IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.S.A.No.2516/2006 BETWEEN:
1. SRI KESHAVA S/O LATE GANGALAPPA AGED ABOUT 57 YEARS RESIDENT OF No.12, 1ST CROSS, WEST OF CORD ROAD, RAJAJINAGAR BANGALORE – 560 010.
2. SRI KRISHNA S/O LATE GANGALAPPA AGED 47 YEARS R/O SHEETI BALAJIGA STREET RAMANAGARAM TOWN – 512 511.
3. SMT. VASANTHA W/O JAYARAJ AGED 43 YEARS R/O No.136, 3RD CROSS SHANKARMATT ROAD CHAMARAJPET BANGALORE – 560 018.
4. SMT. RAMAMANI W/O C.G. JANARDHAN AGED 39 YEARS R/O SHEETI BALAJIGA STREET RAMANAGARAM TOWN – 512 511.
5. SMT. JAYALAKSHMI W/O GOVINDASWAMY AGED 63 YEARS R/O No. 46, 3RD MAIN WEST OF CORD ROAD RAJAJINAGAR BANGALORE – 10.
6. SRI C V SRINIVAS S/O. BHAJANEMANE VENKATAPPA AGED 78 YEARS R/AT BEHIND SUPRIYA NURSING HOME, 1ST CROSS, 1ST MAIN, MANJUNATHANAGAR NEAR RAMESH PRINTERS MAGADI ROAD BANGALORE -23.
6(a) B.S.VENUGOPAL S/O LATE SRINIVAS R/O No.2, I CROSS MANJUNATHANAGAR MAGADI ROAD BENGALURU – 560 023.
...APPELLANTS (By SRI S VASANTH MADHAV, ADVOCATE) AND:
1. SRI PADMANABHA S/O LATE GANGALAPPA AGED 59 YEARS SHEETI BALAJIGARA STREET RAMANAGARAM TOWN – 512 511. DEAD BY LRS:
1(a) SMT.N PADMAVATHI W/O LATE PADMANABHA AGED ABOUT 50 YEARS R/O No.409, NEAR KALIKAMBA TEMPLE, 9TH CROSS, VIJAYANAGAR RAMANAGARA – 571 511.
1(b) SMT.SANTHOSHI @ SHANTHU D/O LATE PADMANABHA W/O MANJUNATH R/O No.409, NEAR KALIKAMBA TEMPLE, 9TH CROSS, VIJAYANAGAR RAMANAGARA – 571 511.
1(c) SMT.SUDHA RANI.P D/O PADMANABHA W/O GANGADHARAIAH 31 YEARS, R/O No.409 NEAR KALIKAMBA TEMPLE, 9TH CROSS, VIJAYANAGAR RAMANAGARA – 571 511.
2. SRI NARAYAN S/O LATE GANGALAPPA AGED 49 YEARS SHEETI BALAJIGARA STREET RAMANAGARAM TOWN -571 511.
... RESPONDENTS (BY SRI N SUBBA SHASTRY, ADVOCATE FOR R-1(a to c), R-2 IS SERVED) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 20.06.2006 PASSED IN R.A.No.58/2002 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (SR.DN) RAMANAGARAM, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 1.10.2002 PASSED IN O.S.No.62/93 ON THE FILE OF THE CIVIL JUDGE (JR.DN) AND ADDITIONAL JMFC, RAMANAGARAM.
THIS RSA COMING ON FOR DICTATION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal by the defendants/appellants is directed against the judgment and decree dated 20-06-2006 passed by the learned Principal Civil Judge (Sr.Dn), Ramanagaram, in R.A.No.58/2002, wherein, the judgment and decree dated 01.10.2002 passed by the learned Civil Judge (Jr.Dn) and Additional JMFC, Ramanagaram, in O.S.No.62/1993 was set aside.
2. In order to avoid confusion and overlapping, the parties are referred in accordance with their ranking before the trial Court.
3. To commence with, plaintiffs filed a suit in O.S.No.62/1993 before the learned Civil Judge (Jr.Dn) and Additional JMFC, Ramanagaram, for partition and separate possession. On 01.10.2002, the said suit came to be dismissed. The 1st plaintiff being aggrieved, preferred a regular appeal before the learned Principal Civil Judge (Sr.Dn) Ramanagaram, in R.A.No.58/2002 which came to be allowed on 20.6.2006. Aggrieved by the same, defendants preferred this appeal.
4. Brief facts of the case are: Defendant No.1 is the mother. Plaintiffs 1 and 2 and defendant Nos.2 to 6 are her children. Husband of defendant No.1 is one Gangalappa, who died 14 years earlier to filing of the suit.
5. The plaintiffs and defendants are members of joint Hindu Family with properties. The plaintiffs’ father Gangalappa and his brother Muniyappa had divided during their lifetime itself and suit schedule properties have fallen to the share of the plaintiffs’ father Gangalappa.
6. The defendant No.1 being the eldest member and mother of the plaintiffs, was making hectic efforts to sell the suit schedule properties by taking clear advantage of the existence of connected records pertaining to the schedule properties in her name and was negotiating with the prospective purchasers as well. Plaintiffs after coming to know about the development, filed the suit in O.S.No.62/1993 for partition and separate possession.
7. The defendants appeared and resisted the case.
1st defendant filed the written statement and defendants 2 to 6 have adopted the same. The relationship asserted by the plaintiffs are not disputed. Defendant No.1 contended that Gangalappa died on 17.12.1979 and the plaint schedule properties are his self acquired properties. The said Gangalappa and the defendant No.1 were carrying on agriculture and struggled hard to bring up the children who are not earning and they depended in entirety on the defendant No.1 and out of their hard earnings, they bought the said properties for the benefit of the family. Under such circumstances, there was no contribution of funds or resources by the plaintiffs or the other defendants for the over all development of the joint family properties. Meanwhile, the marriage of 4th defendant -Smt.Vasantha and defendant No.5-Ramamani were performed by the defendant No.1 on 26.10.1983 and on 23.10.1985 and there were family debts and the defendants being unable to clear the debts had to sell Item No.1 of the suit schedule property and had to discharge the loans borrowed. At that point of time, it was defendant No.8 (Not related to the plaintiffs and respondents family members by blood) volunteered to help the defendants’ family. In the circumstances, defendant No.1 had no alternative, except to sell item No.1 of the schedule properties to the said 8th defendant and the said sale was purely for legal necessity and for the benefit of the estate of the joint family, for a cash consideration of Rs.45,000/-. Otherwise, this defendant No.1 has been in possession and enjoyment of the other properties and the plaintiffs have no right over the same.
8. Defendant No.8 has filed separate written statement contending that plaintiffs and defendants 1 to 6 are not in joint possession of the schedule properties and he lend money to defendant No.1 to perform her daughters marriage and in order to repay the same defendant No.1 sold the said property and he is a bonafide purchaser and he is in possession of the property from the date of execution of the sale deed and at no point of time plaintiffs are in possession and enjoyment of the same.
9. Learned trial Judge adjudicated the matter considering the nature of the schedule properties for the purpose of partition and the 8th defendant purchasing the property with reference to validity of the sale deed. He was accommodated with the oral evidence of PW-1, DWs 1 to 4 and documentary evidence of Ex.P1 to P9.
10. In the judgment, learned trial Judge observed that plaintiffs did not make out a case for partition and dismissed the suit holding that there was no contribution of resources by the plaintiffs who are the non earning members and relied upon the pleadings and the oral evidence of the defendants to the effect of compelling legal necessities and benefit to the estate that prompted for defendants to sell item No.1 of schedule properties. But incidentally, he has found that the other items of properties were the self acquired properties of Gangalappa, husband of defendant No.1 and herself.
11. Learned Civil Judge (Sr.Dn), Ramanagaram, on an appeal preferred by the 1st plaintiff in R.A.No.58/2002 has considered the sale of item No.1 to the defendant No.8 and thereafter, the same being mortgaged by the said defendant No.8 in favour of defendant No.9 and the objections filed by defendant No.7 for not registering the properties. Learned first appellate Judge found that there was no serious dispute among the defendants regarding the sale of schedule property to defendant No.8 by defendant No.1. In other words, Kamalamma, defendant No.1 who is the wife of Gangalappa sells the property and it is claimed not only by her and other defendants that it is purely a sheer legal necessity and to the benefit of legal estate. However, no specific documents were produced to show the borrowing of other debts and the suit item was alienated to discharge the debt as two marriages are said to have been conducted i.e. of defendant No. 4- Vasantha and defendant No.5 Ramamani by defendant No.1 and that it is also claimed by the defendants that plaintiffs have got out of the family by receiving their shares and found that the trial Judge has straightaway concluded that the sale under Ex.P5 is hit by lispendens and that it was a fit case for interference and did so by allowing the appeal. The operative portion of the said order is as under:
The appeal is allowed. The judgment and decree passed by the Civil Judge (Jr.Dn) Court, Ramanagaram in O.S. 62/1993 dated 1.10.2002 are set aside. The suit in O.S. 62/93 is decreed in part. It is declared that the plaintiffs- 1 and 2 and the defendants- 1 to 6 are entitled to 1/8th share each in the suit properties. The plaintiffs-1 and 2 are entitled for partition and separate possession of their share. The defendant-8 is entitled to the share of the defendants-1 to 6. Partition be effected U/S.54 of the CPC (Karnataka Amendment). Both the parties shall bear their own costs.
12. The same is challenged before this court in this appeal by the defendants.
13. While admitting the appeal, this Court has framed the following substantial question of law on 11-06-2009:
Whether the manner of depreciation of the evidence by the lower appellate court while answering the issue as raised in issue No.3 relating to the alienation of the suit schedule property for legal necessity would admit of perversity in the light of the trial court having appreciated the evidence to come to the conclusion that the plaintiffs are not entitled to the relief?
14. It is necessary to make cursory glance of the revenue documents, more particularly, the Records of Rights as per Ex.P1 which is in respect of land in Survey No.12/2B to the extent of 20 guntas and the name shown in Column No.9 is ‘Gangalappa, s/o Muddaeeraiah”. It is seen in the said exhibit, name of Gangalappa is changed to mention the name of ‘Kamalamma w/o Gangalappa’ as kathedar in Column No.9.
15. It is also necessary to mention that the reasons for change of katha of schedule item No.1, the land bearing Survey No.12/2B to the extent of 20 guntas of Ijoor village, Kasaba Holbi, Ramanagaram taluk. The reasons shown is “pouthi Mulki” (that means through succession). Ex.P5 is the certified copy of the sale deed infavour of defendant No.8 executed by Kamalamma in favour of Sri. C.V. Srinivas.
16. The learned counsel for plaintiff would submit that the rights of the plaintiffs for partition of the schedule properties does not get diluted or fathered in the light of the contentions raised by the defendants. He would further submit that the fact that there was a partition between Gangalappa and his brother. Insofar as sale deed is concerned, it is in respect of item No.1 executed by defendant No.1 in favour of 8th defendant. Admittedly, there are two items in the suit schedule. Learned counsel would further submit that the concept of joint hindu family, the right of a member gets vested by reason of birth that legal and legitimate right of the plaintiffs was deprived of by trial Judge. However, the same came to be rectified by first Appellate Judge.
17. Learned counsel for defendants would submit that the very suit of the plaintiffs is not maintainable by virtue of they being not contributing any help to the joint family or in clearing the joint family debts and that whatever they were entitled in the joint family they took away and went out of the family.
18. Insofar as the documents are concerned, no doubt under Ex.P1, name of defendant No.1- Kamalamma is shown at Column No.9. Further the sale deed fortifies that she sold the property to the 8th defendant.
19. In the context and circumstances of the case, the concept of joint family and right of partition is its main features. It is not necessary that every joint family should possess properties at the same time, there shall not be any self acquired property in the name of a member. However, the very fact that Gangalappa is dead. There is no legal embargo for the plaintiffs and the family members of Gangalappa for sharing Nodoubt, defendant No.1 has sold item No.1 of the schedule property on 10.3.1993 and regard being had to the fact that date of filing of the suit is 6.3.1993.
20. Nodoubt legal necessity and benefit to the estate are the other main feature of joint family and that the head of the family is entitled to alienate joint family properties insofar as there is necessity may be a benefit to the estate.
21. It is to be seen that the first appellate Judge by setting aside the judgment passed by the learned trial Judge has ordered for partition of the joint family properties at item Nos. 1 and 2 and the plaintiffs 1 and 2 and defendants 1 to 6 are entitled for 1/8th share each in the suit schedule properties and plaintiffs 1 and 2 are entitled for partition and separate possession of their title and defendants 1 to 6 are entitled for share in the share of defendants 1 to 6.
22. It is to be seen that no doubt, item No.1 of the suit property was sold. The circumstances of the case suggest that the relationship between the plaintiffs 1 and 2 and other members of the family was strained and there is no contribution from the plaintiffs. However, it cannot be forgotten for a while, if a person is a vagabond and addicted to vices it may effect in his share. At the same time, interest in the joint family becomes vested to a person by reason of his birth and if he does not have capacity to earn like any other normal coparceners or members, it cannot wholly take away his right to get a share in the joint family properties.
23. The materials on hand suggest that defendants 4 and 5 are daughters Vasantha and Ramamani now are married and their marriage was performed by defendant No.1 sans defendant 2 to 6. But there was no contribution from the plaintiffs. In the context and circumstances of the case, it cannot be concluded that there was funds of joint family or other sources and other properties to perform the marriage of defendants 4 and 5 or to meet the other essential necessities of the family. In this connection, plaintiffs cannot claim that they have borne the expenditure of the family in the matters of legal necessity. Nor there is any material to believe that the plaintiffs have contributed funds for marriages. However, learned counsel for the defendants submitted that there is no concept of joint family infavour of the plaintiffs or defendants as the plaintiffs have abandoned their right. In this connection there is no acceptable evidence.
24. After hearing the learned counsel, the following additional substantial question of law is raised for consideration.
When the head of the family is dead and one item of the property is sold by widow of the head of the family and the remaining one item of property are in the hands of his widow or other sons means that they are not of joint family and not available for partition?
.
25. The learned counsel for the appellants would submit that concept of joint family and properties as stated by the plaintiffs is not in existence. However, it is necessary to mention that the existence of joint family with property is a myth is neither justifiable nor permissible nor such kind of stand is appreciable. Gangalappa is not alive. Plaintiffs and defendants 2 to 6 are his children and defendant No.1 Kamalamma is the wife of Gangalappa. The said defendant No.1 had sold item No.1 of the schedule property to defendant No.8. Regard being had to the fact that sale is for the consideration of Rs.45,000/-. No details of debts are mentioned by the defendants. However, two marriages of her two daughters were performed and there are no material or fund in specific version to say that the plaintiffs have contributed for the marriage or their family. Thus, in the over all circumstances of the case, exempting the plaintiffs from the burden of bearing the share of sale is not proper.
26. The learned trial Judge has gone to the extreme end of rejecting the partition and the first appellate Judge has gone to the other end, wherein, though partition is ordered, the order portion is, the defendants and plaintiffs are entitled for their partition and separate possession, defendant No.8 is entitled to the share of defendants 1 to 6, in the sense, the defendants 1 to 6 have to bear the share of the property sold to the 8th defendant, which I find highly erroneous. Admittedly, marriages of the female members were performed by the joint family and there are no allegation of mismanagement of Joint family funds is established against Defendant No.1. However, defendant No.8 who invariably, is a bona fide purchaser for value. Therefore, in the absence of any allegations regarding the proportion of proceeds, the proper apportionment would be, the share or the property sold to him be borne by plaintiffs 1 and 2 and defendants 1 to 6. The judgment and decree passed by the learned trial Judge in OS No.62/1993 dated 01.10.2002 is erroneous and it is liable to be set aside. The learned first appellate Judge erred in allowing the appeal in R.A.No.58/2002 on 20-06-2006 holding that the defendant No.8 is entitled of his share from the share falling to defendant Nos.1 to 6 only. This is also is improper and impracticable. Thus, I find the judgment and decree passed by the learned first appellate Judge in RA No.58/2002 dated 20-06-2006 is to be set aside and liable to be modified. Hence, I answer the substantial questions of law accordingly.
27. In the result, the appeal is partly allowed.
The judgment and decree dated 20.06.2006 passed by the first appellate Judge in R.A.No.58/2002 is set aside and modified as under:
The suit in O.S.No.62/1993 is decreed in part declaring that plaintiffs 1 and 2 and defendants 1 to 6 are entitled to 1/8th share each in the suit properties.
In respect of the property sold to defendant No.8 i.e. Item No.1 of the schedule property is concerned, he is entitled for the same out of the share apportioned to Plaintiffs -1 & 2 and defendants 1 to 6.
Sd/- JUDGE tsn*