H. Byatappa vs M. Basavaiah and Others

Ravi V. Malimath, J—Aggrieved by the concurrent findings recorded by both the courts below in dismissing the suit for partition, the plaintiff has filed this second appeal.

Parties will be referred to as per their rank in the trial court.

The case of the plaintiff is that the suit schedule properties are joint family properties. That the plaintiff and the defendants are joint family members governed by Hindu Law. The plaintiff and the first defendant are brothers. The second defendant is the father. Defendant No. 2(a) is the mother, defendant No. 2(b) is the sister of the plaintiff and defendant No. 1. That the suit schedule properties were purchased out of the joint family income in the name of the first defendant as he was the elder son and he looked after the entire family since it is a joint family property.

The plaintiff demanded a share in the properties by metes and bounds. The same was denied. The defendant tried to encumber the suit schedule properties in the name of third persons to deprive the legal right of the plaintiff. The plaintiff got issued a legal notice for partition. Nothing came out of it. Hence, he filed the instant suit for partition of the suit schedule properties by metes and bounds claiming 1/3rd share etc.

On service of suit summons, defendant Nos. 1 and 2 appeared through their respective counsels and filed their written statement. Defendant No. 1 denied the suit averments, while admitting their relationship. They denied that the suit schedule properties are joint family properties. The first defendant contended that the family of plaintiff and defendants possessed no agricultural properties at all. That the members of the joint family were eking out their livelihood either through coolie or ploughing the lands belonging to others. That ever since earlier times, the defendants were working as coolie and subsequently worked as labourers in Valliyappa Textiles Mills for a period of 13 years and thereafter he joined Minerva Mills in Bengaluru and worked their for about 15 years and out of his earning, he has purchased suit item Nos. 1 and 2. Suit item No. 3 was purchased as a vacant site. Thereafter, a house was constructed and the defendant is living there. Since there was no joint family property, the suit requires to be dismissed.

The second defendant in his written statement supported the plaintiff and sought for decreeing the suit. After filing of the suit, the second defendant died and his legal representatives were brought on record. It was contended that the daughters of the deceased, second defendant were not made as parties. Therefore, a LR application was made to bring them on record. They were brought on record. Based on the pleadings, the trial court framed the following issues:

i. Whether the plaintiff proves that suit schedule properties are joint family properties of him and defendants?

ii. Whether the first defendant proves that item Nos. 1 and 2 are his self-acquired properties and item No. 3 is the property of his wife Sarojamma?

iii. What relief the parties are entitled to?

Additional Issue No. 1:

Whether the suit is bad for non-joinder of the mother of the deceased second defendant?"

In support of the plaintiffs'' case, he was examined as P.W. - 1 and three other witnesses and marked 8 documents. The first defendant was examined as D.W. - 1 and marked six documents.

Issue No. 1 was held in the negative. Issue Nos. 2, 3 and additional issues were held in the affirmative and the suit was dismissed.

Aggrieved by the same, the plaintiff filed an appeal, which was also rejected. Hence, the present second appeal.

The learned counsel for the appellant contends that both the courts below committed error in misreading the material and evidence on record. That the material and evidence would indicate that the properties belong to the joint family and hence liable for partition. The findings recorded by the trial court that the properties have been purchased out of the income generated out of the first defendant''s income, is erroneous and it cannot be said that the properties belong exclusively to the first defendant. Hence, he pleads that the appeal be allowed by decreeing the suit.

The respondents defend the impugned orders.

Heard learned counsels.

The trial court on considering the evidence of the first defendant took note of the fact that he has produced three salary certificates, Exhibits-D1 to D3. The same would indicate that he was drawing a salary of Rs. 3,000/- per month. Witnesses were examined in support of the same.

The evidence of the plaintiff was considered. No where has he stated as to how the joint family properties were acquired. What was the income for purchase of suit item Nos. 1 to 3 of the suit schedule properties. It is only at the time of evidence, it was stated that the family had livestock and by sale of livestock, they purchased suit item No. 3. Such a contention cannot be accepted. The purchase of the property at Sl. Nos. 1 to 3 cannot be purchased out of sale of livestock only. Therefore, the evidence of the plaintiff was rightly disbelieved by the trial court.

On the contrary, the first defendant having produced evidence, has shown that he had a constant source of income out of which he has purchased the suit schedule properties. His evidence was accepted. I do not find any reason to interfere with the reasons assigned by the trial court. The trial court has rightly disbelieved the evidence of P.W. - 1, since it is his case that the suit schedule properties were purchased by selling livestock, which is improbable.

So far as evidence of P.W. - 2 who is the mother of the plaintiff and first defendant is concerned, she has stated that the property was purchased out of the joint family income. Therefore, she being a mother, her evidence should be accepted. However, during the cross-examination, she has stated that the plaintiff is residing with her and not with her first defendant. That the first defendant is residing separately. Therefore, naturally when the mother is residing with the plaintiff, she would be expected to speak in favour of the son with whom she was residing. Moreover, her evidence is not backed up by any evidence. A suit for partition cannot be determined on such evidence. Therefore, the trial court was of the view that the support of P.W. - 2 to the case of the plaintiff is only because she was residing with the plaintiff. Hence, her evidence was not acceptable.

Under these circumstances, the Trial court has rightly disbelieved the evidence of P.W. - 2. Only because she is their mother, her evidence cannot be accepted in toto. The same should be backed up with pleadings as well as relevant material and evidence. The plaintiff has failed to show either one of it.

In view of the facts and circumstances, I am of the considered view that the entire case of the plaintiff revolves around facts and no substantial question of law arises in this appeal. Moreover, the courts below on considering the pleadings and evidence has come to the conclusion that the plaintiff has not made out any case that could warrant a decree. I do not find any ground even on merits to interfere. Consequently, the appeal being devoid of merit is dismissed.