K.M. Narayanappa and Others vs T.C. Venkatagiriyappa and Others

Ravi V. Malimath, J—The case of the plaintiff is that one Hanumana Bovi of Mallakachanahalli, Avani Hobli, Mulbagal Taluk, had a son by name Muniswamy Bovi and a daughter by name Venkatamma. Hanumana Bovi died in the year 1965, leaving behind the above said persons as his LRs. The plaintiff and five defendants are the sons of Venkatamma. Defendant Nos. 1 to 4 are the sons of Muniswamy Bovi. The suit schedule properties are self-acquired properties of Hanumana Bovi, in which Venkatamma had half a share. Venkatamma died three years prior to the filing of the suit. Till her death, she was visiting Mallakachanahalli Village once or twice in a year. After her death, defendant Nos. 1 to 4 developed a hostile attitude towards the plaintiff and the fifth defendant. Even though their share was demanded, they declined to grant the share. Hence, the instant suit was filed seeking partition and separate possession of 1/4th share in the suit schedule properties.

On service of suit summons, defendant Nos. 1 to 4 appeared and filed their written statements, denying the plaint averments. It was contended that Hanumana Bovi, died in the year 1960. He had five children namely, Muniyamma, Munibovi, Venkatappa, Venkatamma and another daughter by name Venkatamma. These defendants are the sons. The elder daughter Muniyamma had two daughters and a son. Third son Venkatappa died leaving behind his wife Venkatamma, fifth daughter. Venkatamma had two daughters and a son. Fourth daughter Venkatamma has got two sons namely, the plaintiff and the fifth defendant and one daughter Mangamma. The First defendant married the daughter of Hanumana Bovi, third defendant married the daughter of Muniyamma. After the marriage of Venkatamma, the mother of the plaintiff, she never visited the house of defendant Nos. 1 to 4 and she is not in joint possession of the suit schedule properties. That she has never taken any produce from the house of defendants. That the suit has been filed with an intention to knock off the properties from the defendants.

During the pendency of the suit, the fifth defendant died and his LRs were brought on record. Defendant Nos. 6 to 12 remained ex parte. Defendant No. 13 filed his written statement denying the allegations. Based on the rival contentions, the trial court framed the following issues and additional issues for consideration:

i. Whether suit properties are the self-acquired properties of Hanumana Bovi?

ii. Whether the plaintiff�s mother Venkatamma and the father of defendants 1 to 4 i.e., Munisami Bovi are the only children of Hanumana Bovi?

iii. Whether plaintiff is entitled to 1/4th share in suit properties?

iv. Whether plaintiff is entitled for partition and separate possession of her share in suit properties?

v. What order?

Additional Issues:

vi. Is the suit bad for non-joinder of necessary parties?

vii. Whether 13th defendant proves that on 30.03.1992, deceased 5th defendant has executed a Will in her favour?"

In support of his case, the plaintiff was examined as PW-1 and marked 4 documents. The second defendant was examined as DW-1 and another witness by name Krishnappa, and 10 documents were marked. All the issues and additional issues were held in the negative. The trial court was of the view that the plaintiff has failed to show the source of acquisition of the suit schedule properties and on the ground that necessary parties have not been impleaded, the suit was dismissed. Aggrieved by the same, the plaintiff preferred an appeal.

The appellate court allowed the appeal in part. It was of the view that even though all necessary parties were not impleaded in the suit, each one of the branches� have been respectively represented by the concerned parties. Therefore, technically it would not be necessary to implead each one of the party as claimed by the defendants, since each one of the sharers are already on record. The finding of the trial court on that issue was set-aside. On merit, it was held that the plaintiff had established that the suit schedule properties were self-acquired properties of Hanumantha Bovi. Therefore, the appeal was partly allowed. The plaintiff was entitled for 1/8th share in item Nos. 1, 3, 4, 10, 13 and 18 of the suit schedule properties and was entitled for possession of the same. The suit was dismissed with regard to the remaining suit schedule properties. Aggrieved by the same, the defendant Nos. 1, 2, 3, 4, 7 and 13 have filed this second appeal.

Sri. Umesh B.N., learned counsel for the appellants contend that the first appellate court, committed an error in passing the impugned judgment. That the appellate court misread the material and evidence on record while holding that the properties are self-acquired properties of Hanumantha Bovi namely, the prepositus. That there is no material to substantiate such a contention. That the trial court rightly came to the conclusion that when the family members are not made parties to the partition suit, the suit cannot be decreed. Hence, he prays that the appeal be allowed by dismissing the suit.

On the other hand, Sri. Praveen R.J.S., learned counsel for the respondents defends the impugned order. He contends that the trial court has rightly appreciated the material on record. Hence, no interference is called for.

Heard learned counsels.

The appellate court reconsidered the entire material and evidence on record. So far as non-impleading of the necessary parties are concerned, the appellate court deferred with the view of the trial court. Keeping in mind the relationship between the parties, the appellate court was of the view that all the sharers representing their respective branches were already on record as parties to the suit or as LRs of some of the deceased sharers. That being the case, the duty of the court was to ensure that each one of the sharers would be entitled for their share in accordance with Law. The finding of the trial court that since they are not being made as parties, shares cannot be granted, was negatived.

In view of the fact that each branch was inherited by their respective sharers, the dismissal of the suit on the ground that all the sharers are not made as parties is therefore incorrect. The same is opposed to the material on record. The trial court having committed an error, the same was rightly interfered by the appellate court that the sharers being parties to the suit, the suit cannot be dismissed on that ground itself.

So far as the question of properties of Hanumantha Bovi, the prepositus is concerned, the first appellate court was of the view that except item. No. 1, 3, 4, 10, 13 and 18, none of the other suit schedule properties can be said to be self-acquired properties of the prepositus. That no documents were produced by the plaintiffs to prove that the other suit schedule properties belonged to Hanumantha Bovi, at any point of time. The documents at Exhibits-D2 to D9 produced by the defendants would show that item Nos. 2, 5, 6, 8, 12, 14, 17 and 19 belonged to the defendants. That the plaintiffs have not produced any documents to show that these items belonged to the prepositus, Hanumantha Bovi.

That even Exhibit-P1, the index of the lands, would support the case of the defendants. That those schedule properties would stand in the name of the defendants and not in the name of Hanumantha Bovi. Therefore, none of the documents as produced by the plaintiffs do not prove that item Nos. 2, 5, 6, 8, 12, 14, 17 and 19 belonged to the prepositus. The trial court therefore committed an error in misreading the material and evidence on record in holding that the suit of the plaintiffs cannot be decreed.

Under these circumstances, I am of the view that the plaintiffs have failed to prove that suit item Nos. 2, 5, 6, 8, 12, 14, 17 and 19 are all self-acquired properties of the plaintiffs. That they were justified in showing that item Nos. 1, 3, 4, 10, 13 and 18 alone would constitute self-acquired properties of the prepositus, Hanumantha Bovi. In view of the same, the plaintiffs, other defendants and the LRs would all be entitled to a share in the said properties.

So far as grant of 1/8th share to the plaintiffs is concerned, the same is in accordance with Law. The family tree would indicate that Hanumantha Bovi had five children. Among them Venkatamma died issue-less. Therefore, they were four shares. The plaintiff is the son of one Venkatamma. The plaintiff had a brother and a sister. The brother died issue-less. Therefore, the father of the plaintiff would be entitled to 1/4th share and since the plaintiff has a sister, she would be entitled to half of the 1/4th share, namely 1/8th of the share. Therefore, the share allotted by the trial court is in accordance with Law. I do not find any error in allotment of shares.

Under these circumstances, the finding recorded by the first appellate court are questions of facts. The fact as to whether the properties are self-acquired properties or not, as to the actual division of the shares so far as each one of the family members is concerned, the issues determined by the first appellate court are all issues arising out of facts. There is no substantial question of law that arises for consideration in this appeal. The entire appeal revolves on facts. Even otherwise, on merits I have no hesitation to hold that the first appellate court was justified in holding that item Nos. 1, 3, 4, 10, 13 and 18 are self-acquired properties of Hanumantha Bovi. Therefore, the plaintiffs are entitled to 1/8th of share.

The order passed by the first appellate court is just and reasonable and based on material and evidence on record. Consequently, the appeal being devoid of merits is dismissed.