Chandrakantaraj Urs, J.:— This appeal arises out of the Judgment and decree dated 27th day of September, 1977, passed in O.S No. 29/75 on the file of the Civil Judge, Gadag. The appellant before us is the 1st defendant. In the course of this Judgment, we will refer to the parties by the ranks assigned to them in the trial Court.
2. The suit was one for partition brought by the plaintiff, who is respondent-1 here. The suit plea was that she was entitled to ¼th share in the suit schedule properties belonging to her father and that the 1st defendant was her step-brother and defendants 2 and 3 were her step sisters, being the son and daughters of her deceased father through his Second wife. She sought partition by metes and bounds and separate possession.
3. The 1st defendant entered appearance and filed his written statement. While admitting the relationship of the defendants and the plaintiff, the 1st defendant resisted the claim on the ground that after the death of his father, on the advice of the elders, the plaintiff as well as defendants 2 and 3 agreed to execute an agreement releasing their right, title and interest in the suit schedule properties in consideration of the plaintiff and defendants 2 and 3 receiving moveables belonging to his deceased father in the form of gold ornaments, vessels, etc. It was averred by the 1st defendant that defendants 2 and 3 executed such deeds of relinquishment, while the plaintiff, on one pretext or the other, postponed the execution and that now fraudulently had brought the suit for partition. He further averred that he had spent Rs. 10,000/- for the improvement of the suit schedule agricultural lands and, therefore, in the event of the suit being decreed, the plaintiff must be made liable to contribute her share of the expenses. As regards the quantum of share to which, according to the 1st defendant, the plaintiff was entitled, and having regard to the arguments submitted for the 1st defendant before us we feel that it should be extracted as it was pleaded:
In the result, he prayed for dismissal of the suit.
4. On such pleadings, the Court below framed as many as 6 issues which are as follows:
1. Whether defendant No. 1 proves that plaintiff has relinquished her share in the suit properties by taking some moveables as contended by him in para 2 of his written statement?
2. Whether defendant No. 1 further proves that he has spent Rs. 10,000/- towards improvements of the suit properties, and if yes, is he entitled to be reimbursed?
3. Whether defendant No. 1 proves that the suit is barred by time?
4. Whether plaintiff is entitled to any share in the suit properties and if yes, to what share?
5. Whether plaintiff is entitled to the past three years mesne profits amounting to Rs. 6,000/-?
6. Whether plaintiff is entitled to the future mesne profits and if yes, at what rate?
5. As is apparent, the burden was entirely cast on defendant-1 and those issues were held against him. The suit came to be decreed, decreeing that the plaintiff was entitled to ¼th share and for partition by metes and bounds and for separate possession of the suit schedule properties. She was also awarded mesne profits in a sum of Rs. 3,000/- for the past 3 years and a preliminary decree was, therefore, directed to be drawn-up under Order XX of the C.P.C
6. While admitting this appeal, this Court, on 29-5-1978, did not grant stay of the Judgment and Decree under appeal. Paper Books were required to be filed early and the matter itself posted for hearing early. Due to the usual delay, to which the High Courts in this Country have become accustomed, the matter has not been disposed of. In view of the pendency of the appeal and the records being held up in this Court, no final decree appears to have been drawn up.
7. Before us Mr. R.U Goulay, learned Counsel for the appellant, has strenuously contended for setting aside the Judgment and Decree and remanding the matter to the Court below for raising an additional issue which goes to the very root of the matter. He contends that there should have been an issue as to the nature of the suit schedule properties, i.e, whether it was the ancestral property or the self-acquired property of the 1st defendant's father? Such an issue not having been framed, it is contrary to the pleadings and, therefore, the Judgment and Decree is liable to be set aside. He has further contended that having regard to Section 23 of the Hindu Succession Act, 1956, the plaintiff - a female heir was not entitled to seek partition of the dwelling house and, therefore, the Judgment and Decree is liable to be modified in that behalf.
8. We do not think, we should accede to these contentions. It is true that no issue was raised in regard to the nature of the property left behind by the deceased father of the plaintiff and defendants. That was so, because nobody pleaded that it was the ancestral property of a joint Hindu family. The Trial Court appears to have taken the substance of the written statement in which the 1st defendant pleaded that his sisters had agreed to give up their shares in the property of their deceased father having taken the moveables and the value corresponding to the value of their shares and that while his own sisters executed the deeds of release, the plaintiff failed to execute the deed of relinquishment though she had taken away gold ornaments and other moveables. He also pleaded only for reimbursement of the expenditure incurred by him for the improvement of the properties to the extent the plaintiff's share was liable. However, Mr. Goulay argued that having regard to the specific plea in para-5 of the written statement, which has been extracted earlier in the course of the Judgment, it was the duty of the Court to determine the nature of the properties as the 1st defendant had said that the plaintiff was entitled to only ⅛th share in the suit schedule properties thereby meaning that she was entitled to ¼th of the half share which his father had in the properties.
9. It is now well settled by a catena of decisions in this Country that while it is not necessary that the Court should insist precise pleadings, having regard to many factors such as poverty, ignorance, illiteracy, etc., it is not, however, conceded that without pleading, which is understandable by the Court as, well as by the opposite party, issues must be raised of framed and even without evidence supporting such unraised issues, the Court should give relief. In this context, it would be useful to draw the attention to the ruling of the Supreme Court in a recent case in the case of Ram Sarup Gupta (dead by L.Rs) v. Bishun Narain Inter College . 1987 2 SCC 555. The supreme Court has ruled as follows:
It is well settled that in the absence of pleading, evidence it any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the Party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in, words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of pleadings, instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal.”
(underlining is ours)
10. Mr. M. Rama Bhat, appearing for the 1st respondent-plaintiff, has argued that the Trial Court has correctly taken the substance of the pleadings and that the 1st defendant having stated in the written statement that his sisters were entitled to their share, but were given moveables in lieu of their shares, it is not open to the 1st defendant now to contend that his sisters are not entitled to a share or partition, much less a share less than what the plaintiff claimed. He also argued that by the same logic applied by the Counsel for the 1st defendant that by pleading for a decree in favour of the plaintiff for ⅛th share, the Court must presume it to be ancestral property of the deceased father, the Court should also presume that the plaintiff had pleaded that it was the self-acquired property for her deceased father, because she asked for ¼th share and, therefore, the Trial Court correctly held that Section 8 of the Hindu Succession Act was attracted and not Section 6.
11. We do not think, we should stretch the liberal approach in the matter of pleadings to such an extent as to draw inference on arithmetical figures indicated by the parties. It is now well settled, in so far as Hindus are concerned, that if they live jointly, the presumption is that they are joint in status on the well recognized principles of joint in food, worship and estate. But no such presumption may be raised that the Joint Hindu Family possesses the Joint property or any property at all. The normal rule is, when in a suit for partition, a party claims that any particular item of property is joint Family Property, or when in a suit on a mortgage, a party contends that the property mortgaged is Joint Family Property, the burden of proving that it is so rests oil the party asserting it.
12. Now we have been taken through the evidence of the 1st defendant in the Trial Court. He has spoken mostly about the stand taken by him in the written statement about the agreement arrived at amongst them subsequent to the death of his father in regard to the deeds of relinquishment which the sisters were supposed to give and which two of the sisters did give while the plaintiff evaded and finally refused. He has not spoken a word about the property being ancestral. Therefore, the argument that there is sufficient pleading which ought to have given rise to an issue in that behalf must be rejected. Therefore, the contention must fail.
13. The next contention advanced was that Section 23 of the Hindu Succession Act was a bar for the plaintiff to maintain a suit. Undoubtedly, in so far as it relates to a dwelling house, a female heir or heirs are not entitled to have the dwelling house divided if there are male heirs who have not claimed the division. This rule is available not only to the estate of a deceased co-parcener, but also to the estate of a female Hindu dying intestate. But the benefit of that rule is available to the male heirs only when they exist in plurality and not when there is a lone male heir. That is the view taken by this Court in the case of Kariyavva & Anr. v. Hanumantappa Mallurappa . 1984 1 KLJ 273..
14. For the reasons stated above, this appeal must fail and it is dismissed. But in the circumstances of the case, there will be no order as to costs.