1994 Supreme(SC) 546

SUPREME COURT OF INDIA
M.N. Venkatachaliah, C.J.I., AND S. Mohan, J.
Civil Appeal Nos. 4347-48 of 1994
Decided On: 11.05.1994
Kenchegowda (Since Deceased) by Legal representatives Appellants
Vs.
Siddegowda alias Motegowda Respondent
Counsel for the Parties
For Appellant/Petitioner/Plaintiff: M.S. Nesargi, Senior Adv., Meera Aggarwal and R.C. Mishra, Advs.
For Respondents/Defendant: P. Mahale, Adv.

Headnote:

Suit for property - preliminary decree for partition - plaintiffs father and his brother formed a Joint Hindu Family. The father of the plaintiff died about 30 years ago leaving behind him the plaintiff and his brother Boregowda. During the lifetime of the plaintiffs father there was a division of the properties belonging to Joint Hindu Family. After the partition the plaintiffs father purchased the suit Survey No. 214 measuring one acre 20 guntas along with two other properties under a registered sale deed dated 5-7-1929. Therefore, the suit land is a self-acquired property of the plaintiffs father which devolved on the plaintiff and his brother. The plaintiff and his brother divided their family properties six years ago and in that partition the suit property was allotted to the share of the plaintiff. As such he became the exclusive owner of the suit land.Notwithstanding this being so the first defendant sold 30 guntas to the second defendant for a sum of Rs 5000 under registered sale deed dated 14-6-1973. Similarly, the remaining 30 guntas of land was sold in favour of the second defendant in OS No. 347 of 1974 by sale deed dated 27-6-1973 without any right whatsoever. Thus, the plaintiff was compelled to file the suits for the relief of declaration of title and permanent injunction.The defendants in both the suits filed separate written statements. However, their defence is common. The relationship between the parties was admitted. The principal stand is that the suit property was purchased by the plaintiffs father as Manager of the Joint Hindu Family by himself and his brothers out of the joint family funds. After the death of plaintiffs father, as a member of the Joint Hindu Family, the plaintiff represented by the mother and the first defendant in the two suits sold some other properties. As regards the suit Survey No. 214, on the division of properties of the Joint Hindu Family between the plaintiff and the first defendant, it fell to the share of the first defendant. The plaintiff was in possession of the suit land. On trial, the case of the defendant came to be accepted that the suit land was the joint family property. It had fallen to the share of the defendant. In this view, the suit came to be dismissed. – Held, The findings of the trial court had become final and conclusive. This means the finding of fact regarding the partition set up by the first defendant could no longer be interfered with. Further, the name of the first defendant had been deleted from the array of parties. Therefore, the passing of the preliminary decree for partition overlooking this important aspect is unsustainable in law. - "Issue notice limited to the question whether all the parties, necessary to be party in a suit of partition were on record in the second appeal. The suit was permitted to be converted in partition particularly in the light of the circumstance that one of the coparceners had died and legal representatives had not been brought on record in the first appellate court and at all events, the share would only be 1/4th not 1/3rd. The notice will specify that the matter will be finally disposed of at the SLP stage itself." - will now proceed to consider whether the High Court was justified in passing the preliminary decree for partition of 1/3rd of plaintiffs share. During the pendency of the first appeal Kalegowda, the first defendant in OS No. 347 of 1974 died. The finding of the trial court was clearly in his favour and it is to the following effect: "Issue No. 3.-- The evidence on record especially the evidence of PW 1 and the averments in Ex. D-1 clearly establish that the suit schedule property was the joint family property of the father of the plaintiff and his brothers. The evidence of defendants disclose that in a partition which took place subsequently the suit land was allotted to the shares of the first defendants in both the suits. Apart from the oral evidence, the Revenue records at Ex. P-1 to P-3, kandayam receipts at Ex. D-4 and D-5, certified copies of the pahani extracts at Ex. D-6 to D-17, R.T.C, extract at Ex. D-18, another kandayam receipt at. Ex, D-20 and Ex. D-21 the certified copy of the order passed by the Tahsildar clearly prove that the suit schedule properties are owned by the first defendants in these suits. If actually this was allotted to the shares neither of plaintiff or of PW 1, necessarily they would not have kept quiet in spite of corning to know that this land was entered in the katha of the first defendant in both the suits. These documents therefore prove the claim of the defendants to the effect that these properties were allotted to the shares of 1st defendant in both the suits in a partition that took place subsequently. Therefore, this issue is answered accordingly in the affirmative." - appeals accordingly allowed