Sri C v Chandrashekar Vs Smt Sharada

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 27.04.2024 PASSED IN R.A.NO.12/2021 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, BHADRAVATHI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 31.03.2021 PASSED IN O.S.NO.484/2011 ON THE FILE OF I ADDITIONAL CIVIL JUDGE AND JMFC, BHADRAVATHI.

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

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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This matter is listed for admission and I have heard learned counsel for the appellant and learned counsel for caveator-respondent No.1. This second appeal is filed against the concurrent finding of the Trial Court as well as the First Appellate Court.

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The case of the plaintiffs before the Trial Court is that suit schedule properties are self-acquired properties of late C. Venkatanarasappa, S/o. Late Krishna Rao of Bhadravathi. Late C. Venkatanarasappa had a son and the first plaintiff is the surviving wife of late C.V.Venkatakrishana Rao. The second and third plaintiffs are the son and daughter of C.V. Venkatakrishna Rao. The plaintiffs have succeeded to C.V.Venkatakrishna Rao as Class-I legal heirs. C.Venkatanarasappa died on 08.05.1986. The suit schedule properties have been

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enjoyed as a Hindu Undivided Family property during the lifetime of C. Venkatanarasappa. Hitherto, to the knowledge of these plaintiffs to partition has been effected in the family, more particularly equal and equitable. The suit schedule properties are agricultural land and in cultivation and enjoyment of C.V. Chandrashekhar, the fifth defendant in this case, for and on behalf of all the members of the family. The other children of C.Venkatanarasappa are residing at different places on account of their individual avocations as well as convenience sake. The daughters of C. Venkatanarasappa are residing in their respective husband’s house at different places, absolutely there are no disputes or quarrels or misunderstandings between the family members till date. All the plaintiffs and defendants having the members of Hindu Undivided Family are jointly enjoying fruits of the suit schedule properties.

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It is also the contention that notices were exchanged between them and plaintiffs also placed a

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request with fifth defendant, who is in actual cultivation of

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the property on behalf of the family members that they want to have a share over the suit schedule properties. To the astonishment of the plaintiffs, the fifth defendant revealed that there has been a partition on 31.01.1991 under which the suit schedule properties have been taken to the share of fifth defendant and sixth defendant excluding all other family members. In fact such a type of partition could not have been effected in the year 1991 when the second and third plaintiffs attained majority and they were actually assisting in all respect the management of their father and father of second and third plaintiff was not an executant of the said alleged partition deed and apart from the same, the partition deed and also the genealogical has not been referred in the deed of partition and intentionally the other members of the family have been excluded and there is absolutely no relinquishment also. Hence the alleged partition dated 31.01.1991 cannot

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withstand in the eye of law and hence, they are entitled

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for a share in the suit schedule properties.

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In pursuance of the suit summons, defendants

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Nos.1 to 6 appeared through counsel and filed written statement. Defendants Nos.1, 3, and 4 filed written statement and contended that the suit schedule properties are the self-acquired properties of late C. Venkatanarasappa. C.Venkatanarasappa is the father of defendants Nos.1, 3 and 4. It is also true that our father C.Venkatanarasappa died in the year 1986. The suit schedule properties are agricultural lands and all the plaintiffs and defendants are the legal heirs of late C. Venkatanarasappa. It is contended that during the month of December 2010, the plaintiffs and defendants Nos.1, 3 and 4 placed request with defendants Nos.5 and 6, who are having actual cultivation of the land on behalf of the members of the family and sought for partition, but defendant Nos.5 and 6 says on 31.01.1991 about the suit schedule properties taken to the share of defendant Nos.5

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and 6 excluding all the other family members and it is not defendant Nos.1, 3 and 4 are not accepting this type of partition and they have not signed to the alleged partition deed. It is not an equal or equitable partition among all the joint family members. The defendant Nos.1, 3 and 4 are having equal and equitable share in all the suit schedule properties. It is contended that they have no knowledge about partition dated 31.01.1991. It is also false to say that paragraph No.8 of written statement of defendant Nos.5 and 6 is utterly false.

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The defendant No.2 also appeared through his

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counsel and filed his written statement and in his written statement, he contended that, it is not true that fifth and sixth defendants have partitioned joint family properties of late C. Venkatanarasappa on 31.01.1981 and he also denied the document.

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The defendant No.5 appeared through his counsel and filed written statement adopting the written

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statement filed by defendant No.6 contending that earlier there was partition in the family in the year 1987 and subsequently, the document of partition came into existence in the year 1991, wherein they have taken share and got partitioned the property as per oral partition and it

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was acted upon, immediately the other defendants, including the husband of first plaintiff and father of second and third plaintiffs, properties shown in the reply notice schedule were disposed of by late Venkatakrishna through one of the brothers Sri C. Raghavendra by executing the GPA. Even in order to get the consent of this defendant, the said late Venkatakrishna came to Bhadravathi and insisted this defendant to execute the registered GPA in this regard. Hence, this defendant without second thought executed a GPA in the year 1988 in this regard. Hence, even this defendant was not made known as to the details of sale proceeds and its usage, by the husband of first plaintiff, as all those properties were not given to the share of this defendant.

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Defendant No.5 further contended that late

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Venkatakrishna was also in good terms with this defendant till his last breath. Hence, there was a oral partition and this defendant was allotted with the property mentioned in ‘A’ schedule along with defendant No.6 as they were unemployed. Hence, it is not possible to get the khatha of the property by way of oral partition and the said late Venkatakrishna and another brother Sri c Raghavendra who is one of the defendants insisted to enter into a nominal registered partition between them and allotted them the equal share out of the property shown in the suit ‘A’ schedule and the husband of first plaintiff and father of second and third plaintiffs late Venkatakrishna and C Raghavendra have duly signed as consenting witnesses to the said partition deed dated 31.01.1991. Hence, from that day onwards, this defendant is only looking into their part of share and managing the same with cultivation which is shown as ‘A’ schedule property. However, the share allotted to these defendants are karab lands and

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were not a fertile land and this defendant after getting suit

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‘A’ schedule property as his share, invested huge money, time and labour to improve the land like anything and made it fertile land. Hence, the plaintiffs are not entitled for any share in the suit schedule property and the plaintiffs have nothing to do with the share of this defendant which is mentioned as suit ‘A’ schedule property. Amongst all these properties some properties were sold by concerned share holders and some properties are being enjoyed by the respective share holders. Such being the case, this defendant is also enjoying his share of property in which none of the other family members have right over it.

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The Trial Court having considered the

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averments made in the plaint as well as in the written statement, framed the Issues and Additional Issue and allowed the parties to lead their evidence. In order prove the case of the plaintiffs, plaintiff No.2 has examined himself as PW1 and got marked the documents at Ex.P1 to

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P9. At the time of cross examination of PW1 by the counsel for defendant has confronted five documents from PW1 as Ex.D1 to D5 by the plaintiff. On the other hand, defendant No.5 examined as DW1 and got marked the documents at Ex.D1 to D10. The defendant by name Sharadamma D/o late Venkatanarasappa examined as DW2 and Defendant No.2 examined as DW3 and got marked documents at Ex.D12 to D18 and one witness by Janakamma examined as DW4.

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The Trial Court considered both oral and documentary evidence on record as well as the admission on the part of witnesses wherein they have categorically admitted that the suit schedule properties are the ancestral properties and there was no any division in the family and in paragraph 25, extracted the admission of DW1 wherein it is held that the suit schedule properties are joint family properties and in respect of the said property, there is no partition between the joint family members. In paragraph 26, the Trial Court taken note of

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the admission on the part of defendant No.2 who has been examined as DW3 wherein he also categorically says that in terms of Ex.D3, he himself and his brother Venkatakrishna have signed the document but suggestion was made that they were not having right and the said suggestion was denied and categorically says that they were having the right over the suit schedule property.

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The Trial Court also taken note of the averments made in the written statement filed by all other defendants wherein they have admitted that the original propositus of the family died in the year 1984 and also contended that Ex.D3 is a registered document which shows that all joint family members are not executed the same in favour of defendant Nos.5 and 6 and this partition deed is with consent over the suit schedule properties and father of PW1 and defendant No.2 have been signed as witnesses to the partition deed, but they were not given the rights. As per Ex.D3, all joint family properties are not partitioned between all the Class-I legal heirs of

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Venkatanarasappa. Admittedly, the suit schedule properties are joint family properties and already discussed that the Court has to take note of the material available on record and also the provisions of the Hindu Succession Act 1956 for the determination of question involved in the case with respect of the suit schedule properties. With regard to Section 6 of the Act and also relationship between the parties, the Trial Court discussed the same in paragraphs 41 and 42 that the grandfather of PW1 died intestate and not executed any documents and hence, the property shall devolve according to the provisions of Sections 6 and 8 of the Hindu Succession Act. The Trial Court having taken note of the material available on record comes to the conclusion that when there was no partition among the family by meets and bounds, the plaintiffs are entitled for the share over the suit schedule property that is one share out of 1/7^th share over the suit schedule property and granted the relief of partition.

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Being aggrieved by the said judgment and

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decree of the Trial Court, an appeal is filed in R.A.No.12/2021 and the First Appellate Court considered

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the grounds urged in the appeal memo wherein they categorically contend that earlier there was a oral partition

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of the year 1987 and the document was registered in terms of Ex.D3 and the husband of plaintiff No.1 as well as defendant No.2 are signatories to the said document and all the documents stand in the name of defendant Nos.5 and 6 subsequent to the registration of Ex.D3. The First Appellate Court having considered the grounds urged in the appeal memo, formulated the points and having considered both oral and documentary evidence available on record taken note of the point of limitation and the same has been discussed in paragraph 30 and comes to the conclusion that in a suit for partition, the question of limitation does not arise and no limitation prescribed under law for a suit for partition and also taken note of Article 110 of the Limitation Act and held that it is equally well

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settled that the plea raised in a suit for partition claiming adverse possession is totally different from such a plea raised in other suits. In a suit for partition, there should be a specific plea of ouster, such a plea is conspicuously missing in the present suit. Even otherwise, when once it

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is held that joint family continues to exist, there is no division of properties belonging to the family and the right to file a suit for partition continues to exist as long as the property remains undivided and therefore, the suit filed for partition is well within time and not barred by law of limitation and answered the point as negative and dismissed the appeal confirming the judgment of the Trial Court.

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The main contentions of the counsel for the appellant is that both Courts have committed and error in coming to the conclusion that there was no partition in the family and the counsel would vehemently contend that there was a partition in the year 1987 itself and document came into existence in the year 1991 and same is a

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registered document and to the said document, the husband of the plaintiff and defendant No.2 are the signatories and with the consent only the document of Ex.D3-Partition Deed came into existence. The counsel also would vehemently contend when PW1 examined before the Court, he categorically says that he was having a knowledge about the same and defendant Nos.5 and 6 are cultivating the land and they are in possession of the property. When such admission is given, ought to have invoked Article 110 of the Limitation Act. Hence, the counsel would vehemently contend the judgments of both the courts suffers from perversity in not appreciating the evidence on record properly and same is also bad in law since ignoring the previous registered partition deed came into existence within the family members and the same is also hit by law of estopal and hence, this court has to admit the appeal and frame the substantial questions of law.

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Having heard the counsel for the appellant and

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also considering the reasoning of the Trial Court, it discloses that the specific case of the plaintiff that there was no partition in the family in respect of the suit schedule properties which are the family properties and it is the specific case that all the family properties are the joint family properties. It is also the specific case that when the husband of the plaintiff is also one of the class-I heir of the Venkatanarasappa and when there was no relinquishment deed relinquishing their right, none of the properties were allotted in favour of the plaintiff and also other defendants who have supported the case of the plaintiff by filing a written statement and also claiming a share in the suit schedule property. No doubt that there is a clear admission on the part of DW1 also that the suit schedule properties are the joint family properties and there is no partition between the members of the joint family but admittedly, the document at Ex.D3 came into existence between defendant Nos.5 and 6.

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The counsel for the appellant brought to notice of this Court that the plaintiff’s husband is also signatory to the document so also defendant No.2 but mere signing the document itself will not relinquish the right of the plaintiff’s husband as well as defendant No.2 unless there is a clear averment in the document that both of them have relinquished their right over the suit schedule property. It is not in dispute that the suit schedule properties are the joint family properties. When there is a clear admission on the part of DW1 that there is no partition among the members of the family but they claim that there was a oral partition in the year 1987 and knowingly the properties are allotted in favour of the family of the plaintiff as well as defendant No.2. When such being the case, the very contention of the counsel for the appellant suggesting this Court has to frame substantive question of law that already there was a partition and both the courts have ignored the previous partition within the family of the parties, but the said

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contention cannot be accepted since partition was only between defendant Nos.5 and 6 and not among all the family members as admitted by DW1.

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It is also important to note that the very contention of the counsel for the appellant that the judgments of both the Courts suffers from perversity in not appreciating the evidence on record properly when there is a clear admission on the part of DW1 that all the suit schedule properties are the joint family properties. Apart from that when there was a admission on the part of DW1 that there was no any partition among the family members, the very contention of the counsel cannot be accepted. But the fact that they are all the legal heirs of the Venkatanarasappa and the same is not in dispute. It is also not in dispute that Venkatanarasappa had not executed any testamentary document during his lifetime. When such being the case, though there is a document of Ex.D3, the legal right of the plaintiff as well as other defendants who are the legal heirs of Narasappa cannot be

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defeated unless there was a document of relinquishment deed and when no such relinquishment deed is existed, the very contention that defendant Nos.5 and 6 have got partitioned the property and the same was within the knowledge of the plaintiff who has been examined as PW1 cannot take away the right of the plaintiff as well as other defendants who have claimed the share over the suit schedule property. Hence I do not find any ground to admit the appeal and frame substantive questions of law. The other contention of the counsel appearing for the appellant that the law of limitation also not met with by both the Courts but the same has been discussed in paragraph No.30 of the judgment of the First Appellate Court when the very same ground has been raised before it and the First Appellate Court also taken note of the fact that the law of limitation will not comes to the aid of one of the party who is in possession of the property and even relying upon Ex.D3 also can not curtile the right of the family members who are entitled for a share in respect of

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the joint family properties under Section 6 of the Hindu Succession Act.

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No doubt, the counsel brought to notice of this Court to Article 110 of the Limitation Act wherein it is held that only when they have been excluded and ouster from the joint family, then the limitation attracts under Article 110 and the same has also been discussed in paragraph 30 by the First Appellate Court holding that having considered the document of Ex.D3, there is no any ouster except obtaining the consent signature. When there is no such ouster and also no specific plea of ouster and also in the absence of any ouster as per the document of Ex.D3, the very contention of the counsel that law of limitation also not properly appreciated cannot be accepted since both the Courts have taken note of the factual aspect and also the question of law while considering the matter on merits. Hence, I do not find any ground to admit the appeal and frame the substantial questions of law.

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