Regular First Appeal No. 534 of 2003. Case: Sri. Swamy and Smt. Puttamma Vs Smt. Thimmamma and Ors., [Alongwith Regular First Appeal Nos. 394 and 669 of 2003]. High Court of Karnataka (India)
| Case Number | Regular First Appeal No. 534 of 2003 |
| Counsel | For Appellant: Shri. K. V. Narasimhan, Advocate, Shri. T. N. Raghupathy, Advocate and Shri. L. Prakasha, Adv. And For Respondents: Shri. T. N. Raghupathy, Advocate, Shri. K. V. Narasimhan, Advocate and Shri. G. S. Bhat, Advocate |
| Judges | Anand Byrareddy, J. |
| Issue | Property Law |
| Judgement Date | April 16, 2013 |
| Court | High Court of Karnataka (India) |
Judgment:
Anand Byrareddy, J.
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These appeals are heard and disposed of by this common judgment, as all the appeals arise out of the same judgment. The parties are referred to by their rank before the trial court for the sake of convenience.
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The first respondent in the appeal in RFA 534/2003 was the plaintiff before the trial court. The suit was one for partition and separate possession of the one-third share claimed by the plaintiff, in the suit schedule properties. The trial court decreed the suit and has granted a two-sixth share-the defendants have filed the above appeals.
The following is the genealogical tree of the family:-
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The appeal in RFA 534/2003 is filed by the defendant nos. 1 and 2. Defendant no. 1, Swamy, is the grandson of Hutchegowda and the son of Chandre gowda. Defendant no. 2, Puttamma, is the widow of Chandre gowda.
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The appeal in RFA 394/2003 is filed by defendant no. 3, Parvathamma, the daughter of late Huchegowda.
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The appeal in RFA 669/2003 is filed by defendant no. 4, L. Prakash, who is the purchaser of land bearing Survey no. 447/2, measuring 61 acres, one of the items of the suit schedule properties.
The case of the plaintiff was that, Golangana Dasappa had a son, Hutchegowda, who had two wives, namely, Shivamma and Puttaboramma. The plaintiff, Thimmamma, was the only daughter of Shivamma. Puttaboramma, the second wife of Hutchegowda had two children, Chandregowda & Parvathamma. Defendants 1 and 2, Swamy and Puttamma are the son and widow, respectively, of deceased Chandregowda, who had pre-deceased his father, Hutchegowda. Parvathamma is defendant no. 3. The plaintiff claimed that all the suit properties are the ancestral properties of Hutchegowda. After his death, the plaintiff claimed that she was entitled to one-third share in the suit properties. It was contended that the third defendant had sold some of the properties without the consent of the plaintiff or the other members of the family.
The first defendant admitted the relationship of the parties and supported the case of the plaintiff. It was also contended by the said defendant that apart from the suit schedule properties, deceased Hutchegowda had held one more item of land measuring 6 acres and sought that the same be directed to be included in the suit schedule. It was however, denied that the plaintiff was in enjoyment of the suit properties, jointly, with the first defendant. It was claimed that while Hutchegowda had a half share in the suit properties, Chandregowda was entitled to the remaining extent. After the death of Hutchegowda, the plaintiff-Thimmamma, defendants 1, 2 and 3 were entitled to an equal share in respect of the properties fallen to the share of Hutchegowda. On that basis the first defendant claimed partition and separate possession of his two-third share in the suit properties. As also the item of land not included in the plaint.
Defendant no. 2 contended that she had filed a suit in OS No. 44/1988, for partition and separate possession of a three-fourth share in the ancestral properties, as the next friend of her son, the first defendant. This was warranted as the third defendant was laying claim to the entire suit properties on the basis of a will said to have been executed by Huchegowda, in favour of defendant no. 3, dated 22-12-1986, bequeathing all the properties to her. That suit had however, ended in a compromise, with the third defendant giving up her claim under the will. But, it is contended that, the third defendant had even then managed to wrangle a major share of the suit properties in terms of the said compromise. It is asserted that this was possible as the third defendant carried much influence with Hutchegowda during his life time and after his death, her husband exerted authority over the family and appropriated the income from the properties and alienated several properties, even though there was no legal necessity for such alienation. It was hence contended that any such alienations did not bind the other sharers.
The third defendant contended that the plaintiff was married to one Thimmegowda and that she was married to one Naganna. They lived in the same village, but separately and did not constitute a joint family. It was denied that the properties were ancestral properties of Hutchegowda. It was also asserted that the sale of several items of land in favour of defendants 4 to 7 were made during the life time of Hutchegowda, and could not be questioned as being illegal. This was to the knowledge of the plaintiff. As Hutchegowda had the power of alienation, there was no illegal transaction. It was pointed out that Hutchegowda was the only son to his father and was the sole surviving co-parcener and the properties in his hands could be construed as his separate properties and hence he could dispose of the same by will or otherwise. It was claimed that under his last will and testament, Hutchegowda had recorded that the third defendant on the one hand, and the first and second defendant on the other, were living separately, in the same village. Hence there was no joint family status existing between the parties.
The fourth defendant contended that he had purchased one of the items of the suit property on 20-2-1988, from one John, whose vendor had been in possession before the transaction. It is asserted that the plaintiff had not objected to the transaction in his favour at the relevant point of time.
The fifth and eighth defendant who are also said to be purchasers of items of the suit properties, prior to the suit, have taken similar contentions as the fourth defendant.
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The court below had framed the following issues on the basis of the above pleadings:-
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Whether the plaintiff proves that the suit properties are the ancestral joint family properties of herself and D1 to 3?
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Whether the defendant No. 3 proves that her father Hutchegowda had made disposition of properties through a will dated 22.12.1986, as they were himself acquired properties?
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Whether the defendant No. 3 proves that sales made by her cannot be questioned by plaintiff for the reasons stated in para-10 of her written statement?
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Whether the suit is bad for mis-joinder of parties?
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Whether the suit is bad for non-joinder of necessary parties and properties?
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Whether the plaintiff is entitled to relief of partition and separate possession of 1/3rd share in the suit properties?
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Whether the 1st defendant is entitled to partition and separate possession of 2/3rd share in suit properties?
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Whether the plaintiff is entitled to mesne profits?
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To what relief's parties are entitled?
ADDITIONAL ISSUES
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Whether the 3rd defendant proves that the sale to defendants 4 to 7 are not by defendant Nos. 1 to 3, but deceased Hutchegowda during his life time for his necessity and he had absolute power to effect the sales as averred in the amended written statement?
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Whether the plaintiff proves that the sales effected by the defendants 1 to 3 in favour of defendant No. 8 and some other third parties are not binding on the shares of plaintiff as averred in para-4(b) of the plaint.
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Whether the plaintiff proves that the suit schedule properties are in joint possession of plaintiff and defendants 1 to 3?
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Whether the plaintiff is entitled for the relief claimed in the suit?
The suit was partly decreed as per judgment and decree dated 29.2.1996, holding that the plaintiff was entitled to one-sixth share and the defendant no. 1 was entitled to two-third share, while the third defendant was held entitled to one-sixth share, in all the suit properties, except those sold to defendants 4 to 8 Against the above judgment and decree, both the plaintiff and the defendants had preferred appeals to this court in RFA 490/1996, RFA 489/1996 and RFA 518/1996. This court, by its judgment dated 16-2-2002, remitted the matter for a fresh consideration. The plaintiff and the defendants had been permitted to amend their pleadings and the above issues were framed.
The court below has held Issues nos. 1 to 5, 8 and additional issue no. 1 in the negative and issue no. 6 and 7 and additional issue nos. 2 and 3 in the affirmative. It is this which is under challenge in these appeals.
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The learned counsel for the appellants, Shri K.V. Narasimhan contends as follows:-
That Chandregowda died in the year 1975. He predeceased his father Hutchegowda, who died on 7.2.1987. The court below has erroneously concluded that Hutchegowda was the sole surviving co-parcener seeming to apply the rule of inheritance in terms of Section 8 of the Hindu Succession Act, 1956 (Hereinafter referred to as the '1956 Act', for brevity) and has pronounced that the plaintiff-defendants 1, 2 and 3 were the heirs of Hutchegowda and has allotted them shares accordingly. However, it was overlooked that Chandregowda died in the year 1975, leaving behind him Swamy, his son, the first defendant. Therefore, by the deeming fiction of notional partition, the half share of Chandregowda in the suit properties would devolve upon Swamy, his son and Puttamma, his widow, respectively, and Hutchegowda would retain the other half. On the death of Hutchegowda, the half share belonging to Hutchegowda by notional partition, would have to be divided into three equal shares, to be distributed between the plaintiff, defendants 1 and 2 and defendant 3, respectively. The fallacy committed by the court below in overlooking this obvious circumstance, has resulted in a miscarriage of justice, leading to the impugned judgment. The conclusion by the court below that Hutchegowda would become the sole co-parcener after the demise of Chandregowda is, therefore, a cardinal error committed by the trial court. The learned Counsel relies on the following authorities to substantiate his contentions:-
(a) Sheela Devi and others vs. Lal Chand, (2006) 8 SCC 581,
(b) Dharma Shamrao Agalawe vs. Pandurang Miragu Agalawe and others, AIR 1988 SC 845.
The learned counsel would further contend...
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