Sri M.V. Krishna Murthy and Others vs Sri M.S. Chethana

K.L. Manjunath, J.—The appellants who were defendants 1 to 7 in O.S. No. 53/99 on the file of Civil Judge (Sr.Dn.) & Prl. JMFC Tarikere, have filed this appeal, being aggrieved by the judgment and decree passed on 22.01.2008 in O.S. No. 53/1999. The suit was instituted by the respondent-plaintiff claiming partition and separate possession in all the suit properties. The facts leading to this appeal are hereunder: One Venkataramanaiah and Venkamma had three sons by name Shankar, Krishnamurthy and Sadananda and five daughters by name Shantamma, Kalyani, Saroja, Jayasheelamma and Anasuyamma. The plaintiff is the only son of Shankar. After the death of M.V. Shankar, plaintiff filed the suit claiming partition and separate possession in all the plaint schedule property on the ground that either during the lifetime of Venkataramanaiah or during the lifetime of M.V. Shankar, there was no partition.

The defendants contested the suit. According to them, there is an oral partition between Shankar and his two brothers who are appellants 1 and 2 and that panchayat was convened immediately after the death of Shankar. According to them, the plaintiff was required to give the accounts to the family and therefore, it was contended by them that the suit filed was not maintainable.

It was also contended that the plaintiff has not included certain movable properties i.e., the rents collected by the plaintiff from Karnataka Bank, Melpal Branch and other investment made in the name of late Shankar in Fixed Deposit, so also the shares purchased by Shankar out of the joint family income.

Based on the above pleadings, the following issues were framed by the Trial Court:

1) Whether the plaintiff proves that the plaint schedule properties are the joint family properties and plaintiff and defendants are the members'' of the Hindu undivided family as contended?

2) Whether plaintiff further proves plaintiff himself, defendants 1, 2 and 7 are entitled for 8/35th share each in the plaint schedule properties and further proved that defendants 3 to 6 are entitled for 1/35th share each in the plaint schedule properties?

3) Whether plaintiff further proves that he is entitled for partition and separate possession of 8/35th share in all the plaint schedule properties by metes and bounds as prayed in the plaint?

4) Whether the defendants 1, 2, 6 and 7 prove that the schedule given in the plaint schedule is incomplete and lot of family properties are left out as contended in para-2 of the written statement?

5) Whether the defendants 1, 2, 6 and 7 further prove that the plaintiff and defendants ceases to be the members of the joint family after the partition through panchayat and the plaint schedule properties are no longer the joint family properties as per the palu patti dt. 2-1-1999?

6) Whether the defendants 1, 2, 6 and 7 further prove that since the status of the joint family no more exists the question of again partitioning the schedule properties does not arise as contended in para 11 of the written statement?

7) Whether the defendants 1, 2, 6 and 7 further prove that the suit is bad for non-joinder of necessary parties?

8) Whether the defendants 1, 2, 6 and 7 further prove that the plaintiff is liable to render accounts for the past profits prior to 1997-98 to give legitimate share of the defendants as contended in para 5 of the written statement?

9) What order or decree?

To prove their respective contentions, the plaintiff got examined himself as PW1 and he relied upon Exs P1 to 23. On behalf of appellants-defendants, second appellant-Sadananda was examined as DW1 and seventh defendant-Anasuya, was examined as DW3. Sixth defendant-Jayasheela, was examined as DW5. In addition to that, two witnesses by name Manjappa and H.V. Chandrashekhara were examined as DWs2. and 4 and they also relied upon Exs. D1 to D71. The Trial Court after appreciating the evidence let in by the parties held issues 1 to 3 in the affirmative and issues 4 to 8 in the negative and ultimately, decreed the suit holding that the plaintiff is entitled to 8/35th share.

Aggrieved by the judgment and decree of the Trial Court, the present appeal is filed on the ground that the share allotted to him is not in accordance with the Hindu Succession Act and that the Trial Court also committed an error in holding issue No. 4 in the negative and further failed to consider the case of the appellants in respect of the share claimed by them in movables like fixed deposits, shares purchased in the name of Shankar in Karnataka Bank.

We have heard the learned counsel appearing for the parties.

At the outset, the learned counsel appearing for the parties Mr. N. Shankarnarayana Bhat, and Mr. M.R. Narayan, submit that the allotment of share by the Trial Court is incorrect and in view of the death of Venkataramanaiah, inter se, all his eight children are entitled to 1/8th share, that the plaintiff being the son of Shankar is entitled to succeed to his father''s estate and therefore, the plaintiff is entitled to 1/8th share and that the allotment of share by the Trial Court holding that the plaintiff is entitled to 8/35th share is erroneous and liable to be modified.

In view of the fair submissions of the learned counsel appearing for the parties, the share allotted by the Trial Court has to be modified holding that the plaintiff and each of the defendants are entitled to 1/8th share. Then the only question left for our consideration is:

Whether the finding on issue No. 4 by the Trial Court in respect of the movables claimed by the plaintiff and the defendants-appellants is proper or not?

The main contention of the appellants is that, after the death of Shankar, the plaintiff has to furnish the accounts in respect of the income received by him from out of the joint family properties, since he was managing the family. So far as this point is concerned, in the written statement, the defendants were required to pray for past mesne profits by paying the Court fee.

When there is no pleading and prayer and when there is no issue in regard to the past mesne profits from the date of death of Shankar and when there is no demand to give accounts in respect of the joint family property prior to the institution of the suit, the same cannot be considered by the Court. Therefore, we cannot find fault with the findings of the Trial Court in respect of the accounts from the date of death of Shankar till the date of filing of the suit.

Then the questions would be whether the appellants are entitled to claim share in respect of fixed deposit and the shares of Karnataka Bank standing in the name of Shankar.

So far as these two points are concerned, admittedly no positive evidence is placed by the appellants to show that shares were purchased by Shankar out of joint family income. Merely because the defendants have produced a certificate issued by Karnataka Bank that it has allotted 3100 shares to the deceased Shankar, same cannot be a ground for the appellants herein to claim a share. Even otherwise, appellants herein have not filed any counter claim by paying the Court fee before the Court below and there is no issue to that effect.

In the circumstances, we are of the opinion, if the Trial Court has held issue No. 4 in the negative, this Court cannot reverse the findings of the Trial Court without there being any proper pleading and prayer seeking for counter claim. Accordingly, we answer the same. In the result, the appeal is allowed in part. The judgment and decree passed by Civil Judge (Sr.Dn.) Tarikere, in O.S. No. 53/1999 dated 22.01.2008 is hereby modified holding that the appellants and'' respondent are entitled to 1/8th share each in all the plaint schedule properties.

Parties to bear their own costs.