Maheshwarappa and Others vs Rudramma and Others

Ravi V. Malimath, J.—The case of the plaintiffs and defendant No. 1 are that they are governed by the Mitakshara School of Hindu Law. Defendant No. 1 is the only brother of the plaintiff and all of them are children of Late Sri. Arkeri Hanumanthappa @ Hanumappa. The father of the plaintiff and defendant No. 1 owned and possessed the plaint ''A'' schedule properties.

He left behind him his first and second wife. His first wife was arrayed as defendant No. 5, who had two children namely, Rudramma and Maheshwarappa, who are plaintiff No. 1 and defendant No. 1. His second wife died prior to the filing of the suit. She had a daughter by name, Lakshmamma, who is plaintiff No. 2. Defendant Nos. 2, 3 and 4 are the buyers. That the plaintiffs and defendants are the joint owners of the suit schedule properties, each one of them are entitled for 1/3rd share in the suit schedule properties. Hence, the instant suit was filed seeking for partition.

During the pendency of the suit, defendant Nos. 1 and 4 died, and their legal representatives were brought on record. During the life time of defendant No. 1, he has filed his written statement and specifically contended that the prepositus of his family is one Adiveppa who acquired the ''A'' schedule properties. The said Adiveppa had a son by name Hanumappa i.e., his father, as well as the father of plaintiffs. After his death ''A'' schedule properties are inherited by his son namely, Hanumappa and grandson Hanumanthappa. The relationship between the parties is admitted.

It is their further case that a Gift deed dated 09.07.1773, was executed donating a portion of the property to plaintiff No. 1. That the plaintiffs were never in joint possession of the suit schedule properties. That they have no manner, right or interest whatsoever in respect of ''A'' schedule properties. That they are not entitled for any share in the ''B'' schedule property. That defendant No. 1 and his father were constrained to sell half portion of the suit schedule property situated in Davangere in order to meet the marriage expenses of plaintiff No. 2. That the sale of the property is for family necessity.

That at the time of marriage, landed property was also sold by defendant No. 1 and his father, in order to meet the marriage expenses. That the father of defendant No. 1 incurred several debts to the tune of almost Rs. 1,00,000/-. Therefore, he was constrained to sell a portion of item No. 6, measuring 6 guntas to defendant No. 4. He has also sold land measuring 1 acre, 20 guntas and 1 acre, 20 guntas to defendant Nos. 2 and 3 in item No. 4, as evidenced by two sale deeds registered on 10.01.1994. Item No. 3 was also sold in favour of Kadlegondi Kotrappa, which is evidenced by the sale deed dated 07.09.1998. All this was done to discharge the debt incurred by the father and defendant No. 1.

Defendant No. 1 further contends that he has succeeded to ''A'' schedule properties along with his father and they cultivated the same. After his death, the defendant became the sole surviving member in the family. That there is no cause of action to file the suit and hence, sought for dismissal of the suit.

Defendant Nos. 2, 3 and the legal representatives of defendant No. 4 filed their separate written statement. They narrated that the plaintiffs and defendant No. 1 are the sisters and brothers and that they are the children of Arikere Hanumanthappa @ Hanumappa. They denied the fact that they have jointly succeeded to his estate. That it is incorrect to state that the plaintiff and defendant No. 1 are joint owners in joint possession of the suit schedule properties. They specifically pleaded that the plaintiff No. 1 did not raise any objection with regard to sales made by defendant No. 1. That these defendants are bonafide purchasers for value. That the sales were made to discharge the family debts and for family necessity. Therefore, the said properties cannot form part of partition. Defendant No. 4(b) and (c) adopted the written statement filed by other defendant Nos. 2, 3 and other L.R. of defendant No. 4.

Based on the on the contentions, the trial court framed the following issues and additional issues for consideration:

"1. Whether plaintiffs prove that suit properties are joint family properties and are in joint possession of plaintiffs and defendant No. 1?

Whether they further prove that sale deeds dated 10.1.94, 10.1.94 & 19.7.85 executed by defendant No. 1 in favour of defendant No. 2 to 4 respectively are not binding on them?

Whether plaintiffs proved that they have 1/3rd share each in suit schedule properties?

Whether defendant No. 1 prove that he alone inherited the suit schedule properties?

Whether he further proves that he performed the marriage of plaintiff No. 1 and 2 out of the sale proceeds of certain items of the suit properties?

Whether he further proves that he sold properties in favour of defendant No. 2 and 4 only in order to discharge his pious obligation?

Whether court fee paid is sufficient?

Whether plaintiffs are entitled for partition and separate possession?

What order or decree?

ADDITIONAL ISSUES:

Whether defendant No. 5 proves that her husband had executed a Will on 5.4.76 bequeathing his interest in the joint family properties in favour and also in favour of her grand-son by name A.M. Haleshappa?

Whether defendant No. 5 proves that she had executed a Will on 20.10.2002 bequeathing her interest over the properties in favour of Haleshappa and Thippeshi who is defendant No. 1(f)?"

On behalf of the plaintiffs, PW-1 and PW-2 were examined and 18 exhibits were marked. On behalf of the defendants, eight witnesses were examined as DW-1 to DW-8 and 27 documents were marked.

Issue Nos. 1, 2, 7 and 8 were held in the affirmative. Issue No. 3 was held partly in the affirmative. Issue Nos. 4, 5, 6 and additional issue No. 1 and 2 were held in the negative. The suit was partly decreed. Plaintiff No. 1 was entitled for 1/4th share in the suit schedule properties. The suit of the plaintiff No. 2 was dismissed against the defendants. Defendant Nos. 1(a) to 1(g) were entitled to get 3/4th share in the suit schedule properties. The properties alienated in favour of defendant Nos. 2 to 4 were allotted to the share of defendant No. 1(a) to 1(g), who are LRs of deceased Maheshwarappa - defendant No. 1. Aggrieved by the same, defendant No. 1 has filed RFA No. 1278/2004 and plaintiff No. 2 has filed cross objection in RFA Crob. No. 11/2005.

Heard Sri. Sannath Kumar Shetty, learned counsel appearing for the appellants in RFA 1278/2004 and Sri. G. Bala Krishna Shastry, learned counsel appearing for respondent No. 2 in the appeal, as well as the counsel representing the cross-objectors in RFA Crob. No. 11/2005.

The trial court while considering the plea of the parties considered the share of each of the plaintiffs in terms of its order at para-39. On considering the notional partition, it held that plaintiff No. 1 will be entitled to 1/4th share in the suit schedule properties and the wife and children of deceased Maheshwarappa namely, defendant No. 1, to receive 3/4th of the share in the suit schedule properties. The properties sold by the deceased defendant No. 1, in favour of defendant Nos. 2 to 4, were allotted to the shares of the wife and children of Maheshwarappa namely, defendant No. 1. Therefore, the plaintiff is entitled to 1/4th share in the suit schedule properties by metes and bounds.

The trial court considered the share to be allotted to plaintiff No. 2 in terms of para-15 of its judgment. Plaintiff No. 2 has admitted insofar as the relationship is concerned, as the daughter of second wife. It came to the conclusion that the second plaintiff is not entitled for any share in the suit schedule properties. Therefore, no share was given to her. In doing so, it relied on the judgment reported in Rangappa and Others Vs. R. Siddaramappa and Others, .

On considering the said judgment and the applicable law, I have no hesitation to hold that the trial court committed an error in denying the share of plaintiff No. 2. The plaintiff No. 2 being the daughter of the second wife would be entitled to a share in the property fallen to the share of the father. The entitlement given to her in Law would be from the share in the family partition of the father. The finding of the trial court denying the share to the plaintiff No. 2 therefore is misconceived. It has misread the aforesaid judgment by wrongly holding that she is not entitled to any share. Therefore, the finding of the trial court on that issue requires to be reversed.

In view of the admitted relationship, the shares would have to be allotted. On a notional partition being made, half of the property would stand allotted in favour of Hanumappa. The son of Hanumappa namely, defendant No. 1 would be entitled to the remaining half share of the property. The four other LRs namely, defendant No. 5 - the first wife, the first plaintiff - the daughter of Hanumappa, plaintiff No. 2 - the daughter of second wife and defendant No. 1, as well as the first wife-defendant No. 5, each will receive 1/4th the share of that of their father namely, 1/4th of half, which is 1/8th. Consequently, the judgment and decree would have to be modified by holding that the plaintiff No. 1 and plaintiff No. 2 and defendant No. 1 and defendant No. 5 would be entitled to 1/8th share of plaint ''A'' schedule properties. Defendant No. 1 will get half of the share in ''A'' schedule properties as well as 1/4th of the share of the father namely, 1/4th of half which is 1/8th.

So far as the finding on the sale of the properties for legal necessities is concerned, the same was considered by the trial court in its judgment at para-19 onwards. It opined that the defendant failed to establish that the sales were made for family or for legal necessity. Therefore, the share was allotted to the plaintiffs and the defendants notwithstanding the sale being executed in favour of defendant Nos. 2 to 4. The sales were held not be for family necessity.

Under these circumstances, it was only defendant Nos. 2 to 4 in whose favour the sale deeds were executed, who should have been aggrieved by the decree of the trial court. Apparently, they have accepted the judgment and decree. No appeal or cross-appeal has been filed by them. Therefore, the finding of the trial court on this issue remains undisturbed.

Consequently, the appeal and cross-objection are partly allowed. The shares are modified as follows:

"ORDER

i. plaintiff No. 1 - the daughter of Hanumappa, plaintiff No. 2 - the daughter of second wife and defendant No. 5 - the first wife, will each receive 1/4th of the share of the father in the plaint ''A'' schedule properties namely, 1/4th of half, which is equal to 1/8th;

ii. defendant No. 1, the son will receive half of the share in ''A'' schedule properties. He will also receive 1/4th of the share of the father in the plaint ''A'' schedule properties namely, 1/4th of half, which is equal to 1/8th."

The judgment and decree in O.S. No. 17/2002 (Old No. 143/1996), dated 12.10.2004, passed by the Civil Judge (Senior Division), Harihar, passed, is modified accordingly.

No Costs.