Shri M Armugam vs Smt Devakiammal
2021 Latest Caselaw 906 Kant

                              1




     IN THE HIGH COURT OF KARNATAKA BENGALURU

         DATED THIS THE 15th DAY OF JANUARY, 2021

                          BEFORE

         THE HON'BLE MS. JUSTICE JYOTI MULIMANI

       REGULAR FIRST APPEAL NO.316 OF 2006 (PAR)


BETWEEN:

SHRI M.ARMUGAM,
AGED ABOUT 40 YEARS,
S/O LATE A.MURUGAN ACHARI,
R/AT NO.155, KULLAPPA COLONY,
MURUGESHPALYA, HAL POST,
BANGLAORE - 560 017.

                                           ... APPELLANT

(BY SRI.M.A.SEBASTIAN, ADVOCATE)

AND:

1.     SMT.DEVAKIAMMAL,
       AGED ABOUT 68 YEARS,
       W/O LATE A.MURUGAN ACHARI.

2.     SHRI M.BALASUBRAMANIAM
       AGED ABOUT 35 YEARS,
       S/O LATE M.RAJENDRAN.

3.     SMT.KAMAKSHI,
       AGED ABOUT 30 YEARS,
       W/O M.RAJENDRA.

       ALL R/AT NO.154, KULLAPPA COLONY,
       MURUGESHPALYA, HAL POST,
       BANGALORE - 560 017.

4.     SMT.PALANIAMMAL,
       AGED ABOUT 43 YEARS,
                                    2




       W/O K.R.DORAISWAMY,
       R/AT NO.25, PILLAIR KOVIL,
       BLACK STREET, KASPA
       VELLORE - 632 001.

5.     SMT.LAKSHMI,
       AGED ABOUT 38 YEARS,
       W/O S.SUNDARAMURTHY,
       R/AT NO.97, III MAIN,
       RAMAKRISHNAPURAM,
       EAST THAMBRAM,
       CHENNAI - 600 059.                     ... RESPONDENTS


[(BY SRI C.C.POOVAIAH, ADVOCATE FOR
R1 TO R3 (ABSENT)
NOTICE SERVED TO R4 & R5]


       THIS     RFA   IS   FILED   UNDER   SECTION   96   OF   CIVIL
PROCEDURE CODE, 1908, CHALLENGING THE JUDGMENT AND
DECREE DATED 25.10.2005 PASSED BY THE XXVIII ADDITIONAL
CITY    CIVIL     JUDGE,     MAYOHALL      UNIT,   BANGALORE     IN
O.S.NO.15269/2003.


       THIS RFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THIS COURT DELIVERED THE FOLLOWING:

                             JUDGMENT

Sri.M.A.Sebastian, learned counsel for appellant has

appeared in-person.

2. This regular first appeal is filed by the first

defendant.

3. For the sake of convenience, the parties are

referred to as per their rankings before the trial Court.

4. The short facts are these; one Murugan Achari

and Devakiammal are husband and wife. They had three sons

and three daughters. Murugan Achari, died intestate on

21.09.2001. He has left behind his certain suit properties

which are his self acquired properties and the same is

inherited by his sons and daughters who are parties to the

suit.

The eldest son by name - M. Panneer Selvam, who was

in the Army died as a Bachelor and intestate. It is averred

that from the service benefits of their son-

M.Panneer Selvam, the father purchased a house property at

No.155, Kullappa Colony, Murugeshpalya H.A.L. Bangalore,

which is more fully described as 'A' schedule property in the

name of the first defendant as he was living with his parents

at that time.

Plaintiffs stated that defendant No.1 got a job in Army

on compassionate grounds as a Civilian employee. A

residential house described as 'B' schedule property is also

the self-acquired property of Late Murugan Achari and 'A'

schedule property is in exclusive possession of defendant

No.1. Late Murugan Achari had also acquired agricultural

lands at N.Gangapathu Thirvanamalai under three different

sale deeds. The schedule 'D' property in Sy.No.58/8A was

also purchased by Late Murugan Achari on 26.04.1975,

likewise, schedule 'E' property was purchased on 25.11.1989.

Therefore, plaintiffs stated that schedule 'B' to 'E'

properties are the self acquired properties of Late Murugan

Achari to be inherited by all the legal heirs equally and though

schedule 'A' property was purchased in the name of defendant

No.1 out of service benefits of Late M.Panneer Selvam, the

same should be partitioned amongst the parties. After the

death of Sri.Murugan Achari, defendant No.1 refused to grant

share and therefore, they were constrained to initiate action

seeking partition and separate possession in respect of the

suit schedule property.

On service of summons, defendant No.1 appeared and

filed written statement and he denied the plaint averments.

Defendant No.1 admitted the relationship between the

parties. He has stated that his father died on 21.09.2001 and

that during his life time, he has partitioned the immovable

properties, whereby, plaintiffs were given schedule 'B'

premises and defendant No.1 was given schedule 'A' property

with the consent of the parties.

It is further submitted that schedule 'A' property is his

self acquired property. Among other grounds, he prayed for

the dismissal of the suit.

On the basis of the above said pleadings, the trial Court

framed the following issues: -

"1. Whether the plaintiffs prove that suit schedule properties are joint family properties and that they are co-parceners of the joint family property as mentioned in the suit schedule?

2. Whether the first defendant proves that suit schedule A property is his self acquired property and that he is the sole and absolute owner of schedule A property?

3. Whether the defendant No.1 proves that the properties of his father late Murugan Achari was partitioned amongst the family members by way of family settlement during the lifetime of Murugan Achari?

4. Whether the suit is bad for non-joinder of necessary parties?

5. Whether the plaintiffs are entitled for a share in the suit schedule properties? If so, to what extent?

6. What order or decree?"

In support of the claim, plaintiff No.2 was examined as

PW-1 and produced seven documents which were marked as

Exs.P1 to P7. On behalf of defendants, defendant No.1 was

examined as DW-1 and produced twenty-three documents

which were marked as Exs.D1 to D23.

On the trial of the action, the suit came to be decreed

holding that plaintiffs and defendants are entitled for 1/6th

share in the suit schedule properties. Aggrieved by the

judgment and decree, defendant No.1 has preferred this

appeal under Section 96 of CPC.

5. Sri.M.A.Sebastian, learned counsel for appellant

submitted that judgment and decree of the trial Court is un-

sustainable in law and therefore, the same is liable to be set

aside.

Next, he submitted that the suit schedule 'A' property

was purchased by defendant No.1 vide registered sale deed

dated 11.01.1989 and it is his separate property.

A further submission was made that defendant No.1

was aged about 22 years. He was working as a Carpenter

and has sufficient source of income to purchase the property.

It is urged that that suit 'A' schedule property is separate

property and the property purchased in his name cannot be

treated as joint family property under any stretch of

imagination. Therefore, he submitted that the learned Judge

has erroneously decreed the suit and granted 1/6th share in

suit 'A' schedule property.

Counsel submitted that the trial Court has failed to

understand the difference between coparcenary property and

joint family property and separate property.

Counsel vehemently contended that for a property to

get included as joint family property there should be first of

all a joint family as understood under Mitakashara Law. It is

an undisputed fact that the father of defendant No.1 was

working in BEML and suit schedule properties 'B' to 'E'

properties were purchased by Murugan Achari. They are self-

acquired properties of Murugan Achari and therefore, the

children do not get any right by birth.

It has been contended that the suit schedule 'B' to 'E'

properties are the properties of Murugan Achari. Therefore,

under Section 8 of the Hindu Succession Act, 1956, parties to

the lis are equally entitled for one share each. Insofar as 'A'

schedule property, it is sought to urge that plaintiffs are not

entitled for any share as it is the separate property of

defendant No.1.

Among other grounds, he submitted that the judgment

and decree is unsustainable in law and is liable to be set aside

insofar as suit 'A' schedule property is concerned.

6. To substantiate his claim, he has relied upon the

following decisions: -

1. AIR 1969 SC 1330 - STATE BANK OF INDIA v. GHAMANDI RAM (DEAD) BY HIS LEGAL REPRESENTATIVE GURBUX RAI

2. AIR 1976 SC 109 - SURJIT LAL CHHABDA V. COMMISSIONER OF INCOME-TAX, BOMBAY.

3. AIR 1953 SC 495 - C.N.ARUNACHALA MUDALIAR V. C.A.MURUGANATHA MUDALIAR AND ANOTHER

7. I have heard the contentions urged on behalf of

appellant and perused the material on record with care.

For the sake of convenience, the genealogy is referred

to as under.

GENEALOGICAL TREE

MURUGAN ACHARI

SMT.DEVAKI AMMAL

1. BALASUBRAMANIAN

2. KAMAKSHI

3. M.ARMUGAM

4. PLANIAMMAL

5. LAKSHMI

6. M.PANNER SALVAM

8. The facts have been sufficiently stated. As could

be seen from the pleadings, the relationship between parties

is not in dispute.

Murugan Achari died intestate on 21.09.2001 leaving

behind his wife, two sons and three daughters to succeed to

his estate. The partition suit is filed by the wife of Murugan

Achari along with one son and one daughter against other

siblings.

Plaintiffs have sought for the partition of five items of

the properties described in the suit schedule as schedule 'A' to

'E'. The trial Court decreed the suit. This appeal is by the first

defendant. It is confined to 1 item which is described in suit

schedule 'A' a house measuring 600 sq feet situated at

Nanjareddy Colony, Murugeshpalaya, Bengaluru.

Bearing these facts in mind, the point which would arise

for consideration is whether the trial Court justified in

granting 1/6th share in schedule 'A' property by holding that

schedule 'A' property is the joint family property?

Before I answer the point, it would be relevant to know

the law on the classification of the property.

Property, according to the Hindu law, may be divided

into two classes, namely: (1) joint family property; and (2)

separate property.

Joint family property may be divided according to the

source from which it comes into:

(1) ancestral property; and

(2) separate property of coparceners thrown into the common coparcenary stock.

Property jointly acquired by the members of a joint

family, with the aid of ancestral property, is joint family

property. Property jointly acquired by the members of a joint

family without the aid of ancestral property may or may not

be joint family property; whether it is so or not, is a question

of fact in each case. The term joint family property is

synonymous with coparcenary property. Separate property

includes 'self- acquired 'property.

Generally speaking, the normal state of every Hindu

family is joint, presumably every such family is joint in food,

worship and estate. In the absence of proof of division, such

is the legal presumption. It is needless to say that there is no

presumption that a family, because it is joint possesses joint

property or any property. When in a suit for partition, a party

claims that any particular item of the property is joint family

property, a party contends that the property is joint family

property, the burden of proving it rests on the party asserting

it.

To render the property joint, the plaintiff must prove

that the family was possessed some property, with the

income of which the property could have been acquired, or

from which the presumption could have be drawn that all the

property possessed by the family is joint family property.

Where the plaintiff failed to discharge the burden of

proving that the property had been acquired out of joint

family funds, and the defendant was able to prove separate

earnings and other records were also in his name, the suit for

partition is liable to be dismissed. Thus, when properties were

proved to be self-acquired properties, coupled with the fact

that there was no evidence as regards joint family nucleus,

such properties could be dealt with for disposition in any

manner, as they were self-acquired.

In the background of these legal principles, let me see

what is the nature of the property in the present case?

This is a defendant's appeal. The appellant is the son of

late A.Murugan Achari. A.Murugan Achari died intestate on

21.09.2001 leaving behind his wife, two sons and three

daughters to succeed to his estate. The partition suit is filed

by the wife of late A.Murugan Achari along with one son and

one daughter against other siblings.

The appeal is confined to Item No.2 of the suit schedule

property described in schedule 'A' measuring 600 sq ft

situated at Nanjjareddy Colony, Murugeshpalya, Bengaluru.

It is the specific case of appellant that he purchased the

suit schedule 'A' property vide registered sale deed dated

11.01.1989 as per Ex.P2. Plaintiffs are claiming a share in the

said property contending that it is a joint family property.

The trial Court while answering Issue No.2 held that suit

schedule 'A' property joint family property and not the self-

acquired property of defendant No.1.

In this regard it would be relevant to consider the plaint

averments.

In the plaint, in paragraph 4, plaintiffs have specifically

stated that the husband of the first plaintiff who is the father

of other plaintiffs and defendants Sri.Mrugan Achari who died

intestate on 21.09.2001 to inherit the properties left behind

by him which are self acquired properties.

They filed a suit for partition and claims that schedule

'A' property is the joint family property. Hence, the burden of

proving that it is the joint family property rests on the

plaintiffs. But plaintiffs have failed to discharge the burden of

proving that schedule 'A' property had been acquired out of

joint family funds.

On the contrary, defendant No.1 was able to prove that

he had a separate earnings and he has purchased the

schedule 'A' property.

If we carefully read the plaint, it makes clear that there

is no ancestral property inherited by plaintiffs or defendants

and the question of coparcenary property does not arise and

the parties are not coparceners.

On the other hand, the evidence on record show that

defendant No.1 was working as a Carpenter and was earning

sufficiently. He has purchased the property.

Ex.P2 is the certified copy of the sale deed. The sale

deed is executed on 11.01.1989. Defendant No.1 has

purchased the property for Rs.50,000/-. It would be relevant

to notice that defendant No.1 has paid the amount from his

personal account and he has issued bearing No A.287142

dated 18.01.1989, drawn on State Bank of India before the

Sub Registrar Bangalore.

The second plaintiff was examined as PW-2. In his chief

examination, he has stated that 'A' schedule property is in the

name of defendant No.1, it was purchased by parents out of

the death /service benefits for the benefit of the family. It is

not the self-acquired property of defendant No.1. He has

deposed that the death benefits of Panneer Selvam was

received by his mother and later the amount has been

transferred to Armugam- defendant No.1 .

Defendant No.1 was examined as DW-1. He has denied

the suggestion that the schedule 'A' property was purchased

by his parents out of the death benefits of Paneer Selvam. In

fact, a suggestion was made that he was not working between

1982 and 1991 and that he was not having sufficient income

to purchase the property. But the same has been denied by

him. On the other hand, he has deposed that he was doing

carpentry work and he has purchased the 'A' schedule

property.

As could be seen from the above evidence, though PW.1

has deposed that 'A' schedule property was purchased out of

the death benefits of his brother and the property was

purchased in the name of defendant No.1 for the benefit of

the family. Hence, it is the joint family property.

But there is nothing on record to show that the property

was purchased from the death benefits as contended by

plaintiffs. On the other hand, the sale consideration was paid

by defendant No.1. The sale deed is in his name.

As already noted above, suit schedule 'A' property was

purchased by defendant No.1 on 11.01.1989 and the property

is not in the name of Murugan Achari and therefore, the said

property cannot be considered as property left behind by

Murugan Achari, so as to seek partition.

It would be relevant to note that in the present case,

there was no joint family and parties are not coparceners. The

properties are self-acquired properties of father Murugan

Achari, except suit schedule 'A' property. Plaintiffs have failed

to discharge the burden of proving that the property had been

acquired out of joint family funds, and the defendant was able

to prove separate earnings.

The resultant position is that when properties were

proved to be self-acquired properties, coupled with the fact

that there was no evidence as regards joint family nucleus,

such properties could be dealt with for disposition in any

manner, as they were self-acquired.

The suit schedule 'A' property is the self-acquired

property of defendant No.1. It is not the joint family property

or the property of the father Murguan Achari as contended by

plaintiffs. Therefore, question of presumption that the family

is joint and the properties are joint family properties is

unsustainable in law. Hence, the suit for partition is liable to

be dismissed insofar as schedule 'A' property is concerned..

Accordingly, the suit is dismissed.

Accordingly, appeal is allowed and judgment and

decree of the trial Court is set aside insofar as schedule 'A'

property.

Registry to draw up the decree accordingly.

Parties to bear their own cost in the appeal.

Sd/-

JUDGE

VMB