Mahantappa vs Basawaraj

Ravi V. Malimath, J.—Aggrieved by the judgment and decree of the Trial Court granting 1/7th share to each of the plaintiffs and a 1/7th share each to defendant Nos. 4 to 6 in the suit schedule properties and declaring the sale deeds shown under B schedule as not binding on the plaintiffs in respect of their shares, the defendant Nos. 7 to 9 have filed this appeal.

The parties are referred as per their ranks in the Trial Court.

The case of the plaintiffs is that they are the children of defendant Nos. 1 and 2. Defendant Nos. 3 to 6 are also the children of defendant Nos. 1 and 2 and they are brother and sisters. The defendant Nos. 7 to 9 are the alleged purchasers of ''B'' schedule properties. Defendant No. 8 is the wife of defendant No. 7 and defendant No. 9 is their son. ''A'' schedule properties are the joint family properties. ''B'' schedule properties are part of ''A'' schedule properties sold to defendant Nos. 7 to 9. The schedule properties were held by the father of the 1st defendant and after his demise, were inherited by the 1st defendant, the mother of 1st defendant and other joint family members. For nominal sake, some properties stood in the name of some of the joint family members. There was no partition between the joint family. That since five years earlier to the suit, due to old age, the 1st defendant was unable to manage the family affairs and as such the 3rd defendant being the eldest son of defendant No. 1, started managing the family affairs since the plaintiffs and defendant No. 4 were minors. The defendant Nos. 1, 2 and 3 were fully dependent upon the 3rd defendant. That the 3rd defendant had a number of bad vices. He prevailed upon defendant Nos. 1 and 2 to sell some of the properties. That on various dates ''B'' schedule properties were alienated by defendant Nos. 1 and 2 in favour of defendant Nos. 7 to 9. That the said alienation were made without any legal or family necessity. Therefore, the sale of ''B'' schedule properties are not binding upon them. That the 7th defendant is a money lender. The 3rd defendant had availed a hand loan from 7th defendant on exorbitant rate of interest for his bad vices. That the sale deeds were executed for meager amounts. That the 1st and 2nd defendants were not competent to sell the properties. Hence the plaintiffs filed the instant suit seeking for partition of the suit schedule properties by metes and bounds and to declare the sale deeds bearing document Nos., 172/2003-04, 173/2003-04, 191/2004-05, 246/2002-03, 247/2002-03, 248/2002-03, 249/2002-03, 250/2002-03 pertaining to the ''B'' schedule properties be declared as null and void and not binding on them.

After service of summons, defendant Nos. 1 and 2 filed their written statement. They admitted the plaintiffs'' share including the relationship between the parties. They admitted that ''A'' schedule properties are the ancestral properties. That the 3rd defendant squandered money for bad vices. That the 3rd defendant borrowed hand loans from the 7th defendant without their knowledge. Hence, 3rd defendant pressurised defendant Nos. 1 and 2 to execute sale deeds in favour of 7th defendant. That even though the sale deeds have been executed, the suit lands lie with the family. Now they are looking after the lands. Hence they prayed that the suit be decreed.

Defendant Nos. 4 and 5 filed a common written statement and took up the very defence as defendant Nos. 1 and 2. They prayed for allotting their respective shares and they are ready to pay the court fee for the same.

The 7th defendant in his written statement denied the averments made in the plaint. He denied that ''A'' schedule properties are the ancestral properties. He denied that the defendant Nos. 1 and 2 were forced to execute the sale deeds in his favour. That the defendant Nos. 1 to 4 were indebted to one Mahadev Kalashetty and as such one of the suit land was sold to him by defendant Nos. 1 to 6. Subsequently the defendant Nos. 1 to 4 raised a huge loan from Basawaraj Devatkal and thereafter one land was re-conveyed in the name of defendant Nos. 1 and 2. The Defendant Nos. 1 to 4 raised loans from Basawaraj Devatkal and one of the lands was alienated in his name in order to get rid of Mahadev Kalashetty. The defendant Nos. 1 to 4 borrowed loans from defendant Nos. 7 to 9 and executed sale deeds in his favour. Hence, he prayed for dismissal of the suit.

The defendant Nos. 8 and 9 have filed separate written statement. Their defence is identical to the one raised by defendant No. 7. They prayed for dismissal of the suit.

In support of their case, 1st plaintiff examined himself as PW 1 and two other witnesses were examined and got marked Ex. P-1 to P-45. On the other hand 7th defendant examined himself as DW 1 and examined three witnesses on his behalf. Defendant No. 5 was examined as DW 5. Documents 1 to 35 were marked on behalf of defendants.

The Trial Court framed the following issues for consideration.

Whether the plaintiffs each entitled to get 1/7th share in the plaint schedule properties?

Whether the plaintiffs are not bind over by the sale transactions of "B" schedule properties and so be declared as null and void and not binding upon them?

Whether defendant No. 7 to 9 have purchased the plaint schedule lend for a valid consideration?

Whether defendants No. 7 to 9 prove the suit of the plaintiff and maintainable without seeking the possession of the lands?

As to what order or relief?

It held issues No. 1 to 3 in the affirmative and issue No. 4 in the negative. The suit was decreed by allotting each of the plaintiffs 1/7th share in the suit schedule properties as well as defendant Nos. 4 to 6 being entitled to 1/7th share each. The sale deeds shown under ''B'' schedule properties were held not binding on plaintiffs'' share. Aggrieved by the judgment and decree of the Trial Court, the defendant Nos. 7 to 9 have filed this appeal.

Sri Ashok S. Kinagi, learned counsel for the appellants namely defendant Nos. 7 to 9 contends that the impugned order is bad in law and liable to be set aside. That the Trial Court failed to consider the material evidence on record. The primary contention of the appellants is that ''A'' schedule properties are not the joint family properties. Since they are not joint family properties and were self acquired properties of defendants, the sale made in their favour cannot be questioned on the ground that the sale is made out of joint family properties and not for legal necessity. That even though such a defence was taken in the written statement, the Trial Court failed to frame an issue in this regard. That in the absence of framing such an issue, the consideration of the suit becomes wholly irrelevant. Until and unless there is an issue and a finding recorded by the Trial Court as to whether the suit properties were ancestral properties or the self acquired properties, the question of the Trial Court going into the validity of the sale deeds does not arise. Hence he pleads that the matter be remanded to the Trial Court, for an issue to be framed in this regard.

On the other hand Sri Pramod N. Kathavi, learned counsel for respondent Nos. 6 to 8 namely defendant Nos. 4 to 6, defends the impugned judgment and decree. He contends that the submission of the appellants cannot be accepted. That even though no issue was framed by the Trial Court with regard to nature of the properties, the appellants and the respondents have understood the case set out by each one of them. Further the Trial Court has also considered the pleadings and evidence on this particular contention. Hence, merely because an issue is not framed, it does not warrant a remand on that ground. When the judgment would indicate that the contentions of both the parties have been considered on this question and the Trial Court has accorded reasons for the same, there is no reason for a remand. Consequently the findings recorded by the Trial Court on this contention at para 13 of the judgment would have to be considered by this Court, as to whether it is sustainable or not. Hence he pleads that the Trial Court having held that the suit schedule properties are joint family properties, there is no necessity either to remand the matter or for an issue to be framed before the Trial Court.

Sri Gururajrao R. Kakkeri, learned counsel for the respondent Nos. 1 and 2 namely the plaintiff Nos. 1 and 2 supports the argument of respondent Nos. 6 to 8 and pleads that the appeal be dismissed.

The remaining counsels are absent.

Having heard learned counsels'' and examining the records, the following issues arise for consideration.

(1) Whether the judgment and decree of the Trial Court is perverse, in not framing an issue or atleast in not recording a finding as to the status of the properties, especially when the suit is one for partition of joint family properties?

(2) Whether any interference is called for and in what manner?

The primary contention of the appellants is with regard to non framing of the issue regarding the status of the properties. Under these circumstances I'' am of the view that the rest of the grounds urged by the appellants could be considered if necessary based on the findings to be recorded so far as the plea of the appellants with regard to remand of this matter is concerned.

The appellants referred to the written statement filed by them, with specific reference to para 5 wherein it is contended as follows;

"5. With regard to para No. 5 of the plaint, it is submitted that the averments that Schedule-A properties are the ancestral joint family properties of the plaintiffs and the defendants 1 to 6 is false. In fact, they were once belonging to them. It may be true the properties might have been stood in the name of Gundappa S/o. Mahantappa Muddagouda."

The written statement further proceeds on the same lines with regard to their denial of the status of ''A'' schedule properties. The denial is with reference to para 5 of the plaint. Para 5 of the plaint is to the effect that "suit properties mentioned in the schedule ''A'' are the ancestral joint family properties of the plaintiffs and defendant No. 1 to 6. The plaintiffs and defendant No. 1 to 6 inherited the suit properties from the deceased Gundappa S/o. Mahantappa Muddagoudar, the father of the defendant No. 1 and the grand father of plaintiffs and defendant No. 3 to 6." Based on this statement in para 5 of the written statement, the learned counsel for the appellants contends that it has been specifically pleaded that the suit schedule properties are not the ancestral properties. Without a finding regarding the status of the properties, the suit for partition of ancestral properties could not be decreed. Therefore, an issue to the said effect had to be framed. Having failed to do so, he pleads that the matter be remanded for such a consideration.

On the other hand Sri Pramod Kathavi, learned counsel for the respondent Nos. 6 to 8, contends that, the said contention and pleading is considered in para 13 of the judgment. Therefore, what is to be seen by the appellate Court is only the correctness of the finding. Even though an issue has not been framed, since the parties have understood the pleadings and the Trial Court has addressed its mind to the contentions, nothing more requires to be done.

On hearing learned counsels'', I'' am of the considered view that the contention of the respondents requires to be partly accepted in principle. Merely because an issue has not been framed, it cannot constitute as a sole ground to remand the matter for framing an issue and its determination, when the parties have understood the pleadings and the Trial Court has referred to them. Therefore, the appellate Court is concerned as to whether the Trial Court has in the absence of framing an issue has atleast considered the contentions. It is not a case whether the findings are just and appropriate, but as to whether there are findings at all on the said issue. Merely because an issue has not been framed, would not come to the aid of the appellants. Remanding the matter for framing of a fresh issue only on the ground that the issue has not been framed would be inappropriate. Hence the contention of the respondents is partly accepted in principle. There need not be a remand only because an issue has not been framed, since the Trial Court has referred to such pleadings.

Under these circumstances the first appellate Court would have to consider as to whether the reasoning assigned by the Trial Court are just and proper in the facts and circumstances of the case. Para No. 13 pertaining to the issue with regard to status of the lands has been considered by the Trial Court, which reads as follows;

"13. Now coming to the status of plaintiffs is concerned no doubt they are members of undivided joint Hindu family, being son and daughter of Mahantappa. As on the date of alleged sale deeds they were minors. It is also not in dispute that so far no partition is taken place in their family. So even though Mahantappa Biradar knew this fact, but daringly went on purchasing schedule properties ignoring the fact that, they are ancestral joint family properties. All the witnesses examined in this case have clearly admitted that, suit schedule properties are all ancestral joint family properties as once they were hold by late Gundappa Muddagaudar. xxxxxxxxxx"

The Trial Court held that Mahadevappa Biradar namely, the 7th defendant, knew this fact, but daringly went on purchasing schedule properties ignoring the fact that, they are ancestral joint family properties. The Trial Court was under the assumption that the 7th defendant knew that the properties were joint family properties. There is no material to substantiate such a finding. The specific case of the 7th defendant is that the schedule properties are the self acquired properties and not joint family properties. Therefore, to hold that the 7th defendant was aware of this fact, not only has no basis, but it is contrary to the very pleading of the 7th defendant. Therefore, this finding that the 7th defendant knew that the properties are the ancestral properties is erroneous and liable to be set aside.

Further more, the Trial Court holds that all the witnesses examined in this case have clearly admitted that the suit schedule properties are all ancestral joint family properties, as once they were held by late Gundappa Muddagaudar. I have considered the evidence of the witnesses. The evidence of 7th defendant namely DW 1 alone, would be relevant to consider this issue.

DW 1 in his evidence has nowhere admitted to the fact that the lands are the joint family properties. On the contrary in para 3 of the evidence, it is specifically denied that the suit schedule properties are the ancestral properties of the plaintiffs and defendant Nos. 1 to 6. Learned counsel for the respondents has taken me through the entire cross examination of the 7th defendant in order to show that he had admitted to the fact that the properties are joint family properties. I have considered the cross examination in detail, narrating the manner in which the property was sold and thereafter resold etc. The manner in which the properties were sold has been narrated. There is no indication whatsoever to any effect, that the defendant has admitted that the properties are joint family properties. Therefore, it cannot be said that even in the evidence of defendant No. 7 that he has admitted that the properties are joint family properties. Therefore, the findings recorded by the Trial Court when it holds that the witnesses clearly admitted that the suit schedule properties are all ancestral properties is not a true reflection of the evidence. Hence this finding is liable to be set aside.

Except these two stray sentences in para 13 nothing has been stated by the Trial Court. Therefore, it cannot be said that even though the issues have not been framed, the Trial Court has considered this specific defence of the appellants. The consideration of this specific defence of the appellants is only these two sentences in the said para. Therefore, there is no application of mind while considering the contentions of the defendant. The averments in the written statement are clear and unambiguous. The evidence is unchallenged. The Trial Court was expected to go through the pleadings as well as the evidence and thereafter to record its finding. Merely to state that the defendant knew that it was joint family properties and that he has admitted so in his evidence, would not suffice a valid consideration of this issue. It appears to be more a passing remark than a serious consideration based on facts and evidence. It is incorrect to hold that the defendant knew the fact. It is not the evidence of the defendant that he has admitted that the suit schedule properties are joint family properties.

The finding on the status of the properties is a very crucial finding for the disposal of the suit. The suit of the plaintiffs is based on the assertion that the suit properties are the joint family properties. The status of the properties is seriously disputed by the 7th defendant. Therefore, the finding one or the other way would determine the rights of the parties. Partition cannot be granted if the properties are self acquired. When the status of the properties is disputed, the Trial Court has to necessarily record a finding as to whether the suit properties are self acquired or ancestral and thereafter proceed to determine the other issues. It is only after the determination of the status of the properties, that the determination of the other issues becomes relevant. It is under these circumstances that it is only just and appropriate that a finding be recorded with regard to the status of the properties. Until and unless such a finding is recorded, the determination of the other issues would serve no purpose. The determination of the other issues would be based on the finding whether the properties are ancestral or self acquired. Therefore, determination of the status of the properties is extremely important.

It is further pleaded by the learned counsel for the respondents, that there is substantial material available on record for the appellate Court to come to a view with regard to the status of the properties. That the Appellate Court has every right to re-examine the evidence and thereafter to record a finding as to nature of the properties. To remand the matter at such a belated stage is inappropriate.

The question of re-appreciation of evidence and to record a finding as to whether the finding recorded by the Trial Court is just and appropriate, would arise for consideration only where the Trial Court has actually recorded a finding based on the pleadings of the parties and the evidence led in. Except two stray sentences, there is no other reference to the contentions. There is no finding on the issue. There is no application of mind. Therefore, it cannot be said that even though the issues were not framed, the Trial Court has considered the issue and given reasons to the said effect. Hence, I have no hesitation to hold that the said issue has not been considered by the Trial Court. Therefore, even if the entire records have to be taken into account and the findings be recorded on the said issue, the answer to the said issue would be for the first time before this Court. I'' am of the considered view that it would be wholly inappropriate to answer this issue for the first time. It is needless to state that the appellate Court has a duty and a power to re-appreciate the evidence and test the findings recorded by the Trial Court. But herein, there is non consideration. There is no finding recorded to the said fact. Since no issue was framed to the said effect, no evidence was led in. Since no evidence was led in, there is no adequate material before this Court to consider as to whether the findings recorded by the Trial Court are just and appropriate. Therefore, in the absence of any adequate material, the Appellate Court would not be in a position to record a finding. Therefore, it is only just and necessary that the Trial Court frames an issue and records a finding to the said effect. Therefore, I'' am of the considered view that the matter requires to be remanded to the Trial Court for a fresh consideration. Since the matter is being remanded for a fresh consideration, in the fitness of things, it is just and necessary to direct the Trial Court to frame an issue as to whether the suit schedule properties are joint family properties or self acquired properties? On framing the additional issue, it is only just necessary that the parties be permitted to lead evidence so far as this issue alone is concerned. They shall not be permitted to lead evidence on other issues. Both the issues are accordingly answered.

In view of the findings recorded on the primary contention urged by the appellants, it would not be necessary to consider the other grounds. Consequently, the determination of the other grounds become a futile exercise in view of the findings recorded on the first contention of the appellants. The learned counsels submit that in view of the long pendency of the dispute, they undertake to cooperate in the early disposal of the suit. Hence, the following:

ORDER

(a) The Appeal is allowed. The Judgment and decree dated 20.10.2009 passed in O.S. No. 319/2006 by the II Addl. Civil Judge (Sr. Dn.), Gulbarga is set aside.

(b) The matter is remanded to the Trial Court for a fresh disposal in accordance with law.

(c) The Trial Court is directed to frame an appropriate additional issue with regard to the status of the properties.

(d) The parties are permitted to lead additional evidence only so far as this issue is concerned. They shall not be permitted to lead evidence with respect to the other issues.

(e) After recording the evidence with regard to the additional issue, the Trial Court shall re-answer all the issues, including the additional issue and pass appropriate orders in accordance with law.

(f) In view of the long pendency of the suit and in view of the undertaking by the learned counsels'', the Trial Court is directed to hear and dispose off the suit within four months from the date of appearance of all parties.

(g) The parties undertake to appear before the Trial Court on 25.9.2014.

No costs.

Registry to send back the records forthwith.