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PARTITION SUITS = 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.

NON REPORTABLE

English: High Court of Karnataka

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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
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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.

 

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