Putte Gowda & Others vs Javaregowda & Others

Nataraj Rangaswamy, J

This Regular Second Appeal is filed by the legal representatives of the deceased defendant challenging the Judgment and Decree dated 25.06.2001

passed by the Civil Judge (Sr. Dn.) and Addl. JMFC., Holenarasipura, in O.S. No. 51/1994 and the concurring Judgment and Decree dated

28.09.2010 passed by the Fast Track Court, Arakalagud, in R.A. No.2/2009 (old No.47/2001). Both the Trial Court and the First Appellate Court

declared that the plaintiff was entitled to half share in the suit schedule properties excluding Sy. Nos.250/5, 256/22, 204/1 and 205/17. (According to

appellants, correct Survey numbers are 257/5, 256/2C and not Survey numbers 250/5, 256/22 respectively).

The parties shall henceforth be referred to as they were arrayed before the Trial Court. The appellants herein were the legal representatives of the

deceased defendant while the respondents herein are the legal representatives of the deceased plaintiff.

A suit for partition was filed in O.S. No.51/1994 for partition and separate possession of the share of the plaintiff in the suit schedule properties.

The contention of the plaintiff as is evident from the plaint is that the plaintiff and the deceased defendant were brothers and their father died about 45

years prior to the filing of the suit. The deceased defendant being the eldest male member of the family had acquired properties out of the joint family

ancestral nucleus. The plaintiff contended that the nucleus of the family was huge and the family was compact and there was surplus income from the

joint family estate which was sufficient and enough to purchase properties. He contended that the deceased defendant was the Patel of the village and

was drawing salary from the village office. It is contended that the suit properties were all along enjoyed by the plaintiff and deceased defendant as

joint family properties. The plaintiff contended that the plaintiff and deceased defendant were cordial and due to the differences amongst the younger

generation, the plaintiff intended to partition the suit properties. However, the deceased defendant did not agree for an amicable settlement. Hence,

the plaintiff sought for declaration that he is entitled to half share in the suit schedule properties. After the suit was filed, the defendant died and his

legal representatives were brought on record.

The legal representatives of the defendant filed their written statement contending that the plaintiff and the deceased defendant were separated

during the life time of their father (Sri Honnegowda / Honnappa). They claimed that in terms of the said separation, their father (Sri Patel

Honnegowda) obtained suit item No.4 i.e., 24 guntas of land in Sy. No.253/23 while the remaining 7 and odd acres fell to the share of the plaintiff.

They therefore contended that there was no joint family as contended by the plaintiff and that the properties that were purchased by the deceased

defendant after the partition were not available for partition at the instance of the plaintiff. They also contended that the boundaries mentioned in the

suit schedule were not correct and the plaintiff had failed to disclose which were the properties that were acquired by the joint family nucleus and

which were the properties, which fell to the joint family from their ancestors etc. It is contended that the one of the sisters of the plaintiff and the

defendant, Smt. Honnamma, was not arrayed as a party in the suit and it is contended that she was a proper and necessary party for the adjudication

of the suit since suit item Nos.9, 10, 14 and 15 stood in her name.

Further, they claimed that the sister of the deceased defendant, Smt. Honnamma, was given in marriage to Rangegowda of Kotte HindalaKoppalu.

The said Rangegowda was employed in the Excise Department and he died without any issues. The terminal benefits of Rangegowda was received

by Smt.Honnamma and she handed it over to the deceased defendant. It is stated that in terms of a sale deed dated 05.11.1969, certain properties,

namely, Sy. No.257/5, Sy. No.256/2C, Sy. No.204/1, Sy. No.205/17 were purchased in the name of Smt.Honnamma. It is also stated that the legal

representatives of the deceased defendant had inter-se partitioned the properties that were owned by the deceased defendant during the year 1989.

They further contended that in the event the Court held that the suit properties were available for partition, they sought that the properties bearing Sy.

No.253/23, Sy. No.50/6, Sy. No.255/8, Sy. No.252/5, Sy. No.253/21, Sy. No.253/26 and Sy. No.253/30, which were all owned and possessed by the

plaintiff may also be proceeded against in the suit for partition.

Curiously, the legal representatives of the defendant did not contend in their written statement that the properties that were purchased by Smt.

Honnamma in terms of the sale deed dated 05.11.1969 were bequeathed to the legal representative No.3 of the deceased defendant in terms of a Will

that is now sought to be placed on record before this Court.

Based on the aforesaid rival contentions, the Trial Court framed the following Issues:

“1) Whether the plaintiff proves that all the suit schedule items belonged to the joint family of himself and defendant ?

2) Whether the Legal Heirs of the deceased defendant prove partition between their father and plaintiff as alleged at para 4 of the Written

Statement ?

3) Whether the Legal heirs of defendant prove that the properties described at Para 10 of the Written Statement were also belonged to the

joint family ?

4) Whether Honnamma the sister of plaintiff and deceased defendant is a necessary party to the suit ?

5) Whether plaintiff is entitled to partition and separate possession of half share in all the suit properties?

6) What decree / order ?â€​

Before the Trial Court, the plaintiff was examined as PW.1 and his relative was examined as PW.2. For the defendant, the legal representative No.1

of the defendant was examined as DW.1. For the plaintiff, EXs.P1 to P30 were marked while for the defendants, Ex.D1 to D4 were marked. The

Trial Court found that the suit properties were all joint family properties excluding the properties that were purchased by Smt.Honnamma in terms of

the sale deed dated 05.11.1969. Thus, the Trial Court declared that the plaintiff is entitled to half share in the suit properties except the land bearing

Sy. Nos.250/5, 256/22, 204/1 and 205/17. (According to appellants, the correct Sy. Nos. are 257/5, 256/2C and not Sy.No.250/5, 256/22). The Trial

Court also noticed that Smt. Honnamma was not arrayed as a party in the suit and therefore, the suit was not decreed in respect of the aforesaid four

items of the properties as they belonged to Smt.Honnamma.

The legal representatives of the defendant filed R.A. No.2/2009 challenging the aforesaid Judgment and Decree of the Trial Court. The First

Appellate Court perused the evidence on record which pointedly indicated that the properties that were possessed by the defendant were all ancestral

properties as were evident from the revenue records and thus, dismissed the appeal and upheld the Judgment and Decree of the Trial Court.

Feeling aggrieved by the aforesaid Judgments and Decrees of the Trial Court and the First Appellate Court, the legal representatives of the

deceased defendant have filed this Regular Second Appeal. I.A. No.2/2013 is filed by learned counsel for appellant No.5 â€" Gidde Gowda son of

Honne Gowda, seeking permission to prosecute this appeal. He was not a party before the Trial Court and the First Appellate Court but he had signed

the written statement filed in the suit along with Sadashiva and Puttegowda. As the outcome of this appeal would equally enure to the benefit of the

applicant in IA No.2/2013, a separate order concerning IA 2/2013 is not passed but he is entitled to seek apportionment of his share in the final decree

proceedings.

Heard the learned counsel for appellants, learned counsel for respondent Nos.1(A, C to H) and R1(B (I-V)). Perused the records of the Trial Court

and the First Appellate Court and their Judgments and Decrees and the grounds urged in the appeal memo.

During the pendency of this Appeal, the legal representatives of the deceased defendant i.e., appellants filed an application in I.A. No.1/2017

under Order 41 Rule 27 read with Section 151 of the Civil Procedure Code to place on record three documents, namely, (1) copy of the sale deed

dated 05.11.1969 executed by Patel Honnegowda in favour of Smt. Honnamma in respect of the four items of the properties (2) copy of the sale deed

dated 16.03.1938 executed by Sankegowda and three others in favour of the defendant in respect of Sy. Nos.227/3 and 227/8 and (3) copy of the Will

dated 13.02.1993 executed by Smt. Honnamma in favour of the defendant No.3 in respect of Sy. Nos.204/1, 205/17, 256/2C and 257/5.

The learned counsel for the appellants submits that he may be permitted to lead additional evidence before the Trial Court and therefore, relied

upon the decisions of the Apex Court rendered in the case of Sham Gopal Bindal and others vs. Land Acquisition Officer and another in Civil

Appeal No.192/2010 disposed of on 11.01.2010 and also the Judgment dated 05.02.2015 rendered by Kalaburagi Bench of this Court in RSA

No.7170/2010 in Dastayya vs. Veerayya and two others to contend that this Court ought to permit the appellants to lead further evidence.

On the contrary, the learned counsel for the contesting respondents placed reliance on the Judgment of the Apex Court rendered in the case of

Koyappathodi M. Ayisha Umma vs State Of Kerala reported in AIR 1991 Supreme Court 2027 and contended that Order 41 Rule 27 of the Civil

Procedure Code could not be used to fill in the gaps and / or cannot be permitted if the defendants failed to prove the circumstances under which

additional evidence can be adduced which is circumscribed under Order 41 Rule 27 CPC.

It is relevant to note that the sale deeds dated 05.11.1969 and 16.03.1938 were already marked as exhibits before the Trial Court. Thus, the

question of producing the same documents before this Court in this appeal would not arise. In so far as the Will dated 13.02.1993 allegedly executed

by Smt. Honnamma is concerned, the defendants did not whisper about the execution of the Will when they filed their written statement. It is relevant

to note that the defendant â€" Sri Patel Honnegowda was not alive when the written statement in the suit was filed. The written statement was filed

by the legal representatives of the deceased defendant and they have chosen not to mention about the Will executed by Smt. Honnamma in favour of

the legal representative No.3 of the deceased defendant. As a matter of fact, in the Regular Second Appeal filed, the appellants have pleaded as

follows:

“Late Sri Honnappa, the propositus had 4 children namely:(i)Honnappa Gowda (ii)Honnamma (iii)Javaregowda and (iv) Sannamma.

Smt. Honnamma died issue-less. She was taking care of the appellants who are the children of his brother Honnappa Gowda. Therefore,

Honnappa Gowda has bought the lands in her name and for security. The said lands are now sold by her to Sadashiva, one of the appellant

herein. Therefore, the land belonging to Smt. Honnamma having sold it to Sadashiva, the said land not being the land of the family is also

not available for partition.â€​

Thus, even in the understanding of the legal representatives of the deceased defendant, the property that was purchased in the name of

Smt.Honnamma was purchased by Honnappa Gowda. Be that as it may, since the defendants have not pleaded about the execution of the Will by

Smt. Honnamma, there is no justification of whatsoever nature to permit the legal representatives of the defendant to produce the Will allegedly

executed by Smt. Honnamma in favour of one of the legal representatives of the deceased defendant (defendant No.3). The defendants cannot

attempt to fill in the gaps and / or present a new cause of action.

A perusal of the affidavit accompanying the application filed under Order 41 Rule 27 of the Civil Procedure Code, would not disclose any reason

of whatsoever nature that prevented the defendants from producing the Will dated 13-02-1993 before the Trial Court. Under the circumstances, at this

belated stage, the defendants cannot be permitted to place on record the Will allegedly executed by Smt. Honnamma in favour of the legal

representative No.3 of the defendant (appellant No.3 herein). Hence, I.A. No.1/2017 filed under Order 41 Rule 27 read with Section 151 of the Code

of Civil Procedure is rejected.

Learned counsel for the appellants/ legal representatives of the deceased defendant, placedon record the certified copy of the plaint, written

statement and the deposition of PW.1, PW.2 and DW.1 along with a memo and the same was accepted.

The facts narrated above and the documentary evidence placed on record would clearly disclose that the suit item Nos.1 to 8 were all properties

that were held by the joint family. It is no doubt true that the deceased defendant had purchased suit item Nos.11, 12 and 13 in terms of Ex.P22. Item

No.16 is another property that was owned and possessed by the deceased defendant. The legal representatives of the deceased defendant did not

place on record any evidence of whatsoever nature in proof of their contention that the properties purchased by the deceased defendant in terms of

Ex-P22 were out of his labour or income and without the aid or assistance of the nucleus of the joint family. On the contrary, it is found that the

deceased defendant was performing the duties of the hereditary office of Patel of the village and was drawing salary. The defendant was alive when

the present suit was filed. There is no material to show that the defendant had an independent source of income. It is quite improbable that the

properties found at item Nos.1 to 8, which were the ancestral properties were incapable of generating any income. Consequently, it cannot be

accepted that the deceased defendant had not utilized the usufructs of the joint family nucleus to purchase item Nos. 11, 12, 13 and 16 in his name.

The defendants have failed to place on record any material to show that the properties of the family were ever divided. Except the legal

representatives of the deceased defendant stating that there was a partition during the lifetime of the father of the plaintiff and the deceased

defendant, they did not place on record any material to show that the suit properties were ever divided. It is no doubt true that the presumption about

the existence of a joint family does not presuppose that the properties were all joint but if a member of a family claims that any property was the self

acquisition, then it is upon him to establish the said fact. However, if the family is possessed of a huge extent of property, then acquisition in the name

of any of the member of the joint family would impress such property with the seal of the joint family.

As a matter of fact, the deposition of PW.1 and DW.1 indicates that none of them were serious in disputing that the properties were not the

properties possessed by the joint family. The evidence of DW.1 is very casual and points more towards the fact that there was a joint family and that

all the properties that were acquired by the defendant (Sri Patel Honnegowda) were accretion from the joint family nucleus. The Trial Court has held

that the properties which were in the name of the plaintiff were also amenable to partition. If the family was joint and if the properties were also joint,

the plaintiff could never contend that the properties in his name or the properties that were possessed by him was not available for partition. The

properties that stood in the name of the plaintiff were also liable to be partitioned and I do not find any exception to this.

Under the circumstances, the Trial Court and the First Appellate Court were right in holding that the plaintiff was entitled to half share in the suit

schedule properties including the properties that stood in the name of the plaintiff and that the legal representatives of deceased defendant were

entitled to the other half share in the suit schedule properties including the properties that stood in the name of the plaintiff. I do not find any perversity

or illegality in the appreciation of evidence by the Trial Court and the First Appellate Court.

In so far as the question as to whether the suit item Nos.9, 10, 14 and 15 properties that stood in the name of Smt. Honnamma could be partitioned

or not, it is no doubt true that the Trial Court had rightly rejected the relief of partition in so far as her properties are concerned because

Smt.Honnamma, who was then alive, was not arrayed as a party in the suit. It is not in dispute that Smt. Honnamma is now not alive. The legal

representative No.3 of the deceased defendant has set up a Will by which Smt. Honnamma had allegedly bequeathed the properties bearing Sy.

Nos.257/5, 256/2C, 204/1 and 205/17. It is strange that the legal representative No.3 of the deceased defendant, who was a party to the suit and who

had an opportunity to file his written statement did not mention about the execution of the Will by Smt. Honnamma. It is for the first time in the

Regular Second Appeal that the Will is sought to be placed on record as an additional documentary evidence. Be that as it may, since Smt.

Honnamma died leaving behind her two brothers, namely, the plaintiff and the deceased defendant â€" Sri Patel Honnegowda represented by his legal

representatives, they too are entitled for a share in the properties bearing Sy. Nos.250/5 (actual Survey number is 257/5 claimed by defendants /

appellants), 256/22 (actual Survey number is 256/2C as claimed by the defendants/ appellants), 204/1 and 205/17. However, the claim of the legal

representative No.3 of the deceased defendant will have to be examined before the Final Decree Court. If the legal representative No.3 of the

deceased defendant is able to prove before the Final Decree Court that Smt. Honnamma had in fact executed the Will and that he became the owner

of the said properties, the plaintiff may not be entitled for a share in the said properties. However, if the legal representative No.3 of the deceased

defendant fails to prove the Will, then the plaintiff would be entitled to half share and the legal representatives of the deceased defendant would be

entitled to the other half share in suit item Nos.9, 10, 14 and 15, as Class II heirs. The appellant No.5 who was not a party before the Trial Court and

the First Appellate Court is entitled to participate in the final decree proceedings and seek apportionment of his share out of the half share to which the

legal representatives of the deceased defendant are entitled to. The mis-description of Sy.Nos.250/5 and 256/22, as contended by the legal

representatives of deceased defendant, if found true and on the application for amendment filed by any of the parties, the Final Decree Court shall

permit the same to be amended appropriately. Except the modification as stated above, the impugned Judgment and Decree of the Trial Court which

was affirmed by the First Appellate Court is upheld.

With the aforesaid observations, this Regular Second Appeal is disposed of.

In view of disposal of this appeal, the pending I.A., if any, does not survive for consideration and the same stands rejected.