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IN THE HIGH COURT OF KARNATAKA
N. Kumar and B. Sreenivase Gowda, JJ.
Vijayalakshmi and others - Petitioners
Vs.
Ananthakumar K.R. and others - Respondents
Regular First Appeal No. 76 of 2012 connected with Regular First Appeal No. 77 of 2012
Decided On : 25.6.2015
The plaintiffs filed a suit for partition and separate possession of the suit schedule properties. The defendants contended that the properties were not joint family properties and that they had been orally partitioned. The Trial Court dismissed the suit. On appeal, the High Court held that the properties were joint family properties and that the plaintiffs were entitled to a decree for partition in respect of their 3/5th share in all the plaint schedule properties.
Fact of the Case:
The plaintiffs, daughters of the deceased Ramachandra Reddy, filed a suit for partition and separate possession of the suit schedule properties, which were four items of landed property. The defendants were the son and wife of the deceased Ramachandra Reddy. The defendants contended that the properties were not joint family properties and that they had been orally partitioned. The Trial Court dismissed the suit.
Finding of the Court:
The High Court held that the properties were joint family properties and that the plaintiffs were entitled to a decree for partition in respect of their 3/5th share in all the plaint schedule properties.
Issues: 1. Whether the properties were joint family properties? 2. Whether the defendants had established the oral partition which they had pleaded? 3. Whether item 2 of the schedule property was a joint family property or the self-acquisition or separate property of the 2nd defendant? 4. Whether the plaintiffs had any share or right in item 4 of the schedule property in view of the compromise decree passed by this Court in RFA No. 114 of 2000? 5. Whether the findings of the Trial Court that the suit was bad for non-inclusion of all joint family properties was proper? 6. Whether the findings of the Trial Court that the alienations in favour of defendants 6 and 7 were for legal necessities and therefore, it is binding on the plaintiffs?
Ratio Decidendi: 1. The Court held that the properties were joint family properties on the basis of the following evidence: a. A registered partition deed dated 16-3-1970 showed that 11 items of the properties, including the suit schedule properties, fell to the share of the deceased Ramachandra Reddy at a partition effected between him and his brothers. b. The deceased Ramachandra Reddy died on 23-8-1989 intestate. During his lifetime, there was no partition. Therefore, in view of these undisputed facts, the Trial Court was justified in holding that the schedule properties were all joint family properties. 2. The Court held that the defendants had not established the oral partition which they had pleaded on the basis of the following evidence: a. The plaintiffs' evidence that there was an oral statement that they would be given their share, but there was no specification of the share. b. The plaintiffs' evidence that the mutation entries and katha entries were not changed on the basis of oral partition. After the death of Ramachandra Reddy, the mutation entries and katha entries were changed as they are the legal heirs. Plaintiffs have not given their no objection'. 3. The Court held that item 2 of the schedule property was a joint family property on the basis of the following evidence: a. A general power of attorney executed by defendants 1 and 2 in favour of the Secretary of the Karnataka Electricity Board Employees Co-operative Society Limited, wherein the defendants 1 and 2 are shown as the absolute owners of item 2 of the schedule property. b. In pursuance of the power of attorney, the said document is signed by the second defendant not only on her behalf but also on behalf of the plaintiffs as guardian as they were all minors at that time. c. In pursuance of the said power of attorney, the power of attorney holder has executed the absolute sale deed in favour of defendant 7 on 8-7-2002. In the sale deed it is recited that Mr. K.H. Ramachandra Reddy passed away intestate on 23-8-1989, leaving behind the vendors 1 and 2 i.e. defendants 1 and 2 to succeed to his estate as the only legal heirs. The property mentioned in the sale deed i.e. item 2 of the suit schedule property is the absolute property of defendants 1 and 2 and ever since the date of acquisition of the above mentioned property, defendants 1 and 2 have been paying the property tax to the jurisdictional Competent Authorities and the mutation records have been registered in the name of the first defendant in the revenue registers of the jurisdictional Revenue Authorities and is in possession and enjoyment of the same as absolute co-owners without any let or hindrance from any one. 4. The Court held that the plaintiffs had no share or right in item 4 of the schedule property in view of the compromise decree passed by the High Court in RFA No. 114 of 2000, which declared the plaintiffs and defendants 1 and 2 as the full and absolute owners of item 4 of the schedule property and cancelled the sale deed executed by the deceased Ramachandra Reddy in favour of Narasimha Gupta on 1-3-1978. 5. The Court held that the findings of the Trial Court that the suit was bad for non-inclusion of all joint family properties was not proper, as the defendants had not proved that there existed properties other than what is mentioned in the plaint schedule and that they were available for partition. 6. The Court held that the findings of the Trial Court that the alienations in favour of defendants 6 and 7 were for legal necessities and therefore, it is binding on the plaintiffs was not proper, as the alienations were made during the pendency of the suit and were hit by the doctrine of lis pendens.
Final Decision: The appeals were allowed. The plaintiffs were entitled to 3/5th share in only 20 guntas of land in item 1 of the plaint schedule property; 3/5th share in all the remaining items 2, 3 and 4 and also in Sy. No. 66/1, the land granted to the second defendant. The dismissal of the suit in respect of 'B' Schedule properties was affirmed as no arguments were canvassed before the Court. It was made clear that though property bearing Sy. No. 66/1 is not included in the plaint schedule, the same shall be included in the plaint schedule and while effecting partition in the final decree proceedings, that property also shall be taken into consideration. The plaintiffs were directed to include the said survey number in the plaint schedule as item 5. A cost of Rs. 10,000/- was imposed on both the plaintiffs and on the defendants 6 and 7 for filing defective pleadings and defective paper book without proper verification as required in law.
Key Points: - The plaintiffs are entitled to 3/5th share in specific items of the joint family property (!) (!) . - The properties were held to be joint family properties based on the partition deed and lack of subsequent partition (!) (!) (!) . - The oral partition claimed by the defendants was not established on the record (!) (!) (!) . - Item 2 was ruled a joint family property despite registered transfers, as the plaintiffs were included as co-owners (!) (!) (!) . - The plaintiffs have a share in item 4 under the earlier compromise decree and are entitled to respective share in partition (!) (!) (!) . - The suit was not maintainable for non-inclusion of all joint family properties, but this ground was not properly examined (!) (!) (!) . - Alienations during pendency of the suit were hit by the doctrine of lis pendens and are not binding on the plaintiffs (!) (!) (!) (!) . - The trial court’s dismissal was set apart, and the suit was allowed with specified shares (!) (!) (!) (!) . - The property Sy. No. 66/1 is to be included in the plaint schedule and taken into account for partition (!) (!) (!) (!) . - Cost was imposed for defective pleadings and paper book (!) (!) (!) .
These are plaintiffs' regular first appeals against the judgment and decree of the Trial Court which had dismissed the suit for partition and separate possession. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.
2. The subject-matter of the suit is four items of landed property bearing Sy. No. 35 measuring 1 acre 20 guntas, Sy. No. 36 measuring 4 acres 32 guntas, Sy. No. 37 measuring 2 acres 25 guntas and Sy. No. 74/4A measuring 1 acre 38 guntas, all situate in Kasavanahalli Village, Varthur Hobli, Bangalore South Taluk, which are more particularly described in the schedule to the plaint (hereinafter referred to as the 'schedule properties'). 'B' schedule property is movable properties.
3. The plaintiffs are the daughters, defendant 1 is the son of defendant 2, who is the wife of deceased Ramachandra Reddy. During the lifetime of the deceased Ramachandra Reddy, the suit schedule properties were in the possession and enjoyment of plaintiffs' family members and that Ramachandra Reddy was looking after the family affairs in the capacity of Manager/Kartha. Ramachandra Reddy died on 23-8-1989 intestate. After the death of Ramachandra Reddy, plaintiffs and defendants 1 and 2 have succeeded to the estate of the deceased Ramachandra Reddy and since then, they have been enjoying the schedule properties jointly.
4. It is the specific case of the plaintiffs that the land bearing Sy. Nos. 35, 36 and 37 belonged to undivided Hindu Joint family of defendants 1 and 2 and therefore, plaintiffs are entitled to the share in them.
5. It is the further case of the plaintiffs that, defendants 1 and 2 have entered into an agreement to sell with defendants 3 and 4, the suit schedule properties for a lesser market price at the rate of Rs. 3,60,000/- per acre, in order to make unjust profit behind the plaintiffs. Plaintiffs have got specific share in the suit schedule properties. Defendants 1 and 2 have no right, title over the share of the plaintiffs and that defendants 3 and 4 will not derive perfect title over the shares of plaintiffs and no title passes to the defendants 3 and 4. On purchase of plaintiffs shares from defendants 1 and 2, the defendants 3 and 4 will not get title on the share of the plaintiffs. The sale agreement has taken place without the knowledge of the plaintiffs. As on the date of the transaction, the plaintiffs are majors and they are competent to sell their share to anybody in their individual capacity or in joint and hence, the sale transaction is void under law and the same is not sustainable.
6. Plaintiffs are not in good terms with defendants 1 and 2 and therefore, they demanded their shares about three years back and on 25-11-1994 and subsequently. Defendants 1 and 2 refused to give their shares. Hence, the plaintiffs filed the suit for partition and separate possession of the suit schedule properties.
7. Subsequently, the plaint was amended by an order dated 19-1-2000, wherein item 4 was added to the suit Schedule 'A'.
8. After service of summons, the second defendant has filed a written statement. She has admitted the relationship with the plaintiffs. She also admitted the nature of the properties, death of Ramachandra Reddy and all of them succeeding to his estate. She stated that during the lifetime of late Ramachandra Reddy, plaintiffs and first defendant and the said Ramachandra Reddy had sold 'A' Schedule item 2 in favour of one Sri Meda Viswanatham under a registered sale deed dated 6-9-1985 for Rs. 92,000/-. That being so, the suit 'A' schedule Item 2 is no more a property belonging to the joint family of the plaintiffs and defendants 1 and 2. Suit items 1 and 3 are the only joint family properties. Hence, plaintiffs, defendants 1 and 2 are entitled to equal share in items 1 and 3 of the plaint 'A' Schedule property, being the members of the joint
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