2020 Supreme(Kar) 128

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
B.V. Nagarathna, Suraj Govindaraj, JJ.
Padmavathi W/o Sri. S. Jagadish Kumar and Ors. – Appellants
Versus
Smt. Jayamma W/o P. Siddappa – Respondent
R.F.A. No. 916 of 2014 c/w R.F.A. CROB. 8 of 2019 (PAR)
Decided On : 15-05-2020

Headnote:

Hindu Succession Act, 1956 - Section 6 - Hindu Marriage Act - Section 16 – Indian Penal Code - Section 494 and 495 - Civil Procedure Code, 1908 - Order XX - Rule 2 - Movable or immovable properties - Share in property – Tenants - Whether Plaintiffs prove that suit schedule properties are joint family properties as pleaded - Whether 1st Defendant proves that plaint Schedule ‘B’ & ‘C’ properties are her separate properties as contended - Whether Plaintiffs are entitled to share in Suit properties - Whether presumption is refuted or not - Whether Learned could raise issue of res judicata which was not covered by pleadings mainly relying on reply statement filed by Plaintiff without permission of Court - He had six sons viz. who succeeded to his estate as legal heirs and effected a partition of properties through a registered deed of Partition - At time of said Partition had also expired and his branch was represented by and through his wife three sons viz., and one daughter viz., - At said Partition a share in the property came to be allotted in favor who is none other than husband of 1st Defendant father of 2nd to 7th Defendants father in law of 1st Plaintiff and grandfather of 2nd Plaintiff - In said Partition immovable property bearing No.23 situate at Road which consisted of one Mangalore tiled house with a vacant site abutting it was allotted to who later on converted Mangalore tiled house into four tenements as also took up construction of main house and nine shop premises in vacant site - Entire property has been described in Schedule-A to plaint – Held, Evidence on record both oral and documentary trial Court by referring to sub-Para (4) of Para 22 (3) of Principles of Hindu Law held that property got by as a share allotted to him in Partition of ancestral property is his ancestral property as regards his male issue 2nd Defendant – Therefore trial Court held that insofar as 2nd Defendant is concerned suit Schedule-A property was ancestral property - Trial Court further went on to hold that as regards other persons Schedule-A property is separate property and if 2nd Defendant coparcener had died without leaving behind any male issues suit Schedule-A property would pass on to his heirs by succession - Hence suit Schedule- A property was joint family property of Plaintiffs and 1st to 7th Defendants - Trial court has observed 1st Defendant’s contention that 2nd Defendant had married one and out of their wedlock were born and has noticed that 1st Defendant had made said statement in her written statement and that Plaintiffs have not chosen to file any rejoinder to said averment of 1st Defendant – Subsequently who were imp leaded as 16th and 17th Defendants had their written statement signed by 1st Defendant as their natural guardian since she was grandmother of 16th and 17th Defendants - In said written statement it is contended that Plaintiffs have never cared for well being of father of 16thand 17thDefendants 2nd Defendant that Plaintiffs had left and deserted 2nd Defendant - After that 2nd Defendant married their mother out of which wedlock 16th and 17th Defendants were born - Above averments having been made in written statement filed Plaintiffs had not chosen to file any rejoinder to said averments - Trial Court further observed that Plaintiffs have not specifically denied relationship of 16th and 17th Defendants with 2nd Defendant and held that if there is no denial or definite refusal to admit fact then said fact stands admitted - Trial court further observed that since there is no denial made by filing of a rejoinder there was no issue framed by Court for consideration in that regard - Trial court further observed that PW-1 had initially filed her evidence in lieu of evidence and additional affidavit came to be filed which was subsequent to written statement filed by 16th and 17th Defendants which was so filed - PW-1 has not denied relationship of 16th and 17th Defendants with 2nd Defendant - It is further contended that trial court has not taken into consideration admissions of DW-4 that income from item No.1 in ‘C’ Schedule property is shown in joint family returns - When asked as regards item No.2 of Suit Schedule-C property, DW-4 has categorically stated that she was not ready to give answers to questions pertaining to suit Schedule properties - When witness was not ready to answer questions relating to suit properties trial Court ought to have drawn an adverse inference - Trial court failed to take into account fact that Schedule-B property was purchased during lifetime by utilizing joint family funds and purchase was made in name of 1st Defendant who was his wife - Appellants contend that properties purchased in name of one of co-owners by utilizing funds of all coparceners cannot make such co-owner absolute owner of property – Hence properties were treated as joint family properties - Appellants contend that Plaintiffs and Defendants have an equal share in Suit properties - In court opinion pleadings would be complete with filing of plaint written statement or additional written statement to a set-off or any counter-claim with leave of Court - Any addition or deletion permitted under Rule 17 of Order VI C.P.C. and not by granting leave to file replication - For amendment of pleadings permission of Court is required to be obtained as is clear from words contained in Rule 17 of Order VI C.P.C - In said view of matter Trial Court is right in recording finding that when once Defendant places his defense by way of a written statement there is no provision to file a replication to written statement - Appeal is allowed