Smt. Doddathayamma and Smt. Siddamma vs Doddegowda

K.L. Manjunath, J.—The appellants have filed this appeal being aggrieved by the dismissal of their suit for partition and separate possession of their 1/5th share in O.S. No. 1593/2006 passed on 16.10.2009 by the IV Additional Civil Judge (Sr. Dn.) and JMFC, Mysore. Heard the learned counsel appearing for the appellants. Though respondents are served, they are un-represented.

According to the plaint averments, one Doddegowda had five sons by name, Chikkegowda, who was the husband of the first appellant and father of 2nd appellant, the 1st defendant Doddegowda, the 2nd defendant Siddaramegowda, the 3rd defendant Nagegowda and one Siddegowda. Defendants 4 to 6 are the widow and children of deceased Siddegowda. They contended that during the lifetime of the ''husband of the first appellant and the father of 2nd appellant, there was no partition and separate possession of the joint family property. The suit was instituted by them claiming 1/5th share in all the plaint schedule properties.

The defendants contested the suit. They admitted their relationship with the plaintiffs. It was contended that the daughters of Doddegowda were not arrayed as parties. According to them, in the absence of the daughters of Doddegowda, suit was not maintainable.

It was further contended by the defendants that during the lifetime of Chikkegowda, there was a partition between him and Doddegowda and that Chikkegowda was living separately by enjoying the property allotted to his share and therefore, the suit filed by the plaintiffs was not maintainable.

Based on the above pleadings, the following issues were framed by the court below:

i) Whether the plaintiffs prove that Genealogy as pleaded is true and correct as pleaded?

ii) Whether the plaintiffs prove that suit schedule properties are the joint family and ancestral properties of plaintiffs and defendants as pleaded?

iii) Whether the defendants prove that suit is bad for non-joinder of necessary parties, as pleaded?

iv) Whether defendants prove that plaintiffs have been given their share as pleaded?

v) Whether the plaintiffs prove that they are entitled for the relief as claimed?

vi) What order or decree?

To prove their respective contentions, the first plaintiff Smt. Doddathayamma was examined as P.W.-1 and she relied upon Exs. P-1 to P-6. The first defendant Doddegowda was examined as D.W.-1 and the defendants did not rely upon any document. The learned judge, after hearing the parties held issue Nos. 1, 2, 4 and 5 in negative and issue No. 3 in affirmative.

According to the learned counsel for the appellants, the trial court did not consider the evidence let in by the parties and the appreciation of evidence by the trial court is bad in law. In the circumstances, he requests this Court to set aside the findings of the trial court and decree the suit of the appellant-plaintiffs.

Having heard the learned the learned counsel for the appellants, we have to consider the following points in this appeal:

a) Whether the suit of the plaintiffs could be dismissed on account of non arraying the two daughters of late Kuridoddegowda by name Siddamma & Jayamma?

b) When the trial court is justified in holding issue No. 5 in negative and whether it was justified in dismissing the suit without giving share to the plaintiffs?

c) Whether the findings on issue No. 2 is just and proper?

The admitted facts are that Kuridoddegowda was the propositus. He had 5 sons and two daughters. The plaintiffs are the widow and daughter of late Chikkegowda, who was one of the sons of Kuridoddegowda. Admittedly, two daughters by name Siddamma & Jayamma are not arrayed as parties. Even if they are not arrayed as parties, it was open for the trial court to direct appellant-plaintiffs to implead them as parties. Even in their absence, the share of the plaintiffs and the share of Siddamma & Jayamma could have been determined and allotted in accordance with law. Without doing so, the trial court has held issue No. 1 in negative & issue No. 3 in affirmative. Therefore, we are of the opinion that the findings on issue Nos. 1 and 3 are to be set aside.

It is the specific case of the plaintiffs that there was no partition either during the lifetime of Kuridoddegowda or after his death, but it is the specific case of the defendants that there was a partition between Chikkegowda and the defendants. When such a contention is raised, burden is on the defendants to prove issue No. 4 regarding earlier oral partition. Unfortunately, except the self testimony of Doddegowda, the first defendant, who has been examined as D.W.-1, we have no other oral evidence or any document to say that there was a partition and that the parties have had been living separately.

On behalf of the plaintiffs, P.W.-1 has relied upon Exs. P-1 to P-6. Out of them, Exs. P-1 to 5 are RTC extracts which only depict the revenue entries in respect of some of the lands in question and Ex. P-6 is the Demand Register Extract, showing the house tax payable. But on perusal of Exs. P-1 to P-6, the Court cannot come to the definite conclusion that there was a partition because, in the written statement, the defendants have not stated as to when exactly the partition took place and what were the properties allotted to Chikkegowda. Similarly, there is no evidence to prove that Chikkegowda was enjoying the properties so allotted by getting all the revenue records to his name as a owner. The trial court has culled out certain portion of cross examination of P.W.-1 at paragraph 10 of the judgment. Though it is in vernacular, on reading of the extract of cross examination of P.W.-1, it does not disclose that there was an actual partition by metes and bounds among the family members. Even on perusal of the said deposition, we are of the opinion that for the sake of convenience, the parties were living separately by cooking the food separately which will not prove the actual partition and that the severance of joint status.

In the circumstances, we are of the opinion that the findings of the trial court on issue Nos. 2, 3, 4 and 5 are also not proper. The trial court has wrongly held that the defendants have proved that they have given a share to the plaintiffs as pleaded, while answering issue No. 4. When issue No. 4 is held against the defendants, automatically, the trial court is required to consider the share of the plaintiffs. In a mechanical way, the case has been dealt with by the trial court. Therefore, the judgment and decree are liable to be set aside. Since the trial court has dismissed the suit, based on the revenue entries, without there being any rebuttal evidence relying upon the RTC extracts, we are of the opinion that the matter has to be remanded to the trial court, to give a definite finding with regard to the earlier partition as set up by the defendants. In the circumstances, the appeal is allowed. The judgment and decree passed in O.S. No. 1593/2006 passed on 16.10.2009 is hereby set aside. The matter is remanded to the Civil Judge (Sr. Dn.) & JMFC, Mysore, for fresh consideration of all the points, giving liberty to both the parties to lead further evidence, if they so desire and also to give an opportunity for bringing necessary parties on record. It is made clear that the evidence already recorded remains intact. We hope that the trial court will make an endeavour to dispose off the suit as expeditiously as possible.

Registry is directed to send back the records with a copy of the judgment at the earliest.