G.R. Rudraiah vs Siddalingamma

A.V. Chandrashekara, J.—The present appeal filed u/s 96 of CPC is directed against the judgment and decree passed in O.S. 427/1997 by the learned Principal Civil Judge (Sr. Dn.) Bangalore Rural District, Bangalore dated 22.9.2006.

Suit filed for relief of partition and separate possession in respect of 4 items of properties has been decreed in part granting 1/3 share together to all the plaintiffs in respect of item Nos. 1 and 2 and suit has been dismissed in respect of item Nos. 3 and 4. It is this Judgment and decree which is called in question on various grounds as set out in the appeal memo.

The facts to leading to filing of suit is as follows:

R. Veerabhadrappa is no more. He was the husband of appellant No. 1, Siddalingamma and father of appellant Nos. 2 to 7. These appellants were plaintiffs in the Trial Court. The said R. Veerabhadrappa and defendant Nos. 1 and 2 are sons of one Rudrappa. The said Rudrappa, father-law of plaintiff No. 1 and father of defendant Nos. 1 and 2 died about 30 years ago.

4 According to the plaintiffs, R. Veerabhadrappa and defendant Nos. 1 and 2 constituted a joint family of which they were the coparceners. According to them, the family was joint on the date of Veerabhadrappa died. Four items of immovable properties as described in the schedule appended to the plaint are stated to be the joint family properties. According to them, Veerabhadrappa was a tailor by profession and there was no movable or immovable properties inherited by Veerabhadrappa or his brothers. The said Veerabhadrappa is stated to be working hard and earned money by tailoring profession. Out of the said income, he acquired the property measuring 20x141/2 yards at Sy. No. 52 from one Puttaveerappa and Siddappa under a registered sale deed dated 3.9.1956 in order to have residential houses to him and brothers, since they did not have their own house. Out of the hard earned money, Veerabhadrappa is stated to have acquired 10 acres of land in Gonipura Village for himself and his brothers under a registered sale deed 25.6.1956. Thus, plaintiffs and defendants were enjoying the properties of late Veerabhadrappa.

Veerabhadrappa is stated to have executed a nominal sale deed in favour of Sadashivappa for a meager consideration of Rs. 200/- pertaining to 5 acres of land on the western side of Sy. No. 14 and the sale deed was executed on 12.5.1958. Veerabhadrappa is stated to have redeemed loan and got reconveyance of the land in the name of his brothers through deed of conveyance dated 31.8.1960 after paying Rs. 200./-. According to the plaintiffs, transaction evidenced through deeds dated 12.5.1958 and 31.8.1960 were nominal transactions. Remaining 5 acres of land were being enjoyed by his brother-in-law Muniyappa, who is a minor and co-purchaser with Veerabhadrappa.

It is averred that relationship between Veerabhadrappa and defendants were cordial till Veerabhadrappa died and later on defendants started asserting their own title to the property on the basis of the registered deed dated 13.8.1960 and started denying title of the plaintiffs. Hence, plaintiffs were forced to file a suit for partition and separate possession in respect of 4 items of properties.

Defendant Nos. 1 and 2 have filed detailed written statement denying all the material averments.

They have called upon the plaintiffs to prove the existence of joint family properties and properties being joint family properties. They have even denied the relationship of plaintiffs with Veerabhadrappa. According to them, properties under the above sale deeds were acquired out of the joint family funds in the year 1956 and not out of the earnings of Veerabhadrappa. According to them, Veerabhadrappa was only a name lender as the property was acquired out of the family funds. Veerabhadrappa is stated to have sold 5 acres of land to Sadashivappa on 12 5.1958 and thereafter left the village and his whereabouts are not known to them. Later on, they came to know that Veerabhadrappa was dead. According to them, sale deed executed in the year 1960 is an absolute sale deed and plaintiffs have no manner of right, title interest over the properties purchased by them. With these pleadings they had requested the Court to dismiss the suit.

On the basis of the above pleadings, following issues came to be framed by the Trial Court:

1) Whether the plaintiffs prove their relationship with deceased Veerabhadrappa?

2) Whether the plaintiffs prove that themselves and the defendants are the members of the Hindu Undivided Joint Family?

3) Whether the plaintiffs prove that themselves and the defendants are in joint possession and enjoyment of the suit schedule properties?

4) Whether the valuation of the suit is proper and court fee paid is correct?

5) Whether the plaintiffs are entitled for partition of the suit schedule properties and separate possession of 1/3rd share?

6) Whether the plaintiffs are entitled for enquiry for mesne profits?

7) What order?

On behalf of the plaintiffs, plaintiff No. 1 is examined as PW-1 and Honnappa is examined as PW-2 and in all 36 exhibits have been marked. On behalf of the defendants, defendant No. 1 is examined as DW 1 and two more witnesses have been examined as DWs-2 and 3 and as many as 18 exhibits have been marked.

After hearing the learned Counsel for the parties, the learned Judge of the trial Court has answered issues-1, 2 and 4 in the affirmative, issues-3 and 5 in partly affirmative and issue-6 in the negative and consequently, decreed the suit granting 1/3rd share to the plaintiffs representing the branch of Veerabhadrappa in respect of items Nos. 1 and 2 and suit against item Nos. 3 and 4 has been dismissed. Several grounds have been urged in the appeal memo challenging the suit.

We have heard the learned counsel for the parties. After going through the records, following points have been raised for consideration:

1) Whether the Trial Court is justified ''in dismissing the suit against the plaintiffs pertaining to items Nos. 3 and 4 as described in schedule appended to the plaint?

2) Whether any interference is called for, if so to what extent?

Point No. 1: The fact that Veerabhadrappa and defendant Nos. 1 and 2 are sons of Rudrappa is not in dispute. Veerabhadrappa and defendant Nos. 1 and 2 were members of the joint family. The case of the defendants is that 10 acres of land was purchased by Veerabhadrappa from the joint family funds through a registered sale deed and therefore, it is the joint family properties. Nothing is placed on record to show that Rudrappa had immovable or movable properties and out of the same, 10 acres of land was purchased by Veerabhadrappa. The evidence placed on record would go to show that Veerabhadrapa purchased 10 acres of land when he was unmarried in the year 1956 through a registered sale deed and at that time he was a tailor by profession. Acquisition of items 1 and 2 by Veerabhadrappa is also not in dispute. The defendants have not chosen to file any cross appeal in so far as decree granted in respect of item Nos. 1 and 2 is concerned.

Ex. P-15 is the certified copy of sale deed dated 25.6.1956 executed by Mariyappa and Venkatappa in favour of Veerabhadrappa and Muniyappa, minor son of Chikkaveerappa in respect of 10 acres of land in Sy. No. 14 of Gonipura Village. It was purchased for consideration of Rs. 200/-. The name of Veerabhadrappa had been incorporated in the revenue records on the basis of the sale deed marked at Ex. P-15. Subsequently, 5 acres of land out of 10 acres was sold by Veerabhadrappa in favour of Sadashivappa for a sum of Rs. 200/- vide sale deed No. 2534/60-61. On the basis of the sale deed, the name of the purchaser namely Sadashivappa was incorporated in the mutation-4 of the year 1976-77 and it is evident from Ex. P-20. It is also reflected in the encumbrance certificate issued by the sub-registrar vide Ex. P-21. The names of both Veerabhadrappa and his minor nephew Muniyappa s/o. Chikkaveerappa had been entered as Kathedar as per Ex. P-15. RTC is issued for the year 1979-80 to 1981-82 and the same is reflected even in Ex. P-25.

Burden is always upon the person who takes up the plea of acquisition of property by using joint family funds. The said person is expected to prove that joint family had sufficient nucleus so as to enable one of the joint family member to purchase the property. Mere existence of joint family does not give rise to presumption that the joint family possess joint family properties.

It is for the defendants to prove that jointness of the family had been sovereign and therefore, joint family was not in existence on the date of Veerabhadrappa died. Ex. D-1 is the original sale deed dated 12.5.1958 executed by Veerabhadrappa in favour of Sadashivappa in which 5 acres in Sy. No. 14 had been conveyed to Sadashivappa for a consideration of Rs. 200/- only. What is averred in the plaint is that the said registered deed is not a sale deed in its real sense, but document evidencing loan transaction. Whether the plaintiffs have been able to probabalise, the same has to be looked into.

The registered deed dated 31.8.1960 is a registered deed and it is mentioned as sale deed. The said Sadashivappa chose to reconvey the property in favour of G.R. Rudraiah for a sum of Rs. 200/-. There is a reference of earlier deed dated 12.5.1958 executed by Veerabhadrappa in favour of Sadashivappa. There is no mention in the sale deed dated 31.8.1960 about the possession being handed over to G.R. Rudraiah. Even in the earlier sale deed executed by Veerabhadrappa to Sadashivappa, there is no specific mention of possession being handed over to Sadashivappa by Veerabhadrappa. Even at the time when reconveyance was done in favour of G.R. Rudraiah by Veerabhadrappa, Veerabhadrappa was still unmarried and was living as member of the joint family. Nothing is placed on record to show that Rudraiah had independent income to get the land reconveyed in his name.

One Deviramma w/o Puttappa has executed a sale deed in favour of Rudraiah in respect of certain extent of land in Sy. No. 57 executed on 16.10.1974 and this is evident from Ex. D-4 original sale deed. Admittedly, suit is dismissed against item Nos. 3 measuring 3.07 acres in Sy. No. 57. Rudraiah was already major in the year 1974 and therefore, it is considered as self acquired property. The same is in respect of item No. 4 also based on the sale deed dated 1610.1974 vide Ex. D-7 executed by Rudramma in favour of G.R. Rudraiah pertaining to item No. 4 measuring 1.25 acres in Sy. No. 92.

DW-1 has asserted that he has purchased item No. 3 and it is his self acquired property. Ex. D-7 is the registered sale deed dated 16.10.1974 executed in his favour by Deviramma. Admittedly, there is no evidence placed on record by the plaintiffs in order to show that Veerabhadrappa out of his earnings purchased suit item Nos. 1 and 2. In the absence of the same, it cannot be said that defendant No. 1 has purchased the suit item Nos. 3 and 4 out of the income of item Nos. 1 and 2. There is no acceptable evidence placed by the plaintiffs to show that Veerabhadrappa had contributed his earnings for purchase of item Nos. 1 and 2. Even otherwise, the name of defendant No. 1 finds a place in agricultural pass book in respect of item Nos. 3 and 4.

The Trial Court has given valid and cogent reasons as to why the plaintiffs have failed to prove the acquisition of item Nos. 3 and 4 was out of the funds generated from item Nos. 1 and 2. Infact, DW-1 has subsequently deposed that Veerabhadrappa was residing with him prior to 1958 and further deposed that Veerabhadrappa repaid the loan amount to Sadashivappa. Though, DW-1 has deposed that himself and brothers were earning money from coolie and paid loan to Sadashivappa in order to get the sale deed in their names, they have not placed any record about the quantum of income they were getting to have a deed of conveyance in the year 1960. Admittedly, defendant Nos. 1 was minor as on the date of Ex. P-16 (a) and defendant No. 2 was much younger to the defendant No. 1. Hence, the Trial Court has come to the conclusion that it would be hard to believe the explanation of defendant Nos. 1 and 2.

Admittedly, there is no evidence placed on record by defendant Nos. 1 and 2 to show that Veerabhadrappa left Gonipura village after executing the sale deed vide Ex. P-16. On the other hand there is evidence to the fact that Veerabhadrappa had paid money to Sadashivappa. Hence, the Trial Court has assessed the evidence on the touch stone of intrinsic probabilities to come to the conclusion that registered sale deed executed by Veerabhadrappa in favour of Sadashivappa was only a document executed as security for having received a sum of Rs. 200/- from him. Therefore, it was got reconveyed after paying the loan. This is more probable as there is no mention of handing over the possession by Veerabhadappa to Sadashivappa in the year 1958. Further, there is no mention of possession being handed over by Sadashivappa to Veerabhadrappa, since Veerabhadrappa continued to be in possession. Ex. P16 is being executed for collateral security.

Admittedly, Veerabhadrappa and defendant Nos. 1 and 2 were members of the Hindu Undivided Family when Veerabhadrappa died. Normal presumption is that a Hindu Family is joint, until contrary is proved. There is evidence on record to show that item Nos. 1 and 2 are joint family properties of Veerabhadrappa and defendant Nos. 1 and 2 and therefore, the plaintiffs are entitled for 1/3rd share representing Veerabhadrappa. The factum of constructive possession has to be taken into consideration in a case like this. Therefore, the Trial Court has come to the conclusion that plaintiffs are entitled for 1/3rd share. The Trial Court has analyzed the evidence in right perspective. It has adopted right approach to the real state of affairs. It is justified in holding that Veerabhadrappa being the member of the joint family purchased item Nos. 1 and 2 and hence they were treated as joint family properties. At the time of his death, the plaintiffs continued to be members of the joint family. Hence, point No. 1 is answered in the affirmative.

In view of point No. 1 being answered in the affirmative, no interference is called for. Hence, the appeal is liable to be dismissed.

ORDER

The appeal filed u/s 96 of CPC is dismissed by confirming the judgment of the Trial Court passed in O.S. 427/1997 by the learned Principal Civil Judge (Sr. Dn.) Bangalore Rural District, Bangalore dated 22.9.2006.

There is no order as to costs.