IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.S.A.No.2205/2007 BETWEEN:
1.SHANKARAPPA SINCE DEAD BY HIS LRS:
1(a) SMT. S RATHNAMMA, W/O KRISHNAPPA, D/O SHANKARAPPA, AGED ABOUT 45 YEARS, #54, SADUPPNAHALLI, SOOLIBELE HOBLI, HOSKOTE TALUK, BENGALURU RURAL DISTRICT.
1(b) S RAMESH, S/O SHANKARAPPA, AGED ABOUT 46 YEARS, #35, K KARENAHALLLI POST, CHIKKAKUNTANAHALLI, RAMANAGARA TALUK, BIDADI HOBLI, (1(b) ALREADY ON RECORD ORGINALLY ALSO AS APPELLANT No.3) 1(c)S NARAYANA, S/O SHANKARAPPA, AGED ABOUT 46 YEARS, #34, K KARENAHALLI POST, CHIKKAKUNTANAHALLI, RAMANAGARA TALUK, BIDADI HOBLI.
1(d) SMT. S SUMA, W/o BYRESH, D/o SHANKARAPPA, AGED ABOUT 39 YEARS, #14, 5TH MAIN, 2ND CROSS, BSK 1ST STAGE, BENGALURU-560 050.
2.KRISHNAPPA AGED ABOUT 60 YEARS, S/O LATE CHIKKANNA, 3.RAMESH, S/O SHANKARAPPA, AGED ABOUT 40 YEARS, APPELLANTS 2 & 3 ARE RESIDENTS OF CHIKKAKUNTANAHALLI VILLAGE BIDADI HOBLI, RAMANAGARA TALUK- 571511, BANGALORE RURAL DISTRICT (BY SRI N SUBBA SHASTRY, ADVOCATE) AND:
1. LAKKAPPA, AGED ABOUT 73 YEARS, S/O LATE SRI CHIKKANNA, R/AT GOTTIGERE VILLAGE, BANNERGHATTA ROAD, BENGALURU SOUTH TALUK, BENGALURU DISTRICT.
..APPELLANTS 2. NAGARAJU, AGED ABOUT 60 YEARS, S/O LATE SRI CHIKKANNA, R/AT ANJANAPURA VILLAGE, UTTARAHALLI HOBLI, BENGALURU SOUTH TALUK, BENGALURU DISTRICT.
3. MUNIYAPPA, AGED ABOUT 81 YEARS, S/O LATE VENKATARANAPPA, R/AT CHIKKAKUNTANAHALLI VILLAGE, BIDADI HOBLI, RAMANAGARA TALUK, RAMANAGARA DISTRICT.
...RESPONDENTS (BY SMT. M P GEETHADEVI, ADVOCATE FOR R1 & R2, VIDE ORDER DATED 22.03.2011, NOTICE TO R-3 IS DISPENSED WITH) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 27.03.2007 PASSED IN RA.NO.55/2002 ON THE FILE OF THE ADDL.CIVIL JUDGE (SR.DN.) RAMANAGARAM, BANGALORE RURAL DISTRICT, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 11.10.2002 PASSED IN OS.NO.175/1991 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) AND ADDITIONAL JMFC, RAMANAGARAM.
THIS RSA COMING ON FOR FINAL DISPOSAL THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Appeal is directed against the Judgment and decree passed by the learned Additional Civil Judge, Senior Division, Ramanagaram dated 27.03.2007 in R.A.No.55/2002 under which learned Additional Civil Judge allowed the appeal and Judgment and decree passed in O.S.No.175/91 came to be set aside and suit came to be decreed.
2. In order to avoid overlapping and confusion, the parties are referred with reference to their ranks as stood in the trial Court in O.S.No.175/1991.
3. Initially the suit was filed by two plaintiffs Lakkappa, aged 48 years and Nagaraju, aged 35 years, seeking partition and separate possession of 1/4th share each in items 1(a), 1(b) and 4, 1/3rd share each in items 2 and 3 in the suit schedule properties and mense profits. The defendants entered appearance and denied the claim of plaintiffs.
4. Trial Judge was accommodated with the oral evidence of PW-1 –Lakkappa, PW-2-Manegowda from the side of plaintiffs and DW-1 –Shankarappa, DW-2- Byrappa, DW-3 Kanthappa, DW-4 Kariyappa and DW-
5 G.M.Kencharamaiah from the side of defendants.
The documents that were made available are Exs.P1 to P6 from the side of the plaintiffs and Exs.D1 to D3 from the side of the defendants.
5. It is necessary to make a cursory glance of the issues that were framed by trial court on the nature of suit schedule properties as to whether they were partitioned 25 years earlier to the filing of the suit. Incidentally there is an issue regarding establishment of nature of properties in its reverse form on the defendants. The learned trial Judge dismissed the suit on 11.10.2002 by holding that the plaintiffs failed to establish the existence of joint family and properties available for partition.
6. The version of the defendants regarding existence of earlier partition was relied upon by the trial court. Further the plaintiffs did not place sufficient materials regarding the same.
7. Being aggrieved by the Judgment and decree passed by the learned trial Judge, appeal came to be preferred by the plaintiffs in R.A.No.55/2002. The learned appellate Judge allowed the appeal by setting aside the Judgment passed by learned trial Judge in O.S.No.175/91 and decreed of the suit and the learned appellate Judge ordered for drawing up of preliminary decree. It is against this verdict the defendants have come up in appeal.
8. This appeal being filed under Section 100 of Civil Procedure Code the substantial question of law as framed by the appellants are:
“1. Whether the first appellate court justified in recording the finding that even though DW1 to DW5 have spoken regarding the oral partition whereby the first appellate court recording the finding that no evidence has been rendered by the defendants?
2. Whether the first appellate court justified in recording the finding that when the defendants 1 and 2 have purchased suit items 2 and 3 after partition plaintiffs and defendants is also joint family property available for partition?
3. Whether the first appellate court without appreciation of evidence and pleadings record the finding on the admission of defendants regarding relationship and suit items 1(a), 1(b) and 4 being ancestral properties, thus suit items 2 and 3 are also ancestral properties and liable for partition?
4. Whether the first appellate court justified in recording the finding that the suit items 2 and 3 are not self acquired properties and those properties are acquired out of the nucleus of the joint family consisting of plaintiffs and defendants?”
9. This court on 31.10.2012 reframed substantial question of law as under:
“1. Whether the Lower Appellate Court was justified in holding that the partition set up by the defendants is not established, is based on proper appreciation of oral and documentary evidence on record or not? And 2. To consider any other substantial questions of law that would arise for consideration at the time of hearing.”
10. Thus, in the substantial question of law framed by this court, the point for consideration is whether the first appellate court could have allowed the appeal. Whether the Judgment and decree of the trial court is opposed to law and whether the appeal deserves to be allowed.
11. Thus, the learned first appellate Judge came to conclusion that the properties were partible and the plaintiffs are entitled to a share in the schedule property.
12. Learned counsel for plaintiffs would submit the moot question for consideration would be joint family properties, joint possession and enjoyment by its members and entitlement for partition. Learned counsel would further submit that partition was totally out of bounds for defendants as it already happened earlier regard being had to the fact that specific date of partition not being mentioned.
13. Learned counsel submits that plaintiffs are neither in joint possession and enjoyment of any of the properties nor there existed joint family with properties that were liable to be partitioned. He would further submit that the partition was effected 25 years back but it was a oral one in the presence of Panchayatdars. As such the parties by virtue of the shares that were allotted to each of them continued their families with the properties that fell to the share of each of them. It is further submitted that property originally belonged to one Venkataramaiah are in Sy.No.68 of Chikkakuntanahalli, Bidadi spreading over three survey nos.68, 69 and 70 as landed properties and one house. Thus partition according to the defendant was already effected and that there are no properties for joint family.
14. Learned counsel for plaintiffs Smt Geethadevi would submit that this is an ideal case which deserves to be partitioned as they are all features of joint family and that properties are under joint possession and enjoyment. She would further submit that defence taken up by defendants is partition was already effected 25 years back and the joint family which got disrupted by virtue of earlier partition. She would further submit that contention of the defendants that partition was effected 25 years back to the date of filing of the suit cannot be accepted for various grounds including that the plea taken by defendants being pleading of fact of earlier partition they were allowed to establish earlier partition that was said to have taken up long back and acting upon said partition through the incorporation of revenue entries.
15. The original propositus who is also a common ancestor for the family is one Chikkanna and his brothers are Govindappa, Kempaiah and Venkataramanappa. The present plaintiffs and defendants come under the branch of Patel Muniswamaiah. The lenial decendency of the family coming under Patel Muniswamaiah is that he had three sons namely Chikkanna, Govindappa and Venkataramanappa. Shankarappa, Lakappa, Krishnappa and Nagaraju are the sons of Chikkanna. Muniyappa is the son of Venkataramanappa. Hemanna, Munegowda, Sannappa and Ramakrishnappa are the sons of Govindappa and finally Muniyappa, Hombanna and Raja are the sons of Venkataramanappa. It is necessary to notice that plaintiffs and defendants are the descendents from their respective parents and their status with reference to the litigation is Shankarappa-defendant No.1, Krishnappa -Defendant No.2, Ramesh – defendant No.3 and Muniyappa-defendant No.4. Plaintiffs Lakappa and Nagaraju are the sons of Chikkanna.
16. Shankarappa and Krishnappa are the sons of Chikkanna, defendants 1 and 2 respectively and Ramesh, s/o Shankarappa, Muniyappa, S/o Venkataramanappa are the defendants 3 and 4 respectively. 3rd defendant –Ramesh is the son of Shankarappa-defendant No.1 and grandson of Chikkanna.
17. The relationship among the siblings including cousin brothers or paternity not disputed. The existence of the properties stated in plaint schedule are also not disputed. The bone of contention is whether the joint family properties were already partitioned and nothing was available to be partitioned again would be the moot question that comes up for adjudication.
18. This Court framed the substantial questions of law on 31.10.2012 as under:
(1) Whether the Lower Appellate Court was justified in holding that the partition set up by the defendants is not established, is based on proper appreciation of oral and documentary evidence on record or not? and (2) To consider any other substantial questions of law that would arise for consideration at the time of hearing.
However, in the context and circumstances, it is necessary to frame the following additional substantial question of law;
Whether plea of earlier oral partition to resist the claim for subsequent partition need be supported by documents?
19. The learned trial Judge in OS No.175/1991 in his discretion relied upon the earlier partition as pleaded by defendants and dismissed the claim of the plaintiffs. As the said verdict was reversed in the first appellate court, this appeal by the defendants has come into existence.
20. The bone of contention between the parties is regarding the earlier partition. If the partition 25 years earlier to the filing of the suit was effected in the family of Chikkanna, the siblings and lineal members are entitled for the partition. The property shall not be entitled for further partition. In the absence of which alone the consideration of partition would arise.
21. In this connection, it is necessary to mention that there is no substantial dispute that item No.4, house property belonged to ancestors and insofar as land and property is concerned, the total extent of the agricultural land is as under:
Item No.1: Property comprising of survey Nos. 68,69, 70 totally measuring 15 acres situated at Chikkakuntanahalli, Bidadi Hobli, Ramanagaram Taluk, in this an extent of 3 acres bounded on:
East by : Voni; West by : Halla;
North by : Land of Shivanna;
South by : Venkataramanappa (Now 4th defendant) Item No.1(b):
Property comprising of survey Nos. 68,69, 70 totally measuring 15 acres situated at Chikkakuntanahalli, Bidadi Hobli, Ramanagaram Taluk, in this an extent of 1 acre; comprising of mango garden, bounded on:
East by : Mango garden which fell to the share of Shamanna;
West by : Land of Munibyramma; North by : Land of Kempegowda; South by: Land of Nathanna.
Item No.2:
Property comprising of survey Nos. 68,69, 70 totally measuring 15 acres situated at Chikkakuntanahalli, Bidadi Hobli, Ramanagaram Taluk, in this an extent of 5 acrea; bounded on:
East by : Tank; West by : Halla;
North by : Land of Venkataramanappa (now 4th defendant) South by: Halla and land of Munibyramma Item No.3:
Property comprising of survey Nos. 68,69, 70 totally measuring 15 acres situated at Chikkakuntanahalli, Bidadi Hobli, Ramanagaram Taluk, in this an extent of 02 acres bounded on:
East by : Kere (tank) West by : Halla North by : Land of Chikkanna Item No.1 South by : Venkataramanaih same number Item No.4:
House situated at Chikkakuntanahalli, Bidadi Hobli, Ramanagaram Taluk, bounded on:
East by : Beedi West by : Temple street;
North by : House of Munibyramma; South by : Road In this 1/3rd portion of late Chikkanna is bounded on the:
East by : House of Kenchappa and road West by : House of Munibyramma and temple street;
North by : Land of Munivenkatappa South by : Road 22. Insofar as change of katha or mutation of the properties are concerned, the names of Chikkanna son of Munishamappa, Chikkanna, son of Venkataramanaiah, Shyamanna son of Kempaiah and four sons of Chikkanna. No revenue records are telling the partition and division of properties by metes and bounds, except Exs.P2 to 4 which are the RTC extracts and they have no material impact on the case.
23. In rural side, it could be seen that the partition may not be effected on a stamp duty and registration. However, the partition once happened on the basis of the consent of the parties who entered into partition, the revenue entries get transferred or bifurcated as the case may be. Unless they are challenged on justifiable grounds that is considered as partition. However, in certain cases, when the partition is reduced into writing it become necessary to get it registered. However, when the dictum of partition is evidenced by other attending circumstances, such as, mutation, bifurcation of land, in the documents maintained by survey records, the change in column Nos.9, 10,12(2) of the RTC extract do evidence the effecting of partition. Further, the tenants in common got divided by foregoing their rights in common in consideration of the specific share.
24. In the overall circumstances of the case, the points that deserve to be considered is that, the only defence taken by the defendants is ‘earlier partition’. The same is supported and ended in a particular para of the written statement and does not travel beyond that. Thus, there is no single document evidencing the partition. The defendants could have explained the circumstances, the date, year and the extent of allotment to each of the coparceners and i.e. acts. In my view the denial of right for partition cannot be a simple denial. On the other hand, it is supposed to be a substantial one being enclosed by the acts of the parties and the revenue documents.
25. Ex.P2 to P4 are the RTC extracts. It is necessary to mention, in the possession column i.e. in Column No.12(2) of the RTC extracts, the following names could be seen for the years 87-88, 88-89 and 89-90: As per Ex.P2:
1987-88: Venkataramanaiah, Chikkanna, (Govindaiah) (Shyamanna) and Muniyappa;
1988-89: Venkataramanaiah, Chikkanna, Muniyappa, Krishnappa, Ramesh 1989-90 : Chikkanan, Muniyappa, Krishnappa, Ramesh, Venkataramanappa As per Ex.P2:
1987-88: Chikkanna, Venkataramanaiah, (Govindaiah) (Shyamanna) and Muniyappa;
1988-89: Muniyappa, Ramesh, Shankarappa, Krishnmappa s/o Chikkanna 1989-90 : Muniyappa, Venkataramanappa, Chikkanna, Krishnappa, Ramesh, Shankarappa As per Ex.P4:
1987-88: (Govindaiah), Venkataramanaiah, Chikkanna, (Shyamanna) and Muniyappa;
1988-89: Muniyappa, Ramesh, Shankarappa, Krishnappa, Chikkanna 1989-90 : Muniyappa, Venkataramanappa Ramesh, Shankarappa, Krishnappa, Chikkanna 26. The said column has relevance to the person who is cultivating the land. If there is bifurcation of the land, the corresponding entry should appear invariably in Column No.9 and preceded by division of the extent may not be bifurcated by giving new survey numbers. The extent is always mentioned with reference bifurcation of survey numbers. Thus, no doubt it is the responsibility of the plaintiffs to prove that the existence of joint family, owning of properties by the joint family, whether earned by it or inherited from the ancestors and the specific share which the plaintiffs are entitled. However, let alone in partition suit or in any suit for that matter, whenever the defendants takes up a special plea of the circumstances that creates or extinguishes the right of the parties, to discharge the burden of the same lies on the defendants. In the circumstances, the case is not a mere denial of share or partition. It cannot be effected or not possible because of the earlier partition. Regard being had to the fact that except assertion in the written statement followed by the oral evidence, there is no corroborative or independent documents or justifiable circumstances to hold that earlier partition was there and it bars the plaintiffs to have a share in the joint family properties. Thus, I find the learned Civil Judge (Jr.Dn) erred in interpreting the applicable provision of law and reading the documents. However, the learned first appellate Judge was right in accepting the prayer of partition by the plaintiffs.
27. In the circumstances, oral partition also requires to be established by circumstances and corroborative revenue entries. A mere assertion when opposed does not become a reality.
28. Learned counsel for appellants/defendants Sri.
Subba Shastry would strenuously submit that there is an admission to the effect of living separately by PW1 and selling mangoes plucked from the mango trees separately and the learned counsel would submit that this admission has to be read with reference to Section 17 and 21 of the Indian Evidence Act which states that the admission made does not require to be proved by virtue of the said Section.
29. This submission does not deserves to be accepted at its face value because even if it is taken as admission, there is no consequential effect as it is not comprised and explained regarding the share or extent. Further living separate is not a hallmark to evidence partition.
30. The members of joint family may reside in different corners of the country. If there is an element of jointness in the mind with anonymous would sufficient unless there is a ouster.
31. It is totally not possible for all the members to reside under the same roof rather minor differences and so many factors of emotion and ego may compel the members to reside separately that cannot be considered as partition and in which event, that would amounts to reading of Mitakashara Hindu Law of joint family and partition in a lighter sense.
32. The learned counsel for the appellants relies on the decision in the case of Kondiram Bhiku Kirdat Vs. Krishna Bhiku Kirdat (deceased by LRs) reported in AIR 1995 Supreme Court 297. Head note reads as under:
Hindu Law-Joint Family Property-Partition- Properties having joint family nucleus till date of severance in status-Properties must be deemed to be joint family properties-Properties acquired by brothers after severance in status cannot be clubbed into joint family properties.”
33. He would also submit that Ex.D3 is a registered Release Deed effected on 06.08.1988 wherein the release is effected by Muniyappa, 1st son of Venkataramanappa, his brother Obanna and Nagaraju in favour of sons of Chikkanna, namely Shankarappa, Krishnappa and Nagaraju and learned counsel for appellants wanted to drive a point that this document seals the right of partition as the said document is evident that partition was effected earlier in the year 1988. Again this submission cannot stand for consideration in its entirety, for the very simple reason that a joint family that was being headed by propositus in chief, thereafter, next generation. Bifurcation or release of one branch cannot be applied as a severance of all the branches on the basis of paternity. Thus, these three submissions are of no avail to the appellants.
Hence, I answer the substantial questions of law accordingly.
For the foregoing reasons, the appeal is devoid of merits and is liable to be dismissed and accordingly, it is dismissed.
Considering the relationship between the parties, no costs.
Sd/- JUDGE SBN/tsn*