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KARNATAKA HIGH COURT
N. Kumar and B. Sreenivase Gowda, JJ.
Smt. Lakshmama —Appellant
versus
Manju —Respondent
Regular First Appeal No.155 of 2011
Decided on 23.6.2015
Counsel for the Parties:
For the Appellant:Sri L. Govindraj, Advocate
For the Respondent:Sri C.V. Sheelavanth, Advocate
IMPORTANT POINT
Apart from plaintiff and defendant, their mother is sharer, she entitled to 1/3rd share, mother filed application to implead herself, Court without considering application could not dismissed suit on ground of non-joinder of necessary parties.
Headnote:(i) Civil Procedure Code, 1908 — Order I, Rule 10 (2) — Application under — For impleading as party to suit — House property not included on day plaint was filed — By amendment property included — In affidavit filed in support of application stated that it is joint family property — It was not included earlier and permission sought to include said property — Amendment allowed — But contents of affidavit not reflected in plaint — She claiming right to property as daughter — Fact that said property stood in name of Father not in dispute — Whether said property was joint family property or self-acquired property of her father — She entitled to a share in property — On ground that in plaint nature of property not mentioned or on ground that she not spoken about nature of property in her evidence — Court could not have declined to grant share in said property. (Para 12)
(ii) Civil Procedure Code, 1908 — Order I, Rule 10 (2) — Suit for partition — All to be made parties — In absence of sharers who necessary parties to suit — No effective decree for partition could be passed. (Para 13)
Result: Appeal allowed.
N. Kumar, J.—The plaintiff has preferred this regular first appeal challenging the judgment and decree of the Trial Court which has dismissed the suit of the plaintiff for partition and separate possession.
2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.
3. The plaintiff Smt. Lakshmamma and defendant Manju are the children of Rangegowda. Originally, the suit was filed only in respect of agricultural land bearing Sy. No.148/P2 measuring 3 acres situated at Kalalavadi Village, Jayapura Hobli, Mysore Taluk. The said land was granted to Rangegowda by the Government by its order dated 22.8.1973. The case of the plaintiff is, from the date of grant, Late Rangegowda along with the plaintiff and defendant was in joint possession and enjoyment of the suit schedule property. After the demise of Rangegowda, the defendant was managing the suit schedule property. The defendant taking advantage of the illiteracy and ignorance of the plaintiff, without the knowledge and consent of the plaintiff changed the revenue documents such as RTC and other documents into his name. He was making all arrangements to sell away the suit schedule property. The plaintiff approached him and requested for her legitimate share. She was not given. Therefore, the plaintiff filed the suit for partition and separate possession. Subsequently, by way of an amendment application, she included a house property bearing No. 2391, CH4, 7th Cross, K.G. Koppal, Mysore, as the second item and she sought for half share in the said property also.
4. The defendant filed a detailed written statement. He denied the plaint allegations but he did not dispute the relationship between the parties. It is his case, after marriage, plaintiff is residing with her husband since 30 years. She has become a member of the husband family and ceased to be a member of the defendant’s family. The defendant and his father were jointly cultivating the suit schedule property and after the death of his father, he continues to cultivate the same. Their father died 32 years back. After his death, katha of the property has been made out in his name. The plaintiff did not put forth her claim. Now, the market value of the property has gone up considerably. The present suit is filed for partition. It lacks bona fides. The plaintiff has not come to the Court with clean hands. The plaintiff is not entitled to any share.
5. After the amendment of the plaint, he also filed an additional written statement. He contended that the suit is barred by limitation. He also contended that, as their mother is not made a party to the proceedings, the suit is bad for non-joinder of necessary parties.
6. On the aforesaid pleadings, the Trial Court framed the following issues:
1. Whether the plaintiff proves that suit schedule item 2 is a joint family property and she is in joint possession thereof?
2. Whether the defendant proves that this suit is bad for non-joinder of necessary parties?
3. Whether the defendant proves that the suit is barred by limitation?
4. Whether the plaintiff is entitled for partition and separate possession of her share in the suit schedule properties as prayed?
5. Whether the plaintiff is entitled for mesne profits as prayed?
6. What order or decree?
7. The plaintiff in order to substantiate her claim examined herself as PW 1 and produced 2 documents which are marked as Exs.P1 and P2. On behalf of the defendant, he was examined as DW1 and no documents were produced.
8. The Trial Court on appreciation of the evidence on record held that, insofar as item 2 of the suit schedule property is concerned, though it was included by way of amendment, the plaintiff has not stated the nature of the said property and, therefore, when the plaintiff has failed to prove that it is a joint family property, she is not entitled to any share therein. It held that, as the property belonged her father, he died leaving behind his widow, a son and
