Basappa and Others vs Shivanand Yamanappa Ramodagi and Others

P.S. Dinesh Kumar, J—Defendants No. 2, 3 and 4 in O.S. No. 17/2010 on the file of Prl. Senior Civil Judge, Bagalkot have preferred this appeal challenging the judgment and decree dated 03.01.2011 whereby the trial Court decreed that the defendant No. 1 is entitled to half share in suit schedule ''B'' to ''D'' properties and in turn, the plaintiffs are entitled to their respective shares in the half share of defendant No. 1.

For the sake of convenience, the parties shall be referred to in this appeal as per their status before the trial Court.

The genealogy of the family is as follows:

Plaintiff No. 6 is the wife and plaintiffs No. 1 to 5 are children of defendant No. 1. The plaintiffs have filed the suit contending inter alia that the defendant No. 1 is a blind and innocent person and other defendants taking undue advantage of his innocence, have been enjoying the properties to the detriment of plaintiffs and defendant No. 1. Properties mentioned in schedule ''B'' to ''D'' are movable and immovable properties belonging to the joint family. The ''C'' schedule property has submerged in the Upper Krishna Project and the plaintiffs are entitled for their legitimate shares in the compensation.

Pursuant to a memo filed by the plaintiffs, the suit against defendants No. 5 to 10 has been dismissed. Defendant No. 1 has filed written statement contending inter alia that properties described in schedule ''B'' to ''D'' are ancestral properties and they were purchased and developed out of the joint family income. Thus, he has prayed for partition supporting plaintiffs'' claim.

Defendant No. 2 has contested the suit by filing written statement. He admits that the schedule ''B'' properties are the joint family properties. So far as the properties described in schedule ''C'' is concerned, it is the case of the second defendant that the said properties have been partitioned between first and second defendants under an oral partition whereunder, property bearing VPC No. 63 an open site and VPC No. 124 of Bommanagi village were allotted to the share of the second defendant and property bearing VPC No. 123 of Bommanagi village fell to the share of defendant No. 1. He has further contended that the properties described in schedule ''D'' i.e., Tractor and Trailer and floor mill situated in VPC No. 63 of Bommanagi village are the self acquired properties of defendant No. 2 which he purchased by investing money out of his own sources and also constructed a building in VPC No. 63. It is his further case that floor mill situated in VPC No. 63 is run by his son, the defendant No. 4. On these contentions, the 2nd defendant has resisted the suit. Defendant No. 4 has adopted the defence taken by the defendant No. 2.

Based on the pleadings, the trial Court framed following eight issues:

Whether the plaintiff proves that, suit schedule ''B'', ''C'' and ''D'' properties are the ancestral joint family properties of plaintiffs and defendants?

Whether the defendants No. 2 and 4 prove that, there was already partition in schedule ''C'' property long back between defendants No. 1 and 2 orally?

Whether the defendant No. 2 proves that, V.P.C. Nos. 63 and 124 of Bommanagi village have been allotted to defendant No. 2 in the partition?

Whether the defendant No. 2 proves that, house property No. 123 has been allotted to share of defendant No. 1?

Whether the defendants No. 2 and 4 prove that, suit schedule ''D'' properties are being purchased out of salary savings?

Whether the plaintiffs are entitled to the relief sought for?

Whether the plaintiff is entitled to the relief sought for?

What order or decree?

On consideration of material on record, Trial Court answered issue Nos. 1, 6 and 7 in the affirmative and issue Nos. 2 to 5 in the negative and decreed the suit. Being aggrieved by the judgment and decree, the appellants have preferred this appeal.

Heard Smt. K. Vidya, learned counsel for the appellants and Sri A.T. Savanur, learned counsel for respondents No. 1 to 6 and Sri Ahmed Ali Rahman Shah, learned counsel for respondent No. 7 and perused the records.

Learned counsel for the appellants vehemently contends that the trial Court erred in decreeing the suit in its totality without taking note of the earlier oral partition effected between the defendants No. 1 and 2, the division of properties bearing VPC Nos. 63, 123 and 124, the acquisition of Tractor and Trailer and construction of floor mill building by the defendant No. 2. She submits that the appellants have no objection for partitioning the properties mentioned in schedule ''B'' and item No. 5, a harvesting machine. In support of her contention, she draws attention of this Court to Ex. D-1, a resolution passed by the Gram Panchayat directing registration of property bearing VPC No. 123 in the name of defendant No. 1, property bearing VPC No. 124 in the name of defendant No. 2 and property bearing VPC No. 63 in the name of defendant No. 4. Adverting to the said document, she submits that the mutation has been effected by entering the names of the parties in terms of a report (Vardi) given by defendants No. 1 and 2. She submits that admittedly the defendants No. 1 and 2 are the only heirs of late Hanumappa and the properties having already been divided between them, the present suit was not maintainable. She submits that the document at Ex. D-1 fortifies defendants'' the pleadings in the written statement to the effect that the properties mentioned in ''C'' schedule were already divided between defendants No. 1 and 2. In support of her contention that the immovable properties bearing VPC No. 123 in schedule ''D'' and the floor mill are the exclusive properties of defendant No. 2, she contends that the defendant No. 2 was a Teacher in a Government School and purchased the Tractor and Trailer from out of his own savings and the service benefits which he got at the time of his retirement. She relies on Exs. D-7 and D-8 to substantiate her contention that the Tractor and Trailer are the exclusive properties of defendant No. 2. Ex. D-7 is an acknowledgment dated 06.05.2002 issued by a tractor dealer M/s. Bhagyalaxmi Agro Service, Jamkhandi acknowledging a sum of Rs. 80,000/- as advance amount received from defendant No. 2 towards purchase of Swaraj Tractor. Ex. D-8 is a certificate issued by the Regional Transport Officer, Bagalkot containing the registration numbers of Tractor and Trailer bearing No. KA-29/T-7194-95. She adverts to the documents at Ex. D-2, receipt issued by the Gram Panchayat containing the name of defendant No. 4 and Ex. D-5 energy consumption payment receipts issued by the HESCOM and the cross-examination of DW-1 to contend that DW-1 has admitted that property bearing VPC No. 123 stands in his name and property bearing VPC No. 124 stands in the name of defendant No. 2 and the house property in VPC No. 63 stands in the name of defendant No. 4. In sum and substance, she submits that the appellants have no objection for partition of ''B'' schedule property and the harvesting machine described in ''D'' schedule. Among the properties in schedule ''B'', appellants stake claim over property bearing VPC No. 63 including the floor mill and VPC No. 123 and in schedule ''D'' properties, appellants claim their right over the Tractor, Trailer and the floor mil.

Per contra, learned counsel for the respondents/plaintiffs while supporting the judgment and decree of the trial Court assails the veracity of Ex. D-1. He submits that Ex. D-1 has come into existence without any request made by the plaintiffs or defendant No. 1. Defendant No. 2 was a Teacher and retired from his services only in the year 1996 whereas the floor mill has been in existence for the last over 28 years as admitted by the second defendant in his cross-examination. He draws attention to Ex. D-9, a letter issued by the office of Accountant General, Bangalore, to contend that the pension sanctioned to the 2nd defendant is only Rs. 1,297/- per month. No material is placed before the Court to substantiate the claim of 2nd defendant having sufficient means to acquire a Tractor and Trailer and for construction of floor mill building. He further submits that Ex. D-7 which acknowledges Rs. 80,000/- refers to only an advance amount paid towards purchase of Tractor and that it does not depict the full value. Even by a conservative estimate, a Tractor and Trailer would cost not less than Rs. 5 lakhs and the defendant No. 2 has not placed any material before the Court to prove that he has purchased the Tractor and Trailer by his own resources. He further submits that the deposition of DW-2 in examination-in-chief to the effect that he has constructed a building in property bearing VPC No. 63 by investing Rs. 5 to 6 lakhs is also equally fallacious as it runs counter to his categorical admission that the floor mill has been in existence for 28 years. In sum and substance, it is contended on behalf of the respondents/plaintiffs that the defendant No. 2 and his family members taking disadvantage of na�ve disposition and physical disability of defendant No. 1, have deprived them of the ancestral properties.

Based on the pleadings, evidence and contentions of respective parties, following questions fall for our consideration in this appeal are:

1) Whether the properties described in ''B'' schedule have been divided as per Ex. D-1?

2) Whether the defendant No. 2 proves that item Nos. 1, 2 and 3 in schedule ''D'' are self acquired properties?

3) Whether the defendants No. 2 and 4 prove that item No. 4 in schedule ''D'' exclusively belongs to defendant No. 4, the son of defendant No. 2?

Re issue No. 1:

Admittedly, defendants No. 1 and 2 are the only heirs of late Hanumappa entitled for equal share in the family properties. The dispute between the parties is in respect of two properties described in schedule ''D'' i.e., Tractor and Trailer and the floor mill. So far as the properties in schedule ''B'' are concerned, the burden is upon defendant No. 2 to prove that pursuant to the oral partition set up by him, property bearing VPC No. 123 was given to the defendant No. 1 and properties bearing VPC Nos. 63 and 124 remained with defendant No. 2. To substantiate this claim, defendant No. 2 has placed reliance only on Ex. D-1. Ex. D-1 is a resolution passed by the Gram Panchayat in terms of a report (varadi) said to have been given by the defendants No. 1 and 2 to effect mutation. This document has been brought on record on 23.11.2010 through defendant No. 2 who is an interested witness. Ex. D-1 is issued on 02.08.2010. The issuing authority or any official of the Panchayat have not been examined to prove this document. On the other hand, DW-1 in his cross-examination has specifically denied the suggestion that property bearing VPC No. 63 was given to defendant No. 4. Referring to the branch of defendant No. 2, he has categorically stated that they have got entries mutated without his knowledge. He has also denied that defendant No. 2 has spent Rs. 15 to 20 lakhs in putting up construction of the building in property VPC No. 63. The defendant No. 1 has also denied any earlier oral partition as claimed by the defendant No. 2. Therefore, in the absence of any cogent and legally admissible evidence, it is not possible to accept the contentions of defendant No. 2 with regard to his claim of exclusive ownership of properties bearing Nos. 63 and 124. Hence, this issue is answered against the branch of defendant No. 2.

Re issue No. 2:

So far as items No. 1 to 3 mentioned in schedule ''D'' are concerned, the only document which throws light on the payment of consideration is Ex. D-7, an acknowledgement evidencing payment of advance amount towards purchase of Tractor. The actual cost of the Tractor and the payment of balance consideration have not been placed on record by the defendant No. 2. In the circumstance, the claim of exclusive ownership of item Nos. 1 to 3 in ''D'' Schedule properties by the branch of defendant No. 2 is answered against them.

Re issue No. 3:

We are now left with floor mill, which is described as item No. 4 in the schedule ''D''. The ownership of the floor mill by the defendant No. 4 is claimed only on the basis of copies of tax paid receipt and the energy consumption receipts Exs. D-2 and D-4 serious. Ex. D-2 is a receipt issued by the Gram Panchayat in respect of property bearing VPC No. 63. This document bears the name of defendant No. 4. It is relevant to note that Ex. D-2 discloses that the property tax is paid for the period for 01.04.2003 to 31.03.2004 and Ex. D-5 series are energy consumption bills for various months in the year 2010. Ex. D-9, a communication dated 21.03.1996 issued by the office of the Accountant General discloses that the defendant No. 2 retired from service with effect from 01.04.1996. There is absolute no material to show that DW-2 or any of the member of his branch have put up any construction in property No. 63. It is noteworthy that in the examination-in-chief, the defendant No. 2 has stated that he has spent Rs. 5 to 6 lakhs to put up construction of building in property No. 63. In the cross-examination, he has admitted that the cost of tractor at the time of purchase was Rs. 4,60,000/- and there is no corresponding documentary evidence to show that he has spent in all Rs. 10 to 11 lakhs to put up construction of building and to purchase the tractor. On the other hand, his specific admission in the cross examination that he has received Rs. 4 lakhs from his pension and another specific admission that the floor mill was in existence for the last 28 years prior to the date of deposition i.e., approximately from the year 1982 completely demolish his case. Admittedly, the father of DWs-1 and 2, Hanumappa passed away on 28.08.2000. Ex. D-1 has come into existence on 31.10.2001. Therefore, the theory of earlier oral partition having not been proved, we hold that notwithstanding the fact that floor mill is being managed by the defendant No. 4, this issue needs to be answered against the branch of defendant No. 2.

For the aforementioned reasons, this appeal fails and accordingly stands dismissed. In the circumstance, there shall be no order as to costs.