S. Vijaya Gopal and S. Giridhar vs T. Seethapathi, Since Dead By Lrs, Smt. Vijayalakshmi, Chamundeshwari, S. Geetha and S. Latha and Others

K.L. Manjunath, J.—The appellants were the plaintiffs in O S No. 152/2001 filed for partition and separate possession of one-half share in the suit schedule properties on the file of Second Additional Civil Judge (Sr.Dn.), at Mysore. The trial court by the judgment and decree dated 20.11.2001 dismissing the suit.

The facts leading to this appeal are as follows:

(i) The plaintiffs and second defendant are the children of the first defendant. The father of the first defendant was a carpenter doing the said business in big scale. The father died when the first defendant was three years old. The first defendant disposed of the property derived from his ancestors at Pungod and acquired item No. 1 of the schedule property. The plaintiffs and defendants 1 & 2 constitute a joint family and out of the income derived by the said joint labour of coparceners, they constructed building in item No. 1 & 2 of the schedule properties and acquired item No. 3 of the schedule property which is a vacant site. Item No. 4 of the schedule has been purchased by the joint family in the name of the first defendant. All the suit schedule properties were purchased in the name of the first defendant as he was the Kartha as eldest member of the family. The funds for acquiring the said properties was pooled through ancestral nucleus and also of joint earnings of plaintiffs and 2nd defendant. The first defendant retained residential buildings situated opposite to Ganesh Temple, Pungod village and has also constructed a big residential building comprising of ground floor and I Floor in area of 60'' x 60'' out of the joint family income and has kept his kept mistress, Smt. Vijayalaxmi.

(ii) The first defendant in his written statement has admitted the relationship between the parties. He started his carpentary business at the age of 13 years and subsequently he went to Mysore. In the year 1951 he joined CFTRI Mysore, as Carpenter and was also doing private carpentary business. According to the first defendant he has not acquired any ancestral property. In the year 1977 brother of the first efendant, Devaraj and cousin brother Subramani got divided equally themselves the ancestral properties but the first defendant did not get any share in the ancestral properties. According to him the schedule item Nos.1 & 2 are his self acquired properties. He purchased item No. 4 out of his own earnings and same was sold in the year 1999 with the knowledge of the plaintiffs. Item No. 5 was acquired by selling the gold ornaments of his wife. Thus he contended that all the suit schedule properties are his self-acquired and the plaintiffs have no right of share in them.

(iii) The second defendant has admitted the relationship. He has supported the case of the first defendant that all the suit schedule properties are the self-acquired properties of the first defendant. The first plaintiff and 2nd defendant have acquired some properties of their own out of their earnings with the financial help of the first defendant. Since the 2nd plaintiff has addicted to bad habits, the first defendant purchased some properties in the name of minor child of 2nd plaintiff.

(iv) The defendants 3 & 4 have contended in their written statement that first defendant has executed registered sale deed dated 5.7.1999 and has sold the item No. 4 of the schedule property. Therefore they are the absolute owners and bona fide purchasers of the property purchased by them and they have been in peaceful, uninterrupted enjoyment of the same.

(v) The defendants 5 & 6 contend that they have purchased item No. 1 of the schedule property from defendants 1 & 2 through registered sale deed dated 18.4.2001. They have denied the acquisition of suit item No. 1 by the first defendant out of the joint family nucleus.

Based on the above pleadings of the parties, the court below has framed the following issues:

(i) Whether the plaintiffs prove that the suit properties are the joint family properties consisting of defendants 1 and 2 and themselves?

(ii) Do they further prove that they are having 50% share in the suit properties?

(iii) Whether the Court fee paid is sufficient?

(iv) To what reliefs, the parties are entitled?

(v) What order or decree?

Addl. Issues:

1) Whether defendant No. 1 prove that suit properties are his self acquired properties including non-suit property purchased in the name of plaintiff No. 2''s son, situated at No. 43/A, II Stage, Industrial Suburb, Vishweshwaranagar, Mysore?

2) Whether non-inclusion of said property is bad for the suit?

3) Whether defendants 3 to 6 prove that they are bona fide purchasers for value?

4) Whether suit is bad for non-joinder of necessary parties?

In order to prove the respective cases of the parties, the plaintiffs got examined themselves as PW-1 & PW-2 and relied upon Ex.P1 to P19 and on behalf of the defendants, first defendant was examined as DW-1 and 2nd defendant did not lead any evidence, defendant No. 3 got himself examined as DW-2 and defendant No. 6 was examined as DW-3 and they got marked Ex.D1 to D22.

The court below has held issue Nos. 1, 2 and 4 in the negative and additional issue No. 4 also in the negative and held additional issue as to the properties being self acquired properties of the first defendant in the affirmative and dismissed the suit. It is this judgment and decree which is challenged in the present appeal by the plaintiffs.

The learned counsel for the appellants submits that the court below has failed to note that the suit schedule properties are acquired out of the joint family nucleus and also out of the joint effort of all the members of the joint family i.e., plaintiffs and defendants 1 & 2. Thus she prays for setting aside the judgment and decree and to allow this appeal.

On the contrary, the learned counsel for the respondents contend that the court below has considered all the materials on record in a proper perspective and there is no error committed by the court below so as to call for interference by this Court.

After hearing the learned counsels for the parties, the point that arises for consideration in this appeal is; whether the court below has committed any error in passing the impugned judgment and decree calling for interference by this Court? Our answer is in the negative for the following reasons.

Ex.P16 is the certified copy of the partition deed between elder brother of first defendant by name Devaraj and his cousin Subramani. Ex.P16(a) is the translated version from Tamil. There is no recital in the said deed that first defendant''s brother represented both the brothers. The plaintiffs failed to establish as to which was the ancestral property that was sold during the year 1956 or earlier to that so as to use the sale proceedings to purchase suit schedule properties. In the cross-examination PW-1 has admitted that he does not know which was the property sold by the first defendant at Pungod.

It is an admitted fact that the first defendant has been doing carpentry business and be was earning so much for himself and even for his sons. It is in the evidence of DW-1 that his avocation since beginning was carpentry at various places and later he joined CFTRI and he has also started furniture shop at Mysore in the year 1956 and started'' to pay K.S.T & CST in the year 1958 itself. In the year 1960, he started to supply Drawing Board and T.Square to all the engineering and Polytechnic Colleges in Karnataka, Tamilnadu, Kerala, Andhra Pradesh and Maharashtra for a period of 20 years and derived good income out of the said business. This fact is not challenged in the cross-examination by the plaintiff. It is elicited in the cross-examination that this DW-1 is income tax payee for the last 26 years. This evidence of DW-1 is sufficient to establish the factum of self-acquisition of item No. 1 of the suit schedule property by the defendant No. 1. Admittedly, during that period plaintiff No. 1 was just born and plaintiff No. 2 & defendant No. 2 were not born. The plaintiffs have therefore failed to establish that the suit item No. 1 was acquired by the defendant No. 1 out of the sale proceeds of the ancestral property situated at Pungod village.

It is further case of the plaintiffs that properties item Nos.2 to 6 are acquired out of the joint efforts of the parties and also out of the joint family nucleus. The defendants 1 & 2 have totally denied in their written statement. There is no evidence to show whether suit item No. 1 was generating any income and that was made available in the hands of first defendant to make venture for the purchase of other properties. So far as ancestral property situated at Pungod village is concerned, no records are made available to show that the first defendant received any share in that property and that share was sufficient enough to make any purchase of item Nos.2 to 6. Though it is contended that Ex.P17 sale deed whereby the first defendant has purchased the so-called ancestral property from his brother is a got up document to deny the legitimate share of the plaintiffs, in the absence of any concrete evidence, it is not possible to inter so in favour of the plaintiffs.

Item No. 2 was purchased under Ex.D5 on 10.1.1964 and admittedly at that point of time, the 1st plaintiff was below 10 years and 2nd plaintiff was just born. The plaintiffs have not pleaded the source of income and how the finance was generated for purchase of each one of these items 2 to 6 of the schedule properties. Considering the evidence of the plaintiffs and the evidence of the first defendant, the plaintiffs have failed to prove either their contribution or joint family nucleus in respect of purchase of schedule item No. 2 of the properties.

It is the further case of the plaintiffs that item Nos.3 to 6 of the suit schedule properties, are also acquired out of their might in the form of labour working with first defendant and also contributing their earnings. Item No. 3 is acquired on 6.2.1981 under Ex.D6. The first plaintiff has studied up to PUC and completed the same in the year 1970. So till 1970 he being the eldest son was not in a position to contribute his might either in the form of his physical labour or self earnings. PW-1 has admitted in the cross-examination that they have no documents to show that they had independent source of income. It is also admitted by him that after the year 1986, they have not paid any amount to first defendant towards his medical expenses. It is not the case of the plaintiff that during this period of 1981 to 1985, when these items 3 to 5 are purchased, they had their independent source of income other than their alleged participation in the business conducted by the first defendant in the form of their physical labour. The evidence of PW-2 that for the sake of convenience plaintiffs and defendants 1 & 2 used to form partnership concern but the suit schedule properties were acquired and continued jointly is quite contrary to the pleadings and the evidence of PW-1. Even according to the plaintiffs, prior to 1983, the first defendant alone was carrying on the business as proprietor and it was not a family concern. The assessment order for the year 1997-98 in respect of M/s. T S Pathy & Co. is accepted on 2.4.2001 in the individual name of the first defendant.

From perusal of Ex.P2, the scribe has not put the signature and even according to PW-1 he does not know the witnesses of other two persons. PW-2 deposed that all the three brothers were present and signed the said declaration which is a falsehood. Even according to PW-2 his father has not executed any other documents in the form of such declaration. Therefore, the evidence of the plaintiffs regarding acquisition of properties out of the ancestral nucleus, funds pooled from joint family and their contribution is to be rejected and it is rightly rejected by the trial Court.

In the circumstances, after reconsidering the entire materials on record, we are of the view that the trial court has properly assessed the materials on record and has reached to right conclusions. There are no grounds to interfere with the impugned judgment and decree passed by the trial Court. In the result, this appeal filed by the plaintiffs is liable to be dismissed and it is accordingly dismissed.