Muniyellamma vs Gangamma

B.S. Patil, J.—These two regular first appeals arise out of the judgment and decree dated 1-7-1996 passed in O.S. No. 331 of 1993 by the learned II Additional Civil Judge, Bangalore Rural District. The suit O.S. No. 331 of 1993 was filed by Smt. Gangamma, W/o. late Sampaiah seeking partition and separate possession of three items of immovable properties. She had sought for declaration that the sale deed dated 19-6-1980 executed by the 1st defendant-S. Ramakrishna in favour of the 2nd defendant-Muniyellamma was null and void and not binding on her.

The Trial Court has decreed the suit holding that the plaintiff-Gangamma was entitled for partition and separate possession of her half share declaring that the sale deed dated 19-6-1980 executed by the 1st defendant in favour of the 2nd defendant was null and void.

Aggrieved by the declaration made declaring that the sale in favour of the 2nd defendant was null and void, the 2nd defendant-Muniyellamma has filed R.F.A. No. 511 of 1996. Whereas, aggrieved by the decree of partition passed granting half share to the plaintiff-Gangamma, the 1st defendant-Ramakrishna has filed R.F.A. No. 569 of 1996. In this background, both the appeals are heard together and are disposed of by this common judgment.

For the sake of convenience, parties are referred to by their rank assigned to them before the Trial Court.

Plaintiff sued for partition claiming that she was the first wife of late Sampaiah. As she did not have issues, her husband married the second wife by name Hanumakka. The 1st defendant-Ramakrishna was born to Hanumakka. Hanumakka died when the 1st defendant was six months old. Thereafter, plaintiff, her husband Sampaiah and the 1st defendant lived together in a joint family. 20 years prior to the suit, plaintiff''s husband died leaving the plaintiff and the 1st defendant as his only legal heirs. The 1st defendant sent the plaintiff out of the house at Puttareddypalya. Being an illiterate and ignorant widow, the plaintiff with great difficulty stayed with one Sri Muniyappa at Kalumedoddi. She learnt that the 1st defendant sold Item No. 3 of the suit property in favour of the 2nd defendant by a registered sale deed dated 19-6-1980. She alleged fraud against the defendants. She contended that she has succeeded to the suit properties along with the 1st defendant upon the death of her husband and is entitled for half share.

The defendants filed written statement denying the plaint averments that the plaintiff was the legally wedded wife of late Sampaiah. They asserted that Hanumakka mother of the 1st defendant was the only wife of late Sampaiah. The assertion of the plaintiff that she stayed with the 1st defendant and looked after the 1st defendant were all denied. The 1st defendant asserted that the plaintiff was a stranger. He admitted that he had sold Item No. 3 of the suit property in favour of the 2nd defendant.

Based on the pleadings, the Trial Court framed the following issues:

(i) Whether the plaintiff proves that she is the first wife of late Sampaiah?

(ii) Whether the plaintiff proves that the suit schedule properties are the joint family properties of plaintiff and 1st defendant?

(iii) Whether the plaintiff proves that she has got half share in the suit schedule properties?

(iv) Whether the plaintiff proves that the sale of Item No. 3 of plaint schedule properties by 1st defendant in favour of 2nd defendant is null and void and not binding on her?

(v) Whether the plaintiff proves that she is entitled to partition and separate possession of half share in the plaint schedule properties?

(vi) Whether the plaintiff proves that she is entitled to mesne profits?

(vii) What order or decree?

On behalf of the plaintiff, plaintiff and five witnesses were examined as P.Ws. 1 to 5. Exs. P.1 to P. 23 were produced and marked. On behalf of the defendants, D.Ws. 1 to 5 were examined. Exs. D.1 and D.2 were marked.

The Trial Court found that the plaintiff proved that she was the first wife of late Sampaiah and that the suit schedule properties were the joint family properties of the plaintiff and the 1st defendant. Consequently, it held that the plaintiff was entitled for half share in the suit properties. As regards sale of Item No. 3 of the suit properties by the 1st defendant in favour of the 2nd defendant, the Trial Court found that the said sale was null and void. The plaintiff was also held entitled for mesne profits.

Learned Counsel for the appellant-purchaser/2nd defendant contends that the Trial Court has seriously erred in declaring the sale deed dated 19-6-1980 as null and void. He urges that the 2nd defendant was a bona fide purchaser and the 1st defendant was entitled to sell his share in the joint family properties. Therefore, to the extent of his share, the sale deed binds the plaintiff. He also submits that as the 2nd defendant is a bona fide purchaser, the property sold in favour of the 2nd defendant ought to have been ordered to be allotted in favour of the vendor-1st defendant in equity.

Counsel appearing for the appellant-1st defendant in the connected Appeal submits that the findings recorded by the Trial Court holding that the plaintiff was the first wife of late Sampaiah are totally vitiated. He has urged that no cogent evidence is produced by the plaintiff and the oral evidence adduced could not have been believed by the Trial Court. He points out that there is discrepancy in the pleadings and the evidence, in as much as, in the plaint, it is stated that the 1st defendant was six months old when his mother Hanumakka died, whereas in her evidence, the plaintiff-P.W. 1 has stated that he was six years old when Hanumakka died. He further points out that Ex. P.18-voters list is of the year 1988 pertaining to Kalumedoddi Village and the plaintiff did not produce the voters list of Puttareddypalya where she claimed to have stayed with her husband Sampaiah before his death. Learned Counsel for the parties have taken me through the pleadings and evidence, both oral and documentary, to substantiate their contentions.

Counsel appearing for the plaintiff-1st respondent herein supports the judgment and decree passed by the Trial Court.

Having heard the learned Counsel for the parties, the following points arise for consideration:

(i) Whether the plaintiff has successfully established that she was the first wife of late Sampaiah and the suit schedule properties were the joint family properties of Sampaiah, plaintiff and 1st defendant-Ramakrishna?

(ii) Whether the Trial Court committed an illegality in declaring that the sale deed dated 19-6-1980 executed by the 1st defendant in favour of the 2nd defendant was null and void and not binding on the plaintiff?

(iii) Whether the judgment and decree passed decreeing the suit of the plaintiff awarding half share to her in all the suit schedule properties suffers from any legal infirmity?

(iv) What order?

Point No. 1.--Plaintiff-Gangamma has examined herself as P.W. 1. She has stated in her evidence that herself and her husband stayed together at Puttareddypalya for about 50 to 60 years and that she was staying at Kalumedoddi for the last 20 years. She has stated the details regarding celebration of her marriage with Sampaiah and the persons who attended the marriage. According to her, the 1st defendant drove her out of the house after the death of her husband by taking away'' all her jewellery and thereafter she has started to stay at Kalumedoddi Village. She has contended that though she demanded for partition and separate possession of her share in the joint family properties, the 1st defendant denied the same. In the cross-examination, she has denied the suggestion that she was not at all married to Sampaiah and that she along with her brother''s children had together hatched a plan to lay illegal claim on the suit properties belonging to the 1st defendant taking advantage of the fact the 1st defendant did not have any legal heir to succeed to the properties.

P.W. 2-Muniswamy is the person who attended the marriage of the plaintiff and Sampaiah. According to him, Sampaiah was his uncle''s son and it was his father (P.W. 2''s father) who celebrated the second marriage of Sampaiah with Hanumakka. Though it is elicited in the evidence of P.W. 2 that he has married the sister of the plaintiff, that alone cannot be regarded as a material to disbelieve his version regarding the marriage celebrated between the plaintiff and Sampaiah. In addition, P.W. 3-Kondareddy who was the neighbour of Sampaiah and who also attended the marriage, has clearly stated about the celebration of the marriage of the plaintiff with Sampaiah. Nothing worthwhile is elicited in the cross-examination of this witness to discredit his version.

Similarly, P.W. 4-Venkataramanachar has deposed that he has seen the marriage procession taken at Puttareddypalya Village and that his house was away by about 4 to 5 houses from Sampaiah''s house. He has spoken about the second marriage of Sampaiah with Hanumakka. He has also stated that he had prepared jewellery for the marriage of the plaintiff, as a goldsmith. Likewise, P.Ws. 5 and 6 viz., Mariyappa and Hanumanthaiah, respectively, have also spoken about the marriage of the plaintiff with Sampaiah and have stated that they attended the marriage.

Very strangely, D.W. 1-1st defendant in the examination-in-chief itself states that he was not aware whether the plaintiff was staying along with his father 25 years back. He pleads ignorance about the fact that the plaintiff was residing in Puttareddypalya Village 20 to 25 years prior to the date of his evidence, asserting that he was not aware of the same. What is more surprising is that he states that he was not aware whether the plaintiff had married his father Sampaiah 50 to 60 years back and had established the family at Puttareddypalya where they lived together. Though subsequently he denies the marriage between the plaintiff and Sampaiah, the fact remains that the evidence of the 1st defendant in the course of examination-in-chief itself suggests that he was half hearted even in the denial of the factum of marriage between the plaintiff and his father. Even in the cross-examination, he reiterates the same stand contending that he was not aware whether plaintiff had married Sampaiah. He goes to the extent of stating that he was not aware as to whether P.W. 2-Muniswamy was his uncle.

The Trial Court has examined the evidence of D.W. 1 in the light of the evidence of the other witnesses examined in proof of the celebration of the marriage of the plaintiff with Sampaiah, to record a finding that the evidence of the plaintiff was more probable and the evidence of the defendant was not trustworthy.

In addition, Ex. P.18-Voters list of 1988 of Kalumedoddi is produced by the plaintiff, whereunder she is described as wife of Sampaiah. If she was not the wife of Sampaiah, there was no need for describing the plaintiff as the wife of Sampaiah in the official documents viz., voters list pertaining to an undisputed period. The mere fact that for the year 1992, in the voters list of Puttareddypalya, the name of the plaintiff is not found, will not in any manner discredit the version of the plaintiff. In fact, it is the case of the plaintiff that she left Puttareddypalya Village about 20 years prior to the filing of the suit, as the 1st defendant drove her out of the house. Thus, the Trial Court has rightly appreciated the oral and documentary evidence to record a finding that the plaintiff proved that she was the first wife of late Sampaiah.

As regards the suit schedule properties, there are three items of immovable properties. The first item is a house property. The second item is a land comprised in Sy. No. 386 of Kaggalipura Village measuring 5 acres 23 guntas and the third item is the land bearing Sy. Mo. 35 of Kaggalipura Village measuring 3 acres 13 guntas. Ex. P.16 is the sale deed dated 19-9-1963, whereunder the third item of the suit properties was purchased by Sampaiah from one K. Ramamurthy. It is thus clear that this property was acquired by Sampaiah. This property was subsequently sold by the 1st defendant-S. Ramakrishna in favour of the 2nd defendant-Muniyellamma vide sale deed dated 19-6-1980. Ex. D.2 is the sale deed whereunder the father of Sampaiah has purchased the first item-house property from another person on 23-4-1987. The second item -- Sy. No. 386 was an inam land, over which occupancy was granted in favour of Sampaiah. Thus, it is clear that all the suit schedule properties were the properties of Sampaiah and upon his death, his widow-the plaintiff herein and his son-1st defendant together succeeded equally. Accordingly, point No. 1 has to be answered holding that the plaintiff has successfully established that she was the first wife of Sampaiah and the suit schedule properties were the joint family properties of Sampaiah, plaintiff and the 1st defendant-S. Ramakrishna.

Point No. 2.--The Trial Court has declared the sale deed dated 19-6-1980 as null and void. This sale deed is executed by the 1st defendant in favour of the 2nd defendant. Under Hindu Law, if a coparcener alienates the joint family property, the same will be binding insofar as his share is concerned. Thus, the sale will not be rendered null and void, but will be binding only insofar as the share of the vendor is concerned. As it is already held above that the 1st defendant and the plaintiff succeeded to the suit properties equally, the 1st defendant alone could not have sold the joint family property so as to bind the plaintiff''s interest. This is different from saying that the entire sale itself is null and void.

In the instant case, the 1st defendant has sold the third item -- Sy. No. 35 measuring 3 acres 13 guntas to the 2nd defendant. The sale transaction has taken place way back in the year 1980 i.e., on 19-6-1980 vide Ex. P.17. The suit is filed in the year 1993 after a lapse of 13 years. The 2nd defendant has enjoyed the property continuously during this period. The Trial Court has, therefore, seriously erred in declaring the sale deed as null and void without considering the provisions of Hindu Law, wherein there is no bar for a coparcener to alienate his share in the joint family properties. Therefore, the judgment and decree passed insofar as declaration of the sale deed dated 19-6-1980 as null and void is illegal and unsustainable.

The interest of the 2nd defendant who is a purchaser for valuable consideration under a sale deed executed almost 13 years prior to the date of filing the suit, requires to be protected to the extent of the share of the vendor. Point No. 2 is accordingly answered.

Point Nos. 3 and 4.--The other items viz., Item Nos. 1 and 2 of the suit properties being the joint family properties, both the plaintiff and the 1st defendant are entitled for equal share. Upon the death of Sampaiah, his widow (plaintiff) and the son (1st defendant) succeed equally to the estate of the deceased. Hence, in Item Nos. 1 and 2, plaintiff and 1st defendant are entitled for equal share. Therefore, the plaintiff is entitled to succeed to the above extent. The judgment and decree of the Trial Court deserves to be modified to the said extent. The declaration made holding that the sale deed dated 19-6-1980 was null and void, deserves to be set aside. Point Nos. 3 and 4 are answered accordingly.

In the result and for the foregoing, R.F.A. No. 569 of 1996 filed by the 1st defendant-S. Ramakrishna is dismissed. R.F.A. No. 511 of 1996 filed by the 2nd defendant-Muniyellamma is allowed. The judgment and decree of the Trial Court is modified. It is ordered that the plaintiff and the 1st defendant are entitled for equal share in Item Nos. 1 to 3 of the suit properties. The sale deed dated 19-6-1980 executed by the 1st defendant in favour of the 2nd defendant as per Ex. P.17 is binding to the extent of the share of the 1st defendant. Office is directed to draw up the preliminary decree in terms stated above. In the facts and circumstances, both the parties are directed to bear their respective costs.