Devaraj vs Mayanna

A.V. Chandrashekara, J.—Plaintiffs of an original suit bearing O.S. No. 2093/2009 which was pending on the file of the City Civil Court at Bangalore have preferred this appeal u/s 96 of CPC. Suit filed by them for the relief''s of partition and separate possession has been dismissed by a considered judgment on 24.02.2011 by the XXXVIII Addl. City Civil Judge, Bangalore. It is this judgment which is called in question on various grounds as set out in the appeal memo. The respondent herein was the lone defendant in the said case. Parties will be referred to as plaintiffs and defendant as per their ranking given in the Trial Court.

Facts leading to the filing of the suit for partition and separate possession are as follows:

One Nanjaiah was the father of the plaintiffs. Defendant is the brother of the said Nanjaiah. The said Nanjaiah died on 28.01.1992 leaving behind his wife Smt. Chikkahanumamma and plaintiffs as their legal heirs. Nanjaiah''s wife Chikkahanumamma died on 17.09.2001. According to the plaintiffs, Nanjaiah and defendant were living jointly till Nanjaiah died and during the lifetime of Nanjaiah, immovable properties had been acquired out of the joint family funds and later on a residential house was put up. According to the plaintiffs, suit schedule properties are joint family properties of Nanjaiah and defendant and item No. 1 was purchased by Nanjaiah from his brother H.V. Mayasetty by virtue of a registered sale deed dated 22.08.1979 and item No. 2 was purchased in the name of the defendant under a lease-cum-sale agreement dated 08.02.1994 executed by the Bangalore Development Authority.

Further case of the plaintiffs is that Nanjaiah and defendant being the members of the joint family constructed a Mangalore Tile roofed house in item No. 1 of the suit schedule property by using the joint family funds. Item No. 2 was purchased in the name of second defendant. After the death of Nanjaiah, defendant somehow managed to get a partition deed on 05.08.1995 between their mother Chikkahanumamma and himself and that plaintiffs are not parties to the said partition. The mother of the plaintiffs was an ill-literate lady and taking undue advantage of her innocence, a partition deed was got executed on 05.08.1995 in order to knock off item No. 2 of the suit schedule property.

Defendant had leased out southern portion of item No. 1 of the suit schedule property and later on, shifted his residence to the newly constructed house in item No. 2 and then only plaintiffs came to know about the partition deed dated 05.08.1995 in which item No. 2 is not included. Partition deed is void and does not bind him is their averment. Hence, they have sought for partition and separate possession of the suit schedule properties claiming 1/2 share together in both the items.

Defendant has filed detailed written statement denying all the material averments. He has called upon the plaintiffs to prove the existence of the joint family and second item being the joint family property. According to him, the partition was effected between Chikkahanumamma and himself on 05.08.1995 and she represented the share of her husband and therefore, suit is barred by time. According to him, item No. 1 originally belonged to Sri. Varadaih, who was an agriculturist in Kalinganahalli, Nagamangala Taluk. Elder sister of the defendant by name Nanjamma got married and was residing in RGI Colony, Bangalore. After the marriage of elder sister, late Nanjaiah came to Bangalore and joined KSRTC as a driver. After completing VIII Std. H.V. Mayasetty came to Bangalore, and studied upto B.Sc., and then joined Railway Mail Service. This defendant came to Bangalore and studied upto B.A. and started working as a School teacher for a period of five years and later on joined Karnataka State Agricultural Marketing Board in the year 1975. One brother late Ramaiah remained in the village and continued with agriculture.

This family, according to the defendant, was allotted with a free site in the year 1962 by the then Trust Board. Since H.V. Mayasetty was educated and already in service, the site was registered in his name. In the year 1968 all the three brothers joined together by investing money equally constructed a Mangalore Tiled house in item No. 1. A site in Manjunathnagar,. Bangalore has been registered in the name of H.V. Mayasetty. All the three brothers constructed a house in RMS Colony, Sanjaynagar, Bangalore, by contributing money. Thereafter, an oral partition took place and the site and house in RMS Colony Bangalore, was allotted to the share of H.V. Mayasetty and item No. 1 has been allotted to the share of late Nanjaiah and the defendant equally. Another site at Manjunathnagar was divided and half share was allotted to Ramaiah and remaining half share was allotted jointly to late Nanjaiah and the defendant. Late Nanjaiah and the defendant continued to be in joint possession of the shares allotted to them. The site at Manjunathnagar, was sold around 1992 by H.V. Mayasetty for Rs. 3,60,000/-. As agreed, half share in the proceeds ought to have been allotted to the share of Ramaiah and the remaining half share to be divided between defendant and late Nanjaiah. Instead of paying 50% to the wife of Ramaiah, H.V. Mayasetty paid only Rs. 50,000/- to Ramaiah''s widow and paid Rs. 45,000/- to him. Remaining amount was knocked off by H.V. Mayasetty.

After the death of Nanjaiah, plaintiffs and their mother and the defendant were in joint possession of item No. 1. Under the leadership of H.V. Mayasetty, item No. 1 was divided between plaintiffs and their mother on one side and defendant on the other side on 05.08.1995 and parties have been put into possession in item No. 1 equally.

Defendant, being in service, had applied for grant of site, to Bangalore Development Authority and accordingly item No. 2 was allotted to him. The said site has been registered in his name and amount is deducted from his salary. As such, plaintiffs have no manner of right, title and interest over the schedule property. He has put up a building out of his own income is the averment. Hence, with these pleadings, he prays for dismissal of the suit.

Following issues have been framed by the Trial Court:

Whether plaintiffs prove that their father late Sri. Nanjaiah and defendant had jointly acquired item Nos. 1 and 2 of suit schedule properties?

Whether plaintiffs prove that they are entitled to 1/2 share in both the suit schedule properties?

Whether defendant proves that under registered partition deed dated 5.8.1995 partition was already been effected in the joint family properties between him and his brothers?

Whether defendant proves that item No. 2 of suit schedule property is his self acquired property?

Whether defendant proves that suit of plaintiffs is bad for non-joinder of necessary parties?

Whether the valuation of suit made by plaintiffs is for the purpose of payment of Court fee is proper and Court fee paid on the plaint is proper and sufficient?

Whether the suit of plaintiffs is in time?

Whether plaintiffs are entitled to the relief sought for?

What order or decree?

Plaintiff Devaraj was examined as PW1 and has got marked four exhibits and defendant is examined as DW1. No documents have been examined on his behalf. Ultimately, suit has been dismissed. Issue No. 1 is held affirmatively in part. Items 3, 4 and 7 have been answered in the affirmative and remaining issues in the negative. It is this judgment which is called in question as set out in the appeal memo.

After hearing the learned counsel appearing for the parties and perusing the records, following points arise for our consideration:

Whether in the partition deed dated 05.08.1995 marked as Ex.P3 would bind the plaintiffs?

Whether item No. 2 is the self-acquired property of the defendant?

Whether any interference is called for by this Court and if so, to what extent?

Re. Point Nos. 1 and 2:

Since points 1 and 2 are interlinked they are taken up together. The fact that Nanjaiah and defendant were brothers is not in dispute Ex.P2 is the certified copy of the sale deed dated 22.08.1979 executed by H.N. Mayasetty in favour of Nanjaiah, the father of plaintiffs. The site conveyed to Nanjaiah under Ex.P2 measures East: West 30.6 ft., North: South 21.3 ft. and the same is situated in R. Gopalaswamy Iyer Colony, Bangalore. Earlier the same had been allotted to the vendor Sri. Mayasetty by the then City Improvement Trust Board. The same property is described as item No. 1 in the schedule appended to the plaint. After purchasing the property, the house was constructed on item No. 1 and the same has been divided between the mother of the plaintiffs and defendant on 05.08.1995 and Ex.D1 is the certified copy of the partition deed. The plaintiffs have attacked this document as a document got executed by the defendant coercing his sister-in-law i.e. the mother of the plaintiffs and that it does not bind them because they are not parties to the said partition deed.

In Ex.D1 there is a reference about Nanjaiah having died on 28.01.1992 and Nanjaiah and defendant being the members of the joint family enjoying item No. 1 as a joint family property. The said property has been equally divided as schedule ''A'' and schedule ''B'' properties. Southern portion has fallen to the share of Mayanna and northern portion has fallen to the share of the mother of the plaintiffs. As could be seen from Ex.D1 the house was constructed in the year 1980 on item No. 1. Chikkahanumamma the mother of the plaintiffs is no more and her share is identified as northern portion in the house built on item No. 1.

The partition entered into between Chikkahanumamma and the defendant on 05.08.1995 has been challenged by filing a suit for partition in the year 2009 i.e., almost 13 1/2 years after the execution of the registered partition deed. Parties have taken possession of their respective shares as indicated in Ex.D1. Being the eldest member of the family representing the share of late Nanjaiah, Chikkahanumamma participated in the partition deed and took half share. She had adequately represented her children and therefore, half share allotted to her cannot be found fault with. Even otherwise, plaintiffs cannot have any grievance since half share has been allotted in item No. 1.

After completing his Graduation in the year 1971, defendant became a School teacher and joined Karnataka State Agricultural Marketing Board in the year 1975. As an employee of the Marketing Board, he applied to Bangalore Development Authority for granting a site in his favour. He had paid the initial amount to Bangalore Development Authority and after the site was granted, he paid the entire sale consideration out of his salary. Later on he obtained loan from Andhra Bank Rajajinagar Branch, Bangalore, to put up a house thereon. Admittedly, defendant was already employed in Marketing Board and had his own income. Nothing is placed on record to show that joint family of Nanjaiah and Mayanna had sufficient joint family property and out of the income from the joint family properties the same was purchased. Even otherwise, Mayanna was a junior member in the joint family and had his own income to purchase the site.

Ex.P4 is the lease cum sale agreement executed in favour of defendant by the BDA during February 1994. A sum of Rs. 20,000/- was paid to BDA on that day. He became the owner only after the lapse of ten years from the date of lease cum sale agreement was executed. Thus the defendant has been able to effectively prove that item No. 1 was purchased by him out of his income and later on the house was put up thereon.

Just because item No. 2 was granted in favour of defendant during the lifetime of Nanjaiah it cannot be held that grant was in favour of the joint family. Under Hindu Law, a member of the joint family can acquire property in his own name. The only burden cast upon him is to prove that such a possession is his self-acquisition. In the present case, defendant has been able to prove that he was a junior member and had sufficient income to pay the price relating to the grant of the site i.e., item No. 2 in question. Apart from ibis, he has been able to effectively prove that the house built thereon is out of his own money and he has been able to prove that the joint family consisting of himself and his later brother Nanjaiah did not have any joint family properties or joint family income out of which he could have purchased the property.

The Trial Court has properly analysed the oral and documentary evidence in right perspective. It has adopted right approach to the real state of affairs. On the basis of preponderance of probabilities, the Trial Court has held that plaintiffs have failed to prove that the partition deed of the year 1995 does not bind them. Further, the plaintiffs have failed to prove that item No. 2 was a joint family property acquired out of the joint family funds. Hence, points 1 and 2 are answered in the affirmative.

Re. Point No. 3:

In view of our finding on points 1 and 2, appeal is liable to be dismissed as no interference is called for.

ORDER

Appeal is dismissed by upholding the judgment dated 24.02.2011 passed in O.S. No. 2093/2009 on the file of the XXVIII Addl. City Civil & Sessions Judge, Bangalore.

In view of the relationship of the parties, there is no order as to costs.