Smt Lakshmidevamma vs Sri Rajashekara
2023 Latest Caselaw 443 Kant

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 6TH DAY OF JANUARY 2023

                       BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

     REGULAR SECOND APPEAL NO.575 OF 2007 (PAR-SP)

BETWEEN:

1.     SMT LAKSHMIDEVAMMA
       SINCE DEAD REPRESENTED BY LR
       APPELLANT NO.2-SAMPATH

2.     SRI SAMPATH
       S/O LATE VEERABHADRACHAR
       AGED ABOUT 32 YEARS
       R/O MALLAVANAGHATTA VILLAGE
       KASABA HOBLI, CHANNARAYAPATNA TALUK
       HASSAN DISTRICT-573116
                                     ... APPELLANTS

(BY SRI. VENKATESH R BHAGAT, ADVOCATE, V/O. DTD
16.08.21 A-2 AS LRS OF DECEASED A-1)

AND

1.     SRI RAJASHEKARA
       SON OF LATE VEERABHADRACHAR,
       MAJOR
       R/A HOUSE NO.191A, HUDCO COLONY
       BHADRAVATHI TOWN, SHIMOGA DISTRICT.

2.     SRI ESHWARACHAR
       SON OF LATE VEERABHADRACHAR
       MAJOR
       R/O MALLAVANAGHATTA VILLAGE
                         2



     KASABA HOBLI, CHANNARAYAPATNA-573 116

3.   SRI SURESHA
     SON OF LATE VEERABHADRACHAR
     MAJOR
     R/O MALLAVANAGHATTA VILLAGE
     KASABA HOBLI, CHANNARAYAPATNA-573 116

4.   SRI CHANDRA
     SON OF LATE VEERABHADRACHAR
     MAJOR
     R/O MALLAVANAGHATTA VILLAGE
     KASABA HOBLI, CHANNARAYAPATNA-573 116

5.   SRI RUDRACHAR
     SON OF LATE VEERABHADRACHAR
     MAJOR, SECURITY SUPERVISOR,
     L.D.S.C. K F GUEST HOUSE,
     LAND BANK, TIPPU SULTAN PALACE ROAD,
     BANGALORE-78

6.   SRI NAGARAJ
     SON OF LATE VEERABHADRACHAR
     MAJOR, CARPENTER,
     R/O BYRAPPA COMPOUND
     PANCHAYAT RAOD, SARAKKI,
     J P NAGAR, BANGALORE-78

7.   SMT NAGARATHNA
     W/O KALACHAR
     MAJOR
     R/O KORALAKOPPA ANGANAVADI,
     ANTHARAGANGE POST
     BHADRAVATHI TALUK-577301
     SHIMOGA DISTRICT

8.   SMT KAMALAMMA
     W/O NARAYANACHAR
     MAJOR
                          3



      R/O SURGITHOPU, MISSION ROAD,
      HOUSE NO.306, III CROSS,
      BHADRAVATHI,
      SHIMOGA DISTRICT-577301

9.    SMT INDRAMMA
      W/O SHANKARACHAR
      MAJOR
      R/A HOUSE NO.314,12TH CROSS,
      BANASHANKARI II STAGE
      SHAKTHINAGAR, BANGALORE.

10.   SMT SUSHEELAMMA
      W/O MURTHY
      MAJOR
      R/A MUNIRAJU BUILDING
      CONTRACTOR NO 14,
      SARAKKI EXTENSION
      J P NAGAR, BANGALORE-78
                                      ...RESPONDENTS

(BY SRI.C.G. SHASHIVARDHAN, ADVOCATE FOR R1, V/O.
DTD 10.10.2013 SERVE HELD SUFFICIENT IN RESPECT OF
R-2, R3, R4, R7 & R8 ARE SERVED AND UNREPRESENTED,
V/O. DTD. 01.08.2014 SERVICE HELD SUFFICIENT IN
RESPECT OF R5, R6, R9, R10)

     THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGMENT AND
DECREE DT.20.12.2006 PASSED IN R.A.NO.80/2002 ON
THE    FILE   OF   THE    CIVIL  JUDGE   (SR.DN),
CHANNARAYAPATNA, DISMISSING THE APPEAL AND
MODIFYING THE JUDGMENT AND DECREE DT.1.1.2002
PASSED IN O.S.NO.113/95 ON THE FILE OF THE CIVIL
JUDGE (JR.DN) AND JMFC, CHANNARAYAPATNA.

THIS REGULAR SECOND APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
                               4



                        JUDGMENT

The captioned Second Appeal is filed by defendant

Nos.1 and 2, questioning the concurrent findings of the

Courts below, wherein plaintiffs' suit for partition and

separate possession is decreed.

2. For the sake of brevity, the parties are referred as

they are ranked before the Trial Court.

3. The plaintiffs, who are the sons of defendant No. 1,

Lakshmidevamma, have instituted the present suit seeking

relief of partition. The plaintiffs contend that suit schedule

property is joint family ancestral property, and therefore,

they are entitled for 4/12th share after the death of their

father, Veerabhadrachar, in the suit schedule property.

[

4. Defendant No.1, who is the mother of the plaintiffs,

filed written statement and stoutly denied the entire

averments made in the plaint. Defendant No.1, on the

contrary, contended that suit land is her self acquired

property. She specifically pleaded that the Tahsildar,

Channarayapatna Taluk, Channarayapatna, had granted

the suit land to her by order dated 30.05.1988 and, on this

set of defense, sought for dismissal of the suit.

5. Plaintiffs and defendant No.1 to substantiate their

respective claims led in oral and documentary evidence.

6. The Trial Court, having examined the pleadings and

oral and documentary evidence, answered issue Nos.1 to 3

and 5 in the affirmative, while issue No.4 was answered in

the negative. The Trial Court held that suit schedule

property is joint family ancestral property and plaintiffs

being the joint family members are entitled for 4/12th

share. The defendants' claim that suit land is a self

acquired property, was negatived by the Trial Court. The

Trial court, while answering issue No.5, in the negative,

has come to the conclusion that Sy.No.86 was originally

granted to defendant No.1's husband-Veerabhadrachar

and since the land granted was found not to be not in

existence, the present suit land bearing Sy.No.89 was

granted to defendant No.1 and therefore, the Trial Court

was of the view that plaintiff Nos.1 to 4 and defendant

Nos.2 to 8 are also entitled for share and defendant No.1,

who is widow of Veerabhadrachar, cannot assert absolute

right over the property in question. Referring to some

admissions elicited in cross examination of defendant No.1,

the Trial Court proceeded to hold that defendant No.1 has

failed to substantiate her claim that it is her self acquired

property. Consequently, partition suit was decreed.

7. Feeling aggrieved by the judgment and decree of the

Trial Court, defendant Nos.1 and 2 preferred an appeal

before the appellate Court. The Appellate Court, having

independently assessed oral and documentary evidence,

was also of the view that defendant No.1 has admitted

during the trial that suit land was actually in the

possession of her husband, and that she further admitted

that since agricultural land bearing Sy. No. 86, which was

granted to defendant No.1's husband, was found not in

existence, the present suit land bearing Sy.No.89 is

granted to defendant No.1 herein.

8. The Appellate Court, referring to Exs.P.3 and 4, held

that since Veerabhadrachar was granted Sy.No.86, which

was found not to be in existence, the Appellate Court, on

an assumption that the grant of Sy.No.89 in favour of

defendant No.1 was on account of the death of the original

grantee, proceeded to hold that the suit land, though

granted in favour of defendant No.1, is available for

partition. Accordingly, proceeded to dismiss the appeal.

9. This Court vide order dated 29.11.2016 was pleased

to admit the appeal on the following substantial question

of law, which reads as under;

"Whether the courts below erred in not observing that the property in question is the absolute property of the appellant No.1 by virtue of Section 14 of the Hindu Succession Act, 1956?"

10. Heard learned counsel appearing for the defendants.

There is no representation on behalf of learned counsel

appearing for the respondents. This appeal is of the year

2007. Perused the concurrent findings of the Courts below.

11. Having heard the learned counsel appearing for the

defendants, I have given my anxious consideration to the

judgments under challenge. I have examined the pleadings

and the alleged admissions elicited in cross examination of

D.Ws.1 and 2. This Court would find that both the Courts

have virtually misread the entire evidence on record, more

particularly the oral evidence of the parties. Both the

Courts have recorded a finding that defendant No.1 has

admitted during course of cross examination that suit land

was in the possession of her husband during his lifetime.

This specific admission is not found in the Trial Court

records. There is further finding recorded by the Appellate

Court that defendant No.2 has also admitted that suit land

was in possession and enjoyment of families of the

plaintiffs and defendants for last 25 years. This

observation made by the Appellate Court is also found to

be patently erroneous. No such admission is found in the

cross examination of D.W.2.

12. In a partition suit, where the family members assert

that the property is a joint family ancestral property, the

initial burden is always on the parties approaching the

court seeking relief of partition. It is quite useful for this

Court to take cognizance of the plaint. The plaint is found

to be as vague as it could be. There is absolutely no

foundation in the plaint. Though plaintiffs are asserting

that suit property is joint family ancestral property, there

is absolutely no whisper that their father was in-fact

granted Sy.No.86, and during his lifetime, it was found

that the land which was granted to him was found not to

be in existence and therefore, it is the husband of

defendant No.1, who applied to grant Sy.No.89. Therefore,

I deem it useful to refer to paragraph Nos.2 to 4 of the

plaint. The same reads as under;

"2. The plaintiffs and the defendants No.2 to 4 and husband of the defendant No.5 are the natural brothers. The 1st defendant is the mother and

other defendants are sisters. The plaintiffs father is no more. The plaintiffs and the defendants have constituted a Hindu Joint Family.

3. The schedule property is the Joint Family Property of the plaintiffs and the defendants having inherited from their father, which is in joint possession enjoyment of the plaintiffs and the defendants. In which the plaintiffs are having 1/12 share. After the death of the father the 1st defendant being the mother is holding khatha to this property, it is only on behalf of the family.

4. The plaintiffs demanded the 1st defendant about a month ago to effect partition of the schedule property and to hand over separate possession, but the defendant No.1 at the instigation of ill-willed persons refuse to effect partition. On the otherhand she is making attempts to alienate the property and also trying to create charge upon the schedule property with a view to have an unlawful gain. Hence this suit is filed for partition and separate possession."

13. If the averments in the plaint are looked into, I

would find that there is total ambiguity and vagueness in

the plaint averments. There is absolutely no foundation to

substantiate that Sy.No.89 was granted in favour of

defendant No.1 on behalf of the joint family. There are

absolutely no pleadings indicating that the entire family

was cultivating Sy. No. 89, and consequently, a grant was

made in favour of the widow on behalf of the family.

14. Without examining the averments in the pleadings,

both the Courts have virtually misread the entire evidence

on record. The Trial Court has also drawn an adverse

inference on the ground that defendants have failed to

produce the grant certificate. Having regard to the nature

of the pleadings that are found in the plaint, I am of the

view that in the present case on hand, the initial burden

was never discharged by the plaintiffs. If there are no

pleadings indicating that the grant in favour of defendant

No.1, was on behalf of a joint family, then this Court is of

the view that the concurrent findings recorded by both the

Courts below that suit land is an ancestral property are

palpably erroneous, perverse, and therefore, the

conclusions and observations recorded by both the Courts

below suffer from serious infirmities.

15. As rightly pointed out by the learned counsel

appearing for the defendants, even in the examination in

chief, there are absolutely no details forthcoming. It is trite

law that, though pleadings must be in a concise form, at

the same time, to substantiate the claim, plaintiffs have to

be precise as to on what basis they are laying a claim over

immovable property. Therefore, it was incumbent on the

part of plaintiffs to furnish all necessary particulars. On a

bare reading of the plaint, which is culled out supra, this

Court would find that the plaint does not contain sufficient

averments and lacks reasonable precision on what basis

the claim is sought in the present suit. If there are

absolutely no pleadings or cognizance in the plaint

indicating what prompted the authorities to grant the

present suit land in favour of defendant No.1, then, merely

based on bald allegations that plaintiffs and defendants

constitute an undivided joint Hindu family, that would not

necessarily create a right in favour of the plaintiffs.

16. Admittedly, the grant is made in favour of a female

member, but the grant certificate does not indicate that it

is on behalf of a joint Hindu family. The said grant

certificate was produced before the Appellate Court. The

Appellate Court has also not properly appreciated the grant

certificate. Even otherwise, dehors the grant certificate,

the plaintiffs are to be non suited on the ground that the

plaint lacks requisite pleadings, which would lead to

entitlement of relief in a partition suit. Any amount of

evidence in the absence of pleadings cannot be looked

into.

17. Both the Courts have proceeded on an assumption

that there is sufficient material on record indicating that

the propositus Veerabhadrachar was in-fact in possession

of Sy.No.89. However, this Court having meticulously

examined the oral evidence of D.Ws.1 and 2 as well as

examination in chief of plaintiffs, both Courts has recorded

reasons which are found to be contrary to the evidence on

record. If there is absolutely no evidence indicating that

defendant No.1's husband was in fact in cultivation and

possession of Sy.No.89, merely for asking, a competent

civil court cannot casually grant a share in the immovable

property based on bald assertions and averments. If grant

is made in favour of defendant No.1, then it has to be

presumed that it is the absolute property of defendant

No.1 and therefore, the partition suit filed by plaintiffs who

happen to be the sons of defendant No.1 is liable to be

dismissed. The entire evidence on record has been totally

misread by both the courts. The conclusions and

observations made by both the courts are found to be

contrary to the material on record. The entire approach

adopted by the courts below is found to be patently

erroneous.

18. If the evidence on record is meticulously examined,

though the evidence is found to be not clear, what can be

gatherered from the material on record is that this grant

was made in favour of defendant No.1 during the lifetime

of husband and even if while securing grant, the amount

was paid by the husband, then it has to be presumed that

it is for the benefit of widow, and thus, the grant made in

favour of defendant No.1 would enlarge, and the same has

to be treated as her self acquired property under Section

14(1) of Hindu Succession Act, 1956. The evidence on

record also indicates that it is defendant No.1 who is found

to be in exclusive possession. Neither the plaintiffs nor

defendant Nos.2 to 8 have produced any evidence

indicating that the plaintiffs and defendants are in joint

possession. If pursuant to grant, defendant No.1 was

found to be in lawful and exclusive possession, the

substantial question of law deserves to be answered in the

affirmative and against the plaintiffs. For the foregoing

reasons, I proceed to pass the following:

ORDER

1. The second appeal is allowed.

2. The judgments and decrees of the Courts below are set aside.

3. The suit is dismissed.

Sd/-

JUDGE

HDK