IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.S.A.No.2891/2006 BETWEEN:
1.SRI H N GURURAJANNA S/O LATE BALE NANJUNDAPPA AGED ABOUT 68 YEARS, R/O NO 578, 8TH BLOCK KORAMANGALA, BANGALORE 34 2.SRI G NAGABUSHAN S/O SRI H N GURURAJANNA AGED ABOUT 34 YEARS R/A NO 578, 8TH BLOCK, KORAMANGALA, BANGALORE -34 ..APPELLANTS (BY SRI G PAPI REDDY, ADVOCATE) AND:
1.H N CHANDRASHEKAR S/O LATE BALE NANJUNDAPPA AGED ABOUT 65 YEARS R/A OLD POST OFFICE ROAD HOSKOTE-562114 BANGALORE DISTRICT 2.H N CHANNAMALLAPPA S/O LATE BALE NANJUNDAPPA SINCE DEAD BY LRS 2(a) SRI ARUN KUMAR H/O LATE SMITHA FATHER NAME NOT KNOWN AGED ABOUT 42 YEARS NO.114, 4TH CROSS, T.G.EXTENTION HOSKOTE – 562114 BANGALORE RURAL DISTRICT.
2(b) KUMARI BHUVANA D/O LATE SMITHA AND ARUN KUMAR AGED ABOUT 8 YEARS SINCE MINOR REPRESENTED BY THEIR FATHER AND NATURAL GUARDIAN SRI ARUN KUMAR NO.114, 4TH CROSS, T.G.EXTENTION HOSKOTE – 562114 BANGALORE RURAL DISTRICT.
2(c) KUMARI ABATHI D/O LATE SMITHA AND ARUN KUMAR AGED ABOUT 6 YEARS SINCE MINOR REPRESENTED BY THEIR FATHER AND NATURAL GUARDIAN SRI ARUN KUMAR NO.114, 4TH CROSS, T.G.EXTENTION HOSKOTE – 562114 BANGALORE RURAL DISTRICT.
3.H N GOWRISHANKAR AGED ABOUT 59 YEARS S/O LATE BALE NANJUNDAPPA R/A OLD POST OFFICE ROAD HOSKOTE-562114 BANGALORE DISTRICT 4.H N NEELAKANTAPPA AGED ABOUT 55 YEARS S/O LATE BALE NANJUNDAPPA R/A OLD POST OFFICE ROAD HOSKOTE-562114 BANGALORE DISTRICT 5.H N MANJUNATHA AGED ABOUT 52 YEARS S/O LATE BALE NANJUNDAPPA R/A OLD POST OFFICE ROAD HOSKOTE-562114 BANGALORE DISTRICT 6.K.BHASKAR REDDY MAJOR S/O LATE KRISHNA REDDY R/O HORAMAVU ROAD, DODDABANASWADI BANGALORE -560043 ..RESPONDENTS (BY SRI M B CHANDRACHOD, ADVOCATE FOR SRI ASHOK K L & SRI B S SRINIVAS, FOR R-1, SRI HANEEF M.H., ADVOCATE FOR M/s.LAKSHA LAW ASSOCIATES & LEGAL CONSULTANT, FOR R-4, SRI S VIJAYAKUMAR, ADVOCATE FOR R-5, NOTICE TO R-6 IS HELD SUFFICIENT VIDE ORDER DATED 28.09.2011, SRI T.C.SATISH KUMAR, ADVOCATE FOR R-2(a-c), R-3 -SERVED) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED:27.07.2006 PASSED IN R.A.NO.5/2000 ON THE FILE OF THE PRESIDING OFFICER, DISTRICT & SESSIONS JUDGE, FAST TRACK COURT-II, BANGALORE RURAL DISTRICT, BANGALORE, PARTLY ALLOWING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED: 14.12.1999 PASSED IN O.S.NO.221/1985 ON THE FILE OF THE II ADDL.CIVIL JUDGE (SR.DN.), BANGALORE RURAL DISTRICT, BANGALORE.
THIS RSA COMING ON FOR DICTATION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appeal is directed against the Judgment and Decree passed by the learned District and Sessions Judge, Fast Track Court –II, Bangalore Rural District, in R.A.No.5/2000 on 27.07.2006 wherein the learned District Judge allowed the appeal in part and being aggrieved by the same, defendant Nos.2 and 9 are in appeal.
2. In order to avoid overlapping and confusion, the parties are referred with reference to their ranks held by them before the trial Court.
3. The suit filed by the plaintiff being one for partition and separate possession of the schedule properties which consisted of as many as 15 items.
4. The learned Civil Judge while decreeing the suit has ordered as under:
“Suit filed by the plaintiff is allowed and decreed in part in the following terms:
The plaintiff is entitled for 1/6th share in suit item Nos.1 to 8 and 12. He is entitled for a division and separate possession of his 1/6th share in them.
The plaintiff’s claim for a share in item Nos.9, 10, 11 and 13 is rejected. Item Nos.14 and 15 are not liable for partition.
Though item Nos.1 to 4 are Agricultural Lands assessed to revenue the decree need not be sent to the Deputy Commissioner for effecting division in view of State amendment of Section 54 C.P.C.
In the circumstances of the case and considering the relationship between the parties to the suit they are directed to bear their own costs in the suit.”
5. Trial Court held that item Nos. 14 and 15 are not liable for partition. Being aggrieved by the said Judgment and decree, regular appeal No.5/2000 was preferred by Sri H.N.Gururajanna and Sri G.Nagabushan who are stated to be defendant Nos.2 and 9 in terms of their rankings and father and son in terms of their relationship.
6. So far as regular appeal preferred by them, the learned District Judge while partly allowing the appeal granted partition wherein 1/7th share in suit item nos. 1 to 5, 7, 8 and 12 were decreed. Thus, it is against the said Judgment and Decree passed by the learned District Judge, appellants 1 and 2 have preferred the present appeal. In other words, appellant/defendant Nos.2 and 9 have questioned the Judgment and Decree dated 27.07.2006 passed by the learned District Judge, Bengaluru.
7. However, when the tenor of proceedings are observed with reference to the claim and contentions of each of the parties, it could be inferred that their agitation for item No.12 of the suit schedule property so far as the plaintiffs are concerned, observed that item No.12 of the schedule property belonged to joint family consisting of plaintiff, respective defendants and that they are in joint possession and enjoyment of the property.
8. Per contra, defendant Nos.2 and 9 contend that, item No.12 of the schedule property exclusively belonged to defendant No.1-Sri Balenanjundappa and he executed a Will as per Ex.D-23 wherein he bequeathed the said item of the property in favour of defendant No.9.
9. At this stage, it is necessary to state that defendant No.1 in the case is the father of defendant No.2 -Gururajanna. However, defendant No.9 – G.Nagabushan is the son of defendant No.2.
10. In the beginning of the proceedings, defendant No.9 was not arrayed as party and subsequently he came on record by getting impleaded. Understandably he claims that he got item No.12 of suit schedule property which originally belonged to his grand father- Balenanjundappa, who bequeathed the same in his favour. However, the plaintiff stoutly contended that the said Will was not executed and more over the said property (item no.12) was available for partition.
11. In so far as item No.6 of the schedule property, the said item was said to be a vacant site situated at Hoskote town that was stated to have been sold by Smt.Gowramma wife of Balenanjundappa to defendant No.5. It is necessary to clarify at this stage itself the said Gowramma is no more and during her lifetime she is stated to have sold the said item of schedule property in favour of 5th defendant. However, the decree insofar as original suit in O.S.No.221/85 dated 14.12.1999 has included item Nos.1 to 8 and 12 invariably item no.6 of the schedule property is also stated to be partitioned. It is further necessary to clarify that owner of the said item no.6 of the suit schedule property Gowramma during her lifetime was not a party to the suit either as plaintiff or defendant. It is seen that item No.12 is said to be a house situated at Jayanagar, Bengaluru and contest for the said property has been serious because of its value as compared to other properties.
12. Propositus or ancestor Balenanjundappa is said to be head of the family in the beginning and that he was a Bangle seller.
13. The learned counsel for appellant would submit that on perusal of the records available, it is manifest that item No.12 of the schedule property was not belonging to the joint family and it was well within the power of Balenanjundappa to bequeath the same.
14. He would further submit that Balenanjundappa, the defendant No.1, was a bangle seller and used to earn considerably and acquired the property through his earnings. It is also submitted that the property never fell within the domain of the joint family and the legatee - defendant No.9 did not bear disqualification of being a legatee, which is for the reason that he is the son of defendant No.2. It is also submitted that the family had the properties that were self acquired and also belonging to joint family. Thus, in respect of the property that fell under the category of self acquisition was always available for disposal of the same by its owner. In this connection, it was submitted that Gowramma W/o Balenanjundappa was the owner of item No.6 of the schedule property and it was sold by her to defendant No.5 for a cash consideration of Rs.5,000/- and Gowramma is dead.
15. The learned counsel for plaintiff would submit that the defendant acquired the right over the property through the execution of Will. Regard being had to the fact that there was no self acquired property in the family. The learned counsel for plaintiff would further submit that consequence of events in respect of item No.12 of the schedule property right from the stage of admission by defendant No.1 nothing is whispered regarding execution of the Will. More particularly, defendant No.1 who joined the suit with other defendants in filing the written statement did not whisper regarding execution of the ‘Will’ – Ex.D23 dated 08.08.1984. The learned counsel would further submit that for the first time the matter was brought before the Court by defendant No.9 when he want to come on record laying his claim that he had become owner of item No.12 of the schedule property by virtue of the Will - Ex.D23 executed by his grandfather – Balenanjundappa. Thus, the execution of the Will was not transparent and it cannot be believed. The learned counsel for plaintiff would further submit that the defendant No.1 – Balenanjundappa or his wife Gowramma never had an exclusive right to dispose of the property either to any person of the joint family or to an outsider at their sweet will. The learned counsel would further submit that item No.12 of the schedule property is a residential house situated at Jayanagar measuring 20X20 ft a more valuable property in the list. Thus, contends that a joint family property could not have been the subject matter of the Will to the prejudice of the majority of members of the joint family.
16. The defence in substance by the defendant is that the schedule properties were self acquired properties and were not available for partition and defendant No.1 – Balenanjundappa had all the powers to dispose according to his will and volition. Similarly, it is seen that item No.6 of the schedule property is land in Sy.No.574, Kumbarpet, Hoskote Town, that is said to be self acquired property or stridhana of Gowramma, (non-party), W/o Balenanjundappa.
17. Mr.Prakash, the learned counsel for defendant No.5 would submit that item No.6 of the schedule property that belongs to Gowramma was her absolute property and defendant No.5 purchased the same after due diligence. Another significant factor to be considered is defendant No.5 is none other than one of the sons of Balenanjundappa and Gowramma.
18. The tone and tenor of the evidence and submissions would suggest that there are two properties wherein item No.6 of the schedule property is sold and item No.12 of the schedule property was bequeathed by defendant No.1 - Balenanjundappa under the will Ex.D23 dated 08.08.1984 and it became enforceable by virtue of death of its testator – defendant No.1 – Balenanjundappa on 21.01.1993. It is under the said score the defendant No.9 – G Nagabushan claims ownership over the same and told it through the written statement after he was impleaded as party(defendant) at his instance.
19. Thus, apart from these two properties i.e., item No.6 & 12 of the schedule property, the contest does not appear to be hot. Insofar as item No.6 of the schedule property the seller Gowramma is no more and defendant No.5 claims that the said item was purchased by him from his mother Gowramma.
20. Whether the property held in the name of a individual member of the joint family be claimed as joint family property but without impleading such member or person to the proceedings.
21. It is necessary to mention that when Gowramma’s property was included and claimed as joint family property without making her a party makes the claim invalid.
22. Whether the manager or kartha of a joint family property is competent to tell as to the nature when more number of properties are there in the joint family and some of them are separate property.
23. Whether the head of the family can tell about the nature of each property as to whether belonging to joint family or individual. In the further circumstances of the case there is no impediment or obstruction or a bar for a joint family to hold regarding its property and a member to hold his individual properties earned by his exertion. Thus, the treatment of the separate property granted deserves exclusion claiming way for disposal of the same according to the discretion of such member when other things being equal.
24. On considering the materials available before him, the learned II Additional Civil Judge, Senior Division, Bengaluru, in O.S.No.221/85 decreed the said suit in part wherein partition was allowed to be effected in respect of item Nos.1 to 8 and 12. In the circumstances, both item Nos.6 and 12 were decreed as joint family property and paved way for effecting partition. R.A.No.5/2000 was preferred by defendant Nos.2 and 9 against the Judgment and decree in O.S.No.221/85 before the learned District Judge. Learned District Judge while disposing R.A.No.5/2000 on 27.07.2006 also allowed the appeal in part. Incidentally the first appellate court held properties that were available for partition i.e., suit item Nos.1 to 5, 7, 8 and 12. Incidentally item No.6 was spared by learned District Judge from the cluster of joint family properties. However, item No.12 was held to be a joint family property recognizing undivided right, title, interest and possession of the members of the joint family over the said property.
25. The matter assumes significance as item No.6 is said to have belonged to Gowramma, W/o Balenanjundappa and she sold the property to her son defendant No.5-Neelakantappa and defendant No.1, father of plaintiff and defendants 2 to 6 and grandfather of defendant No.9 bequeathed item No.12 to defendant No.9.
26. It is necessary to focus on the treatment meted out to item No.6 of the schedule property and to its owner Gowramma. The plaintiff included the said property as the joint family property and stated that name of Gowramma as the owner in the sale deed did not make difference. In the circumstances the said Gowramma is not made a party to the suit. Thus, property of mother who was not before the court for proceedings was considered by the plaintiff as the joint family property. Even without giving the said Gowramma an opportunity of explaining her stand regarding acquisition of said property. In the later circumstances she is reported dead on 28.05.1987. It was brought to the notice of this court by learned counsel for plaintiff that on 22.01.1991 when Balenanjundappa adduced oral evidence controversy arose regarding certain question. In this connection a revision petition was preferred by defendant No.1 against the order of rejection of asking certain question by learned trial Judge. However, said Civil Revision Petition No.539/91 came to be allowed on 26.02.1992 wherein such questions were permitted to be asked to Balenanjundappa but the said defendant, aged 80 years, during the proceedings died on 21.01.1993 matter could not be resumed before trial and that he was not available for further cross examination.
27. Thus, Gowramma in respect of item No.6 and Balenanjundappa in respect of item No.12 claim the said properties particularly as self acquired and it is seen that when defendant No.5 –Neelakantappa who is said to be purchaser of item No.6 did not enter witness box to adduce his evidence. However, said Neelakantappa did not contest the suit after filing his written statement and stated that item No.6 of the property was stridhana of his mother-Gowramma. However, learned counsel for the plaintiff would submit that the conduct of said Neelakantappa – defendant No.5 in not adducing oral evidence and substantiating his stand taken under written statement. Thus, he cleverly evaded his duty for proper disposal of the case. In the circumstances, the scheme of allotment of property is by virtue of suit being decreed in part. Thus, plaintiff was ordered to be entitled for 1/6th share out of item Nos.1 to 8 and 12. It is necessary to make a mention of parties who participated in the proceedings among the children of Balenanjundappa are plaintiff (1) H.N.Chandrasekhar and defendants (2) H.N.Gururajanna, (3)H.N.Channa Mallappa (4) H.N.Gowrishanker (5)H.N.Neelakantappa and (6) H.N.Manjunatha. That learned Civil Judge confirmed the entitlement of the parties for 1/6th share in item Nos.1 to 8 and 12. The claim for partition by the plaintiff in respect of item Nos.9, 10, 11 and 13 came to be rejected. In the circumstances, it is necessary to mention that except item Nos.9, 10, 11 and 13 the decree for partition was granted with respect to other items of property. In this connection it is necessary to mention that Gowramma reported to be dead on 28.05.1987. Suit is filed on 22.11.85 and Will is dated 08.08.1984 -Ex.D23. Thus, it is necessary to mention in case item No.6 is considered as property of Gowramma it puts an end to the claim and contention regarding the said property is purchased by Neelakantappa-defendant No.5, gets the same without any impediment as the said property when considered to be the self acquired property of Gowramma would be out of contention for considering as joint family property. However claiming partition by the plaintiff and making item Nos.6 and 12 as the joint family properties, plaintiff committed a huge mistake as defendant No.1 claimed to be separate owner of item No.12 of the schedule property. In the circumstances, it is further necessary to note that O.S.No.221/85 plaintiff claimed that they are in joint possession of the property and under this appeal the appellants challenged granting of decree of partition in respect of item No.12. The contention regarding the stand on item No.12 in the name of Balenanjundappa does not make difference as he had no sources and it was purchased by the family. It is necessary to mention that as observed earlier when property held in the name of individual member of a joint family is asserted to be a family property and partition is claimed on the same, invariably it presupposes that it was self acquired property. It was not available for partition. On the other hand, if the property is undisposed by Gowramma till her death being a separate property of the said lady, the rules of succession would be under Section 8 of the Hindu Succession Act, 1956. On the other hand if it is joint family property, living or otherwise of Gowramma would not make difference for partition which is main incident of a joint family.
28. The present appeal is preferred by defendant No.2-Gururajanna and defendant No.9- Nagabushan. It is necessary to analyse that as per the claims and contentions of the parties and tenor and texture of litigation, defendant No.2 has nothing to do with item No.12 of the schedule property, but contributes his voice in calling item No.12 as self acquired property of Balenanjundappa to enable him to execute Will in favour of defendant No.9. Thus he supports the will. Incidentally adding strength to his contention he also joins defendant No.9 in preferring this appeal perhaps in his wisdom he has to escort his son. Another circumstance, in the case is that defendant No.1 is no more and in case of his property again it becomes the subject matter of partition among other defendants as legal heirs. However, it is necessary to mention date of execution of Will is 08.08.1984. The court asked a question to learned counsel for plaintiff as to whether the Will Ex.D23 is challenged on execution or the competency.
29. Learned counsel replied that both competency of Balenanjundappa to execute Will in respect of item No.12 which is a joint family property and also the execution regarding Will are under challenge.
30. The said Will was executed by Balenanjundappa on 08.08.1984 and it came to be enforceable on 21.01.1993 when Balenanjundappa the first defendant died. If it is taken in the lines of execution it gets effected when it is not contested or does not contain the intention of the Testator regarding disposition of his property to be taken place after his death regard being had to the fact that during his life time he retains total control over the property bequeathed.
31. In this connection it was submitted by learned counsel for plaintiff that attestor in his evidence as DW-5 has not spoken regarding the content and substance of the Will-Ex.D-23 executed by Balenanjundappa. At this juncture it is necessary to mention that the word `Attested’ is defined in Section 3 of Transfer of Property Act which is as under.
“Attested” – in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.”
32. Thus by reading the definition of the term `Attestor’ it can be ascertained that when there are two attestors, no lapse will be there if both the attestors are not present and signs at the same time. Secondly attestation signifies signing after getting acknowledgement from the testator and there is no particular form of attestation.
33. Thus, it is not for the total awareness of the content of the document that is contemplated. However it is necessary to mention that Balenanjundappa did not raise objections of any kind over the Will as to the execution or other flaws of coercion, undue influence, misrepresentation or fraud by legatee defendant No.9 who is beneficiary of the property (item No.12).
34. Insofar as another development pointed out by learned counsel for plaintiff that defendant Nos.1, 2, 4, 5 and 6 filed common written statement. Under such circumstances transparency demanded for mentioning about fact of Will and it was kept as a profound secret till the date when defendant No.9 beneficiary under the Will, made application under Order 1 Rule 10 of C.P.C and got impleaded and his written statement came to be filed on 10.07.1995.
To this learned counsel for defendant countered that the document executed was Will and it is usual that no canvas or publication of execution of the Will is made during the life time of the testator and even further it is always treated as private document and it was not mandatory on the part of the defendant to make a mention of the execution of the Will.
35. Whether there is legal consequence or not it was better if execution of the Will was mentioned in the written statement. However non mentioning does not become fatal to the execution of the Will and insofar as competency of Balenanjundappa, defendant No.1 for executing a Will is concerned there is no dispute regarding item No.12 of schedule property standing in his name as it is said to have acquired by him.
36. Hindu Mitakshara Joint Family is a unique identity that has its roots in heading of the family by eldest male member regardless senior co-parcener but as a kartha, manager whose duty is to maintain the family to the best of its collective interest.
37. In this connection certain properties are regarded as joint family and some of the properties are regarded as a separate property for example item No.6 is recorded as separate property of Gowramma, W/o Balenanjundappa regard being had to the fact that she sold the same on 08.05.1987 to defendant No.5 who is none other than her son as it was a self acquired property or a stridhana. Further insofar as item No.12 is concerned it is bequeathed by defendant No.1 – Balenanjundappa as the property was self acquired and he wished finally that property shall go to his grandson defendant No.9 to the exclusion of others. There are no allegations regarding conduct and character of Balenanjundappa as to a vagabond, a man with vices or none of the off-springs of Balenanjundappa have placed their grievance against him as a father with partiality and bias. It is necessary to mention that all the properties are branded as self acquired property of Balenanjundappa out of 15 items of property it is item No.12 as self acquired property of Balenanjundappa and item No.6 to be self acquired property of Gowramma, wife of Balenanjundappa regard being had to the fact that Gowramma is not a party to the suit. Balenanjundappa if he was aggrieved or grievance against the Will he would have been the first person to raise finger. Insofar as competency is concerned there are no factors or materials to infer or conclude that item No.12 or item No.6 of suit schedule property are joint family properties and they are not available for disposal by persons who held the properties in their names. Kartha, the Manager of the family has crucial responsibility and also discretion in the light of allowing partition to be effected in respect of items excluding item No.12. Insofar as said item No.6 is concerned same has not been seriously questioned by other parties or siblings of defendant No.5. There are no acceptable reasons for trial court in granting decree for partition including item No.6 and I find it has seriously erred in mixing item Nos.6 and 12 of the suit schedule properties into the hotch pot of joint family properties to enable to be available for partition.
38. Insofar as Ex.D23 Will executed by Balenanjundappa bequeathing item No.12 in favour of his grandson Nagabushan who is defendant No.9 and also son of defendant No.2-Gururajanna, I find that the Will-Ex.D23 executed by Balenanjundappa in favour of defendant No.9 on 08.08.1984 does not suffer illegality, irregularity, infirmity or other weakness to effect its validity more particularly it is stated that DW-5 attestor is not cross examined and sole testimony is not challenged. Thus, not bringing the Will to the light cannot be read too much into it to conclude that it lacks sanctity.
39. The learned Civil Judge, Senior Division and first appellate Judge, Fast Track Court-II were right in finding that the plaintiff is entitled for possession, joint possession and enjoyment of the joint family property and ordering a share to him. However, in respect of the properties item Nos.6 and 12 both the courts committed serious error in comparing apple to orange and in declaring item No.12 also a joint family property. This finding requires to be set aside as it is erroneous and also against established principles of joint Hindu family.
40. Learned trial Judge committed error in holding item Nos.6 and 12 as the joint family properties and first appellate Judge erred in holding item No.12 as a joint family property though it was right in declaring item No.6 as a separate property.
41. In this case there are no attributions against Balenanjundappa. Accordingly substantial questions of law are answered.
In the result, appeal preferred by appellants 1 and 2 who are defendant Nos.2 and 9 is hereby allowed. Judgment and decree passed by trial court in O.S.No.221/1985 as well as first appellate court in R.A.No.5/2000 is modified to the extent that it is declared that item No.12 of the schedule property was the self acquired property of defendant No.1 and it was bequeathed by defendant No.1 in favour of defendant No.9 as the former had every right to do so.
In the result considering the relationship among the parties, no costs.
Sd/- JUDGE SK/VK/SBN