IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 22ND DAY OF MARCH 2013 PRESENT THE HON'BLE MR. JUSTICE K. SREEDHAR RAO AND THE HON'BLE MR.JUSTICE V. SURI APPA RAO R.F.A. No. 3006/2008 BETWEEN: 1. Sri. Shivaji Basawant Muruche Age: Major, Occ: Agriculture, R/o 4th Cross, Azam Nagar, Tq. & Dist. Belgaum. 2. Sri. Appaji Basawant Maruche Age: Major, Occ: Agriculture, R/o Kallehol, Tq. & Dist. Belgaum. 3. Sri. Dongaru Basawant Maruche Age: Major, Occ: Agriculture, R/o Kallehol, Tq. & Dist. Belgaum. 4. Sri. Bharamanna Basawant Maruche, Age: Major, Occ: Agriculture, R/o Kallehol, Tq. & Dist. Belgaum. 5. Sri. Ganapati Yellappa Maruche, Age: Major, Occ: Agriculture, R/o Vithal Gali Kallehol, Tq. & Dist. Belgaum. 6. Sri. Bhavaku Yallappa Maruche, Age: Major, Occ: Agriculture, R/o Vithal Gali, Kallehol, 2 Tq. & Dist. Belgaum. ... APPELLANTS [By Sri. R.M. Kulkarni & Smt. Hemalekha K.S., Advs.) AND: 1. Smt. Anusuya W/o Rama Maruche, Age: 45 years, Occ: Agriculture, R/o Kallehol, Tq. & Dist. Belgaum. 2. Sri. Makarand S/o Rama Maruche, Age: Major, Occ: Agriculture, R/o Kallehol, Tq. & Dist. Belgaum. 3. Sri. Kalmeshwar S/o Rama Maruche, Age: Major, Occ: Agriculture, R/o Kallehol, Tq. & Dist. Belgaum. 4. Smt. Parwati Basawant Maruche Age: Major, Occ: Household work, R/o Kallehol, Tq. & Dist. Belgaum. 5. Vimal @ Indu Manohar Ginde Since deceased by his LRs 5(a) Mr. Manohar S/o Tamanna Ghinde, Age: 60 years, R/o Yellur, Tq. & Dist. Belgaum. 5(b) Vijaya W/o Jitendra Pujari, Age: 35 years, R/o Bhojagalli, Shahapur, Belgaum. 5(c) Vidya W/o Kiran Patil, Age: 32 years, Menasi Galli, Belgaum. 5(d) Smt. Seema W/o Satish Pujari, Age: 30 years, Occ: Housewife, Gondhali Galli, Belgaum. 3 5(e) Umesh S/o Manohar Ghinde, Age: 28 years, Occ: Centring Work, R/o Yellur, Belgaum. 6. Smt. Kamala Laxman Mandolkar Major, Occ: Household work, R/o Kallehol, Tq. & Dist. Belgaum. 7. Smt. Gangu Yallappa Maruche Age : Major, Occ: Household work, R/o Vithal Gali, Kallehol, Tq. & Dist. Belgaum. 8. Smt. Yallu Narayan Patil, Age: Major, Occ: Agriculture, R/o Hangarga, Tq. & Dist. Belgaum. 9. Smt. Laxmi Yallappa Maruche Age: Major, Occ: Agriculture, R/o Kallehol, Tq. & Dist. Belgaum. 10. Sri. Somanna Laxman Maruche Age : Major, Occ: Agriculture, R/o Kallehol, Tq. & Dist. Belgaum. 11. Smt. Umabai W/o Kallappa Kagutkar, Age: Major, Occ: Household work, R/o Sonali, Tq. & Dist. Belgaum. 12. Smt. Yashoda Maruti Kakatikar Age: Major, Occ: Household work, S/o Sundi, Chandgad, Dist. Kolhapur, State : Maharashtra. 13. Smt. Aavale Mahadev Menshe Age: Major, Occ: Household work, R/o Uchagaon, Belgaum, Tq. & Dist., Belgaum. 4 14. Smt. Lakshmi Waman Sambrekar, Age: Major, Occ: Household, R/o Kallehal, Tq. & Dist. Belgaum. RESPONDENTS. [By Sri. Ravi G. Sabhahit, Adv. For R-1 to R-3, Notice to R-12 and R-13 dispensed with, Service of notice to R-4, 6, 7, 9, 10, 14 are held sufficient) This Regular First Appeal is filed under Section 96 of the Code of Civil Procedure, prays that this Hon'ble Court be pleased to set aside the Decree dated 12.06.2008 in O.S. No.111/1995 on the file of 2nd Additional Civil Judge (Sr. Dvn.), Belgaum and suit be dismissed as prayed and this appeal be held with costs throughout. This Regular First Appeal having been heard and reserved for Judgment, this day V. SURI APPA RAO J., delivered the following: JUDGMENT
This appeal is filed challenging the Judgment and Decree dated 12th June 2008 passed in O.S. No. 111/1995 on the file of the II Additional Civil Judge (Sr.Dvn.), Belgaum, whereby the learned Civil Judge partly decreed the suit filed by the plaintiffs for partition of the schedule mentioned properties.5
2. Being aggrieved by the Judgment and Decree passed by the Civil Judge, the defendant Nos.1(b) to 1(e) and defendant Nos.2(a) to 2(e) have filed this appeal.
3. For the sake of convenience, the parties are referred to as they are arrayed in the suit.
4. The brief facts of the case are as under :
The propositus one Dongaru Devappa Maruche had three sons by name Laxman, Basawant and Yallappa. Laxman died in the year 1982 leaving behind the plaintiffs and defendant Nos. 3 to 6. After the death of Dongaru, the 2nd son Basawant was managing the affairs of the family as Laxman who was the eldest member of the family was not having worldly knowledge. Dongaru died leaving behind his three sons, who continued to enjoy his joint family properties. After the death of Laxman, the plaintiffs and defendant Nos.3 to 6 continued to enjoy the joint family properties. The 1st defendant - Basawant was managing the joint family properties as Manager of Hindu Joint Family. Even 6 during the life time of plaintiffs' father, plaintiffs requested for effecting partition in the joint family properties. But he was given some land and a residence without effecting partition. However, the family continued to be in joint and there was no partition in the joint family by metes and bounds. The properties mentioned in the Red colour in the map attached to the plaint were given to the plaintiffs for cultivation and enjoyment. The plaintiffs have also keeping household articles and agricultural implements in the said house and small residential house in Sy.No. 260/1 situated towards northern side. As the plaintiff was in service in the State of Maharashtra in various places, he used to visit to the native place during the vacations and holidays. His wife and children were cultivating the land given to him for enjoyment. In the year 1968, the 1st defendant started business in Belgaum under the name and style 'M/s. Basawant Dongaru Maruche & Brothers'. One Shivaji - son of the 1st defendant has took an area in the market yard and commenced the 7 said business from out of the joint family funds. The agricultural produce of the joint family were sold through the said joint family shop and the members of the joint family used to take profit as and when they need money. Though the members of the family started separate mess, but there was no partition. The 1st defendant had purchased various properties including the property of one Upendra Naik out of the joint family properties and from out of the joint family funds. He also purchased movable properties from out of the joint family funds. The plaintiff was not knowing the properties which were purchased by the defendant as he was residing elsewhere. Therefore, all the movable and immovable properties are in the custody of the 1st defendant and his son by name Shivaji. The defendant detained good properties for their cultivation and given inferior lands to the plaintiff for cultivation. Instead of that, the defendants are hurdle and obstacles in enjoyment of the said lands. They have destroyed crops grown in the lands and harassing the plaintiffs by one 8 way or the other. Prior to the filing of the suit, the defendants damaged the structure i.e. house situated in R.S. No.260/1 and removed the same in the absence of the plaintiffs. Thereafter, the plaintiffs demanded his appropriate share in the joint family properties but the defendants 1 to 3 denied the claim of plaintiffs and refused to effect partition. Therefore, the plaintiffs filed the suit for partition and separate possession of 12/23 share in the suit schedule properties by metes and bounds.
5. The 1st defendant resisted the suit filed by the plaintiffs by filing written statement contending that the suit schedule properties are not belonging to Hindu Undivided Family. It is also the contention of the 1st defendant that one week prior to 'Nagapanchami' festival in the year 1978, the elderly persons of the village effected partition between the parties by metes and bounds in respect of the ancestral properties. A portion of the land described by the plaintiffs in the sketch/map were allotted to exclusive share of the 9 plaintiffs, remaining portion of the lands were to be divided amongst the defendants No.1 and 2. The plaintiff being a Teacher and educated member of the family, the Memorandum of Partition was reduced to writing and it was kept with him. After effecting partition by metes and bounds, the respective portions allotted to the other members of the joint family were delivered to them. The defendant Nos.1 and 2 have been cultivating the lands allotted to their share and they have invested huge amount and improved the lands. After receiving the property allotted to his share, the plaintiff could not co-operate with the defendant Nos.1 and 2 for effecting necessary mutation entries in the revenue records for the partitioned lands on one or other pretext. He also refused to give copy of the Memorandum of Partition. It is further contended that 'A' schedule property were no more remained to be joint family properties. It is also contended that suit 'A' to 'C' schedule properties are not existing. The suit filed by the plaintiff is therefore, not maintainable. 10
6. During the pendency of the suit, plaintiff died and his wife and children were brought on record as Plaintiff Nos.1(a) to 1(c). The 1st defendant - Basawant Dongaru Maruche also died and defendant Nos.1(a) to 1(h) and defendant Nos.2(a) to 2(e) were brought on record. Defendant Nos.1 (b) to 1(e) filed a Memo adopting the written statement filed by the 1st defendant. The legal heirs of second defendant Parvathi Basawant Maruche remained exparte. The 3rd defendant has not filed any written statement.
7. On the basis of the above pleadings, the Trial Court framed the following Issues :
"1. Whether plaintiffs prove that deceased plaintiff had share to the extent of 12/23 in the suit schedule properties ?
2. Whether plaintiffs are entitle for partition and separate possession of 12/23rd share in the suit schedule properties ?11
3. Whether plaintiffs prove the existence of plaint 'B' and 'C' schedule properties as joint family properties ?
4. Whether plaintiffs are entitle for mesne profits as claimed ?
5. Whether defendant No.1 proves that on Naga Panchami festival day of the year 1978 there was partition in respect of ancestral properties between plaintiff on one side and defendant No.1 & 2 on the other side as contended ?
6. Whether suit is not properly valued as contended in para 12 of W.S. ?
7. What Decree or order ?"
8. PW-1 is examined on behalf of the plaintiffs and marked Ex.P1 to P26. DWs 1 and 2 are examined on behalf of the defendants and relied on Ex.D1 to D99.
9. Considering the oral and documentary evidence produced by both parties, the trial Court held that the plaintiffs are entitled for partition and separate possession of their share in the suit schedule properties 12 and accordingly, decreed the suit in part by holding that the plaintiffs together are entitled to 2/15th share in the suit schedule properties. The Trial Court denied the claim of the mesne profits on the ground that the plaintiffs are already in possession and enjoyment of some portion of the lands.
10. The Trial Court further observed at para 35 of the Judgment that the plaintiff is entitled to 2/15th share in the suit properties and the defendant Nos.4 to 6 are entitled for 1/45th share in the suit properties and the LRs of the deceased 1st defendant are entitled to 1/3rd share in the suit properties by metes and bounds.
11. Aggrieved by the judgment and decree passed by the Trial Court, the appellants who are the defendant Nos.1(b), 1(c), 1(d), 1(e), 2(b) and 2(c) in the suit filed this appeal.
12. For the sake of convenience, the parties are referred to as they are arrayed in the suit. 13
13. The learned Counsel for the appellants/ defendants submitted that the ancestral properties belonging to the original propositor was divided on 'Naga Panchami' day in the year 1978 and the share allotted to the plaintiff and defendant Nos.1 and 2. The said partition took place in the presence of the elders, from them DW-1 is one among the LR before whom the partition has been effected by metes and bounds. He further submitted that after partition, the parties have filed their defence separately as evidenced by Ex.D1 to D19 and Ex.D48 to D63. It is further submitted that the properties in Sy.No.260 R.S. No.93/2 and 93/3 are partitioned in the year 1953 and 1958 respectively and they are not joint family properties. The Trial Court was not justified in allotting the share in the said properties to the plaintiff.
14. Per contra, the learned counsel for the respondent/plaintiff submits that there was no partition in the joint family properties by metes and bounds and when the father of the plaintiff demanded for effecting 14 partition of the joint family properties he was given some lands for the purpose of cultivation and he was also given a residence for his enjoyment and the family continued to be in joint family. The properties purchased by defendant Nos.1 and 2 are from out of the joint family funds and the father of the plaintiff was not aware of the purchases made by D-1 and D-2 as he was serving outside the village. It is further submitted that the Trial Court considering all the aspects rightly decreed the suit for partition and there are no grounds to interfere with the judgment and decree passed by the Trial Court.
15. The genealogy filed along with the plaint clearly indicates the joint family members consists of Dongaru Devappa Maruche, who got three sons, namely Laxman, Basawant and Yallappa. Out of them Laxman died about 18 years back, his wife also died within a year of the death of her son leaving behind two sons namely., Rama (plaintiff) and Somanna (Defendant No.3). Thus, it is clear that plaintiff Rama filed suit for partition and 15 separate possession of his share against his uncles D-1 and D-2 and his brothers and sisters. During the pendency of the suit, he died, his legal representatives were brought on record. We have seen from the written statement filed by the defendants that the dispute is with regard to the B and C schedule properties. However, it is implidely admitted that A schedule properties are the only ancestral properties and C schedule properties are the self-acquired properties of D-1 and D-2. In the written statement filed by the 1st defendant, it has clearly mentioned that the property shown in red ink filed along with the Sketch by the plaintiff were given to the plaintiff in the earlier partition and he was in possession and enjoyment of the property. The said properties are item Nos.2 to 6 and 13 to 19. Therefore, it can safely be concluded that the plaint A schedule properties are the ancestral properties of the plaintiff and defendants.
16. The plaintiff's contention is that the 1st defendant started business in the name and style of Basawant 16 Dongaru Maruche & Brothers from out of the joint family funds after that only, her husband Laxman demanded for partition. Then there was proposal for temporary allotment of some properties in the name of the plaintiff without actual partition by metes and bounds. The defendant Nos.1 and 2 are contending that plaint B and C schedule properties are their self- acquired properties, it is for the defendant Nos.1 and 2 to prove that they started business and purchased the properties in Sy.No.260, RS No.93/2 and 93/2 have not purchased from out of the joint family funds.
17. In order to prove that all the schedule properties are the ancestral and joint family properties and that the plaintiffs are entitled for partition and separate possession, the plaintiffs have produced Ex.P1 to P26. Most of them clearly indicates that schedule properties are standing in the name of the deceased - plaintiff and defendant Nos.1 and 2. Ex.P22 to P26 relates to the house property, some of them are standing in the name of Laxman and Defendant Nos.1 and 2. Out of them the 17 house No.33 which is exclusively standing in the name of 1st defendant is not included in the schedule of the plaint and it is not the subject matter of the suit. The landed property mentioned in the schedule of the plaint are mostly standing jointly in the name of the deceased Laxman and defendant Nos.1 and 2. Though the defendants are contending that B and C schedule properties are not the joint family properties and the plaintiffs are not entitled for share, they have not explained the reasons for entering the joint names of the deceased and defendant Nos.1 to 3 in the RTC extracts. Moreover, the documents Ex.D1 to D21 - RTC extracts (Revenue Records) and the list of Assessment of the houses bearing Nos.6 and 26 clearly shows all of them stand in the joint names of deceased Laxman and defendant Nos.1 to 3. If at all those properties are not purchased from out of the joint family funds, the said properties would not have stand in the joint name of the plaintiffs and defendants. Though the defendants contend that some of the schedule properties are the 18 self-acquired properties their conduct in allotting some properties to plaintiff during his life time for his enjoyment pending final partition clearly shows that the defendants have taken the plea during trial that some of the properties are not joint family properties only after the death of Laxman - father of the plaintiff.
18. The 1st defendant who was examined as DW-1 has clearly admitted in the cross-examination that after the death of Dongaru Devappa Maruche he was managing the affairs and looking after the agricultural land situated at Kallehol and Budnur Villages and they have purchased some more landed properties from the income derived from agricultural land by selling yield in a shop opened by him in APMC Yard, Belgaum, which was also run by the deceased plaintiff for some time and by his son Shivaji for some time. He has clearly admitted in the evidence the source of income for purchasing some of the schedule mentioned properties from out of the agricultural income belonging to joint family.19
19. The essential feature of ancestral property is that the sons, grandsons and great-grandsons of the person who inherits it, acquire an interest, and the rights attached to such property at the moment of their birth. Under Mitakshara law, each son upon his birth, takes an interest equal to that of his father in ancestral property, whether it be movable or immovable, that the right which the son takes at his birth in the ancestral property is wholly independent of his father. After the amendment in the Hindu Succession Act, 2005, each daughter, since she is by virtue of the amendment, recognized as a coparcener along with the sons, also takes a similar interest. Therefore, the plaintiffs 1(a) to 1(c) are the legal heirs of Rama Laxman Maruche and defendant Nos.3 to 6 who are the sons and daughters of Laxman - son of propositor Dongaru Devappa Maruche are entitled to share in the ancestral properties.
20. Though the 1st defendant has contended that some of the properties are his self-acquired properties, 20 the other defendant Nos.2 and 3 have not challenged the claim of the plaintiffs for partition of the schedule properties on the ground that all the schedule properties are ancestral properties. Where a suit is brought by a Hindu for partition of the property alleging that it is ancestral and joint family properties and when the defendant contends that it is his self-acquired properties. The burden would lie upon a member who claims as it is his separate property acquired without the aid of the joint family.
21. In this case, the first defendant has clearly admitted in the written statement that item Nos.2 to 6 and 15 to 19 of the schedule properties were given to the plaintiff in the earlier partition and he was in possession and enjoyment of the same. Therefore, the 1st defendant cannot now contend that the above said properties are not the joint family properties.
22. The oral evidence adduced by the parties and also as per the Revenue Records and Form No.18 - 21 Assessment List produced by both parties clearly indicates that the properties are standing in the name of the deceased plaintiff and defendant Nos.1 to 3 and they are the joint family properties liable for partition. The Trial Court therefore, rightly decreed the suit filed by the plaintiff for partition and separate possession of the plaint schedule properties.
23. Hence, we see no grounds to interfere with the judgment and decree passed by the trial Court. Accordingly, this Regular First Appeal is dismissed.