Subbamma vs Narasimhappa and Others

B.V. Nagarathna, J—The first defendant in O.S. No. 95/2004 has preferred this second appeal, assailing judgment and decree passed in R.A. No. 16/2006 dated 09.12.2010, by the Senior Civil Judge & JMFC, Chintamani, confirming the judgment and decree passed in O.S. No. 95/2004, by the Civil Judge (Jr.Dn.) & JMFC, Chintamani dated 14.12.2005.

For the sake of convenience, the parties shall be referred to, in terms of their status before the Trial Court.

The plaintiff/first respondent herein filed the suit seeking relief of partition and separate possession. He averred that he and second defendant Kadirappa were legal heirs of their father Chikka Venkatappa. That one Githira Narasappa was the common ancestor. He had three sons, namely, Kadirappa, Pedda Venkatappa and Chikka Venkatappa. All three are dead. Kadirappa had one son by name Muddalappa, he also died leaving behind his wife second defendant Subbamma. Pedda Venkatappa had no issues and he was also dead. Chikka Venkatappa had two sons namely, the plaintiff Narasimhappa and first defendant Kadirappa. According to the plaintiff, suit schedule property was undivided, ancestral joint family property. The plaintiff and defendants had their respective shares in the said property and that the plaintiff had demanded his share in suit property, but the defendants were dodging him and went on postponing the division of the property. Therefore, plaintiff was constrained to file the suit seeking his one-third share in the suit schedule property.

On receipt of the suit summons, the defendants appeared before the trial Court through their counsel. The first defendant filed her written statement denying the allegations made in the plaint. She however admitted that Githira Narasappa had three children, Kadirappa, Pedda Venkatappa and Chikka Venkatappa and that all were dead. Kadirappa had one son by name Muddalappa i.e., her husband. During the life time of Kadirappa, Pedda Venkatappa and Chikka Venkatappa had divided the joint family properties and had taken their respective shares in the properties and that the suit schedule property had fallen to the share of the first defendant. The husband of the first defendant misused the gold ornaments given at the time of her marriage. When the first defendant demanded the same, her husband had sold property bearing Kaneshumari No. 71 and put the first defendant into actual possession of the said property as per registered sale deed dated 13.03.1978 and since that date she was in possession and enjoyment of the suit schedule property. The first defendant executed a registered Will in favour of one K.G. Venkataramanappa on 8.4.2004 in respect of suit property along with other properties. According to the first defendant, the plaintiff had no right, title or interest in the said property. Therefore she sought for dismissal of the suit.

On the basis of the above pleadings, trial court framed the following issues for its consideration.

"1) Whether the plaintiff proves that the suit property is the ancestral and joint family property and the parties to this suit are in joint possession?

2) Whether the defendants prove that the suit property fell to her husband''s share in a partition held among the brothers of her husband?

3) Whether the 1st defendant further proves that her husband himself used the golden ornaments when she demanded her husband to return the gold ornaments without any alternative her husband sold the suit property in her favour under registered sale deed, dt. 13.3.1978 as contended in para 12 of her written statement?

4) Whether the 1st defendant further proves that she brought up K.G. Venkataramanappa and got up him in all aspects and executed registered will dt.8-4-2004 in his favour in respect of suit property as contended in further para 6 of the written statement?

5) Whether the plaintiff is entitle for the relief of partition?

6) What order or decree?

In support of his case, plaintiff examined himself as P.W.1 and two other witnesses, as P.W.2 and P.W.3. He produced four documents, which were marked as Ex.P.1 to Ex.P.4, while the 1st defendant examined herself as DW.1 and got examined two witnesses, as D.Ws. 2 and 3 and produced four documents, which were got marked as Ex.D1 to D4.

On the basis of the said evidence, the Trial Court answered Issue Nos. 1 and 5 in the affirmative, Issue Nos. 2 to 4 in the negative and decreed the suit of the plaintiff by directing allotment of one - third share in the suit schedule property in favour of the plaintiff and put him in separate possession of the same by metes and bounds. Direction was given to draw preliminary decree in the aforesaid terms.

Being aggrieved by the said judgment and decree of the trial Court dated 14.12.2005, first defendant filed R.A. No. 16/2006 before the First Appellate Court. During the pendency of the appeal the first defendant had filed I.A. No. 1 under Order XLI Rule 21 and 27 of Code of Civil Procedure (CPC) seeking permission to adduce additional evidence and for remand the case for recording evidence and to furnish list of documents. On hearing the parties the First Appellate Court framed following issues for its consideration:--

1) Whether the trial court is justified in holding that the suit schedule property was the ancestral and joint schedule properties of plaintiff and defendants and plaintiff has got right of 1/3rd share in the suit property?

2) Whether the Judgment and decree of the trial court warrants interference?

3) Whether the appellant has made out a ground to allow the application under Order 41 Rule 27 CPC?

4) What order?

The First Appellate Court answered point No1 in the affirmative and point No. 2 & 3 in the negative and dismissed the appeal by affirming the judgment and decree passed by the Trial Court except to the extent of modification of shares and it held that the plaintiff and second defendant are entitled to equal share in one half of the suit schedule property and first defendant is entitled to remaining half share in the suit schedule property.

Being aggrieved by said judgment and decree of the Courts below, the first defendant has preferred this second appeal.

I have heard learned counsel for the appellant, she drew my attention to the relationship between the parties. She contented that Kadirappa, Pedda Venkatappa and Chikka Venkatappa, are three brothers. During the life time of the appellant''s father-in-law that is Kadirappa, his two brothers Pedda Venkatappa and Chikka Venkatappa had taken their one-third share each out of joint family properties and were residing separately and that on the death of Kadirappa, appellant''s husband Muddalappa succeeded to the suit schedule property. That Muddalappa, husband of the appellant, had executed a sale deed in favour of appellant on 13.3.1978. Since then the appellant was absolute owner and in possession of suit schedule property and that the respondents have no right, title and interest in the said property. The appellant in turn had executed a registered Will in favour of K.G. Venkatramanappa on 08.04.2004. Learned counsel for appellant contented that there being a prior partition in the joint family, the first respondent could not have sought for another partition in the suit schedule property. She further contended that both courts below have not considered the evidence of the appellant in its proper perspective and had misconstrued evidence of the respondent and thereby erroneously re-partitioned the suit schedule property. She further contended that when the suit schedule property was sold by the appellant''s husband in favour of the appellant on 13.03.1978 she was the absolute owner and in possession of that property and therefore the respondents could not have sought partition in the same. Therefore she submitted that substantial questions of law would arise in the appeal and in order to consider those substantial questions of law on merits, appeal may be admitted for a detailed hearing.

I have considered the submissions of the learned counsel for appellant/first defendant and perused the material on record.

From the record, it is noted that the relationship between the parties is not in dispute. Githira Narasappa, father of Kadirappa, Pedda Venkatappa and Chikka Venkatappa and the aforesaid three brothers are dead. Even according to the appellant, during the life time of Kadirappa there was a partition of the suit schedule property as well as other properties between appellant''s husband Kadirappa, Pedda Venkatappa and Chikka Venkatappa who had taken each one-third shares in the Joint family properties and that the suit schedule property had fallen to the share of the father-in-law Kadirappa and other properties were divided between the brothers of Kadirappa. That on demise of Kadirappa suit schedule property was inherited by her husband, Muddalappa. It is the case of the appellant that her husband had sold property to her by a registered sale deed dated 13.03.1978 and she being the owner and in possession of suit schedule property had executed registered Will in favour of K.G. Venkataramanappa on 08.04.2004 and it is the contention of the appellant that respondent cannot seek division of the said property once again.

It is noted from the judgments of the courts below that the appellant had not been able to prove that there was prior partition in the joint family during the life time of her father -in-law and nor that her husband had a right of alienation of property to her under registered sale deed dated 13.03.1978. Appellant''s case that the suit schedule property, having fallen to the share of her father-in-law Kadirappa, on his demise was inherited by her husband, Maddalappa and he in turn had executed sale deed in her favour and from that date she was absolute owner and in possession and enjoyment of the property were not proved by any documentary evidence. Before trial court she has not produced the registered sale deed dated 13.03.1978 or the registered Will said to have been executed by her in favour of one K.G. Venkataramanappa on 08.04.2004. The trial Court on considering the oral evidence of respective parties and in the absence of any documentary evidence having been produced in respect of sale deed dated 13.03.1978 and registered Will dated 08.04.2004 held that the suit schedule property was the joint family property of the parties and that no prior partition between Kadirappa, Pedda Venkatappa and Chikka Venkatappa had taken place.

Having noted the fact that sale deed dated 13.03.1978 and the registered Will dated 8.4.2004 were not produced before the trial Court before the First Appellate Court, the appellant filed an application under Order XLI Rule 27 of CPC to produce additional evidence so as to seek recording of fresh evidence on the documents. It is noted from the judgment of the First Appellate Court that while filing the said application, documents were not produced along with the application and it was submitted that list of documents would be given on remand of the matter. In the absence of documents, more particularly registered sale deed dated 13.03.1978 and registered Will dated 8.4.2004 executed in favour of K.G. Venkataramanappa, the First Appellate Court rightly rejected the said application for additional evidence. Unless the additional evidence was on record of the First Appellate Court it could not have remanded the matter merely at the request of the appellant for the purpose of recording further evidence.

Therefore, the First Appellate Court proceeded on the evidence on record and taking into consideration the fact that Pedda Venkatappa had died issueless and that his share had to be divided equally between the branches of his two brothers, namely Kadirappa''s branch and Chikka Venkatappa''s branch. It accordingly in turn divided half share between two branches of Chikka Venkatappa i.e., Narasimhappa & Kadirappa resulting in appellant being legal heir of Kadirappa and Muddalappa being given other half share in the said property and two sons of Chikka Venkatappa namely the plaintiff and second defendant being given half share together. Therefore, the First Appellate Court rightly modified the shares that had been allotted by the Trial Court.

Considering the Judgments of the Courts below in the light of the submission of the learned counsel for appellant, I do not find any good reason to interfere with the said judgments. No substantial question of law arises in this appeal. Appeal is dismissed.

In view of the dismissal of the appeal, I.A. No. 2/12 does also not survive for consideration and stands dismissed.