V.K Surendra v. V.K Thimmaiah And Others

S.J Mukhopadhaya, J.— This appeal has been preferred by Defendant 3 against the judgment dated 20-1-2003 passed by the High Court of Karnataka in V.K Thimmaiah v. V.K Parvathi ILR 2003 KAR 1884, (2003) 4 Kant LJ 376. By the impugned judgment ILR 2003 KAR 1884, (2003) 4 Kant LJ 376 and decree the High Court allowed the appeal, set aside the judgment and decree of the trial court and decreed the suit declaring that Defendants 1, 2, 3 and 4 are entitled to 11/50th share each and the plaintiff, Defendants 5, 6, 7, 8 and 9 are entitled to 1/50th share each in the suit schedule properties.

2. The facts of the case are as follows: Respondent 4-plaintiff filed a suit for partition and separate possession of 1/10th share in the suit schedule properties by metes and bounds and also sought for an enquiry under Order 20 Rule 12 CPC to ascertain the mesne profits. She is the second daughter of late Shri Kunnaiah whereas Defendants 1, 2, 3 and 4, including the appellant herein are the sons and Defendants 5, 6, 7 and 8 are the daughters of late Shri Kunnaiah. Defendant 9 is the son of the first daughter of late Shri Kunnaiah. The plaintiff claimed that the suit schedule properties are self-acquired properties of late Shri Kunnaiah and, therefore, she is entitled to 1/10th share in the suit schedule properties.

3. Defendants 1, 2 and 4 filed a joint written statement claiming 1/5th share in the suit schedule properties, as according to them the suit schedule properties are the ancestral joint family properties. The appellant-Defendant 3 filed a separate written statement claiming the right over total 32 acres 55 cents of lands. According to Defendant 3, the suit schedule properties are the self-acquired properties of their father, late Shri Kunnaiah who bequeathed the same in his favour under a will dated 14-6-1991. As per the will he is entitled to a total extent of 32 acres 55 cents of lands in respect of which the plaintiff and other defendants have no right whatsoever. The rest of the defendants did not choose to file written statement.

4. The trial court framed the following issues: (V.K Thimmaiah case ILR 2003 KAR 1884, (2003) 4 Kant LJ 376, ILR pp. 1886-87, para 3)

“(1) Whether the suit schedule properties are the self-acquired properties of late Kunnaiah as contended by the plaintiff or are they joint family properties as contended by Defendants 1, 2 and 4?

(2) Whether the plaintiff is entitled to 1/10th share as contended by her or is she entitled to 1/50th share as contended by Defendants 1, 2 and 4?

(3) Whether the plaintiff is entitled to the reliefs prayed for?

(4) Whether Defendants 1, 2 and 4 are entitled to the reliefs prayed for in the counterclaim?

(5) What decree or order?”

On Issue 1 the trial court has held that the suit schedule properties are the self-acquired properties of late Shri Kunnaiah. On Issue 2 it was held that the will set up by Defendant 3 has been proved and, therefore, the plaintiff was not entitled to a share in the suit schedule properties. Issues 3 and 4 were accordingly answered in the negative.

5. Two additional issues were also framed by the trial court which are as follows: (V.K Thimmaiah case ILR 2003 KAR 1884, (2003) 4 Kant LJ 376, ILR p. 1887, para 3)

“(1) Whether the third defendant proves that late Kunnaiah executed a will dated 14-6-1991 under which the properties mentioned in Para 9 of his written statement have been bequeathed in his favour?

(2) Whether in the event of the court holding that the properties were not the self-acquisitions of late Kunnaiah the properties in the possession of the third defendant could be allotted to him, as prayed for by him in Para 2 of the additional written statement filed on 26-5-1997?”

The trial court answered additional Issue 1 in the affirmative and held that consequently additional Issue 2 was not necessary to be decided.

6. In appeal, the High Court considered the following three questions: (V.K Thimmaiah case ILR 2003 KAR 1884, (2003) 4 Kant LJ 376, ILR p. 1888, para 5)

“(i) Whether the suit schedule properties are the joint family properties of late Shri Kunnaiah and if so what share is to be allotted to each of the parties in the suit?

(ii) Whether Defendant 3 proves the execution of the will dated 14-6-1991 said to have been executed by late Shri Kunnaiah?

(iii) In the event if the will dated 14-6-1991 is proved to be valid in law what is the effect of the said will on the suit schedule properties in the event if the said properties are held to be joint family properties?”

Taking into consideration the evidence on record and the stand taken by the plaintiff and the defendants, the High Court held that there was no evidence on record to prove that the suit schedule properties are self-acquired properties of late Shri Kunnaiah and it further held that the suit schedule properties are joint family properties of late Shri Kunnaiah and his children.

7. So far as the will (Ext. D-17) relied on by Defendant 3 is concerned the High Court held that late Shri Kunnaiah who is the father of Defendants 1 to 4 had no right whatsoever to bequeath the suit schedule properties under a will or partition without the consent of all the coparceners. Therefore, Ext. D-17 is not binding on the other coparceners. In determining the shares to be allotted to each of the parties in the proceedings, the High Court held that the sons, Defendants 1, 2, 3 and 4, and late Shri Kunnaiah are entitled to 1/5th share of the suit schedule properties. Insofar as 1/5th share of late Shri Kunnaiah, sons and daughters were entitled to 1/50th share. Regarding Defendant 9 who is the son of the first daughter, the High Court held that since he is the only heir to succeed to the estate of the first daughter, he is also entitled to 1/50th share. The appeal was allowed with the aforesaid observation and the suit was decreed by the High Court declaring that Defendants 1, 2, 3 and 4 are entitled to 11/50th share each and the plaintiff, Defendants 5, 6, 7, 8 and 9 are entitled to 1/50th share each.

8. According to the appellant-Defendant 3, when late Shri Kunnaiah was a minor, his mother purchased certain properties including suit schedule properties by a sale deed dated 7-5-1918, Ext. D-1, in the joint name of herself (Ningamma, mother) and son, Kunnaiah. Later on Kunnaiah sold certain landed properties on 16-7-1942, properties situated at Kaikere Village on 19-3-1953 and some other properties on 4-11-1963. These sale deeds were not challenged by the plaintiff or the defendants. Since, the children of Kunnaiah were major, their names were got entered in the revenue records by him in the year 1975 with a view to give those properties to the children. To sell some of the properties, Kunnaiah got consent of his children as their names were appearing in the revenue records which were sold on 23-7-1976.

9. Further, according to the appellant, Kunnaiah wanted partition of the properties and effected division by executing a will on 20-1-1984 distributing the properties to all the children. The respondents were aware of such arrangement. However, the said will was cancelled by late Shri Kunnaiah on 7-1-1991 with the knowledge of all the children as Pranesh (Defendant 9), grandson through daughter Tayamma was not given property. Subsequently, a fresh will was executed by late Shri Kunnaiah on 14-6-1991 (Ext. D-17) whereby the suit schedule properties were settled in favour of his children, Thimmaiah, B.K Ramachandra, Ganesh, all the daughters and Pranesh, son of a predeceased daughter. On 9-7-1993 Kunnaiah died leaving behind him his 9 children i.e 4 sons and 5 daughters. Under the will, Ext. D-17 dated 14-6-1991, Kunnaih gave away all the properties owned by him and the children of Kunnaiah came to be in the possession of their respective portions given to each of them under the will.

10. The learned counsel for the appellant submitted that in the absence of any plea taken by the plaintiff or most of the defendants that the suit schedule properties were ancestral, the High Court was not justified to hold that the said properties are the joint family properties. Even assuming the said properties as joint family properties, it was open to the father to divide the properties under the will, Ext. D-17. The respondents were aware of the execution of the will (Ext. D-17) and also the earlier will which was cancelled but they kept quiet for a long time which will amount to giving their consent to the father to partition the properties, as the same is permissible under the Hindu Law.

11. In order to consider whether the suit schedule properties are joint family properties or self-acquired properties of late Shri Kunnaiah, it is necessary to notice the documentary as well as the oral evidence produced by the parties.

12. By the sale deed dated 7-5-1918 (Ext. D-1), the lands in Survey No. 211 measuring 5 acres 28 cents; Survey No. 208 measuring 19 acres 83 cents; Survey No. 209 measuring 4 acres 89 cents; Survey No. 209.A measuring 27 cents; Survey No. 210 measuring 9 acres 28 cents and Survey No. 205/2 measuring 5 acres 33 cents of Attur Village, Virajapet Taluk, South Kodagu District were purchased in the name of Kunnaiah (minor) along with her mother late Smt Ningamma. Kunnaiah was then admittedly a minor and was the only son of late Shri Thimmaiah. There is no evidence on record to show that Kunnaiah who was minor as on the date of purchase of the said lands, was possessed of any immovable property or properties yielding any income so as to purchase the lands under Ext. D-1. The appellant-Defendant 3 has also failed to adduce any evidence to show that late Smt Ningamma, mother of Kunnaiah had any income from movable or immovable properties so as to purchase the abovesaid properties.

13. In his evidence, DW 1 deposed that their grandfather Thimmaiah owned 1000 batti bhoomi and 24 acres i.e about 54 acres of land including a house in Hoskote. Their grandmother Ningamma was only a housewife and she did not own any property in her name; out of the income derived from the lands situated at Hoskote the suit schedule lands were purchased in the name of his father late Kunnaiah. Aforesaid statement made by DW 1 in the examination-in-chief was not questioned by any of the parties during the cross-examination.

14. DW 1 in his statement further stated that out of the income of lands aforesaid, the lands in Attur were purchased in the year 1918. After the death of Thimmaiah, Smt Ningamma, mother of Kunnaiah was managing the affairs of the family as there was no other male member living with her, except Kunnaiah who was minor.

15. It is true that late Kunnaiah had sold some properties at Hoskote under the registered sale deed dated 16-7-1942 under Ext. D-7. The reason for sale of the said lands under Ext. D-7 was mentioned, that is, to discharge the loan borrowed by him for the purpose of purchasing the lands at Kaikere Village and to improve the lands. It is not the case of the appellant that Kunnaiah had owned land in his own name in Hoskote. The properties at Hoskote were belonging to his grandfather Thimmaiah. In this background the High Court has rightly held that the properties purchased by Kunnaiah at Kaikere Village out of the money received by him from the sale of the ancestral lands under Ext. D-7, are the ancestral properties.

16. Lands at Attur Village measuring 1 acre 6 guntas in Survey No. 208/3 and 4 acres 77 cents in Survey No. 210 were sold by late Kunnaiah under Ext. D-3. The recital in Ext. D-3 discloses that the above lands are the ancestral properties of late Kunnaiah. For that reason before selling the said land under Ext. D-3, consent of all the sons of Kunnaiah was taken. The consent certificate was produced and is marked as Ext. D-4. Through the aforesaid evidence the High Court rightly came to the conclusion that the recitals in Ext. D-3 and consent certificate, Ext. D-4 are binding on the persons who were parties in the said documents and, therefore, when Kunnaiah himself admitted in Ext. D-3 that the lands sold under Ext. D-3, which were the lands purchased under Ext. D-1, are the ancestral properties, the High Court rightly held that it was not open for Defendant 3 to say that the said lands are self-acquired properties of late Kunnaiah.

17. Similarly, the land measuring 5 acres 33 cents of Survey No. 205/2 was sold by Kunnaiah to a person under Ext. D-11 on 19-3-1953. Kunnaiah had also sold the lands measuring 3 acres in Survey No. 208/2 and 4 acres in Survey No. 208/1 of Attur Village to Orange Growers Cooperative Society under the sale deed dated 4-11-1963, Ext. D-6. In these sale deeds though the properties are described as self-acquired properties, it is apparent that both the lands were purchased under Ext. D-1. The High Court has noticed that Kunnaiah has also himself described the lands in Attur Village as ancestral properties purchased under Ext. D-1. Therefore, the sale deed dated 23-7-1976, Ext. D-3 and the sale deed dated 4-11-1963, Ext. D-6 cannot be said to be self-acquired properties of Kunnaiah merely because they have been described as self-acquired properties in those evidence.

18. We have noticed that though the appellant examined himself as DW 4 he failed to produce either documentary or oral evidence to show that the lands at Items 2, 3 and 5, situated at Village Kaikere are the self-acquired properties of Kunnaiah. In absence of any division in the family of Kunnaiah and his sons, we hold that the family of Kunnaiah continued to be the joint family. If a coparcener of a joint family claims that the properties are his self-acquired properties, the burden is on him to prove that the same are the self-acquired properties. In that background the High Court has rightly held that Kunnaiah had no right to change the character of the joint family properties by transferring the same either under a will or a gift to any party without the consent of the other coparceners.

19. In his deposition DW 1 stated that in the year 1976 when Kunnaiah was alive, the names of all his sons were entered in the jamabandi in Column 6. He further stated that since their names were in the jamabandi their consent was asked for the purpose of advancement of loan. DW 2, Krishna, a resident of Hoskote deposed in his evidence that the suit schedule properties are the ancestral properties of Kunnaiah. DW 3, Raja, resident of Bilagunda in his evidence has deposed that his father and Kunnaiah's father belong to the same family. He has further stated that the father of Kunnaiah was possessed of about 30 acres of wetland and 24 acres of garden land in Hoskote. He further stated that Kunnaiah had purchased the lands in Kaikere Village after the sale of the lands at Hoskote to the grandfather of DW 2. He has further stated that when the lands were purchased under Ext. D-1, Kunnaiah was a minor and his grandmother purchased those properties as a guardian of minor Kunnaiah.

20. DW 4 stated that he, his father and brothers are all the members of the joint family. He also admitted that the consent letter given by him along with his brothers under Ext. D-4 was for the purpose of sale of lands under Ext. D-3. He further admitted that the lands sold under Ext. D-5 are the lands purchased under Ext. D-1 and these are the joint family properties. In his evidence, Defendant 3 (DW 4) deposed that his father had sold about 25 acres of land and if the abovesaid lands were not sold he and his brothers were entitled for a share in the said properties. From the aforesaid statement, it is clear that even Defendant 3 (DW 4) admits that the lands sold under Ext. D-5 are the joint family properties and if lands were not sold he and his brothers would have been entitled to a share.

21. In the light of discussions as made above, we hold that those suit schedule properties are joint family properties of Kunnaiah along with 4 sons and the coparceners have equal shares in the properties. Accordingly, 4 sons and Kunnaiah are entitled to 1/5th share of the total properties.

22. So far as 1/5th share of Kunnaiah is concerned, apart from 4 sons i.e Defendants 1, 2, 3 and 4, the daughters of Kunnaiah are entitled to 1/50th share each whereas the sons i.e Defendants 1, 2, 3 and 4 are entitled to 11/50th share each, inclusive of their respective shares. Defendant 9 who is the son of the first daughter having succeeded the estate of his mother, a coparcener is also entitled to 1/50th share. In this background no interference with the impugned judgment ILR 2003 KAR 1884, (2003) 4 Kant LJ 376 is called for. In absence of any merit the appeal is dismissed. The parties shall bear their respective costs.