advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Friday, August 16, 2013

Both suits are remanded due to contradictory recordings for clubbing and disposal = We may have remanded the matter to the High Court for fresh disposal of the appeals filed by the appellant and respondent No. 2 but keeping in view the fact that the findings recorded in the two suits regarding Item No. 5 of Schedule `B' properties specified in the plaint of O.S. No. 4528 of 1980 are contradictory and substantial portion of the judgment of O.S. No. 4528 of 1980 is based on surmises and conjectures, we feel that ends of justice would be met by setting aside the impugned judgment and remitting the matter to the trial Court for fresh disposal of the suits filed by respondent Nos. 1 and 2. In the result, the appeals are allowed. The impugned judgment is set aside. The judgments of the trial Court in O.S. Nos. 4528 of 1980 and 2062 of 1981 are also set aside and the matter is remitted to the trial Court for fresh disposal of the suits. With a view to avoid the possibility of conflicting findings regarding Item No.5 of Schedule `B' properties specified in the plaint of O.S. No.4528 of 1980, we direct the trial Court to club the two suits and dispose of 3 the same by one judgment. The parties shall be free to file applications for additional evidence and bring on record the orders passed by the Land Tribunal and the High Court in relation to Item Nos. 1 to 4 of Schedule `B' appended to the plaint of O.S. No.4528 of 1980.

                   published in       http://judis.nic.in/supremecourt/helddis.aspx                               
NON REPORTABLE



                 IN THE SUPREME COURT OF INDIA



                   CIVIL APPELLATE JURISDICTION


                                         

              CIVIL APPEAL NOS. 6714-6715 OF 2002


Y. Nagaraj                                                ........Appellant



                                Versus



Smt. Jalajakshi and others                                 .......Respondents





                             J U D G M E N T




G. S. Singhvi,  J.




1.    These appeals filed against judgment dated 22.2.1999 of the



learned   Single   Judge   of   the   Karnataka   High   Court   represent



culmination  of the dispute among the heirs of Shri D. Yellappa,  



who died intestate on 27.03.1978, in relation to his properties.




2.    Appellant,   Y.   Nagaraj,   is   the   son   of   the   deceased   and 



respondent   Nos.1   to   3   -   Smt.   Jalajakshi,   Smt.   Y.   Susheela   and 


                                                                                   2



Smt. Y. Nirmalakumari are his daughters.

They are governed by 



Mitakshara   School   of   Hindu   Law   as   also   the   provisions   of   the 



Hindu Succession Act, 1956 (for short, `the Act'),
for the sake of



convenience, they shall hereinafter be referred to with the same



description.




3.    Respondent   No.   1   filed   O.S.   No.   286   of   1979   (renumbered 



as   O.S.   No.   4528   of   1980)   impleading   the   appellant   and 



respondent   Nos.   2   and   3   as   defendants   for   partition   of   the 



properties   specified   in   Schedules   `A'   and   `B'   into   four   equal 



shares by metes and bound and for allotment of one share to her 



with   absolute   title   and   possession.   She   further   prayed   that   the



appellant   be   directed   to   give   account   of   the   income   of   the   suit



schedule   properties   with   effect   from   27.3.1978   and   pay   1/4th



share   to   her.   In   the   alternative,   she   prayed   that   an   inquiry   be



ordered under Order XXIX Rule 12 of the Code of Civil Procedure



(for   short,   `the   CPC')   for   determination   of   mesne   profits.   The



schedules appended to the plaint are extracted below:


                                                                                       3



"                            :Schedule `A':



(1)   Vacant   land   bearing   Kaneshumari   No.   130,   of

Dommasaacha Village, Surjapura Hobli, Anekal Taluk

bounded on the



East by          :         Nagi Reddy House

West by          :         Konda Reddy House

North by         :         Road

South by         :         Erappa's land



Measuring   East   West   about   42'   North-South   about

45'.

                           

                                 :Schedule `B':



(1) S. No. 96/1, measuring 2 acres and 5 guntas

(2) S. No. 108/2, measuring 1 acre 28 guntas

(3) S. No. 79/2, measuring 3 acres 35 guntas

all          these         properties         situated         at         Thigala,

Chowdadenahalli,   Sarjapur   Hobli,   Anekla   Tq,

Bangalore Distt.,

(4) S.No. 205, measuring 1 acre 22 guntas situated at

Dommasandra village, Anekla, Taluk.

(5)  A  house  bearing  D.No.  100,  and  new Nos.  100/1

and   100/2,   measuring   about   82'   x   21'   situated   at

Susheela Road Doddamavalli, Bangalore.4

(6) Any other property standing in the name of late D.

Yellappa, or any of his family members.

(7) Jewels worth about Rs. 10,000/-

(8) Household utensils worth about Rs. 10,000/-

(9) Bank deposits."



(As   extracted   from   the   judgment   of   XVII   Additional

City Civil Judge, Bangalore.)


                                                                             4



4.    The claim of respondent No. 1 was founded on the following



assertions:




      (a) That   late   Shri   D.   Yellappa,   who   retired   as   Revenue 



         Inspector   from   the   Corporation   of   the   City   Bangalore, 



         was   an   affluent   person   and   possessed   some   ancestral 



         properties   (described   in   Schedule   `A')   and   self-acquired 



         movable   and   immovable   properties   (described   in 



         Schedule `B').




      (b) That   Shri   D.   Yellappa   died   intestate   on   27.3.1978   and 



         being his Class II heirs, the parties are entitled to share  



         in his estate.




      (c) That   respondent   Nos.   2   and   3   are   unmarried   and   by



         taking   advantage   of   his   position   as   the   son   of   the



         deceased,   the   appellant   is   wasting   the   property   and



         trying to alienate the same.




5.    In the written statement filed by him, the appellant denied



      that   Shri  D.  Yellappa  had   only  a   bit  of   ancestral  property. 



      He   pleaded   that   the   suit   properties   are   joint   family 


                                                                                5



properties because the same had been acquired out of joint 



family   income   and   respondent   No.   1   had   erroneously 



characterized   the   same   as   self-acquired   properties   of   the 



deceased.
The appellant further pleaded that his father had 



sold   some   properties   to   one   Papaiah;   
that   the   agricultural 



lands  shown  in  the  plaint  schedule  were subject matter  of 



the   proceedings   pending   before   Land   Tribunal,   Anekal   for 



grant   of   occupancy   rights;   that   Item   No.   3   of   plaint 



Schedule `B' had been purchased in his name vide sale deed  



dated   29.4.1961   and   he   was   absolute   owner   thereof   and 



that the jewellery, utensils, bank accounts, etc., mentioned 



at   Item   Nos.   7   to   9   of   Schedule   `B'   were   not   available   for  



partition   because   after   the   death   of   the   mother,   the 



deceased   had   divided   the   same   among   three   sisters.   In



paragraph 6 of the written statement, the appellant averred



that   Item   No.5   of   Schedule   `B'   properties   is   an   ancestral 



property   and   respondent   No.1   has   no   right   to   claim   any 



share in it.  


                                                                                       6



6.    Since   the   High   Court   has,   while   disposing   of   the   appeals



      filed   by   the   appellant   and   respondent   No.   2   relied   upon



      some   of   the   averments   contained   in   the   written   statement



      and   made   observations   adverse   to   the   interest   of   the



      appellant,   it   will   be   appropriate   to   notice   the   contents   of



      paragraphs   2,   4   and   6   of   the   written   statement   which   are



      extracted below:



      "2.         Late Sri. D. Yellappa had ancestral properties.

      It is incorrect to say that he has only a bit of ancestral

      property.     He was getting a meagre salary, while he

      was   in   service,   but   he   was   having   sufficient   income

      from   the   joint   family   properties   and   out   of   the

      income-from   joint   family   properties   he   purchased

      properties   in   his   name   as   he   was   the   head   of   the

      family.   It is absolutely false that items mentioned in

      `A'   Schedule   are   the   ancestral   properties   and   the

      items   mentioned   in   `B '   schedule   are   the   separate

      properties   of   the   father   of   this   defendant.       The

      plaintiff   is   put   to   strict   proofs   of   the   same.       The 

      plaintiff   with   a   view   to   claim   larger   share   in   the 

      properties has   characterised  the   ancestral  properties 

      as   self   acquired   properties.       The   plaintiff   in   her

      anxiety  to   claim   a  larger   share   in  the   properties  has

      included   the   items   which   are   already   sold   by   the

      father   of   the   defendant.       Thus   it   is   clear       that   the

      plaintiff   is   not   at   all   in   joint   possession   of   the

      properties.   The   item   mentioned   in   `A'   schedule   was 

      sold   to   one   Papaiah   by   the   father   of   the   defendant 

      during   his   life   time   and   put   him   in   possession. 

      Inspite   of   it,   the   plaintiff   has   claimed   this   property 

      which   is   in   possession   of   Sri   Papaiah.       Hence,   the 

      said Papaiah is a necessary and a proper party.   The


                                                                                  7



      suit  is   bad   for   non-joinder   of   proper   parties  and  the

      suit is liable to be dismissed.


      4 .          There   is   no   self-acquired   property   of   Sri

      Yellappa,   for   the   plaintiff   to   claim   any   share   in   the

      property.   The plaintiff is not entitled to any share in

      the   properties   detailed   in   the   schedule   and   further

      the   plaintiff  has  not   brought   the   entire   joint   family

      properties   for   the   purpose   of   division,   though   she   is

      fully aware of  the   same.      The  pretentions  ignorance

      of   the   plaintiff   is  a  make   believe   one   and  is

      deliberately made to appear as such only to help the

      plaintiff's uncle against whom the suit has been filed

      for   the   recovery   of   this   defendant's   share   in   the

      property.     The   plaintiff   is   actively   supporting   her 

      uncle in the said litigation in O.S.31/1979 on the file  

      of the M u n s i f f,   A n e k a l .    Thus the suit as brought is

      not maintainable and liable to be dismissed in limine.


      6.           Item  No.5  of  the  `B'  Schedule  properties  is 

      an ancestral property.  The plaintiff has no manner of 

      right, title or interest to claim any share therein."





7.    Respondent   Nos.  2  and   3  filed  separate   written   statement.



      They   admitted   the   claim   of   respondent   No.   1   qua   the



      properties specified in Schedules `A' and `B' except Item No.



      5 of `B' Schedule, i.e., house No. 100 (new nos. 100/1 and



      100/2).    Respondent  Nos. 2  and  3  pleaded that   the  house 



      was purchased by their father in the name of the mother by 



      registered  sale   deed dated   20.12.1943;   that,   subsequently, 



      the   mother   transferred   the   house   to   the   father,   who 


                                                                               8



      executed Will dated 28.3.1977 and bequeathed a portion of 



      the house  to them  but, later on, he cancelled the Will and 



      executed   registered   Settlement   Deed   dated   18.7.1977   in 



      their favour.




8.    The   trial   Court   took   cognizance   of   the   pleadings   of   the



      parties   and   framed   the   following   issues   (the   issues   have



      been extracted from the impugned judgment):



      "1.    Whether     plaintiff       proves     that   the       `A' 

             schedule     properties   are   the            ancestral 

             properties     and     the   `B'     schedule     property 

             were        self   acquired   property   of   late   D. 

             Yellappa?



      2. Whether defendant nos.2 and 3 proves that they 

             are   the   absolute   owners   in   possession   and 

             enjoyment of a portion of item no.5 of schedule 

             `B' property by virtue of a registered settlement 

             deed   dated   18.7.1977   executed   by   late   D. 

             Yellappa?



      3. Whether   the   defendants   further   prove   that   the 

             plaintiff   is   not   entitled   to   claim   a   share   in 

             items no.1 to 5 of the `B' schedule property as 

             contended in their written statement?



      4. Whether defendants further prove that the jewels 

             in   item   no.7   of   `B'   schedule   was   divided   in 

             between   defendants   1   and   2   and   after   the 

             death of their mother as contended?


                                                                                  9



       5. Whether defendant no.1 proves that item no.8 in 

               `B'   schedule   was   taken   away   by   the   plaintiff 

               and the utensils now in his possession belong 

               to him exclusively?



       6. To   what   share   is   the   plaintiff   entitled   to   and   in 

               what all properties?



       7. Whether   the   plaintiff   is   entitled   to   the   mesne 

               profits and if yes, at what rate?



       8. What relief and what order?



       9.    Whether the defendants prove that the 3rd item of 

               `B'   schedule   is   the   self   acquired   property   of 

               defendant   no.1   as   contended   in   para   6(b)   of 

               the written statement?



       10.     Whether   the   defendants   prove   that   item 

               nos.1,2 and 4 of `B' schedule property are the 

               subject   matter   of   tenancy   rights   pending 

               before the Land Tribunal and that the plaintiff 

               cannot claim anything in them?" 




9.     In support of her claim, respondent No. 1 appeared as PW-1



       and produced 13 documents, which were marked as Ex. P1



       to   P13.     The   appellant   examined   himself   as   DW-1   and



       produced one document, which was marked as Ex. D1.




10.    After considering the pleadings of the parties and evidence


       produced   by   them,   the   trial   Court   partly   decreed   the   suit.



       The trial Court answered issue Nos. 1 and 7 in the negative


                                                                            1



and issue Nos. 2, 4, 5, 9 and 10 in the affirmative. It held



that Item Nos. 6 to 9 of Schedule `B' were not available for



partition and respondent No.1 has miserably failed to prove



her case qua those items.  The trial Court further held that



Item No.3 of Schedule `B' is also not available for partition



because the  same had  been purchased in  the  name  of the



appellant   vide   sale   deed   Ex.   P6   and   mistake   in   the



boundaries   specified   therein   was   rectified   vide   Ex.   P7.



Issue   No.3   was   answered   by   the     trial   Court   by   declaring



that   respondent   No.1   will   be   entitled   to   1/8th  share   in   the



compensation in lieu of agricultural land which was subject



matter of the proceedings pending under the Land Reforms



Act.  The relevant portions of the judgment of the trial Court



except   those   relating   to   Item   Nos.   6   to   9   of   Schedule   `B'



about   which   no   controversy   survives   between   the   parties



are extracted below:




"Though   the   plaintiff   claims   her   1/4th  share   in   the

agricultural lands being Item Nos. 1 to 4 of schedule

`B' of the plaint, admittedly by the parties during the

course of evidence, item Nos. 1 & 2 are the ancestral

properties   of   this   D.   Yellappa   and   this   D.   Yellappa

has purchased item No. 4 by a registered sale deed as


                                                                              1



per Ex. P8 in the year 1966 and only because this D.

Yellappa purchased that  land, it cannot  be classified

as   self-acquired   property   of   Yellappa   unless   there   is

material or evidence produced by the plaintiff to show

that   he   treated   that   property   as   self-acquired   and

separate property and was never meant for enjoyment

of   the   joint   family   during   his   life   time.     Therefore,

when there is material to  show that  D. Yellappa had

some   agricultural   and   being   the   ancestral   property

measuring 4 5 acres in Anekal Taluk and in addition

to the same, he has retired in the year 1961 and got

some   retirement   benefits   and   similarly,   he   had

purchased   some   house   properties   in   Bangalore   and

sold them for the benefit of the family for a sum of Rs.

26,000/-   or   so   as   admitted   by   DW1   himself   and

which is not disputed by the plaintiff, it can be safely

said   that   item   No.   4   was   purchased   by   D   Yellappa,

out of the joint family funds and it was for the benefit

of   the   family   and   it   cannot   be   self-acquired   and

separate   property   of   Yellappa.       Similarly,   he   has

purchased   item   No.  5  being   the   house   property

bearing Door No. 100 which is re-numbered as 100/1

and  100/2  in   the   name   of   his   wife   only   in   the   year

1950   and   the   same   was   subsequently   transferred   in

the   name   of   D.   Yellappa   and   thereafter,   he   has

mortgaged   the   same   by   Ex.   P13   and   therefore,   the

plaintiff   cannot   contend   that   the   said   property

belonged to her mother and therefore, she is entitled

to   a   share  in  the   same.   The  recitals   of   the   mortgage

deed   in   Ex.  P13  go   to   show   that   D.   Yellappa   had

purchased that property in Bangalore in the name of

his wife and that fact is clinched by the fact that  he

has   subsequently   treated   the   same   as   joint   family

property   and   not   as   of   his   wife.   With   these

observations,   I   hold   that   it   is   a   joint   family   property

and   not   self-acquired   property   of   D.   Yellappa   and

about   the   settlement   of   the   property   in   favour   of

defendants 2  & 3, I will discuss later.


                                                                                 1



So   far   as   the   item   No.   3   of   `B'   schedule   property   is

concerned,   it   can   be   seen   that   it   was   purchased   in

the name of the first defendant by a sale deed Ex.  P6

and there has been a rectification deed also regarding

some   mistake   in   the   boundaries   etc.,   as   per   Ex.   P7

and this land is also said to be the subject matter of

occupancy right before the Tribunal. But all the same,

there   is   no   material   to   show   that   it   is   a   joint   family

property   and   the   plaintiff   has   not   produced   any

material   to   show   that   as   to   whether   her   father

financed this first defendant to purchase this item no.

3 of schedule `B' nor is it the case of the plaintiff that

it  was actually  purchased  by D. Yellappa in  his own

name.   As   already   pointed   out,   the   land   was

purchased   by   the   first   defendant   somewhere   in   the

year   1961   and   he   got   rectification   deed   in   the   year

1967   and   therefore,   in   the   absence   of   any   evidence

produced   by   the   plaintiff   to   show   that   it   was

purchased   out   of   the   income   of   the   ancestral

properties,   it   can   be   safely   said   that   the   first

defendant   has   treated   that   property   as   his   self-

acquired property because, there was no joint family

as   such   after   the   death   of   his   father.   Because,   the

first defendant is the only son and the other issues of

this   D.   Yellappa   all   are   daughters   and   are   married

and staying with their husbands. Therefore, this item

No. 3 will have to be treated as self-acquired property

of defendant No 1.


Admittedly   item   Nos.   1   and   2   of   schedule   `B'   are

agricultural lands and were ancestral properties of D.

Yellappa and if at all the plaintiff or defendants Nos. 2

and   3   are   entitled   to   any   share   in   those   2   lands

(illegible)  in   the   compensation   to   be   awarded   by   the

land   tribunal,   under   the   Hindu   Succession   Act   and

not under the General Hindu Law.


If   these   two   lands   are   agricultural   properties,   the

plaintiff as well as the defendants 2 and 3 would get


                                                                              1



their   share   either   in   the   compensation   or   by   metes

and bounds only in = share of the deceased-father of

Yellappa because he has died somewhere in the year

1978 after coming into force of the Hindu Succession

Act.   In   that   undecided   =   share   of   properties   they

cannot   claim   1/4th  share   as   of   right   by   birth.   In  the

notional partition it is only the coparceners under the

General   Hindu   Law   who   get   a   share   each   and   the

ladies   cannot   be   co-parceners   of   the   Joint   Hindu

Family   and   therefore   in   the   notional   partition,   it   is

this  D.   Yellappa  and   Nagaraj   alone  get   half   and   this

1/   share   of   Yellappa   goes   to   the   plaintiff   and
  2

defendants 2 and 3 under the Hindu Succession Act

as   their   mother   had   pre-deceased   this   Yellappa

having   died   in   the   year   1960.   Thus,   I   hold   that   the

plaintiff cannot claim 1/4th share. But they can claim

only 1/8th  share each in the entire item Nos. 1 and 2

either   by   metes   and   bounds   or   by   way   of

compensation if any by the land tribunal.


Though the plaintiff has claimed share in item No. 5

the   residential   house   of   Bangalore   Town,   on   the

ground  that   it   was   her   mother's   property,   her   own

document Ex. P. 13 negatives her contention because,

as   per   the   recitals,   the   finance   has   flowed   from   this

Yellappa   himself   though   it   was   purchased   in   the

name of his wife. But it was subsequently transferred

in   the   name   of   joint   family   and   he   treated   it  as   his

own   property   and  mortgaged   the   same   to  some

person   by   Ex.   P.   13   and   subsequently   gifted   the

portions   of   those   properties   in   favour   of   plaintiff

herself and also defendants 2 and 3 and defendants 2

and   3   so   also   the   first   defendant   stayed   in   those

houses till they got married and therefore, at the most

it can be said that house No. 100/1 and 100/2 alone

are  available   for   partition   between   the   plaintiff   and

defendants   except   the   settled   properties   in   favour   of

the   plaintiff   and   defendants   2   and   3.   Thus,   the

plaintiff   cannot   claim   share   in   the   portions   that   are


                                                                              1



settled in favour of defendants 2 and 3 and there has

been  a  settlement   deed   by   Yellappa   himself   between

defendants   2   and   3   by   a   registered   deed   dated

18.7.77   as   this   fact   is   admitted   by   PW1   as   well   as

DW1   though   there   is   no   evidence   produced   by   the

plaintiff   and   therefore,   I  am  persuaded   to   answer

issue No. 2 in the affirmative.


Now coming to `A' schedule property which according

to   the   plaintiff   is   ancestral   property   and   is   a   grame

tana   area   and   a   residential   house   bearing

Khaneshumari   No.   130   in   Anekal   Taluk.   This   PW1

during   the   course   of   cross-examination   admits   that

her   father   had   gifted   half   of   schedule   property   in

favour   of   his   own   brother-Veerappa   and   also   admits

that   her   father   might   have   sold   remaining   half

schedule   property   in   favour   of   one   Papaiah.   But,

however,   a   suggestion   is   made   that   this   first

defendant   took   possession   of   half   of   `A'   schedule

property   from  Papaiah  by   filing   suits.   But   the

plaintiff has not produced any judgment copy of such

suit nor is there any evidence produced to show that

this   defendant-1   has   taken   possession   of   the   half   of

the `A' schedule property that was sold by D. Yellappa

himself during his life time.


So therefore, if that is the position, it cannot be said

that   the   plaintiff   has   proved   the   facts   that   `A'

schedule   property   is   available   for   partition   and   also

that she is entitled for mesne profit also. There is no

material to show that `A' schedule is in the possession

of   the   first   defendant   and   they   cannot   also   contend

that   the   first   defendant   has   got   income   from   the

agricultural   lands   because,   in   view   of   the   Land

Reforms Act, tenanted lands vest in Govt. with effect

from   1974   and   when   there   is   material   to   show   that

the   matter   of   occupancy   rights   in   respect   of

agricultural   lands   at   item   -1   to   4   of   schedule   `B'   is

pending before the Land Tribunal, the plaintiff cannot


                                                                                      1



       seek   accounting   from   the   first   defendant.   But

       however,   the   contentions   of   the   defendant-1   in   the

       written statement that the plaintiff has not produced

       the record of rights and index of lands etc., in respect

       of   agricultural   land   and   that   if   partition   is   allowed,

       the  same  would   hit   provisions   of   Prevention   of

       Fragmentation   Act   etc.,   are   devoid   of   any   merit   and

       thus,   in   view   of   my   discussions,   I   am   persuaded   to

       answer issue No. 1 in the negative."





11.    The   operative   portion   of   the   judgment   passed   by   the   trial



       Court   (as   contained   in   the   paper   book   of   the   special   leave



       petitions) is extracted below:



       "The suit of the plaintiff is hereby partly decreed. The 

       suit of the plaintiff for partition and actual possession 

       in   `A'   schedule   property   and   also   for   partition   and 

       possession   of   item   Nos.   1   to   9   of   schedule   `B'   by  

       metes   and   bounds   is   hereby   dismissed.   It   is   hereby 

       declared that the plaintiff is entitled to 1/8th  share in 

       the compensation to be paid by the Govt, in respect of 

       item Nos. 1, 2 and 4 and she is also entitled to 1/8 th 

       share in the un-sold portion of item No. 5 in as much 

       as   there   are   entitlement   deeds   of   vacant   sites   in 

       favour   of   plaintiff   herself   and   also   in   favour   of 

       defendants 2 and 3. The plaintiff shall get her share 

       partitioned by appointing a Commissioner in the Final 

       Decree Proceedings  in  item  No.  5.  Similarly,  the  suit 

       of the plaintiff for mesne profits is hereby dismissed. 

       But  costs   of   the   suit   shall   come   out   of   the   assets   of 

       the  joint  family  properties.  It  is  hereby declared that 

       defendants   2   and   3   are   also   entitled   to   1/8th  share 

       like the plaintiff in all the properties that are available 

       for  partition  as  discussed above. Draw a  preliminary 

       decree accordingly."


                                                                               1





12.    During the pendency of the suit filed by respondent No. 1,



       respondent No. 2 filed O.S. No. 2062 of 1981 for declaration



       of   title   in   respect   of   house   bearing   No.   100/2,   Susheela



       Road, Doddamavalli, Bangalore and possession thereof and



       also   for   mesne   profits.   Respondent   No.2   relied   upon



       registered  Settlement   Deed  dated   18.7.1977,   which   is   said



       to   have   been  executed  by  Shri  D.   Yellappa  giving  separate



       portions to her and respondent No.3, and pleaded that she



       was  residing  in  the  portion  allotted to  her  and   was  paying



       taxes etc. but the appellant was trying to interfere with her



       possession.




13.    The appellant contested the suit filed by respondent No. 2.



       He pleaded that the suit property was joint family property



       and the deceased had no right to execute settlement deed in



       respect of the joint family property. He further pleaded that



       the   settlement   deed   was   a   fabricated   document   and   the



       same   cannot   be   relied   upon   for   declaring   respondent   No.2



       as owner of the suit property.  He also raised an objection of


                                                                            1



       limitation and pleaded that the suit filed by the respondent



       No.2 was barred by time.




14.    In the  second  suit,  the  trial  Court  framed nine   issues  and



       one additional issue.  The same (as contained in para 10 of



       the impugned judgment) are extracted below:



            "1.    Whether   the   plaintiff   proves   that   during

            the   suit   schedule   property   was   the   self

            acquired property of D. Yellappa?



            2.     Whether   the   plaintiff   proves   that   during

            the   lifetime   of   D.   Yellappa,   D.   Yellappa   has

            executed   a   registered   settlement   deed   dated

            18.7.1977 and registered Will dated 28.3.1977

            in   her   favour   pertaining   to   the   suit   schedule

            property as alleged in the plaint?



            3.     Whether   the   plaintiff   proves   that   the

            defendant   trespassed   into   the   suit   schedule

            property and proves further that she is entitled

            for possession as alleged?



            4.     Whether   the   plaintiff   proves   that   she   is

            entitled   for   Rs.1,440/-   and   also   for   mesne

            profits with costs thereon?



            5.     Whether   the   defendant   proves   that   the

            alleged Will is a got up one when Yellappa was

            not in a fit condition to execute in favour of the

            plaintiff?



            6.       Whether   the   defendant   proves   that   the

            suit   schedule   property   is   not   self   acquired

            property of D. Yellappa?


                                                                                  1





             7.      Whether   the   defendant   proves   that   he   is

             in possession  of the  property in his own right

             and not as a trespasser?



             7(a)    Whether   the   defendant   proves   that   the

             suit is not maintainable in law?



             8.      To what relief the parties are entitled?



             9.      Whether   the   plaintiff   is   entitled   for   the

                     declaration claimed?      





             Additional Issues :


             1.      Whether   the   defendant   proves   that   the

             suit is barred by time as he  had taken a plea

             in  O.S. No.151  of 1978  itself denying the  title

             of the plaintiff as alleged?"




15.    Respondent No.2 examined herself as PW-1 and produced 8



       documents marked Ex. P1 to  P8.   The appellant  examined



       himself   as   DW-1   and   produced   16   documents   marked  Ex.



       D1 to D16.




16.    The   trial   Court   answered   issue   Nos.   1   to   4,   7(a),   9   and



       additional issue No.1 in the negative and issue Nos. 6 and 7



       in   the   affirmative.     As   regards   issue   No.5,   the   trial   Court



       observed that  the  same does not survive for  consideration.


                                                                             1



In   conclusion,   the   trial   Court   dismissed   the   suit   by 



observing that respondent No.2 has failed to prove that the 



suit property was purchased in the name of the mother vide 



Sale Deed dated 1.2.1950 and she had transferred the same 



to   her   father.     The   trial   Court   also   held   that   respondent



No.2 has failed to prove that the suit property was the self-



acquired   property   of   her   father   and   he   had   the   right   to



settle the same in her favour.   The relevant portions of the



judgment   rendered   by   the   trial   Court   in   O.S.   No.   2062   of



1981 are extracted below:




"It   is   elicited   in   the   cross   examination   of   PW-1   that

the   suit   property   was   transferred   by   her   mother   to

her   father   but   she   does   not   know   by   what   mode   it

was transferred. She does not know when her mother

had purchased the property. There must be document

of   title   regarding   the   purchase   made   by   her   mother

and the plaintiff has denied ignorance about the mode

under   which   the   property   was   transferred   by   her

mother to her father. The contents of Ex.P.l show that

the   property   was   purchased   by   sale   deed   dated

1.2.1950. The said sale deed dated 1.2.1950. The said

sale deed has not been produced by the plaintiff and

therefore   the   plaintiff   has   failed   to   prove   that   it   is

belong to her mother and her mother has transferred

the property to her father.


On the other hand, the evidence of the defendant and

the   documentary   evidence   produced   by   him   show


                                                                            2



that   the   property   was   the   joint   family   property   as   it

was   purchased   out   of   the   amount   received   by

mortgaging   the   family   properties   to   Salem   Bank

under   Ex.D-7.  DW-l   has   stated   in   his   evidence   that

the suit schedule   property was purchased out of the

joint    family funds.    The property was purchased in

the     name     of his     mother during December 1943.

In   December       1943   joint   family   property   was

mortgaged to Salem Bank for purchasing the property

and he has     produced     Ex.D-7 the     mortgage deed

and   he   has   further   stated   that   the   said   amount

obtained   by   mortgaging   was   repaid   out       of   the

income derived from the suit house.       Nothing     has

been   elicited   in the cross-examination of   DW.1 to

disbelieve   his   evidence that the suit property     was

purchased out of the amount received by mortgaging

the   joint family properties.   Ex.  D-7 shows that   on

17.12.1943       D.   Yellappa   and   his   brother   Erappa

mortgaged   the   properties   for   borrowing   Rs.600/-   for

the purpose   of   purchasing a house at  Siddegowda

Lane, Lalbagh,       Doddamavalli Bangalore City in the

name   of the wife of D. Yellappa and the schedule to

the said mortgage deed reads as follows:


      I.     All    the    piece and parcel    of    land with

      the dwelling houses and outhouses, wells, trees

      and   drains   thereon   built   and   planted   and

      situated   together   with   all   rights   and   easements

      appertaining   thereto   now   and   hereafter   enjoyed

      and acquired bearing Municipal Door No. Old 8

      and   New   No.   13.   Chintala   Venkatappa   Lane,

      Lalbagh, Doddamavalli, Bangalore City, bounded

      on   the   North   by   Sarambigamma's   house   and

      Chinnayya's   backyard,   South   by   Municipal

      Road,   East  b y   Ratnakka   and   her  b r o t h e r

      Anjariappa's house and open space and West by

      land   with   public   water  t a p ,   measuring   East   to

      West  3 5   1 /2   feet and North to South  1 2 ' x  1 2 '

      and admeasurements  4 4 3   square feet. Chintala


                                                                                  2



       Venkatappa   Lane   is   now   called   Siddegowda

       Lane.


       II.     And   house   bearing   Municipal   Door   No.  2

       (Old)   New   No.  3 .   Aliraju   Munisumappa   Road,

       Thigalarpet,   Bangalore   City,   bounded   on   North

       b y      Jaragana-halli   Muniswamy's   house   and

       Yellamma   Temple,   South                   by        Lane   and

       Yengatappa   Gowda's   house   and   Rangamma's

       house,   East   by   Municipal   Road   and   Muni

       Siddappa's   house   and   West   by   Waste   land

       belonging   to   choultry,   measuring   East   to   West

       2 4 ' .      4 " ,      North   to   South          25 ' . 1 0 "   b y

       admeasurements 6 2 6   square feet and which are

       at present in possession of the said mortgagors,

       1. D. Yellappa and 2 .   Erappa.


It is clear from the above said evidence of   DW-1 and

Ex.   D-7   which  clearly      corroborates       his   evidence

that       the suit schedule property     was     purchased

out of the money obtained by    mortgaging    the joint

family   properties.     PW-1   has   feigned     ignorance   as

to     whether her father had any     other     source     of

income   except   salary   and   as   to   whether   the   family

had   any       other   joint   family   property   at   the   time   of

purchase   of the suit schedule property.       Therefore,

it   is   clear   that   plaintiff   has   failed   to   prove   that   the

suit schedule property was the self acquired property

of   her   father   and   that   her   father   had   right   to   settle

the   property       in   favour   of   the   plaintiff.       On       the

other hand,  the above said evidence on record clearly

shows   that   the suit property was the   joint   family

property   of D. Yellappa and the defendant.


I  have  already given     a     finding that  plaintiff     has

failed to prove     that     the     suit schedule     property

was  the  self   acquired  property      of   D.    Yellappa   and

defendant has proved that the suit schedule  property

was   the       joint     family       property.   Therefore,   the

burden is upon the plaintiff to   prove the   execution


                                                                                  2



       of       the Settlement Deed. PW-1 has stated     in     her

       cross-examination that she does   not know who were

       the witnesses that have signed Ex.    P.l as   they were

       acquaintance   of   her  father.      She       does   not       know

       who   was   the   scribe   of   the   Settlement   Deed.   It   is

       further   elicited   that   she   found   some       corrections   in

       the   Settlement   Deed   but   she   does       not   know   who

       wrote   it.     The   witnesses   have   not   signed   in       her

       presence    and    she does not know if    her    father

       had intimated     the defendant about the     Settlement

       Deed.   The   plaintiff   has   not   signed   the   Settlement

       Deed and the and the     witnesses who have attested

       the Settlement   Deed have not been examined by the

       plaintiff.   The   scribe who   wrote    the   Settlement

       Deed   has       also       not       been   examined       by   the

       plaintiff.     There   are       some       corrections   in   the

       Settlement Deed and PW-1 has stated that she   does

       not  know who had carried out the  said     corrections

       and  she  does   not   know   who   wrote   the   contents   of

       the Settlement Deed as she has feigned ignorance as

       to    who was the scribe of the Settlement Deed.  Even

       the     contents of the Settlement Deed have not been

       proved   and   the   evidence   on   record   clearly   proba-

       bilities   the   version   of   the   defendant   that   the       Set-

       tlement   Deed   has been concocted by   the  plaintiff.

       It is mentioned in the Settlement Deed Ex. P.l that the

       property   was   the   self   acquired   property   of   D.

       Yellappa.   I have already held that suit property was

       not the self-acquired property of D. Yellappa."





17.    The   appellant   filed   RFA   No.   189   of   1990   and   prayed   for



       setting   aside   the   decree   passed   in   O.S.     No.   4528/1980



       insofar as the trial Court upheld the claim of partition made



       by   respondent   No.1   qua   Item   No.5   of   Schedule   `B'


                                                                                2



       properties. Respondent No. 2 also filed RFA No. 476 of 1991



       and challenged the dismissal of the suit for declaration filed



       by her.




18.    Learned counsel for the appellant argued that the impugned



       judgment is liable to be set aside because the learned Single



       Judge of the High Court committed grave error by granting



       substantive   relief   to   respondent   No.1   despite   the   fact   that



       she had not filed appeal or cross-objections to question the



       findings recorded by the trial Court on various issues. She



       further argued that the learned Single Judge committed an



       error   by  passing   a   decree  in  favour   of   respondent   No.2  on



       the basis of Settlement Deed dated 18.7.1977 ignoring that



       she   had   failed   to   prove   that   the   suit   property   was   self-



       acquired property of the father and that in O.S. No. 4528 of



       1980   the   trial   Court   had   ruled   that   Item   No.5   of   `B'



       Schedule properties was joint family property.




19.    Learned   counsel   for   the   respondents   supported   the



       impugned judgment and argued that the High Court did not



       commit   any   error   by   granting   relief   to   respondent   Nos.   1


                                                                                    2



       and   2.     She   submitted   that   even   though   respondent   No.1



       had neither filed an appeal against the judgment and decree



       passed by the trial court in O.S. No. 4528 of 1980 nor she



       filed   cross-objections   in   RFA   No.   189   of   1990,   the   learned



       Single   Judge   had   rightly   invoked   the   principle   underlying



       Order 41 Rule 33 CPC for the purpose of doing full justice



       to   the   parties.     She   also   defended   the   decree   passed   in



       favour   of   respondent   No.2   and   argued   that   the   learned



       Single Judge did not commit any error by relying upon the



       recital in the settlement deed for the purpose of recording a



       finding   that   Item   No.5   of   Schedule   `B'   properties   was   self-



       acquired property of the deceased.




20.    Before adverting to the arguments of the learned counsel for



       the parties and the reasons recorded by the learned Single



       Judge, we consider it proper to take cognizance of some of



       the   additional   documents   filed   by   the   counsel   for   the



       respondents   which   include   copy   of   the   plaint   in   O.S.   No.



       286 of 1979 (renumbered as O.S. No.4528 of 1980), written



       statement   filed   in   that   suit,   the   issues   framed   by   the   trial


                                                                        2



Court,   depositions   of   respondent   No.1   and   the   appellant,



copy of Settlement Deed dated 18.7.1977, orders passed by



the   Karnataka   High   Court   in   Writ   Petition   Nos.   11401   of



1981, 20067 of 1991 and 20068 of 1991 and order passed



by   the   Land   Tribunal.     These   documents   show   that



respondent Nos. 1 to 3 had filed Writ Petition No. 11401 of



1981 for quashing order dated 9.6.1981 passed by the Land



Tribunal   whereby   occupancy   rights   were   granted   to   N.



Bhadraiah   in   respect   of   land   comprised   in   survey   Nos.



79/2,   108/2   and   205.     By   an   order   dated   28.5.1985,   the



Division Bench of the High Court allowed the writ petition,



quashed   the   order   of   the   Land   Tribunal   and   remitted   the



matter   for   fresh   disposal   of   the   application   filed   by   N.



Bhadraiah   after   giving   opportunity   to   the   parties.     After



remand, the Land Tribunal passed order dated 29.10.1988



and again accepted Bhadraiah's claim for occupancy rights.



The   second   order   of   the   Land   Tribunal   was   challenged   by



respondent   Nos.   1   to   3   in   Writ   Petition   Nos.   20067   and



20068 of 1991, which were allowed by the Division Bench of



the   High   Court   on   20.1.1994   and   the   matter   was   again


                                                                                 2



       remitted   to   the   Land   Tribunal   for   fresh   consideration.   Of



       course,   learned   counsel   for   the   parties   did   not   inform   the



       Court   whether   the   application   filed   by   N.   Bhadraiah   for



       grant of occupancy rights has been finally disposed of.




21.    The learned Single Judge first considered the issue raised in



       RFA   No.476   of   1991,   i.e.,   whether   Settlement   Deed   dated



       18.7.1977   executed   by   Shri   D.   Yellappa   was   valid.     He



       referred   to   a   portion   of   the   settlement   deed   in   which   the



       executant has mentioned that the house property is a self-



       acquired   property   purchased   by   him   on   01.02.1950   and



       proceeded to observe:




       "In   the   light   of   the   above   recital   in   Ex.   P.1   the

       settlement deed which is extracted above it is too

       late for the son to come and contend that it is not

       the   self   acquired   property   of   their   father.     The

       recital   coupled   with   the   evidence   available   on

       record   and   the   further   fact   that   Susheela   the

       plaintiff   has   been   enjoying   the   property

       exclusively   would   go   to   show   that   the   plea   that

       the property in question is ancestral property, set

       up   by   the   son,   is   not   acceptable   or   believable.

       This  aspect  of  the   case  has  not  been considered

       by the trial Court and as rightly found by the trial

       court   in   the   other   suit   and   I   have   also   no

       hesitation   to   hold   that,   the   suit   property   is   self

       acquired   property   of   their   father   and


                                                                                   2



       consequently,   the   settlement   deed   executed   by

       her father in valid and binding on the parties."





22.    While   recording   the   aforesaid   finding,   the   learned   Single



       Judge did not even refer to the detailed reasons recorded by



       the  trial  Court  for  holding  that   respondent  No.2  has  failed



       to prove that the suit property was self-acquired property of



       the executant because Sale Deed dated 01.02.1950 was not



       produced by her. The learned Single Judge also omitted to



       consider   the   statement   of   respondent   No.   2   that   the   suit



       property   was   purchased   by   her   father   in   the   name   of   the



       mother   and   she   had   transferred   the   same   in   the   name   of



       the   father,   which   enabled   him   to   execute   Will   dated



       28.3.1977 and Settlement Deed dated 18.7.1977.   Not only



       this, the learned Single Judge failed to take note of the fact



       that   the   recital   contained   in   the   settlement   deed   was



       contrary to the evidence of the parties which, as mentioned



       above,   was   to   the   effect   that   the   property   had   been



       purchased by the father in the name of the mother and the



       latter   had   transferred   it   to   the   father   after   some   time   and


                                                                                  2



       that   in   the   judgment   of   O.S.   No.   4528   of   1980   it   was



       categorically held that Item No. 5 of Schedule `B' properties



       was joint family property and respondent No.1 was entitled



       to   a   share   in  it.     We  are  surprised  that  the   learned  Single



       Judge   ignored  the   patently  contradictory  findings   recorded



       by the trial Court in the two suits on the issue of nature of



       Item  No.   5  of   Schedule  `B'  properties  and  decreed  the   suit



       filed   by   respondent   No.   2   by   assuming   that   she   had



       succeeded  in   proving   that  her   father   Shri   D.  Yellappa   was



       competent   to   execute   the   settlement   deed.   In   the   process,



       the learned Single Judge completely overlooked the detailed



       reasons   recorded   by   the   trial   Court   in   O.S.   No.   4528   of



       1980 after considering the mortgage deed Ex. P13 executed



       by Shri D. Yellappa and Erappa in favour of the Salem Bank



       Ltd.   for   the   purpose   of   taking   loan.   Therefore,   it   is   not



       possible to sustain the finding and conclusion  recorded by



       the learned Single Judge in RFA No.476 of 1991.




23.    We   shall   now   deal   with   the   appellant's   challenge   to   the



       decree   passed   in   favour   of   respondent   No.1.     It   is   not   in


                                                                               2



dispute   that   respondent   No.1   had   not   challenged   the



findings   recorded   by   the   trial   Court   on   various   issues



framed   by   it.     She   also   did   not   file   cross-objections   in   the



appeal preferred by the appellant. Though, it is possible to



take the view that even in the absence of an appeal having



been   preferred   by   respondent   No.1,   the   learned   Single



Judge could have exercised power under Order 41 Rule 33



CPC, as interpreted by this Court in Nirmala Bala Ghose v.



Balai   Chand   Ghose   (1965)   3   SCR   550,   Giani   Ram   and



others v. Ramjilal and others (1969) 3 SCR 944 and Banarsi



and   others   v.   Ram   Phal   (2003)   9   SCC   606,   after   having



carefully examined the entire record, we are convinced that



the   impugned   judgment   cannot   be   sustained   by   relying



upon   Order   41   Rule   33.     In   the   impugned   judgment,   the



learned   Single   Judge   has   included   Item   No.   3   of   Schedule



`B' properties in the pool of joint family property despite the



fact   that   the   same   had   been   purchased   by   D.   Yellappa   by



registered  sale   deed in   1961   in  the   name  of   the  appellant.



The   learned   Single   Judge   overturned   the   finding   on   this



issue   by   adverting   to   some   portions   of   the   averments


                                                                            3



contained   in   para   2   of   the   written   statement   filed   by   the



appellant,   while   ignoring   the   remaining   averments



contained in that  paragraph as also paragraph Nos. 4 and



6.  The  learned  Single   Judge   also  failed  to   take   note   of  the



fact   that   the   claim   made   by   N.   Bhadraiah   for   grant   of 



occupancy   rights   in   respect   of   agricultural   land   was 



pending before the Land Tribunal. It is not possible for us to



approve the approach adopted by the learned Single Judge



in dealing with the claim of respondent No. 1 for partition of



the   suit   properties   despite   the   fact   that   she   had   failed   to



prove the case set up in the plaint. A substantial portion of



the judgment of the trial Court as well as the learned Single



Judge   is   based   on   pure   conjectures.   The   learned   Single



Judge  appears  to  have  been unduly  influenced by the   fact



that   N.   Bhadraiah   was   the   father-in-law   of   the   appellant



and   both   seem   to   have   conspired   to   deprive   the   three



daughters   of   the   deceased   of   their   shares   in   the   suit



properties.


                                                                                   3



24.    We   may   have   remanded   the   matter   to   the   High   Court   for 



       fresh   disposal   of   the   appeals   filed   by   the   appellant   and 



       respondent   No.   2   but   keeping   in   view   the   fact   that   the  



       findings   recorded   in   the   two   suits   regarding   Item   No.   5   of  



       Schedule   `B'   properties   specified   in   the   plaint   of   O.S.   No. 



       4528   of   1980   are   contradictory   and   substantial   portion   of 



       the judgment of O.S. No. 4528 of 1980 is based on surmises  



       and conjectures, we feel that ends of justice would be met 



       by setting aside the  impugned judgment  and  remitting the 



       matter to the trial Court for fresh disposal of the suits filed 



       by respondent Nos. 1 and 2.




25.    In   the   result,   the   appeals   are   allowed.     The   impugned 



       judgment   is   set   aside.   The   judgments   of   the   trial   Court   in 



       O.S. Nos. 4528 of 1980 and 2062 of 1981 are also set aside  



       and   the   matter   is   remitted   to   the   trial   Court   for   fresh 



       disposal of the suits.  With a view to avoid the possibility of  



       conflicting   findings   regarding   Item   No.5   of   Schedule   `B' 



       properties   specified   in   the   plaint   of   O.S.   No.4528   of   1980, 



       we direct the trial Court to club the two suits and dispose of 


                                                                 3



    the same by one judgment.   The parties shall be free to file 



    applications for additional evidence and bring on record the 



    orders passed by the Land Tribunal and the High Court in  



    relation to Item Nos. 1 to 4 of Schedule `B' appended to the  



    plaint of O.S. No.4528 of 1980.





                                         .....................................J.

                                          [G.S. Singhvi]





                                         .....................................J.

                                         [Asok Kumar Ganguly]

New Delhi,

January 05, 2012.




No comments:

Post a Comment

Note: Only a member of this blog may post a comment.