Shanthappa Bangera and Others vs Jaya Moolya and Others

Ravi V. Malimath, J.—Aggrieved by the judgment and decree of the Trial Court in decreeing the plaintiffs'' suit for partition and separate possession, defendant Nos. 1, 2A, 2C and defendant No. 3 have filed this appeal.

The case of the plaintiffs is that ''B'' schedule properties are tenanted property, which consists of 23 acres of paddy field, 75 coconut trees, 35 palmyra trees and a residential house worth rupees one lakh, a shed with huller worth Rs. 50,000/-. The net income from paddy is about 150 muras of rice, 1000 coconuts and Rs. 3,500/- from Palmyra trees. It is their case that one late Sri. Koty Moolya had filed a declaration in respect of the property under Section 48-A of the Karnataka Land Reforms Act before the Bantwal Land Tribunal. The land in question was granted to him by the Tribunal by the order dated10.6.1977. He had eight children. He died on 24.8.1979. His wife pre-deceased him in the year 1968. The children are members of the undivided joint Hindu family. The daughter of late K.M. Moolya namely, late Thimmakke died leaving behind plaintiff No. 1(A) and plaintiff No. 1(B) who are together entitled to 1/8 share. Another daughter Ramakke who died leaving behind plaintiff No. 2B and plaintiff No. 2C are together entitled to 1/8th share. The plaintiffs 3 and 4 each are entitled to 1/8 share. The son who is the first defendant is entitled to 1/8 share. Krishnappa, son of Lingu Hengsu died leaving behind defendant No. 2A to defendant No. 2D and they are all together entitled to 1/8 share. The children of late Chennamma, who were defendants 4A, 4B, 4C are together entitled to 1/8 share in the suit ''B'' schedule property. The entire income of the ''B'' schedule properties was appropriated by defendant No. 1, even though he is entitled to 1/8th share. Therefore the other family members demanded for partition and separate possession of the properties which was denied. Hence, the instant suit was filed seeking for partition and separate possession in the ''B'' schedule properties and for mesne profits.

After service of notice, the first defendant filed his written statement. He did not dispute the plaintiffs'' share or quantum of share or the nature of schedule properties. His only case is that it is false that the first defendant is appropriating the entire income of the ''B'' schedule properties. He denied the alleged demand for partition and also the alleged income from the ''B'' schedule properties. He admits that plaintiffs 1(a) (1(b) are also in possession of the two houses in the "B'' schedule properties and they are also getting income from these lands and coconut trees; that certain viniyogas (pooja) are being performed by him out of the income from the ''B'' schedule properties for the benefit of the entire family and not for himself; that after doing all this, there is no surplus income left and that the valuation made by the plaintiffs is incorrect; that he has no objection for grant of the plaintiffs'' share subject to provision of performing the said viniyogas as stated in the schedule X of the written statement.

The defendants 2(A), 2(c) and defendant No. 3 adopted the written statement of the first defendant. The defendant 4B filed his separate written statement, but has not disputed anything except claiming 1/8 share for himself.

On the basis of the pleadings, the Trial Court framed the following issues for its consideration:--

"1) Whether the plaintiffs prove that the suit properties are partitionable?

2) Whether the genealogy is correct?

3) Whether the plaintiffs prove that the suit properties yield the crops as set it in para 4 of the plaint?

4) What is the correct income from the suit properties?

5) Whether the valuation made is correct?

6) Whether the plaintiffs are entitled to 4/8th share?

7) Whether the plaintiffs are entitled for future mesne profits?

8) Whether the defendants prove that the family has to perform the viniyogas described in schedule X of the written statement?

9) What order or decree?"

The first plaintiff himself has examined as P.W.1 and marked three documents as Ex. P.1 to Ex. P3. No oral evidence was let in by the defendants. The Trial Court held issue Nos. 1, 2, 5 and 6 in favour of the plaintiffs and issue Nos. 3, 4, 7 and 8 in terms of the final decree. The suit of the plaintiff was decreed granting their shares as pleaded.

Aggrieved by the said judgment and decree of the Trial Court, the present appeal is filed.

Shri. Pundika Ishwara Bhat, learned counsel for the appellants contends that the impugned judgment and decree of the Trial Court is erroneous and liable to be set aside on the following grounds;

"i) The first contention is that plaintiff No. 1(b) died during the pendency of the suit and his legal representatives were not brought on record and that after filing of this appeal, his legal representatives have been brought on record, in terms of the order of this court dated 21.2.2009. Other defendants died during the pendency of this appeal and their legal representatives have been brought on record. He contends that since the legal representatives of plaintiff No. 1(a) was not brought on record, no decree could be enjoyed by the plaintiffs.

ii) The second contention is that the first defendant is not in possession of the entire property and hence the question of partition does not arise.

iii) The other contention is that since the first defendant has been performing family viniyogas, it is not possible for him to meet the expenses to perform the viniyogas out of the income from the properties and that he is also entitled to a share in the ''B'' schedule properties."

There was no defence raised by the first defendant with regard to entitlement of his share and quantum of the share and also the very nature of the suit property. In fact, the only defence put-forth by the first defendant is that he has appropriated the entire income from ''B'' schedule properties and that he has been performing family viniyogas etc. from such income. Under these circumstances, the Trial Court having considered the plea of the plaintiffs has rightly decreed the suit and allotted 1/8th share to each one of the defendants. Even the share granted to the plaintiffs is not disputed by the defendant No. 1. Neither the defendants entered the witness box nor produced any material against the plaintiffs. When this being so, primarily he does not dispute the fact that all the defendants are entitled to 1/8th share. Under these circumstances, in the absence of evidence being let in and in view of the clear admission by the defendants themselves that each one of children is entitled to 1/8th share, I do not find any error that call for interference by this Court.

So far as the question of defendants not in possession of the entire property is concerned, the same would necessarily have to be considered at the stage of final decree proceedings. Such a contention is liable to be raised by the appellants herein, in the appropriate proceedings.

So far as performing family viniyogas are concerned, the first defendant being the eldest son, it is his religious duty to do so. It cannot be a ground to deny share to the other family members.

So far as the contention of not bringing the legal representatives of the deceased plaintiff is concerned, such a contention cannot be accepted, when there is no decree has been drawn against the dead person. It is in favour of a dead person. Since the legal representatives of the deceased plaintiff are already brought on record in the Trial Court, this contention too lacks merit.

For the aforesaid reasons, the appeal is dismissed. No costs.