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Judgment
A.S. Pachhapure, J.—The appellants have challenged the judgment and decree for partition and separate possession of the share of respondent No. 1, confirmed in appeal by the First Appellate Court. The facts relevant for the purpose of this appeal are as under:
For the sake of convenience, the parties will be referred as per their rank before the Trial Court.
The appellants herein are the legal representatives of defendant No. 1. Respondent No. 1 instituted a suit for partition and separate possession of the share of minor and in the said suit, second respondent is defendant No. 2.
Deceased defendant No. 1 and defendant No. 2 are the brothers. Defendant No. 3 is the wife of defendant No. 1 whereas the plaintiff claims to be the son of second defendant and his guardian Janakamma is the wife of second defendant. The minor plaintiff claims his half share in the suit properties contending that the suit properties which are agricultural lands are the ancestral joint family properties it is also his contention that item No. 2 is also purchased from the joint family funds and that the plaintiff is entitled to the half share in the share of the second defendant, his father. It was his grievance that the defendants are neglecting the welfare of minor and he was ousted from the family in the month of May, 2002. As there was misuse of funds of the joint family properties, it is in the interest of minor that the suit came to be instituted for his share.
The third defendant has filed written statement denying the averments made and she admitted that the suit properties are in joint possession of defendants 1 and 2. It was also her contention that the suit schedule ''B'' property was sold to one K.G. Kariyappa for legal necessity of the family under the registered sale deed dated 15.05.1997. This property was re-purchased by the third defendant for a'' consideration of Rs. 85,000/- and the third defendant claims to be the absolute owner of the suit properties. It is her contention that by selling the sheep and collecting remaining sale consideration from her parents, she has purchased suit schedule ''B'' property. Hence, it was her contention that the plaintiff is not entitled to the share in ''B'' schedule property.
On the basis of these pleadings, the Trial Court framed the following issues:
Whether the plaintiff proves that he is the son of 2nd defendant?
Whether the plaintiff prove that the suit properties are joint family properties?
Whether she further proves that suit schedule ''A'' property was purchased in the name of 3rd defendant with joint family funds?
Whether she further proves that he is in joint possession of suit properties along with defendants 1 and 2?
Whether the defendants proves that suit schedule ''B'' property is the self acquired property of defendant No. 3?
Whether suit is time barred?
Whether the plaintiff is entitled for the relief sought for? If yes, at what rate and for which of the properties?
Whether the defendants are entitled for the compensatory costs as claimed?
What decree or order?
During the trial, the plaintiff examined the guardian as PW1 and a witness as PW2 and in their evidence, documents Exs. P1 to P5 were marked. The third defendant is examined as DW1 and a witness DW2 and the documents Exs. D1 to D9 were marked. The Trial Court after hearing the counsel for parties and on appreciation of the evidence on record, decreed the suit. Aggrieved by the judgment and decree, defendants preferred an appeal in RA Mo. 104/2006. The said appeal was also dismissed on merits. Aggrieved by the judgment and decree of Courts below, the present appeal is filed.
At the time of admission, the following substantial questions of law have been raised:
a) Whether the plaintiff who was a minor suing through his mother could claim partition of the joint family property, as it was not ancestral property?
b) Whether the Courts below were justified in overlooking Section 14 of the Hindu Succession Act, by virtue of which the appellant was the absolute owner of the suit property and therefore, the same not being available for partition?
I have heard learned Counsel for both the parties.
It is the contention of learned Counsel for the appellants that plaintiff was a minor and therefore, he cannot maintain a suit for partition of his share in the suit properties. It is also his contention that the suit schedule ''B'' property was purchased by third defendant and therefore, u/s 14 of Hindu Succession Act, she gets an absolute title to the suit property. He also contended that both the Courts below did not consider as to whether the suit properties are joint family properties and in the absence of any material to prove that they are ancestral properties, the plaintiff cannot claim the share. On these grounds, he has sought for setting aside the judgment and decree of the Trial Court.
Perusal of the pleadings would reveal that in para 3 of the plaint, it is averred by the plaintiff that "the suit schedule properties are the ancestral properties of the plaintiff and defendants, After the death of ancestors, the khata of land bearing Sy. No. 12/2P has got mutated in the name of defendants 1 and 2 and they have jointly enjoying the same properties upto 1996..... ". So the plaintiff in his suit has made a specific grievance and has pleaded that the suit schedule properties are the ancestral properties acquired by the ancestors and hence, contended that they are joint family properties.
On this aspect, if the contention and written statement is looked into in para 3, it is stated that "as alleged in para 2 of the plaint, the allegation that the defendants are members of Hindu Undivided family is false. In para 4, it is stated that "the averments in para 3 are false. Defendants are enjoying ''A'' schedule property and are in joint possession. Originally Sy. No. 12/2P measuring 10 acres 4 guntas are admitted to be a joint properties of defendants 1 and 2": Apart from the aforesaid averments, there is no specific denial of the averment made by the plaintiff in para 3 of the plaint.
As could be seen from Order VIII Rule 3 CPC; it provides:
Denial to be specific-It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.
So in the written statement, the third defendant has not denied that the suit schedule properties were the ancestral joint family properties of plaintiff and defendants and after the death of ancestors, the khata of land bearing Sy. No. 12/2P was got mutated in the name of defendants 1 and 2. Therefore, in the absence of specific denial, an inference could be drawn that defendants have admitted that the suit schedule properties are the ancestral joint family properties. That apart, defendants 1 and 2 have not filed the written statement.
As could be seen from the issues raised by the Trial Court, issue No. 2 relates to the question as to whether the said properties are joint family properties. It is relevant to note that the joint family properties may be the properties acquired by the ancestors and inherited by the joint family or may be the properties which were acquired by the family income of joint family funds.
Learned Counsel for the appellants has referred to Section 226 of the Principles of Hindu Law, wherein it is stated that "when the properties acquired is from the income of joint family business, it becomes the joint family properties and it will pass by survivorship and that in case, if acquisition is exclusively from the income jointly by the brothers, the aforesaid principle shall not apply".
This principle does not apply to the facts on hand for the sole reason that the defendants have not contended that the suit properties are self acquisition of defendants 1 and 2 and they did not deny the fact alleged by the plaintiff that the suit properties are the ancestral joint family properties. There is much difference between the joint family properties and joint properties acquired jointly by the parties from their own income. So in this context, if issue No. 2 is seen, it is clear that it is in respect of joint family properties and not that joint properties of defendants 1 and 2. Hence, the contention that there is no proper issue framed by the Trial Court appears to be erroneous.
That apart, the Trial Court and the First Appellate Court have taken into consideration the pleadings of parties and the evidence led and ultimately have come to a conclusion that the suit schedule properties before the sale of schedule ''B'' property were the joint family properties. Hence, the contention of learned Counsel for the appellants that the properties are jointly acquired by defendants 1 and 2 cannot be accepted. That apart, defendants 1 and 2 have not produced any records to show that these properties were acquired by them in the life time. In the context of findings referred to supra, it is how necessary to consider as to whether the third defendant has acquired absolute title to the suit schedule ''B'' property u/s 14 of Hindu Succession Act. In the Trial Court, she was examined as DW1 and in the cross examination, she admits that the suit properties are the properties of defendants 1 and 2 and are joint family properties. She also admits that during the life time of first defendant, both defendants 1 and 2 were jointly enjoying the suit properties. She also admits that on the death of her husband, it is LRs. of defendant No. 1 and defendant No. 2 who have the rights over the properties. So if this admission of DW1 is taken into consideration, though property stood in her name under the registered sale deed, as she admits that the suit properties are the properties of her husband and second defendant and as she does not make any claim of absolute night oven the suit schedule ''B'' property, Section 14 of Hindu Succession Act is not applicable.
Learned Counsel fore the appellants has placed reliance on the decision of Apex Count reported in Gangamma etc. Vs. G. Nagarathnamma and Others etc., and the facts therein reveals that in the suit for partition instituted in respect of property which was standing in the name of mother-in-law of the plaintiff, the Apex Court held that by operation of Section 14(1), mother-in-law becomes full owner of the property. In para 14, the Apex Court has observed thus:
Section 14(1) of the Hindu Succession Act (hereinafter referred to as the Act) has a bearing on the issue. As the properties at item Nos. 1 and 2 are recorded in the name of the appellant, in the absence of any evidence to the contrary in this case, the appellant by operation of Section 14(1) of the said Act is the full owner of those properties in the facts of this case discussed above it has to be accepted that those properties are not joint properties but the appellant is the sole owner of those properties
(Emphasis supplied)
So, Section 14(1) of the Hindu Succession Act applies to a case, where there is no evidence contrary to the claim of third defendant. Her own admission that the suit schedule ''A'' and ''B'' properties are joint family properties would establish that she has not made any claim over suit schedule ''B'' property as her absolute property. Hence, in my considered opinion, the principle laid down by the Apex Court in the aforesaid decision are not attracted.
That apart, both the Counts below have concurrently held that the transaction of sale of the suit item ''B'' by defendants 1 and 2 in favour of DW2 - the brother of defendant No. 3 and re-purchase of the property by the third defendant was not from the absolute income of defendant No. 3 and that it was a transaction to defeat the claim of plaintiff. That apart, when DW1 - the third defendant herself admits that the suit schedule ''B'' is also joint family property, the question of applying Section 14 of Hindu Succession Act does not arise for consideration at all. Perusal of the material placed on record reveals that the defendants have disputed the paternity of the plaintiff and contended that he is not born to the second defendant. Furthermore, the defendants entered into a transaction in Ex. D1 in favour of DW2 the brother of defendant No. 3 and again purchased the property in the name of third defendant under Ex. D2. This would also indicate that the defendants are trying to defeat the share of plaintiff and when the parties have entered into such transactions in relation to ''B'' schedule property, the minor plaintiff has a right to sue for partition of his share and therefore, as the suit properties are the ancestral joint family properties, he can maintain a suit for partition. Hence, both the substantial questions of law are answered in ''Affirmative''.
In the result, the appeal fails and it is accordingly dismissed.
No costs.