Eranna and Others vs Nagendrappa and Others

B.S. Patil, J.—This Regular Second Appeal is directed against the judgment and decree dated 06.09.2008 passed by the learned Civil Judge (Sr. Dn.) & JMFC, Madhugiri, allowing R.A. No. 29/1994 and dismissing the suit O.S. No. 286/1990.

Appellants are the legal representatives of the original plaintiff - Eranna @ Kivuda Eranna, son of late Boranna. Plaintiff instituted the suit seeking partition and separate possession of his half share in the land bearing Sy. No. 117/2 measuring 14 acres 5 guntas. It was the case of the plaintiff that one Eranna was the propositus. He had seven children. Out of them, except the first son Boranna and the fourth son Chikanna, the others died issueless. Plaintiff claimed under Boranna, first son. Whereas, defendant No. 1 Siddamma is the daughter of the fourth son Chikkanna and Negendra, the second defendant was the grandson of Chikkanna (son of Siddamma). The 3rd defendant is the purchaser of a portion of land bearing Sy. No. 117/2 (suit schedule property) from Siddamma.

Plaintiff contended that lands bearing Sy. No. 117/2 and 103/4 of Gollarakatte Village were the joint family properties of Boranna and Chikkanna and they enjoyed the same during their lifetime. Boranna, father of the plaintiff died. Thereafter, Chikkanna, younger brother of Boranna also passed away. It is further contended that in the year 1969, Chikkanna, son of Eranna and the plaintiff and his brother deceased Chikkanna together gifted 5 acres of land in Sy. No. 117/2 in favour of 1st defendant Siddamma, daughter of Chikkanna under a registered Gift Deed. During the same year, members of the family together sold property comprised in Sy. No. 103/4 in favour of one Govindappa. In 1962, Sy. No. 117/2 was hypothecated to the Block Development Officer for obtaining loan. It was further urged by the plaintiff that they were living separately; there was no division in the family by metes and bounds; they demanded defendants 1 & 2 to allot half share in the suit schedule property whereupon they agreed to partition the property and an agreement in this regard was reduced into writing at 28.06.1977. However, plaintiff learnt before the date of filing of suit that fraudulent attempts were being made by defendants 1 & 2 to deprive the plaintiff of his share in the suit schedule property. Hence, he instituted the suit.

Defendants resisted the suit by filing written statement. Except admitting the relationship between the parties, they denied all other assertions made by the plaintiff. They urged that Sy. No. 103/4 was the only joint family property of Boranna and Chikkanna and the property in Sy. No. 117/2 was the self acquired property of late Chikkanna, father of the 1st defendant and was his exclusive property. They denied the assertion made by the plaintiff that plaintiff, his brother Chikkanna and paternal uncle Chikkanna together gifted 5 acres of land in favour of the 1st defendant. They specifically asserted that Gift Deed was executed solely by Chikkanna, father of the 1st defendant - Siddamma. They also denied the assertion that Mortgage Deed was executed in favour of Block Development Officer by the joint family. Several other contentions were urged in the written statement.

The most important aspect that was urged by the defendants was that Sy. No. 117/2 originally belonged to one Avina Nagappa and after his death, it was inherited by his wife Siddajji. The said Siddajji was none other than the sister of late Chikkanna (father of defendant No. 1). She sold the land in Sy. No. 117/2 to an extent of 14 acre 29 guntas to Chikkanna (father of defendant No. 1). Later on Chikkanna purchased 4 aces 16 guntas of land from Boodanna, Siddanna and Borappa (vendors of Siddajji). In all, father of 1st defendant had purchased an extent of 19 acres 5 guntas of land in Sy. No. 117/2 and that the same was the self acquired property of 1st defendant''s father. Out of these, 5 acres of land was gifted in favour of 1st defendant during his lifetime by Chikkanna. After his death, his wife Nagamma executed a Will with regard to the rest of the land in favour of 2nd defendant and as such the suit schedule property was the self acquired property of the 2nd defendant. Out of the same, 2nd defendant sold 3 acres of land in favour of 3rd defendant.

Both the parties have adduced evidence in proof of their respective stand taken and issues were framed. Plaintiff was required to prove that he and defendants 1 & 2 were the members of undivided joint family and the suit schedule property was the joint family property, wherein he was entitled for half share. Whereas, defendants were required to prove that the suit schedule property was self acquired property of Chikkanna and that they had perfected their title over suit schedule property by way of adverse possession.

The Trial Court held that plaintiff was successful in establishing that the suit schedule property was the joint family property and that the defendants failed to establish that it was the self acquired property of Chikkanna or that they had perfected their title over the suit schedule property by way of adverse possession.

In the appeal, Lower Appellate Court has reversed these findings and has dismissed the suit holding that the schedule property was self acquired property of late Chikkanna, father of 1st defendant. Aggrieved by the same, this Regular Second Appeal has been filed by the plaintiffs.

I have heard learned counsel for both parties and perused the judgments under challenge and as also the evidence on record.

It is clear from the judgment of the Lower Appellate Court that it has re-appreciated the evidence and has recorded its findings to hold that originally the land belonged to Avina Nagappa and after his death, it was inherited by his wife Siddajji, who was none other than the sister of late Chikkanna, father of 1st defendant and it was this Siddaji, who sold the land to several persons and the father of 1st defendant purchased it from different persons way back in 1937 and that after purchase of land measuring 19 acres 5 guntas, it was renumbered as Sy. No. 117/2. Out of the said extent, Chikkanna gifted 5 acres of land in favour of his daughter during his life time and thereafter, Smt. Nagamma, widow of Chikkanna executed a Will bequeathing the remaining land in favour of 2nd defendant. This evidence on record has been appreciated by Lower Appellate Court to come to the conclusion that the land in question was self acquired property of deceased late Chikkanna.

In addition, it has also been found by the Lower Appellate Court that father of plaintiff had left the village long back and was residing at Chowlur and later on they had sold the only joint family property comprising Sy. No. 103/4 in the year 1969. Lower Appellate Court has also taken note of the fact that the suit property was in continuous possession and enjoyment of the 2nd defendant.

It is contended by learned counsel for the appellants that the mortgage deed was executed not only by Chikkkanna, but also by the other co-owners, therefore, it was abundantly clear that the property was treated as a joint family property. He further contended that even to the gift deed, plaintiff was not a signatory.

It is nextly urged by learned counsel that Exhibit P11, which is an agreement to effect partition of the suit property amongst the members of joint family itself made it clear that suit property was treated as a joint family property.

Learned counsel has placed reliance on the judgment of this Court in the case of G.B. Mallakarjuniah Vs. J.S. Kanniah Setty and Others, to contend that separate property of a Hindu ceases to be his property and acquires the characteristic of joint family, if the intention of the owner of the property to waive or surrender his special right as a separate property is proved. Reliance is also placed on the judgment of Apex Court in the case of Goli Eswariah Vs. Commissioner of Gift Tax, Andhra Pradesh, to the same effect.

There can be no dispute regarding the legal proposition, but the question is whether such blending has been pleaded or is established in the instant case by the plaintiffs. Lower Appellate Court has examined the effect of Exhibit P11. It has held that Exhibit P11 cannot be taken into consideration for the purpose of holding that property was a joint family property. Indeed, 1st defendant Siddamma is said to have put her LTM on the said document. This document is denied by the plaintiffs. She has not been summoned for cross-examination either to confront her LTM nor the same has been proved in the manner required by law. In the absence of proof of her LTM, mere production and marking of the document subject to objection raised cannot be treated as proof of the document.

As regards the mortgage deed executed by plaintiff and others, Lower Appellate Court has appreciated the fact that signatures of children of Boranna had been obtained while mortgaging it to the bank for obtaining loan and hence it could not be regarded as a joint family property. It has also observed that the gift deed was executed by Chikkanna alone and the plaintiffs were not parties to the same. Hence, based on these findings and evidence on record, the Lower Appellate Court has come to the conclusion that the suit schedule property was the self-acquired property of late Chikkanna. This conclusion arrived at by the Lower Appellate Court logically flows from the reasons assigned by it. The reasons assigned by it cannot be characterized as perverse in the light of the evidence on record. Hence, there is no scope for interference in exercise of power and jurisdiction under Section 100 of C.P.C.

No substantial question of law arises for consideration in this appeal. Therefore, the appeal is dismissed. Parties shall bear their respective costs.