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Judgment
N. Kumar, J.—This appeal is preferred by defendants-1 and 2 in O.S. No. 33/97. challenging the judgment and decree of the trial Court, which has granted a decree for partition and separate possession and granting 1/2 share to the plaintiffs in the suit.
The subject matter of the suit is 5 items of immovable properties. Item No. 1 is the house property and vacant site. Item Nos. 2 to 5 are agricultural land. One Marigowda is the propositus. The second defendant Channamma is his wife. They had three sons by name Karithimmegowda Doddamarigowda and Huchegowda. Karithimmegowda predeceased his lather in 1976. Plaintiffs are the wife and minor daughter of Huchegowda. The first defendant is Doddamarigowda. defendants-3 and 4 are daughters of Marigowda. The case of the plaintiffs is that all the suit schedule properties are joint, family properties. There is no partition in the family. In fact, in the lifetime of Huchegowda, he had thrown the plaintiffs out of the house. They had tiled a suit for maintenance before the learned Munsiff. Channapatna and there was a decree for maintenance. The decree was executed and the amounts were recovered. After the death of Huchegowda on 07.08.1993, they preferred this suit for partition and separate possession of their legitimate share in the suit properties as it was denied to them. Therefore they sought for � share in the suit properties and for other consequential reliefs.
Defendants-1 and 2 filed a joint written statement contesting the claim. They denied that Karithimmegowda died without marriage. They contend that he was married to one Thimmamma and she is alive and she is deliberately not made party to the suit. Therefore the suit for partition is bad for non-joinder of necessary parties. They admitted that the suit properties are all ancestral properties. They admitted the relationship between Huchegowda and the plaintiffs. They denied that Huchegowda deserted the plaintiff and contended that it is the plaintiff who deserted him. The suit filed for maintenance was admitted. They denied the allegation that there was no division in the family. They have specifically pleaded in the written statement that in 1984 there was division. In the partition, all the three sons were given 1/3rd share in the properties equally. Channamma, the wife of Marigowda was given one acre of land for her Ajjapalu-maintenance and all of them are enjoying their shares. In such division, Huchegowda was given 38 guntas of land in Sy. No. 233/3. which is the suit item No. 5. He was in possession of the same. This aspect has been confirmed in O.S. No. 85/1988, liven a charge is also created on this property in the said suit. Katha of the respective shares is also made out separately in the respective names. Alter the death of Huchegowda, the plaintiffs are in separate possession of 38 guntas in Sy. No. 233/3 the present suit item No. 5. Similarly, they are living in a portion of the house, which has fallen to their share. Thus there has been severance of status in the family long ago and therefore the present suit of the plaintiff for partition is not maintainable. The plaintiffs have suppressed all these true and material facts and have come up with this false and frivolous suit to knock off the properties. Therefore, they sought for dismissal of the suit.
The daughters did not file any written statement.
On the aforesaid pleadings the trial Court framed the following issues:
Whether the plaintiff proves that suit schedule properties are the joint family properties consisting of themselves and he defendants as alleged?
Whether defendants prove that there was a partition in the family in the year 1984 after the death of Marigowda as alleged in para-4 and 8 of their written statement?
Whether defendants proves that during the lifetime of Huchegowda, plaintiff No. 1 as voluntarily deserted him and then filed a suit for maintenance in OS No. 85/1998 as alleged?
Whether suit is bad for non-joinder of necessary parties as alleged?
Whether plaintiffs are entitled for partition and separate possession of 1/2 share in the suit properties as alleged?
Whether the plaintiffs are entitled for mesne profits? If so. to what Amount?
To what relief if any, the parties are entitled?
The plaintiffs in order to substantiate their claim examined the first plaintiff-Jayamma as P.W-1. They produced 11 documents, which are marked as Ex.P-1-to P-1 1. On behalf of defendants, no evidence was adduced. However, by consent of parties, the judgment and decree in O.S. No. 85/88 was marked as Ex.D-1.
The trial Court on appreciation of the aforesaid oral and documentary evidence on record held that the plaintiff has proved that all the suit schedule properties are the joint family properties consisting of themselves and the defendants. Defendants have failed to prove that there was partition in the family in the year 1984 after the death of Marigowda as contended by them. The defendants have proved that during the lifetime of Huchegowda, the first plaintiff deserted Huchegowda and then filed a suit for maintenance in O.S. No. 85/88. The suit is not bad for non-joinder of necessary parties. The plaintiffs are entitled for partition and separate possession of 1/2 share in the suit properties and plaintiffs are entitled to mesne profits. Accordingly, it decreed the suit of the plaintiffs for 1/2 share.
Aggrieved by the said judgment and decree of the trial Court, the defendants-1 and 2 have preferred this appeal.
The learned Counsel for the appellants assailing the judgment and decree of the trial Court contended that in the earlier proceedings O.S. No. 85/1989 between the same parties, the Court has recorded a categorical finding that there was partition as pleaded by the defendants herein and in the said partition, an extent of 38 guntas fell to the share of deceased Huche Gowda. Thereafter, a charge was created for maintenance in respect of that property only, which is item No. 5 in the present suit. In spite of the said finding in the '' earlier proceedings, the trial Court committed serious error in holding that there was no partition and all the properties are joint family properties. Secondly, he contended that even if it is to be held that there was no partition at all, the plaintiffs are not entitled to W share, Marigowda had left behind two sons. Therefore, the branch of Doddamarigowda, Huchegowda will get 1/3rd share and remaining 1/3rd share belonging to Marigowda Is to be distributed among the two sons, his wife and daughters. Therefore, the decree passed requires interference.
Per contra the learned Counsel for the respondents supported the impugned judgment and decree.
In the light of the aforesaid facts and rival contentions, the points that arise for our consideration are.
(1) Whether the finding of the trial Court that there was no partition earlier and therefore all the properties are liable for partition, requires interference?
(2) If so. what is the share to which each of the parties are legitimately entitled to?
Point No. 1
The relationship between the parties are not in dispute. It is also not in dispute that all the suit schedule properties were ancestral properties at the hands of Marigowda. Marigowda had three sons by name, Karithimmegowda, Doddamarigowda and Huchegowda. Karithimmegowda predeceased his brother. There is dispute whether he was married or not. Though defendants contend that he was married to one Thimmamma and in the earlier partition.Thimmamma was given her share, the defendants have not stepped into the witness box to prove the said case put forth by them. If Thimmamma had been given her share in the earlier partition and she is satisfied with the said share and till today, if she has not put forth any claim over the suit properties, the question of granting any share in the property would not arise. At any rate, the plaintiffs dispute the very existence of Thimmamma and it is their specific case that Karithimmegowda was not married and therefore after his death, the other remaining coparceners succeeded to the estate and as such, no share need be given to Karithimmegowda. The contention of the learned Counsel for the appellants is that the very same plaintiffs had filed the suit in O.S. No. 85/38 against Huchegowda, claiming maintenance. In the said proceedings all the plaint schedule properties were the subject matter of maintenance suit. In the said suit, the first defendant filed written statement taking up a specific contention that in a partition in the year 1984 between the brothers after the death of Marigowda, item No.5 of the present plaint schedule measuring about 38 guntas and a portion of the house was given to the share of Huchegowda. The trial Court recorded a finding that there was a partition and in the partition, item No. 5 fell to the share of Huchegowda and therefore it created a charge for maintenance on that item only and on the other items the plaintiffs have no right. The said judgment has become final. In the light of the aforesaid suit between the parties and the judgment passed by the competent Civil Court, it is not open to the plaintiff to reagitate the matter and file a suit for partition. The trial Court committed a serious error in ignoring the said finding recorded in the earlier proceedings which clinches the issue.
We do not find any substance in the said contention. Even if the sum and substance of the written statement is to be construed as the defendant taking the plea of res judicata. It is settled law that the person who sets up the plea has to establish the said plea by adducing acceptable evidence. What is required to be done to establish such a plea is to produce the copy of the pleadings in the earlier proceedings and the issues framed in the earlier suit and then the judgment. If the question involved in this suit and the issue raised in this suit has been the issue in the earlier suit and if it is heard and decided between the same parties by the Court which is competent to decide both the suits, then the said judgment would operate as res judicata. In the instant case, the defendant has not produced the pleadings in the earlier suit. The issues raised in the earlier suit is also not produced. A perusal of the judgment produced at Ex. D-1 shows that the issue whether the plaint schedule properties are joint family properties, whether there was partition as pleaded by the defendant in the year 1974 was not the issue in the earlier suit at all. Therefore the said issue was not raised and not decided. A passing reference in a maintenance suit to the effect that there was a partition and therefore the plaintiff in the said suit is not entitled to the remaining share along with the members of the family in the partition, cannot be construed as taking away a valuable right to the property of the members of the joint family, as, on that date, the first plaintiff, the widow and the second plaintiff the minor daughter, could not have claimed their right in the property, when Huchegowda was very much alive. Therefore the trial Court was justified in holding that there was no partition and the property continued to be the joint family property and therefore the plaintiffs as legal heirs of Huchegowda are entitled to their legitimate share in the said property.
Point No.: 2
Once it is held that it is the joint family property, the next question is what is the share to which each of the parties are entitled to. If Karithimmegowda died without marriage and without issues, he being a co-parcener, on his death, the remaining coparceners continue to enjoy the properties. If the case of the defendants is to be accepted that he was married to one Thimmamma. according to them, they have given the share whatever legitimately she is entitled to, from the family. If it is so, then Thimmamma has no right to the property or with the properties of other three coparceners, i.e., Marigowda, Doddamarigowda and Huchegowda. 11'' there was no partition during the lifetime of Marigowda. if we have to effect a notional partition on the date prior to the death of Marigowda, in which event, Marigowda would be entitled to 1/3rd share, Doddamarigowda would be entitled to 1/3rd share and Huchegowda would be entitled to 1/3rd share. In the share to be allotted to Marigowda. both sons and daughters along with the widow take equal share. Therefore in 1/3rd share of Marigowda. his widow will get 1/5th share, his two daughters would get 1/5th share each and two sons would be entitled to 1/5th share each. Therefore plaintiffs representing Huchegowda would be entitled to 1/3rd + 1/15th of 1/3rd i.e., 6/15th Similarly, the first defendant would be entitled to 6/15th share, defendants-2. 3 and 4 would be entitled to 1/15th share each.
Hence, We pass the following order:
Appeal is allowed in part.
The judgment and decree of the trial Court granting 1/2. share to the plaintiffs is hereby set aside. In its place, we substitute the following allotment of share:
The plaintiff would be entitled to 6/15th share. First defendant would be entitled to 6/15thshare. Defendants-2. 3 and 4 would be entitled to 1/15th share in all the suit schedule properties.
Parties to bear their own costs.