IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA REGULAR SECOND APPEAL No.36 OF 2006 (PAR) BETWEEN KRISHNEGOWDA SINCE DECEASED BY LRS 1. GANGAMMA W/O LATE KRISHNEGOWDA AGED ABOUT 70 YEARS 2. NINGAMMA 2ND W/O LATE KRISHNEGOWDA AGED ABOUT 60 YEARS 3. CHANNAKESHAVA S/O LATE KRISHNEGOWDA AGED ABOUT 40 YEARS SL.NO.1 TO 3 ARE RESIDING AT ARKALGUD VILLAGE, KASABA HOBLI, ARKALGUD TALUK, HASSAN.
4. MEENAKSHI, D/O LATE KRISHNEGOWDA, W/O MALLEGOWDA, AGED ABOUT 35 YEARS, R/AT LAKSHMIPURA VILLAGE, PALYA HOBLI, ALUR TALUK, HASSAN.
5. BHAGYA D/O LATE KRISHNEGOWDA W/O SWAMYGOWDA, AGED ABOUT 33 YEARS, R/AT PERUMANAHALLI VILLAGE, SHANTIGRAMA HOBLI, HASSAN TALUK HASSAN ... APPELLANTS (BY SRI R.S.RAVI & SRI NARENDRA GOWDA, ADVOCATES) AND :
HUCHEGOWDA SINCE DECEASED BY LEGAL REPRESENTATIVES 1. GOWRAMMA, W/O LATE HUCHEGOWDA AGED MAJOR, 2. SANNAMARIGOWDA S/O LATE HUCHEGOWDA AGED MAJOR, 3. JAGADEESHA S/O LATE HUCHEGOWDA AGED MAJOR, 4. GANGADHARA S/O LATE HUCHEGOWDA, 5. VISHALAKSHI D/O LATE HUCHEGOWDA, 6. CHANDRAMMA D/O LATE HUCHEGOWDA SL.NO.4 TO 6 ARE MINORS, SL.NO.1 TO 6 ARE RESIDING AT CHIKKA ARAKALGUD I COLONY, KASABA HOBLI, ARKALGUD TALUK HASSAN 7. GANGAMALAMMA W/O SANJEEVEGOWDA, AGED MAJOR R/O AKKIUPPAR KOPPALU, KASABA HOBLI, ARKALGUD TALUK, HASSAN.
8. JAVARAMMA W/O SANNAPPA SINCE DEAD BY LEGAL REPRESENTATIVES (a) NANJEGOWDA, D/O SANNAPPA AGED ABOUT 45 YEARS, (b) RANGANNA, S/O SANNAPPA, AGED ABOUT 40 YEARS, BOTH ARE RESIDING AT SALAGERI VILLAGE, ARAKALGUD TALUK, HASSAN DISTRICT.
(c) JANAKAMMA, W/O SWAMY GOWDA, AGED ABOUT 42 YEARS, R/AT ARAVATTIGE TITTU, ARAKALGUD POST AND TALUK, HASSAN DISTRICT.
(d) SHIVAMMA, W/O RAVI, AGED ABOUT 42 YEARS R/AT SALAGERI VILLAGE, ARAKALGUD POST AND TALUK, HASSAN DISTRICT.
(e) NAGAMMA, W/O NAGANNA, AGED ABOUT 36 YEARS, R/AT ARAVATTIGE TITTU, ARAKALGUD POST AND TALUK, HASSAN DISTRICT.
(f) NINGAMMA, W/O RANGEGOWDA, AGED ABOUT 41 YEARS, R/AT HATNI POST, BARE SIDDAPURA VILLAGE, ARAKALGUD TALUK, HASSAN DISTRICT.
(g) LAKSHMAMMA, W/O MANJEGOWDA, AGED ABOUT 34 YEARS, R/AT KINDIPURA VILLAGE, MUGALURU DAKHALI, KUPPALLI POST, HASSAN TALUK AND DISTRICT.
(h) THIMMAMMA, W/O GANGADHARA, AGED ABOUT 33 YEARS, R/AT SALAGERI VILLAGE, ARAKALGUD POST & TALUK, HASSAN DISTRICT.
(i) TULASAMMA, D/O SANNAPPA, R/AT SALAGERI VILLAGE, ARAKALAGUD POST AND TALUK, HASSAN DISTRICT.
9. THAYAMMA, D/O SANNAMALLEGOWDA, AGED MAJOR, R/AT HAMPAPURA, KASABA HOBLI, ARAKALGUD TALUK, HASSAN DISTRICT. ... RESPONDENTS (BY SRI A.RAVISHANKAR, ADVOCATE FOR R1 TO R6 VIDE ORDER DATED 24.08.2010 APPEAL ABATED AGAINST R7, SRI R THARESHA, ADVOCATE FOR R8(g) R8(a) to (f) and (h) & (i) ARE SERVED, SRI S.R.NITHYANANDA, ADVOCATE FOR R9) THIS RSA FILED U/S 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 9.9.2005 PASSED IN R.A.NO.3/2000 ON THE FILE OF THE PRESIDING OFFICER AND ADDL. DIST. JUDGE, FTC-I, HASSAN, PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DT.22.11.1999 PASSED IN O.S.NO.57/1991 ON THE FILE OF THE CIVIL JUDGE (SR.DN) AND ADDL. CJM, HOLENARASIPURA.
THIS RSA COMING ON FOR FURTHER ARGUMENTS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This second appeal is by the defendants No.1(a)to 1(e) in O.S.No.57/1991 on the file of Civil Judge (Jr.Dn.) and JMFC, Holenarasipura.
2. Admittedly, the suit in O.S.No.57/1991 is filed by one Huchegowda, husband of first respondent and father of Respondents No.2 to 6. The said suit is for the relief of partition of suit schedule Items Nos.1 to 8 contending that they are the joint family properties of their father, Sannamallegowda in which, the original plaintiff and original first defendant, Krishnegowda have 50% share to each of them.
3. In the said suit, on service of summons, Krishnegowda, the sole defendant in the original suit entered appearance, denied the plaint averments on the ground that the suit schedule properties are not the joint family properties and infact there is no joint family in existence in as much as partition had taken place in the joint family in the year 1958 itself. In the said partition between the original plaintiff and himself, some of the suit schedule properties fell to his share and some of the suit schedule properties are purchased by him from out of his own funds and as such, the suit is not maintainable. Alternatively, by way of defence, first defendant has also contended that ultimately, in the event, the partition is required to be considered, then two items of properties bearing Sy.No.185 of Hullikoppalu Village of Arakalgud Taluk, measuring to an extent of 4 acres granted to the plaintiff Huchegowda, his wife Sannamma, his another wife Gowramma and daughter Smt.Padmamma and 06 guntas of land purchased by the plaintiff from Sri.A.V.Ramamurthy in Sy.No.185 should also be included for the purpose of partition. (However, there is doubt whether altogether 4 acres of land was granted in the name of each one of the aforesaid persons or 4 acres each in the name of them and the same is required to be clarified at the time of FDP proceedings).
4. Thereafter, the matter went into trial.
Wherein on behalf of the plaintiff, he got examined himself as PW-1 and got examined another person by name Rangegowda as PW-2. In support of his case, he produced and got marked in all Exs.P1 to P9. On behalf of the defendants, first defendant - Krishnegowda’s son Chenna Keshava adduced evidence as DW-1, he also got examined two other witnesses as DWs-2 and 3 and got marked in all 76 documents as Exs.D1 to D76.
5. The Court below based on the pleadings, oral and documentary evidence available on record proceeded to answer Issue Nos.1, 2 and 4 in the negative, thereby holding that the first defendant has not proved the partition as contended in Para No.1 of the Written Statement, so far as suit schedule Item Nos.1 to 5 which are pleaded as self-acquired properties is also not proved and the defence that suit schedule Item No.5 had come to the share of first defendant in the partition as averred in Para No.7 of his Written Statement is also not proved. While doing so, Issue Nos.3 and 5, which are with reference to whether suit schedule Item Nos.7 and 8 of suit properties are also joint family properties and whether plaintiffs are entitled to half share in all the suit properties are answered in the affirmative and consequently, decreed the suit of the plaintiff. While doing so, on Issue No.6 which is with reference to the plaintiffs prayer for mesne profits under Order 20 Rule 12 of the Code of Civil Procedure ordered a separate enquiry in that behalf.
6. The defendants being aggrieved by the same had preferred an appeal in R.A.No.3 of 2000 on the file of Fast Track Court – I and Additional District Judge, Hassan, wherein the lower Appellate Court framed in all 8 points for consideration. Thereafter, on re-appreciation of the grounds of appeal with reference to the material available on record answered Point Nos.1 to 3 and 6 in the negative, which are with reference to whether the appellants prove that they have been prejudiced by non-framing of issues regarding proof of joint nature of the plaint schedule properties, whether the Trial Court has erred in holding that the partition of the year 1958 is not proved and whether suit schedule Item Nos.1 to 5 are not the self-acquired properties of the first defendant. Similarly, with reference to Point No.6 regarding the Trial Court committing an error in ordering for conducting an enquiry with regard to mesne profits is also answered in the negative. Regarding Points No.4, 5 and 7 which are whether there is an error on the part of Trial Court in holding that the suit schedule Item Nos.7 and 8 are the joint family properties and whether the trial court erred in declaring half share to the plaintiff in plaint schedule properties are held to be in the affirmative and so far as Point No.7, whether the judgment and decree of the Trial Court in holding that plaintiffs are entitled to half share in the suit schedule properties and the judgment and decree passed by the Trial court needs any interference are answered in the affirmative and consequently, allowed the appeal modifying the judgment so far as it pertains to the share of plaintiffs in holding that the original plaintiff is entitled to 1/3rd share in the joint family properties instead of half share. Further, with regard to notional share allotted to the share of father of the original plaintiff and first defendant – Sannamallegowda, who had 1/3rd share, the same is divided into five equal shares between original plaintiff, his brother - first defendant and his sisters in suit schedule Items Nos.1 to 6 only.
7. Being aggrieved by the judgment and decree of the lower appellate court, the wife and children of Krishnegowda - original first defendant in the court below have come up in this appeal impugning the concurrent findings of both the Courts below in decreeing the suit of the original plaintiff initially for 50% share and subsequently, in modifying the same to an extent of 1/3rd share with reference to suit schedule Item Nos.1 to 6 and further ordering that the original plaintiff is also entitled to 1/5th share out of his father’s notional 1/3rd share.
8. When this matter was taken up for admission, this appeal was admitted to consider the following substantial question of law:
i) Whether the Courts below are justified in decreeing the suit filed by the respondent herein? and ii) Having come to the conclusion that the appellants have not proved the partition of the year 1958, whether the Courts below are right in not including the lands in Sy.Nos.1, 18 and 185, which stand in the name of the plaintiffs for partition?
9. Thereafter, this Court by securing the lower Court records heard the learned counsel for the appellants as well as the contesting respondents who are plaintiffs in the Court below and on appreciating the oral and documentary evidence as well as the judgment of both the Courts below would answer the substantial questions of law in the affirmative, for the following reasons:
(a) Admittedly, the original plaintiff, Huchegowda and original first defendant, Krishnegowda are brothers and sons of one Sannamallegowda. It is not in dispute that both of them lived along with their father in the joint family house where their father was an agriculturist and as well as a Contractor with the Forest Department for supply of Sandalwood to Government Kottige and was also carrying out contract work for Public Works Department. The records would indicate that the first defendant, i.e., the first son of Sannamallegowda was educated and he was supporting his father in Sandalwood business as well as contract work.
(b) After the death of his father, he got the responsibility of carrying out the family business and was continuing as such, which is not in dispute. However, what is in dispute is, whether there was severance of status between the sons of Sannamallegowda in the joint family and as well as severance of status in the joint family properties. In this behalf, what is to be seen is that, prior to the filing of partition suit by the original plaintiff - Huchegowda in O.S.No.57/1991, the first defendant in the said suit, namely Krishnegowda had initiated a suit in O.S.No.245/1979 on the file of Munsiff Court, Holenarasipura for the relief of permanent injunction with reference to suit schedule Item Nos.4 to 6 in the present suit wherein he had sought that they are the absolute properties of himself, which he has secured in a partition that had taken place between himself and his brother in the year 1958.
(c) In the said suit (O.S.No.245/1979), plaintiff Huchegowda in O.S.No.57/1991 was the defendant and he had taken a specific defence that there was no severance of status in the joint family of Sannamallegowda and as such, all the suit schedule properties in O.S.No.245/1979 and other properties, which are standing in the name of first defendant, Krishnegowda are all joint family properties and not the self-acquired properties of first defendant. The said suit was subsequently transferred to the Munsiff Court, Arakalgud and was renumbered as O.S.No.71/1983 and the said suit was dismissed on merits in holding that there is no severance of status between the sons of Sannamallegowda and they continued to live in the joint family as they did during the lifetime of their father, Sannamallegowda.
(d) The said judgment and decree in O.S.No.71/1983 was the subject matter of appeal in R.A.No.44/1992 on the file of Fast Track Court-I and Additional District Judge, Hassan wherein the lower Appellate Court on re-appreciation of evidence of plaintiffs and respondents therein as well as the material available on record proceeded to dismiss the appeal filed by Krishnegowda – first defendant.
(e) Though the legal representatives of Krishnegowda have urged that there is severance of status in the family of Sannamallegowda, which was rejected and declared that there is joint family status between Krishnegowda and his brother Huchegowda, who is defendant in O.S.No.71/1983. As such, the properties shown in said suit and other properties standing in the name of each one of them are the joint family properties. In this background, the present suit O.S.No.57/1991 is filed by the defendant Huchegowda in O.S.No.71/1983 for the relief of partition of suit schedule properties and his undivided 50% share in the said suit.
(f) In the said suit, several defences are raised by the first defendant contending that the business which is conducted in supplying Sandalwood billets to Government Kottige is the personal business of first defendant Krishnegowda and that P.W.D. contract work is also his personal business and the extent of land, which is granted in the name of himself and his two wives, are the independent properties of himself and his two wives and the properties standing in the name of his daughter are also his independent properties, are not accepted by the Court below.
(g) The further defence of first defendant that some of the suit schedule properties are the absolute properties of himself is also rejected. While doing so, the Trial Court has held that two items shown in the Written Statement of the defendant i.e., item Nos.7 and 8 should also be included for partition, which was subject matter of appeal in R.A.No.3/2000 on the file of Fast Track Court – I and Additional District Judge, Hassan wherein the lower Appellate Court, in the light of the earlier finding given in O.S.No.71/1983, which has reached finality in R.A.No.44/1992 and the same is not challenged by Krishnegowda by accepting that there is no severance of joint family status in the joint family of Sannamallegowda and that all the suit schedule properties are the joint family properties and in that background, the appeal filed by the defendant also came to be rejected.
(h) While re-considering the judgment passed in O.S.No.57/1991, the lower Appellate Court when it comes to Item No.7 held that there is no such property and so far as Item No.8 is concerned, held that the same is a granted land to Huchegowda – plaintiff. Therefore, it is held that it is self-acquired property of plaintiff. As such, the legal representatives of first defendant/ Krishnegowda have come up in this second appeal.
(i) Though in this appeal no cross-objections are filed by Huchegowda, this Court can consider the right of parties with reference to the status as well as the title to the property. When the entire material available on record is assessed, what could be seen is the nucleus to acquire properties either by plaintiff or by defendant in their individual name or in the name of their respective wives and children or in the name of joint family is from the properties of the family of Sannamallegowda. The record would indicate that certain lands were acquired by the Government for construction of Hemavathi Dam. At that time, certain extent of land is granted to the land losers, in addition to payment of compensation to them.
(j) The records would clearly indicate that in these proceedings, certain amount of compensation is received by Huchegowda and as well as first defendant Krishnegowda, in addition to that, one of the sisters of the plaintiff and first defendant has also received certain amount from the Land Acquisition Body thereby confirming the joint status of them even as on the date when the lands were acquired for construction of Hemavathi Dam. While doing so, certain lands are granted to them nearer to the place where the acquisition of land has taken place. If that is looked into from the evidence, what is available on record is an extent of 16 acres of land is allotted to Huchegowda, which is in the form of 4 acres to Huchegowda and 4 acres each to his two wives and 4 acres to his daughter Smt.Padmamma.
(k) Though in the proceedings before the Trial Court, original first defendant is able to demonstrate as if the family of Huchegowda had taken certain lands on lease and the same being acquired and utilized for construction of Dam and that they are given alternate land. Even that cannot be considered as absolute property of Huchegowda and his branch, when all of them were living jointly, lease hold right or grant in the name of any one of them is for the benefit of the joint family, even though the said lease or grant was in their individual name. In the Court below, none of them were able to demonstrate that in their individual capacity they have secured such grant.
(l) The records would indicate that the joint family status is not severed between them even though each one of them were carrying on business or agricultural activity. Hence, the business conducted by them and cultivation of land on lease hold right or grant made in the name of any one of them is in the capacity of a member of the joint family. That being the case, the defence that they are individual properties of first defendant would not stand to reason. Therefore, all the properties are in fact the properties of the joint family and as such, are available for partition between the two families, namely, the family of Krishnegowda and the family of Huchegowda, who are no longer alive, subsequent to the filing of suit.
(m) When this matter was heard at length, learned counsel fairly conceded that the grant which is made in the name of plaintiff, plaintiff’s wives and daughters and defendants is during the period when the parties were living in joint family. Thereby, indicating that they were all living jointly and if that is accepted, it is needless to say that the said lands belong to joint family and the said properties are joint family properties. Therefore, this Court while answering the substantial questions of law in the affirmative would dispose of this appeal.
10. While doing so, this Court reserves liberty to the plaintiffs and defendants in whose name the properties were standing prior to the year 1991 and all those properties which stood in the name of each of the plaintiffs and defendants are to be considered as joint family properties in which, 1/3rd is the share of original plaintiff in all suit schedule Item Nos.1 to 8, properties, which were held by the lineal descendants of Huchegowda and Krishnegowda prior to filing of O.S.No.57/1991, i.e., on 16.09.1991, i.e., the date of filing of the suit and all such properties are subject to be divided in the following manner. 1/3rd share to the first plaintiff Huchegowda’s family and 1/3rd share to the original first defendant Krishnegowda’s family and 1/3rd share, which is notional share of Sannamallegowda in which Huchegowda’s family and Krishnegowda’s family will have 1/5th share each along with three sisters who are defendants Nos.2 to 4 in the said suit, who will get 1/5th share each.
(a) To secure their 1/5th share in the FDP, the lineal descendants of Huchegowda and Krishnegowda are directed to get themselves impleaded as parties and that the properties held by them prior to 16.09.1991 is ordered to be deemed as joint family properties. The parties are entitled to share in the aforesaid manner, which the FDP Court will accordingly decide.
(b) It is further made clear that while deciding the FDP proceedings 4 acres of land, which was granted in favour of Padmamma, who was the daughter of Huchegowda when she was a spinster which is said to be given to her after her marriage is not to be disturbed. Accordingly, this appeal is disposed of with inclusion of additional properties.
Since the appeal is disposed of, Misc.Civil No.6818 of 2011 and I.A.No.1 of 2012 does not survive for consideration.
Sd/- JUDGE dh