MR K J MATHEW v. SMT K J ELSY

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leaving behind plaintiff and defendants as his legal heirs to succeed to the suit schedule properties of the late Thomas John and that same formed joint family properties of the plaintiff and defendants. The defendant Nos.2 and 3 are in possession and enjoyment of the suit schedule properties, receiving all benefits, depriving the plaintiff, defendant Nos.1 and 4 of their legitimate share therein. The plaintiff being the daughter of late Thomas John was entitle of equal share in the suit properties and hence sought for partition and possession of her 1/5th share in suit schedule properties.

3. The defendant No.2 filed a written statement denying the plaint averments and however admitting the relationship of the parties. It is admitted that the suit properties were purchased by late Thomas John under registered deeds of sale. It is contended that in terms of registered deed of settlement/partition dated 04.03.1987 suit schedule properties were settled by late Thomas John in his favour, as well as in favour of defendant No.3 on the

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one part, while defendant No.2 and mother Marry John on the other part. That in the said settlement properties described in the Schedule 'B' were jointly allotted to defendant No.2 and his mother Marry John. The said schedule 'B' comprised of 1.45 acres of land in Sy.No.175/1, 1.00 acres of land in Sy.No.172/2, 1.39 acres of land in Sy.No.173 and 174/1. The father Thomas John passed away on 06.09.1992 and their mother Marry John passed away in the year 1996. That upon the demise of their mother, defendant No.2 became the absolute owner of the entire suit Schedule 'B' property. It is also contended that the plaintiff has been paid Rs.10,000/- during the year 1994 itself and since the schedule properties were settled by late Thomas John, the plaintiff had no share, right, title and interest of the same. Hence, sought for dismissal of the suit.

4. Defendants No.3 also filed his written statement admitting the relationship and further contending that as per the deed of settlement dated 04.03.1987 the said late

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Thomas John had settled the properties in his favour and defendant No.3 on one part and defendant No.2 and his mother Marry John on the other part. That the properties described in Schedule 'A' to the deed of settlement were allotted to the share of said late Thomas John and defendant No.3 which comprised of land measuring 2.46 acres of land in Sy.No.175/1, 0.54 acres of land in Sy.No.173, 2.24 acres of land in Sy.No.174/1 of Guhya Village and no properties were given to the plaintiff and defendant No.1 being the daughters of Thomas John and Marry John. It is also contended that the said late Thomas John had executed a Will dated 08.07.1991 registered as document No.4 of 1991-92 in the Office of Sub-Registrar, Virajpet bequeathing 1/2 of his share in the properties described in Schedule 'A' to the settlement deed in favour of defendant No.3 with the direction to defendant No.3 to pay Rs.10,000/- to the plaintiff in view of her share and defendant No.3 had paid the same. It is also contended that by another Will dated 15.10.1991 the said late Thomas John cancelled the earlier Will dated 08.07.1991

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and bequeathed his 1/2 share in favour of defendant No.3 exclusively. As such the defendant No.3 has become absolute owner of the entire properties described in Schedule 'A' to the settlement deed. That the plaintiff had no share, right, title and interest in the suit schedule properties. Hence, sought for dismissal of the suit.

5. The Trial Court framed the issues and recorded evidence the plaintiff examined herself as Pw-1 and exhibited eight documents, four witnesses have been examined on behalf of defendants and exhibited seven documents marked as Ex.D1 to Ex.D7. The Trial Court on appreciation of evidence, dismissed the suit on the premise that the plaintiff has claimed equal share in terms of Section 6 of Hindu Succession (Amendment) Act, 2005 and that since there has been registered partition deed already executed on 04.03.1987, the suit was not maintainable and accordingly dismissed the suit.

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6. Being aggrieved by the same the plaintiff preferred regular appeal in R.A.No.02/2015 on the file of the First Appellate Court.

7. The First Appellate Court considering the grounds urged in the appeal framed the points for consideration and consequently decreed the suit in part declaring that the plaintiff is entitled for 1/10th share in the suit schedule properties. Being aggrieved by the same the defendant No.2 is before this Court in this appeal.

8. This Court by Order dated 12.12.2019 admitted the appeal for consideration of following substantial question of law.

"Whether the finding by the appellate Court on the question of limitation in favour of the respondent No.1 would be justified in the light of the undisputed facts of the case and the decision of the Hon'ble Supreme Court in the case of Jagatram Vs.

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Varinder Prakash reported in 2006 (4) SCC 482."

9. Sri.G.Balakrishna Shastry, learned counsel appearing for Sri.Basavaraj Godachi, learned counsel for the appellant reiterating the grounds urged in the memorandum of appeal submits that in terms of deed of partition dated 04.03.1987 defendant No.2 was allotted Schedule 'B' properties with the conditions of he clearing all the outstanding loan of the father late Thomas John. That the defendant No.2 had accordingly cleared all the loan and thereby become the absolute owner of the said property, which fact has not been taken into consideration by the First Appellate Court. He submits that upon receipt of Rs.10,000/-, the plaintiff had relinquished all her rights in respect of schedule properties, as such the plaintiff was not entitled for any share in the properties. The First Appellate Court has not properly appreciated the payment and receipt of Rs.10,000/- in lieu of share of the plaintiff in respect of schedule properties. The finding of First

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Appellate Court that 1/4th share of Thomas John and 1/4th share of Marry John devolved upon their children and therefore they are entitled for 1/4th share in schedule properties was erroneous. Hence, sought for allowing of the appeal.

10. In response, Sri. Manu Prabhakar Kulkarni, learned counsel for the respondent No.1 submitted that in the deed of partition dated 04.03.1987 apparently Schedule 'A' property was jointly allotted in the name of father Thomas John and defendants No.3 while property described as Schedule 'B' was jointly allotted in the name of mother Marry John and defendants No.2. He submits that even assuming that the said partition was indeed executed, defendants Nos.2 and 3 would be entitled for only 1/4th share each in the schedule properties and remaining share of the properties which was allotted in the name of Thomas John and Marry John are available for partition. He submits that the First Appellate Court has taken these aspects of the matter and has accordingly

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allotted 1/10th share in favour of the appellant warranting no interference.

11. Heard. Perused the records.

12. Though the parties are Christians by their faith in view of notification dated 23.07.1868 which is taken note of in the case of Alica @ Alice Vs Percival Pelix Pinto and Others reported in 1962 Mysore Law Journal 146

as well as in the case of Anthappa and others Vs Distinappa @ Subbanna reported in ILR 2006 Karnataka 1576, the native Christians of the then Province of Mysore were exempted from applicability of Indian Succession Act and were governed under the provisions of Hindu Law. Therefore the Trial Court and the First Appellate Court had proceeded to consider the case of plaintiff under the provisions of Indian Succession Act and there is no dispute with regard to this aspect of the matter. As rightly taken note of by the Trial Court as well as the First Appellate Court though, the plaintiff has claimed that the suit schedule properties are the ancestral

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properties, the documents on record would reveal that the suit schedule properties were purchased by late Thomas John under registered deed of sale dated 20.09.1956 consisting of land in Sy.No.174/1 measuring 3 acres 24 guntas, Sy.No.172/2 measuring 1 acre, Sy.No.175/1 measuring 5 acres 18 guntas and Sy.No.173 measuring

0.54 Acres all situated in Guhya Village. The Trial Court and the First Appellate Court taking note of these material evidences have came to the conclusion that the suit schedule properties were self acquired properties of said Thomas John. The Trial Court and the First Appellate have also taken into consideration of partition deed dated 04.03.1987, that was executed by Thomas John during his life time in terms of which aforesaid properties were jointly allotted in the names of said Thomas John, his wife Marry John and his sons namely defendant Nos.2 and 3 jointly. In that property described as schedule 'A' to the said partition deed have been jointly allotted in the names of Thomas John and defendant No.3 while schedule 'B' have been jointly allotted in the names of Marry John and

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defendant No.2. Though, defendant No.3 had tried to set- up execution of Will dated 08.07.1991 and 05.10.1991 by Thomas John, it appears that defendant No.3 has not stepped into the witness box to prove the genuineness or otherwise of the Will. Defendant No.2 has not set-up any contention with regard to the will in the written statement. Further the defendant No.2 is also not beneficiary under the said Will. The Trial Court dismissed the suit on a simple ground that there was a registered partition dated 04.03.1987 and in view of the Section 6 of the Hindu Succession (Amendment) Act, 2005, since there was a prior partition plaintiff was not entitled to the share in the property. Accordingly, dismissed the suit.

13. However, the First Appellate Court on further probe into the matter has held that though defendant Nos.2 and 3 were able to prove execution deed of partition dated 04.03.1987, they failed to prove that upon demise of Thomas John and Marry John in the year 1992 and 1996 respectively, they became the absolute owners to the

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entire extent of the land. The First Appellate Court has taken into consideration of the fact that in terms of aforesaid deed of partition, property described in the Schedule 'A' to the said deed of partition was allotted jointly allotted in the name of Thomas John and defendant No.3. While property described in the Schedule 'B' to the said deed of partition was allotted jointly allotted in the name of Marry John and defendant No.2. In other words 1/4th of the share each was allotted in the names of Thomas John, Marry John and defendant Nos.2 and 3 respectively.

14. That since the defendant Nos.2 and 3 have failed to establish the fact of they becoming the absolute owner of the entire extent of the land, the First Appellate Court has come to conclusion that 1/4th each of the share of the property which was allotted in name of Thomas John and Marry John (half of entire properties) was available for partition and thus the plaintiff being the daughter of the

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Thomas John and Marry John was entitled for 1/10th share of the suit schedule properties.

15. Since the defendants had also contended that the plaintiff upon receipt of Rs.10,000/- had relinquished her share, right, title, interest in the suit schedule properties and said factum of relinquishment not having been proved in the manner known to law, the First Appellate Court as rightly allotted 1/10th share in favour of plaintiff.

16. The contention of the appellant that the plaintiff aught to have filed the suit within twelve years from the date of demise of the parents would not apply to the facts of the present case as the portion of the property which was allotted to the share of the father and mother has remained undivided and no cogent evidence is led and proved with regard to plaintiff being excluded from the properties. In that view of the matter, substantial question of law raised has to be answered in the affirmative.

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17. The reasoning assigned by the First Appellate Court while answering point No.07 at paragraph Nos.28, 29 and 30 of the impugned judgment and Order cannot be found fault with.

18. There appears to be no irregularities or illegalities in the finding and conclusion arrived at by the First Appellate Court in the impugned judgment as noted above.

Accordingly, appeal is dismissed.

Sd/-

JUDGE

RL