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KARNATAKA HIGH COURT
N. Kumar and B. Sreenivase Gowda, JJ.
Vijayalakshmi & Ors. —Appellants
versus
Ananthakumar K.R. & Ors. —Respondents
Regular First Appeal No.76 of 2012 connected with Regular First Appeal No.77 of 2012
Decided on 25.6.2015
For the Appellants:Sri S.K.V. Chalapathy, Senior Counsel for Sri V. Ramesh Babu, Advocate
For the Respondents:Sriyuths C. Raghavendra Reddy, S.P. Kulkarni for K. Srikanth Patil and Ananth Mandagi, Senior Counsel for Y.V. Ashwath Narayana Reddy, Advocates
IMPORTANT POINT
Merely because in general power of attorney it is mentioned that defendants 1 & 2 co-owners, that by itself would not deprive plaintiffs of their right in said property which belongs to joint family.
Headnote:(i) Civil Procedure Code, 1908 — Order I, Rule 10 & Section 96 — First appeal — Partition and separate possession — Suit for — Dismissed — Appeal — Schedule properties belonged to Undivided Hindu Family of plaintiffs and defendants — Their mother filed written statement — Defendants 6 & 7 filed their written statement contending that plaintiffs and defendants son and wife respectively of late Sri R. Reddy — Inherited property which mentioned in registered partition deed — This document not in dispute — This document shows 11 items of properties including suit schedule properties fell to share of late Sri R. Reddy at partition effected between him and his brothers — During his lifetime no partition — HELD — In view of undisputed facts Trial Court justified in holding that schedule properties all joint family properties. (Para 32)
(ii) Civil Procedure Code, 1908 — Order I, Rule 10 & Section 96 — First appeal — Partition and separate possession — Suit for — Dismissed — Appeal — After death of R. Reddy in family was a talk of partition — Witness emphatically stated that mutation entries, katha entries not changed on basis of oral partition — After death of R. Reddy mutation entries and katha entries changed as they are legal heirs — Plaintiffs not given their ‘no objection’ — This evidence does not indicate that there was oral partition and in that oral partition schedule properties fell to share of defendants 1 & 2 and on basis of said oral partition they got khata and mutation entries changed into their names — HELD — Rightly Trial Court on appreciation of oral evidence held that oral partition pleaded by defendants 3, 6 & 7 not established. (Para 35)
(iii) Civil Procedure Code, 1908 — Order I, Rule 10 & Section 96 — First appeal — Partition and separate possession — Suit for — Dismissed — Appeal — Either after becoming absolute owners or even earlier at any point of time — Plaintiffs not conveyed their share in property in favour of defendant 6 — HELD — Said share of plaintiffs intact and not conveyed to defendant 6. (Para 39)
(iv) Civil Procedure Code, 1908 — Order I, Rule 10 & Section 96 — First appeal — Partition and separate possession — Suit for — Dismissed — Appeal — When plea taken by defendants that plaintiffs not included all joint family properties — Burden of proving that there exist properties other than what mentioned in plaint schedule and they available for partition — Rests on defendants. (Para 43)
Result: Appeals allowed.
N. Kumar, J.—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 family. She further submitted that she purchased the said Sy.No.36 measuring 4 acres 32 guntas fr
