Anasuyabai and Others vs Shivaji and Others

B.V. Nagarathna, J.—1. Defendants in O.S. No. 260/2000 have preferred this second appeal, assailing judgment and decree passed in R.A. No. 221/2013 dated 13.06.2014 by III Additional District Judge, Belgaum, by which, judgment and decree passed in O.S. No. 260/2000 by III Additional Senior Civil Judge and Additional M.A.C.T., Belgaum, dated 27.07.2013, has been confirmed.

For the sake of convenience, the parties shall be referred to, in terms of their status before the trial Court.

It is the case of respondent - plaintiffs that one Annappa was the original propositus of the family. He had two sons, namely, Vithal, who died on 14.08.1999 and Shivaji, the original plaintiff. Defendant No. 1 is the widow of Vithal and defendant No. 2 is their son. That plaintiff was working in Defence from 20.03.1943 until his retirement on 10.06.1961. Even before he joined the military the family owned joint family immovable properties. Husband of defendant No. 1 was working in a tea shop and he was selling lolly pop. That, during his military service, plaintiff was sending money to his father and also tea powder for sale. Out of the said amount, deceased husband of defendant No. 1 and father of plaintiff purchased the suit property bearing C.T.S. No. 2884 and C.T.S. No. 3466 (House No. 87). According to plaintiff, two properties are joint family properties of parties. The joint family also had four Power Looms, which are mentioned in suit schedule ''A'' attached to plaint. The family of plaintiff and defendants were living together jointly in house No. 312 of Basawan Galli, as tenants. Annappa, original propositus, died in the year 1964. Plaintiff and defendants family continued to live jointly. However, there arose differences of opinion between the women in the family. Plaintiff started residing separately in house No. 2884. The said house and house No. 3466 though are joint family properties were purchased in the name of Vithal, elder brother of plaintiff. During the life time of his elder brother, plaintiff had requested him to effect partition in suit schedule properties. But, he postponed the same on one pretext or the other. He died on 14.08.1999. After his demise, defendant No. 1 issued legal notice to plaintiff on 11.04.2000 asking him to vacate C.T.S. No. 2884 after paying arrears of rent. Later she filed H.R.C. No. 43/2000 against plaintiff in order to knock off plaintiff''s share. As the plaintiff is the co-owner of suit property, he is entitled to half share. Hence, plaintiff filed the suit for partition and separate possession of his half share in the suit properties.

On receipt of suit summons and court notices, defendants No. 1 and 2 appeared and filed their written statement admitting the genealogy stated in plaint. It was also admitted that plaintiff was working for Defence from 20.03.1943 to 10.06.1961. However, it was denied that family had any joint family immovable properties before he joined the military service. Defendants denied that plaintiff had contributed anything for the purpose of properties in the name of husband of defendant No. 1. It was denied that husband of defendant No. 1 was working in a tea shop and he was selling lolly pop. Defendants contended that plaintiff and husband of defendant No. 1 had separated about 38 years ago. They were living separately as tenants in Basawan Galli. That husband of defendant No. 1 was doing hotel business and having his own income and out of his own income he had purchased C.T.S. No. 2884 from its previous owner Gopal Koparde. Later, plaintiff purchased the hotel building from husband of defendant No. 1 and got his name entered and leased it out to one Krishna. According to defendants, all the suit properties are self-acquired properties of deceased Vithal and plaintiff has no share in the said properties. They sought for dismissal of the suit.

On the basis of the aforesaid pleadings, trial Court framed the following issues and additional issues for its consideration:

"1. Whether the plaintiff proves that the suit properties are the joint family properties of himself and defendants?

Whether the plaintiff is entitled for partition and separate possession of half share in the suit schedule properties?

What decree or order?

Additional Issues:

Whether the defendants prove that the suit schedule properties are the self-acquired properties of late Vithal Koparde as contended?"

In support of their case, plaintiffs examined two witnesses as P.Ws.1 and 2. They produced 64 documents, which were marked as Exs.P-1 to P-64. Defendants examined one witness as D.W.1. He relied upon 20 documents, which were marked as Exs.D-1 to D-20. On the basis of said evidence trial Court answered issues No. 1 and 2 in affirmative, additional issue No. 1 in negative and decreed the suit of plaintiffs holding that plaintiffs are entitled to half share in all suit schedule properties by its judgment and decree dated 27.07.2013.

Being aggrieved by the judgment and decree of trial Court, defendants preferred R.A. No. 221/2013 before First Appellate Court, which, after hearing learned counsel for respective parties framed the following points for its consideration:

"1. Whether the judgment and decree passed by the III Additional Senior Civil Judge, Belgaum, in O.S. No. 260/2000 dated 27.07.2013 is in accordance with the evidence adduced and as per law on the point?

Whether the appellants prove that the judgment and decree passed is liable to be interfered and set aside?

As to what order, the parties are entitled?"

It answered point No. 1 in affirmative and point No. 2 in negative and dismissed the appeal by confirming the judgment and decree of trial Court.

Being aggrieved by the judgment and decree of First Appellate Court dated 13.06.2014 defendants have preferred this appeal.

I have heard learned counsel for appellants and learned counsel for respondents and perused the material on record.

Appellants'' counsel contended that both the Courts were not right in holding that suit schedule properties are joint family properties. He contended that suit schedule properties were purchased by the husband of appellant No. 1, Vithal. That plaintiff had not contributed in any way for the purchase of said properties. That Vithal purchased suit properties in his name, out of his own earnings, and therefore, they were his self-acquired properties. Plaintiff has no right, title and interest in said properties. But the Courts below did not appreciate this aspect of the matter and have erroneously held that suit properties are joint family properties. He contended that neither Annappa, father, nor the original plaintiff contributed in any way for the purchase of suit properties. It is only the deceased husband of defendant No. 1, Vithal, who purchased properties, out of his own earnings. Therefore, properties could not have been joint family assets of the family. The Courts below could not have granted half share to plaintiffs in suit properties. He contended that substantial question of law would arise in the appeal, and therefore, appeal may be admitted for a detailed hearing.

Per contra, learned counsel for respondents supporting the judgment and decree of the Court below contended that both the courts have rightly held that defendants have failed to prove that suit schedule properties were purchased in the name of deceased Vithal. There was no evidence to the effect that he had his own earnings or own source of funds, out of which he had purchased the suit properties. The suit properties were purchased in the name of Vithal as the plaintiff was away in military service. But the source of funds towards purchase of said property was on account of the earnings of Annappa, their father, who was having a Power Loom Enterprise. She also contended that in the year 1942 C.T.S. No. 4544 was purchased in the name of Vithal, as the seller was indebted to, the father, Annappa and as the seller could not repay the debt, he sold C.T.S. No. 4544, which was purchased in the name of Vithal. That property was sold on 18.04.1960, vide Ex. P-57 and from the sale proceeds the other suit schedule properties were purchased on 13.10.1960, namely, C.T.S. No. 2884 vide Ex. D-8. Therefore, suit properties were considered to be the joint family properties of Annappa, Vithal and Shivaji and not the exclusive property of Vithal.

In the absence of any proof regarding the self-acquisition of Vithal, the Courts below were right in decreeing the suit of plaintiff. That no substantial question of law would arise in the appeal. Therefore, she contended that the appeal may be dismissed in limine.

Having heard learned counsel for parties and on perusal of the material on record, it is noted that there is no dispute with regard to relationship between the parties. Annappa, original propositus, who died in the year 1964 had two sons, namely, Vithal, who died on 14.08.1999 and Shivaji, the original plaintiff, who died during the pendency of suit before trial Court. Shivaji was serving in military service. Annappa had Power Loom business. He was working and earning from the said business. Though it is contended that Vithal was engaged in the business of selling tea, there is no evidence to the effect that out of the earnings from tea business, Vithal had accumulated funds so as to purchase suit schedule properties as his self-acquisition. In the absence of any evidence in favour of defendants the preponderance of probabilities of the case is that Annappa purchased suit schedule properties out of the earnings from Power Loom business, in the name of Vithal, who was residing with him as Shivaji the other son, at the relevant point of time was engaged in military service. It is established that the original plaintiff, Shivaji was in military service from 20.03.1943 till his retirement on 10.06.1961. The properties have been purchased during the said period. Merely because the properties were purchased in the name of Vithal, it would not imply that they are his self-acquired properties. The properties were purchased in the name of Vithal, but they were joint family acquisitions. This aspect which is a question of fact has been appreciated by both the courts below and accordingly suit has been decreed. I do not find any infirmity in the judgment and decree of First Appellate Court confirming the judgment and decree of trial Court. No substantial question of law would arise in the appeal. The appeal is hence dismissed.

Parties to bear their respective costs.

In view of dismissal of appeal, I.A. No. 1/2014 also stands dismissed.