Dodda Nagappa @ K V Nagendra vs Smt. Channamma, Since Dead by Lrs Smt. Nagamma and Others

Subhash B Adi, J.—This appeal is by the 4th defendant against the judgment and decree in O.S. No. 3644/1984 dated 11.10.2002 on the file of XXXI Additional City Civil Judge, Bangalore. Parties are referred to as per their ranking in the Trial Court.

The deceased plaintiff No. 1 and plaintiff No. 2 filed a suit for partition and separate possession of 1/3rd and 1/9th share respectively in the suit schedule property, by metes and bounds. By contending that, the suit schedule property was acquired by Musalappa, it was his self acquired separate property. Plaintiff No. 1 was his wife. Plaintiff No. 2, defendant Nos. 8 and 9 were the daughters of Musalappa. Father of the defendant Nos. 2 to 7 and husband of defendant No. 1 was the son of Musalappa. After the death of Musalappa, plaintiffs, defendant Nos. 8 and 9 and defendant Nos. 1 to 7 have not partitioned the suit property, as such, plaintiffs claim that they are entitled for 1/3rd and 1/9th share respectively.

The said suit was contested by defendant No. 1 interalia contending that, the suit property was ancestral property. During the lifetime of Musalappa, plaintiff No. 2 and defendant Nos. 8 and 9, daughters were given separate property, it is defendant Nos. 1 to 6, who were looking after Musalappa, plaintiff No. 2 has no share in the ancestral property. Also contended that, there is one more daughter Gangamma, she has not been impleaded, as that suit is liable to be dismissed for non-joinder of necessary parties.

The Trial Court on the basis of the pleadings framed the following issues and additional issues:

i) Whether the plaintiffs prove that the 1st plaintiff is entitled to 1/3rd share and the 2nd plaintiff is entitled to 1/9th share in all the suit schedule properties and they are all self acquired properties of deceased Musalappa the husband of the 1st plaintiff as alleged?

ii) Whether the plaintiffs prove that 1st and 7th defendants are collecting rents and are appropriating the income of the land also and therefore they are liable to account for the income as alleged?

iii) What are the income of the suit properties and who are collecting the same and who are liable to account for the incomes?

iv) Whether defendant 1 to 4 prove that plaintiffs cannot claim shares in the ancestral properties of Musalappa and that some suit properties are ancestral and some are self acquired of Musalappa and if so which?

v) Whether the defendants Nos. 1 to 4 prove that plaintiff No. 1 and defendant No. 7 are collecting income of some properties as alleged?

vi) Whether the defendant 1 to 4 prove that Musalappa had given the shares of 2nd plaintiff and 8th defendant by way of lands and money and the properties were actually divided during the lifetime of Musalappa and subsequently also by metes and bounds and therefore, there cannot be another partition as alleged?

vii) Whether the defendants proves that unless the shares of 2nd plaintiff and 5th defendant are included in suit properties no partition can be allowed?

viii) What decree or order?

ADDITIONAL ISSUES:

i) Whether the defendant No. 1 proves that this court has no jurisdiction to try this suit?

ii) Whether defendant No. 1 proves that the plaintiff No. 2 separated from the family and taken her share?

iii) Whether the defendant No. 1 proves that the plaintiff in possession of property and court fee has to be paid on the market value of the property?

During the pendency of the suit, plaintiff No.1, wife of Musalappa, died. Plaintiff No. 2, who was already on record, was treated as legal representative of plaintiff No. 1. She got herself examined as PW-1 and got marked Exs.P1 to P7. On behalf of the defendants, DW-1 and DW-2 were examined and Exs.D1 to D11 were marked in their evidence.

Trial Court held that the plaintiffs have proved that, plaintiff No. 1 is entitled for 1/3rd share and plaintiff No. 2 is entitled for 1/9th share in the suit schedule property. It is also held that, defendant No. 7 is collecting the rent from the tenant in the suit schedule property. Defendant Nos. 1 and 7 are liable to give accounts for having collected the rents of the suit schedule property. Further held that the defendants have proved that, some of the properties are ancestral properties and some of the properties are self-acquired properties of Musalappa. That, plaintiff and defendant No. 7 are collecting the rent, but negatived that, Musalappa had given the share to Plaintiff No. 2 and Defendant No. 8. It also negatived the issue that, the share given to the plaintiff No. 2 and defendant No. 5 is required to be included and accordingly, it held that the plaintiff No. 2 is entitled for 1/4th share and defendant Nos. 8 and 9 are each entitled for 1/4th share and defendant Nos. 1 to 7 are entitled for 1/4th share. It is against the said judgment and decree, defendant No. 4 alone is before this Court.

It is not in dispute that, Musalappa had acquired the suit schedule property. He died intestate on 15.05.1984 leaving behind his wife deceased plaintiff No. 1, plaintiff No. 2 and defendant Nos. 8 and 9, the daughters. It is also not in dispute that, Venkataravanappa was the son of Musalappa, however, he predeceased Musalappa leaving behind his second wife - defendant No.1 and defendant Nos. 2 to 6, who are the children born to the second wife and defendant No. 7 born to his first wife.

Though the learned Counsel for the appellant submitted that, plaintiff No. 2 and defendant Nos. 8 and 9 being the daughters, they had taken the shares during the lifetime of Musalappa, he also contended that, Musalappa had purchased the separate property for them and that was in lieu of their shares in the property of Musalappa. As such, the trial court ignoring the same has erroneously decreed the suit. He also contended that, one Gangamma was another daughter of Musalappa and she has not been made a party in the suit. However, contended that defendant No. 7 was not collecting the rent and it is also clear from the evidence of PW-1 in her cross examination, wherein she had admitted that the defendants are not collecting the rents and she does not know who are the present tenants in occupation. After the death of defendant No.1-Janakamma, her children are collecting the rents.

Facts, which are not in dispute, are that, deceased plaintiff No. 1 was the wife of Musalappa and she died during the pendency of the suit. Plaintiff No. 2 was treated as legal representative of the first plaintiff. If Musalappa died intestate and suit schedule property being acquired by Musalappa during his lifetime, in the absence of proof of any joint family income having been contributed or existence of the ancestral property, the acquisition of suit property by Musalappa becomes a separate property of his own and in this case, admittedly, there is no evidence to show that, the defendants had contributed any income to acquire the suit schedule property, in turn, Venkataravanappa, father of defendant Nos. 2 to 7 and husband of defendant No. 1 was predeceased of Musalappa. There is no evidence to show that there was any joint family income or joint family property. It is not in dispute that, Musalappa had acquired this property. It is also not in dispute that, Musalappa died intestate. There is no testamentary document nor it is claimed also. When a father dies leaving behind separate properties, his children becomes Class-1 heirs and they became entitled for equal share. Musalappa had plaintiff No. 2, defendant Nos. 8 and 9 as daughters and predeceased son Venkataravanappa, they had only four children, defendant Nos. 1 to 7 represent the branch of Venkataravanappa, as such, the trial court decreed the suit granting 1/4th each share to plaintiff No. 2 -daughter and defendant Nos. 8 and 9 and defendant Nos. 1 to 7 together 1/4th share. There is absolutely nothing to the contrary is shown, how partition effected by the Trial Court is erroneous. Hence, having regard to the above findings, I do not find there is any error in the judgment and decree of the trial court.

Accordingly, appeal fails and dismissed.

However, there would be no order as to the cost.