Basavva and Others vs Thippanna and Others

B.V. Nagarathna, J.—1. Defendant Nos. 2 to 5 in O.S. No. 259/2007 have preferred this second appeal assailing judgment and decree passed in R.A. No. 8/2011 by the Principal Civil Judge (Sr. Dn.), Ranebennur, dated 14.10.2014. By that judgment and decree the plaintiffs have been granted half share in the suit schedule property comprising R.S. No. 57/6 measuring 1 acre 25 guntas, one gunta being pootkharab situated at Tumminakatti village in Ranebennur Taluk, Haveri District.

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

The respondent plaintiffs filed a suit seeking partition and separate possession of 1/3rd share in the suit schedule property. It is the case of the plaintiffs that one Karihanumappa was the original propositus. He had three sons, by name, Basappa, Kotrappa and Yallappa. At the time of filing of the suit, Basappa and Yallappa had died. Plaintiff No. 1 is the son of Basappa and plaintiff No. 2 is the widow of plaintiff No. 1''s brother, also called Basappa. Defendant No. 1 is Kotrappa. Defendant Nos. 2 to 5 are the children of Hanumappa son of deceased Yallappa. Defendant Nos. 6 to 9 are the brother and sisters of deceased Hanumappa, children of deceased Yallappa. Yallappa is the brother of Kotrappa-defendant No. 1 and Basappa who is also deceased.

According to the plaintiffs, the suit schedule property is ancestral property. Plaintiffs and defendants have succeeded to the said property on the demise of the original propositus, Karihanumappa. He died on 20.11.1975. After his death plaintiffs and defendants have been enjoying the suit schedule properties jointly and in the revenue records of the year 1985 the joint ownership and possession of the suit property is reflected. That there has been no partition of the said property amongst members of the joint family. But, later on, defendants in collusion with the revenue officials created documents to the effect that the defendants had relinquished their right, title and interest in respect of the suit property in favour of defendant No. 1-Kotrappa. According to the plaintiffs, at no point of time have they done so. The cause of action arose on 25.07.2007 when the defendants refused to partition suit property between members of the family. Therefore, they sought a decree seeking half share in the suit property.

On service of suit summons and Court notices defendant No. 4 appeared and filed written statement. Defendant Nos. 1, 2, 3 and 6 have filed a memo adopting the written statement of defendant No. 4. Defendant No. 4 in his written statement denied that suit property was the joint and ancestral property of the parties. However, he admitted that one Karihanumappa is the original propositus of the parties to the suit. Defendants admitted the relationship between the parties. It was admitted that Karihanumappa died on 20.11.1975 at Tumminakatti village. It was denied that plaintiffs are in joint possession and ownership of the suit property. It was denied that defendants have created documents in the revenue entries. It was denied that in the year 1985 names of the parties was shown as joint owners in possession of the suit property. It was stated that there was no partition among the parties and that the plaintiffs have relinquished their share in favour of defendant No. 1. That on 20.06.1982 plaintiff No. 1 Tippanna and husband of plaintiff No. 2 deceased Basappa had executed a relinquishment deed in favour of defendant No. 1. As a result, plaintiffs have no right, title or interest in the suit property. Hence, defendant No. 4 sought dismissal of the suit.

Defendant No. 6 filed his independent written statement admitting plaint averments. It is admitted that there is no partition among members of the family, that the properties are joint and ancestral properties, that he has a share in the suit property. Therefore, the said defendant requested for grant of the prayers sought by the plaintiffs and also to allot his share in the suit property.

On the basis of the aforesaid pleadings the trial Court framed the following issues for its consideration.

ISSUES

1) Whether the defendant No. 1 to 4 and 6 prove that the 1st plaintiff and his father late Basappa executed a relinquishment deed dated 20.06.1982 in favour of the 1st defendant relinquishing their undivided rights in the suit property?

2) Whether the plaintiffs prove that, they are having 1/3rd share in the suit property?

3) Whether the plaintiffs are entitled for rendition of accounts, by whom?

4) What order or decree.

ADDITIONAL ISSUE

1) Whether the plaintiffs prove that, there are entitled for 1/2 share over the suit schedule property?

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In support of their case plaintiff No. 1 examined himself as P.W.1. He produced 4 documents which were marked as Exs.P.1 to P.4. Defendant No. 1 examined himself as D.W.1 and examined another witness as D.W.2. They produced six documents which were marked as Exs.P.1 to Ex.P.6.

On the basis of the said evidence the trial Court answered issue Nos. 1 to 3 in the negative, additional issue No. 1 in the negative and dismissed suit of the plaintiffs by judgment and decree dated 06.04.2011. Being aggrieved by the judgment and decree of the trial Court plaintiffs preferred R.A. No. 8/2011 before the first appellate Court, which, on hearing the learned counsel for the parties framed the following points for its consideration.

1) Whether the plaintiffs prove that the suit property is their ancestral joint family property as on the date of the suit?

2) If so, whether they are entitled to seek partition in the suit property?

3) Whether the defendant Nos. 2 to 6 prove the alleged partition and the relinquishment deed as contended in their written statement?

4) Whether the trial Court has erred in appreciating the evidence on record in a proper perspective?

5) If so, whether the impugned judgement and decree under appeal calls for interference by this court?

6) What order or decree?

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It answered point Nos. 1 to 5 in the negative and decreed suit of the plaintiffs by setting aside judgment and decree of the trial Court dated 06.04.2011 passed in O.S. No. 259/2007. The first appellate Court held that the plaintiffs were entitled to half share in the suit schedule property. Accordingly, it ordered for partition and separate possession of the said property.

Being aggrieved by the judgment and decree of the first appellate Court defendant Nos. 2 to 5 have preferred this appeal. At this stage it may be noted that defendant No. 1 died during the pendency of the suit. He was not married and had no issues. Plaintiffs and defendants are the heirs of defendant No. 1. Consequently, his name was deleted from the array of parties.

It is contended on behalf of the appellants that the first appellate Court was not right in granting the decree of partition and separate possession to the plaintiffs to an extent of half share in the suit property. It was contended that the defendants had raised two defences in the written statement. Firstly, that there was a prior partition and therefore the suit for partition and separate possession was not maintainable. Secondly, in the year 1982 plaintiff No. 1 along with husband of plaintiff No. 2 had executed a deed of relinquishment in the suit schedule property. Therefore, they had lost right, title and interest in the said property.

Elaborating the said defences taken up by the defendants, learned counsel for the appellants contended that defendant No. 1 had earlier filed a suit O.S. No. 199/2002. In that suit, plaintiff No. 1 in the present suit was a defendant. A judgment and decree of declaration was granted in favour of defendant No. 1 which is evidenced by Exs.D.3, D4 and D5. That suit was in respect of house property bearing gram panchayat No. 235 and in that suit plaintiff No. 1 herein did not file any written statement. That suit was decreed and it was held that defendant No. 1 herein (plaintiff therein) was the absolute owner of the suit schedule property. Plaintiff No. 1 herein was directed to hand over possession of the suit house to the plaintiff therein who is the defendant No. 1 in this suit, within a period of three months from the date of the said order. He contended that, in that suit it was thus averred by defendant No. 1 that there was no joint family existing and that there was a prior partition which had effected in the year 1949 and the joint family properties had been divided. He, further contended that, in view of the relinquishment deed, defendants had the exclusive right, title and interest in the suit property. Therefore, substantial questions of law would arise in this appeal which would call for admission of the matter for a detailed hearing.

Having heard learned counsel for the appellants and on perusal of the material on record it is noted that there is no dispute with regard to the relationship between the parties. The original propositus, Karehanumappa, died in the year 1975, no material has been established by the defendants to the effect that in the year 1949 there was a partition between Karehanumappa, Basappa, Kotrappa and Yallappa. On the other hand, case of the defendants seem to be that even though the family remained joint, thereafter in the year 1982 plaintiff No. 1 and husband of plaintiff No. 2 had executed a relinquishment deed in respect of their share in the suit property to defendant Nos. 1 to 5. That document though dated 20.06.1952 marked as Ex.D.6 is not a registered instrument. Even if it is to be believed that the executants of the relinquishment deed had independently relinquished their right, title and interest in the suit property in favour of defendant Nos. 1 to 5, the same must have been under a registered instrument as it was a conveyance by them in favour of the other defendants. Thus said relinquishment deed has not been by a registered document. Also if there was a prior partition and properties of the joint family were divided then there was no occasion for plaintiffs to have relinquished their right, title and interest in favour of defendants. The trial Court did not give any credence to that document but nevertheless dismissed suit of the plaintiffs.

It is against dismissal of the suit, that the plaintiffs filed regular appeal before the first appellate Court. The first appellate Court took note of the fact that the trial Court was not right in dismissing the suit, that relinquishment deed had not been proved by defendant Nos. 1 to 5. Also prior partition was not established as the original propositus himself lived upto 20.11.1975. In the absence of any evidence with regard to the prior partition in the family, the first appellate Court rightly did not accept contentions of the defendant Nos. 1 to 5. Therefore, according to the first appellate Court suit property was available for partition as it was joint ancestral property of the plaintiffs.

The first appellate also took into consideration the fact that defendant No. 1 had died during the pendency of the suit before the trial Court, he was not married and had no issues. Consequently, the first appellate Court divided suit schedule properties between the branch of Basappa and Yallappa to an extent of half share each. Basappa''s legal representatives are none other than plaintiff Nos. 1 and 2. They are together entitled to half share in the suit schedule property. Yallappa''s branch together are entitled to half share in the suit schedule property. The first appellate Court has decreed suit of the plaintiffs by holding that the plaintiffs are entitled to half share in that suit property.

I do not find any infirmity in the judgment of the first appellate Court. No substantial question of law would arise in the appeal. Appeal is dismissed without order as to costs.

In view of the dismissal of the appeal, I.A. No. 1/2015 also stands dismissed.