Seshappa vs K. Gopalakrishna Murthy

B.S. Patil, J.—These two appeals arise out of common judgment dated 31.10.2000 passed by the learned II Addl. Civil Judge (Sr.Dn.), Bangalore Rural District, Bangalore, in O.S. Nos. 90/1990 & 195/1995.

O.S. No. 90/1990 was filed by Seshappa seeking partition, whereas O.S. No. 195/1995 was filed by K. Gopalakrishna Murthy - 1st defendant in the suit for partition against the plaintiff - Seshappa and three others, seeking decree of permanent injunction. Both suits have been clubbed and tried together and a common judgment has been passed, decreeing the suit filed by K. Gopalakrishna Murthy against Seshappa and his daughters in O.S. No. 195/1995 restraining them from causing interference to his possession and enjoyment of Sy. Nos. 59 & 60 of Kambaliganahalli village. Whereas the suit filed by Seshappa in O.S. No. 90/1990 seeking partition has been dismissed.

In fact, O.S. No. 195/1995 is the earlier suit. It was filed in the year 1989 and was numbered as O.S. No. 525/1989 and upon transfer to another Court, it was re-numbered. Later on, they were ordered to be tried together.

It is useful to refer to the relationship between the parties. The parties are referred by their rank obtained in the suit for partition filed in O.S. No. 90/1990.

One Appajappa was the original owner of the suit schedule properties in respect whereof partition is sought. He died leaving behind him, his only son Venkatachalaiah. The said Venkatachalaiah had three wives viz., (1) Achhamma, (2) Puttabaramma and (3) Venkatalakshmamma. Achhamma - first wife died leaving behind her daughter Subbamma, who is also no more. Second wife of Venkatachalaiah by name Puttabaramma is also no more. She left behind her only son Keshavamurthy who is the father of the defendant -K. Gopalakrishna Murthy. Third wife - Venkatalakshmamma is also no more. Plaintiff - Seshappa is the only son of Venkatachalaiah through the said third wife.

Plaintiff - Seshappa sought for partition and separate possession of his half share in all the items of suit schedule properties. The plaint schedule contained 97 items of properties. It was his case that after the death of Appajappa leaving behind his only son Venkatachalaiah, entire properties were inherited by him. Venkatachalaiah was also holding the office of Shanbhogue of Kambaliganahalli village in Hoskote Taluk and some of the suit properties were attached to the village office. During the lifetime of Venkatachalaiah, plaintiff -Seshappa along with Keshavamurthy constituted Hindu Joint Family and were enjoying all the suit schedule properties and together held the properties attached to the village office of Shanbhogue. After the demise of his father Venkatachalaiah, the eldest son Keshavamurthy - father of the defendant became the khathedar of the properties and was managing the properties and the office of Shanbhogue. Defendants 1 to 3 who are all sons of Keshavamurthy got themselves educated out of the joint family funds. As the 1st defendant was well educated and wielded influence in the revenue department, he got his name entered in the RTC in respect of certain lands particularly Sy. Nos. 59 & 60 and filed a suit during 1989 seeking relief of permanent injunction alleging that 1st defendant alone was the absolute owner in possession of the same. Plaintiff having come to know of the intention of the 1st defendant to knock off the schedule properties, called upon the defendants to effect partition issuing a legal notice dated 28.02.1990. Though the legal notice was acknowledged, defendants did not reply nor did they effect partition. Hence, he was constrained to file the suit seeking partition.

1st defendant filed written statement contending that decades ago during the lifetime of the father of the defendants, the joint family properties had been partitioned and different branches of the family had been enjoying the properties separately without interference. He stated that Schedule ''A'' properties mentioned in the written statement were in possession and enjoyment of the defendants and out of the said Schedule ''A'' properties, defendants sold certain items mentioned in Schedule ''B'' to the written statement, which were put in possession of the purchasers and the rest of the properties were in continuous possession and enjoyment of the defendants exclusively. He further urged that Schedule ''C properties mentioned in the written statement had fallen to the share of the plaintiff. He also contended that all the vacant lands and houses situated at Siddapura village were allotted to the plaintiff''s share and all the sites and houses situated at Kambaliganahalli village were allotted to the father of the defendants. Defendants have exercised their rights of ownership over those sites and house properties, independently since decades. He urged that plaintiff had sold away certain items of properties which had fallen to his share and purchasers were in possession of the same. He also contended that plaintiff and his mother received certain secret payment of money from the tenants who had applied for conferment of occupancy rights, by conceding for grant of occupancy rights in their favour. He urged that Schedule ''C properties were in possession of the plaintiff after the partition for which khathas had been changed in the name of the plaintiff and his mother. He also contended that lands re-granted in favour of the 1st defendant under the provisions of Village Officers Abolition Act, were his self-acquired properties. He urged that after partition father of defendants continued as village officer and thereafter, 1st defendant became the Baravardar Shanbhogue of the entire village. He also contended that after partition he has carried out several improvements by borrowing loans from private parties and by converting lands into garden lands and that most of the plaint schedule properties were not in possession of either the plaintiff or the defendants and therefore, the suit as brought was not maintainable; the properties sold by the plaintiff and also by the defendants were included in the suit without challenging the alienation and seeking necessary declaration, hence, the suit was liable to be dismissed.

The Trial Court framed the following issues:

"(i) Whether the defendants prove that there was a partition between the braches of the plaintiff and defendants decades ago and the plaintiff has taken the ''C Schedule properties mentioned in the written statement to his share?

(ii) Whether the defendants prove that the properties mentioned in the Schedule ''B'' of the written statement have been sold and the respective purchasers are in possession of the same?

(iii) Whether the defendants prove that the properties mentioned in ''A'' Schedule in the written statement are allotted to their share and they are in exclusive possession and enjoyment of the same?

(iv) Whether the suit is bad for non-joinder of necessary parties?

(v) Whether the suit has not been properly valued and the court fee paid is insufficient?

(vi) Whether the suit is not maintainable without seeking declaration that the alienations are bad in law as alleged in the written statement?

(vii) Whether the plaintiff is entitled to the partition and separate possession of half share in the suit schedule properties?

(viii) What decree or order?"

Plaintiff - Seshappa examined himself as PW-1. Exs. P1 to P99 were produced and marked. 1** defendant -K.Gopalakrishna Murthy examined himself as DW-1. Two witnesses by name Anwar Khan and Narayanappa were examined as DWs-2 & 3. Exs. D1 to D44 were produced and marked for the defendants.

On consideration of oral and documentary evidence, the Trial Court has recorded a finding that the defendants were able to establish that there was a partition decades ago and plaintiff had taken Schedule ''C properties mentioned in the written statement to his share. The Trial Court further held that the defendants proved that properties mentioned in Schedule ''B'' of the written statement had been sold to third parties and the respective purchasers were in possession of the same. It is for this reason the Trial Court found that suit was bad for nonjoinder of necessary parties, viz., the purchasers who had purchased the properties and were put in possession of the same. The Trial Court also found that properties mentioned in Schedule ''A'' to the written statement had been allotted to the share of the defendants of which they were in exclusive possession. It has also held that the suit was not maintainable without the plaintiff seeking declaration that alienations were bad in law.

As regards the suit for injunction filed in O.S. No. 195/1995 by the defendant - Gopalakrishna Murthy, the following issues were framed:

(i) Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property?

(ii) Does he further prove that defendants unlawfully interfered with his peaceful possession and enjoyment of the suit schedule property?

(iii) What relief and order?"

These issues were answered in the affirmative and the suit has been decreed.

I have heard Mr. V. Lakshminarayana, learned Senior Counsel appearing for the appellants and Mr. Padmanabha Mahale, learned Senior Counsel appearing for the respondents.

An application has been filed by the plaintiff-appellants under Order XLI Rule 27 CPC for production of the following documents as additional evidence.

"(i) Statement of no objection for re-grant of the land.

(ii) Endorsement dated 06.10.1960.

(iii) Record of rights.

(iv) Index of lands for the year 1989.

(v) Encumbrance Certificate.

(vi) Tax paid receipts.

(vii) RTC.

(viii) Mutation extracts.

(ix) Order Sheet in R.A. No. 10/93-94 and endorsement dated 29.04.1995."

The said application has been also heard along with the main matter.

The main contention of Mr. Lakshminarayana, is that intention to separate from the joint family and the communication of the said intention is most essential for effecting partition. He refers to Mulla''s Hindu Law 16th Edition and draws support from the judgment of the Supreme Court in the case of Girja Nandini Devi and Others Vs. Bijendra Narain Choudhury, in this regard.

He urges that according to 1st defendant 250 acres of land fell to his share in the so-called partition, whereas only 54 acres had gone to the share of the plaintiff and his sisters and mother. It is contended by him that if partition is alleged to have been taken place during 1941, then Mysore Act of 1933 providing property rights in favour of mother and unmarried daughters was applicable and 1st defendant was required to establish that partition was in accordance with the 1933 Act. He further points out that as per the revenue records Venkatalakshmamma - mother of the plaintiff was holding several lands in her name and those lands which were her Stridhana properties were not allotted to her share.

Dealing with the concept of oral partition and the proof thereof, he has contended that change of mutation, payment of taxes separately and enjoyment of the property exclusively and separately have to be proved by the party who sets up oral partition. It is urged by him that Sy. No. 24 measuring 7 acres which was re-granted to Seshappa was the only land in his khatha and the re-grant of this land was made as per the statement given by Gopalakrishna - 1st defendant before the Deputy Commissioner and even occupancy rights in respect of the said land have been granted in favour of a tenant and the land no longer remained in his possession. He urges that if 54 acres of lands had been allotted to the share of the plaintiff, khatha in respect of the said lands ought to have been entered in the name of the plaintiff. He has contended that even most of these lands which are allegedly allotted to the plaintiff were either sold by 1st defendant or granted in favour of tenants. He has placed strong reliance on the statement of Keshavamurthy before the Deputy Commissioner for hams, wherein he has stated that the family was a joint family. In this regard, he has placed reliance on the judgments in the case of Bharat Singh and Another Vs. Bhagirathi, (paragraphs 7 & 19); K.M. SUBBAIAH & OTHERS v. UNION OF INDIA & OTHERS - 1973(2) Mys.LJ 337 (page 345) ; Prakash Chand Sharma and Others Vs. Narendra Nath Sharma, (paragraph 6). He also points out that the Trial Court has committed serious error in holding that there was oral partition without even examining whether any provision had been made for marriages of the daughters. He places reliance on the judgment in the case of Smt. Ramakka and Others Vs. Smt. Thanamma Since Deceased by Legal Heir, P Srinvas and Others, , to contend that as no shares had been allotted to female members in terms of 1933 Act, there was no partition at all. He has also contended that lands annexed to the village office would go along with the office and were impartible and only after re-grant they would be released from impartibility.

Mr. Mahale, learned Senior Counsel appearing for the respondents has strongly urged that there are no pleadings regarding 1933 Act and the rights flowing under it. Other female heirs have not been made parties, therefore, the said question cannot be raised now. Indeed, the share claimed by Seshappa himself is half share, therefore, question of granting any share to his sisters or to his mother would not arise; there was no pleading also with regard to whether the sisters were married and if so, when they got married. It is also urged by him that in respect of properties sold and those for which occupancy have been granted to the tenants, relief of partition cannot be granted without they being made parties to the suit. As regards the alleged admission made before the Deputy Commissioner about the joint family and the joint family properties sought to be produced along with the application for additional documents, he has contended that the said application cannot be entertained at such belated stage because the ingredients of Order XLI Rule 27 CPC were not established and at any rate, statement given by Keshavamurthy has to be viewed in the light of all other evidence and not in isolation. Mr. Mahale further points out in this connection that if the properties were the joint family properties, there was no reason why they were in exclusive possession of Seshappa and he could not have filed application under the hams Abolition Act separately and there was no reason why occupancy had to be registered only in favour of Seshappa. In this regard, he has invited the attention to the evidence of PW-1 - Seshappa, wherein he has stated that he had applied for occupancy because they belonged to him. He has placed reliance on the following judgments:

"i) K.G. Shivalingappa (dead) by Lrs. and Others Vs. G.S. Eswarappa and Others,

ii) Kale and Others Vs. Deputy Director of Consolidation and Others, "

Having heard the learned Counsel for both parties and in the light of the pleadings, evidence on record and the findings recorded by the Trial Court, the following points arise for consideration.

"(i) Whether the findings recorded by the Trial Court holding that there was oral partition between the branches of the plaintiff and the defendants decades ago and the plaintiff had taken C schedule properties mentioned in the written statement, whereas the A schedule properties of the written statement had been allotted to defendants share, are legally sustainable?

(ii) Whether the plaintiff is entitled for partition and separate possession of his half share in the suit schedule properties?

(iii) Whether the suit was not maintainable without seeking declaration that the alienations were bad and whether the suit was bad for non-joinder of necessary parties?

(iv) What order or decree?"

Point No. 1: Plaintiff has stated in his evidence that he had studied only upto 4th Standard and was looking after agriculture, whereas the defendants pursued their education. During the lifetime of his father, according to him, the properties were jointly held and were recorded in the name of his father. After his death, the khatha came to be transferred in the name of Keshavamurthy - father of the 1st defendant and later on, 1st defendant continued as Shanbhogue and eventually became Village Accountant, which position he made use of to get the properties transferred in his name in the revenue records. He has denied the factum of any partition in the family. He has specifically contended that when he was obstructed from plucking the coconuts from Sy. Nos. 59 & 60 and when a suit was filed against him by the 1st defendant claiming exclusive right and possession in respect of those two lands, he was constrained to demand partition of the properties and was forced to approach the Court when the demand was not met.

On the other hand, 1st defendant - K. Gopalakrishna Murthy has come up with a defence that Venkatachalaiah died in the year 1940. Thereafter, in the year 1941, division of the family properties was effected and since then properties were separately enjoyed by plaintiff and Keshavamurthy. It is his specific case that plaintiff and his mother started residing in the house at Doddanallurahalli and all the lands situated there were allotted to the share of the plaintiff and his mother and all those lands were wet lands. Whereas, the lands given to the share of 1st defendant''s father - Keshavamurthy were dry lands. He has also stated in his evidence that lands situated in Jodi village of Siddapura, Bejarak, Ankonahalli, were inam lands. His father Keshavamurthy was paid compensation after the hams Abolition Act came into force, whereas, in respect of lands which had fallen to the share of the plaintiff, applications had been filed in Form-7 by some tenants and occupancy rights were conferred in their favour.

In order to prove the partition, except his self-serving testimony and the oral evidence of DWs-2 & 3, there is no material produced. DW-2 - Anwar Khan claims to have purchased 4 acres of dry land from the mother of the plaintiff. DW-3 - Narayanappa is a resident of Siddapura village. According to him, he was previously cultivating the land belonging to plaintiff at Doddanallurahalli village. He has stated that he was cultivating the lands belonging to the plaintiff and his sister Susheelamma and that he has also purchased a vacant site situated at Kembaliganahalli from the plaintiff as per Ex. D4 sale deed executed on 14.10.1976. What all can be gathered from the evidence of DWs-2 & 3 is that, plaintiff sold a vacant site in favour of DW-3. Their evidence cannot be taken to establish family partition between the plaintiff and defendants.

Plea of oral partition has to be established by producing documents which originate after the alleged partition took place. Oral partition in the rural families is not uncommon, but the same would be followed by mutation entries effected by the revenue authorities upon a report filed before the Village Accountant which would ultimately culminate in the order to be passed by the Tahsildar.

Family of the plaintiff and defendants belong to a Shanbhogue family. Father of the defendant was a Shanbhogue. He later on became the Village Accountant. If there was an oral partition, the same would have been evidenced by a mutation entry and the said mutation entry would have resulted in transfer of names of respective persons in the khatha of the lands fallen to their share. Mere fact that the plaintiff admits in his cross-examination that all the three defendants were living separately with their wife and children and that the plaintiff had performed marriage of his three daughters and his granddaughters had attained marriageable age cannot be taken as proof of oral partition set up by the defendant. Therefore, the findings recorded in this regard by the Trial Court are not based on any evidence that proves partition, but is based only on inferences that have no legal basis and which do not logically flow from the evidence on record and the reasons assigned by the Trial Court.

It is also necessary to notice that merely because names of different parties are shown in the RTCs in respect of some of the suit properties, it cannot be inferred that there was a prior partition. In fact, Exs. P80 to P86 and Ex. P88 disclose the name of the mother of the plaintiff - Smt. Venkatalakshmamma in the revenue records in Col. No. 9. But, this by itself cannot be taken to infer that the said properties were allotted to the share of Venkatalakshmamma. In a matter where defendant sets up oral partition, burden is heavily on him to establish when and how such partition took place. It is no doubt true that partition could be inferred from the conduct of the parties, but then the evidence in support of such conduct has to be clear, unambiguous and specific. If 54 acres of land had fallen to the share of the plaintiff and if all these lands were wet lands and if the remaining extent of about 250 acres of land had fallen to the share of the defendants which according to the defendants were dry lands, then corresponding entries in the revenue records in respect of the said lands would have certainly found place reflecting the names of plaintiff and defendants as khathedars and cultivators right from 1941 onwards. No such evidence is available.

As rightly contended by Mr. Lakshminarayana, third party applicants who had applied for occupancy rights in Form- 7 and in whose favour the Land Tribunal conferred occupancy rights have not been examined to establish that they paid premium by way of compensation exclusively to the plaintiff and that plaintiff conceded their claim and received compensation. In fact, the evidence of the plaintiff discloses that though those lands stood in his name, he did not participate in the proceedings before the Land Tribunal. The Trial Court erroneously inferred from this evidence that as he did not participate in the proceedings before the Tribunal nor challenged the order of the Tribunal, his conduct disclosed that he favoured the applicants.

In fact, in the additional documents sought to be produced, plaintiff has contended that Keshavamurthy himself has stated before the Deputy Commissioner that plaintiff -Seshappa was member of the joint family and he was entitled for re-grant of certain lands. This document was not produced before the Trial Court. However, even apart from the said document, the evidence on record dies not establish oral partition. Hence, I am of the view that the Trial Court has seriously erred in recording a finding that there was oral partition.

The Trial Court has come to a clear conclusion that there were no documents to show that properties described in A schedule of the written statement were given to Keshavamurthy - father of the defendant and properties shown in C schedule of the written statement were given to the plaintiff. Having held so, merely on the basis of sale of some of the properties by the respective parties, the Trial Court has erroneously inferred that there was oral partition. It is well established that to constitute partition a definite and unequivocal indication of the intention by a member of joint family to separate himself from the family and enjoy his share has to be established. The Supreme Court in the case of Girja Nandini Devi and Others Vs. Bijendra Narain Choudhury, has held that Mithakshara family is presumed in law to be joint family until it is proved that members have separated. In the said case in paragraph 9, the Apex Court has referred to the judgment of the Judicial Committee of the Privy Council in AIR 1925 49 (Privy Council) to hold that mere fact that shares of coparceners have been ascertained does not by itself lead an inference that family had separated. It is thus necessary to establish that the conduct of the parties must evidence unequivocal intention to sever the joint family status. Merely because one member of a family severs his relation or resides separately or deals with some of the properties, there cannot be a presumption regarding severance of the status of joint family. However, contention urged based on 1933 Act cannot be entertained as necessary pleadings are not found in the plaint. Nor, there is any evidence in this regard.

Documentary and oral evidence do not establish such a oral partition. At best, the materials disclose that parties were living separately and some of the properties stood in the name of different sharers and they have dealt with such properties including by way of selling the same to third parties. But, these documents radically fall short of establishing the plea of oral partition in respect of all the properties. Point No. 1 is accordingly answered.

Point Nos. 2 & 3:- As regards the maintainability of the suit, it is true the plaintiff has included several properties which have been sold or in respect whereof occupancy rights have been granted in favour of third parties, without arraying them as parties to the suit and without seeking any relief in respect of such alienations or grants. Therefore, it has to be stated that in respect of such properties the plaintiff is not entitled for any relief. But, that cannot result in dismissal of the entire suit. The suit as regards other properties which were owned and possessed by the sharers as members of the joint family would be maintainable. Unfortunately, in the present case, there is no pleading or evidence to come to the conclusion as to which properties had been sold and were consequently not available for partition as on the date of the suit and which properties were available for partition being exclusively possessed and owned by the members of the joint family. This court is not in a position to record any finding in this connection. Suffice to hold that the entire suit cannot be dismissed as not maintainable merely because purchasers of some of the suit schedule properties have not been arrayed as party defendants. It is for this reason, while the plaintiff can be held to be entitled for partition and separate possession of the joint family properties owned and possessed by the family as on the date of the suit, in the absence of any exercise undertaken by the Trial Court and due to paucity of evidence in that connection, this Court is left with no alternative but to remand the matter to the Trial Court for the purpose of recording specific findings with regard to the suit schedule properties which are available for partition.

Regarding I.A. for production of additional evidence:--As regards the application filed seeking production of additional documents, as the matter is being remanded for fresh consideration, I am of the view that in order to ascertain the truth and in the ends of justice, it is necessary to afford opportunity to both parties to adduce additional evidence. Therefore, application filed by the appellant seeking to produce additional evidence is allowed. Liberty is reserved to the defendants to produce additional documents. However, it is made clear that plaintiff and as also the defendants are not entitled to seek any relief in respect of properties that have been alienated prior to the filing of the suit because these proceedings cannot be protracted by the parties resorting to lay challenge to alienations that have taken place prior to the institution of the suit.

As the defence set up by the defendants regarding prior partition is found not established and the matter is remitted for fresh consideration, the decree of permanent injunction granted in respect of two items of properties in favour of 1st defendant cannot be sustained. The Trial Court is directed to re-consider the matter afresh in both the suits and record its findings afresh.

In the result, both the appeals are partly allowed. The judgment and decree under challenge is set aside. The matter is remitted to the Trial Court for re-consideration afresh in the light of the observations made and directions issued above. Parties are directed to appear before the Trial Court on 16.01.2015. The Trial Court shall dispose of the suits, expeditiously, at any rate within a period of eight months from 16.01.2015. Parties shall bear their respective costs.