V. Muniraj., Since dead by Legal representatives (Smt. Lakshmamma and Others) and M. Nagaraj vs V. Venkataramanappa, Since dead by his Legal representatives and Others

Anand Byrareddy

Heard the learned counsel for the appellants. The respondents are served with notice of the appeal, but have remained unrepresented. The appellant, now represented by his legal representatives, was the plaintiff before the trial court. It was the case of the plaintiff that he and defendants no. 2 to 4 were the sons of defendant no. 1. The plaintiff and defendant no. 4 were said to be the sons of defendant no, I, through his first wife. Munilaksmamma. Defendants no. 2 and 3 were born through the second wife of defendant no. 1, Jayamma.

The plaintiff claimed that the parties constituted a Hindu joint family and it owned ancestral landed properties at Kaudenahalli. There was also a house and vacant site at Yerayanapalya, a hamlet of Kaudenahalli.

It is stated that there was a partition between the grandfather of the plaintiff, his father and his two uncles, namely, Kurulappa and Narayanappa. At the partition, land bearing survey no. 122/2 was divided into three shares. The plaintiffs father, (Defendant no. 1) was allotted 1 acre 19 1/2 gunants, which is more fully described in the plaint schedule, item no. 1. And one other item of land in Survey no. 123/1 being garden land had. also been allotted, subject to a life interest in the same in favor of the grandfather of the plaintiff. It is the plaintiffs case that his grandfather had subsequently died and hence both the above items of property are in the joint possession of the plaintiff and the defendants. Apart from the lauds, the house and vacant site more fully described in Schedule-B. It is stated that the first defendant and his second wife along with defendants - two and three and daughters live in that house. The plaintiff alleges that the first defendant has turned hostile towards him and defendant no. 4 at the instigation of the second wife, has deprived them of any benefit from the family properties. Inspire of repeated demands for an amicable settlement - the first defendant having negated the same, the suit for partition was filed, claiming one-fifth share in the suit properties.

Defendants 1 to 3 had contested the suit. In their written statement, it was contended that the suit was bad for non-jointer of parties, as all the members of the family were not mentioned in the plaint. Though it was admitted that the plaintiff and the fourth defendant were the sons of the first defendant, born through the first wife Munilakshmamma, she had deserted the first defendant when she was pregnant with the plaintiff and had gone away to her native village, at Andhra Pradesh. She had again returned at the instance of the first defendant only to desert him yet again when she was pregnant with the fourth defendant. She had then faded to return to the matrimonial home and thus the plaintiff and the fourth defendant had no contact with the first defendant and his new family, which he had started by taking. Jayamma as his second wife and through whom, he had defendants 2 and 3 and two daughters.

It was denied that the suit properties comprised joint family properties or that the same were available for partition. It was contended that suit item no. 1. of ''A'' Schedule was alienated in favor of one Bidappa, under a sale deed dated 28.12.1971, for family necessity. Insofar as item no. 2 of ''A'' Schedule and Item no. 1 of ''B'' Schedule was concerned, it was contended that the same had been allotted absolutely to the father of the first defendant and he had bequeathed the same in favor of defendants 2 and 3 under a registered will Insofar as item no. 2 of ''B'' Schedule was concerned, the same had been acquired by Defendant no. 1 from out of his own Winds and loan obtained from his employer. M/s Indian Telephone Industries. It had been subsequently sold to one Srinivasamurthy, who was said to be in possession of the same. It was denied that there were any movables available for partition.

The sixth defendant had also filed his written statement to contend that he was a bona fide purchaser of one of the items of the suit property from Siddappa, who in turn, is said to have purchased the same from the first defendant, in the year 1984 and it was claimed that most of it had been sold in smaller parcels to other third-parties. It was thus contended that the suit was a mischievous claim over the said property.

On the basis of the above pleadings, the court below had ramed the following issues :-

Whether the plaintiffs prove that the suit properties are joint family properties in the possession of the defendants?

Whether the plaintiffs are entitled 1/5th share in each of the suit schedule properties?

Whether the plaintiffs are entitle partition of 1/5th share in the suit properties?

Whether the defendants prove that the suit properties in. Schedule ''A'' and ''B'' is no more in the possession of the joint family?

To what relief the plaintiffs are entitled?

Additional Issues:

Whether defendants 1 to 3 and 6 prove that the property at item-1 of A schedule was sold by first defendant for legal necessity?

Whether defendants 1 to 3 prove that late Badige Venkatappa had executed a registered Will dated 4.6.1971 bequeathing the property at item-2 of A-Schedule in favor of the minor sons of the first defendant?

The court below had held that the plaintiff and the defendants were not in joint possession of the suit properties, but were entitled to a share in suit item no. 2 of Schedule - A and suit item no. 1 of Schedule - B and that the plaintiffs legal representatives were entitled to one-third share thereof. It is that which is under challenge by the plaintiffs.

The learned counsel for the appellants would contend that the plaintiffs are entitled to a share in all the suit items when a. was admitted that the first item of the A schedule property was joint family property and the second item of ''B'' Schedule property has been acquired when the family remained joint. The joint possession being equated to joint physical possession of the suit, property by the court below has led to an incorrect interpretation of the right of the plaintiffs to the properties. This was so when the defendants had not pleaded ouster of the plaintiffs, it is contended that the court below had failed to take into account the fact that item no. 1 of ''A'' Schedule property had remained in the name of the grandfather of the plaintiff, long after the suit was filed and it is only later that it had been engineered to reflect the name of Siddappa to whom the property i.s said to have been sold. While emphasizing the above contentions, the learned counsel has taken this court through the record at length. It is not in dispute that suit item no. 1 of ''A'' Schedule is shown to have been alienated in favor of one Siddappa, by Defendant no. 1 in the year 1971. for legal necessity. Siddappa in turn had alienated the same in the year 1984 in favor of Defendant no. 6 and it has been sold to other defendants in parcels. It is for such purchaser to establish that there was indeed a legal necessity of the family, which alone would enable the defendant no. 1 to sustain his defense. But the circumstance that Siddappa was not made a party to the suit during his life time and even his legal representatives not having been made parties after his death the said question whether the said item of property was indeed sold for a legal necessity re mains incapable of being addressed as rightly held by the trial court.

Further insofar as the claim in respect of item no. 2 of the Suit ''B'' schedule property is concerned - in the absence of material evidence pertaining to the same and in the face of the admitted circumstance that it had been acquired by Defendant no. 1 and had been sold thereafter to one Srinivasamurthy. The burden was on the plaintiffs to establish that it had beer, acquired by Defendant no. 1 out of joint family funds. This was not established. On the other hand it was not denied that the said defendant was employed with M/s Indian Telephone Industries and had raised a loan with the said employer and therefore, had an independent source of income to have acquired the property. Hence, the reasoning of the court below in rejecting the claim of the plaintiffs to the said item of property cannot be faulted.

There is hence no merit in this appeal and the same is dismissed.