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Judgment
N. Kumar, J.—This is an appeal filed by defendants 3, 4 and 5 challenging the judgment and decree of the Trial Court, dated 31.5.2008, which has decreed the suit of the plaintiff granting 1/4th share to each of the parties to the suit.
For the purpose of convenience, the parties are referred to as they are referred to in the original suit.
The case of the plaintiff is that one Karigowda and his wife Kempamma died long back leaving behind them four sons, viz., Kyathegowda, Yeluvegowda, Bacchegowda and Kullegowda, Karigowda died leaving behind him defendants 3 to 6. Yeluvegowda died leaving behind him the plaintiff as his sole legal heir. Bacchegowda died leaving behind him defendant No.1 and Kullegowda being alive is the second defendant. There was no division in the family in respect of the schedule properties. Defendant No.1 is mismanaging the income that is derived from the schedule properties. He is not giving the proper accounts. Therefore the plaintiff requested the defendants to have partition and separate possession in respect of the schedule properties. Defendants denied the same. Therefore, the plaintiff was constrained to file a suit for partition and separation possession of her 1/4th share in the suit schedule properties. Defendants 2, 4 and 5 have filed a common written statement. Defendant No.3 has adopted their written statement. Defendants 1 and 6 have not fifed any written statement.
The case of defendants 2 to 5 is that one Kempegowda was the main propositus of the family. He and his wife Haddedamma died leaving behind them five sons viz., Karigowda, Kempegowda, Dollegowda, Ningegowda and Marigowda. Karigowda is not only the owner and in possession of the schedule properties, but his other four brothers were also the owners and in possession of the schedule properties. The plaintiff has not added necessary parties in the plaint. The plaintiff has added in the plaint just the legal heirs of Karigowda and not the legal heirs of his other four brothers. The plaintiff has not given correct genealogy. Therefore, the suit of the plaintiff is bad for non-joinder of necessary parties. As per the genealogy given by the defendants, plaintiff has got only 1/20th share and not 1/4th share as alleged by her. In a panchayat held, the defendants have greed to hand over 1/20th share to the plaintiff in respect of the schedule properties. Therefore, there is no cause of action for the suit. Therefore, they sought for dismissal of the suit.
On the aforesaid pleadings and the rival contentions, the Trial Court has framed the following issues:-
i) Whether the plaintiff proves the genealogy as given is correct?
ii) Whether the defendants 2 to 5 prove the genealogy as given is correct and the genealogy given by the plaintiff is incorrect?
iii) Whether the defendants 2 to 5 prove that the joinder of parties as stated in para, 1 of written statement is necessary and non-joinder them the suit of the plaintiff is defeated?
iv) Whether the plaintiff proves the schedule properties are ancestral and joint family properties of her and the defendants as pleaded in the plaint?
v) Whether the defendants 2 to 5 prove that Kempamma and Ningamma have relinquished their right of share to the defendant No.4 in respect of the schedule properties?
vi) Whether the plaintiff is entitled 1/4th share in respect of the schedule properties as prayed for?
vii) What order or decree?
The plaintiff, in order to substantiate her claim, examined herself as PW.1 and produced the documents, which are got marked as Ex.P1 to P17. On behalf of the defendants, no oral and documentary evidence was adduced.
The Trial Court on consideration of the aforesaid oral and documentary evidence on record held that the genealogy given by the plaintiff is correct and defendants 2 to 5 have failed to prove that the suit is bad for non-joinder of necessary parties. The plaintiff contended that the suit properties are ancestral and joint family properties. Defendants failed to prove that Kempamma and Ningamma have relinquished their rights in respect of the schedule properties. Plaintiff is entitled to 1/4th share in all the suit scheduled properties. Accordingly, the suit is decreed as prayed for. Aggrieved by the said judgment and decree, the defendants 3, 4 and 5 have preferred this appeal.
Learned counsel appearing for the appellants-defendants, assailing the impugned judgment and decree contended that the genealogy given by the plaintiff is not correct. In the appeal memo at paragraph-6, the correct genealogy is set out. According to the said genealogy, the plaintiff is entitled to 1/20th share and not. 1/4th share. In fact a partition took place among the family members and 1/20th share has been given to the plaintiff as per the palupatti, which is also produced before this Court. The plaintiff has not produced any evidence that the genealogy produced by her is correct. Under these circumstances, the Trial Court has committed an error in granting the decree declaring that the plaintiff is entitled to 1/4th share in respect of the suit schedule properties and therefore he submits that the appeal is liable to be allowed and the suit is liable to be dismissed.
Per contra, learned counsel appearing for the plaintiff-respondent supports the impugned judgment and decree.
In the light of the aforesaid contentions, the points which arise for our consideration in this appeal are:-
1) Whether the suit is bad for non-joinder of parties as contended by defendants 3 to 5?
2) Whether the plaintiff is entitled to share or not in view of the earlier partition set up by the defendants?
Re. Point No, 1 :-The facts are not in dispute. The relationship between the parties, the nature of the properties are not in dispute. The plaintiff and the defendants are the legal heirs of one Karigowda. Though the schedule properties are the properties exclusively belong to Karigowda, each of the parties would be entitled to 1/4th share. However, it is the case of the defendants that there was no partition between Karigowda and his four brothers. Therefore, the suit properties belong to all the brothers of Karigowda. Other branches are not made parties to the suit. Therefore, the suit is bad for non-joiner of necessary parties. Except taking that plea, when the burden of proof that the suit is bad for non-joinder of necessary parties was on me defendants, they have not even stepped into the witness box. Therefore, the said plea and the genealogy pleaded by the defendants are not proved. The fact that the suit schedule properties are the ancestral properties is not in dispute. The RTCs produced in the case clearly disclosed that the properties stood in the name of Karigowda and after his death the properties'' are mutated in the name of Kyathegowda, the eldest son of Karigowda. In the light of this evidence which is established before the Trial Court, the contention of the defendants that there was no partition between Karigowda and four brothers is not established. In fact the other children of Karigowda had been duly served and they remained absent. It is under these circumstances, the Trial Court held that the suit schedule properties belong 10 Karigowda and plaintiff and defendants being the children and grand children of Karigowda and as he has left four sons, each of the branch is entitled to 1/4th share. The said finding is based on the legal evidence and does not call for interference.
Re.Point No.2:- The defendants though took up a contention that there was a partition in the family members and in the partition plaintiff has been given her 1/20th share, they did not step into the witness box and they have not produced the said partition deed. Now an attempt is made to produce the partition/palupatti. That is not the procedure for producing the document in an appeal. Even otherwise, in view of the amendment to Section 6 of Hindu Succession Act, unless the, partition is evidenced by a registered partition deed, it would not have any effect towards the severing status of family members. Said palupatti/partition set up by the defendants is an unregistered document. Therefore, it has no value in the eye of law. In view of the same, plaintiff and defendants had constituted a joint family and each of one of them has a share is not in dispute,. Under these circumstances, the Court below committed no error in not taking note of the plea of the defendants, which is not established in a manner known to law and granting a decree of partition declaring 1/4th share to the plaintiff.
For the aforesaid reasons, we do not find any merit in this appeal. Accordingly, the appeal is dismissed. Parties to bear their own costs.