Venkataramanappa vs Sharadamma

N. Kumar, J—This is a defendant''s Regular First Appeal challenging the Judgment and Decree passed by the trial Court granting a decree for partition and separate possession.

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

Plaintiff is the younger sister of defendant. They are children of late Siddappa and Siddamma. Their parents were residents of Gunjur Village, Varthur Hobli, Bangalore South Taluk. Siddappa had five brothers namely Huliyappa, Krishnappa, Jayaramappa, Venkataramanappa and Lakshman who are sons of late Hotteppa. The plaintiff''s grandfather Hotteppa constituted a joint family along with six sons and owned several properties belonging to the joint family. During the lifetime of Hotteppa, his six sons were living together. They were in joint possession of the joint family properties. After the death of Hotteppa, his sons namely Siddappa, the father of plaintiff, and five younger brothers continued to live as members of the joint family. They were in joint possession of the properties. As time passed, plaintiff''s father started living separately from the joint family though joint family properties were not divided.

Plaintiff''s father also earned certain properties i.e. Sy. No. 112 measuring 3 acres and 19 guntas and Sy. No. 120/2 measuring 3 acres and 18 guntas, both situated at Narayanakere Village, Anugondanahalli Hobli, Hoskote Taluk, Bangalore District out of his own self earnings. These items are the self acquired properties of her father late Siddappa. They are mentioned in Schedule-A.

Insofar as self-acquired properties of her father at Bagalur the details are not readily available with her therefore, she sought leave of the court to include them in the suit at a later stage after obtaining the said details. The plaintiff''s father died on 27.1.1988. Her mother pre-deceased her father, she died during the year 1965. Plaintiff and Defendant being the only two children of Siddappa and Siddamma succeeded to the joint family properties i.e. the plaint schedule properties namely Schedule-A properties. After the death of plaintiff''s father, the defendant herein and the younger brothers of plaintiff''s father appeared to have made a partition deed. In the said partition several items of the properties mentioned in the Schedule ''B'' to the plaint fell to the share of the plaintiff''s father. They are allotted to the defendant. This fact was not within the knowledge of the plaintiff. As the defendant was making hectic efforts to alienate properties mentioned in Schedule-A and B, on enquiry, the plaintiff came to know that on 14.8.2000 a registered partition deed is made between the defendant and his five uncles, schedule B properties are all allotted to the share of defendant. She claimed her share which was denied. Therefore, the plaintiff was constrained to file the suit for partition and separate possession of her legitimate share in the ''A'' schedule properties as well as in ''B'' schedule property.

At this juncture, it is to be mentioned that though in the body of the plaint, plaintiff referred to self acquired properties of her father in Bagalur in Hosur Taluk, Dharmapuri District, Tamil Nadu State, subsequently, by filing a memo she has given up her right in the said property. Therefore, the said property is not the subject matter of suit.

After service of summons, defendant entered appearance. He filed a detailed written statement. He did not dispute the relationship with the plaintiff. He also did not dispute that Siddappa had five younger brothers. He has specifically contended, during the lifetime of Hotteppa, the properties of the joint family were divided and disbursed to all the six children in the year 1978 itself. At no point of time, the children of Hotteppa lived jointly subsequent to the year 1978. It is only thereafter father of defendant out of income derived from the agricultural lands had acquired properties in his name. Late Siddappa was residing separately from his children.

He denied that the properties at Narayanakere Village are self acquired properties of late Siddappa. It is his specific case that Siddappa acquired properties out of income from agricultural lands got through partition in the year 1978 and also through Gift deed executed by Smt.Nalandalli Siddamma. Defendant stated that the plaintiff has filed the suit at the instance of one Huliappa @ Annayyappa who is the uncle of both the plaintiff and himself. The plaintiff has given her daughter Saraswathamma to the son of Huliappa @ Annayyappa namely Venkateshappa. The plaintiff got married one Venkatashappa of Doddakunthura Village, Malur Taluk in the year 1978. Thereafter, she begotten three daughters. At the time of her marriage itself, late Siddappa had given to the plaintiff sufficient funds and jewels and thereafter on 24.1.1982, late Siddappa purchased one acre of property in Sy. No. 29/1 of Doddakunthuru Village in the name of minor daughter Sarasamma.. Thereafter, on 9.12.1982 the plaintiff herself voluntarily executed a Release Deed in favour of her father. In the said release deed the plaintiff has clearly stated that she received a sum of Rs. 3,45,000/- for construction of a house and to meet other expenses. However, plaintiff''s father has taken care of medical expenses of plaintiff''s husband by spending huge amount in addition to that, 1 acre of land in Sy. No. 29/1 of Doddakunthur Village was given for ''Arishina Kunkuma''. Hence, she voluntarily relinquished all her rights except blood relationship, she had no right whatsoever over the properties of her father late Siddappa. Hence, plaintiff is estopped from claiming any property from the defendant. The defendant admits the execution of partition deed during the year 2000. His age was about 55 years and he has never gone to School and from his childhood he has been a hard worker and out of his own hard earnings the properties were purchased at Narayanakere and Bagalur. Hence, he denied that late father Siddappa purchased properties at Narayanakere and Bagalur out of joint family properties. Therefore, plaintiff cannot claim the said properties since she has taken share in a sum of Rs. 3,45,000/- and jewels and 1 acre of land in Sy. No. 29/1 of Doddakunthuru village. Therefore, she is estopped from claiming property from the defendant.

Plaintiff being a resident of Doddakunthuru village was never in possession of the schedule properties. Plaintiff''s act of filing the above suit is nothing but back stabbing the defendant who is her own brother. He stated, plaintiff herself had given a letter to Vijaya Bank, Gunjur Branch for release of Fixed Deposit amount in favour of defendant on the ground that the said amount belonged to him. The defendant has acquired his share of the property as absolute right to deal with the property. Plaintiff has also extinguished her right over the property of Siddappa as far back as on 9.12.1982 when she executed release deed and further she gave letter to release the FD amount in the year 1981 in favour of defendant on the ground that it is his money. The defendant further contended, the claim of plaintiff is barred by law of limitation. Therefore, he sought for dismissal of the suit.

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

"1. Whether the plaintiff proves that still there exist joint family status as pleaded in the plaint?

Whether the plaintiff proves that the suit schedule properties are the joint family properties of herself and defendant?

Whether the defendant proves that the plaintiff has executed a Release Deed dated 9.12.1982 in favour of the father of the plaintiff and defendant by receiving sum of Rs. 3,45,000/- on different occasions?

Whether the plaintiff is entitled for partition and separate possession. If so, to what extent?

What order or Decree?"

The plaintiff in order to substantiate her claim examined herself as P.W. 1 and has produced 21 documents which were marked as Ex. P1 to Ex. P21. On behalf of the defendant examined himself as D.W. 1 and he has examined three witnesses namely Venkataramappa, K.P. Rama Reddy and B.N. Byregowda as D.W. 2, 3 and 4. He also produced 27 documents which were marked as Ex. D1 to D27.

The trial Court on appreciation of the aforesaid oral and documentary evidence on record held that the plaintiff has proved the existence of joint family properties as pleaded in the plaint. It also held that all the suit schedule properties are the joint family properties of plaintiff and defendant. The defendant has failed to prove that the plaintiff has executed the release deed dated 09.12.1982 in favour of the father of the plaintiff on receiving a sum of Rs. 3,45,000/- on different occasions. Therefore, it granted 1/2 share to the plaintiff in all the suit schedule properties and it also granted an order of injunction restraining the defendant from alienating the properties. Aggrieved by the said judgment and decree of the trial Court, the defendant is in this appeal.

Learned counsel for the defendant assailing the impugned judgment and decree contended that the trial Court acting on partition deed-Ex. P14 has decreed the suit. However, the said partition deed is challenged in O.S. No. 2083/2006 and in the event of defendant herein succeeding in the said suit, the plaintiff would be entitled to get more than what she would get in the suit. Therefore, he submits to set aside the judgment and decree and remand the entire suit back to the trial Court to be tried along with O.S. No. 2083/2006.

Per contra, learned counsel for the plaintiff submits that this suit is of the year 2005. The defendant has filed O.S. No. 2083/2006 and so many other aspects have been brought on record. Therefore, other suit is nothing to do with this suit. As the judgment and decree is passed on legal evidence, no interference is called for in the present case.

In the light of the aforesaid facts and rival contentions, the point that arises for our consideration is:

"Whether the defendant has made out a case for interference of the judgment and decree of the trial Court?"

The relationship of the parties is not in dispute. The plaintiff is the sister and the defendant is her elder brother. They are the children of Sri Siddappa and Siddamma. Siddappa had five younger brothers and his father is one Hotteppa. Though the defendant has taken a specific contention that during the life of Hotteppa, there was a partition in the family and all the six sons are living separately, absolutely no evidence is adduced in respect of said plea. On the contrary, the evidence on record shows that Hotteppa was the Kartha of the joint family. He was living happily and there was no partition. After the death of Hotteppa, his six sons continued to live as the members of the joint family and they were in joint possession of the family. Even during the life time of Siddappa, there was no partition. It is only after the death of Siddappa, his five brothers effected the partition along with the defendant. The ''B'' schedule properties which are allotted to the share of Siddappa which in turn was given to the defendant. Plaintiff is not a party to the partition. The evidence on record also shows that Siddappa was a very prosperous man. He acquired several properties in Bagalur Village as well as in Narayanakere village, Hoskote Taluk. They are his self acquisition. Though the defendant contends that acquisitions are out of the income derived from the properties which are mentioned in the ''B'' schedule, no evidence is adduced to substantiate the said plea. In fact, the plaintiff has been fairly informed to file a memo to give up her rights in respect of properties which are situated at Bagalur Village of Hosur Taluk. She has restricted her claim only in respect of lands situated in Narayanakere Village which are ''A'' Scheduled properties. The defendant having admitted the relationship and right of the plaintiff has taken specific plea that the plaintiff has given up her rights in the ''B'' suit schedule properties as well as in the ''A'' suit schedule properties and even during the life time of her father-Siddappa, she executed a release deed on receiving the consideration of Rs. 3,45,000/- on several dates. It is also his contention that Siddappa performed her marriage, gave her jewelry and also purchased a land in the name of her minor daughter. Therefore, he contends that the plaintiff has given up her rights in respect of the suit schedule properties and she has no right to claim the share in the same.

If really, the plaintiff had executed a release deed on receiving and acknowledging a sum of Rs. 3,45,000/-, such release deed has to be in writing and registered. Ex. D6 is the release deed on a white paper. A right to an immovable property which is more than Rs. 100/-, cannot be relinquished unless it is reduced in to writing and conveyed through a registered instrument. According to the plaintiff, the right is not relinquished and she continues to have the said right.

The fact that all the suit schedule properties belonged to Siddappa is not in dispute. Under the registered partition deed, it falls to the share of Siddappa. He died leaving behind him his daughter and son and they are class-I heirs. Therefore, the trial Court was justified in decreeing the suit of the plaintiff and granting 1/2 share to the plaintiff.

In fact the defendant case as could be gathered from the evidence is, the properties exclusively belonged to him which are not joint family properties and the partition deed was done by his uncle by playing fraud on him. As rightly pointed out by the trial Court, till the suit is filed, he has not taken any steps to annul the said partition deed and to claim those properties which he claims to be the exclusive properties. In fact there is no defence taken in this case. It appears that he has filed O.S. No. 2083/2006 and probably those questions may be gone into by the trial Court in the said suit. But one thing is clear that as long as partition deed stands, it is not annulled. The decree passed by the Trial Court is valid. Therefore, we are of the view that no case to interfere with the well considered order passed by the trial Court is made out.

It is submitted that if at all the defendant succeed in O.S. No. 2083/2006, the plaintiff would get more property than what she get or the said judgment may confer right on the defendant in some other properties which is not recognized in this suit.

The plaintiff is a party in the said suit. She is contesting the matter. The decree is passed by the trial Court in this case on the basis of the registered partition deed. If the partition deed is annulled, modified and set aside as the plaintiff is a party to the said suit, she would be bound by any such decree to be passed in the said suit. It is made very clear in this suit neither the trial Court nor this Court has gone into the illegality of the partition deed as that is not the subject matter of the said suit and the decree passed by the trial Court and this Court on the basis of the said partition and it is not in any way affect the interest of the defendant in the said suit. The Court which is dealing with O.S. No. 2083/2006 would pass appropriate orders on the basis of the evidence and argument to be addressed by the Counsel. Both the parties are at liberty to adduce their evidence in respect of their right in the said suit. The Court shall decide the same on merit and in accordance with law. Hence, we pass the following:

Appeal is dismissed.

No costs.