T. Girija vs B. Boraiah and Others

N. Kumar, J—This is a plaintiffs appeal challenging the Judgment and Decree of the trial Court which has dismissed the suit of the plaintiff for partition and separate possession.

For the purpose of convenience, parties are referred to as they are referred to in the original suit.

The subject matter of the suit is, agricultural lands situated at Kambadahalli Village, Basaralu Hobli, Mandya Taluk, Mandya District and the residential property at Bengaluru which are more particularly described in the schedules to the plaint as Item Nos. 1, 2 and 3 of Schedule-A and 1, 2, 3, 4, 5, 6 and 7 of Schedule-B property which are movable properties.

The first defendant B. Boraiah married one Smt. Chikkamma. They had two sons namely B. Gopalakrishna and B. Ramachandra Gowda. Both sons pre-deceased the first defendant. Plaintiff is the widow of first son B. Gopalakrishna. Defendant No. 2 is the wife of second son B. Ramachandra and defendant Nos. 3 and 4 are their children. Smt. Chikkamma, the wife of first defendant expired on 1.2.1989. The husband of plaintiff died on 28.7.2010 leaving being the plaintiff as sole legal heir. The second son of first defendant B. Ramachandra died on 10.1.2007 leaving behind defendant Nos. 2 to 4 as his legal heirs. Both sons of first defendant were Group-D employees of Hon''ble High Court of Karnataka. The plaintiffs husband and second defendant''s husband and the first defendant all constitute undivided Hindu Joint family members. The property described in Schedule-A are the ancestral joint family properties. B-Schedule properties are money and the assets of the joint family of husband of the plaintiff and defendants. The plaintiffs husband improved the ancestral joint family properties and looked after the welfare and benefit of the joint family members out of his contribution. He sold a site purchased by him at Judicial Layout for the benefit of the joint family. He also raised loan from the Judicial Department Multipurpose Co-operative Society and other financial Institutions for the benefit of the family. After the death of husband of the plaintiff, she was appointed in the Hon''ble High Court of Karnataka. The first defendant used to take her salary. First defendant started mismanaging the joint family affairs and misused the money and became hostile to the interest and welfare of the plaintiff. When the plaintiff refused to pay her salary to the first defendant, he made galata against the plaintiff and thrown her out of the house mercilessly. In this connection, a police complaint was also lodged.

Schedule-A and B properties are the ancestral and joint family properties of the plaintiff and the defendants. Both are in joint possession of the same. Plaintiff demanded her husband''s legitimate share in the suit schedule properties and issued legal notice to the first defendant. The first defendant sent evasive reply denying the right of the plaintiff in the suit properties. Therefore, she filed suit for partition and separate possession of her legitimate share in the plaint schedule properties.

After service of summons, the defendants appeared through counsel and the first defendant filed his written statement denying the entire case of the plaintiff. However, he admitted the relationship. He contended he migrated from his village to Bangalore in the year 1944. He worked as Attender in Central College since 1944 upto his retirement in March 1989. Till this day, he is receiving pension. The first defendant never lived in joint family along with his brothers and sisters. He has been living in Bangalore ever since 1940 along with his wife and children. Out of his salary, he has maintained his family. He never took any help either from his brothers, father nor any of his ancestors contributed any amount to run the household comprising of his wife and children. After demise of his wife and both the sons, the first defendant is living at the address shown in the cause-title on his own. The plaintiff is not living with the first defendant inspite of the fact that he is aged about 85 years and feeble and requires somebody to take care of him. The plaintiff is aware of the fact that due to his advanced age and deteriorating health, she did not help the first defendant though he is suffering from old age ailments. Suit schedule item No. 2 of ''A'' schedule property was purchased by the first defendant out of his salary under registered sale deed dated 16.6.1971. The entire sale consideration has been paid out of his self earnings. None of the members has contributed anything towards consideration of the properties. Therefore, it is his self acquired property. Suit Schedule item No. 3 of ''A'' schedule is purchased by the first defendant in the name of his wife Chikkamma under registered sale deed dated 25.11.1987 for a total consideration of Rs. 48,000/-. The said consideration is also paid out of his self earnings and nobody has paid any contribution, including husband of the plaintiff and husband of second defendant. After the demise of his wife, khata is made out in his name. The first defendant constructed the house and improved the property without anybody''s help. The properties were never the joint family properties. Even ''B'' schedule properties i.e. suit schedule item Nos. 2 to 7 exclusively belong to the first defendant and his wife. Suit schedule item No. 1 of ''B'' schedule i.e. Life Insurance amount of husband of the plaintiff has been received by her by way of cheque. When the dispute arose between the plaintiff and the first defendant during the year 2011, the first defendant executed two registered Wills dated 19.2.2011 in respect of all his properties revoking the earlier Will dated 21.9.2007. On 21.9.2007 after demise of Ramachandra Gowda, second son of the first defendant, the first defendant executed the Will bequeathing all his immovable properties in favour of his son and grand children which was duly registered. According to the recitals of the Will, after the death of the first defendant, suit item No. 2 of A schedule property shall go in favour of husband of the plaintiff Sri B. Gopalakrishna who is the eldest son of the first defendant who was alive at that point of time. In the said Will there was a specific clause that if the plaintiff or her husband die issueless, they would enjoy only life interest in the said property and after their demise, the property should vest absolutely with defendant Nos. 3 and 4 who are the children of the second defendant and her husband late Ramachandre Gowda. Item No. 3 of ''A'' schedule property is bequeathed absolutely in favour of defendant Nos. 3 and 4 being the children of second son of the first defendant. Husband of the plaintiff died on 28.7.2010 issueless. Thereafter, earlier Will was cancelled and the Will dated 19.2.2011 was executed by the first defendant modifying the contents of the said Will that the plaintiff shall enjoy suit schedule item No. 2 of ''A'' schedule during her life time and thereafter the property shall vest with defendant Nos. 3 and 4 absolutely. Dissatisfied with this, the plaintiff is creating all the problems and quarreling with the first defendant. She lodged a complaint as she wants the property absolutely in her favour. This defendant strongly contended that the suit schedule properties are not the ancestral joint family properties of the parties. It is the absolute property of the first defendant. It is his self acquired property. Therefore, the first defendant denied each and every line in the plaint. The suit is not maintainable and hence, sought for dismissal of the suit.

Defendant Nos. 2 and 4 have not filed any statement.

On the basis of pleadings, the trial Court framed the following issues:

"1. Whether the plaintiff proves that she herself and defendant Nos. 2 to 4 are the members of Hindu joint family and the first defendant is Karta of joint family?

Whether the plaintiff further proves that the suit schedule properties are their joint family properties and all are in joint possession of the same.?

Whether the plaintiff proves the existence of item No. 6 and 7 of ''B'' schedule?

Whether the court fee paid is sufficient?

Whether the suit is bad for non joinder of parties?

Whether the first defendant proves that suit item Nos. 2 and 3 of ''A'' Schedule and suit item No. 2 to 5 of B schedule are his self acquired properties?

Whether the first defendant proves that item No. 1 of ''B'' schedule is received by the plaintiff herself?

Whether the plaintiff is entitled for the relief claimed in the suit?

What decree or order?"

Plaintiff, in order to substantiate her case, she got examined herself as P.W. 1 and got marked Ex. P1 to P13. On behalf of defendants, they did not lead any oral or documentary evidence.

The trial Court, on appreciation of the aforesaid oral and documentary evidence on record held, the plaintiff has failed to prove that she and defendant Nos. 2 to 4 are the members of joint Hindu family and the first defendant is Kartha of the joint family, further she has failed to prove that the schedule properties are joint family properties and are joint possession of the same. She has also failed to prove that item Nos. 6 and 7 are in existence.

The first defendant has proved that suit item Nos. 2 and 3 of ''A'' schedule properties and item Nos. 2 to 5 of ''B'' schedule properties are his self acquired properties. It has also held that first defendant has proved that item No. 1 of ''B'' schedule properties is received by the plaintiff herself and therefore, it had dismissed the suit of the plaintiff.

Aggrieved by the said Judgment and Decree of the trial Court, the plaintiff is before this Court.

Learned counsel for the plaintiff assailing the impugned Judgment and Decree contended, when the relationship between the parties is not disputed, when the plaintiff has produced the documents which are marked as Ex. P1 to P13 and that she has not been cross-examined by the defendants coupled with the fact that none of the defendants entered the witness box, the Court below committed a serious error in dis-believing her case and held first defendant has proved his case. Similarly, the entire defence of the first defendant is based on the alleged Will said to have been executed during his lifetime. Court below acting on the said averments in the Will and the written statement, has come to the conclusion that joint family is not established, schedule properties are not joint family properties, Schedule ''A'' properties are all self acquired properties and has dismissed the suit. The said Judgment and Decree of the trial Court is not based on legal evidence and therefore, it requires to be set aside.

Per contra, learned counsel appearing for the defendants submitted, plaintiff has not produced any evidence to show that they are joint family properties. Admittedly, the sale deed in respect of item No. 2 stands in the name of first defendant. Item No. 3 stands in the name of his wife. Moreover, on the day when the suit was being contested, the first defendant was very much alive and the first defendant has made Will in respect of schedule properties. He died immediately after the Judgment. Therefore, the defendants proving the Will during the enquiry did not arise. The executant was very much alive. In those circumstance, even if the findings of the trial Court were to be set aside by virtue of Will, defendants have become owners of the properties and therefore, she submits, the subsequent event has to be taken note of by passing an order in this appeal.

From the aforesaid facts and rival contentions, the point that arises for our consideration is,

"Whether the appellant has made out a case for interference with the findings recorded by the trial Court?"

The material on record discloses, first defendant was the Kartha of the family. He had two sons. First plaintiff is the wife of first son. Second defendant is the wife of second son and defendant Nos. 3 and 4 are the children of second defendant. All of them constitute a joint family. Finding of the trial Court that there was no joint family existed is based on admitted evidence on record. Even if the case of the first defendant is to be believed, he acquired the title to second item of schedule property under the sale deed on 16.6.1971, item No. 3 was purchased in the name of Chikkamma on 25.11.1987. In so far as first item of �A'' schedule properties they are all agricultural lands situated in the native place. P.W. 1 plaintiff has deposed that they are all joint family properties and are joint family agricultural lands which is not disputed. First defendant is not contending that item No. 1 of ''A'' schedule property is his self acquired property. Under those circumstances, finding recorded by the trial Court that plaintiff has failed to prove that none of the properties are joint family properties is ex-facie illegal and requires to be set aside.

In so far as purchase of item Nos. 2 and 3 in the name of first defendant''s wife is concerned, when Kartha sets up a plea that it is his self-acquired property, the entire burden of proving the said case rests on him to prove whether the purchase of the property is out of his separate funds. Though normally a person who contends that a property which is standing in the name of a member of the family as a joint family property, he has to further establish the existence of joint family nucleus and utilization of nucleus in purchasing such property. That rule has no application when the property is purchased in the name of Kartha. It is the Kartha who has to establish that it is acquired out of his own funds. First defendant has not stepped into the witness box. Further he has put forth defence that item No. 3 is purchased by him in the name of his wife. Again burden of proving lies on the defendants whether it is purchased in the name of his wife for herself or for the joint funds whose name is also on the first defendant. Since first defendant has not stepped into the witness box, he has not established these facts. The Court below is carried away by the averments made in the written statement and the Will which is not proved. Therefore, the findings are not supported by the evidence. But, now the first defendant is no more. His Will comes into effect. The propounder of the Will only establishes due execution of the Will in her favour, then no one can deny her right in those properties. It is quite understandable that no evidence could have been adduced if executant was alive. Now that executant is dead, opportunity should be given to the defendants who are beneficiaries of the Will to prove the genuineness of the Will.

In those circumstances, the proper course would be to set aside the said Judgment and Decree of the trial Court and remand the matter back to the trial Court so that both parties will apply their mind, put-forth their proper pleadings, lead evidence in respect of those issues so that the trial Court can keep in mind the observation made in this Judgment and dispose of the matter on merits after considering the evidence on record and pass appropriate orders. That would meet the ends of justice. In that view of the matter, we pass the following order:

"(a) The appeal is allowed.

(b) Judgment and Decree of the trial Court is hereby set aside.

(c) Entire matter is remitted back to the trial Court for fresh consideration on merits and in accordance with law.

(d) The parties are permitted to amend the pleadings in view of subsequent events and thereafter the trial Court shall frame any additional issue if required and then proceed with the trial of the case on merits and in accordance with law. Both the parties shall appear before the trial Court on 03.08.2015 without waiting for any summons or notice from the Court."