Thimmaiah K.G. and Others vs Kavitha and Others

N. Kumar, J.—Defendants 1, 6 and 7 have preferred this appeal against the judgment and decree of the trial Court which has decreed the suit of the plaintiffs granting them 1/20th share in the suit schedule properties.

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

The case of the plaintiffs is that, plaintiffs and defendant Nos. 1 to 5 constituted a joint Hindu Family. Defendant Nos. 1 to 4 are the sons of Late Shantaveerappa and Rudramma-defendant No. 5. The sixth defendant is arrayed as proforma party, no relief is sought against him, since he is not entitled to get any share in the joint family properties. The plaintiffs are the children of the first defendant Sri K.G. Thimmaiah and his legally wedded wife Smt. Vishalamma. The suit schedule properties are all undivided joint Hindu Family properties of plaintiffs and defendants 1 to 5. The first defendant who is the Manager of the joint family has totally neglected the welfare of the plaintiffs and their mother Vishalamma and he is residing with his kept mistress in the same village. In fact, the father of the plaintiffs'' mother Sri Patel Maheshwarappa who is the resident of the same village is providing maintenance to the plaintiffs and their mother Vishalamma. Plaintiffs and their mother Vishalamma are doing agricultural work in the joint family without getting any profit. The first defendant being the Kartha of the joint family is misusing the joint family funds and the same are utilized for the welfare of his kept mistress Saraswathi and her children. The first defendant is a retired teacher. He has totally neglected his social and religious obligation to maintain the plaintiffs and their mother.

In the first week of May 2002, the plaintiffs came to know that defendant No. 1 in collusion with the defendant Nos. 2 to 5 has got up the sham and colourable Jubani Partition Deed dated 20.5.2000 without the knowledge and consent of the plaintiffs. It is not binding on them. In the said partition, plaintiffs have not been allotted any shares though they are entitled to get equal share in all the suit schedule properties. In the said partition, the son of the first defendant''s kept mistress one Mr. Sashidhara was allotted equal share with the first defendant though he has no right to get share in the joint family property. The plaintiffs came to know those things from the elders of the village. Immediately, they obtained the copy of the revenue documents and it is made clear that to deceive and defraud the plaintiffs legitimate share the Jubani Partition Deed was got up. In order to avoid litigation, they approached defendant Nos. 1 to 5 to set right the injustice done to them and sought for partition and separate possession of the legitimate share. Plaintiffs are entitled to 4/25th share together in all the schedule properties. Therefore, the plaintiffs filed the suit for partition and separate possession of their 4/25th share and for a declaration that the purported Jubani Partition Deed dated 20.5.2000 is got up, illegal, sham, colourable and not binding on the plaintiffs. In the schedule, they have set out the immovable properties as ''A'' and ''B'' properties and ''C'' schedule properties are movables.

After service of summons, defendant No. 1 entered appearance and filed his written statement. He denied the existence of the joint family. He admitted that defendants 1 to 4 are the sons of Late Shantaveerappa and defendant No. 5. The 6th defendant is also a son of the first defendant and entitled for the reliefs as equal to the plaintiffs. He admitted that the plaintiffs are his children. It is denied that the schedule properties are all joint family properties and that they are in joint possession. The allegations made against him were all denied. He denied that he is living with the Kept Mistress in the same village. He denied that the maternal grandfather of the plaintiffs are maintaining the plaintiffs and their mother. He admitted that the plaintiffs and their mother are doing agricultural work, but not in joint family. They are doing the same in their separate status of family and property. He denied the allegation that he has neglected his responsibilities towards the plaintiffs and their mother. He admits that on 20.5.2000 by a memorandum of partition, defendants 1, 2, 3, 4 and 6 have effected a partition of all the joint family properties. It is not a sham document. It is genuine and lawful. It was within the knowledge of the plaintiffs. It is binding on the plaintiffs.

The defendants specifically pleaded that, on 20.5.2000 defendant Nos. 1 to 4 and 6 got divided their joint family properties by way of memorandum of partition. Thus, the status as a joint family was disrupted on that day. From 20.5.2000 no joint family or its property is in existence. Defendant No. 6 was also a member of the joint Hindu Family prior to 20.5.2000. He was managing the family prior to 20.5.2000 and on partition on that day all of them have taken their properties equally. In the course of the partition, the plaintiffs were also invited but they did not participate because the first defendant represented them in the partition dated 20.5.2000 in which all of them got equal properties. The defendant has, given out of 8 acres 32 guntas which fell to his share, 4 acres to defendant No. 6, and he has retained 4 acres 32 guntas for the plaintiffs. The said property is in the possession of the plaintiffs only. They are enjoying the properties. Item No. 1 in the ''C'' schedule is not a joint family property and the same is self acquired property of the defendant. Items 2, 3 and 4 mentioned in the ''C'' schedule are not in existence. They were also not belonging to the joint family. They are not available for partition. Defendant No. 3 is given half share in the property bearing Sy. No. 19/2 mentioned in item No. 2 of ''B'' schedule property wherein the said defendant has laid foundation in the portion fallen to him. Defendant has no objection to make over the said properties to the plaintiffs which are standing in his name. Thereafter, he has set out the properties which are purchased by him. He also contends that the property purchased in the name of plaintiff No. 2 is not included in the suit and, therefore, the suit is bad for non-inclusion of all the joint family properties. He has also set out the loans borrowed by him for the benefit of the family and for improving the family properties. He sought for dismissal of the suit.

Defendant Nos. 2 to 4 also filed written statement. They have adopted the statement of the first defendant. They have also set up the partition dated 20.5.2000 and in the said partition the first defendant was allotted 8 acres 32 guntas out of which 4 acres he has given to defendant No. 6 and the remaining stands in his name. These properties are in the possession of the plaintiffs. The memorandum of partition dated 20.5.2000 is lawful and genuine in nature. Item No. 1 in the ''C'' schedule property is not a joint family property. It is self acquired property of defendant No. 1. Accordingly, they have supported the first defendant in respect of other properties.

The 6th defendant has also filed a written statement. He contends that he is also a member of the joint family. He is the younger son of defendant No. 1. From 20.5.2000 no joint family is in existence. Defendants 1 to 4 got divided their joint family properties on 20.5.2000. He has also been allotted his share in the joint family properties. The share of the plaintiffs was allotted to the first defendant. The lands so allotted are all fertile landed properties and valuable properties. Virtually he has also reiterated what the first defendant has stated in the written statement.

On the aforesaid pleadings, the trial Court framed the following issues:--

"(1) Whether plaintiffs prove that the suit schedule properties are joint Hindu family properties of themselves and defendants?

(2) Whether the plaintiffs further prove that they are having 4/25th share in the suit schedule properties?

(3) Whether plaintiffs further prove that the jubani partition dated 20-5-2000 got up by the defendants is illegal, unconscious able, bogus, sham & colorable one and not binding upon them?

(4) Whether defendants prove that there is already partition in the suit schedule properties on 20-5-2000 and as per the said partition they have acted upon?

(5) Whether plaintiffs are entitled of their share in the suit schedule properties by metes and bounds?

(6) To what decree or order?"

Addl. Issues:

"(1) Whether suit is bad for non-joinder of necessary parties?

(2) Whether the Court Fee paid by the plaintiff is proper & correct?"

The plaintiffs in order to substantiate their claim examined Kavitha-the first plaintiff as P.W. 1. They also examined Maheshwarappa-grand father of Kavitha as PW2. They have produced 8 documents which are marked as Exs. P1 to P8. On behalf of the defendants, first defendant was examined as D.W. 1, one witness by name Basappa was examined as D.W. 2 and 6th defendant-Shashidhara was examined as D.W. 3. They also produced 16 documents which were marked as Exs. D1 to D16.

The trial Court on appreciation of the oral and documentary evidence on record held that the plaintiffs have proved that the schedule properties are joint Hindu Family properties of themselves and defendants. Plaintiffs further prove that they are having 4/25th share in the suit schedule properties. The plaintiffs have also proved that the Jubani Partition dated 20.5.2000 is got up document, illegal, unconscious able, bogus, sham and colourable and is not binding on the plaintiffs. The defendants have miserably failed to prove that there was already a partition in the family on 20.5.2000. The plaintiffs'' suit is properly valued. The suit is not bad for non-joinder of necessary parties and the Court Fee paid is sufficient. It also held that the 6th defendant is not a coparcener, not a member of the joint family and, therefore, he is not entitled to any share in the joint family properties. Therefore, it proceeded to decree the suit of the plaintiffs as prayed for.

Aggrieved by the said judgment and decree, defendants 1, 6 and 7 have preferred this Appeal. In this context it is to be remembered that defendants 2, 3 and 4 have not challenged this judgment and decree.

Learned counsel for the appellants assailing the impugned judgment and decree contended that, admittedly defendants 6 and 7 are the children of the first defendant. They are also coparceners. They are also entitled to equal share with the plaintiffs in the property of the first defendant and in the joint family. The joint family ceased to exist from 20.5.2000 with partition of all the joint family properties and, therefore, on the day the suit was filed, there was no joint family in existence. The schedule properties were not the joint family properties and, therefore, the trial Court erred in decreeing the suit of the plaintiffs.

Per contra, the learned counsel for the plaintiffs supported the impugned order.

In the light of the aforesaid facts and the rival contentions, the points that arise for our consideration in this appeal are as under:--

"(i) Whether the joint family status was disrupted on 20.5.2000 when defendants 1 to 4 and 6 effected a Jubani Partition?

(ii) Whether the 6th defendant is entitled to any share in the coparcenary property?

(iii) Whether the plaintiffs are entitled to a share in the joint family property?"

Point No. (i)

The facts are not in dispute. It is not in dispute that one Shantaveerappa is the propositus who died leaving four sons and wife Rudramma-5th defendant. All of them constituted a joint family. The suit properties were all joint family properties belonging to the family. During the lifetime of Shantaveerappa there was no partition. Therefore, on his death, his sons and his widow constituted a joint family and only enjoying the schedule properties as joint family properties. The fact that the first defendant has married Smt. Vishalamma is not in dispute. Plaintiffs are the children born to them. It is also on record that the first defendant left the family house and is living with one Smt. Saraswathi in the very same village. The plaintiffs describe her as concubine whereas the first defendant admits she is the second wife. The first defendant was the Kartha of the family till the said partition. In the said partition, out of 8 acres 32 guntas which fell to the share of the first defendant, he gave 4 acres to the 6th defendant and retained 4 acres 32 guntas for himself and the plaintiffs. Admittedly, the 5th defendant-the mother was not a party to the partition. As the memorandum of partition was not a registered document, it was not admitted in evidence. It is also an admitted fact that the plaintiffs were invited to participate in the said partition which they declined. Therefore, plaintiffs are not given any share in the family properties. When admittedly the sharers -the 5th defendant, plaintiffs, are not given share in the said partition, the said partition is in no way binding on them and it does not have the effect of putting an end to the joint family status of the family. It is well settled law that, though a partition could be oral, when once it is reduced into writing it requires registration under Section 17 of the Indian Registration Act. When admittedly the document is not registered, it is not produced, the partition is not proved. That is precisely what the trial Court held after referring to the various judgments on the point and taking note of the statutory provisions. If the case of the partition pleaded by the defendants on 20.5.2000 fails, what follows is the joint family continued to exist and the plaint schedule properties are all joint family properties. They are yet to be partitioned.

When once the relationship between the first defendant and the plaintiffs is admitted, when admittedly the first defendant has neglected to maintain his first wife and the plaintiffs, they are entitled to maintain the suit and seek for the legitimate share. In the year 2002, when the first plaintiff filed the suit being a daughter, she was entitled to a share in the coparcenary property by virtue of the Karnataka Amendment Act, 1994. However, with the amendment to the Indian Succession Act substituting new Section with the earlier Section 6, she has become a full fledged coparcener entitled to a share equal to that of the son in the coparcenary property. Therefore, the right of the plaintiffs to have share in the joint family property cannot be denied and, therefore, the trial Court rightly held that the plaintiffs have established the existence of the joint family, existence of joint family property, have proved that Jubani Partition pleaded is not binding on them, it is a sham transaction and, therefore, they are entitled to a share in all the joint family properties.

Point No. (ii)

In so far as 6th and 7th defendants are concerned, it is not in dispute that, they are the children of the first defendant through the second wife Saraswathi. They are living separately in the same village. Though the plaintiffs'' contention is Saraswathi is concubine, the first defendant''s contention is she is the second wife. In the Jubani Partition treating the 6th defendant as coparcener a share was given to the extent of 4 acres. It is an admitted fact that the first defendant stayed with Saraswathi and her children under a common roof for more than 20 years and, therefore, it is too late in the day to contend that the second wife is a concubine and not second wife. Though she is the second wife, the said marriage is void as it is hit by Section t of the Hindu Marriage Act. Because of the voidness of the marriage, Section 16 was amended conferring on the illegitimate children born to the second marriage legitimacy giving equal right to that of legitimate son of the properties in a partition. But, they have not been given the status of coparceners nor the right to file suit for partition against the father as their right arise only on the death of the father. Therefore, in a suit filed by the coparceners, the illegitimate son of one of the coparcener is not entitled to a share in the joint family or coparcenary property because he is not a coparcener. He has to work out his right only after the death of his father and, therefore, the trial Court rightly held that the 6th defendant though he is the son of the first defendant, as he is the son through second wife, he is not entitled to a share in the coparcenary property.

Point No. (iii)

Now, the question is, what is the share to which these plaintiffs are entitled to. In a notional partition among Shanthaveerappa and his four children each one gets 1/5th share. Upon the death of Shanthaveerappa, his wife Rudramma (defendant No. 5) would get 1/25th share and her sons defendants 1 to 4 would get 1/5+1/25 = 6/25 share each. The children of 1st defendant born to his 1st wife Vishalakshamma i.e., plaintiffs 1 and 2 are entitled for 1/3rd share each in 6/25th share of their father. i.e., 6/25 x 1/3 = 6/75 = 2/25 each. Therefore, the share allotted to the plaintiffs by the trial Court to that extent is erroneous and requires to be modified. Hence, we pass the following order:--

"(i) Appeal is allowed in part.

(ii) The finding of the trial Court that the schedule properties are joint family properties and joint family is in existence is affirmed.

(iii) The finding of the trial Court that the 6th defendant is not entitled to any share in the coparcenary property is affirmed.

(iv) The plaintiffs are entitled to the legitimate share in all the plaint schedule properties, their share being 2/25th each of the plaint schedule properties."

Parties to bear their own costs.