree passed in O.S.No.270/2006 and

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the suit was decreed, and held that the plaintiff is entitled

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for half share in the suit properties. It is also held that the right of the purchaser is to be protected out of the share of defendant No.1 in the schedule properties.

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3.9. Defendant No.1, aggrieved by the impugned

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judgments passed by the Courts below, filed this Regular Second Appeal.

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This Court, on 18.09.2015, admitted the appeal to consider the following substantial questions of law:

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1. Whether the judgment and decree passed by the Courts below on the basis of presumption that all families are joint family is just and proper?

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1. Whether the judgment and decree passed by the courts below is contrary to the principle of law laid down by the Hon'ble Supreme Court in AIR 2003 SC 3800?

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Heard the arguments of the learned counsel for

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defendant No.1. None appears for the plaintiff.

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Learned counsel for defendant No.1 submits

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that there is no dispute regarding the relationship between the plaintiff and defendant Nos.1 and 2. He submits that during the lifetime of Venkategowda, he had performed the marriage of the plaintiff and defendant No.1 by raising a loan and accordingly, portion of the said properties was sold by Venkategowda for family and legal necessity, and the said sale deed is binding on the plaintiff. He also submits that the plaintiff has filed a suit for partial partition as the plaintiff has not included the house property, which was standing in the name of Devamma. The suit for partial partition is not maintainable. The said aspect was not considered by the Courts below and committed an error in passing the impugned judgments. He also submits that there was an oral partition between Venkategowda and defendant No.1 and in the said partition, item No.2 was allotted to the share of defendant No.1 and item No.1 was retained by Venkategowda. He also submits that there was severance of status as of the

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date of filing the suit. He also submits that item No.2 of

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the suit schedule property was sold by defendant No.1 under a registered sale deed in favour of defendant No.3. Hence, on these grounds, he prays to allow the appeal.

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Perused the records, and considered the

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submissions of the learned counsel for defendant No.1.

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Reg. Substantial Question of Law

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Nos.1 & 2 : Substantial question of law Nos.1 and 2 are interlinked and they are taken together for common discussion to avoid the repetition of facts.

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It is an undisputed fact that the plaintiff and defendant Nos.1 and 2 are the children of Venkategowda. It is also an undisputed fact that, the suit schedule properties were owned and possessed by Venkategowda. Venkategowda performed the marriage of the plaintiff and defendant No.1 during his lifetime. The plaintiff and defendant No.2 are the members of Hindu Undivided

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family and the suit schedule properties are the ancestral properties of the plaintiff and defendant Nos.1 and 2. It is also contended that the plaintiff and defendant No.1 had no right to alienate item Nos.1 and 2 of the suit schedule properties. The plaintiff, to prove that the suit schedule properties are the ancestral properties of the plaintiff, produced the documents Exs.P1 to P6. Ex.P1 is the demand register extract and Exs.P2 to P6 are the RTC extracts of the suit schedule properties. During the crossexamination of PW.1, it was suggested that there was an oral partition between Venkategowda and defendant No.1 and in the said partition, item No.2 was fell to the share of defendant No.1, and Venkategowda retained item No.1 of the suit schedule properties. The said suggestion was denied by PW.1.

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In rebuttal, defendant No.3 was examined as DW.1. He has deposed that there was partition between Venkategowda and defendant No.1 regarding the suit

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schedule properties and item No.2 of the suit schedule property was fell to the share of defendant No.1 and he sold the said suit item No.2 in favour of defendant No.3 under a registered sale deed dated 25.07.2007. Since from the date of purchase, defendant No.3 is in possession and enjoyment of the suit schedule properties as a owner. He also deposed that, as of the date of filing the suit for partition and separate possession, there was severance of status of the joint family properties. Hence, the suit filed by the plaintiff is not maintainable. The defendant also examined three witnesses as DW.2 to DW.4, who have deposed in the same line of DW.1 and no documents were marked on behalf of the defendant.

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From the perusal of the entire evidence on record, there is no dispute regarding the relationship between the plaintiff and defendant Nos.1 and 2 and also the suit schedule properties were owned and possessed by Venkategowda. The defence of defendant Nos.1 to 3 is

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that there was an oral partition between Venkategowda and defendant No.1. To prove that there was a prior partition between Venkategowda and defendant No. 1, the defendant has not produced any records. From the perusal of the written statement filed by the defendants, they

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have not disputed the nature of the suit schedule properties. In a suit for partition and separate possession, the initial burden is on the plaintiff to establish the nature of the suit schedule properties and the relationship. Admittedly, the defendants have admitted the nature of the suit schedule properties and admitted that they are the ancestral properties. Only defense is that, they contended that there was a prior partition. As observed above, the defendants have failed to prove the oral partition effected between Venkategowda and defendant No.1. Defendant No.1 has not examined any witnesses to establish that there was a prior partition and defendant No.1 has entered the witness box as DW.2, but in the cross-examination, he has clearly admitted regarding the

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house property, wherein his step mother Devamma was residing and the same was acquired by her in the darkast. To accept the oral testimony of DW.2, defendant No.1 has not examined any witnesses, who were present at the time of alleged oral partition, and also the defendants are not pleaded when exactly the oral partition was effected and who were the panchayathdars. In the absence of the evidence regarding the prior partition, both Courts below have rightly disbelieved the defence of the defendant regarding the prior partition. Both Courts below have considered the entire evidence on record. Though this Court has framed the substantial questions of law stating that the judgments and decree passed by the Courts below are contrary to the exposition of law laid down by the Hon'ble Apex Court in the case of D.S. LAKSHMAIAH &

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ANR. VS. L. BALASUBRAMANYAM & ANR., reported in AIR

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2003 SC 3800 . The issue involved in the said case is that, the other members of the family were allowed to use the self-acquired property jointly and no ground to hold that

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the property acquired has been blended into the joint family account. It is neither the case of the plaintiff nor the case of the defendant that the properties were allotted jointly in favour of Venkategowda and defendant No.1. The defendants have taken a defence that, the suit schedule properties are the ancestral properties and there was a partition. At the cost of repetition, the defendants have failed to establish the prior partition. Further, the First Appellate Court has protected the interest of defendant No.3 in the impugned judgment. The First Appellate Court wherein has observed in the operative portion of the judgment that, the right of the purchaser is to be protected out of the share of defendant No. 1 in the suit schedule properties.

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As observed above, defendant No.1 has failed

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to prove the prior partition and also failed to prove that the suit is not maintainable for non-joinder of necessary parties. In view of the above discussion, the judgments

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and decree passed by the Courts below are just and proper and do not call for any interference, at the hands of this Court. In view of the above discussion, I answer the substantial question of law No.1 in the affirmative and

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substantial question of law No.2 in the negative.

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