Karnataka High Court
Marthu S/O Narayan Prabhu vs Ufm Manjunath S/O Marthu Prabhu on 19 December, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
1 RFA No. 100041 OF 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE H.P.SANDESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 100041 OF 2015
BETWEEN:
SHRI. MARTHU S/O. NARAYAN PRABHU,
AGE: 39 YEARS, OCC: PVT EMPLOYEE,
R/O: JVSC COMPOUND, VIDYANAGAR,
SAMREEN
AYUB TORANGALU, DIST: BALLARI- 583275.
DESHNUR
...APPELLANT
Digitally signed (BY SRI. C.S. SHETTER FOR SRI. JAGADISH PATIL, ADVOCATES)
by SAMREEN
AYUB
DESHNUR
Date:
AND:
2023.12.21
11:32:38 +0530
1. U.F.M. MANJUNATH
S/O. MARTHU PRABHU
SINCE DECEASED BY HIS LRS
1.(A) SMT. MEENA
W/O. MANJUNATH PRABHU,
AGE: 78 YEARS,
R/O: MATHAKERI, TAL: ANKOLA,
DIST: UTTAR KANNADA.
1.(B) SHRI. AMOL
S/O. MANJUNATH PRABHU,
AGE: 47 YEARS,
R/O: MATHAKERI, TAL: ANKOLA,
DIST: UTTAR KANNADA.
1.(C) SNEHAL D/O. MANJUNATH PRABHU,
AGE: 51 YEARS,
R/O: MATHAKERI, TAL: ANKOLA,
DIST: UTTAR KANNADA.
2. ANANT S/O. MARTHU PRABHU,
AGE: 74 YEARS,
2 RFA No. 100041 OF 2015
R/O: OWNER COURT,
MOGHAL LANE MAHIM,
MUMBAI - 4000016.
3. NARAYAN S/O. MARTHU PRABHU,
AGE: 72 YEARS,
R/O: SHANTI APARTMENT,
GREEN STREET, KARAWAR - 5810301.
4. SMT. VIJAYA W/O. MUKUND KENKRE,
AGE: 75 YEARS, OCC: HOUSEHOLD,
R/O: HIRABAD MANSION,
SHEETALADEVI TEMPLE ROAD,
MOGHAL LANE MAHIM,
MUMBAI-400016.
5. PADMAVATI D/O. NARAYAN PRABHU,
AGE: 61 YEARS,
R/O: SHANTY APARTMENT,
GREEN STREET, KARWAR-5810301.
6. YOGITA D/O. NARAYAN PRABHU,
AGE: 40 YEARS, OCC: HOUSEHOLD,
R/O: JAVAHAR ARCADE,
TARA NAGAR, SANGUEM, GOA-403505.
7. VITHOBA S/O. SUBRAY PRABHU,
DECEASED BY HIS LR'S
7.(A) SANJAY VITHOBA PRABHU,
AGE:50 YEARS,
8. AJIT S/O. RAMAKRISHNA PRABHU,
AGE: 46 YEARS,
9. SUBRAY S/O. PONDU PRABHU,
AGE: 67 YEARS,
10. PUNDALIK S/O. PONDU PRABHU,
AGE; 64 YEARS,
11. DAMODAR S/O. PONDU PRABHU,
AGE: 63 YEARS,
12. DEVIDAS S/O. PONDU PRABHU,
AGE: 61 YEARS.
3 RFA No. 100041 OF 2015
RESPONDENT NO. 7 TO 12 ARE
R/O: MATHAKERI, TAL: ANKOLA - 581314.
...RESPONDENTS
(BY SRI. RAMACHANDRA A. MALI ADVOCATE FOR R1 (A TO C);
SRI. NAVEEN R. MALINAMANI ADVOCATE FOR R3;
SRI. P.V. GUNJAL ADVOCATE FOR R2 AND R4;
NOTICE SERVED TO R5 TO R12)
THIS REGULAR FIRST APPEAL FILED UNDER ORDER XLI RULE 1 R/W
SEC. 96 OF CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE DATED: 31/10/2014 AND DECREEING THE SUIT
FILED BY APPELLANT PASSED IN O.S. NO. 10/2010 BY THE SENIOR CIVIL
JUDGE KUMTA, SITTING AT ANKOLA IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND RESERVED,
COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
RAMACHANDRA D. HUDDAR, J., DELIVERED THE FOLLOWING:
JUDGMENT
The above captioned appeal is directed against the judgment
and decree dated 31.10.2014 in O.S.No.10/2010 passed by the Senior
Civil Judge, Kumta, itinerary sitting at Ankola (for short "the Trial
Court") dismissing the suit filed by the appellant-plaintiff.
2. For the purpose of convenience, parties are referred to as
per their rank before the Trial Court.
3. The case of the plaintiff in brief is as under:
That, the plaintiff filed a suit against the defendants seeking the
relief of partition and separate possession of the suit schedule
properties by awarding 25/320th share in the same by metes and
bounds.
It is the case of the plaintiffs that, he is the son of defendants 3
and 5. Defendant No.6 is his sister and married daughter of
defendants 3 and 5. It is his case that, defendants 1 to 3 are direct
brothers. One Mr.Marthu Vithoba Prabhu was the propositus. He died
at Bombay on 25.12.1977 leaving behind his wife Radhabai and three
sons i.e. defendants 1 to 3 and two daughters i.e. defendant No.4 and
one Sindhu. The wife of Marthu died on 21.04.1990. These defendants
1 to 4 and Sindhu are the only legal heirs of deceased propositus and
his wife. They are entitled to succeed to their properties.
When Marthu was alive, all the suit schedule immovable
properties were standing in his name. After his demise, the names of
defendants 1 to 3 came to be entered. The propositus and his wife left
vast immovable properties, gold ornaments, cash and silver and other
utensils. Thus, all these properties are in joint possession and
enjoyment of defendants 1 to 6. It is alleged that, it was defendant
No.1, who used to manage the affairs of the family being a Kartha as
elder son of the propositus.
It is further alleged by the plaintiff that, it was learnt by him that
Smt.Sindhu, the sister of defendants 1 to 3 being eldest daughter of
propositus filed a partition suit on the file of Civil Judge, Karwar. The
said suit came to be compromised. Defendant No.1 entered into
compromise and paid money out of the income received from the joint
family properties. As she has already taken her share in the joint
family properties, she is not arrayed as a party to this suit.
It is contended that defendants 7 to 12, so arrayed in the plaint,
are formal parties as their name is appearing in Samayik in respect of
Sl. No.11 and 12 of 'A' schedule properties. They are not the members
of joint family of the plaintiff and defendants 1 to 6. No claim is made
against them. When plaintiff demanded to effect partition, there was a
flat denial. Therefore, the plaintiff was constrained to file suit seeking
partition. When there was a demand, there was no satisfactory answer
given by his father. It is contended that, defendant No.1 is liable for
the loan being raised by him to the extent of Rs.28,00,000/- by
keeping security of Sl.No.2 to 4 properties. Thus, it is prayed by the
plaintiff to decree the suit as prayed for.
4. Pursuant to the suit summons, defendants 1 to 4 appeared
through their respective counsels and defendants 1 and 3 filed their
independent written statements. Defendants 2 and 4 filed their joint
written statement. To the written statements so filed by defendants 1
and 3, there is additional written statement filed by them.
Throughout the written statement filed by defendant No. 1, it is
contended by him that, his brother i.e. defendant No.3 has instigated
his son i.e. plaintiff to file this present suit. Recently, defendant No.3
issued a notice to him through his lawyer on 03.11.2009 alleging that,
he is the member of the coparcenary and defendant No.1 is the
manager in the family. Defendant No.3 claimed his share in the joint
family properties. Defendant No.3 has issued notice stating that, in
case if no partition is effected, he will be constrained to file suit against
defendant No.1. The said notice was duly replied by defendant No.1 by
giving entire factual events that have taken place with regard to the
suit schedule properties. It is stated by defendant No.1 that, he has
given share to all his brothers and sisters. But defendant No.3, to have
an unjust and illegal gain, demanded the share. In view of issuing
reply by defendant No.1, he has prompted and instigated his son to
file a suit against all the defendants.
Throughout the written statement, it was contended that, his
father-Marthu got the properties by virtue of registered partition deed
dated 10.04.1941. Independently, he got the properties. Even
defendant No.1 also purchased the schedule properties after effecting
partition. He being elder member of the family, he brought up all his
brothers and sisters. He had performed the marriages of his sisters.
Even till date, defendant No.1 and others are attending their family
house for the purpose of performing religious ceremonies. He went to
Mumbai in the year 1971. His wife is a Dietician and working in KEM
Hospital Mumbai. At earliest point of time, he was unable to
contribute to maintain the family. Because of his hard work at Mumbai,
he could help his family members including his brothers and sisters.
So, far as death of his father Marthu in the year 1977 it is admitted.
Even he has met all the family expenses.
It is further contended that, after demise of their father, the
names of defendant No.1 to 3 came to be mutated in respect of family
properties. Defendant No.4 and his another sister Sindu have
relinquished their rights with clear understanding that they have
already compensated by this defendant No.1 at the time of performing
their marriages. Even this defendant No.3 has also received money.
Whatever compensation received from the Land Tribunal to the extent
of Rs.2,16,914.75/- was given to their mother. She had paid the same
to her daughters. Therefore, it is contended that Rs.25,000/- was
quantified as share of defendant No.3. Each sharer was paid
Rs.25,000/- by cheque on 18.05.1983. As per the understanding and
agreement amongst the parties, on 18.05.1983 itself, the joint family
status came to an end. Already there was a partition in respect of
family properties. Now, the plaintiff has to claim his share from his
father and not from defendant No.1. Even the said Sindhu was
compensated by paying Rs.4,50,000/- in full settlement of her claim.
As the lawyers, who have issued notice are the close relatives of
defendant No.3, they instigated the plaintiff to file the present suit.
Thus, by contending so many factual features, that have taken
place in the family, it is prayed by defendant No.1 to dismiss the suit.
5. Even defendants 2 and 4 have filed their written
statement. They have denied all the assertions made in the plaint.
Defendants 2 and 4 admit the relationship. The plaintiff and
defendants have not continued as joint family members since 1993-
94. They contended that, the schedule property is a separate property
of defendant No.1 alone. Already there was oral partition in the year
1993-94 between the members of the family. These defendants 2 to 4
were parties to the said partition. There was a suit bearing
O.S.No.29/1994 filed by Sindhu before the Senior Civil Judge, Karwar.
She has received Rs.4,50,000/- from defendant No.1. Thus, there
exists no joint family status.
6. Whereas, defendant No.3 by filing his written statement
denied all the contentions taken by defendant No.1. He contends that,
still the joint family status exists and he is entitled for share. It is
contended that defendant No.1 had given a special power of attorney
in the year 1981 to effectively manage the joint family affairs on
behalf of the entire family. The mother-Radhabai was not signatory to
the said GPA. Acting upon the same, defendant No.1 got mutated the
revenue records in his name. Defendant No.3 came to know about the
said fact recently. He has received large payment of compensation and
also income from the properties. He denied all the assertions and
contentions taken by defendant No.1 in the written statement. There is
no relinquishment of shares by any members of the family as per
contention of defendant No.3. To this contention, defendant No.1 has
filed his additional written statement denying all the contentions taken
by defendant No.3.
7. Based upon the aforesaid rival pleadings of both the
parties, the learned Trial Court framed in all six issues. They read as
under:
1. Whether the plaintiff proves that the plaint 'A' and 'B'
schedule properties are the joint family properties of
the plaintiff and defendants?
2. Whether the defendant No.1 proves that there is
already a partition of the properties between the
plaintiff and defendants as pleaded by him in the para
17 of the written statement?
3. Whether the defendant Nos.1, 2 and 4 prove that
defendant Nos.2 & 4 and Smt. Sindhu have released
their share in respect of the suit schedule properties in
favour of the defendant No.1?
4. Whether the plaintiff proves that he is entitled for
share in the compensation amount received by the
defendant No.1 from the Government under the
Karnataka Land Reforms Act with interest at 15% p.a.
from the said date till the date of payment?
5. Whether the plaintiff proves that he is entitled for
25/320 share in the suit schedule properties?
6. What order or decree?
8. To substantiate and prove the case of the plaintiff, he
himself was examined as PW1 before the Trial Court and got marked
Exs.P1 to Ex.P26 and closed plaintiff evidence. Defendant No.1 entered
the witness box as DW1 and got marked Exs.D1 to Ex.D22 and closed
his evidence. The other defendants have not led any evidence to
substantiate their respective pleas taken up in their respective written
statements.
9. On hearing the arguments and also on evaluation and
assessment of evidence, the Trial Court answered issue No.1, 4 and 5
in the negative and issue No.2 and 3 in the affirmative and ultimately
dismissed the suit of the plaintiff.
10. Now the appellant-plaintiff is before this Court challenging
the dismissal of his suit by the Trial Court by filing this appeal.
11. It is argued by the counsel for the appellant that, so far as
genealogy is concerned, it is not disputed. The propositus Marthu
Vithoba Prabhu and his wife Radhabai in all have five children i.e.
defendants 1 to 3 being sons and defendant No.4 being daughter and
one more daughter by name Sindhu. It is an admitted fact between
both the parties that, during the year 1994, this Sindhu, the another
daughter of Marthu and Radhabai filed a suit before the Senior Civil
Judge, Karwar and got it compromised towards her share. It is the
case of the plaintiff and defendant No.1 that, it was defendant No.1
who paid Rs.4,50,000/- to Sindhu and thereby she has given up/
relinquished her share in the properties left behind Marthu and
Radhabai. Now the dispute is in between defendants 1 to 4 and the
present plaintiff. The present plaintiff is the son of defendant No.3 and
Padmavathi, who is arrayed as defendant No.5 in this suit. In the
wedlock between defendant No.3 and defendant No.5-Padmavathi,
they have two children i.e. plaintiff and daughter-Yogita (defendant
No.6).
12. It is submitted by the learned counsel for the plaintiff that,
though defendant No.1 asserts about effecting of partition orally and
paying Rs.25,000/- to defendant No.3, it is not proved. Plaintiff being
a son of defendant No.3 can claim share. It is his submission that,
when the schedule properties are the ancestral properties and they
have a status of the joint family properties, the plaintiff being son of
defendant No.3 is claiming his share. Therefore, according to his
submission, he is entitled to have his legitimate share from the share
of his father-Narayan i.e. defendant No.3.
13. It is his submission that, even defendant No.3, his father,
has not admitted the said partition. When he demanded his father to
effect partition, it was told to the plaintiff that, no partition has taken
place in the ancestral properties. As the properties were still hold the
status of ancestral joint family, he submits that, though the sister of
defendants 1 to 4 by name Sindhu by filing a suit claimed her share
and received Rs.4,50,000/-, that does not that, mean the status of
joint family properties is not in existence.
14. According to the counsel for the appellant-plaintiff, the
Trial Court has not kept in mind the legal status of these defendants as
all the properties were not partitioned by metes and bounds. There is
no registered document or decree passed by the competent civil Court
in respect of effecting partition in between defendants 1 to 4.
Therefore, he submits that, the Trial Court believed the contents of
written statement and the evidence of defendant No.1 and has
wrongly dismissed the suit filed by the plaintiff. He craves to allow the
appeal and set aside the impugned judgment and to decree the suit as
prayed for.
15. As against this submission, counsel for defendant No.1
submits before the Court that, in the year 1994 itself there was a
partition. These defendants 2 to 4 executed power of attorney in
favour of defendant No.1, as he was managing the properties and they
have relinquished/given up their right in the properties by receiving
Rs.25,000/- each. He has paid the same by way of cheque. Therefore,
when already there was an oral partition, this plaintiff if at all wants to
have any share in the properties, he has to ask his father i.e.
defendant No.3 and not these defendants 1, 2 and 4. It is his
submission that, when documentary evidence plays an important role
with regard to partition and even this plaintiff on the guise of seeing
records has taken away all the records, which were available with
defendant No.1 and misused the same, it is his submission that the
Trial Court has rightly dismissed the suit of the plaintiff. In support of
his arguments, he has relied upon the following judgments:
i) In Uttam v. Saubhag Singh and others1
ii) In Kesharbai @ Pushpabai Eknathrao
Nalawade (D) by LRs and another v. Tarabai
Prabhakarrao Nalawade and others2
16. So far as other defendants i.e. 2 and 4 are concerned, they
submit that already there is a partition etc. But defendant No.3
disputes the same.
17. In view of rival submissions of both the sides, the points
that would arise for our consideration are as under:
1. Whether the findings of the trial Court about earlier
partition set up by defendant No.1 and that the Trial
Court dismissing the suit of the plaintiff, suffers from
illegality, perversity and require interference by this
Court?
(2016) SCC 68
[2014] SCCR 410
2. If so, whether the plaintiff is entitled for share in the
joint family properties from the defendants and from
whom?
Point No.1 and 2 are discussed together.
18. So far as genealogy is concerned, Marthu Vithoba Prabhu
is the propositus of the family and he died on 25.12.1977. During his
lifetime, he was possessing vast properties in his name. It is an
admitted fact that, he had a wife by name Radhabai. There were five
children in all i.e. three sons and two daughters. Defendants 1 to 3 are
the sons, defendant No.4 is a daughter and another daughter is
Sindhu. The said Sindhu is not arrayed as a party to the present suit
since she had already relinquished/given up her share in the schedule
properties by filing a civil suit, which ended in compromise. The
present plaintiff and defendant No.6 are the children of defendant
No.3-Narayana and his wife Padmavathi, who is defendant No.5 in the
present suit.
19. So far as joint family status between the plaintiff and
defendants is concerned, PW1 being plaintiff has reiterated the plaint
averments in his evidence on oath. In support of his evidence, he has
relied upon various documents such as RTC extracts, property
extracts, assessment extracts, mutation entries certified by the
revenue authorities and copies of the power of attorney stated to have
been executed by his brothers and sister i.e. defendants 2 to 4 in
favour of defendant No.1.
20. This PW1 is thoroughly and intensively cross-examined by
the defendants. He is consistent that when he demanded for effecting
partition with his father and asked him about the features of the
schedule properties, his father-defendant No.3 did not give any proper
answers. Even he called defendant No.1 through telephone and
demanded to effect partition, but defendant No.1 did not speak
anything about the same and he disconnected his phone call.
Throughout the evidence, it is brought on record that, this plaintiff is
quite ignorant about where exactly the schedule properties of the
family of Marthu are situated and what are the crops grown in the
schedule properties. So also, what is the income derived from the said
properties. Even he is unable to depose regarding since how many
years his father has not visited the schedule properties of the family.
He admits that, defendant No.1 took his parents to Mumbai for the
purpose of his livelihood. At Mumbai his father was employed. He had
purchased a house at Mumbai but he sold the same and came back to
his native place. Even he is unable to say what are all the gold and
silver ornaments and immovable properties are being available in the
family. He is quite ignorant of all these features of the family.
21. He admits that Sindhu filed a suit in O.S.No.29/1994 on
the file of Senior Civil Judge, Karwar and in the said suit, partition has
taken place and she was given her share by paying Rs.4,50,000/- to
her. He denies that, there was oral partition and in the said oral
partition, by giving Rs.25,000/- his father has relinquished his share.
He denies the suggestion that, because of receipt of Rs.25,000/- by
his father, he has lost his right in the schedule properties. He is
consistent about he demanding partition and regarding status of
schedule properties as that of joint family.
22. Ex.P1 to Ex.P13 are the RTC Extracts. Ex.P1 to P5 are
exclusively standing in the name of defendant No.1, Ex.P6 is standing
in the name of defendant No.1 and one Subraya, Pandurang and
Damodar, who are defendants 6 to 9. Ex.P7 is standing in the name of
Manjunath and others. Even some of the documents are also standing
in the name of defendants 5 to 9. Ex.P14 to 16 are the property
extracts, which are exclusively standing in the name of defendant
No.1. It is the case of the plaintiff that, on the guise of managing the
properties, this defendant No.1 got his name entered in all these
revenue records.
23. He also has produced the mutation entries as per Ex.P17
wherein, in the year 1981 itself on demise of Marthu Vithoba Prabhu,
the names of these defendants 1 to 3 came to be entered as legal
representatives of said Marthu in respect of the properties mentioned
in Ex.P17. Ex.P18 is another mutation bearing No.8930 wherein the
names of defendants 1 to 3 were entered jointly in respect of the
properties of the family. Likewise, other revenue record is also
produced by the plaintiff as per Ex.P19. Ex.P20 is the Varadi given by
defendant No.1 to enter his name in the revenue records stating that
defendants 2 and 3 have given up their rights in the properties. Ex.P21
is another requisition submitted by defendant No.1 to the Village
Accountant, Ankola to delete the names of defendants 2 and 3 and
enter the name of defendant No.1 in the revenue records.
24. He bases his claim upon the general power of attorney
stating that as defendants 2 and 3 have executed power of attorney to
manage the properties and therefore, the defendant No.1 requested
the revenue authorities to enter his name. A copy of the same is
produced as per Ex.P22. The other RTC extracts show that, family of
the plaintiff was cultivating the properties personally. It is submitted
by the counsel for the plaintiff that based upon the power of attorney
at Ex.P23, defendant No.1 got mutated his name in the revenue
records. According to his submission, it is illegal.
25. Under the provisions of Karnataka Land Revenue Act, if
any deletion or addition of names in the revenue records has to take
place, the revenue authorities have to follow the mandatory provisions
of Section 128 of the Karnataka Land Revenue Act. That means,
deletion or addition of names has to take place based upon registered
documents. Merely because a Varadi is given based upon power of
attorney, it would not empower the revenue authorities to delete or
add the name of any person in the revenue records. That means, the
very mutation entry so relied by defendant No.1 is against the
provisions of Karnataka Land Revenue Act.
26. To rebut the evidence of the plaintiff, defendant No.1 has
reiterated all the contentions taken up in the written statement. He
contends that, as he was elder member of the family, he has taken
care of entire affairs of the family and brought up all his brothers and
sisters. Even when Sindhu filed a suit for partition, he himself has paid
Rs.4,50,000/- to her and therefore, already there was an oral partition
in between himself and his brothers and sisters. He has paid
Rs.25,000/- each to his two brothers and one sister by name Vijaya,
who are defendants 2 to 4 in the present suit. Since earlier partition is
being proved by him, the plaintiff is not entitled to claim any share in
the schedule properties. He contends throughout in the written
statement that, the plaintiff has to be non-suited.
27. He has been cross-examined by the counsel for the
plaintiff and quite interestingly, defendant No.1 filed additional further
examination in chief by way of affidavit inter alia contending that, he is
ready to give share to defendant No.3 if whatever properties in his
possession and whatever the house property being enjoyed by the
family is retained in joint so as to perform the family function in the
said house. Thereby he states that he has no objection to give share to
defendant No.3. He says that except residential house, the partition
may be effected.
28. At one breath he denies the shares of defendants 2 and 3
and also the plaintiff, but by filing additional written statement he
states that, because of talks before filing this additional affidavit, he
has come to the conclusion that he would give share to his brothers
and other sister-Vijaya. This stand taken by defendant No.1 is quite
inconsistent. No doubt, defendants can take inconsistent stands in
their written statement. When his brothers say that, no partition has
taken place and defendant No.3 has not received Rs.25,000/-, it is for
defendant No.1 to prove the payment and relinquishment of their
share in his favour. But except self-serving testimony of defendant
No.1, there is no evidence about effecting of oral partition as stated by
him. He admits categorically in his cross-examination at Page 14 dated
09.11.2012 that, there is no registered document executed by his
brothers relinquishing their shares in his favour in respect of schedule
properties. He admits that, Sindhu has taken Rs.4,50,000/- by way of
compromise. He has withheld some important documents and as per
his evidence at page No.16 also he has deposed that, he has not
produced the document i.e. Power of Attorney as it goes against his
defence and quite interestingly, this evidence has been spoken to by
DW1.
29. He relies upon various documents. Amongst those
documents Ex.D1 shows that joint name is entered in the revenue
records so also Ex.D2. He relies upon his own Varadi as per Ex.D3,
wherein he himself has stated that his brothers have given up their
joint rights in the schedule properties and therefore, he requested the
revenue authorities to enter his name exclusively in respect of
properties mentioned in the Varadi. Based upon that, the revenue
authorities effected the mutation entries as per Ex.D4 on 22.02.1993
and deleted the names of brothers of defendant No.1. As stated supra,
it is quite against the Karnataka Land Revenue Act. The said
certification of mutation entry was effected only based upon the
Varadi. No notice was issued to the brothers of defendant No.1. If the
name of brothers of defendant No.1 were to be deleted as requested
by defendant No.1, under the provisions of Karnataka Land Revenue
Act, it was mandatory on the part of revenue authorities to issue
notice to the aggrieved persons. But no notice was issued. Ex.D6 is
also a Varadi submitted by defendant No.1 to the village accountant
with regard to details of surviving heirs of propositus-Marthu Vithoba
Prabu. Ex.D7 is the mutation entry wherein on demise of father-
Marthu, the names of his all sons came to be entered as joint owners.
So also it continued as per Ex.D8 to Ex.D10 as per the Varadi given by
defendant No.1. Based upon that, Ex.D11 came to be certified.
Ex.D12 is the notice issued by defendant No.3 by sending inland letter
addressed to Panduranga Prabhu. To this letter, reply was given by the
counsel denying the contents of notice. That means, these defendants
1 and 3 are fighting like logger heads claiming their rights in the
schedule properties being full blood brothers.
30. Ex.D16 is a copy of the plaint in suit filed by Sindhu
against defendants 1 to 3 and sister-Vijaya and F.M.Vithoba seeking
partition. She has categorically stated that no partition has taken place
and she wants a share in the schedule properties. Said suit ended in
compromise. To that effect, certified copy of the order sheet so
maintained in O.S.No.29/1994 is produced by defendant No.1. This
order sheet shows that Sindhu had received Rs.4,50,000/- on
15.04.2004 towards her share. So, this order sheet and the plaint
shows that, the said plaintiff in O.S.No.29/1994 has received
Rs.4,50,000/- exclusively towards her share, the properties standing
in the name of Manjunath remained intact. There is no whisper in the
memo so filed regarding other defendants arrayed in the said suit have
also given up their shares by way of compromise. If really the version
of defendant No.1 is to be accepted, that already there was partition,
he could have reported the same in O.S.No.29/1994 stating that his
brothers and one more sister-Vijaya have also relinquished their share
in his favour. But he kept mum. He entered compromise only with
Sindhu, the plaintiff in O.S.No.29/1994. So, this conduct of defendant
No.1 also shows that for the sake of defence, to deprive his own
brothers' share, he might have taken such a defence. This possibility
cannot be ruled out.
31. Ex.D18 is a copy of the memo filed by the plaintiff and her
counsel during the course of evidence and it was brought on record
that the matter would be compromised and settlement was arrived at
by the plaintiff-Sindhu by receiving Rs.4,50,000/- and thereby suit
came to be compromised and closed. Ex.D19 is a decree passed in
O.S.No.29/1994. The said decree has become final.
32. The main allegations are made against defendant No.3
that the father-in-law of defendant No.3 is an advocate and at his
advice, defendant No.3 has acted. Even plaintiff has also taken
instructions to file the suit. Therefore, to harass defendant No.1 the
suit is designed. To prove the same, except self-serving testimony, no
other documents are produced.
33. The counsel for defendant No.1 much relied upon the list
of documents submitted to the Court on behalf of defendant No.1 on
06.01.2011 wherein it is stated that, all the carbon copies have been
retained by him and all original documents which were with him were
taken away by the plaintiff on the guise that he will show it to
advocate. But no steps were taken by defendant No.1 calling upon the
plaintiff to produce the said documents, which were there in his
possession. Under the Code of Civil Procedure, provision is very much
available to summon documents. But defendant No.1 has produced
photocopies and carbon copies of the documents and has not made
any attempt to get them marked even as secondary evidence by way
of confrontating to PW1. So, unmarked document cannot be relied
upon.
34. Thus, on overall cumulative reading of entire evidence
placed on record by the plaintiff and defendants, it goes without saying
that, the defendant No.1 has utterly failed to prove that, he has
tendered money towards share of his brothers and other sister-Vijaya
and they have given up/relinquished their shares in the schedule
properties and thereby he has become exclusive owner of the schedule
properties. This contention of defendant No.1 in view of the evidence
brought on record cannot be accepted.
35. Now the question comes that how much share the plaintiff
and defendants 1 to 4 are entitled to get in the schedule properties by
metes and bounds is required to be answered. In view of the judgment
of the Hon'ble Apex Court in the case of Vineeta Sharma v. Rakesh
Sharma3 as well as by virtue of provisions of Sections 6 and 8 of the
Hindu Succession Act, we have to apply the provisions of notional
partition.
36. As per Hindu Succession Act, daughter is also entitled for
share equal to that of son. Defendant No.4 is daughter of the
propositus-Marthu. She was not given any share. By virtue of Section
(2020) 9 SCC 1
6 of the Hindu Succession Act, she is also entitled to share equal to
that of a son. So far as Sindhu is concerned, as already she has given
up/relinquished her share by receiving Rs.4,50,000/- she is not
entitled for any share in the schedule properties. Including Marthu, his
wife-Radhabai and children Manjunath, Anant , Narayana and Vijaya
are entitled to equal share in the schedule properties since the
properties falls within the jurisdiction of Bombay-Karnataka area and
when a partition takes place, wife is also entitled for a share in the
properties equal to that of a son. Radhabai w/o. Marthu was alive
when Marthu died. So, by applying the principles of notional partition,
initially, there would be five shares in between Marthu, Manjunath
(Defendant No.1), Anant (Defendant No.2), Narayana (Defendant
No.3) and Vijaya (Defendant No.4). Thus, initial allotment of share to
defendant No.1 is 1/5th in the schedule properties. Defendants 2 to 4
each would get 1/5th share in the schedule properties. On demise of
Marthu, since Radhabai was alive, his 1/5th share has to be divided
amongst Radhabai and defendants 1 to 4, which would be 1/25th each.
That means, defendants 1 to 4 each would get 1/5th + 1/25th (Marthu's
share divided in five equal shares). Thereafter, after the death of
Radhabai, her 1/25th share has to be divided in between defendants 1
to 4, which would come to 1/100th share each. Hence, in all
defendants 1 to 4 each are held entitled to 1/5th + 1/25th + 1/100th
=25/100th (1/4th share each) in the schedule properties by metes and
bounds.
37. Now the plaintiff is not a coparcener along with his father
and uncles. Whatever the share defendant No.3-Narayana, his father
is entitled, the plaintiff has to claim share in the properties falling to
the share of his father. Since defendant No.3-Narayan, the father of
the plaintiff, is entitled to 1/4th share in the schedule properties and
since defendant No.3 and his wife (plaintiff's mother) both are alive
and as the plaintiff is having a sister-Yogita (defendant No.6), there
would be again four shares in 1/4th share of defendant No.3 according
to which, the plaintiff is held entitled to 1/16th share, his sister-Yogita
(defendant No.6) is held entitled to 1/16th share, defendant No.3 is
held entitled to 1/16th share and the wife of defendant No.3 i.e.
Padmavathi (defendant No.5) is held entitled for 1/16th share.
38. During the pendency of this appeal, it is reported that
defendant No.1, who is respondent No.1 in this appeal, has died.
Accordingly, his legal heirs are brought on in the shape of respondents
1(a) to 1(c) and cause title of the appeal memo came to be amended
to that effect.
39. The learned Trial Court has not considered all these
aspects and has given findings that the provisions of Hindu Succession
Act has no application and that the earlier partition is proved. No
doubt, immediately filing of the suit by Sindhu in O.S.No.29/1994
there is severance of status of the joint family, but in between
defendants 1 to 4 there was no partition of the schedule properties.
The properties retained by the family were subsequently entered in the
name of defendant No.1 by virtue of Varadi. That means, there was no
partition amongst defendants 1 to 4 by metes and bounds in respect of
schedule properties. Though Sindhu has taken Rs.4,50,000/-, the
properties remained in the family of defendants 1 to 4 and they are
deemed to be entered in joint names of defendants 1 to 4. Merely on
execution of affidavit and giving Varadi would not confer any exclusive
title in favour of defendant No.1. Though there is severance of status,
the properties remained joint and therefore, whatever arguments
advanced by defendant No.1 has no force and untenable has to be
discarded.
40. Though the counsel for defendant No.1 relied upon
judgment cited supra, but they cannot be justifiably made applicable
to the facts of this case. Therefore, in view of all these factual
features, the Trial Court ought to have decreed the suit of the plaintiff
awarding his legitimate share in the schedule properties. But it has not
considered the same and simply without assigning proper reasons, has
dismissed the suit, which is incorrect and illegal. This Court being the
last fact finding Court has to re-appreciate the evidence and apply
proper law and consider the appeal as provided under Section 96 of
the Code of Civil Procedure.
41. We have evaluated and assessed the evidence and have
come to a conclusion that, the learned Trial Court is not right in
dismissing the suit of the plaintiff. Therefore, the impugned judgment
passed by the Trial Court requires interference and is liable to be set
aside. The suit of the plaintiff deserves to be decreed. Accordingly, the
above said points are answered. Resultantly, we pass the following:
ORDER
i) The appeal is allowed.
ii) Suit of the plaintiff in O.S.No.10/2010 is decreed by
setting aside the judgment and decree dated
31.10.2014 passed by the Senior Civil Judge,
Kumta, itinerary sitting at Ankola.
iii) The plaintiff is entitled for 1/16th share in 1/4th share
of his father-defendant No.3.
iv) The respondents 1(a) to 1(c), who are legal heirs of
deceased defendant No.1/respondent No.1,
together are entitled to 1/4th share of deceased
defendant No.1/respondent No.1.
v) Likewise, defendants 2 and 4 each are entitled for
1/4th share in the schedule properties by metes and
bounds.
vi) Defendant No.3-Narayan, his wife-Padmavathi i.e.
defendant No.5 and daughter-Yogita i.e. defendant
No.6 are entitled for 1/16th share each in 1/4th
share of defendant No.3 in the suit schedule
properties.
vii) Respondents 1(a) to 1(c), respondents 2 and 4 to 6
are directed to pay the requisite court fee towards
their shares.
viii) There shall be preliminary decree in the above
terms.
ix) Parties to the suit are at liberty to request the FDP
Court for application of principles of equity in
allotment of shares at the time of drawing up of
final decree.
Sd/-
JUDGE
Sd/-
JUDGE
YAN
