Basavaraj and Others vs Nanjappa and Others

N. Kumar, J—This regular first appeal is filed by the plaintiffs, challenging the judgment and decree of the trial court, which has partly decreed their suit.

For the purpose of convenience, the parties are referred to as they are referred in the original suit.

The subject matter of the suit consists of three agricultural lands and two house properties, which are more particularly described in the schedule to the plaint and hereinafter referred to as the ''schedule properties''.

One Kunnabasappa had two sons by name Nanjappa and Basappa. The sixth defendant Smt. Mahadevamma, is the wife of Basappa. Plaintiff Nos. 1 and 2 are their children. Nanjappa, the first defendant died during the pendency of the suit. Defendant Nos. 2, 3, 4 and 5 are his sons. This relationship is not disputed.

The case of the plaintiffs is that Nanjappa and Basappa were living in a joint family. After the death of Basappa, the plaintiffs and defendants continued to be in the joint family till the date the suit was filed. The properties mentioned in the schedule as item No. 1, 2 and 4 are the ancestral properties of late Kunnabasappa. After his death, his sons and their family members are enjoying the above said properties. The properties mentioned in the schedule as item No. 3 was granted by the Government to the joint family in the names of defendant Nos. 2 to 5. As all of them were living together as members of the joint family, the said properties were also brought to the joint family hotchpotch and the plaintiffs and defendants are in joint possession and enjoyment of those properties.

The house properties mentioned in item No. 5 are constructed by the plaintiffs and the defendants out of the joint family income. All of them are in joint possession of the same. The house properties mentioned in item No. 5 are constructed in property mentioned in item No. 1 in the schedule. The said properties are not included in the assessment of Grama Panchayat.

During the lifetime of Basappa, the Katha of item No. 1 was kept in the names of both the brothers. After the death of Basappa, the name of the sixth defendant was entered in the Katha in place of Basappa. The fourth defendant himself and on behalf of defendant Nos. 1 to 3 and 5 filed an appeal before the Assistant Commissioner, Kollegal in R.A. No. 69/2002-2003 against the sixth defendant in relation to the RTC entries of the properties in respect of item No. 1. The sixth defendant also appeared in the said appeal. Defendant Nos. 1 to 5 have clearly stated that all of them are in joint family and there is no partition till today. Due to some difference between these plaintiffs and the sixth defendant, they did not disclose anything about the proceedings. The plaintiffs are not parties to the said proceedings. Therefore, they were not aware of the same. When the sixth defendant was going to Kollegal too often, on enquiry, the plaintiffs came to know about the said proceedings. By which time, the appeal had been disposed off.

Thereafter, they obtained a certified copy of the Memorandum of Appeal, Affidavit, Application and Objections filed by the second defendant, Written Arguments submitted by the fourth defendant and the order passed by the Assistant Commissioner and came to know the allegations made by them. Immediately, the plaintiffs demanded defendant Nos. 1 to 5 for partition and separate possession of their share in all the schedule properties by metes and bounds. Defendant Nos. 1 to 5 refused to make partition. Therefore, they have filed this suit for partition and separate possession of their half share in all the plaint schedule properties.

After service of summons, defendant Nos. 1 to 5 filed their joint written statement. They did not dispute the relationship between them as set-out in the plaint. They admitted that item Nos. 1, 2 and 4 of the plaint schedule properties are ancestral properties. But they denied that the plaintiffs and defendants continued to be in the joint family and in joint possession and enjoyment of the said properties. The property mentioned in item No. 3 was granted to the defendants 2 to 5 by the Government. It is therefore absolute property of defendant Nos. 2 to 5. The allegation that the said properties were granted by the Government to the joint family is false. Thus, the joint family of the plaintiffs and defendants was severed about 25 years ago. After the death of Kunnabasappa, the prepositus, the plaintiffs have been living in separate possession and enjoyment of their respective properties. It is absolutely false to say that they are living in the joint family and the properties granted by the Government were also brought to the joint family hotchpotch and all the plaintiffs and defendants are in joint possession and enjoyment of the said properties. The properties granted by the Government to defendant Nos. 2 to 5 are all in their separate possession and enjoyment of their respective lands as absolute owners. The houses mentioned in item No. 5 of the plaint schedule are not constructed from the joint family funds as alleged.

The allegation that the house properties are not included in the assessment of Grama Panchayat, as the said houses are situated at survey No. 641 and defendants and plaintiffs are in the possession of their respective share after the partition in the joint family which has taken place which has taken place 25 years ago, the katha of item No. 1 of the plaint schedule was kept in the name of the first defendant and Basappa are all denied as false. After Basappa died, the first defendant did not get the katha changed. They admitted the proceedings before the Assistant Commissioner. The plaintiffs never demanded partition and separate possession from defendant Nos. 1 to 5. The plaintiffs and defendant No. 6 are not jointly entitled to half share in the plaint schedule properties. Therefore, they sought for dismissal of the suit. The sixth defendant has not filed any written statement.

The trial court on the basis of the aforesaid pleadings framed the following issues:

i. Whether the plaintiffs prove that the suit properties are the joint family properties of the plaintiffs and the defendants?

ii. Whether the plaintiffs further prove that the suit properties are in the joint possession of the plaintiffs and the defendants, as alleged in the plaint?

iii. Whether the plaintiffs further prove that the suit item No. 5 house has been constructed out of the joint family funds, as alleged in the plaint?

iv. Whether the defendants prove that the suit item No. 3 was granted to the defendants by the Government and it is the absolute property of the defendant Nos. 2 to 5, as alleged in their written statement?

v. Whether the defendants further prove that, the valuation made by the plaintiffs in regard to the suit properties and court fee paid by them is insufficient?

vi. Whether the plaintiffs prove that the 6th defendant and the plaintiffs are entitled for 1/2 share jointly by way of partition and separate possession?

vii. To what reliefs the plaintiffs are entitled to?

viii. What order or decree?"

The plaintiffs in order to substantiate their claim examined the second plaintiff as PW-1 and produced 18 documents which were marked as Exhibits-P1 to P18. Fourth defendant was examined as DW-1. One witness by name Siddamma was examined as DW-2 and they also produced 13 documents, which were marked as Exhibits-D1 to D13.

The trial court on appreciation of the aforesaid oral and documentary evidence on record held the plaintiffs have proved that item Nos. 1, 2 and 4 are all joint family properties. But insofar as item No. 1 of the plaint schedule property is concerned, already there is a partition. Therefore, as on the date of the suit, it was not a joint family property. It held that the plaintiffs have failed to prove that item No. 5, house property has been constructed out of the joint family funds. Insofar as item No. 3 is concerned, it held that it is self-acquired property of defendant Nos. 2 to 5 as per Exhibits-D10 to 13. As such, the plaintiffs are not entitled to any share in the properties and ultimately, it decreed the suit of the plaintiffs partly, granting half share in item No. 2 of the suit schedule property by way of partition and separate possession and dismissing the suit in respect of all other properties.

Aggrieved by the said judgment and decree of the trial court the plaintiffs are in appeal.

The learned counsel for the appellants - plaintiffs assailing the judgment and decree of the trial court contends that the findings of the trial court that there was a partition in respect of item No. 1 of the schedule property as per Exhibit-D1 and therefore the plaintiffs are not entitled for half share along with the sixth defendant in the said property is on the face of it erroneous. Insofar as item No. 4 of the schedule property is concerned, admittedly, it is a joint family property and there is no partition and therefore the plaintiffs are entitled for half share in the said property. Insofar as the item No. 3 is concerned, though the grant was in the name of defendant Nos. 2 to 5, as all of them constitute joint family property and out of the joint family nucleus, the consideration payable for the grant was paid. The plaintiffs are entitled for share in the said property. Therefore, he submits the suit of the plaintiffs ought to have been decreed as prayed for.

Per contra, the learned counsel appearing for the defendant Nos. 1 to 5 submits that Exhibit-D1 clearly proves that there was a partition in the family which has been acted upon and mutation entries have been made on the face of the said partition. Insofar as item No. 3 is concerned, that was a grant made in favour of the defendant Nos. 2 to 5 in the year 1999 and when the plaintiffs and defendants were living separately for more than 25 years and when there was no joint family, the question of treating the said property as joint family property would not arise. More importantly, the specific case pleaded by the plaintiffs is that the said property though granted in favour of defendant Nos. 2 to 5, they have fallen to the common hotchpotch, which is not established. Therefore, he submits that the findings recorded by the trial court that item No. 3 is self-acquisition of defendant Nos. 2 to 5 is supported by legal evidence and does not call for interference.

Insofar as item No. 5 is concerned, both sixth defendant and defendant Nos. 1 to 5 have put up constructions in item No. 1 and they are in actual/physical possession of the said property and that property is already divided and therefore granting any decree in the said property would not arise and therefore the counsel submits no case for interference is made out.

In the light of the aforesaid facts and rival contentions, the following points arise for consideration in this appeal:

i. Whether defendant Nos. 1 to 5 have proved the mutation which they have set-up is based on any partition effected?

ii. Whether item No. 3 of the schedule property is a joint family property or self-acquisition of defendant Nos. 2 to 5?

iii. Whether item No. 5 of the schedule property forms part of item No. 1 and therefore no separate decree for partition could be passed in respect of the said property.

Point Nos. 1 And 3:

The material on record discloses that one Kunnabasappa was the prepositus. The schedule properties at item Nos. 1, 2 and 4 belonged to him. He had two sons by names Nanjappa, the first defendant and Basappa husband of the sixth defendant and father of the plaintiffs. During the lifetime of Kunnabasappa, there was no partition in the family. After the death of Kunnabasappa, the mutation entries which stood in his name was made out in the names of Nanjappa and Basappa as per Exhibit-D1 in respect of item No. 1 and an extent of 1 acre, 20 guntas was mutated in the name of Basappa and 2 acres, 20 guntas was mutated in the name of Nanjappa. In the said document, there is no whisper about any partition which had taken place between the brothers. The said mutation was made on the basis of their consent and on the basis of their actual enjoyment of the property. Similarly, no mutation entries were made in the name of Kunnabasappa. As there was no partition among the brothers, the family continued to be in joint. Even after the death of Basappa, the plaintiff and the defendants continued as the members of the joint family.

In fact the plaintiffs in support of their contention, relied on the statement of the fourth defendant found in Exhibit-P14 and the memorandum of appeal preferred by the fourth defendant against the sixth defendant before the Assistant Commissioner of Kollegal. The said appeal was in respect of land bearing survey No. 641, which is item No. 1 of the schedule property. It is stated therein that after the death of Basappa, in respect of land to an extent of 2 acres, katha was made in the name of sixth defendant, but she is in actual possession of only 1 acre, 17 guntas. Therefore, she could not have got the mutation entry made in her name to an extent of 2 acre. It is stated therein that Nanjappa and Basappa have not effected partition. It is by consent the mutation entries in respect of 2 acres was made in the name of Nanjappa and remaining 1 acre 20 guntas was made in the name of Basappa. In support of the appeal memo, he has filed an Affidavit marked as Exhibit-P15. Again he has reiterated in the said Affidavit that there is no partition among them.

In the said proceedings, sixth defendant has also filed a statement. In para - 4 of her statement, she has stated that Nanjappa and Basappa effected partition about 40 years back and thereafter they are enjoying the properties which have fallen to their share exclusively. The first defendant infact sold one house property and he was living separately with his family and obtained ration card and therefore she opposed the appeal.

From the aforesaid documentary evidence on record, it is not in dispute that the plaintiffs rely on the statement of the fourth defendant in the said proceedings to contend that there is no partition and they continue to be the members of the joint family. Whereas their own mother states that forty years back, there was a partition between the brothers and they are living separately. Other evidence on record shows that item No. 5 house properties are all situated in item No. 1. Both the plaintiffs and defendants have constructed houses and they are living separately. Ration card and voters list do prove this fact. Therefore, the probable inference that can be drawn is these two brothers are living separately after the death of their father. But that did not prove that the joint family properties have been divided by metes and bounds. Exhibit-D1 by an arrangement and by consent, katha of 2 acres, 20 guntas was made out in the name of Nanjappa and 1 acre, 20 guntas was made out in the name of Basappa. It is not on the basis of any partition.

Similarly, insofar as item No. 2 and 4 are concerned, there is no partition at all. Therefore, the evidence on record clearly establishes that though the family of Nanjappa and Basappa after the death of their father were living separately, item Nos. 1, 2 and 4, the joint family properties were not partitioned by metes and bounds. The court below was justified in granting the decree of partition and separate possession in respect of item No. 2, but it erred in not granting any decree in respect of item Nos. 1 and 4. Therefore, the judgment and decree of the trial court declining to grant partition in respect of item Nos. 1 and 4 is liable to be set-aside. The plaintiffs are entitled to half share in item No. 1, 2 and 4 of the plaint schedule properties.

The evidence on record shows that item No. 5 consists of houses. All these houses are admittedly constructed in item No. 1. The evidence on record did not disclose that these construction were made out of any joint family funds. On the contrary, the evidence on record would show that both these brothers were living separately for more than 25 years. Therefore, the only inference that could be drawn is after Exhibit-D1 i.e., in the year 1974 when by consent they got mutation entries in respect of item No. 1 of the schedule property between the two brothers they have tried to develop the properties. They have put up construction and they are living separately with their respective family. Therefore, the question of effecting partition in respect of item No. 5 which is part of item No. 1 does not arise. In item No. 1, the plaintiff and the sixth defendant is entitled to two acres and defendant Nos. 1 to 5 are entitled to two acres. As already stated parties have put up construction and they are living separately and the cost of construction is borne by them independently. Therefore, at the time of effecting partition, care should be taken to see that the construction, which are in their respective possession should be allotted to their respective shares and only in the vacant land there can be partition by metes and bounds to the extent of two acres to which each of these brothers are entitled to and which fell to their respective shares. That would meet the ends of justice and no injustice would be caused to the parties.

Point No. 2:

The specific case pleaded by the plaintiffs is, item No. 3 was granted by the Government to the joint family in the names of defendants 2 to 5. Since all the plaintiffs and defendants are living in joint family, the properties granted was also brought to the joint family hotchpotch and all the plaintiffs and the defendants are in joint possession and enjoyment of these properties. The very plea signifies that item No. 3 is the separate property of defendants 2 to 5. Defendants 2 to 5 by bringing the said property to hotchpot, have converted the separate property into joint family property. The defendants on their part in their written statement have specifically denied that it is a joint family property. They contend it is their self acquisition. In order to demonstrate that the defendants 2 to 5 have thrown item No. 3 into the common hotchpot, no evidence is adduced by the plaintiffs. On the contrary, Ex. D. 1 shows, in the year 1974, by agreement Basappa and Nanjappa started living separately by putting up constructions in the property which were mutated in their names. Basappa died somewhere in the year 1990. The Voters'' list produced in the case clearly demonstrates, both the branches were living separately with their family members. Further the evidence on record shows, both the branches put up residential construction as per item No. 5 of the plaint schedule in item No. 1 of the schedule property out of their own funds. Plaintiffs are not able to produce any evidence to show that there was any joint family nucleus. In fact, it is not their case that item No. 3 was acquired out of any joint family nucleus at all. The case pleaded is, they are the separate properties of defendants 2 to 5, who in turn have thrown the same into a common hotchpot. It is on record that item No. 3 consists of about 15 acres of land and about 3 acres and odd each was granted in favour of defendants 2 to 5 in their individual names. Mutation entries are made on the basis of the said grant in the names of defendants 2 to 5 respectively. Exs. D. 10, D. 13 are the saguwali chits which are issued by the Government in the names of defendants 2 to 5 respectively. The defendants 2 to 5 are cultivating these lands in their own right. In fact, there is a division among them which is also evidenced by necessary entries in the record of rights. By taking into consideration all this evidence on record, trial Court was justified in holding that item No. 3 is the self acquisition of defendants 2 to 5 and it is not a joint family property and therefore plaintiffs are not entitled to any share in the said property. The said finding is based on legal evidence and is just and does not suffer from any infirmity which calls for interference.

In that view of the matter, we do not see any justification to interfere with the said finding of fact recorded by the trial Court on the basis of legal evidence.

In the result, we pass the following order:

1) Appeal is partly allowed.

2) In substitution of the decree passed by the trial Court, the suit of the plaintiff is decreed, granting 1/2 share in items No. 1, 2 and 4 of the plaint schedule property.

3) Item No. 5 forms part of item No. 1.

4) While effecting partition, the constructions put up by the respective parties which are in their possession shall be allotted towards their 1/2 share. Only in the vacant land which is available, there shall be a partition dividing it equally, so that each branch would get 1/2 share inclusive of the construction thereof.

5) The suit of the plaintiffs in so far as item No. 3 of the schedule is concerned, is dismissed. Confirming the decree passed by the Trial Court.

Parties to bear their own costs.