Narayanappa vs Ramakka and Others

N. Kumar, J.—1. This is a 3rd defendant''s regular first appeal challenging the judgment and decree of the Trial Court decreeing the suit of the plaintiff for partition and separate possession as prayed for.

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

The subject matter of the suit is land bearing Sy. No. 5/2 measuring 3 acres 4 guntas including 28 guntas of kharab land situated at Vaddarahalli Village, Lakshmipura post, Dasanapura Hobli, Bangalore North Taluk and a vacant site bearing Khaneshumari No. 10 measuring 48 X 55 feet situated at Vaddarahalli Village, Lakshmipura post, Dasanapura Hobli, Bangalore North Taluk, which are more particularly described in the schedule to the plaint as item Nos. 1 and 2 (for short, hereinafter referred to as the schedule properties).

One Ramaswamaiah is the husband of Puttanarasamma. They had three daughters i.e., plaintiff and defendants 1 and 2. The schedule properties were acquired by Puttannarasamma under a registered gift deed dated 07.04.1941 executed by her brothers Thimmaiah and Narayanappa. After the death of Puttanarasamma, plaintiff and defendants 1 and 2 are in joint possession and enjoyment of the suit schedule properties. The 3rd defendant had no manner of right and interest over the suit schedule properties. The grievance is that, behind the back of the plaintiff, 3rd defendant, in collusion with the revenue officials got changed, the katha of the schedule properties in his favour. Taking advantage of the same, he was trying to alienate the schedule properties to the third parties. The 3rd defendant is none other than the son of the 2nd defendant. There was no partition in the family. When the plaintiff demanded her legitimate share in the plaint schedule properties, defendants 1 and 2 went on postponing the matter on one or the other reason. Therefore, she was constrained to file the suit.

After service of summons, the defendants entered appearance. The 1st defendant filed a written statement admitting the claim of the plaintiff and she contended that the defendant No. 3 has no manner of right, title or interest over the schedule properties. She admitted that there was no partition among the plaintiff and defendants 1 and 2. She also averred that defendant No. 3 in collusion with the revenue authority has got the katha of the property made out in his name. The mutation order made without hearing them is not binding on them. She is entitled to a share in the schedule property. She also prayed for partition and separate possession.

The defendant No. 3 filed a written statement contending that plaintiff, defendants 1 and 2 have no share in the suit schedule properties. He contended that he is a foster son of Puttanarasamma. The plaintiff and defendants 1 to 3 have sold the property bearing Sy. No. 5/3 jointly to one Sri. Thimmaiah under a registered sale deed dated 01.04.1979. The entire sale consideration amount was given to the plaintiff and defendants 1 and 2. He further contends that the property, which was sold, was allotted to plaintiff and defendants 1 and 2 under a family arrangement. The suit schedule properties were allotted to the 3rd defendant under a family arrangement. The plaintiff and defendants 1 and 2 have jointly executed possession documents dated 21.04.1979 in favour of the 3rd defendant in respect of the suit schedule properties. The 3rd defendant is in exclusive lawful possession and enjoyment of the suit schedule properties as absolute owner. He has also paid Kandayam in respect of the suit schedule properties and mutation and RTC stands in his name. The plaintiff and defendants 1 and 2 are total strangers in respect of the schedule property. He has acquired the suit schedule properties under a possessory title and therefore he prayed for dismissal of the suit.

On the basis of the aforesaid pleadings, the Trial Court framed the following issues:

"1. Whether the plaintiff proves that she is the member of the Hindu Undivided Joint Family?

Whether the plaintiff proves that the suit schedule properties are her ancestral joint family properties?

Whether the defendant No. 3 proves that he is the absolute owner of the suit schedule property?

Whether the plaintiff is entitled for mesne profits?

Whether the plaintiff is entitled for 1/3rd share?

What order?

Additional Issue

Whether the 3rd defendant is entitled for counter claim?"

The plaintiff, in order to substantiate her claim examined herself as P.W. 1 and produced 9 documents which are marked as Ex.P1 to Ex.P9. The 3rd defendant was examined as D.W.1. The 1st defendant was examined as D.W.2 and two witnesses by name Ramaiah and Chikkathimmaiah were examined as D.W.3 and D.W.4 respectively and 12 documents were produced as per Ex.D1 to Ex.D12.

The Trial Court, on appreciation of the oral and documentary evidence on record has held that the plaintiff has proved that she is a member of the Hindu undivided Joint family. She has further proved that the suit schedule properties are her ancestral joint family properties. The 3rd defendant has failed to prove that he is the absolute owner of the suit schedule properties. As the plaintiff is joint holder of the properties, she is not entitled to mesne profits. Insofar as the additional issue with regard to counter claim of the 3rd defendant is concerned, it was held that as the 3rd defendant has nowhere claimed any relief by way of counterclaim, the issue does not survive for consideration and accordingly the suit came to be decreed declaring that the plaintiff, the 1st defendant and 2nd defendant are entitled to 1/3rd share in the plaint schedule properties.

Aggrieved by the said judgment and decree of the Trial Court, the 3rd defendant has preferred this appeal.

The learned counsel for the appellant assailing the judgment and decree of the Trial Court contended that in the family partition between the plaintiffs and defendants 1 and 2, the schedule properties fell to the share of the 3rd defendant. The property which fell to the share of the plaintiff and defendants 1 and 2 was jointly sold by them under a registered sale deed dated 01.04.1979. Therefore, the 3rd defendant is the absolute owner of the schedule properties, in which the plaintiffs and defendants 1 and 2 have no right. He also contended that as Ramaswamaiah and Puttanarasamma had no male issues and hence, they adopted the 3rd defendant, he was brought up in their family. Though the word ''foster son'' is used in the documents, it is not correct. He is an adopted son and therefore, he is entitled to the plaint schedule properties. The Trial Court has not properly appreciated these facts and committed serious illegality in decreeing the suit of the plaintiff. He further contended that they have not paid the requisite Court fee but Trial Court committed a serious error in declaring that she is entitled to 1/3rd share in the plaint schedule properties.

We do not see any merit in the said contentions. The schedule properties belongs to Puttanarasamma, who acquired title to the said property under a registered gift deed executed by her brothers in her favour which is dated 07.04.1941. Therefore, it is a Sthreedhana property. She died leaving behind three daughters i.e., plaintiffs and defendants 1 and 2. Therefore, by virtue of Section 15 of the Hindu Succession Act, as the three daughters being class-I heirs, they are entitled to equal share in the schedule property.

The case of the 3rd defendant is, he is an adopted son, but that is not a case pleaded in the written statement, which he has filed. In the written statement, he asserted that he is a foster son. In the sale deed Ex.D1 it is said so. Therefore, it is too late in the day for the 3rd defendant to plead that he is adopted son and not a foster son. The foster son acquires no title in the estate of his foster parents and therefore, the 3rd defendant has no right, title and interest over the schedule properties.

Secondly, it was contended that on 21.04.1979 the schedule property fell to his share. Again that is an argument put forth before us without any basis. The 3rd defendant contends that the possession of the schedule properties were handed over to him under the ''anubhavada kararu'' and he is claiming title to the schedule property as a possessory title. Therefore, no fault could be found with the Trial Court, when it has observed that in the absence of such document, 3rd defendant has failed to prove any manner of interest over the schedule property. Even if he has been put in possession under the agreement, he acquires no right.

Admittedly, the suit properties belong to plaintiffs and defendants 1 and 2 and therefore, they are entitled to 1/3rd share in the schedule property. That is precisely what the Trial Court has held. The Trial Court has rightly dismissed the claim for mesne profit. The question of raising this counter claim would not arise. The Trial Court, on appreciation of the oral and documentary evidence on record keeping in mind the law has decreed the suit of the plaintiff as prayed for. The 1st defendant has not paid Court fee on the written statement but still, the Trial Court has declared that she is entitled to 1/3rd share and hence committed no illegality to them. The 1st defendant to pay Court fee so that she could work out her share in the 1/3rd share. Seen from any angle, there is no merit in the said appeal before us. Therefore, the appeal is dismissed at the stage of admission.