IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR FIRST APPEAL No.1396 OF 2003 BETWEEN 1. Mohana Kumara, S/o. Lakshmana Shetty, Aged 32 years, Occ: Agriculture, 2. Lokesh Shetty, S/o. Lakshmana Shetty, Aged 25 years, Occ: Agriculture, 3. Lakshmana Shetty, S/o. Late Thimma Shetty, Aged about 67 years, All are R/o. Allampura Village, Kasaba Hobli, Taluk: Kaimara Post, Chikkamagalur District.
(Amended cause title as per vide court order dated 16.01.19) (By Sri.A.Madhusudhana Rao, Advocate) AND 1. Siddamma, W/o. B.Parameshwarappa, Age 43 years, Occ: School Teacher, …Appellants 2. Neelamma, W/o. Ananthashetty, Age: 41 years, Occ: House wife, Both are R/o. Allampura Village, Kasaba Hobli, Kaimara Post, Chikkamagalur District.
(By Sri.C.N.Kamath, Advocate for R-1 & R-2) …Respondents This RFA is filed under Section 96 of CPC, against the judgment and decree dated 08.08.2003 passed in O.S.No.100/97 on the file of the Civil Judge (SD), Chikkamagalur, decreeing the suit for partition and separate possession.
This RFA coming on for hearing this day, the court delivered the following:
JUDGMENT The defendants in O.S.100/1997 on the file of Senior Civil Judge, Chikmagalur, have preferred this appeal challenging the judgment and decree dated 9.8.2003. The suit is for partition. The relationship between the parties are shown in the genealogy given as below :-
GENEALOGY TREE IN R.F.A.No.1396/2003 Thimma Shetty (dead) Puttamma (dead) Lakkamma (Hucchashetty – 1st Husband)(Dead)-(Plaintiff No.1) First Wife Second Wife
2. The first plaintiff Lakkamma is the second wife of the propositus namely Thimma Shetty. Before marrying Thimma Shetty, the first plaintiff had a husband by name Hucha Shetty. After the death of Hucha Shetty, Lakkamma married Thimma Shetty. Plaintiffs 2 and 3 are the daughters of Lakkamma through her second husband Thimma Shetty. The first defendant Lakshmana Shetty is the son of Puttamma, i.e., first wife of Thimma Shetty. Defendants 2, 3 and 4 are the sons of first defendant. Defendant No.3 Paramesh Shetty died during the pendency of the suit.
3. The plaintiffs pleaded that after the death of Hucha Shetty, the properties situated at Bigganahalli Village that stood in the name of Hucha Shetty were mutated to the name of his younger brother Basetty @ Basava Shetty. The said Basava Shetty also died issueless. Therefore, the first plaintiff obtained katha of those properties to her name and then sold them in the year 1956 and 1958. From the proceeds of these sales, she purchased the property at Allampura Village in the name her second husband Thimma Shetty under sale deeds dated 22.9.1958 and 18.5.1959. Some of the properties were also purchased by the first plaintiff from her own income under the sale deed dated 22.4.1963. She also purchased a house property in her husband’s name under the sale deed dated 22.9.1958. All these properties are described in schedules ‘A’ and ‘B’ of the plaint. The plaintiffs stated that they were all the self acquisition of Thimma Shetty. He had no ancestral property and Thimma Shetty’s father Sanganna Shetty had a bit of dry land which was hardly sufficient for his living and therefore the plaintiffs stated that the schedule properties are the self acquired properties of Thimma Shetty and that they had 3/4th share in them. The first defendant had only 1/4th share. Plaintiffs demanded partition of the properties. Since the defendants did not come forward for effecting partition, they filed the suit seeking partition.
4. The second defendant filed written statement. He admitted the relationship as stated by the plaintiffs, but denied the plaint averment that suit properties were the self acquisition of Thimma Shetty. The second defendant pleaded further that Thimma Shetty had acquired those properties from the ancestral nucleus and therefore the plaintiffs have no right over the same. He pleaded specifically that Thimma Shetty, during his lifetime, purchased some properties in the name of his second wife, i.e, first plaintiff. Thimma Shetty had some properties at Bigganahalli Village and after selling them, he purchased the properties at Allampura. From the sale proceeds, he gave education to the second plaintiff, performed the marriage of the third plaintiff and also cleared some outstanding loan. Therefore, the second defendant sought for dismissal of the suit.
5. On the basis of the pleadings, the trial court framed the following issues : -
1. Do the plaintiffs prove that 1st plaintiff Lakkamma obtained properties in Bigganahalli from her 1st husband late Sri. Hucha Shetty, and that she sold the properties at Bigganahalli Pete and purchased the suit schedule properties in Allampura village in the name of her 2nd husband Sri. Thimma Shetty under sale deeds dated 22.09.1958 and 18.05.1959 and other properties purchased by 1st plaintiff from her own money under sale deed dated 22.04.1963 and the house property in the name of her husband late Sri. Thimma Shetty under sale deed dated 22.09.1958?
2. Do the plaintiffs prove that they are entitled to partition of suit A and B schedule properties and to 1/4th share each and plaintiffs together for 3/4th share in them?
3. Are plaintiffs 2 and 3 only are entitled to inherit the 1/4th share of Lakkamma and her properties, and not her step son the 1st defendant consequent to the death of the 1st plaintiff after filing of the suit?
4. Do the defendants prove that the suit schedule properties fully belonged to late Sri. Thimma Shetty?
5. Do the defendants prove that the suit schedule properties were ancestral properties of . Thimma Shetty?
6. Are the plaintiffs entitled to accounts and mesne profits from the defendants?
7. To what decree or order?
6. From the plaintiffs’ side, the second plaintiff Siddamma adduced evidence as PW1 and produced 15 documents as per Exs. P1 to P15. From the defendants side, first defendant adduced evidence as DW1 and also another witness DW.2 was also examined. 22 documents were marked as Exs.D1 to D.22 on the defendants’ side. After appreciating the evidence, the trial court decreed the suit holding that the plaintiffs 2 and 3 were each entitled to 5/18th share in items (1) and (2) of plaint ‘A’ schedule properties, value of the house at item no.5 and equal half share in items (3) & (4) of the plaint ‘A’ schedule. It was also held that the defendants do not have share in these two items of ‘A’ schedule. In regard to ‘B’ Schedule, it is held that plaintiffs are entitled to equal share.
7. Assailing the findings of the trial court, the learned counsel for appellant argues that the trial court wrongly came to conclusion that plaint ‘A’ schedule items 1 and 2 belonged to first plaintiff exclusively. There is a clear admission by DW-1 in the cross-examination that Thimma Shetty purchased some property in the name of his wife i.e., 1st plaintiff. There is ample evidence that Thimma Shetty inherited ancestral property and it was the source of income for acquisition of all the plaint schedule properties. Thimma Shetty died much before amendment to Section 6 of Hindu Succession Act was brought and therefore the plaintiffs were only entitled to a notional share. Thus allotment of equal share in items 2 or 5 is wrong. While carving out notional share, the trial court has committed a mistake in allotting equal 1/3 share to 1st plaintiff, which was not permitted. Therefore he prayed for allowing the appeal and modifying the judgment of the trial court.
8. The learned counsel for respondent argued that the sale deeds Ex.P.13 and Ex.P.15 stand in the name of 1st plaintiff. They were her self acquisitions. Only plaintiffs 2 and 3 are entitled to ½ share and the trial court has rightly come to this conclusion. In regard to other properties also, the evidence shows that they were not the self acquisitions of Thimma Shetty and therefore allotment of shares made by trial court stands to reason and it cannot be disturbed.
9. I have perused the pleadings and the oral and documentary evidence. Points urged by the counsel for appellant and the respondents during arguments give rise to following points for discussion.
i. Whether the trial court has rightly come to conclusion that items 3 and 4 of plaint ‘A’ schedule belonged to deceased 1st plaintiff and therefore plaintiffs 2 and 3 are only entitled to equal half share?
ii. Is allotment of 5/18th share each to plaintiffs 2 and 3 in item no.1 and 2 of plaint ‘A’ schedule correct?
Point no.1:
10. The plaintiffs case is that the first plaintiff had a first husband by name Huchha Setty who had possessed of some properties at Bigganahalli. After his death, his brother Basetty succeeded to his property and as he too died issueless, they reverted to first plaintiff. She sold these properties in the year 1956 and 1958 and purchased some properties at Allampura village in the name of her second husband Thimma Shetty. It is also pleaded that first plaintiff purchased some other property from her own money. Having taken a plea like this in para 2 of the plaint, it is further pleaded in para 3 that all the schedule properties are self acquired and separate properties of Thimmashetty and therefore, the plaintiffs are entitled to 3/4th share and the first defendant to 1/4th share. Plain reading of the plaint indicates that all the properties were self acquisitions of Thimmashetty. But P.W.1, the second plaintiff has adduced evidence totally contrary to the pleas taken up in the plaint. She has stated that her mother purchased the properties in her name and husband Thimmashetty’s name after selling the properties at Bigganahalli. She has also stated in the examination in chief that her father had possessed a small extent of ancestral property and the proceeds from that landed property was sufficient for their living. She has also produced documents to show that some lands at Bigganahalli stood in the name of first plaintiff’s first husband and they were subsequently mutated to the name of Basetty and then to first plaintiff. Exs.P1 to P8 are the revenue documents. Ex.P10 to P15 are the sale deeds. Exs.P10, P11, P12 stand in the name of Thimmashetty and Exs.P13 to P14 show that Lakkamma, the plaintiff was the purchaser.
11. P.W.1 has stated in the cross-examination that her mother sold the properties at Bigganahalli to one Dyavegowda, and of course Ex.P5, the Record of Rights show this transaction although she has stated that she has not produced the copies of sale deeds. If trial court’s discussion on issue no.1 is seen, it has come to conclusion that plaint schedule properties not only belonged to 1st plaintiff, but also to her husband, Thimma Shetty. Probably the trial court might have come to this conclusion seeing three sale deeds, Ex.P.10 to P.12 being in the name of Thimma Shetty and the other three sale deeds Ex.P.13 to P.15 in the name of 1st plaintiff. It has been held further that the property that belonged to Lakshamamma was her separate Stridhana and cannot be blended with other property. This observation may be correct, but the trial court has at the same time lost sight of what the plaintiffs themselves have pleaded that all the schedule properties belonged to Thimma Shetty and therefore they have 3/4th share. The trial court has also not noticed that there is no evidence on record showing as to for how much consideration the 1st plaintiff sold her Bigganahalli property. The trial court has ignored a clear admission of PW.1 that her father also purchased certain properties in the name of her mother. On the other hand DW-1 has adduced evidence that his father had ancestral nucleus and that his father purchased the properties in the name of his mother. DW-1 has not been discredited in the cross-examination and his evidence finds support from evidence of DW-2. Therefore the evidence on record shows that all the plaint schedule properties were acquired by Thimma Shetty from his ancestral source. The findings of trial court cannot be accepted.
Point No.2:
12. The calculation made by trial court is not correct.
While applying doctrine of notional partition, 1/3 equal share was carved out for 1st plaintiff. This was not permitted because when the suit was decided 1st plaintiff was not alive. While effecting partition applying Section 6 of Hindu Succession Act as it stood before amendment, the deceased Thimma Shetty would have notionally taken half share in all the schedule properties, and again in this half share, plaintiffs 1 to 3 and 1st defendant would have taken equal share. The share of plaintiffs 1 to 3 on the date of suit was 1/8 each and since, on the date of decree, 1st plaintiff was dead, her 1/8 share would again be divided into two halves thereby each of the plaintiffs 2 and 3 will get 3/16 (1/8 + 1/16) in the entire plaint schedule properties. The 1st defendant gets 5/8 share.
13. From the above discussion. I arrive at a conclusion that the appeal deserves to be allowed and judgment of trial court modified. Hence appeal is allowed. Judgment of the trial court is modified and held that plaintiffs 2 and 3 are each entitled to share in all the plaint schedule properties. The other part of the judgment of the trial Court relating to enquiry into mesne profits is not disturbed. Preliminary decree be drawn accordingly. There is no order as to cost in the circumstance of the case.
Sd/- JUDGE ckl/sd