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1988 Supreme(Kar) 232
Karnataka High Court
Umakant Rao - Appellant
Versus
Lalitabai - Respondent
Decided On : 06-24-88
R.F.A. : 1 of 1977
D.GUNDU RAO, D.L.N.RAO, JAYAVITTAL KOLAR, M.M.GAGADHAR
The main legal point established in the judgment is that a partition must be equitable and valid, and parties not involved in the partition are entitled to claim their shares in the joint family properties.
Headnote:
Acquiescence - Partition - Ex. D. 1 - Krishna Bai v. Khangowda (1894 i L R. 18 Bombay, 197) - Ganesh Dutt Thakoor v. Jewach Thakoorain (1904) ILR 31 Calcutta, page 262 - Mt. Radhabai v. Pandharinath Bapu Narayan Bapu kalar (A. I. R. 1941 Nagpur, 135) - Commissioner of wealth Tax, Kanpur v. Chander Sen (A. I. R. 1986 SC. 1753) - Yudhishter v. Ashok Kumar (A I. R. 1987 s C. 558) - Ftatnam chettiar v. S. M. Kuppuswamy Chettiar (A. I. R. 1976 S C. page 1) - Subramanian Chetti and others v. Arunachelam Chetti and others ( (1905) i. L R. 28 Madras, page 1) - Adusu milli Seethamahalakshmamma v. Yemeni chalamaiah and others (A. I. R. 1974 A. P. 130)
Fact of the Case:
The court held that the partition effected under Ex. D. 1 without allotting any share to the plaintiffs and defendant-2 to which they were not parties is not binding upon them. The court also found that the division of the properties between defendants 1 and 3 was inequitable.
Finding of the Court:
The court found that the plaintiffs and defendant-2 were not bound by the partition and were entitled to claim their shares in the joint family properties. The court also held that the partition was not valid and not binding on the plaintiffs and defendant-2.
Issues: The issues involved the validity of the partition under Ex. D. 1, the entitlement of the plaintiffs and defendant-2 to claim their shares, and the inequitable division of properties between defendants 1 and 3.
Ratio Decidendi: The court held that the plaintiffs and defendant-2 were not bound by the partition and were entitled to claim their shares in the joint family properties. The court also found that the partition was not valid and not binding on the plaintiffs and defendant-2.
Final Decision: The court allowed the appeal, modified the trial court's decree, and declared the entitlement of each party to their respective shares in the joint family properties mentioned in Ex D. 1.
( 1 ) THIS appeal by defendant-1 is preferred against the judgment and decree dated 9-9-1976 passed by the learned civil Judge, Raichur in O. S. No. 34/1974.
( 2 ) RESPONDENTS 1 and 2 are plaintiffs 1 and 2. Respondent-3 was defen- dant-2. Plaintiffs 1 and 2 and defendant- 1 are the children of defendant-2. Defendant-2 died during the pendency of the appeal. Her name came to be deleted on the basis of the memo dated 23-11-1981 filed by the appellant stating that her heirs are already on record. (Plaintiffs 1 and 2 and defendant-1 are her heirs ). Respondent-4 was defendant-3 in the suit. He died after the judgment of the trial Court arid before the appeal was filed. Respondents 4 (a) to 4 (c) who are the sons of deceased- respondent-4 are brought on record as L. Rs. of deceased- respondent-4, by the order dated 28-2-1977.
( 3 ) IN this appeal, the parties will be referred to with reference to the position assigned to them in the trial court,
( 4 ) THE trial court has passed a decree in favour of plaintiffs 1 and 2 for partition and posession of half share in the properties allotted to defendant-1 under Ex. D. 1.
( 5 ) THE case of the plaintiffs is that govinda Rao and Gunde Rao were brothers and were the members of a Hindu joint family. The plaintiffs 1 and 2 are the daughters and defendant-1 is the son of late Govinda Rao. Defendant-2 was the widow of the said Govinda Rao, who died intestate on 24-2-1962 as a member of a Hindu Joint family leaving behind his undivided interest in the coparcenery properties and Plaintiffs 1 and 2 and defendants 1 and 2 as his heirs. Therefore, it is the case of the plaintiffs that they are entitled to 1/4th share in the joint family properties.
( 6 ) THE suit properties are mentioned in Schedule-A to the plaint. However from the case of defendants 1 and 3, it is revealed that the joint family properties consisted of both moveable and immoveable properties as mentioned in Schedules i to III to the deed Ex. D. 1 dated 26-3- 1962. . The properties mentioned in ex D. 1 include apart from the properties mentioned in Schedule-A to the plaint some more properties also. As there is no, dispute between the parties that the moveable and immoveable properties mentioned in Schedules I to III to the deed Ex. D. 1 are the joint family properties, even though some of them are not mentioned in Schedule-A to the plaint, the trial court has proceeded on the basis that the moveable and immoveable properties mentioned in Schedules I to III to ex. D. 1 are the joint family properties. Even before us, arguments are addressed on the above basis by both sides. Therefore, we proceed on the basis that the suit properties are those which are mentioned in Schedules I to III to Ex. D 1 and they are the joint family properties.
( 7 ) THE relationship between the parties is not in dispute. The following geneology of the family which is not in dispute shows the relationship of parties ; The further case of the plaintiffs is that there was no partition in the family ; that each of the plaintiffs is entitled to 1/8th share in the suit properties.
( 8 ) THE plaintiffs filed the suit for partition and separate possession of their 1 /8th share each in the suit properties, on 23-4-1973 in forma pauperis. On 17-8- 1974 the trial court, as a result of an enquiry, held that the plaintiff were paupers and permitted them to prosecute the suit in forma pauperis. Thus on 17-8- 1974 the suit came to be registered as o. S. No. 34/1974 in the court of the civil Judge, Raichur. However, for the purpose of limitation, 23-4-1973 is the date of filing the suit.
( 9 ) DEFENDANTS 1 and 3 have filed separate written statements.
( 10 ) FORM the aforesaid geneology it is clear that defendant-3 is no other than the paternal uncle of defendant-1. The case Of defendant-1 is that he and defendant-3 got divided the joint family properties soon after the death of K. Govinda Rao, the father of defendant-1 and brother of defendant-3. The properties
