Rukmavva vs Ajjappa Shivajappa

A.V. Chandrashekara, J.—Plaintiffs of an original suit bearing O.S. No. 16/1997 which was pending on the file of the Court of Civil Judge (Sr. Dn.), Ranebennur. Plaintiffs are before this Court challenging the judgment and decree dated 17.11.2004 insofar as it relates to the rejection of her plea for partition and possession and in respect of red tiled roof measuring East-West 17 1/2 feet and North-South 26 feet 3 inch in CTS No. 2664 and Survey No. 23b measuring about 7 guntas. These two properties in question have been purchased by defendant No. 3 Honnappa in the suit from defendant No. 2 Nagappa. Respondent No. 1 Ajjappa is defendant No. 1 in the said suit. Respondent No. 2 is defendant No. 2 in the said suit. Respondent No. 3 -Honnappa is the purchaser of these two items. Appellants are plaintiff in the said suit. Parties will be referred to as plaintiffs and defendants as per their ranking given in the trial Court.

Schedule ''A'' property consists of a house bearing No. CTS 2325 measuring 192 sq. mtrs. situated in Ranebennur Town and the same is clearly described in item No. 1. Item No. 2 schedule ''A'' property bearing CTS No. 2664-A i.e. South part property bearing 2664-A measuring in all East-West 5.3 feet, North South 26.3 feet. Schedule ''B'' is an agricultural land measuring 3.14 acres in Sy. No. 66/1 and the said properties is described with proper boundaries in all the four sides.

Plaintiff No. 1 is the wife of one Shivajappa Shinde and plaintiff No. 2 is the daughter of the said Shivajappa Shinde and married to Karabasappa Girijappanavar. Defendant Nos. 1 and 2 are the sons of Shivajappa Shinde and plaintiff No. 1. The case of the plaintiff is that the properties in question are the ancestral properties of Shivajappa Shinde and that Shivajappa Shinde died intestate. Plaintiffs are said to be in lawful possession and enjoyment of the suit property and 1st defendant is stated to be the manager of the joint family, after the death of Shivajappa Shinde. According to them, after the death of Shivajappa Shinde partition was effected between the brothers of Shivajappa Shinde by name Hanamantappa and Ramappa along with plaintiffs and defendant Nos. 1 and 2 in the month of July 1972 and as per oral partition, the properties fell to the share of deceased Shivajappa. Defendant No. 2 who is the member of the joint family has alienated a red tiled roof house bearing CTS No. 2664A measuring about east-west 17 1/2 feet and North South: 26 feet 3 inch in CTS No. 2664 and 7 guntas in Sy. No. 23b to the 3rd defendant and the said alienation does not bind them. For this reason plaintiffs have requested for decreeing the suit.

Defendant Nos. 1 and 2 did not contest the suit and virtually defendant No. 1 has prayed for decreeing the suit as prayed for by allotting 5/16th in his share. Defendant No. 3 alone had appeared before the trial Court and had filed detailed written statement.

According to him, plaintiffs and defendant Nos. 1 and 2 had received amount by executing a registered sale deed in favour of one Manjawa Subboji on 18.06.1986. Since then the defendants have no manner of right and title over the properties mentioned in the agreement of sale. Accordingly, plaintiffs and defendants jointly executed a registered sale deed. Plaintiffs had filed a suit against the defendants and one Nagappa in O.S. No. 262/1996 on the file of Pril Munsiff and I Addl. JMFC, Ranebennur in respect of CTS No. 2664A and in the said suit defendants appeared before the Court and filed written statement on 14.07.1997, thereafter matter was posted for plaintiffs evidence and plaintiffs did not come forward to tender their evidence. Therefore, the said suit was dismissed for non prosecution on 14.10.1999. Plaintiffs have filed this false and frivolous suit against him in order to harass and knock him out of the suit schedule property. Hence, he has prayed for dismissal of the suit. It is the case of 3rd defendant that 2nd defendant has executed a sale deed in his favour on 18.11.1996 for a valid consideration of Rs. 40,000/- and handover the possession of items found therein. With this pleadings, he has prayed for dismissal of the suit.

On the basis of the pleadings, the trial Court has framed the following issues for consideration:

Whether plaintiffs prove the suit properties were fallen to the share of Shivajappa in a oral partition among brothers in 1972 as contended in para No. 2 of the plaint?

Whether plaintiffs further prove the suit properties are joint ancestral properties of plaintiffs and defendants?

Whether plaintiffs prove the sale deed executed by defendant No. 2 in favour of defendant No. 3 dated 18.11.1996 being illegal is not binding on them?

Whether plaintiffs are entitled for partition?

Whether plaintiffs are entitled for mesne profits?

Whether defendant No. 3 proves he is a bona fide purchaser for value and without notice?

What decree or order?

1st plaintiff is examined as P.W. 1 and one Manjappa Salnki is examined as P.W. 2. Defendant No. 3 is examined as D.W.. 1 and three witnesses have been examined on his behalf. 6 exhibits have been got marked on behalf of plaintiff and 11 exhibits have been got marked on behalf of defendants. Ultimately, suit is decreed holding that plaintiff Nos. 1 and 2 and defendant Nos. 1 and 2 are entitled for 3/8 share in the respect of suit schedule properties except red tiled roof house measuring East-West 17 1/2 feet and North South 26 feet 3 inch in CTS No. 2664 in Sy. No. 23b measuring about 7 guntas.

Plaintiffs are aggrieved insofar as it relates to the rejection of their relief for partition and possession in respect of property bearing CTS No. 2664 measuring 17 1/2 feet and 26 feet. Several grounds have been urged in the appeal memo challenging the said judgment and decree.

It is contended that the trial Court could not have rejected the relief of partition in respect of house sold by 2nd defendant in favour of 3rd defendant. It is contended that just because 7 guntas of land has been sold, plaintiff and defendant Nos. 1 and 2 earlier, that cannot be a ground for rejecting the relief in respect of properties sold to defendant No. 3 by defendant No. 2. The trial Court is stated to have adopted wrong approach to the real state of affairs and hence, he has prayed for relief of partition and possession in respect of property bearing CTS No. 2664 measuring 17 1/2 and 26 feet 3 inch.

After hearing learned Counsel for the parties following points arise for consideration by this Court:

Whether the trial Court is justified in rejecting the relief of partition in respect of property sold by 2nd defendant to the 3rd defendant in respect of CTS No. 2664 measuring East West 17 1/2 feet and North South 26 feet 3 inch?

What exactly should be a share of the parties in the present case?

Whether the interference is called for and if so, to what extent?

REASONS

Point No. 1:

Admittedly, the property sold by 2nd defendant in favour of 3rd defendant is also a part and parcel of the ancestral properties of the plaintiffs and defendant Nos. 1 and 2. 7 guntas in Sy. No. 23b was sold by defendants and plaintiffs prior to the alienation to be made by 2nd defendant in favour of 3rd defendant. Just because 7 guntas in Sy. No. 23b is not included, relief of partition in respect of properties sold by 2nd defendant in favour of 3rd defendant is not proper. Admittedly, 7 guntas of land came to be sold by all the members of joint family i.e. plaintiffs and defendant Nos. 1 and 2. It is ununderstable as to how that alienation could be a ground for rejecting the relief of partition and possession in respect of CTS property bearing No. 2664.

What is argued by the learned Counsel for the 3rd defendant/respondent herein is that 3rd defendant has purchased the property and he is living in the suit property. The duty of the Court dealing with a partition suit is only to declare the rights of the parties and draw the preliminary decree only. The remedy will have to be worked out in the final decree proceedings. Admittedly, the property alienated by the 2nd defendant in favour of 3rd defendant is not the only joint family property. The schedule appended to the plaint and decree discloses that item No. 1 in schedule ''A'' measuring 192 sq. mtrs. of urban property measuring 2325 situated in Ranebennur, item No. 2 in schedule A is also urban property bearing 2664A measuring 105.03X26.3 feet property alienated by defendant No. 2 in favour of 3rd defendant is part and parcel of item No. 2 in schedule A property. Apart from this, joint family consisting plaintiffs and defendant Nos. 1 and 2 have been 3.14 guntas agricultural land in Sy. No. 66 of Ranebennur Taluk and it is also a valuable land. This schedule B is inclusive of 5 guntas in RS No. 23/C also

Properties so purchased by defendant No. 3 from defendant No. 2 is virtually a portion of the entire joint family and nothing comes in the way of 3rd defendant to plead equities before the Final Decree Court stating that the properties so allotted to the share of his vendor be regularised. In such an event Final Decree Proceedings Court will take a holistic view and pass proper orders.

Suffice to state that the trial Court is not justified in rejecting the relief of partition and separate possession of the properties sold by the 2nd defendant in favour of 3rd defendant which is admittedly part and parcel of the joint family property, more particularly, of item No. 2 in schedule A. The proper approach of the trial Court should have been to grant a decree in respect of all the properties and declare the extent of share of the properties and allow the parties to workout their equities in the Final Decree Proceedings. Instead of doing so, the trial Court has passed an erroneous order by rejecting the relief of partition and separate possession in respect of the portion of the joint family alienated by 2nd defendant in favour of 3rd defendant on an unsustainable ground of alienation of 27 guntas of land by plaintiffs and defendant Nos. 1 and 2.

In this view of the matter, the trial Court is not justified in rejecting the relief of partition of the entire schedule property inclusive of property sold by defendant No. 2 in favour of defendant No. 3. Hence, point No. 1 is answered in the negative.

Point No. 2

Trial Court has granted 3/8th share without making any calculation as to how it has given 3/8th share. Admittedly, the properties were ancestral properties of Shivajappa. He is no more. Since he has left behind him female heirs, notional partition will have to be made by granting 1/4th share to the Shivajappa, 1/4th share each to defendant Nos. 1 and 2 and 1/4th share to 1st plaintiff-Rukmavva as she is entitled for an equal share along with her since Ranebennur is a part and parcel of erstwhile more particularly, in view of the decision in the case of Shiromani and Others Vs. Hem Kumar and Others, . Remaining 1/4th notional share will have to be equally divided between the plaintiff and defendant Nos. 1 and 2. Then the share of the 1st plaintiff would be 5/16th share. Defendant Nos. 1 and 2 will also be entitled to 5/16th share each and 2nd plaintiff is entitled to 1/16th share. Therefore, defendant No. 3 - purchaser can seek equities to the extent of 5/16th share which is the share of his vendor.

In view of specific positive finding on point No. 1, appeal will have to be allowed granting the relief of partition and separate possession in respect of entire suit schedule property with an observation that the 3rd defendant purchaser is entitled to plead for equities before the FDP Court. In such an event, the FDP Court will take a holistic view and pass appropriate orders by applying equities between the parties, more particularly when the 3rd defendant is stated to be in possession of the property purchased by him from defendant No. 2 on 18.11.1996 vide Ex. D 10 i.e. 1 year 9 months prior to the order.

ORDER

Hence, appeal filed u/s 96 of CPC is allowed. Judgment of the trial Court insofar as it relates to the rejection of the relief of partition and separate possession of CTC property bearing No. 2664 measuring 17 1/2 east west 26.3 feet north south is set aside and relief of partition and possession is granted in respect of this property also. Notwithstanding the decree of partition and separate possession passed in favour of plaintiff, the 3rd defendant purchaser is entitled to plead for equities before the FDP Court in respect of the property purchased by him from defendant No. 2 more particularly, on the ground that he is in possession of the said property.

Therefore, the trial Court is not justified in granting 3/8th share that too without making any calculation based on the personal law of the parties. Proper share would be 5/16th for plaintiff and defendant Nos. 1 and 2 each and remaining 1/16th share to the 2nd plaintiff. There is no order as to costs.