Ashwathamma vs Chickasubbamma and Others

B.V. Nagarathna, J.—This second appeal is filed by defendant No. 3 in O.S. No. 99/2005, which was decreed on 6/7/2006 and the same has been confirmed by judgment and decree dated 21/12/2013 in R.A. No. 151/2006 by the Addl. District and Sessions Judge at Chickballapur.

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

Respondent No. 1 herein filed the suit in O.S. No. 99/2005 seeking the relief of partition and separate possession of 1/4th share in the suit schedule properties and also the relief of restraining the defendants from alienating or transferring the suit properties to anybody in any manner.

It is the case of the plaintiff that the plaintiff and defendants belonged to Hindu Undivided Joint Family and they are in joint possession of the suit schedule properties. Originally one Ashwathappa @ Ashwathnarayanappa was the propositus of the family of the plaintiff and defendants. He had two wives, by name Nanjamma and Siddamma. Through the first wife, he had three daughters namely Nanjamma (defendant No. 1), Peddasubbamma (defendant No. 2) and Chikkasubbamma (plaintiff). Through the second wife, Ashwathappa had one daughter by name Ashwathamma (defendant No. 3). The parents of the parties are no longer alive. The plaintiff and defendants have been married and are residing with their respective husbands. According to the plaintiff, the defendants have colluded with each other and tried to change the khatha in their names without the knowledge of the plaintiff and are trying to alienate the suit schedule properties in favour of third parties. At that stage, the plaintiff demanded for partition and several rounds of negotiations and panchayats were held. But they were in vain. Therefore, the plaintiff filed the suit seeking her 1/4th share and separate possession in the suit schedule properties.

After service of notice and court summons, the defendants appeared and filed their written statement denying the case of the plaintiff and stating that the plaintiff and defendants are not joint family members and that they were not in joint possession of the suit schedule properties and they were married 35-40 years ago. The suit schedule properties belonged one Siddappa and presently his legal representatives are in possession of the suit schedule properties. That the plaintiff and defendants have no right in respect of the suit schedule properties and that defendants have sought for dismissal of the suit.

On the basis of the above pleadings, the trial court framed the following issues for its determination;

"i) Whether the plaintiff proves that herself and defendants are the Hindu undivided joint family members?

ii) Whether the plaintiff proves that the suit schedule properties are the Hindu Undivided Joint Family properties and they are in joint possession of the said properties?

iii) Whether the defendants prove that the family tree furnished by them in the written statement?

iv) Whether the defendants prove that the suit schedule properties are properties of Siddappa, his sons, grand-sons and great grand-sons?

v) Whether the plaintiff is entitled for the relief sought?

vi) What order or decree?"

In support of her case, plaintiff examined herself as PW1 and produced six documents, which were marked as Exs. P-1 to P-6. On behalf of defendants, defendant No. 3 examined herself as DW1 and got marked four documents as Exs. D-1 to D-4. On the basis of the said evidence, the trial court answered issue Nos. 1 to 4 in the negative and issue No. 5 in the affirmative and decreed the suit and held that the plaintiff and defendants are entitled for equal share in the suit schedule properties.

Being aggrieved by the judgment and decree dated 6/7/2006, defendant No. 3 filed R.A. No. 151/2006 before the first appellate court, which on hearing the parties framed the following points for its consideration:

"i) Whether the appellant/defendant No. 3 has made out sufficient grounds to allow I.A. No. IV filed under Order 41 rule 27 CPC to permit her to lead additional evidence?

ii) Whether the judgment and decree passed by the Civil Judge (Jr.Dn.) and JMFC, Gudibanda, dated 6/7/2006 in O.S. No. 99/2005 decreeing the suit of the plaintiff is illegal, perverse and liable to be set aside?

iii) What order?"

It answered point Nos. 1 and 2 in the negative and dismissed the appeal by affirming the judgment and decree of the trial court. During the pendency of the appeal, an application under Order 41 Rule 27 of Code of Civil Procedure Code (CPC) is also filed. That application was also dismissed. Being aggrieved by the judgment and decree of the first appellate court, defendant No. 3 has filed this appeal.

I have heard the learned counsel for the appellant.

He submitted that the suit schedule properties are not in possession of the defendants or plaintiff, but they are in possession of the legal representatives of one Siddappa. That Siddappa was not made party to the suit. If separate possession was sought by the plaintiff, then the legal representatives of Siddappa ought to have been made parties. In the absence of they being made parties, the relief granted to the plaintiff cannot be meaningful. He submitted that the trial court as well as the first appellate court without having appreciated this aspect of the matter and have granted decree of partition and separate possession of 1/4th share to each of the plaintiff and defendants without ascertaining as to whether the defendants were in possession of the suit schedule properties, which is incorrect. He, therefore, submitted that the judgment and decree passed by the trial court is only a nominal decree and cannot be translated into reality. He submitted that the appeal raises substantial questions of law and the appeal may be admitted for a detailed hearing of considering the same.

Having heard learned counsel for the appellant and on perusal of the material on record, it is noted that the relationship between the plaintiff and defendants is admitted. It is also an admitted fact that the suit schedule properties belonged to their father i.e., Ashwathappa @ Ashwathnarayanappa. The parents of the plaintiff and defendants are no longer alive and on their death, the plaintiffs and defendants have succeeded to the suit schedule properties. Although the trial court has gone into the issues as to whether the plaintiff and defendants formed a Hindu Undivided Joint Family and as to whether the properties in question are Hindu Undivided Joint Family properties and it has answered the first issue in the negative, I am of the considered view that the plaintiff and defendants being the only heirs of Ashwathappa their father, who was the owner of the suit schedule properties, what was relevant was, succession or inheritance with regard to the suit schedule properties. Therefore, Issue Nos. 1 and 2 were not relevant and necessary for deciding the case. What was necessary was, to ascertain as to whether the plaintiff and defendants were the children of deceased Ashwathappa @ Ashwathnarayanappa in order to divide the suit schedule properties between them by way of succession, under the provisions of Hindu Succession Act, 1956 as their father Ashwathappa @ Ashwathnarayanappa had died intestate. Although issue Nos. 1 and 2 have not been correctly framed by the trial court, nevertheless, the final decree passed by the trial court is correct and therefore, it would not be necessary to go into the details on the discussion with regard to issue Nos. 1 and 2 as what had to be considered was, strictly speaking, succession to the suit schedule properties and not partition of the said properties.

As far as issue Nos. 3 and 4 are concerned, the trial court has answered the said issues in the negative. Particularly on issue No. 4, it has been held that the suit schedule properties are not the properties of Siddappa. Ashwathappa had no issues other than plaintiff and defendants. Hence, only plaintiff and defendants have jointly succeeded to the estate of Ashwathappa and the trial court has rightly decreed the suit and held that plaintiff and defendants are entitled to an equal share in the suit schedule properties by way of a preliminary decree.

The first appellate court, while considering the appeal filed by defendant No. 3-appellant herein, also considered the application (I.A.IV) filed under Order 41 rule 27 CPC with regard to additional evidence to be let-in, but the application was dismissed for the reason that defendant No. 3 - appellant herein did not ascertain substantial reason for seeking production of additional evidence at the stage of first appeal. The first appellate court also held that the additional evidence by way of documentary evidence sought to be produced in the first appeal did not have any bearing on the case of defendant No. 3 and it was not necessary to adjudicate upon the controversy between the parties. With regard to the relationship between the parties, the first appellate court held that they were sisters/step sisters and that they were entitled to succeed to their father''s properties and that each one of them are entitled to 1/4th share in the suit schedule properties and the first appellate court thereby affirmed the judgment and decree of the trial court and dismissed the appeal.

Appellant''s counsel submits that the suit schedule properties are not in possession of the plaintiff or defendants and therefore, the decree granted by the courts below has no relevance inasmuch as no separate possession of the suit schedule properties can be given to the parties, as the person who is in actual possession of the suit schedule properties was not made a party. The relief claimed by the plaintiff against the defendants was only on the premise that the defendants were in possession of the suit schedule properties. It is on that basis, the decree of partition and separate possession had been granted. If indeed the suit schedule properties are not in possession of the defendants and in the possession of one Siddappa and later his family members, then in that case, nothing prevented the appellant herein from impleading those persons as defendants in the suit, but that has not been done in the instant case. The trial court as well as the first appellate court were not concerned with the division of the property by metes and bounds. The suit was for seeking a preliminary decree with regard to ascertaining the share of the plaintiff and defendants in the suit schedule property and a decree for division of the suit schedule properties. To that extent, both the courts below have rightly considered the case of the parties and have arrived at a correct decision on merits. If at all any difficulty arise with regard to the actual division of the suit schedule properties and handing over possession to plaintiff and defendants in final decree proceedings to be filed by the parties herein, at that stage, the question would be determined by the appropriate court in accordance with law. By merely submitting that in future, a controversy may arise with regard to actual division of the properties, at this stage, the judgment and decree of the courts below cannot be interfered with. On a perusal of the judgments and decrees of the courts below it is noted that they have rightly considered the case of the respective parties and concluded in accordance with law and the relief granted to the parties are just and proper. No substantial question of law arises in this appeal.

Appeal is dismissed.