10. After considering the oral and documentary evidence
on record, the trial Court framed the following issues:
ISSUES
1. Whether the plaintiff proves that he is the
members of the Hindu Undivided Joint family?
RECASTED ISSUE
2. Whether the plaintiffs proves that the suit
schedule properties are the undivided joint
family properties of plaintiffs and defendants
No.1 to 14?
3. Whether the plaintiff proves that the sale
deeds dated: 9.6.2006, 5.5.2007, 15.06.2006,
6.10.2008 are not binding on the plaintiff?
4. Whether the defendant Nos.15, 16 prove that
a partition has been effected in the joint family
property under a palupatty dtd: 24.1.1997?
5. Whether the defendant no.15, 16 prove that
the suit is bad for seeking partial partition?
6. Whether the plaintiffs are entitled for the
relief as prayed?
7. What Order or Decree?
ADDITIONAL ISSUE
prove that defendant no.7 become the owner of
1 acre of land in item no.1, and a site measuring
27 1/2 x 20 feet by virtue of the Will dated
21.09.1981.
11. In order to prove their case, plaintiff No.1- Bhagya got
examined herself on oath as PW1 and got marked in all 47
documents as per Exs.P1 to 47. One Swamy was examined as
PW2. For the defence, defendant No.4 Yogesh C., was examined
as DW.1, defendant No.7-Puttamma was examined as DW.2 and
defendant No.16 was examined as DW.3 and got marked 29
documents as per Exs.D.1 to 29.
12. The trial Court after recording the evidence and
considering the oral and documentary evidence answered issue
Nos.1 to 3, 6 and additional issue No.1 in the negative and issue
Nos.4 and 5 in the affirmative and dismissed the suit of the
plaintiffs and declined to grant share in the suit schedule
properties.
13. Being aggrieved by the judgment and preliminary
decree passed by the trial Court, the plaintiffs preferred this
appeal.
14. We have given careful consideration to the material
available on record. The trial Court erred in noticing in para 16 of
the judgment that the plaintiffs have not placed any single
document relating to house property which is relied by them
relating to property No.57 junger No.69, however, the
defendants/respondents have not disputed that the said property
belonged to their father, and that the trial Court has jumped to
the conclusion that the plaintiffs have failed to establish that the
suit schedule properties were the joint family properties of the
plaintiffs and the defendants, which is illegal.
15. The trial Court, erred in not considering the fact that
though it has observed in para 15 that, the defendants have
contended about the partition dated 24.01.1997, the said
document is not produced, and the plaintiffs have to establish
their own case without taking any shelter from the pleadings of
the defendants, and holds that the item Nos. 1 to 7 of the plaint
'A' schedule property are not established as joint family
properties, which is totally illegal as the defendants, who have
contended that partition has taken place by virtue of Palupatti
dated 24.07.1997, the same has not been produced, which
clearly shows that there was no such document to prove that
there was partition on 24.01.1997, which clearly supports the
case of the appellants to hold that there was no partition of the
schedule properties, and hence are entitled to seek for the relief
of partition and separate possession of their respective shares in
the plaint schedule properties and the trial Court clearly
misdirected itself in stating that the plaintiffs have failed to
establish that the suit schedule properties were the joint family
properties, which is totally illegal.
16. The trial Court, erred in not noticing at para 17 of the
judgment, wherein it is clearly stated that defendant Nos.15 and
16, who have contended regarding palupatti dated 24.07.1997,
have not produced the document, but the sale deeds are
executed on the said palupatti and that there is a change of
khatha based on the division of the property and that the
evidence of DW3 and the suggestion made to DW3 goes to show
that there were certain ancestral properties, which were sold
during the life time of the parents of the plaintiffs. When that
being the case, it is clear that the burden with regard to prior
partition has to be established by producing the said palupatti,
which would have thrown some light with regard to the
properties mentioned in the plaint schedule properties, which
has not been done. In law if a document is sought to be relied,
the same will have to be produced to prove the said fact and in
the absence of the same, an adverse inference has to be drawn
and the trial court without doing so, has merely relied on some
entries in the revenue records and has jumped to the conclusion
that there was prior partition, which is totally illegal.
17. The trial Court erred in stating in para 18 of the
judgment that the sale deeds executed by the
defendants/respondents are binding on the appellants on the
ground that the appellants have not challenged mutation entries
in the revenue records and that the decisions relied on by the
defendants 15 & 16 are aptly applicable to the facts on hand,
which is illegal, as the properties mentioned in the schedule of
the plaint are joint family properties, and as long as the plaintiffs
are not parties to the said sale deeds, the sale deeds cannot bind
the plaintiffs and that the entries in the revenue records would
not have any effect in respect of the share in the said properties
belonging to the plaintiffs. As long as the defendants have not
produced any documents showing that the joint family properties
have been divided by metes and bounds and that the said
properties remain joint and the share of the plaintiffs cannot be
denied in the absence of the plaintiffs being a party to the said
transactions, and hence the plaintiffs' suit for partition could not
have been dismissed, which is perverse.
18. The trial Court misdirected in relying on the
averments of defendants 15 and 16, stating that the suit is hit
by partial partition, just because the plaintiffs have not added
property situated at Basavanahalli bearing Sy. No. 91 and
another property situated at Bogadi Village, and that the said
properties which have brought to the notice of the court could
have been added as in the case of a suit for partition, all the
parties, both plaintiffs and the defendants are entitled to their
respective share in the properties belonging to the joint family.
Further, the trial Court erred in stating said land bearing
Sy.No.91 was also thrown into the hotch potch of the joint family
properties and the same had blended into the joint family
properties and the plaintiffs are selective in filing the suit only
against some of the alienated properties and plaintiffs have
intentionally not included all the properties, which is not bonafide
and hence the suit for partition filed by the plaintiffs are in
respect of partial partition, which is totally illegal.
19. The appellants submits that, though the trial Court
has clearly stated that it is mandatory upon the person who
relies on the Will to prove it in accordance with Section 68 of
Indian Evidence Act, 1872 and also under Section 63 of Indian
Succession Act, 1925, the defendant No.7 has not made any
efforts to prove the due execution of the Will and that the
original Will has not been produced and the arguments advanced
on behalf of defendant No.7 regarding proof of Will was not
tenable and that the Will is more than 30 years old document,
therefore presumption can be raised, and for that, the
arguments of the learned counsel for defendant no.7 cannot be
acceptable, because the original document itself is not produced
and therefore, presumption cannot be raised on production of
certified copy, as none of the attesting witnesses have been
examined including the scribe. Therefore, mere production of
the certified copy of the Will does not dispense with proof of the
Will and that therefore, defendant No.7 has failed to establish
her contention and having said so, the trial Court has clearly
erred in dismissing the suit of the appellants, which is totally
illegal. View from any angle, the judgment and decree rendered
by the trial Court requires interference by this Court.
20. The appellants declare that the appeal filed by them is
well within the period of limitation, as prescribed by the
Limitation Act, 1963.
21. Heard learned counsels Sri Muddu Babu S. and
Sri S.M. Babu for the appellants and learned counsel
Sri Y.K. Narayana Sharma, for respondent Nos.14 and 15.
22. We have perused the material available on record.
Plaintiff Bhagya examined herself on oath as PW1. In her
evidence, she has reiterated the averments made in the plaint.
In support of her oral evidence, the son of plaintiff No.2 by name
Swamy was examined as PW.2. From the perusal of the
evidence, the relationship of the plaintiff No.1 as daughter of
Late Subbegowda and Maramma is admitted. The plaintiff No1
Bhagya claimed that she is the member of joint family alongwith
defendant Nos.1, 2, 6, 7 and 8. She has stated that her father
acquired the schedule properties in the year 1986, but she has
not specifically stated as to what properties were acquired by her
father in the year 1986. According to her, the land bearing
Sy.No.91 to an extent of 2 acres 19 guntas was belonging to
parents of Smt. Honnamma @ Maramma. They have gifted the
said property in favour of the mother of the plaintiff by name
Honnamma. Smt. Honnamma sold the property in favour of
Jayaprakash on 21.11.1991. Hence, the land bearing Sy.No.91
was not available for alienation to Jayaprakash. Plaintiff No.1
Bhagya also contended that land bearing Sy.Nos.259 and 260
situated at Bogadi Village, were also acquired by her parents by
gift deed. In this case, the plaintiff No.1 relied upon Exs.P1 to P3
relating to land bearing Sy.No.275. Exs.P1 to P3 are the RTC
extracts of land bearing Sy.No.275. From the perusal of Exs.P1
to P3, it appears that the said land was standing in the name of
Srinivasa Narasimhacharya. Thereafter, the property was
transferred in the name of the plaintiffs' father Subbegowda and
her mother Maramma vide Ex.P5. Apart from these RTC extracts,
the plaintiffs have not produced any title deed in support of
those lands. The plaintiffs have produced RTC extracts in respect
of land bearing Sy. No.260, wherein the name of the plaintiffs'
father Subbegowda is depicted and thereafter the said property
was sold in favour of Bapuji Gruha Nirmana Sangha. Once the
properties of Subbegowda and Maramma were alienated to the
prospective purchasers, the said properties will lose the
characteristics of the joint family property. Under such
circumstances, heavy burden is cast upon the plaintiffs to prove
that the suit schedule properties are the undivided joint family
properties of the plaintiffs and defendants, wherein the plaintiff
No.1 in her cross examination has categorically admitted that
there were certain properties which were sold during lifetime of
her parents. Further, the plaintiff No.1 is not sure as to whether
the properties held by her father and mother were self-acquired
property or undivided joint family properties. 'A' schedule
property was purchased by Subbegowda and Maramma under
registered sale deed dated 04.12.1969, but the plaintiff No.1 has
not specifically averred that whether those properties were
purchased out of joint family funds or those lands are considered
as ancestral properties of her parents. Therefore, Ex.P26 clearly
establishes that the schedule properties were purchased on
04.12.1969 in respect of 'A' schedule property.
23. So far as severance of status of joint family, the
plaintiffs have admitted that defendant Nos.2 to 8 are her
brothers and they are residing separately since the year 1979
and the present suit was filed in the year 2012 for partition. The
parents of the plaintiffs died in the year 1979. Thus, it clearly
establishes that prior to death of parents of the plaintiffs itself,
defendant Nos.2 to 8 were residing separately. The plaintiff No.1
further admitted in her evidence that her father Subbegowda
owns 2 acres 20 guntas of land in Sy.No.91 at Basavanahalli
Village. But the said properties were not included in the suit and
she is not aware of the acquisition of the lands. The plaintiff No.1
further admitted that after death of her father, the land situated
at Bogadi Village to an extent of 3 acres 16 guntas was sold by
defendant Nos.2 to 8. More importantly, she is also residing in
land bearing Sy.No.275/17 by securing her share. She has
further admitted that the property held by her parents were sold
in favour of Bapuji Gruha Sahakara Sangha for formation of
residential layout and those properties have not been included in
the present suit. The admission portion of plaintiff No.1 itself
clearly establishes that there was already partition among the
family members and some of the joint family properties were
sold to the prospective purchasers.
24. Admittedly, the plaintiffs have included some of the
properties and have left out some of the joint family properties.
Since the plaintiffs sought for partial partition, the same is not
maintainable. Admittedly, the suit is one for partition and
separate possession. The defendants have taken the stand that
the plaintiffs have not included all the properties and therefore,
the suit for partial partition is not maintainable. In the light of
the defence set up by the defendants, the plaintiffs ought to
have included all the schedule properties for just decision of the
case. Further, the plaintiffs have not mentioned the boundaries
for the schedule properties. Thus, the identity of the schedule
properties is also not properly shown by the plaintiffs. The
description of the schedule property without any boundaries is
not admissible under Order 7 Rule 3 CPC. It appears that the
parents of the plaintiffs, her brothers have alienated the
schedule properties in favour of defendant Nos.14 to 16. Thus,
the trial Court considering the oral and documentary evidence on
record, has rightly dismissed the suit of the plaintiffs. Thus, no
interference is called for in that regard and thus, the appeal is
liable to be dismissed being devoid of merit.
Accordingly, we pass the following:-
ORDER
1. The appeal is dismissed.
2. Consequently, the judgment and decree dated
20.04.2019 passed by IV Addl. City Civil and JMFC,
Mysuru in O.S.No.886/2012 is confirmed.
3. No order as to costs.
Sd/-
(K.SOMASHEKAR)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
MN/-
