G. Anjanappa vs Ramakrishnappa and Others

Ravi V. Malimath, J—Aggrieved by the Judgment & decree dated 29-1-2003 passed by V Additional City Civil Judge, Bengaluru, partly decreeing the plaintiff''s suit for partition and separate possession, defendant No. 10 has filed this first appeal.

The parties would be referred to as per their rank in the trial Court.

The case of the plaintiff is that the father of the plaintiff late Muniyappaa had 3 sons, namely, Venkatesh Ramakrishnappa (the plaintiff) and Muniswamy. Venkatesh pre deceased his father leaving behind him, his wife and 3 children (one and two daughters). Defendant No. 1 is the wife and defendants 2 to 4 are the children of Venkatesh. The plaintiff and defendant No. 5 are his brothers. The plaintiff and defendants 1 to 5 are the members of the joint Hindu family. The suit schedule properties are ancestral and joint family properties. The joint family is in possession and enjoyment of the same. The plaintiff is the resident of Bengaluru and defendants 1 to 5 are residing at Yemalur village, HAL Post, Bengaluru. The father of the plaintiff and defendant No. 5 were managing the family affairs till his death in the year 1984. Thereafter the 1st defendant and 5th defendants were managing the joint family properties. That the father late Muniyappa intended to perform the marriage of his first son late Venkatesh. He therefore approached the defendant bank for a loan of Rs. 3,000/-. The loan was granted on the condition that he executes the hypothecation deed pertaining to item No. 1 of the suit schedule property. The 11th defendant paid the loan of Rs. 3,000/-. However instead of preparing the hypothecation deed, the plaintiff''s father was asked to sign on the sale deed for item No. 1. Therefore the transaction relating to said Item No. 1 is to be considered only as hypothecation deed. After the death of Muniyappa the plaintiff came to know that defendant No. 11 has sold some portions in Item No. 1 in favour of defendants 6 to 9. Notwithstanding the same, the possession of Item No. 1 continued to be with the family. Out of the income of the joint family the father of the plaintiff purchased Items 2 & 3 in the suit schedule property, by virtue of registered sale deed in the year 1942. Thereafter Muniyappa executed nominal sale deed in respect of items 2 & 3 of the agreement in favour of his wife Akkachamma on 7-12-1949. Akkachamma died on 2-4-1978 and after her death the plaintiff''s father became the owner of the suit properties. Venkatesh one of the brother, in order to deprive the legitimate rights of the plaintiff has allegedly obtained a forged Will from Akkachamma which was registered after her death. After the death of Venkatesh, the 1st defendant on behalf of herself and on behalf of defendants 2 to 4 who were minors at that point of time, sold items 2 to 4 in favour of 10th defendant under a registered sale deed dated 30-12-1982. The said Will is concocted and forged. Item No. 4 of the suit schedule property which is a house is the ancestral property. Therefore, alienation with respect to Items 2 to 4 is null and void and not binding on the plaintiff. A legal notice was issued calling upon the 1st defendant to effect partition, but nothing came out of it. Hence, the suit was filed seeking for partition. During the pendency of the suit they have amended the prayer column contending that the sale deed dated 10-8-1982 executed by the 1st defendant in favour of the 10th defendant in respect of Items 2 to 4 is not binding on him in respect of his share and such transaction should be declared as null and void. The same was granted. Upon service of court notice the defendants entered appearance. Defendant No. 1 filed the written statement partly denying the averments. It was contended that the suit schedule properties exclusively belong to defendants, as such the plaintiff has no right, title or interest over the properties. The contention that the plaintiff and defendants 1 to 5 are in joint possession was denied. The loan said to have been taken by the father of the plaintiff by hypothecation of Item No. 1 was denied. It was contended that Items 2 & 3 of the suit schedule properties were exclusively owned by Akkachamma who is the mother-in-law of the 1st defendant. Akkachamma was in exclusive possession and enjoyment of the property till her death. She had executed a Will in favour of her son Venkatesh on 8-5-1978 which is registered subsequently to her death. The 1st defendant and her minor children were in exclusive ownership of items 2 & 3. Soon after the demise of Akkachamma her husband was managing the properties. Hence, it is prayed that the suit be dismissed. Defendants 6, 8 & 9 filed a common written statement. They are the purchasers of item No. 1 of the suit schedule property. With regard to the facts narrated in the plaint they contended that the property was legitimately sold and they are purchasers of the same. That the plaintiff and his brother Venkatesh have also given consent for the said sale. It was an outright sale. There was no agreement of sale prior to it. On the date of the purchase, the possession was handed over to Papaiah and thereafter Papaiah handed over the same to defendants 6, 8 & 9 under three different sale deeds dated 13-12-1978, 27-12-1978 and 13-12-1978. Since the possession was handed over to them they continue to remain as such. The 10th defendant is the purchaser of suit Item Nos. 2, 3 & 4. He has filed a separate written statement. He has denied that the plaintiff and defendants 1 to 5 are the members of the joint Hindu family. He admits that the plaintiff, Venkatesh and the 5th defendant are the sons of Muniyappa. That they have been divided long back. That the properties are no more joint family properties. The plaint schedule properties exclusively belong to defendants 1 to 4. As such they have no right, title or interest over the properties. That the 5th defendant cannot be considered as a Manager of the joint family properties. The transaction with regard to the suit Item No. 1 was also denied by him. He denied that late Muniyappa purchased plaint Items 2 & 3 out of the joint family funds. That Items 2 & 3 of the suit schedule properties were exclusively the properties owned by Akkachamma. She executed a Will in favour of her son Venkatesh on 8-5-1978 bequeathing Items 2 & 3 of the suit schedule property. After the death of Akkachamma the Will was registered before the Sub-Registrar Venkatesh acquired absolute ownership of the suit properties till his death on 10-8-1980. After his death the 1st defendant being the wife and her minor children, defendants 2 to 4, have succeeded to the suit properties as legal heirs. As such defendants 1 to 4 are in exclusive possession of Items 2 & 3 of the plaint schedule, since it does not constitute joint Hindu family. It is false to say that Venkatesh obtained a forged Will from Akkachamma in respect of these two properties. The defendants have replied to the legal notice issued by the plaintiff by denying the contentions therein. That there is no cause of action to file the suit. Defendants 5 & 11 remained absent. The rest of the defendants did not file their written statement.

Based on the pleadings, the trial Court framed the following Issues:--

"1. Whether the plaintiff proves that the suit properties are the joint family and ancestral properties of plaintiff and defendant Nos. 1 to 5?

Whether the plaintiff proves that the suit properties are in joint possession of the plaintiff and defendants 1 to 5?

Whether the plaintiff proves that the transaction between late Muniyappa and the 11th defendant was only a loan transaction in respect of item 1 of the suit properties and not a sale deed?

Whether the plaintiff proves that 11th defendant in Collusion with his father Muniyappa and Venkatesh, have sold some portions of item No. 1 of the suit Properties to defendants 6 to 9 without possession?

Whether the plaintiff proves that under the sale deed dated 17.8.1942, he acquired the suit item 2 and 3 out of the joint nucleus and a nominal sale deed dated 7.12.1949 was executed by his father in favour of his mother?

Whether the plaintiff proves that late Venkatesh has obtained a forged Will dated 3.5.1978 from his mother in respect of item 2 and 3 of the suit properties?

Whether the plaintiff proves that the 1st defendant for herself and on behalf of her minor children defendants 2 to 4, has sold suit items 2 and 4 to 10th defendant under a sale deed dated 30.12.1982 and does not bind the plaintiff?

Whether the plaintiff proves that the alienation by defendants 1 to 4 is not for necessity?

Whether the plaintiff proves that he is entitled to 1/3rd share in all the suit properties and entitled for Separate possession of his share?

Whether the plaintiff proves that he is entitled to mesne profits from the date of suit till possession of his share?

Whether the first defendant proves that plaintiff, late Venkatesh and 5th defendant are divided long back?

Whether the suit is properly valued?"

The plaintiff was examined as P.W.1 and 4 other witnesses were examined and 180 documents were marked. The 10th defendant was examined as D.W.1 among two other witnesses and 17 documents were marked. The Court Commissioner who is the Inspector of Police, Finger Print Expert was examined as C.W.1 and 3 documents were marked as documents 1 to 3. Issues 1, 2, 6, 7, 8, 9, 10 & 12 were held in the affirmative, Issues 3, 4 and 11 were held in the negative. Issue No. 5 did not survive for consideration. By the impugned Judgment the suit of the plaintiff was decreed holding that the plaintiff is entitled for partition and separate possession of 1/3rd share in all the suit properties except Item No. 1. That the sale deed dated 10-12-1982 executed by the 1st defendant on behalf of minors 2 to 4 was not binding on the plaintiff in respect of his share in Items 2 to 4 of the suit schedule properties. Separate enquiry in regard to mesne profits were ordered. The suit against defendants 6 to 9 & 11 in respect of item No. 1 of the suit schedule properties was dismissed. Aggrieved by the same, defendant No. 10 has filed this appeal.

Sri Jagadeeshachari, the learned counsel appearing for the 10th defendant-appellant contends that the impugned Judgment & decree is bad in law. That the trial Court failed to consider the material and evidence on record. That even though substantial evidence was let-in in order to prove the Will, the trial court has erroneously disbelieved the case of the defendants. That when the husband of Akkachamma himself has identified the LTM, the same should have been accepted. The trial Court committed an error in accepting the evidence of the Court Commissioner while holding that the Will is invalid and not proved. Therefore he pleads, based on the evidence, that the finding recorded on the Will be reversed by holding that the Will is proved. That the trial Court committed an error in misreading the evidence of the appellant. That the evidence of the appellant does not indicate that he has admitted that there is a joint family. The trial Court on misreading the evidence wrongly held that the appellant has admitted that the joint family exists. Hence, he pleads that the appeal be allowed.

On the other hand, the learned counsel appearing for respondent No. 1(a) to (c) namely, the plaintiff defends the impugned Judgment & decree. He contends that there is no error committed by the trial court that calls for any interference. The finding of the trial court that Item Nos. 1 to 3 have been sold for joint family necessity is just and proper and hence not questioned by the plaintiff. He accepts such a finding. The finding recorded by the trial court that the Will is invalid is based on evidence of the Court Commissioner. Such evidence cannot be lightly brushed aside. The trial Court was therefore justified in holding that the Will was not proved. The trial Court was also justified in holding that when the 10th defendant himself has stated in his evidence that the joint family exists, he contends, that no interference is called for.

During the pendency of these proceedings respondents 12, 13 & 14 filed an application, in I.A.I/2005 under Order 1 Rule 10(2) read with Section 151 of CPC seeking to implead them. That even though the application was filed by Smt. Gowramma and Smt. Jayamma having passed away, the application was considered only so far as in respect of Smt. Savithramma. It was pleaded that Smt. Gowramma, Smt. Jayamma & Smt. Savithramma are the three daughters of Muniyappa and sister of Venkatesh, Ramakrishnappa and Muniswamy. They are the brothers. Therefore they are entitled to an equal share.

By the order dated 23-3-2011 I.A.1/2005 was allowed. Smt. Savithramma was permitted to come on record as respondent No. 12.

I.A.1/2008 was filed seeking to come on record as respondents 13 to 21. It is stated that the applicants 1 to 5 are the LRs of late Smt. Gowramma and applicants 6 to 9 are the L.Rs of late Smt. Jayamma, constituting respondents 13 to 21. By the order of even date, they were permitted to come on record as respondents 13 to 21.

During the pendency of this appeal, the 6th respondent Muniswamy having died the application was filed as I.A.2/2008 under Order 22 Rule 10 read with Section 151 of CPC for impleading. It was contended that Muniswamy has bequeathed his share in the suit schedule properties in favour of the applicants and therefore they are necessary parties for the purpose of prosecuting this appeal.

By the order dated 3-8-2011 I.A.2/2008 was allowed and respondents 14 & 21 were permitted to come on record as L.Rs in place of respondent No. 6, Respondent Nos. 14 & 21 have already come on record. On the death of Respondent No. 1, I.A.5/2008 was filed to bring the L.Rs of deceased 1st respondent on record. By the order dated 10-3-2011 the delay in filing the L.R application was condoned. The abatement was set aside. The L.Rs of respondent No. 1 were permitted to be brought on record.

Sri Jagadeesh C.K., the learned counsel represents R-12 to 21. By the order dated 28-6-2004 notice to respondents 7 to 9 & 11 (subsequent purchasers) were dispensed with. Hence, Jagadeesh C.K., learned counsel appears for respondents 12 to 21, namely, the daughters of Muniyappa and their respective L.Rs. He contends that the plaintiff has not included them in the suit. It is undisputed that they are the sisters. Therefore, each one of these daughters are entitled for an equal share. He supports the reasoning assigned by the trial Court, but, however contends that since they were not made as parties and having been subsequently impleaded in this appeal, they are entitled to an equal share to that of their brother. Since there are 6 children, each one of them would be entitled to 1/6th share in the suit schedule property. That the share is to be determined based on the decree of the trial Court. That the finding of the trial Court on item No. 1 is acceptable to them and there is no challenge to it. The only challenge is the modification of the share entitling each of them to an equal share namely, 1/6th share to each one of the three sisters and their respective L.Rs.

Heard learned counsels and examined the records. There are 7 suit schedule properties. The trial Court has decreed the suit excluding of item No. 1. There is no dispute that the findings recorded by the trial Court with respect to Item No. 1. Item Nos. 5, 6 & 7 have already been decreed by the trial Court. The defendants have not challenged the Judgment of the trial Court in decreeing items 5, 6 and 7. Defendant No. 10 has alone filed this appeal questioning the decree of the trial Court with respect to items 2 to 4, since he is the purchaser of those suit properties. None else have challenged the Judgment & decree of the trial Court.

Therefore, the points that arises for consideration in this appeal are as follows:--

"1) Whether the trial Court committed an error in misreading the evidence of the Court Commissioner while holding that the Will is forged?

2) Whether the trial Court committed an error in misreading the evidence of the appellant/defendant No. 10 in concluding that the family and the properties continued to be joint?

3) Whether the Judgment of the trial Court is perverse and any interference is called for?

The case of the 10th defendant is that late Muniyappa executed a sale deed dated 7-12-1949 in favour of his wife Akkachamma. After the death of Akkachamma, Muniyappa became the owner of the said properties and was in possession of the same till his death in the year 1984. Items 2 & 3 of the suit schedule properties were properties exclusively owned by Akkachamma through her husband. She executed a Will in favour of her son Venkatesh on 8-5-1978 bequeathing items 2 & 3 in his name. After the death of Akkachamma, the Will was registered in the office of the Sub-Registrar. Venkatesh acquired absolute ownership of the properties based on the Will. He was therefore managing and enjoying all the properties till his death on 10-8-1980. After his death, the 1st defendant Saraswathamma being his wife and defendants 2 to 4 being his children succeeded to the properties as legal heirs. The wife of Venkatesh on her behalf and on behalf of her minor children, namely, defendant No. 2 and defendant No. 4 executed the sale deeds in favour of the 10th defendant on 10-12-1982 and 13-6-1984. Ever since then, the 10th defendant is in possession and enjoyment of items 2 to 4 by virtue of two sale deeds dated 10-12-1982 and 13-6-1984. The property was Willed in respect of Items 2 to 4. Therefore the legal right of the 10th defendant stems from the title of his vendors namely defendants 1 to 4. The title of the vendor is based on the Will executed in favour of the husband of the 1st defendant. In considering whether the Will was genuine or not, it was the burden of the defendant to prove it. It was the 1st and 10th defendants who have propounded the Will. Under these circumstances, the Will Ex.P-177 would have to be considered, in order to know whether the same is genuine or not? The plaintiff in his evidence has narrated that his mother Akkachamma was ailing at the time of her death. That she was not in a position to understand what she was doing. Taking undue advantage of her ill-health, Venkatesh has created a forged Will in his name. Therefore, the Will Ex.P-177 is a forged document. The thumb impression of Akkachamma does not tally with the other documents which are placed on record.

It is for these reasons that the trial court was of the view that the Will has to be examined by an expert and hence appointed the Court Commissioner to examine the genuineness of the Will.

C.W.1 the Court Commissioner, is the Police Inspector and he is a finger print expert. He has submitted his report in terms of Ex. C.1 to C.3. He submitted his report in terms of Ex.C-1. Ex.C1(a) is his signature. C-2 is the reasons for opinion of Court Commissioner. C.3 is the enlarged thumb impression.

The Court Commissioner has stated that the admitted thumb impression of Akkachamma on Ex.P-20, the loan application made by Akkachamma along with her children and Ex.P-7, the certified copy of the mortgage deed which bears her thumb impression do not tally with the disputed thumb impression of Akkachamma found in Ex.P-177 the Will. The reasonings assigned by the trial court are based on evidence and material on record. The genuineness of the thumb impression of Acchakamma has been established by the evidence of the Court Commissioner. The Court Commissioner is an expert. He was also cross-examined at length by defendant No. 10. There is nothing worthwhile that has been elicited that calls for any interference. That the admitted and the disputed thumb impressions are not identical ones. Therefore based on the evidence it may be seen that the husband and the 1st defendant namely, Venkatesh would appear to have forged this Will in order to suit his own purpose. When the thumb impression on the Will has not been proved, the same cannot be accepted as a genuine document.

If the Will is not proved, no right can flow through the Will to Venkatesh. If no legal right flows to Venkatesh his legal heirs namely, defendants 1 to 4, obviously, would not have any right or title over the same. Defendants 1 to 4 are the vendors of defendant No. 10. When defendant Nos. 1 to 4 does not have a valid title to sell the property to defendant No. 10, as such the sale deed therefore is void ab initio. It is executed without any right, title or interest by the vendors. When the vendor himself does not have title, the purchaser cannot get a better title than what his vendor possess. Therefore, the trial Court has rightly come to the conclusion that the defendants having failed to prove the Will and no right flows from it to the 10th defendant. Therefore the sale deed executed in favour of the 10th defendant being void ab initio, will not have any force of law.

It is further contended by the learned counsel for respondents 12 to 21, that yet another aspect of the matter is that defendants 1 to 4 who claim to be holders of a valid title of items 2 to 4 is concerned, did not even choose to enter the witness box in support of their case. Except filing their written statement, where they narrated that they sold the properties to defendant No. 10, no effort has been made by them to lead evidence to establish that the Will is genuine. When the Will is alleged to be concocted, the duty of the defendants 1 to 4 should have been to defend the Will. They have not even entered into the witness box. Hence, this is also another factor to hold that the finding of the trial Court does not call for any interference on the Will. Hence, the first point for consideration, is answered by holding that the trial Court has not committed any error in misreading the evidence of the Court Commissioner in holding that the Will is forged.

The second point is whether the nature of the properties are ancestral or joint family properties. The defendants contend that the properties having been sold to Akkachamma in the year 1949, the same has to be considered as the division of the joint family status. Ever since then, the execution of the sale deed in favour of Akkachamma, therefore she becomes the owner in exclusive possession of the said property. Since she is in exclusive possession by virtue of the sale deed, the status of the joint family having been disrupted, no suit for partition would lie. However, the trial Court on considering the said contention, negated the Will. The evidence of P.W.1 is to the effect that there was no partition in the family of Muniyappa, namely, the father of the plaintiff. The pleadings of the 10th defendant in his evidence is to the effect that there was no partition in the family of Muniyappa, the same cannot be argued to the contrary. It runs opposite to the pleadings. The pleading and evidence are to the effect that there was no partition in the family. That if there was no partition in the family, the question of severance of joint family property does not survive for consideration. The joint family property is the property belonging to members of a joint family. Each one of them would have their respective legal right in accordance with law. Therefore, even if any one of the joint family members were to sell the joint family property such sale would not be binding on the interest of the remaining share holders. Therefore the evidence of 10th defendant is to the effect that the status of the joint family continues. That there is no disruption in the family of Muniyappa, the other sharers would not be affected by such a sale. Therefore on this evidence, the trial Court has rightly held that status of joint family continues and the joint family property could not be sold. Under these circumstances, the second substantial question of law is answered accordingly.

It cannot be said that the Judgment & decree of the trial Court is perverse and calls for any interference. Hence, I find no good ground to interfere with the well considered order of the trial Court.

During the pendency of these appeals, the sisters having been impleaded as respondents herein. It is their plea that they are entitled to an equal share to that of the son. The counsel for the plaintiff has no objection to offer them an equal share. The grant of an equal share to the brothers and the sisters is inconsequential, in sofar as the present appellant is concerned.

Under these circumstances, I have no hesitation to hold that 3 sisters who have been impleaded in this appeal would also be entitled to an equal share. Therefore the 3 brothers and 3 sisters will get 1/6th share each, which means the plaintiff Ramakrishnappa will get 1/6th share. Smt. Saraswathamma, the 1st defendant and defendants 2 to 4 will get 1/6th share of Venkatappa as his legal heirs. In terms of the Will executed by Muniswamy, the 5th defendant in favour of Srinivas and V. Madhu the respondents 14 and 21 will get 1/6th share of Muniswamy. The respondent No. 12 Savithramma will get 1/6th share. The L.Rs of Gowaramma namely, respondents 13 to 17 will get 1/6th share. The L.Rs of Jayamma namely, respondents 18 to 21 will get 1/6th share.

Consequently, the appeal is partly allowed. The Judgment & decree of the trial Court dated 29-1-2003 passed in O.S. No. 3789/1985 by the V Additional City Civil Judge, Bengaluru, is modified. The plaintiff is entitled to partition and separate possession of 1/6th share in all the suit schedule properties, except in respect of item No. 1. Accordingly, the Judgment & decree of the trial court is modified. The Judgment and decree of the trial Court granting 1/3rd share to the plaintiff is modified by holding that the plaintiff is entitled for 1/6th share. The remaining respondents will get 1/6th share as held herein above. The rest of the order is undisturbed.

Decree to be drawn accordingly.

No Costs.