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Judgment
N. Kumar, J.—This is plaintiffs appeal against the judgment and decree passed by the trial Court which has dismissed the suit for partition and separate possession on the ground that there was earlier oral partition as such the relief sought for in the suit cannot be granted.
For the purpose of convenience the parties are referred to as they are referred to in the original suit.
Late Arasur Veerappa had got three sons and four daughters. Halappa, the plaintiff is the eldest son. Siddappa, 1st defendant and Lokeshappa, 2nd defendant are the other two sons. Hiriyamma, Halamma, Rudramma and Gowramma are the four daughters. 3rd defendant Smt. Mallamma is his widow. The case of the plaintiff is that his father Arasur Veerappa died in the year 1980. His mother is living in Tanigere village. All the title deeds and revenue records of the joint family properties stand in the name of Arasur Veerappa till recently. Because his brothers caused much trouble and due to the differences and trouble, the plaintiff left Tanigere village some years back and went to Goa to make livelihood there. Later, after some years the plaintiff came to Kondajji village, Haribar Taluk to live there along with his wife Smt. Sharadamma and two sons namely Veerabhadrappa and Veerendra Now the plaintiff and his family members are living in Kondajji village. Subsequently, he and his family members visited Tanigere Village to demand their share in the joint family properties. Items 1 to 4 of the ''A'' schedule are immovable properties belonging to joint family. Item Nos. 1 to 6 of the ''B'' schedule are the movable properties. The plaintiff demanded 1/3rd share in the ''A'' and ''B'' schedule properties. The elders also advised the defendants 1 and 2 to give 1/3rd share in the joint family properties. The defendants 1 and 2 did not oblige. Even the advice of mother fell on deaf ears. Therefore, the plaintiff has filed the suit for partition and separate possession of his 1/3rd share in the suit schedule properties.
After service of summons defendant No. 2 filed a detailed written statement. He admitted the relationship between the parties. He specifically contended that the plaintiff, defendants 1 and 2 are the sons of late Arasur Veerappa. The plaintiff''s marriage was celebrated by the father of plaintiff. Immediately after the marriage the plaintiff separated from the defendants'' family by taking his share of properties during the lifetime of plaintiffs father. The plaintiff and defendants 1 and 2 had entered in to partition during the year 1945 and in the said partition the plaintiff had taken his share in land bearing Sy.No. 22/1 measuring to an extent of 3 acres 18 guntas, one ankanas house and also kana. The remaining properties of the joint family continued with the joint family members consisting of defendants 1 and 2, their father and sisters. They continued to be in joint possession and enjoyment of the remaining properties. The sisters marriage was celebrated by the defendants investing huge amount and all of them are residing in their husbands'' places. After the partition, he sold the same to defendant 1 during the year 1974 and also the house and kana property in the year 1961 for valuable consideration of Rs. 500/- and also for Rs. 3000/-. From the sale proceeds the plaintiff purchased the land at Muggenagihalli village in Jagalur Taluk with an intention to settle permanently there. On 15.2.1990 the defendants 1 and 2 have entered in to a partition and the same is registered. The 3rd defendant is residing with the 2nd defendant and he has been looking after her providing food and shelter. There is no joint family in existence of which the plaintiff is a member after 1960 and the plaintiff and his sons were never in joint possession of the suit schedule properties. The suit schedule ''B'' properties are not the joint family properties and they exclusively belong to defendants 1 and 2. Item No. 4 in suit schedule ''A'' was purchased by the 1st defendant, which is not a joint family property. Item Nos. 1 and 4 fell to the share of defendant No. 1 and item Nos. 2 and 3 are fell to the share of defendant No. 2 as per the partition and they are enjoying the suit properties. They have developed the properties by hard work and the plaintiff being unable to tolerate with their prosperity has filed the suit for partition and separate possession.
On the aforesaid pleadings the trial Court has framed the following issues:
1) Whether the plaintiff proves that he is the Hindu Joint Family member as on the date of the suit?
2) Whether the plaintiff proves that the Suit schedule properties are the Joint Family Properties of himself and Defendants?
3) Whether the plaintiff proves the cause of action to the suit?
4) Whether the defendants 1 to 3 prove that the plaintiff being the elder son got divided from defendants during the lifetime of plaintiff''s grandfather and he sold his share to the defendants 1 and 2 in the year 1974?
5) Whether the suit is bad for non-joinder of necessary parties?
6) Whether the suit is barred by limitation?
7) Whether the plaintiff is entitled for partition and separate possession of his share?
8) If so, to what share in which properties?
9) Whether the plaintiff is entitled for mesne profits?
10) What decree or order?
The plaintiff in order to substantiate his claim has examined himself as PW. 1 and he also examined a witness by name Siddappa as PW. 2 and produced 20 documents, which are marked as Exs.P1 to P20. On behalf of the defendants, the 1st defendant, Siddappa is examined as DW. 1 and they produced 12 documents, which are marked as Exs.D1 to D12.
The trial Court on appreciation of the aforesaid oral and documentary evidence on record held that the plaintiff has failed to prove that he was the member of a Hindu Joint Family as on the date of the suit, he has failed to prove that the suit schedule properties are the joint family properties of himself and defendants, there is no cause of action for the suit, the defendants 1 and 2 have proved their case that plaintiff being the eldest son got divided from the joint family during the lifetime of plaintiffs father, he sold his share to defendants 1 and 2 in the year 1974, the suit is bad for ncn joinder of necessary parties, the suit is also barred by limitation, the plaintiff is not entitled to the decree for partition and separate possession, the plaintiff has no right in any of the properties, the plaintiff is also not entitled to the mesne profits and thus dismissed the suit of the plaintiff. Aggrieved by the said judgment and decree of the trial Court the plaintiff is in appeal.
Sri P.H. Virupakshaiah, learned Counsel appearing for the appellant assailing the judgment and decree of the trial Court contended that the relationship between the parties is not in dispute. The nature of the properties is also not in dispute. Only on the ground of oral partition the plaintiff has been denied his legitimate share in the properties. Admittedly, the earlier partition was not reduced in to writing and there is no acceptable evidence placed on record to prove the factum of earlier partition and therefore, the trial Court committed a serious error in upholding the earlier partition. He further contended that Ex. D1 is a document, which came in to existence to enable the 1st defendant to secure a tractor loan. Nowhere in the said document the partition pleaded by the defendants is setout. Infact, the registered partition deed entered in to between defendants in the year 1990 would demonstrate that there was no partition till such time. Therefore, he submits that the judgment and decree of the trial Court requires to be interfered with.
Per contra, Sri. I.G. Gachchinamath, the learned Counsel appearing for the defendants sought to support the impugned judgment and decree and contended that there was partition in the year 1945. In 1974 the property which fell to the share of plaintiff in the said partition has been sold by him to the 1st defendant and even the one ankana house which fell to the plaintiff''s share has been sold by him to the 1st defendant. Later, the plaintiff did not bother to take care of these properties. It is only when the value of the properties has gone up, he has thought it fit to file the suit for partition, which lacks bonafides and the suit is not maintainable and therefore, no case for interference is made out.
In the light of the aforesaid facts and the rival contentions, the point that arises for consideration in this appeal is,
Whether the finding of the trial Court that the defendants have established the earlier partition of 1945 as pleaded by them, requires interference?
The facts ere not in dispute. The relationship between the parties is not in dispute. Except item No. 4 of the ''A'' schedule the rest of the properties are admittedly the joint family properties. They were all living together in the village Thanigere. The plaintiff is the eldest son. It is his specific case that because of the differences among the family members he along with his wife and children left the family house, went to Goa, on return from Goa he went and settled down in Kondajji village in Harihar Taluk. Of course, he also lived for some time in the wife''s place at Muggenagihalli village. This evidence clearly demonstrates that for the last 40 years he neither cultivated the suit schedule lands nor received any usufructs from the schedule properties. After the death of his father, he neither came back to the family, took charge and maintained the family nor the mutation was made in his name in respect of the joint family properties. It is not in dispute that the defendants along with their sisters lived in the village, cultivated the joint family properties, all the properties stood in the name of the father of the defendants till his death. Somewhere in the year 1980 after his death mutation has been changed to the name of the defendants and. in the year 1990 after the registered partition deed mutation entry has been made in pursuance of the partition deed. In the last 40 years the four sisters are married. The plaintiff has no role to play in their marriage. He has not spoken anything about their marriage. It is in this background that we have to see Ex. D1 the registered sale deed executed by him along with his father in favour of 1st defendant while selling the property bearing Sy.No. 21/2 measuring 3 acres 18 guntas situated in Thanigere village. If there was no partition in the year 1945 or 1960, in the year 1974 father and one son could not have sold a property in favour of another son, if there existed a joint family and joint family property as on that day. Nodoubt, in the entire partition deed there is no mention about the earlier partition. But the recital makes it clear that the father was joined as a party, because even in 1974 the katha stood in his name. It is understandable on the basis of a earlier partition the mutation entry could have been changed and that explains the reason why in the agreement entered in to between the plaintiff and the 1st defendant there is no reference to the father and he categorically states that the said property which is the subject matter of the partition has fallen to his share and when it came to execution of sale deed his father''s signature was required as katha stood in his name and there was no evidence of partition. What is of most important is, alter the sale there is a recital regarding the sale consideration and the purpose for which it is utilised. It is recited therein that this property is sold for the purpose of enabling the eldest son Halappa to purchase a property in Muggenagihalli village and therefore, the entire sale consideration is utilised by the eldest son, but the father is only executing the document The said Sy.No. 22/1 is not the subject matter of the suit. The explanation that to enable the 1st defendant to purchase the tractor by virtue of the aforesaid sale deed is not supported by any acceptable evidence on record. If really, because of the differences among the members of the family, the plaintiff had left the village, he would not have come back to the village in 1974 to execute a sale deed in favour of a person with whom he has quarreled. At any rate, if quarrel is a reason for the plaintiff to leave the house he would not have kept quite for 40 long years to seek for his share in the suit schedule properties and nearly 20 years after the death of his father. Absolutely, no explanation is forthcoming in this aspect. Taking advantage of the fact that there is no written partition deed and relying on the partition deed of 1990 under which the defendants partitioned their properties the suit is filed in the year 2000 for the relief of partition and separate possession. Nodoubt, when a plea for partition is set up the entire burden to prove the partition is on the person who sets up partition. The presumption is family is joint. But the Courts while appreciating the evidence on record has to keep in mind the duration between the earlier partition and the suit and the conduct of the parties during this period. Viewed from that angle the conduct of the plaintiff in executing the sale deed in 1974 conveying a property in favour of his brother coupled with the recital that the sale consideration was utilised to purchase a property in Muggenaginihalli village, the place from where his wife comes, clearly demonstrates that the case of partition set up by the defendants, who are young at the time of partition, is true and correct.
The trial Court on a proper appreciation of the oral and documentary evidence on record has rightly come to the conclusion that the case of partition pleaded by the defendants stands established. The said finding is based on legal evidence and it does not call for interference. In that view of the matter, we do not find any justification to interfere with the well considered judgment of the trial Court. Hence we do not find any merit in this appeal. Accordingly, the appeal is dismissed. No costs.