Karnataka High Court
Narayan vs Smt Laxmi on 4 March, 2024
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RSA No. 1485 of 2008
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE R.NATARAJ
REGULAR SECOND APPEAL NO. 1485 OF 2008 (PAR)
BETWEEN:
NARAYAN
S/O YESHAWANT HUNDRE,
AGE 69 YEARS,
OCC: AGRICULTURE
R/O HONAGA-591 244,
TAL. AND DIST.: BELGAUM
...APPELLANT
(BY SRI. RAVI S BALIKAI, ADVOCATE)
AND:
1. SMT. LAXMI
W/O GUNDU HUNDRE
AGE: 64 YEARS,
OCC: HOUSEHOLD WORK
R/O BACHI-591 221,
TAL. AND DIST.: BELGAUM
Digitally signed 2. LAXMAN
by SAROJA
HANGARAKI S/O GUNDU HUNDRE,
Location: HIGH AGE 49 YEARS,
COURT OF
KARNATAKA 3. YASHAWANT
DHARWAD
BENCH S/O GUNDU HUNDRE
DHARWAD AGE 43 YEARS,
RESPONDENT NO.2 AND 3 ARE
R/O BACHI 591 221,
TAL. AND DIST.: BELGAUM
4. SMT. SAVAKKA @ YALLUBAI LAXMAN PATIL
SINCE DECEASED BY HER LRS
4(a) YELLAPPA
S/O LAXMAN PATIL
AGE: 63 YEARS,
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RSA No. 1485 of 2008
OCC: AGRICULTURE
SINCE DEAD BY LRS
4(a)(i) SMT. RAMAKKA
W/O YELLAPPA PATIL
AGE: 64 YEARS
OCC: AGRICULTURE
4(a)(ii) RAMCHANDRA
S/O YELLAPPA PATIL
AGE: 38 YEARS
OCC: AGRICULTURE
4(a)(iii) ANANT
S/O YELLAPPA PATIL
AGE: 35 YEARS
OCC: AGRICULTURE
ALL ARE R/O RAKASKOP
TAL. AND DIST.: BELAGAVI
4(a)(iv) SMT. ROOPA @ SUNITA
W/O DHAKALU BHATE
AGE: 32 YEARS
OCC: AGRICULTURE
R/O SURUTE, TAL: CHANDAGAD
DIST: KOLHAPUR
4(b) BASAWANT
S/O LAXMAN PATIL
AGE: 60 YEARS
OCC: AGRICULTURE
RESPONDENT NO.4(a) AND 4(b) ARE
R/O VITHAL GALLI, RAKASKOP,
TAL. AND DIST.: BELGAUM
4(c) SHIVAJI
S/O LAXMAN PATIL,
AGE: 61 YEARS
OCC: AGRICULTURE
R/O SANTAJI GALLI, KANGRALI B.K.
TAL. AND DIST.: BELGAUM
4(d) SMT. MALLAVVA
W/O PARASHURAM SULAGEKAR
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RSA No. 1485 of 2008
AGE: 56 YEARS
OCC: HOUSEHOLD WORK
R/O BOKANUR, POST: BELAGUNDI
TAL. AND DIST.: BELGAUM
4(e) SMT. LATA
W/O MAHADEV PATIL
AGE: 50 YEARS
OCC: HOUSEHOLD WORK
R/O VITHAL GALLI, RAKASKOPP,
TAL. AND DIST.: BELGAUM
4(f) SMT. MANJULA
W/O RAVALU PATIL
AGE: 58 YEARS
OCC: HOUSEHOLD WORK
R/O TUDYE, TAL: CHANDGAD,
DIST: KOLHAPUR
5. SMT. NAGUBAI @ PARWATI
W/O SHATTEPPA BHANDURGE
AGE: 88 YEARS,
OCC: HOUSEHOLD
R/O BACHI 591 221,
TAL. AND DIST.: BELGAUM
SINCE DECEASED BY HER LRS
5(a) SMT. LAXMIBAI
W/O MARUTI MARUCHE
AGE: 60 YEARS
OCC: AGRICULTURE
R/O KALLEHOL,
TAL. AND DIST.: BELAGAVI
5(b) SMT. LAXMI
W/O MARUTI BHANDURGE
AGE: 54 YEARS
OCC: HOUSEHOLD WORK
R/O BAACHI, POST: CHIRAMURI,
TAL. AND DIST.: BELAGAVI
5(c) LAXMAN
S/O MARUTI BHANDURGE
AGE: 30 YEARS
OCC: AGRICULTURE
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RSA No. 1485 of 2008
R/O BAACHI, POST: CHIRAMURI,
TAL. AND DIST.: BELAGAVI
5(d) BHARAMA
S/O SHETTEPPA BHANDURGE
AGE: 53 YEARS
OCC: AGRICULTURE
R/O BAACHI, POST: CHIRAMURI,
TAL. AND DIST.: BELAGAVI
5(e) SMT. KUMABAI
W/O UMAJI BHANDURGE
AGE: 45 YEARS,
OCC: HOUSEHOLD WORK
R/O BAACHI, POST: CHIRAMURI,
TAL. AND DIST.: BELAGAVI
5(f) YELLAPPA
S/O UMAJI BHANDURGE
AGE: 22 YEARS
OCC: AGRICULTURE
R/O BACHI, POST: CHIRAMURI,
TAL. AND DIST.: BELAGAVI
5(g) VAIJU
S/O SHETTEPPA BHANDURGE
AGE: 46 YEARS
OCC: AGRICULTURE
R/O BAACHI, POST: CHIRAMURI,
TAL. AND DIST.: BELAGAVI
SINCE DECEASED BY HIS LRS
5(g)(1) SMT. GANGUBAI
W/O VAIJU BHANDURGE
AGE: 56 YEARS,
OCC: AGRICULTURE
R/O BAACHI, POST: CHIRAMURI,
TAL. AND DIST.: BELAGAVI
5(g)(2) SMT. RENUKA
W/O LAXMAN MORE
AGE: 27 YEARS,
OCC: HOUSEHOLD WORK
R/O TURKAWADI, TAL.: CHANDAGAD
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RSA No. 1485 of 2008
DIST.: KOLHAPUR
5(g)(3) HANUMANT
S/O VAIJU BHANDURGE,
AGE: 25 YEARS,
OCC: AGRICULTURE
5(g)(4) KIRAN
S/O VAIJU BHANDURGE,
AGE: 23 YEARS,
OCC: AGRICULTURE
g(3) AND g(4) ARE R/O BAACHI,
POST: CHIRAMURI
TAL. AND DIST.: BELAGAVI
5(h) SMT. SHOBHA
W/O SHANTARAM BELAGAMKARE
AGE: 35 YEARS
OCC: HOUSEHOLD,
R/O CHIRAMURI,
TAL. AND DIST.: BELAGAVI
6. SMT CHANDRABAI
W/O BHARAMA HUNDRE
AGE: 68 YEARS,
OCC: HOUSEHOLD
R/O BACHI-591 221,
TAL. AND DIST.: BELGAUM
7. VAIJU
S/O BHARAMA HUNDRE
AGE: 40 YEARS,
OCC: SERVICE
R/O BACHI 591 221,
TAL AND DIST: BELGAUM
8. SMT MALLAWWA
W/O GURAV SATERI
AGE 49 YEARS,
OCC: HOUSEHOLD WORK
R/O JANEWADI 591 231,
TAL. AND DIST.: BELGAUM.
9. SMT MONAKKA
W/O FAKIRA MANAWADKAR
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RSA No. 1485 of 2008
AGE 56 YEARS,
OCC:HOUSEHOLD WORK
R/O SURATE VILLAGE,
TAL.: CHANDGAD DIST.: KOLHAPUR
10. SMT TULASABAI @ PARWATI
W/O VASANT MANAWADKAR
AGE: 55 YEARS
OCC:HOUSEHOLD WORK
R/O SURATE-416 342,
TAL CHANDGAD, DIST: KOLHAPUR
(MAHARASHTRA STATE)
...RESPONDENTS
(BY SRI. G.N.NARASAMMANAVAR, ADVOCATE FOR RESPONDENT
NOS.1 TO 3;
SRI. CHETAN A. MUNNOLLI, ADVOCATE FOR RESPONDENT
NO.4(a)(1) TO 4(a)(4);
RESPONDENT NO.4(a) - DECEASED;
NOTICED SERVED ON RESPONDENT NOS.4(b), 4(c), 4(d), 4(e), 4(f);
RESPONDENT NO.5 DECEASED;
NOTICE SERVED ON RESPONDENT NOS.5(a) TO 5(f), 5g(1) TO
5g(4); 6 TO 10)
THIS RFA IS FILED UNDER SECTION 100 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 12.02.2008 PASSED IN
R.A.NO.37/2006 ON THE FILE OF THE P.O., FAST TRACT COURT-III
AND ADDL.MACT, BELGAUM, DISMISSING THE APPEAL FILED
AGAINST THE JUDGMENT AND DECREE DATED 25.02.2006 PASSED
IN O.S.NO.198/1997 ON THE FILE OF THE I ADDL. CIVIL JUDGE
(SR.DN.), BELGAUM DISMISSING THE SUIT FILED FOR PARTITION
AND POSSESSION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 1485 of 2008
JUDGMENT
The plaintiff in O.S No.198/1997 on the file of the I
Additional Civil Judge (Sr. Dvn.), Belgaum (henceforth referred
to as 'Trial Court') has filed this Regular Second Appeal
challenging the judgment and decree dated 25.02.2006 passed
therein as well as the judgment and decree dated 12.02.2008
passed by the Presiding Officer, Fast Track Court-III, Belgaum
(henceforth referred to as 'First Appellate Court') in
R.A.No.37/2006. Both the Courts held that the plaintiff is not
entitled to any share in the suit schedule properties.
2. The suit in O.S No.198/1997 was filed for partition
and separate possession of the plaintiff's 1/3 share in the suit
schedule properties, which were the land bearing Sy.No.90/1A
and Sy.No.89/1, situated at Bachi village, Belgaum Taluk and
District and a house property situated Lakshmigalli, Bachi
village. The plaintiff claimed that the plaintiff and defendants
constituted a joint family and that their propositus was a
permanent resident of Bachi village, Belgaum District. He
claimed that the propositus had three sons and three daughters
namely, the plaintiff, Gundu and Bharma (sons), defendant
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Nos.4, 5 and 10 (daughters). Defendant No.1 is the wife of
Gundu, defendant Nos.2 and 3 were the sons of Gundu, while
the defendant No.6 was the wife of Bharma and defendants
No.7, 8 and 9 were his children. The defendant Nos.4, 5 and 10
were his sisters while defendant Nos.1, 2 and 3 were the legal
heirs of his elder brother Gundu and defendant Nos.7, 8 and 9
were the children of his immediate younger brother Bharma.
The plaintiff claimed that the propositus was an agriculturist.
After his death, his eldest son Gundu became the kartha of the
family and was an agriculturist. His immediate brother Bharma
was also an agriculturist and similarly, the plaintiff was also an
agriculturist. He claimed, this was evident from the records in
respect of G.P.C.No.15/2. The plaintiff and Bharma were
handing over their income to their eldest brother - Gundu. He
claimed that there was no division or distribution of the
properties in the joint family. He alleged that since the house
belonging to the joint family was not sufficient, the plaintiff,
Bharma and Gundu purchased independent plots and
constructed respective houses. He claimed that the survey
No.89/1 was purchased in terms of a sale deed dated
13.03.1961 but a mistake crept in while mentioning the survey
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number and the area. Therefore, a deed was executed on
02.12.1995 by rectifying the survey number and the area.
Likewise, the land bearing survey No.90/1 was purchased in
terms of a sale deed dated 15.04.1963. The plaintiff claimed
that at the time of purchase of these lands he, Gundu and
Bharma continued as members of the joint family. Thus, the
acquisition of these lands in the name of Gundu was nominal
while the plaintiff, Bharma and Gundu were the real owners of
the properties. The plaintiff further claimed that out of the
funds of the propositus and some contributions made by the
plaintiff and Bharma, the suit properties were purchased by
Gundu in his name. Therefore, he claimed that these
properties were also the joint family properties. He alleged
that during November 1995, there was a difference of opinion
between the plaintiff and the sons of Gundu namely, defendant
Nos.2 and 3 and legal representatives of deceased - Bharma
i.e., defendant Nos.5 to 8. The plaintiff claimed that by the time
these properties were purchased by Gundu, the plaintiff and
Bharma were majors by age and his mother Smt. Sakubai was
alive. However, Gundu was the eldest male member in the
family, in whose name, the properties were purchased. In the
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year 1995, the circumstances in the family had changed and
the plaintiff, Gundu and the legal representatives of the
Bharma were residing separately. The plaintiff claimed that by
1995, the health of Gundu deteriorated and he assured the
plaintiff and heirs of Bharma that he had divided the suit
properties and sale deed would be executed in R.S No.89/1.
Thus, on 02.12.1995 a rectification deed was executed in
respect of the land bearing survey No.89/1. The plaintiff
claimed that since the deceased - Gundu doubted the bonafides
of the defendant Nos.1 to 3, he directed defendant Nos.2 and 3
to execute a document admitting that an area of 1 acre of land
would be given to the plaintiff within 8 to 10 months with effect
from 02.12.1995. He claimed that the document was drawn up
by the defendant Nos.2 to 3 consequent to which, the
rectification deed was executed. The plaintiff claimed that he
therefore, had 1/3rd share in the suit property bearing
Sy.No.89/1 and Sy.No.90/1A situate at Bachi village, Belgaum
Taluk and District. He further claimed that he had 7/30th share
in the house property, while defendant Nos.1 to 3 had 7/30th
share together, defendant Nos.4 to 7 had 7/30th share together
and married daughter of deceased - Yeshwanth had 1/30th
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share each. He claimed that since the properties were
purchased after the death of Yeshwant, the plaintiff and his two
brothers namely Gundu and Bharma constituted a joint family.
The plaintiff claimed that he filed an application before the
revenue officials to enter his name in respect of both the lands,
which was objected by defendant Nos.2 and 3. The Deputy
Tahsildar, Belgaum, rejected the claim of the plaintiff and
therefore, he alleged that the defendants were not prepared to
effect a partition of the suit properties and hence, sought for
his share in the suit schedule properties.
3. The suit was contested by the defendant Nos.1 to 3
and 5. They contended that the suit properties bearing
R.S.Nos.89/1 and 90/1A were purchased by Gundu, father of
defendant Nos.2 and 3 out of his own earnings and was a self-
acquisition. They claimed that for more than 50 years, Gundu
and defendant Nos.1 to 3 were enjoying the said land without
any interference or claim or obstruction by the plaintiff. They
claimed that the plaintiff was in no way concerned with the said
lands and that the said properties were not joint family
properties.
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4. The defendant Nos.6 to 9 also filed their written
statement admitting the claim of the plaintiff and they sought
for their shares in the suit properties.
5. Based on these rival contentions, the Trial Court
framed the following issues:-
1. Whether plaintiff proves that suit properties are
joint family properties?
2. Whether plaintiff is entitled for 1/3rd share in suit
lands and 7/30th share in suit house?
3. Whether plaintiff is entitled for partition and
separate possession of his share in suit
properties?
4. Whether plaintiff is entitled for future mesne
profits?
5. Whether defendants 1 to 3 and 5 prove that suit
lands are the self acquired lands of deceased
Gundu?
6. Whether defendants 1 to 3 and 5 prove that
there was oral partition in the family long back
between plaintiff and defendants?
7. What decree or order?
6. The plaintiff was examined as PW.1 and two other
witnesses were examined as PW.2 and PW.3. They marked
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Exs.P1 to P11. The defendant No.2 was examined as DW.1
while the defendant No.6 was examined as DW.2 and they
marked Exs.D1 to D15.
7. Based on the oral and documentary evidence, the
Trial Court held that the suit properties were not the joint
family properties and therefore, the plaintiff was not entitled to
any share in the suit properties. On the contrary, it held that
the suit properties were self-acquisition of the predecessor in
title of the defendant Nos.1 to 3 and 5 as they were able to
prove that there was a partition between the members of the
family long prior to the purchase of the suit properties by
deceased - Gundu. Consequently, it dismissed the suit filed by
the plaintiff.
8. Being aggrieved by the said judgment and decree,
the plaintiff filed R.A.No.37/2006 before the First Appellate
Court. The First Appellate Court secured the records of the
Trial Court, heard the learned counsel for the parties and
framed the following points for consideration:-
1. Whether the Court below has committed an
error in accepting the theory of partition as set
out by the defendants?
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2. Whether the Court below has committed an
error in rejecting Ex.P-3?
3. Whether the plaintiff proves that the suit lands
were purchased out of the joint contribution of
themselves and his deceased Bharma in the
name of deceased Gundu?
4. Whether the judgment of the Court below calls
for interference in this appeal?
5. What order?
9. The First Appellate Court held that as on the date of
the purchase of the suit lands by Gundu, there was no
ancestral and joint family property, which formed the nucleus
to purchase the suit properties. It held that the plaintiff
claimed that he and his brother Bharma used to handover their
earnings to their elder brother Gundu and out of the said
amount, the suit properties were purchased in the name of
Gundu since he was managing the affairs of the family.
Therefore, it held that at one breath, the plaintiff contended
that after the year 1965 all the brothers acquired separate
property out of their own earnings but in another breath, he
contended that upto 1968, they used to handover individual
earnings to their elder brother Gundu and out of accumulated
earnings, the suit properties were purchased. The First
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Appellate Court therefore, held that there was no consistency in
the evidence of the plaintiff. Therefore, it held that in the
absence of any properties of the family, it was difficult to
assume that the suit properties were impressed with the seal of
the joint family. It further held that the contention of the
plaintiff that they had contributed their wages to their elder
brother - Gundu and that he purchased the suit properties out
of the savings made, made it all the more difficult to believe
that the suit properties were properties of the joint family. The
First Appellate Court therefore, dismissed the appeal and
confirmed the judgment and decree of the Trial Court.
10. Being aggrieved by the same, the plaintiff has filed
this Regular Second Appeal.
11. This appeal was admitted to consider following
substantial questions of law:-
1. Whether the Courts below were right in dismissing
the suit of the plaintiff on the premise that there
was a previous partition between the plaintiff and
his deceased brothers Gundu and Bharma and
therefore, the family had separated?
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2. Whether the Courts below were justified in holding
that item Nos.1 and 2 suit properties are the self-
acquired property of deceased Gundu?
12. The learned counsel for the plaintiff submitted that
the fact that the suit properties were joint family properties
where the plaintiff had undivided share, is established from
Ex.P3, which is an agreement dated 02.12.1995 executed by
defendant Nos.2 and 3. Ex.P3 is in Marathi, the translation is
marked as Ex.P3(a), which reads as follows:-
"Agreement executed in favour of Narayan Yeshwant Hundre,
R/o: Honga, Taluka and District : Belgaum.
1) Shri Laxman Gundu Hundre, R/o : Bachi.
2) Shri Yeshwant Gundu Hundre, R/o : Bachi.
In our land at Bachi we had agreed to give 1 Acre of land out of
our free will, but instead of that we have agreed to pay
Rs.50,000/-. This amount will be paid within 8 to 10 months
period."
13. The learned counsel further contends that this
document was executed during the lifetime of Gundu and
therefore, contends that the plaintiff had a share in the suit
schedule properties, which was duly acknowledged. He
therefore, contends that this document established beyond
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doubt that the suit properties were not independent properties
of Gundu, but the properties acquired out of the funds handed
over to deceased - Gundu by the plaintiff and deceased -
Bharma. He also referred to the evidence of PW.2, who was
the witness to Ex.P3. He stated that he had affixed his
signature to Ex.P3(a) and that the defendant Nos.2 and 3 had
affixed their signatures in his presence. PW.3 was the daughter
of Yeshwanth, who also stated that the plaintiff and deceased -
Bharma were handing over the income to Gundu and that out
of the savings made, Gundu had purchased the suit properties.
She contended that the sale deed was executed in the name of
Gundu, as he was the manager of the family and that the
plaintiff and Bharma were quite young. She admitted that in
the year 1965, all the brothers were residing separately as
there was some differences of opinion amongst them. She also
deposed that in the year 1995, the plaintiff demanded his share
in the suit properties but the deceased - Gundu informed the
son of deceased - Bharma to make appropriate arrangements
for partition of the properties. When the plaintiff insisted
defendant Nos.1 to 3 to give in writing that 1 acre of land or
Rs.50,000/- cash would be given to him, defendant Nos.2 and
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3 executed a document dated 02.12.1995 agreeing to give 1
acre of land or Rs.50,000/- cash to the plaintiff within 8 to 10
months. DW.1 was the defendant No.2 in the case, who
agreed to the execution of Ex.P3. He deposed in his cross-
examination as follows:-
"There is no partition deed executed between
my father Gundu, my uncles Bharama and Narayan.
I have purchased the stamp of Ex.P.3 from the stamp
vendor Madaghoot. It is true that said Madaghoot is
a stamp vendor and he sells the stamp papers at
Shanivarkhoot. I purchased the stamp of Rs.20/-. It
is true that I have signed for having purchased the
stamp paper. I now see my signature on Ex.P.3 at
Ex.P.3 (e). It is true my brother Yeshwant also signs
in Marathi. I now see the signatures of myself and
brother Yeshwant at Ex.P.3(c) and P.3(d). It is true
that at that time, one Mr. R.S. Motekar of Honagekar
and Kallappa Shindolkar were present. It is true that
they have put their signatures on the said document.
It is true that myself and my brother Yeshwant are
able to read and write Marathi. The document at
Ex.P.3 is returned by the plff. after I signed. I cannot
remember the time of purchase of the stamp paper of
Ex.P.3. In the year 1995 my father was suffering
paralytic stroke. It is true that there was no dispute
or bitterness between myself my brother and my
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father. I consulted my father before purchase of
stamp of Ex.P.3. The stamp paper of Ex.D.3 was
purchased by Parashuram Gunjikar. This document
at Ex.D.3 was written by the scribe Madaghoot. It is
true that as per my instructions both the witnesses
R.S. Motekar and Kallappa Shindolkar have put their
signatures as witnesses on Ex.D.3 since the scribe
asked me as to the said witnesses are known to me.
Myself and my brother Yeshwant have no personal
enmity about these persons. It is true that both the
stamps of Ex.P.3 and Ex.D.3 are purchased on one
and the same day.
Myself or my brother Yeshwant have not issued
any notice to the plff. as to questioning the document
Ex.P.3."
14. This therefore, established beyond doubt that the
parties had settled the dispute amongst themselves by entering
into a solemn agreement in terms of which, defendant Nos.2
and 3 had agreed to handover 1 acre of land or in the alternate
to give a sum of Rs.50,000/- to the plaintiff. He therefore,
contended that the defendant Nos.2 and 3 had thereby agreed
to the fact that the plaintiff too had a share in the suit schedule
properties. Hence, he contended that the Trial Court and the
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First Appellate Court have committed an error in not decreeing
the suit for partition.
15. Per contra, the learned counsel for the defendant
Nos.1 to 3 submitted that the suit properties were purchased
by Gundu out of his own funds. However, a mistake had crept
in the sale deed under which he purchased the properties.
Therefore, when he desired to get the same rectified and went
to Sub-Registrar's office, the plaintiff raised an alarm and
claimed that he too was interested in the suit properties and
also heckled Gundu for not handing over his share. He
submitted that since the deceased - Gundu was suffering from
paralytic stroke, in order to first obtain a deed of rectification
from the vendors, the deceased - Gundu instructed defendant
Nos.2 and 3 to handover 1 acre of land to the plaintiff or in the
alternate to give a sum of Rs.50,000/-. He submits that this
did not indicate that the suit properties were the joint family
properties and/or that the plaintiff had undivided share. He
therefore, contends that except Ex.P3, there is no document to
establish that suit properties were properties of the joint family.
He therefore, contends that the plaintiff was not entitled to any
reliefs, more particularly the relief of partition and separate
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possession of his alleged share in the suit properties. He
further submits that Ex.P3 was unenforceable as it was not
registered in accordance with law. Therefore, he contends that
the Trial Court and the First Appellate Court were right in
rejecting the claim of the plaintiff and in dismissing the suit.
16. I have considered the submissions made by the
learned counsel for the plaintiff as well as the learned counsel
for the defendant Nos.1 to 3. I have also perused the records of
the Trial Court as well as its judgment and decree and the
judgment and decree of the First Appellate Court.
17. A perusal of the plaint indicates that the plaintiff did
admit that the family did not possess any land and that all of
them were eking out their livelihood by doing coolie work in
other's land. The plaintiff claimed that until 1968, he and his
brother deceased - Bharma were handing over all their income
to their elder brother Gundu and that the joint family continued
under the stewardship of Gundu. He claimed that the old
house belonging to the joint family was not sufficient and
therefore, Bharma, Gundu and plaintiff purchased independent
plots and constructed their residential houses thereon. He
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claimed that suit item No.1 was purchased by deceased -
Gundu on 13.03.1961 and that there was a mistake in the
survey number and the area. When the said mistake came to
the knowledge of vendor and the deceased - Gundu, a
rectification deed was executed on 02.12.1995 rectifying
Sy.No.89/1. Likewise, the land bearing Sy.No.90/1 was
purchased on 15.04.1963 and all the members of the family
allegedly cultivated these lands. Therefore, it is certain that in
the year 1961 and 1963, there was no land that belonged to
the family and thus there was no nucleus from which, the joint
family could have purchased the suit schedule properties. The
plaintiff did not produce any material to establish that all the
three brothers namely Gundu, plaintiff and Bharma were living
in a joint family and that they were contributing all their income
for the well being of the joint family. The plaintiff himself
pleaded that since the house they were occupying was not
sufficient, all of them purchased separate properties and
started living separately thereby giving impression that in the
year 1961 and 1963, they did not make any claim over the said
properties. He on the contrary claimed that separate sites
were purchased by them at Honga village and Belgaum Taluk
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and District and were residing thereon by constructing their
separate houses. Therefore, it is difficult to accept the
contention of the plaintiff that all the members constituted a
joint family.
18. However, the defendant Nos.2 and 3 did not dispute
the fact that they had lawfully executed Ex.P3 at the instance
of their father deceased - Gundu. DW.1 went to the extent of
claiming that the said document was drawn up at the instance
of deceased - Gundu and that it was he who brought the stamp
papers as well as the witnesses and that it was in the presence
of deceased - Gundu that the said document was drawn up in
terms of which, they had agreed to pay a sum of Rs.50,000/-
to the plaintiff. The deposition of DW.1 is categorical and
specific and therefore, probablise the case of the plaintiff that
defendant Nos.2 and 3 had voluntarily executed Ex.P3 and had
agreed to pay a sum of Rs.50,000/- to the plaintiff. DW.1
admitted that he and defendant No.3 were in good terms,
thereby indicating that the family had agreed to pay a sum of
Rs.50,000/- to the plaintiff. Therefore, notwithstanding the
fact that Ex.P3 was not registered, the said document was
admissible in evidence, as no right in property was created by
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virtue of Ex.P3 but a solemn agreement was made out by the
defendant Nos.2 and 3 agreeing to pay a sum of Rs.50,000/- in
lieu of 1 acre of land which the deceased - Gundu had agreed
to give to the plaintiff. Not all settlements need to be
registered more particularly, when such settlements are
brought about within a family to resolve a family dispute and
therefore, the Trial Court and the First Appellate Court could
not have ignored Ex.P3 to deny the relief to the plaintiff to
which he was entitled to.
19. Having regard to the aforesaid, since DW.1 had
admitted the lawful execution of Ex.P3 and also he had agreed
to pay a sum of Rs.50,000/- to the plaintiff, the Trial Court as
well as the First Appellate Court must have exercised the
jurisdiction under Order VII Rule 7 of CPC to grant the relief to
which the plaintiff was entitled to namely, a sum of
Rs.50,000/-. The fact that Ex.P3 was executed by the
defendant Nos.2 and 3 voluntarily established that some
amount of money was paid to the deceased - Gundu by the
plaintiff at the time of purchase of the suit properties.
However, that could not be construed as a contribution by the
members of the joint family to purchase the properties in the
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name of the deceased - Gundu, but at the most could not be
construed as some assistance rendered by him to the deceased
- Gundu while purchasing the suit properties. In that view of
the matter, though there is no error committed by the Trial
Court and the First Appellate Court in dismissing the suit for
partition and separate possession, however, the Trial Court and
the First Appellate Court ought to have molded the relief and
must have directed the defendant Nos.1 to 3 to pay a sum of
Rs.50,000/- to the plaintiff.
20. However, having regard to the long lapse of time
i.e. from the year 1995 when the sum of Rs.50,000/- was
payable till date, it is inappropriate for this Court to direct the
plaintiff to accept a sum of Rs.50,000/- along with interest.
Ends of justice would be met by directing the defendant Nos.1
to 3 to pay a sum of Rs.5,00,000/- to the plaintiff within a
period of three months from today.
21. In view of the above, the substantial questions of
law framed by this Court are answered against the plaintiff and
in favour of the defendants.
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22. Consequently, this appeal stands disposed off
directing the defendant Nos.1 to 3 to pay a sum of
Rs.5,00,000/- (Rupees Five Lakhs only) to the plaintiff within a
period of three months from today. It is made clear that if the
defendant Nos.1 to 3 did not pay the said sum of Rs.5,00,000/-
within three months from today, they shall be liable to pay
interest at the rate of 6% per month from the date of this
judgment till the date of payment. The suit stands disposed off
on the above terms.
Sd/-
JUDGE
PMR
