M.R. Chinnappa vs Subramanya and Others

N. Kumar, J.—This is the 2nd defendant''s regular appeal challenging the judgment and decree of the trial Court decreeing the suit for partition and separate possession as prayed for. However, the subject matter of this appeal is only one item in the suit ''A'' schedule property namely, item No. 3(d), which the appellant claims as self acquired property.

For the purpose of convenience, the parties are referred to, as they are referred in the original suit.

The subject matter of this appeal is the land bearing Sy. No. 33 measuring 05 guntas which is a house site and constructed in Mangalore tiled roof, it is situated in Menase village, Kasaba hobli, Sringeri Taluk.

The plaintiff and the 1st defendant are the sons of late Rukminiyamma and M.R. Manjunatha. The said Manjunatha died on 04.11.2005 leaving behind the plaintiff, 1st defendant and their mother Rukmmiyamma. M.R. Manjunatha was the absolute owner in possession of item No. 2 of A'' schedule property and he has purchased item No. 1 of A'' schedule property in the name of late Smt. Rukmmiyamma. After the death of M.R. Manjunatha, plaintiff, 1st defendant and late Rukmmiyamma succeeded to the plaint A'' schedule property. Suit item No. 3(a) to 3(d) of the plaint A'' schedule property originally belonged to the grand mother of the parties hereto namely late Lachhamma who died leaving behind M.R. Manjunatha and 2nd defendant. The said Manjunatha has 1/2 share in the said properties. As such the plaintiff has got 1/4th share in the said properties. Remaining 1/2 share in item No. 3(a) to (d) has to go to the 2nd defendant. The movables mentioned in ''B'' schedule property belonged to late father of the plaintiff After his death, the plaintiff, 1st defendant and their mother Rukminiyamma succeeded to the said properties and plaintiff has equal share in the said properties. Item No. 1 property stands in the name of Rukmmiyamma. Item No. 2 stands in the name of father of the plaintiff and 1st defendant. Item No. 3 of A'' schedule property now stands in the name of 2nd defendant. Said Rukmmiyamma died on 28.08.2010 at KMC Hospital, Manipal leaving behind plaintiff and 1st defendant as her surviving legal heirs. After the death of Rukmmiyamma, the plaintiff came to know that the claim of 1st defendant to the effect that Rukminiyamma has left a registered Will in favour of 1st defendant bequeathing item No. 1 of the ''A'' and ''B'' schedule movables to him in entirety. The 1st defendant approached the Menase village Panchayath for transfer of Khatha on the basis of the Will. Then the plaintiff caused a legal notice issued on 16.03.2011 to the Panchayath, objecting to transfer Khatha of the property and also contended Smt. Rukminiyamma died interstate. In view of the objection Khatha of the schedule property was not transferred and therefore, sought for a share in the plaint schedule properties. The 1st defendant filed written statement contesting the claim. Though he admitted the relationship and nature of the properties, he sets up a Will dated 07.08.2010 which is registered on 26.10.2010 and claim absolute title over the suit item No. 1 of ''A'' schedule property and he sought for dismissal of the suit in so far as the said property.

The 2nd defendant filed a separate written statement wherein claiming item No. 3(a) property equally belongs to him and deceased M.R. Manjunatha. Insofar as, item No. 3(d) is concerned, he claims exclusive title to the said property. Regarding items in A'' schedule property, he prays for 1/2 share.

On the aforesaid pleadings, the trial Court framed the following issues:

"1. Whether the plaintiff prove that the suit schedule properties are their joint family properties and he has right to claim share over the suit schedule properties?

Whether the defendant No. 1 proves that he became the absolute owner of the item No. 1 of the A schedule properties and item No. 1 to 15 and 18 of the B schedule properties on the basis of the Will dated 07.08.2010 executed by Smt Rukminiyamma?

Whether the defendant No. 1 proves that the RCC house at D. No. 546, at Mandya is also their joint family property and the suit is bad for non-inclusion of the said property?

Whether the defendant No. 2 proves that he has half share over the item No. 3(a) to 3(c) of the suit A schedule properties?

Whether the defendant No. 2 proves that he is absolute owner of the item No. 3(d) of the suit A schedule properties?

Whether the suit is properly valued and requisite court fee is paid on the plaint?

Whether the plaintiff is entitled for the relief claimed the suit?

Whether the plaintiff is entitled for mesne profits and accounts?

what order or decree?"

To substantiate the claim, the plaintiff examined himself as P.W. 1 and produced 15 documents which were marked as Ex. P1 to P15. The 1st defendant was examined himself as D.W. 1 and he examined other two witnesses as D.Ws. 2 and 3 and produced 22 documents which were marked as Ex. D1 to D22.

The trial Court on appreciation of the oral and documentary evidence on record held, the plaintiff has proved that the schedule properties are their joint family properties and that he has right to claim share over the suit schedule properties. It held defendant No. 1 has failed to prove the Will dated 07.08.2010 said to have been executed by Smt. Rukminiyamma. Therefore, it denied his claim for exclusive title to item No. 1 of A'' schedule and item Nos. 15 and 18 of the ''B'' schedule properties. The 1st defendant also failed to prove that RCC house bearing No. 546 situated at Mandya is a joint family property. The 2nd defendant has proved that he is entitled to 1/2 share in Item No. 3(a) to (c) of A'' schedule property. However, he has failed to prove that item No. 3(d) of schedule property is his exclusive property in which others have no right and accordingly, the suit filed by the plaintiff came to be decreed granting 1/2 share in item Nos. 1 and 2 of A and B Schedule properties and declared that 1st defendant is entitled to 1/2 share in item Nos. 1 and 2 of A and B schedule properties also plaintiff and 1st defendant are entitled to 1/4th each share in item No. 3 (a) to (d) of A schedule properties. Further, the 2nd defendant is entitled to half share in the item No. 3(a) to (d) of the A schedule property. Aggrieved by the said judgment and decree insofar as it relates to item No. 3(d) of the suit ''A'' schedule property is concerned, the 2nd defendant has preferred this appeal.

Learned counsel for the appellant assailing the said portion of the impugned judgment contends, the mutation entries were made in the name of 2nd defendant on consent being given by Smt. Rukminiyamma. The 1st defendant in his evidence has categorically stated that item No. 3(d) of A schedule property is exclusively belonged to 2nd defendant. Infact, 2nd defendant has put up a huge construction of considerable cost and he is exclusively living therein and therefore he submits that it was a joint family property at the inception. When other co-sharers and members of the joint family had given their consent, on the basis of that the Khatha was made out in his name. The right they claim insofar as the schedule properties is relinquished by them in favour of 2nd defendant. Thus, the 2nd defendant is the absolute owner. This aspect is completely missed by trial Court. Therefore, case calls for interference.

We do not see any substance in the said contention. The fact that item No. 3(d) of ''A'' schedule property is a coparceners property is not in dispute. The plaintiff and 1st defendant''s father and the 2nd defendant are brothers. During the life time of the father of the plaintiff and 1st defendant, there was no partition. However, after the death of the grand mother of plaintiff and 1st defendant namely, Lachamma, in whose name the properties were standing and on a consent given by M.R. Manjunatha, the khatha of the property was transferred in the name of 2nd defendant. The fact that it was transferred on the basis of the consent shows that the person who has given the consent had interest in the property. By giving consent means by making out Khatha in the name of co-sharer. The person who has given the consent does not lose interest in the property and it does not amount to that he has no right over the property. By making the Khatha would not make the other co-sharer absolute owner. If after such Khatha is transferred, same itself would not confer absolute title on the property of which a construction is put up. From the aforesaid material on record, it is clear that said item of the property is a joint family property, there was no partition and therefore plaintiff and 1st defendant have got 1/2 share and 2nd defendant has got 1/2 share. Infact 2nd defendant did not step into the witness box and adduced any evidence. He has not produced any material to show his exclusive title. The consent given by M.R. Manjunatha or Rukminiyamma would show that on the basis of the same, mutation entry has been made. The very document relied on itself would establish that it is a joint family property. The trial Court on consideration of the aforesaid material has rightly held that 2nd defendant has failed to establish that it is his exclusive property/separate property/self acquired property. Therefore, the order passed by the trial Court does not call for interference. Accordingly, we do not see any merit in the appeal. It is dismissed.