Vasanti and Others vs Manish and Others

B. Veerappa, J.—This appeal is filed by the defendants 1, 4 and 5 against the judgment and decree dated 02.11.2010 made in R.A. No. 54/2005 on the file of the Principal Civil Judge (Sr.Dn.), Karwar, confirming the judgment and decree dated 30.11.2005 made in O.S. No. 80/1995 on the file of the Civil Judge Qr.Dn.), Karwar, decreeing the suit of the plaintiffs declaring that plaintiffs 1 to 3 together defendant No. 1 and defendants 4 to 6 are having 1/5th share in the suit schedule properties and the land bearing Sy. No. 30/5 of Makheri village shall be allotted to the share of defendant No. 4 and in the remaining suit lands, the plaintiffs 1 to 3 together and defendant No. 1 can include 1/5th share of defendant No. 4.

The respondents 1 to 3, who are the plaintiffs in the trial court filed O.S. No. 80/1995 for partition and declaration and consequential relief of injunction, against the present appellants and others, contending that the 1st plaintiff is the legally wedded wife of late Manohar Bandekar and plaintiffs 2 and 3 are the sons of plaintiff No. 1 and late Manohar Bandekar. The husband of 1st plaintiff-Manohar Bandekar is the son of 1st defendant and brother of 2nd defendant. The husband of 1st plaintiff died on 27.11.1994 and thereafter, the plaintiffs are residing separately in the portion of the joint family house, which is an ancestral property. The suit schedule properties at Sl. Nos. 1 to 4 in ''A'' schedule are the ancestral properties and the lands were the tenanted in the name of father-in-law of plaintiff No. 1-Ganesh Bandekar, who was cultivating the said lands and he expired on 06.09.1974. The suit properties are mutated in the name of defendant No. 1 and the name of defendant No. 1 was entered in the record of rights of the suit lands as the undivided family manager. The 1st defendant filed Form No. 7 before the Land Tribunal in her capacity as the undivided family manager for and on behalf of the joint family. Accordingly, the Land Tribunal granted occupancy rights. She was declared as tenant and issued Form No. 10 and also contended that there is a joint family house in the suit land.

The plaintiffs further contended that the suit schedule item Nos. 3 and 4 properties are the ancestral properties, which were held by late Ganesh Bandekar and on his death, the said properties were entered in the name of 1st defendant and there is no partition in respect of suit schedule properties and therefore, the plaintiffs are entitled to equal share in the joint family properties and suppressing the material true facts, with an intention to sell the properties and cheat the plaintiffs, defendant No. 1 had made preparations to sell the land, standing trees, etc. Therefore, the plaintiffs were constrained to issue legal notice on 31.07.1995, which was duly served on the defendants and they have not replied to the said notice, etc.

The defendants filed written statement and admitted the relationship with the plaintiffs, but denied that the plaintiffs and defendants belong to a joint family. The suit of the plaintiffs for partition and not for general partition. All the properties are not brought into common hotch-potch nor all the members of the alleged joint family are made as parties to the suit, and further contended that the late husband of plaintiff No. 1, after his marriage was residing separately by taking his share from the mother/defendant No. 1 on oral arrangement. Hence, plaintiff No. 1 cannot seek any remedy as against the defendants 1 and 2 and if they are to seek any partition, they are bound to implead other members of the family, namely the daughters of defendant No. 1 and further contended that it is admitted that the suit properties were the tenanted lands prior to 1974 and defendant No. 1 applied to the Land Tribunal for grant of occupancy rights and hence, claimed that all the properties are not joint family properties, but, the same belong to defendant No. 1, who was managing and cultivating the same with the help of defendant No. 2/her son. Further, it is contended that they are not the joint family members as on the date of the suit. It is also specifically contended that Sy. No. 30 of Makheri was allotted to the share of late husband of 1st plaintiff, after his marriage with plaintiff No. 1 in the year 1986 with the portion of the family house in the oral partition and got separated. Therefore, the plaintiffs are not entitled to any share in the joint family properties. Some of the defendants supported the case of the plaintiffs, etc. Hence, he has sought for dismissal of the suit.

Based on the pleadings, the trial court framed the following issues and additional issues:

"(i) Whether the plaintiffs prove that the suit lands are the ancestral and joint family lands?

(ii) Whether the plaintiffs prove that they have got 1/3rd share in the suit properties?

(iii) Whether the plaintiffs prove that the defendants 1 and 2 are attempting to alienate the suit properties without necessity?

(iv) Whether the suit is bad for non-joinder of necessary parties?

(v) Whether the defendants prove that the deceased Manohar Bandekar had taken his share and was residing separately?

(vi) Whether the defendants prove that in 1986, there was oral partition and Sy. No. 30/5 of Makheri village was allotted to the share of Manohar Bandekar?

(vii) Whether the suit is not properly valued and the Court fee paid on is not proper?

(viii) Whether the plaintiffs are entitled to the reliefs as sought for?

(ix) To what reliefs the parties are entitled to?

(x) What order or relief?

Additional issues framed on 17.08.2000

Whether the defendant 1 proves that the suit schedule properties are the self-acquired of herself as averred in para 2 of additional W.S.?

Whether defendant 1 proves that Sy. No. 30/5 of Makheri was sold to Sri. Ramesh Bandekar of Shirwad by way of registered sale deed, dated 01.01.2000 and said Ramesh is the exclusive owner and in possession of the same?

Whether this Court has got pecuniary jurisdiction to try the suit?

Additional issues framed on 16.07.2002

Whether defendants 4 and 5 prove that suit schedule properties are the self-acquired properties of their father?

Whether the defendants 4 and 5 are entitled for partition and separate possession, if so what is their share and in which of the properties?"

In order to establish their case, the 1st plaintiff examined as PW-1 and got marked the documents Exs. P-1 to 18. On the other hand, defendant No. 1 examined as DW-1, but no documents were got marked.

After considering the entire material on record, the trial court recorded a finding that the plaintiffs have not proved that the suit schedule properties are ancestral joint family properties. The plaintiffs have proved that they have got 1/3rd share in the suit properties. Further, plaintiffs proved that defendants 1 and 2 are attempting to alienate the suit properties without necessity and the defendants failed to prove that the deceased Manohar Bandekar had taken his share and was residing separately and the defendants prove that in 1986, there was oral partition and Sy. No. 30/5 of Makheri village was allotted to the share of Manohar Bandekar and the suit is properly valued and the plaintiffs are entitled to the share and also answered the additional issues holding that the 1st defendant failed to prove that the suit schedule properties are the self-acquired of herself as averred in para 2 of additional written statement and further, the 1st defendant proved that Sy. No. 30/5 of Makheri was sold to Sri. Ramesh Bandekar of Shirwad by way of registered sale deed, dated 01.01.2000 and said Ramesh is the exclusive owner and in possession of the same. Accordingly, the suit was decreed, declaring that the plaintiffs 1 to 3 together 1st defendant and defendants 4 to 6 are having 1/5th each share in the suit schedule properties and the land bearing Sy. No. 30/5 of Makheri village shall be allotted to the share of defendant No. 4 and in the remaining suit lands the plaintiffs 1 to 3 together and defendant No. 1 can include 1/5th share of defendant No. 4.

Against the said judgment and decree, defendant No. 1 filed the appeal before lower appellate court in R.A. No. 54/2005. The appellate Court after reconsideration of the entire material on record has raised the following points for reconsideration:

"(i) Whether the appellant proves that the judgment and decree of the lower court is illegal and interference of this Court is necessary?"

(ii) What order?"

After considering the entire material on record, the appellate court held that the appellant has failed to prove that the judgment and decree of the trial court is illegal and calls for any interference and accordingly, the appeal came to be dismissed.

Against the said concurrent of findings of fact recorded by the courts below, the present regular second appeal is filed.

I have heard the learned counsel for the appellant.

Sri. S.N. Banakar, learned counsel for the appellant, has contended that the impugned judgment and decree of the courts below are contrary to the material on record, law and true facts and the whole approach of the courts below in decreeing the suit is without any basis and the courts below have failed to notice that the 1st defendant filed Form No. 7 in her individual capacity and other members of the family are not entitled to any share in the property held by her. Therefore, he sought to set aside the impugned judgment and decree of the courts below.

I have given my thoughtful consideration to the arguments advanced by the learned counsel for the appellant and perused the entire material on record.

Admittedly, the suit is filed for partition and separate possession alleging that the plaintiffs and defendants are members of the joint family and suit schedule properties are joint family properties. The 1st defendant filed written statement and admitted the relationship and contended that there was an oral partition. Considering the evidence of PW-1 and material documents Exs. P-1 to 18, the trial court came to the definite conclusion that the suit schedule properties are joint family properties and there was no earlier partition as contended by the defendants and accordingly, held that the plaintiffs were entitled to a share.

The trial court also recorded a finding that the relationship between the parties was admitted. Though, the 1st defendant contended that she filed Form No. 7 in her individual capacity and not as undivided family manager for and on behalf of the joint family after coming into force of Karnataka Land Reforms Act and occupancy rights were conferred on her in that capacity i.e., individual capacity and not as undivided family manager. Ex. P-13/M.E. No. 3238, which goes to show that on the death of Ganesh Jannu Bandekar, the husband of defendant No. 1, on 06.09.1974, as per Warsa Registry entry No. 238, the name of defendant No. 1 was entered as undivided family manager for and on behalf of joint family, which consists of her children viz., two sons and four daughters and consent of the said children and minor children were represented by the 1st defendant to the Wardi given by the 1st defendant. Ex. P-13 corroborated by the document at Ex. P-6 i.e., ME No. A-3480 in respect of land Sy. No. 762/3, which goes to show that the 1st defendant was not the original tenant of the said lands and her husband was the tenant and after his death, the 1st defendant''s name came to be entered as the undivided family manager and she filed Form No. 7 in her capacity as undivided family manager and occupancy rights were granted to her. But, the defendant has failed to prove that the suit lands were granted by the Land Tribunal in her individual capacity and no such rebuttal evidence is produced by the 1st defendant. Therefore, the 1st defendant failed to prove that the suit schedule properties are self-acquired properties. But, the plaintiffs have proved that it is her father-in-law/Ganesh Bandekar who was the original protected tenant and on his death, after coming into force of the Karnataka Land Reforms Act, the suit properties were entered in the name of 1st defendant, her mother-in-law, as the undivided family manager, for and on behalf of the joint family representing all her children and not as the individual capacity. In the absence of any documents and evidence regarding ancestral tenancy, it cannot be held that the suit properties were the ancestral joint family properties of late Ganesh Bandekar. Though defendants 4 and 5 have not produced any document nor led any evidence, if Ex. P-6 and 13 are read together, it can be said that it was the father of defendants 4 and 5 who was the tenant of the suit properties and on his death, the 1st defendant became the tenant of those properties in her capacity as undivided family manager and her name came to be mutated in the revenue records. Therefore, the suit schedule properties are the joint family properties. The lower appellate court also recorded a finding that the 1st plaintiff being the wife of late Manohar Bandekar and plaintiffs 2 and 3 are being their sons and they have proved that there is no severance in the joint family status prior to filing of the suit and as on the date of the suit. As such, defendants failed to prove that late Manohar Bandekar took his share in the oral partition, and as such, the plaintiffs are not entitled to any share.

While considering issue No. 9, the trial court recorded a finding that the plaintiffs have proved that they are entitled to equal share in the suit schedule properties along with defendants 1 and 4 to 6. The suit land Sy. No. 30/5 of Makheri village was sold by defendant No. 1 to Ramesh Bandekar, who is none other than her son-in-law, the husband of defendant No. 4, during the pendency of the suit. Therefore, the trial court was of the considered opinion that defendant No. 4 and her husband were very much aware about the pendency of the suit and the property involved in the suit was purchased by him. Hence, this transaction amounts to and said purchase is pendente lite purchase. Hence, he is bound by the terms of the decree to be passed. Accordingly, the said property shall have to be allotted to the share of defendant No. 4 and in other properties, plaintiffs 1 to 3, defendant No. 1 and defendants 4 to 6 have got 1/5th share each in the schedule properties. Though, defendant No. 3 has sought for specific performance of the contract, but he has not paid any court fee nor lead any evidence in the suit. Hence, he is not entitled to any of the relief. Therefore, the trial court declared that plaintiffs 1 to 3 together defendant No. 1 and defendants 4 to 6 are having 1/5th share in the suit schedule properties and the land bearing Sy. No. 30/5 of Makheri village shall be allotted to the share of defendant No. 4 and in the remaining suit lands, the plaintiffs 1 to 3 together and defendant No. 1 can include 1/5th share of defendant No. 4.

The lower appellate court on re-appreciation of entire material on record, has confirmed the judgment and decree of the trial court and recorded a finding that PW-1 in her cross-examination has deposed that defendant No. 1 by name Chaya is missing since 16 years and as stated by DW-1 in her cross-examination that the whereabouts of her daughter is not known. Whether she is dead or alive is not known. In such circumstances, the contention of the learned counsel for the appellant that the said Chaya is not made a party and hence, the suit is bad for non-joinder of necessary parties and on this count, the judgment and decree of the trial court is liable to be set aside, holds no water, because, if at all the said Chaya is alive and she has got any interest in the suit properties, she can, at any time reopen the partition and can claim her rights. Therefore, the trial court has rightly came to the conclusion that the said Chaya is not necessary party. The plaintiffs have contended that defendants 1 and 2 are attempting to alienate the suit schedule properties to defendant No. 3. The 3rd defendant in his written arguments has contended that the defendants have executed an agreement of sale in favour of his wife Laxmi Surendra Savant and received consideration amount. The plaintiffs are also aware of this fact and the plaintiff No. 1 has also accepted consideration amount. Therefore, the trial court has rightly come to the conclusion that defendants 1 and 2 were attempting to alienate the suit properties. Though, defendant No. 1 has contended that the suit schedule properties are her self acquired properties on the ground that after the death of her husband-Ganesh, she has filed Form No. 7 to the Land Tribunal, Karwar, on her individual capacity, accordingly, the Tribunal granted occupancy rights in respect of the suit schedule properties. But, the same was not accepted by the lower appellate court and material evidence does not prove that the she has got occupancy rights independently and ultimately, the appellate court has recorded a finding that after careful consideration of the pleadings of both plaintiffs and defendants and, oral and documentary evidence of the parties, the trial court has rightly decreed the suit of the plaintiffs declaring that plaintiffs 1 to 3 together defendant No. 1 and defendants 4 to 6 are having 1/5th share in the suit schedule properties and the land bearing Sy. No. 30/5 of Makheri village shall be allotted to the share of defendant No. 4 and in the remaining suit lands, the plaintiffs 1 to 3 together and defendant No. 1 can include 1/5th share of defendant No. 4. The same is in accordance with law and no interference is called for.

Both the courts below concurrently, held that the plaintiffs have established that the suit schedule properties are the joint family properties and the plaintiffs and defendants are the members of joint family and the defendants are entitled to 1/5th share. The appellants have not made out any substantial question of law in the present appeal. Accordingly, the appeal is dismissed.