Sannahaidegowda vs Ethegowda and Others

Ravi V. Malimath, J.—The case of the plaintiff is that the defendants 1 to 3 and 6 are the sons and defendants 4 and 7 are the daughters of Doddathammegowda @ Kalegowda and 5th defendant Puttaveeramma. Their father died in the year 1979 leaving behind the plaintiff and defendants as his legal heirs. The suit schedule properties are the ancestral and joint family properties. After his death, the first defendant has looked after the entire family and during his lifetime, he performed the marriage of the plaintiffs and the defendants 1 to 4, 6 and 7. Defendants 4 & 7 are residing separately at their husband''s house. Plaintiff and defendants 1 to 4 and 6 are cultivating the lands on the directions of the first defendant. The plaintiff and the defendants acquired B'' schedule properties in the name of defendants 1, 2, 3 and 6 from joint family funds. ''A'' schedule properties are ancestral properties of the plaintiff and the defendants. On the instructions of the first defendant, defendants 1 to 3 and 6 by colluding with the revenue authorities manipulated the documents in their favour and in their wives'' names behind the back of the plaintiff When the plaintiff demanded a partition of the properties, they turned hostile and denied the partition. Even though a police complaint was lodged, nothing yielded from it. Hence, plaintiff has filed this suit for partition and separate possession of 1/5th share of the suit schedule properties.

On service of suit summons, defendants 1 & 3 appeared through their counsel and filed the written statement. 6th defendant filed a separate written statement. Defendants 2, 4 and 7 were placed ex-parte. The suit against 5th defendant was dismissed having abated. Defendants 1, 3 and 6 have admitted the relationship as well as the death of the father in the year 1979. Except the admitted relationship and the death, all other allegations have been denied. They contended that their father had 5 sons and 2 daughters and that during his lifetime he had partitioned all his properties in the name of his sons and executed the unregistered panchayath vibhaga patra in the year 1969 in the presence of panchayathdars, after which the plaintiff and the defendants are living separately with the respective shares. The plaintiff was in possession of 1 acre of land in Sy. No. 38, 1 acre 1 gunta of land in Sy. No. 125 and one ankana house at Hallada Manuganahalli Village. After partition, the plaintiff sold 1 acre of land in Sy. No. 38 and the house and purchased 1 acre of land in Kanmuddanahally Village and one house property. He also sold 1 acre 1 gunta in Sy. No. 125 during 1982. The defendants in their written statement have contended that the movable properties of the plaint schedule are not in existence. The properties standing in the name of the defendants 1 to 3 are their ancestral properties and the properties standing in the names of their wives are self acquired properties and that the same were not ancestral and joint family properties. 6th defendant has further contended that Sy. No. 31/13B measuring 1 acre of Muddapura Village and land bearing Sy. No. 85/PS measuring 4 acres 10 guntas of Dharmapura Village, was acquired by him through Darakasth in the year 1980-81 and 1993-94, respectively. Hence, they are self acquired properties. The plaintiff has given land bearing Sy. No. 38 measuring 4 acres to his sister.

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

"(i) Whether plaintiff proves that the suit schedule A'' properties are the ancestral properties and the suit schedule ''B'' properties are joint family properties of the plaintiff, defendants-1 to 3 and 6th defendant?

(ii) Whether the defendants 1 to 3 and 6th defendant prove that item No. 1 and 2 of ''B'' schedule lands are the self acquired properties of 6th defendant?

(iii) Whether the plaintiff proves that the movables ''A'' & ''B'' schedule properties are available for partition?

(iv) Whether the defendants 1 to 3 & 6 prove that all their ancestral properties were partitioned during the lifetime of their father, during the year 1969 as contended in para-9 of their written statement?

(v) Whether the suit is properly valued and the court fee paid is sufficient?

(vi) Whether the plaintiff is entitled for the relief of partition? If so, at what rate?

(vii) Whether the plaintiff is entitled for the relief of mesne profits?

(viii) What order or decree?"

Plaintiff examined himself as P.W. 1 and marked 22 documents as Exs. P-1 to P-22. 3rd defendant was examined as D.W. 1 and 31 documents were marked as Exs. D-1 to D-31. Issue Nos. 2, 3, 4 and 7 were held in the negative. Issue No. 1 was held partly in the affirmative and Issue Nos. 5 and 6 in the affirmative.

The suit of the plaintiff was partly decreed. It was held that the plaintiff would be entitled for partition and separate possession of 1/7th share in immovable properties of item Nos. 1 to 4 of ''A'' schedule and immovable properties of item Nos. 2, 4 and 5 of ''B'' schedule. The suit was dismissed with respect to movable properties of schedule ''A'' properties and schedule ''B'' properties and immovable properties 1 to 3 and 6 to 9 of ''B'' schedule properties. Aggrieved by the same, 3rd defendant filed an appeal.

The Appellate Court partly allowed the appeal. It held that the suit of the plaintiff as decreed by the trial Court, is affirmed except by holding that item No. 3 in A'' schedule properties and item No. 5 in ''B'' schedule properties as the self acquired property of the 3rd defendant. Hence, the suit was decreed excluding those two properties. Aggrieved by the same, plaintiff has filed this appeal.

By the order dated 24.04.2013 the appeal was admitted to consider the following Substantial Questions of Law:

"Whether on the facts of the case, the lower Appellate Court had erred in law in holding that item No. 3 of plaint ''A'' schedule property and item No. 5 of plaint ''B'' schedule property are not the joint family properties?"

Learned counsel for the appellant - plaintiff contends that the courts below committed an error in holding that the properties mentioned therein are the self acquired properties of the defendant therein. That the First Appellate Court committed an error in holding that item 5 of ''B'' schedule property and item No. 3 of ''A'' schedule property are the self acquired properties. It further held that the joint family properties belong to the family. Ex. D-2 is the grant certificate issued stand in the name of one Rangegowda, which is the name of the father of plaintiff Even though the father of the plaintiff has been shown as Doddathammegowda @ Kalegowda, he was also known as Rangegowda. Therefore, that property has to be decreed as being the joint family property.

With reference to item No. 5 of ''B'' schedule property, Ex. D-27, grant certificate has been produced to show that the name of Swamygowda i.e., 3rd defendant has been mutated in the year 1977-78 in Sy. No. 38/B and he was only aged about 11 years on that date. Therefore, this property also requires to be considered as joint family properties.

On the other hand, counsel for the respondent -defendant supports the impugned order. He contends that there is no error committed by the Appellate Court and that even though First Appellate Court has modified the order of the Trial Court, the same is in consonance with the pleadings and evidence Hence, he seeks for dismissal of the appeal.

Heard learned counsels and examined the records. The question for consideration before this Court as framed in the Substantial Question of Law is with regard to item No. 3 of A'' schedule property and item 5 of ''B'' schedule property are joint family properties or not?

In support of item No. 3, the plaintiff produced the grant certificate in support of Ex. D-2. I have considered the same in detail. It pertains to Sy. No. 38 measuring 4 acres. It has been issued in the name of one Rangegowda. The same is undisputed. However, what is sought to be contended is the correction in the grant certificate and that another name has been written, which has been erased and thereafter, the name of Rangegowda has been entered. Hence, it should be considered that the land has been granted to his father namely, Doddathammegowda @ Kalegowda. He was also known as Rangegowda. Therefore, the grant is to be considered as the grant to his father.

The first contention is that his father''s name, has been erased and thereafter, Rangegowda'' name has been written. Even assuming that the name has been erased, benefit cannot be extended to the plaintiff Even if there is a correction and alteration, the same should be appropriately explained. Even assuming the name of the father has been rightly written and thereafter erased, the question of the name of Rangegowda does not arise for consideration. If the appropriate name of the father has been written, the name of the Rangegowda would not have found a place. Therefore, such a contention cannot be accepted.

The second reason is that the plaintiff claims that Rangegowda is his father and that he was also known as Rangegowda. Even though he has explained in his plaint that his father is known as Doddathammegowda @ Kalegowda, he has not stated so in his evidence that he is also known as Rangegowda or by another name. It is only an argument set up by the plaintiff The same is not forthcoming from the plaint or evidence and therefore, such a contention cannot be accepted. Therefore, the finding recorded by the Appellate Court that item No. 3 in ''A'' schedule property is the self acquired property of the 3rd defendant, requires to be accepted.

The plea of the defendants is that Rangegowda is the uncle of the wife of 3rd defendant and that this uncle - Rangegowda was the owner of the land in terms of Ex. D-2. This property fell to the share of the wife of 3rd defendant. Therefore, it cannot be considered to be the joint family property. It has to be considered as the exclusive property of the wife of 3rd defendant or the 3rd defendant himself. The name of the 3rd defendant has been entered in the mutation with regard to L&D No. 32/1977-78. 3rd defendant was stated to be 39 years as on the date of the filing of the suit in the year 2004. Therefore, he would have been around 12 to 13 years on the date of the mutation. Therefore, such a mutation cannot be accepted to hold that the property in question is the self acquired property of Swamygowda having inherited the same in terms of the mutation entry effected in the year 1977-78. What is being done by the defendants is that only because plaintiff has contended that 3rd defendant was 39 years as on the date of filing of the suit, same requires to be accepted. There is no material substantiating the same. However, the plaintiff having stated that the age of the 3rd defendant was 39 years as on the date of filing of the suit, same has not been denied. Neither in the written statement nor in the evidence or anywhere else, the same has been disputed. If that was the case of the defendant, he would have necessarily stated what is the age and how old he was on the date of filing of the suit. Therefore, the age as mentioned by the plaintiff being the evidence to support it, the same requires to be accepted. Even otherwise, when the appeal was filed by the 3rd defendant, he has narrated the age as 34 years as on the year 2009. Therefore, this is another factor that 3rd defendant was around 12 to 13 years as on the date of the mutation. Under these circumstances, to hold that it is the self acquired property, would not arise for consideration. Same would have to be considered necessarily as property of the joint family. Consequently, the Substantial Question of Law is answered by holding that the First Appellate Court did not commit an error in holding that item No. 3 of schedule ''A'' property is the self acquired property of the 3rd defendant but committed an error in holding that item No. 5 of schedule ''B'' property is not the joint family property.

In view of the detailed reasons stated hereinabove, item No. 3 in A'' schedule property is held as a self acquired property and item No. 5 in ''B'' schedule property is held as joint family property. On answering the Substantial Questions of Law, the appeal is partly allowed. The judgment and decree of both the courts below are modified to the above said extent.

Parties to bear their costs.