D.M. Mallegowda and Others vs A. Jayanth and Others

Ravi V. Malimath, J.—The case of the plaintiffs 1 & 2 is that they being the minors from the date of filing of the suit are represented by their natural mother and guardian namely, the wife of the 2nd defendant. Defendant No. 1 is the father and defendants 2 & 3 are the sons. The plaintiffs are the children of defendant No. 2. The suit schedule property is originally the joint family properties of the plaintiffs and the defendants. They are in joint possession of the same. Item No. 1 was the joint family property gifted by defendant No. 1 in favour of his wife Lakshmamma. The gift deed was executed after the suit was filed with an intention to defraud the claims of the plaintiffs. Hence, the gift deed is not binding on the plaintiffs. That the marriage of the mother of plaintiffs and defendant No. 2 was performed on 15-5-1994. They were born out of the wedlock. Thereafter in 1998 defendant No. 2 went to Mysuru along with the wife and children and are residing therein and carrying on business. Defendant No. 2 thereafter deserted the plaintiffs and their mother and went to his native place. That he did not care for the plaintiffs or his wife. The joint family property was yielding income and that they are entitled for a share in the property. A legal notice was issued demanding the same. The same was not accepted. Hence, the instant suit was filed seeking for partition and separate possession of 2/9th share of the suit schedule properties. On service of notice defendant No. 1, 3 and 2 filed their written statements. Defendants 1 & 3 denied the plaint averments. They denied that the properties are the joint family properties. The relationship however was admitted. It was denied that the 3rd defendant was in bad habits. That the plaintiffs have no right to claim the suit property. That defendant No. 1 being a Government employee and presently retired, the suit schedule properties were acquired by him out of his own income. Hence, he prayed for dismissal of the suit. Defendant No. 2 also denied the suit averments. That in order to repay the loan, defendant No. 2 has received loan from defendant No. 3, and defendant No. 3 had executed release deed in respect of his share of ancestral property. Therefore he has no right over the suit schedule property. On the basis of the pleadings, the trial court framed the following Issues and additional Issues:--

"1. Whether the plaintiffs prove that the suit schedule properties are an ancestral and joint family properties?

Whether the plaintiffs prove that they are having 2/9th share in the schedule properties?

Whether the defendant No. 1 to 3 prove that the suit schedule properties are self acquired properties of the defendant No. 1?

Whether the plaintiffs are entitle for the relief as prayed for?

What decree or order?"

Additional Issues:

"1. Whether the plaintiffs prove that alleged gift deed dated 09.12.2005 executed by the defendant No. 1 in favour of his wife viz Lakshmamma is Sham and void document and it is not binding on them?

Whether the defendant prove that Item No. 4 of the suit property is the self acquired property of the defendant No. 1?"

The plaintiff examined herself as P.W. 1 and marked 9 documents. Two witnesses were examined on behalf of the defendants and 2 documents were marked. Issues 1 & 2 and additional Issue No. 1 were held in the affirmative while Issue No. 4 was held partly in the affirmative. Issues 3 and additional issue No. 2 were held in the negative. The suit of the plaintiffs was partly decreed holding that the plaintiffs are entitled for partition and separate possession of 2/9th share in the schedule properties. Aggrieved by the same, the first defendant filed an appeal. The appeal was dismissed. Hence, the present second appeal by defendant No. 1.

After filing of this appeal, the 1st defendant died. An application was made to bring the LRs on record. Consequently, his wife and two sons were directed to be brought on record by the order dated 7-11-2012. Thereafter I.A. 1/2014 has been filed by the appellant seeking amendment of the written statement. It is contended that appellant No. 1(a) is the wife of the deceased. Originally defendant No. 1 together had 3 sons namely, Ashok, Kumar and one Chidambara. Ashok and Kumar have been impleaded as L.Rs and on the death of his father defendant No. 1. Chidambara died intestate on 5-1-1996. On his death his L.Rs namely, his mother who is appellant No. 1(a) became the L.R. Hence his share devolved upon her. Since he was not made a party before the trial court, the written statement requires to be amended to the said effect. Defendants filed objections. I have considered the said objections. However, at the time of arguments the said objections has not been pressed by the counsel for the respondent. It is a statement of fact which has remained undisputed that the respondent himself is the brother of the deceased.

However, on considering the contentions as well as the application made, I''am of the considered view that it will be wholly unnecessary to amend the written statement. The application has been sought for seeking amendment of the written statement. Even if the said application has to be allowed the matter would necessarily have to be sent back for reconsideration to determine the devolution of interest on the death of the son of the 1st defendant. Since the said fact is not disputed, what remains for consideration is the share of each one of the parties. Hence on taking judicial notice of this fact, it is necessary that the share of the deceased be considered in accordance with law. Hence, it is wholly unnecessary to amend the written statement.

This appeal is admitted to consider the following substantial question of law:--

"(1) Whether the Judgment & decree of the first appellate court is right in granting 2/9th share together to the plaintiffs.

(2) In view of the subsequent developments whether such a decree could be sustained?"

Heard learned counsels on the same.

On the date of decree, taking into consideration the various sharers, the property was divided between the father and the two sons and the plaintiff''s father the grand children namely, the daughters of one of the sons namely, defendant No. 2 and has decreed the suit holding that they are entitled for 2/9th share in the suit schedule property. In view of the fact that the other son predeceased the father, necessarily the shares would have to be divided between the father and his three sons. On a notional partition being effected and on considering the death of the 3rd son Chikkaiah necessarily the shares requires to be altered.

Since the death of Chidambara was not brought to the notice of the Court, the allotment of shares is erroneous, since Chidambara was also entitled to a share. Hence, the first substantial question of law is answered by holding that as on the date of decretal of the suit the trial court was justified in awarding 2/9th share to the plaintiffs together. The Second Substantial question of law is answered by holding that in view of the subsequent events being brought to the notice of the Court the Judgment & decree cannot be sustained. The substantial question of laws are accordingly answered.

It is presently submitted at the bar that the Final decree proceedings have since been closed. That the shares have been allotted in terms of the Judgment & decree of the trial court whereby 2/9th share has been given. In view of the aforesaid reasoning the final decree proceedings would have to be reopened and the executing Court to redetermine the shares by granting 1/12th share to the plaintiffs together.

Consequently, the appeal is allowed. The Judgment & decree dated 21-10-2010 passed by the Civil Judge & JMFC, Arakalgud, in O.S. No. 172/2008 and the Judgment & decree dated 10-8-2011 passed in RA No. 1/2011 by the Fast Track Court, Arakalgud, are modified. The plaintiffs are together entitled to 1/12th share in the suit schedule property.

No Costs.