Panditappa and Others vs Sushilawwa and Others

B. Veerappa, J.—This is an unsuccessful, regular second appeal filed by defendant Nos. 1 and 2 against the impugned judgment and decree dated 4.6.2014 made in R.A. No. 44/2009 on the file of the Senior Civil Judge, Jamakhandi confirming the judgment and decree dated 1st April, 2009 made in O.S. No. 77/2002 on the file of the Civil Judge (Jr. Dn.), Banahatti decreeing the suit of the plaintiffs in part by declaring that the plaintiffs are jointly entitled to 1/6th share in the suit schedule ''A'' and ''B'' properties, defendant Nos. 1, 2, 4 and 5 each are entitled for 1/6th share in the suit Schedule properties ''A'' and ''B'' properties; defendant Nos. 6 to 9 are jointly entitled for 1/6th share in the suit schedule ''A'' and ''B'' properties with costs of Rs. 2,000/- payable by each of defendant Nos. 1, 2 and 10 to the plaintiffs.

The respondents, who are the plaintiffs before the trial Court filed a suit for partition and separate possession of 1/14th share in respect of the suit schedule properties contending that one deceased Sangappa was the propositus of the plaintiffs'' family and defendant Nos. 1 to 9; defendant Nos. 1 to 3 are the sons of deceased Sangappa; defendant Nos. 4 and 5 and one deceased Sumitra are the three daughters of the said Sangappa; defendant Nos. 5 to 9 are the sons and daughters of said Sumitra; plaintiff No. 1 is the wife of defendant No. 3; plaintiff Nos. 2 and 3 are the sons and defendant Nos. 4 to 6 are the daughters of defendant No. 3 - Basavantappa and defendant Nos. 10 is the intending purchaser of the property from the 2nd defendant. The genealogy reads as under:

The specific case of the plaintiffs is that the suit ''A'' schedule properties are the joint family properties which were purchased out of the joint family funds and earnings of all the joint family members in the name of defendant Nos. 2 - Chandrashekharappa, suit ''B-I'' schedule properties are also the joint family properties of plaintiff and defendant Nos. 1 to 9 standing in the name of the propositus - Sangappa and there was no partition among the plaintiffs and defendant Nos. 1 to 9. When defendant Nos. 2 had an intention to alienate the suit schedule properties in favour of defendant No. 10, he colluded with the other defendants by creating a false document, plaintiffs demanded for partition against which the defendants refused to effect the partition. Therefore, they were constrained to file a suit.

Though defendant Nos. 1, 2, 4, 6, 7 and 10 appeared through their advocates, defendant Nos. 3, 5, 8 and 9 did not choose to appear before the Court and hence, they were placed exparte. Defendant Nos. 1 and 2 filed their joint written statement and defendant No. 10 filed his separate written statement. Defendant Nos. 4, 6 and 7 though appeared through their advocates, did not file their written statement.

Defendant Nos. 1 and 2 in their written statement admitted their relationship contending that the daughters of deceased Sangappa i.e., defendant Nos. 4, 5 and the mother of defendant Nos. 6 to 9 married 35 years back and they are having no right or interest in the suit schedule properties since they were the residential properties; that due to woman folk in the family, since the year 1977, defendant Nos. 1 to 3 started residing separately i.e., defendant No. 3 was residing in suit schedule ''B-I'' property, defendant No. 1 in suit schedule ''B-II'' property and defendant Nos. 2 in a rented building belonging to one Chinchakhandi since 1977 and that residence, cooking and worship of defendant Nos. 1 to 3 were separate; that no joint family was in existence since 1977 and the suit schedule ''B'' property is in common possession of the family members. It was also contended that on 29.6.1987, defendant No. 2 purchased suit schedule ''B'' property from one Mallappa Kiddappagol and others out of his own earnings and hence, it is a self acquired property of his. Neither the deceased Sangappa nor the brothers of defendant No. 2 had any right or interest over this property. It was also further contended that when ''B'' schedule property was in joint possession of defendant Nos. 1 to 3, defendant No. 2 demanded for partition of the same and the elders effected the partition of the suit schedule properties, according to which, each of the defendant Nos. 1 to 3 have taken their respective shares. Hence, the partition deed dated 5.7.2002 is acted upon. The father of defendant Nos. 1 to 3 acquired four power-looms. A sum of Rs. 50,000/- of cash was contributed to plaintiff No. 2-Rajashekhar to run Raghavendra Finance Corporation, Banahatti; a sum of Rs. 50,000/- cash to plaintiff No. 3-Shrikant to run Raghavendra Metal Stones, Banahatti. There were also house articles which were not included in the common hotch-pot by the plaintiffs and hence, among all these grounds prayed for dismissal of the suit.

On the basis of the pleadings, the trial framed the following issues:

"(1) Whether the plaintiffs prove that the suit schedule properties are joint family properties of plaintiffs and defendants?

(2) Whether the defendant No. 2 proves that suit schedule ''A'' property is self acquired property?

(3) Whether the defendants 1 and 2 prove the earlier partition of suit schedule ''B'' Property on 5-7-2002 as claimed in W.S.?

(4) Whether the defendants 1 & 2 prove that all the joint family properties are not brought in to common hotch pot?

(5) Whether the suit is not properly valued and court fee paid is not proper and correct?

(6) Whether the plaintiffs are entitled for the relief claimed in the suit?

(7) What decree or Order?"

During course of the trial, defendant No. 3 died and his legal representatives were already on record.

In order to establish the case, plaintiff No. 3 examined himself as P. W. 1 and marked the documents Exs. P.1 to 20. On behalf of defendants, D.Ws. 1 to 5 were examined and the documents Ex. D1 to 9 were marked.

Considering the entire material on record, the trial Court recorded a finding that the plaintiffs have proved that the suit schedule properties are the joint family properties of the plaintiffs and defendants and the 2nd defendant has failed to proved that ''A'' schedule property is a self acquired property. That defendant Nos. 1 and 2 have failed to prove that there were earlier partition of the ''B'' schedule property on 5.7.2002 as claimed in the written statement. That defendant Nos. 1 and 2 have failed to prove that all the joint family properties are not brought under common hotch-pot; that the suit was properly valued and the Court Fee paid was sufficient and hence, the plaintiffs were entitled to the relief claimed as per the final decree proceedings. Accordingly, the suit came to be decreed and the share were granted against which judgment and decree, the defendants filed an appeal RA No. 44/2009 before the Senior Civil Judge, Jamakhandi, which after hearing both the parties by the impugned judgment and decree dated 4& of June, 2011 dismissed the appeal confirming the judgment and decree of the trial Court. Hence, the present appeal by the defendants.

I have heard the learned Counsel for the parties to the lis.

Sri Mmtyunjaya Tata Bangi, learned Counsel appearing for the appellants contended that the both the Courts below have failed to notice that the plaintiffs have not at all included all the properties and hence, the judgment and decree of the Courts below answering issue No. 4 in the negative is perverse and capricious and hence, deserve for setting aside. He also contended that there was a earlier partition between the brothers and the branch of defendant No. 3, who has been given proper share which has been acted upon and therefore, the finding of the trial Court that there was no partition, cannot be sustained. He also further contended that the Courts below ought to have seen that the plaintiffs have not discharged the burden that all the suit properties are the joint family properties and in the absence of the same, the decree made by the Court below cannot be sustained and therefore, he sought for setting aside the judgment and decree of the Courts below.

I have given my thoughtful consideration to the arguments advanced by the learned Counsel for the appellants and perused the entire material both oral and documentary evidence on records

In order to prove the plaintiffs'' case to show that all the suit schedule properties are the joint family properties and plaintiffs and defendants are the joint family members and there was no partition, plaintiff No. 1 examined himself as P.W.1 and produced the documents Exs. P.1 to 20. To disprove the case of the plaintiffs, defendants examined D.Ws. 1 to 5 and marked the documents Exs. D.1 to 9 to show that there was a partition in the joint family property and hence, the suit was not maintainable.

Considering the entire material on record, the trial Court recorded a finding that it is an undisputed fact that ''A'' schedule suit property was purchased in the name of defendant No. 2 and also that in the revenue records, the name of defendant No. 2 has been entered into regarding ''A'' schedule property. Further it is also an undisputed fact that the suit schedule ''B'' properties were purchased by the propositus Sangappa and that the plaintiffs have right in the said property but the defendants have taken up a specific contention that the partition took place between the parties in respect of the suit schedule ''B'' property. The plaintiffs have produced the tax paid receipts - Exs. P.1 to 17 in respect of the suit ''B'' schedule property and it is an undisputed fact that the plaintiffs are all residing in the suit schedule ''B-I'' property. During the course of cross-examination, D.W.1 was confronted to the Xerox copies of the partition deeds dated 5.7.2002 marked as Exs. P.18 and 19 which were not admitted by the plaintiffs. These two documents were produced to disprove the partition by showing that they are contrary to the facts. Exs. P.20 is the copy of the legal notice issued by D.W.2.

During course of cross-examination, P.W.1 was confronted to two partition deeds dated 5.7.2002 marked as Exs. D.1 and D.2 and he admitted the signature except the signature of his father - defendant No. 3. It is case of the plaintiffs in the evidence that the defendants mainly relied on these documents to prove that they are regarding previous partition deeds. Ex. D.3 is the property register extract of CTS No. 5069A/20 of Rabakavi-Banahatti which speaks that plaintiff No. 2 purchased the said property on 21.3.2006 from one Mallappa Irappa Beligidad. Exs. P. 4 to 6 are the documents to show that defendant No. 2 paid the tax of the suit schedule ''A'' property which fact is not dispute. Ex. D.7 is the certified copy of the voters list for the year 1988 where only the name of defendant No. 2 appears and his wife''s name is alone shown as residing in House No. 4186. Ex. D.8 is the certified copy of the voters list for the year 1995 which speaks that name of defendant No. 3 and plaintiff Nos. 1 to 3 residing in House No. 3851. Ex. D.9 is the original sale deed dated 29.6.1987 which shows that defendant No. 2 purchased the suit schedule ''A'' property. The propositus died in the year 1991, his wife died in the year 1995 and defendant No. 3 died on 18.4.2007 during the pendency of the suit. Suit schedule ''A'' property was purchased in the name of defendant No. 2 and suit schedule ''B'' property was originally purchased by the propositus Sangappa.

Defendant Nos. 1 and 2 in their written statement pleaded about the partition, but did not disclose about the written partition deed. On a plain reading of the entire oral and documentary evidence, the suit came to be filed on 30.8.2002, defendants filed their written statement on 16.1.2003, cross-examination of P.W.1 was recorded on 14.9.2005 and on that day, the defendants did not disclose about the existence of written partition deed, but in further cross-examination on 23.11.2005, Counsel for the defendants disclosed that there was a written partition deed dated 5.7.2002 which fact is not disputed. After the death of defendant No. 3 on 1.10.2007, the Xerox copies of the two partition deeds dated 5.7.2002 were produced by the defendants and on the same day, I.A.6 is filed seeking direction to the witness i.e., elder person to produce the documents on the ground that the original partition deeds are with the witness by name Basappa Fakirapur which was allowed and the witness produced the documents Exs. D.1 and 2. In the cross-examination of P.W.1, Counsel for the defendants confronted these documents to P.W. 1 and he admitted the signatures appearing in the said documents marked as Exs. D.1 and D.2 except the signature of his father defendant No. 3. Since the witness identified the signatures of the other persons in the deed, it is case of the plaintiffs in the evidence that the defendants colluding with others created the partition deed and created the signature of defendant No. 3. It is also observed by the trial Court that the procedure adopted by the defendants in producing the said documents is not an ordinary procedure and hence, the say of the defendants that the original deeds are with the elders is not acceptable one in ordinary course. It is admitted by D.W.1 and other witnesses that no documents were given to defendant No. 3 after effecting the partition.

It is the case of defendant No. 4 in the Examination-in-Chief that the property in which the bore-well was drilled by defendant No. 3 had fallen to the share of defendant No. 1 and for that reason, it was decided to give a sum of Rs. 10,000/- to defendant No. 3. He has further deposed that in the presence of himself and other elders, defendant No. 1 handed over a sum of Rs. 10,000/- to defendant No. 3. This aspect was not mentioned in Exs. D.1 and 2 - deeds. D.W.1 has also deposed the same in his examination-in-chief. D.W.2, who is the scribe of the document, has not stated this aspect in his evidence. D.W.3 who has written the document as per the direction of D.W.2 also has not deposed this aspect in his evidence. The trial Court on going through the entire pleadings and the arguments of the defendants, has recorded a finding that the witnesses have not expressly stated that defendant No. 3 had agreed to the partition. The style of drafting the written statement and the chief examination of the affidavits disclosed that, the elders effected the partition and all the parties signed the document.

D.W.1 in his cross-examination has specifically deposed that prior to effecting of partition, defendant Nos. 1 to 3 had given consent to the elders in writing but the other witnesses failed to depose to this effect and no prior consent document was produced before the Court. Considering all these materials, defendant Nos. 1 and 2 failed to prove before the Court that there was a partition among defendant Nos. 1 to 3 in respect of suit schedule ''A'' property on 5.7.2002. Defendant No. 2 has not shown the actual source of income and has also not explained the same in the written statement. In his evidence, it has come on record that, defendant Nos. 1 to 3 and their father had no income except from their weaving work. The evidence of defendant Nos. 2 to 4 is not helpful to the defendants to prove the income of defendant No. 2 at the time of purchasing the suit schedule ''A'' property. On the basis of the available materials, it was clearly established that prior to 1977, defendant Nos. 1 to 3 and their father were earning jointly. Further defendant No. 2 failed to prove that in the year 1977, they were residing separately. When such being the circumstances, a presumption can be drawn as to the joint-ness of the parties and joint earnings of the parties.

In view of the dictum of the Apex Court in the case of Mallappa Girimallappa Betgeri and Others Vs. R. Yellappagouda Patil and Others, so also in the case of Madanlal (Dead) by Lrs. and Others Vs. Yoga Bai (Dead) by Lrs., wherein it has been held that the property in question raised and developed by joint efforts of father and his sons - it is joint family property - amenable for partition among father and his sons.

The trial Court also considering Exs. D.1 and 2 alleged partition deeds, recorded a finding that the admitted fact that Exs. D.1 and 2, the documents written on insufficient stamp papers and these documents, are unregistered documents. During the course of making the documents, Counsel for the plaintiffs has not raised any objection as to their admissibility. Therefore, it held that since the documents are un-registered documents though they are admissible in evidence to prove the possession of the parties over the properties, these documents cannot be used to prove partition and no material document is produced by the defendants with regard to the partition that has been acted upon by all the parties of the family. Therefore, the trial Court decreed the suit granting 1/6th share to the plaintiffs jointly in both ''A'' and ''B'' schedule properties and 1/6th share to each of defendant Nos. 1, 2, 4 and 5 in both ''A'' and ''B'' schedule properties and 1/6th share to defendant Nos. 6 and 9 jointly in both ''A'' and ''B'' schedule properties.

On re-appreciation of the entire oral and documentary evidence on record, the Lower Appellate Court concurred with the findings recorded by the trial Court holding that, according to the defendants, the alleged partition deeds came to be executed just a month prior to the filing of the suit while the defendants came up with the written statement on 16.1.2003. Had it been the fact that, the written documents were already in existence by the time of filing of the suit, nothing prevented them from mentioning the same specifically in their written statement. But they did not do so. Even after commencement of recording of evidence, they did not furnish the said documents at the earlier stage. They have produced the same at the stage of further cross-examination of P.W.1 that too Xerox copies of the said documents claiming at one breath that the original partition deed was with defendant No. 3 and at another breath claiming that it is with D.W.4 an elderly person. That they have not even got issued the direction from the Court to D.W.4 to appear before the Court with the original partition deed. Therefore, the lower Appellate Court was of the opinion that the circumstances would certainly and reasonably create a doubt in the mind of the Court as to their genuineness. Apart from that, defendant Nos. 4 and 5, who are none other than the daughter of propositus Sangappa, have not been allotted any share and defendant No. 2 has not come up with any plausible explanation as to why these two are left out. It has also recorded a finding that, the defendant No. 4 in his evidence has stated that the bore-well expenses of Rs. 10,000/- was given at the time of partition but this fact is not mentioned in Ex. D.2 the partition deed. That even it is not clear as to whether the partition took place under the said document or partition that took place earlier was reduced into writing on 5.7.2002. It has further recorded a finding that though the plaintiffs are shown to have demanded partition from the defendants in the year 2001 itself, no share was allotted to them when the partition took place under this deed in the year 2002. Record of rights and property extracts so also the oral evidence on record show that the plaintiffs and defendant Nos. 1 to 9 were residing jointly since 1974 and in spite of this partition deed, there appears to be no change in the status of the family and that there are no materials as to severance of status. That defendant Nos. 4 and 5, who are also entitled for share have not been made parties to the alleged partition deed. Therefore, on all these suspicious circumstances, the learned Judge has rightly disbelieved the alleged partition deed holding that no partition has taken place by virtue of the same and accordingly, dismissed the appeal.

The substance of the entire case of the plaintiffs are that the plaintiffs and defendants are the members of the joint family and there was no partition in the joint family properties which are the suit schedule properties. Though defendant Nos. 1 and 2 contended that there was a partition, to substantiate the same, they have not produced any material document to show that the partition deeds alleged to have been executed, have been acted upon and all are residing separately and therefore, their names are shown in the revenue records. In the absence of any material to prove that there was a partition, the contention of the learned Counsel for the appellants that both the Courts below have committed an error in not considering the earlier partition deed, cannot be accepted. Therefore, both the Courts below based on the oral and documentary evidence on record concurrently recorded a finding that there was no partition and all the plaintiffs and defendants are entitled to the share and accordingly, decreed the suit and the same is in accordance with law. The appellants have not made any ground to interfere with the finding of fact recorded by the Courts below in exercise of the powers under Section 100 of the Code of Civil Procedure.

Consequently, no substantial question of law arises for consideration in the present appeal and accordingly, it is dismissed.