M.C. Ashwin and Others vs M. Chandra and Others

Aravind Kumar, J.—This is plaintiffs second appeal questioning the correctness and legality of judgment and decree passed by V Addl. District and Sessions Judge, Devanahalli, Bangalore Rural District dated 08.04.2014 in R.A. No. 399/2012 whereunder appeal filed by the unsuccessful plaintiffs came to be dismissed and judgment and decree passed by Senior Civil Judge and JMFC, Devanahalli dated 30.08.2012 in O.S. No. 503/2006 dismissing the suit of the plaintiffs filed for partition and separate possession came to be affirmed.

I have heard the arguments of Sri D.R. Rajashekharappa, learned Advocate appearing for appellants and Sri C.M. Nagabhushan, learned Advocate appearing for respondent-3. No representation is made on behalf of learned Advocate appearing for respondent-1. Respondent-2 had expired and L.Rs. of respondent-2 being appellants and respondent-1 are already on record and same is also indicated in the cause title of appeal memorandum.

It is the contention of Sri D.R. Rajashekharappa, learned Advocate appearing for appellants - plaintiffs that Courts below committed a serious error in dismissing the suit of the plaintiffs which was for partition and separate possession by arriving at a conclusion that in the facts and circumstances of the present case, Section 8 of the Hindu Succession Act, 1956 (hereinafter referred to as ''Act'') is attracted. He would submit that though it has been the specific case of plaintiffs that suit schedule properties namely, item Nos. 1 and 2 were ancestral properties and as such, Section 6 of the Act ought to have been applied and suit ought to have been decreed and same was not considered by Courts below in proper perspective. On this primary ground, he contends that both the Courts committed a serious error in dismissing the suit and as such, he prays for formulating the substantial questions of law as formulated in the appeal memorandum and seeks for answering the same in favour of the plaintiffs and decreeing the suit by allowing this second appeal. In support of his submissions, he has relied upon judgment of Hon''ble Apex Court in the case of Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, .

Per contra, Sri C.M. Nagabhushan, learned Advocate appearing for respondent-3 i.e., defendant-3 would support the judgment and decree passed by the Courts below and contends that when the pleadings and evidence available on record does not even remotely suggest that item Nos. 1 and 2 of suit schedule properties were ancestral properties and plaintiffs having not laid any foundation in this regard before the trial Court, they cannot be heard to contend that these two items of suit schedule properties are ancestral properties so as to arrive at a conclusion that Section 6 of the Act is attracted. In support of his submissions, he has relied upon judgment of Hon''ble Apex Court in the case of Makhan Singh (D) by Lrs. Vs. Kulwant Singh, .

Having heard the learned Advocates appearing for the parties and on perusal of judgment and decree passed by the Courts below, this Court is of the considered view that findings recorded by both the Courts below are purely questions of facts which do not give rise for formulating substantial questions of law and as such, appeal requires to be dismissed without being admitted for the reasons indicated herein below.

Plaintiffs-1 and 2 are son and daughter of first defendant. Second defendant is mother of first defendant. Third defendant is purchaser of item Nos. 1 and 2 of suit schedule properties from first defendant. Father of first defendant or grand father of plaintiffs is one Sri T. Muniyappa who is said to have expired on 28.08.1987.

Gist of the plaintiffs case is, item Nos. 1 and 2 of suit schedule properties was purchased by Sri T. Muniyappa under registered sale deeds dated 23.10.1968 - Ex. P-2 and 17.10.1968 - Ex. P-3 and on the death of their grand father Sri T. Muniyappa on 28.08.1987, plaintiffs and defendants-1 and 2 succeeded to the estate of deceased Sri T. Muniyappa as Class I legal heirs. It is also contended that plaintiffs and defendants-1 and 2 are members of the undivided Hindu Joint Family. They also contended that all four items of suit schedule properties are ancestral joint family properties of the plaintiffs and defendants-1 and 2. They further contend that their father i.e., first defendant is a person who was given to bad habits like drinking and gambling and was not managing the affairs of the family as expected of a prudent person and he was whiling away time and was spending money for his bad habits without taking proper care of the needs of joint family. It was also contended that when there was no legal necessity, first defendant had sold item Nos. 1 and 2 of suit schedule properties in favour of third defendant under sale deed dated 09.10.2003 and same was not for the benefit of the family and 1st defendant did not have any absolute right to sell the same and said sale is not binding upon them to the extent of their undivided share. It was also contended that third defendant is not a bona fide purchaser for value and he had purchased the same knowing fully well that it is a joint family property and on account of first defendant not taking care of the joint family, they demanded first defendant to divide the suit schedule properties by metes and bounds and as such got issued legal notice demanding partition and separate possession which was neither replied nor demand made thereunder complied by 1st defendant. Hence they filed a suit seeking for partition and separate possession.

First defendant appeared and filed his written statement and denied the averments made in the plaint except to the extent expressly admitting certain facts indicated thereunder and it is also contended by him that he had availed loan from third defendant and towards security of the same, he had mortgaged item Nos. 1 and 2 of suit schedule properties and he never executed registered sale deed but it was a mortgage deed. On these grounds, he also sought for division of properties into three shares and sought for 1/3rd share being allotted to him.

Third defendant being purchaser of item Nos. 1 and 2 of suit schedule properties appeared and filed written statement and denied entire averments made in the plaint and sought for dismissal of the suit.

On the basis of pleadings of the parties, trial Court formulated following issues for its adjudication.

(1) Whether the plaintiffs prove that, they, themselves and defendant No. 1 are the members of the Hindu undivided joint family and the suit schedule properties are their ancestral joint family properties?

(2) Whether the plaintiffs prove that, they are entitled for partition and separate possession of the suit schedule properties by metes and bounds? If so, at what extent?

(3) Whether the plaintiffs prove that, they are entitled for the relief as prayed for?

(4) Whether the defendant No. 1 proves that he has not executed sale deed dated 9-10-2003 in favour of defendant No. 3 and 3rd defendant obtained a mortgage deed as a security for recovery of money lent to him as contended in his written statement?

(5) Whether the defendant No. 3 proves that, he is a bona fide purchaser for value of suit item No. 1 and 2 and the registered sale deed dated 9-10-2003 is binding on plaintiffs and defendant No. 1 as contended in the written statement?

(6) Whether the defendant No. 3 proves that, the suit is not properly valued and court fee paid insufficient?

(7) What order or decree?"

Both plaintiffs got themselves examined as P.Ws. 1 and 2 and in all, they produced 15 documents and got them marked as Exs. P-1 to P-15. First defendant got himself examined as D.W. 2 and third defendant got himself examined as D.W. 1 and on behalf of defendants, 14 documents were produced and it was got marked as Exs. D-1 to D-14. On account of P.W. 1 not having tendered himself for cross examination, his evidence has been discarded by the trial Court.

On appreciation of evidence and after considering the pleadings as well as arguments advanced by the respective learned advocates appearing for the parties, Court below held that plaintiffs have failed to prove that they are members of the Hindu undivided joint family and suit schedule properties are ancestral joint family properties. Hence, it was held that plaintiffs are not entitled for the relief of partition and separate possession as sought for. It was also noticed by the trial Court that properties in question namely, item Nos. 1 and 2 were properties acquired by father of first defendant - Sri T. Muniyappa through his own income and it is not an ancestral property as contended by plaintiffs. In the light of the said finding, trial Court held that Section 8 of the Act was attracted and as such, plaintiffs would not be entitled for the relief sought for. On these grounds, trial Court dismissed the suit by judgment and decree dated 30.08.2012.

Unsuccessful plaintiffs having pursued their claim before first appellate Court did not yield any fruitful result inasmuch as, first appellate Court after considering rival contentions, had formulated the following points for its determination:

(1) "Whether plaintiffs proved before the trial Court that suit properties are joint family properties and are in joint possession and enjoyment of plaintiffs and defendant No. 1 and they are entitled for 1/4th share each in the suit schedule properties?

(2) Whether learned trial Judge erred in rejecting the claim of plaintiff and said findings are perverse, arbitrary and illegal and interference by this Court is required?

(3) What order?"

and held that pleadings of plaintiffs and evidence of P.W. 2 do not disclose as to who was the propositus of the family and as to how suit properties became ancestral and joint family properties. It was also held that plaint does not disclose that Sri T. Muniyappa i.e., grand father of plaintiffs has succeeded to some of the properties through his father by inheritance so as to construe that suit schedule properties were purchased from out of the joint family fund or nucleus of the joint family forming consideration to purchase item Nos. 1 and 2 of suit schedule properties. Apart from this reasoning, first appellate Court also held that Section 8 of the Act would be applicable since the property of a male Hindu who dies intestate becomes the property of the son as per Schedule to the Act and grand son during the life time of the son would not get a right and only son of a pre-deceased son would get right, as such, it was held that principles enunciated by Hon''ble Apex Court in the case of Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, would come to the rescue of defendants and not plaintiffs.

Sri Rajashekharappa, learned Advocate appearing for appellants-plaintiffs sought to distinguish the judgment of Hon''ble Apex Court in CHANDER SEN''s case referred to supra by contending that principles laid down in the said judgment would be inapplicable to the facts on hand inasmuch as, undisputedly there was partition effected between the father and son in respect of joint family properties and as such, Hon''ble Apex Court while interpreting Section 8 of the Act held that after the partition, property which devolved on the father, on his demise would devolve upon his son and as such, grand sons would not have a right over the said property and contends that in the instant case, there was no division or partition of the properties between Sri T. Muniyappa and his son Sri Chandra @ Chandrappa - first defendant and as such, principles enunciated in CHANDER SEN''s case would not be applicable to the facts on hand.

In the instant case, plaintiffs have been consistently inconsistent, from the beginning. At one breadth they say that suit schedule properties are joint family properties and in another breadth they say they are ancestral properties. Plaintiffs themselves are not clear in their stand. Be that as it may. Item Nos. 1 and 2 of suit schedule properties were undisputedly purchased by Sri T. Muniyappa i.e., father of 1st defendant under registered sale deeds dated 23.10.1968 - Ex. P-2 and 17.10.1968 - Ex. P-3. No where in the plaint it has been contended that grand father Sri T. Muniyappa had utilized joint family funds to purchase the suit properties or nucleus to purchase these two items of properties had flown from the joint family nucleus fund. In the absence of any such plea in this regard or material being placed by the plaintiffs, no infirmity can be found in the findings recorded by the Courts below that these two items of the properties are self acquired properties of Sri T. Muniyappa.

When it is so held, incidental question that would arise would be as to what would happen to the suit properties on the demise of Sri T. Muniyappa namely, as to whether son alone would succeed to the estate or grandson would also succeed to the estate of the deceased i.e., Sri T. Muniyappa in the instant case. Answer to this question can be easily found under Section 8 which is clear, unambiguous and explicit. Under Section 8 of the Act, property of a male Hindu dying intestate would devolve firstly upon heirs being relatives specified under Class I of the Schedule; if there are no Class I heirs, then upon heirs being relatives specified in Class-II of the Schedule; if there are no heirs under these two classes, then, upon agnates of the deceased and lastly, if there is no agnate, then upon cognates of the deceased. In the instant case, Sri T. Muniyappa expired intestate on 28.08.1987. There is no dispute on this fact. Upon his death, his son Sri Chandra @ Chandrappa. i.e., first defendant and his mother namely, second defendant succeeded to his share. If the plaintiffs had pleaded and proved that properties item Nos. 1 and 2 purchased by Sri T. Muniyappa was from out of the joint family nucleus fund, their contention of inapplicability of Section 8 of the Act to the facts on hand was susceptible to acceptance and also the fact that Section 6 of the Act being attracted. However, plaintiffs have utterly failed to putforth such specific plea in the plaint and prove the same. In the absence of any material to establish item Nos. 1 and 2 of suit schedule were purchased out of the joint family nucleus fund, this Court has to necessarily hold that Section 6 of the Act would be inapplicable and it is Section 8 of the Act which would come into play. As such, both the Courts below have rightly held that Section 8 of the Act is attracted to the facts and circumstances of the case and have rightly arrived at the conclusion that on the demise of 1st defendant''s father T. Muniyappa on 28.08.1987 his property devolved on defendants 1 & 2 namely his son and wife and plaintiff''s had no right.

In that view of the matter, Courts below have rightly dismissed the suit filed by the plaintiffs and there is no infirmity in the judgment and decree passed by the Courts below for arriving at a conclusion that there is material irregularity or non appreciation of evidence or improper appreciation of evidence or to formulate substantial question of law for being adjudicated as canvassed by Sri Rajashekharappa, learned Advocate appearing for appellants. Hence, appeal is hereby dismissed as being devoid of merits. No costs. Registry to re-transmit the records to Jurisdictional Court forthwith.