Venkataswamy vs Venkataramappa and Others

N. Kumar, J.—It is the first defendant''s regular first appeal against the judgment and decree passed by the Trial Court partly decreeing the suit of the plaintiffs.

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

The prepositor Chikkavenkataramanna had two children by name Hanumappa and Byamma who are not alive. Byamma was married to one Munivenkatappa who is also no more. Hanumappa had married to one Akkayamma who gave birth to defendant Nos. 1 and 2. After the death of Akkayamma, Hanumappa married one Venkatamma who gave birth to plaintiffs and defendant Nos. 3 to 5. Defendant Nos. 3 to 5 are living in their husband''s house after their marriage. During the life time of Hanumappa, the plaintiffs and defendants were living together as members of the Hindu Undivided Joint family by enjoying the suit schedule ancestral joint family properties. Hanumappa was managing the affairs of the joint family during his life time. After his death, all of them are continuing to be the members of the joint family by enjoying the suit schedule properties jointly. After the death of Hanumappa, defendant No. 1 became kartha of the joint family and running the joint family affairs including the financial matters. Plaintiff No. 1 is a dumb who is concentrating with joint family agriculture. Plaintiff No. 2 is working in Karnataka Health department who is providing financial assistance for improvement of the joint family agriculture. Plaintiff Nos. 2 and 3 are visiting their village and participating in the agricultural operations during their holidays. Plaintiff No. 3 is working as a Conductor in the KSRTC for the past four years. He has devoted his time for improving the agriculture and is also providing financial assistance for defendant No. 1 for improving the joint family agriculture. The joint family owns fertile, dry garden and wet lands having considerable income. They used to grow vegetables, sericulture crop and they used to produce silk cocoons by rearing worms. There is a bore well and they are using the bore well water for growing the crops. Plaintiffs and defendant No. 1 intended to start poultry farm and out of the savings of the joint family along with the financial assistance provided by plaintiff Nos. 2 and 3, poultry farm sheds were constructed in Sy. No. 104 property. There are four poultry farm sheds constructed. The poultry farm sheds are leased in favour of defendant No. 6 who is paying lease amount more than Rs. 50,000/- per month to defendant No. 1. Defendant No. 1 is not showing the accounts. Defendant No. 1 and his children have borrowed loan from SBI, Kolar branch for establishing poultry farm on the security of the suit schedule properties. The said loan transactions were not in their knowledge and behind their back the above said loan was borrowed. Defendant No. 1 has not taken their consent for mortgaging the suit schedule properties to the bank. Defendant No. 1 has not utilised the said loan amount for the purpose it was borrowed. There was no necessity to borrow loan for establishing poultry farm since the poultry farm was already established out of the joint family funds. They are not liable to discharge the loan amount since the defendant No. 1 has utilised the same for personal expenditure of himself and his children. Defendant No. 1 has illegally shown different survey numbers to the bank to construct sheds. He has cheated the bank authorities and thereby he has not utilised the loan amount. They are having considerable income from the agricultural lands and also from the poultry farm. Defendant No. 1 has utilised the said income for the personal expenditure of himself and his children. Defendant No. 1 is misusing the lease amount received from defendant No. 6. Therefore, when defendant No. 1 refused to give share of the plaintiffs, they are constrained to file a suit for partition and separate possession in the suit schedule properties.

After service of summons, defendant Nos. 1 to 3 and 5 have appeared through their counsels. Defendant No. 4 remained absent and therefore she was placed ex-parte. Though defendant No. 6 appeared through counsel, he has not filed any written statement and contested the matter.

Defendant No. 1 has filed the written statement which is adopted by defendant Nos. 2, 3 and 5. In the written statements plaint allegations are totally denied. They also contended that a wrong genealogical tree without including all the members of the joint family is produced. The original prepositor Chikkavenkataramanna has got a daughter by name Byamma and she was living along with the joint family after marrying Munivenkatappa. Both of them died leaving behind their children Lakshmaiah and Narayanappa @ Narayana Gowda who are also the members of the family. The children of Byamma are not impleaded as parties to the suit and also the plaintiffs have not included other joint family properties which are standing in their names. The properties standing in the names of Lakshmaiah and Narayanappa also belongs to the joint family and all the joint family members are enjoying the same together. The children of Byamma are having right of share in the suit schedule properties and other non-suited properties. Hence, the suit is not maintainable for non-joinder of the children of said Byamma and also non-inclusion of other joint family properties.

Defendant No. 1 contended that he is looking after the joint family as a kartha. With the help of his sons he has established poultry farm sheds under the name of Veera Hanuma Poultry farm for the benefit of the joint family. Then the said sheds are leased to defendant No. 6 on a monthly rent of Rs. 57,000/-. He has raised a loan of Rs. 26 lakhs from SBI, Kolar branch for establishing poultry farm. He has also raised private hand loans to an extent of 2 1/2 lakhs from Hosakote Rajanna, Rs. 4 1/2 lakhs from Bangalore Tulasamma, Rs. 4 lakhs from Hosakote Pillamma, Rs. 2 1/2 lakhs from KEB Narayanappa, Rs. 2 lakhs from Neerajaksha Naidu, Rs. 2 lakhs from Kelagani Srinivasappa and Rs. 2 lakhs from bore well Prakash Babu. Accordingly, he has raised private loan of Rs. 19,50,000/- and bank loan of Rs. 26,00,000/- and invested the same for the establishment of poultry sheds. The said poultry sheds are leased to defendant No. 6 for a monthly rent of Rs. 57,000/- and out of this, Rs. 50,000/- is paid to SBI bank as loan installments and remaining Rs. 7,000/- is used for the maintenance of equipments. He has to repay the total loan amount of Rs. 46,00,000/- together with interest. After institution of this suit, the defendant No. 6 has vacated the poultry sheds by terminating the lease agreement. Since for the past three months, the poultry sheds are vacant and no income is coming out of the sheds. Plaintiff Nos. 2 and 3 have instigated the plaintiff No. 1 and filed this false suit and plaintiff Nos. 2 and 3 have not provided any financial assistance for improvement of the agricultural works. Plaintiff Nos. 2 and 3 have purchased houses and sites and they are residing in the said houses along with their family. If the Court comes to the conclusion that the plaintiffs and the defendants are having right of share in the properties, then the bank loan and private hand loans may also be equally divided among the plaintiffs and defendants proportionately. He has borrowed the loans for the benefit of the joint family improvement and hence all the members of the joint family are also liable to repay the same. Therefore, he sought for dismissal of the suit.

On the basis of the above pleadings, the Trial Court framed the following issues and additional issues:-

(i) Whether the plaintiffs prove that themselves and defendants are members of Hindu joint family?

(ii) Whether the plaintiffs further prove that suit schedule properties are undivided joint family properties of both themselves and defendants?

(iii) Whether the plaintiffs further prove that they are entitle for 3/8th share in the suit schedule properties by meets and bounds?

(iv) What order or decree?

Additional issues:-

Whether the 1st defendant prove that for establishment of poultry farm he has raised loan and invested Rs. 46 lakhs for establishment of poultry farm as contended in para 11 of written statement?

Whether the 1st defendant proves that suit is bad for non-joinder of necessary parties and non-inclusion of all the joint family properties?

Plaintiffs in order to substantiate their claim examined plaintiff No. 3-S.H. Nagaraj as P.W. 1, produced 14 documents which are marked as Exs. P1 to P14. Defendant No. 1 was examined as D.W. 1. He also examined 6 witnesses as D.Ws. 2 to 7. He produced 59 documents which are marked as Exs. D1 to D59. The Trial Court on consideration of aforesaid oral and documentary evidence held that plaintiffs and defendants constitute a Hindu Undivided Family. It is further held that item Nos. 1 to 3, 5 to 12 are all joint family properties of plaintiffs and defendants and plaintiffs are entitled to 1/8th share in the aforesaid properties. It further held that item No. 4 is not available to the extent as described in the schedule and only 0.2 3/4 is available in which equal share has been given to all the members. On appreciation of oral and documentary evidence adduced on behalf of defendants, it held that defendant No. 1 has failed to prove that he has raised loan of Rs. 19.50 lakhs from private persons and utilised the same for establishment of poultry farm sheds in the joint family property. Insofar as raising of loan from the bank is concerned, it held that defendant No. 1 has produced a false genealogical tree before the bank authorities in order to cheat bank. However, it did not reject the case of defendant No. 1 that he has borrowed a sum of Rs. 26,00,000/- from the Bank. Insofar as the plea of non-joinder of necessary parties and non-inclusion of joint properties is concerned, it held that defendant No. 1 has failed to prove that Byamma and her husband Munivenkatappa and their sons were residing in he family of Chikkavenkataramanna as joint family members and therefore non-joinder of these persons in the suit of partition would not vitiate the suit. Similarly, they are not members of the joint family and properties standing in their name i.e., name of children cannot be construed as joint family properties. Accordingly, the Trial Court proceeded to decree the suit of the plaintiffs partly granting 1/8th share in suit item Nos. 1 to 3, 5 to 12 and 0.2 3/4 guntas in said item No. 4. Aggrieved by the said judgment and decree of the Trial Court, defendant No. 1 has preferred this appeal.

Learned counsel appearing for the appellant assailing the impugned judgment and decree contended that admittedly out of the money borrowed, as kartha defendant No. 1 has developed joint family properties, has constructed four poultry farms from which he was deriving a rent of Rs. 57,000/-, out of which Rs. 50,000/- was paid to Bank towards discharge of loan and the court below erred in not taking into consideration this liability in declaring the rights of the members of the joint family. Secondly, he contended that Byamma daughter of Chikkavenkataramanna was the member of the joint family and non-inclusion of her and her husband and her children is fatal and suit ought to have been dismissed on that ground alone. Lastly, he submitted that Byamma''s children were members of the joint family and several properties purchased in their names out of joint family funds should have been included in the suit schedule and therefore the suit is bad for non-inclusion of other joint family properties which fact also not properly considered by the Trial Court. In this appeal, an application is filed under Order 41 Rule 27 of the CPC to lead additional evidence by producing the documents that item No. 12 is a property belonging to defendant No. 1''s maternal grandfather and therefore children of Venkatamma have no right in the said property and therefore, he submits that aforesaid judgment and decree of the Trial Court requires to be set aside and the suit of the plaintiffs is to be dismissed.

Per contra, learned counsel for the respondents/plaintiffs supported the impugned judgment and decree.

In the light of the aforesaid rival contentions, the points that would arise for our consideration are as under:

i) Whether the Trial Court was justified in not fastening the liability on all the members of the joint family insofar as the amounts borrowed for the improvement of the joint family properties?

ii) Whether the suit of the plaintiffs is bad for non-joinder of all the members of the joint family?

iii) Whether the suit is bad for non-inclusion of all the joint family properties?

iv) Whether a case for allowing the additional evidence is made out?

Point No. 1.

From the pleadings and evidence on record, it is clear that there is no dispute regarding the relationship between the parties. One Chikkavenkataramanna was the prepositor. He has two children namely Hanumappa, the son and Byamma, the daughter. Byamma was married to one Munivenkatappa during his life time. Hanumappa was married to one Akkayamma who gave birth to defendant Nos. 1 and 2. After the death of Akkayamma, Hanumappa married one Venkatamma and their children are plaintiffs and defendant Nos. 3 to 5. There was no division in the joint family during the life time of Chikkavenkataramanna. After his death, there was no division in the family during the life time of Hanumappa also. Therefore, all the schedule properties are the joint family properties/coparcenary properties. That is the reason why defendant No. 1 in his written statement not only did not dispute the relationship but also did not dispute the right of plaintiffs to the suit schedule properties. In other words, there is no dispute regarding the nature of the properties as well as right of the plaintiffs to the suit schedule property. The defence taken is that defendant No. 1 as kartha of joint family has borrowed a sum of Rs. 46,00,000/- for improvement of the joint family properties. Out of Rs. 46,00,000/-, a sum of Rs. 26,00,000/- is borrowed from the State Bank of India in Kolar branch by mortgaging joint family properties. He raised private loan to the extent of Rs. 19.50 lakhs i.e., 2 1/2 lakhs from Hosakote Rajanna, Rs. 4 1/2 lakhs from Bangalore Tulasamma, Rs. 4 lakhs from Hosakote Pillamma, Rs. 2 1/2 lakhs from KEB Narayanappa, Rs. 2 lakhs from Neerajaksha Naidu, Rs. 2 lakhs from Kelagani Srinivasappa and Rs. 2 lakhs from bore well Prakash Babu. Plaintiffs rightly have not disputed the amount borrowed from State Bank of India. Their contention is that amount is not utilized for the development of the joint family properties. The said loan was borrowed behind their back. Defendant No. 1 has examined D.W. 2-G. Nirajaksha Naidu, D.W. 4-Prakash Babu, D.W. 5-Rajanna, D.W. 6-Thulasamma. D.W. 7-S.V. Sreepathi, son of defendant No. 1 has been examined to prove the construction of poultry farm sheds. He has stated that poultry farm sheds was constructed in the year 2008 and at that time these loans were raised. He also stated that he and his father executed on demand and consideration of the receipts in favour of persons who have lend the amount and his evidence that the entire amount of Rs. 46,00,000/- is utilised for the said development. Exs. D44 and 45 are the on demand promissory notes executed by S.V. Sreepathi in favour of D.W. 2-Nirajaksha Naidu. Said documents do not disclose that father and son have executed documents for construction of poultry farm sheds. Other documents on which the reliance is placed are all executed by said Sreepathi and not by defendant No. 1. No documents were produced to substantiate the claim that a sum of Rs. 6.50 lakhs borrowed from Hosakote Pillamm and KEB Nareppa. Appreciating this evidence, the Trial Court held that in the entire plaint case pleaded was it is the defendant No. 1 who borrowed money, there is no mention about the son borrowing loan from D.W. 2-Nirajaksha Naidu. In fact, defendant No. 1 in his examination in chief has deposed that he himself has borrowed hand loan to extent of Rs. 19.50 lakhs. There is no whisper about his son also borrowing the said loan and executing the loan document. In fact, even in the cross-examination he has confirmed that he alone has borrowed money. It is in those circumstances, the Trial Court on proper appreciation of oral and documentary evidence, recorded a categorical finding that the case of defendant No. 1 that he has borrowed a sum of Rs. 19.50 lakhs from these private persons is not proved. On re-appreciation of entire evidence, we are also convinced that the material on record do not point out the borrowing of loan of Rs. 19.50 lakhs from those private persons and utilisation of the said loan for the construction of the poultry farm. Therefore, the finding recorded by the Trial Court is confirmed.

Insofar as borrowing of Rs. 26 lakhs is concerned, it is not in dispute. Merely because at the time of borrowing, defendant No. 1 suppressed the facts about the family members and gave a wrong genealogical tree and he did not ask other family members to execute the document, did not vitiate the loan transaction. Fact remains that out of the said amount, he has constructed four poultry farm sheds. Thereafter, he leased them to defendant No. 6 who was paying Rs. 57,000/-. Out of Rs. 57,000/-, Rs. 50,000/- was paid to the bank for discharging of the loan. Therefore, though the Trial Court accepted the case of defendant No. 1, it did not state in the judgment how his liability is to be appropriated. To that extent, the judgment and decree of the Trial Court calls for interference. When the plaintiffs are held entitled for 1/8th share in all the plaint schedule property, when defendant No. 1 kartha has borrowed a sum of Rs. 26 lakhs and utilised the same for constructing four poultry farm sheds which was fetching rent of Rs. 57,000/- per month, out of which Rs. 50,000/- is paid towards installments in discharging of the loan, in assessing the share to be paid by each party, the said loan is also to be taken into consideration and proper direction have to be issued at the stage of final decree proceedings. Defendant No. 1 has to place the material to show how much rent he received from four sheds, how much he has paid towards discharge of the loan and if any loan amount is remaining that has to be shared by all the persons who are entitled to a share in the properties.

Point No. 2.

Insofar as non-inclusion of all the joint family members in the suit is concerned, though defendant No. 1 contended that Byamma and her husband and children are the members of joint family, as rightly held by the Trial Court there is no evidence to substantiate the said claim. Admittedly, Byamma during life time of the father after marriage was residing with her husband. Out of the wedlock children were born and therefore in the normal course, she cannot be construed as member of joint family and heavy burden was caste on defendant No. 1 to show how married daughter will continue to be member of family of her father. In this regard, absolutely no clinching and convincing evidence is placed on record. Therefore, the Trial Court is justified in rejecting the claim.

Point No. 3

When it is held that Byamma and her husband and children are not members of the joint family, when the properties are purchased in the name of children, that cannot be construed as joint family properties. Defendant No. 1 has not produced any evidence to show the funds of the joint family which was available in his hands which was provided to them for purchase. According to him, he has to repay loan amount of Rs. 46 lakhs. Under these circumstances, the Trial Court was justified in holding that the property standing in the name of Byamma''s children are not joint family properties. Therefore, we do not see any error committed by the Trial Court on the said point.

Point No. 4

For the first time an attempt is made to contend that item No. 12 of the schedule property belonging to maternal grandfather of defendant No. 1. In the facts of the case, having regard to the nature of properties, the defence taken by defendant No. 1, the evidence that is adduced, this defence which is taken is only after thought. We do not find any justification to entertain the said plea for the first time in appeal. In that view of the matter, no case is made out for allowing the application. I.A. No. 1/2015 is dismissed. Point No. 4 is answered in the negative.

For the aforesaid reasons, we pass the following

The judgment and decree in all aspects is confirmed except on the question of sharing liability of the loan of the State Bank of India. Insofar as the liability is concerned, the same shall be worked out in the final decree proceedings as set out in the judgment.

The appeal stands disposed of accordingly. Parties to bare their own costs.