SMT K A ANURADHA v. SRI K A ARUNA

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Plaintiff filed a suit for partition and separate possession against the defendants. It is the case of the plaintiff, that plaintiff is the son and defendant No.2 is the daughter of defendant No.1. The suit schedule properties are the ancestral properties of plaintiff and defendants. They are jointly cultivating the suit schedule properties. The suit schedule properties had fallen to the share of defendant No.1 in the family partition dated 10.04.1980. Since then, the plaintiff and defendants are in possession, cultivation and enjoyment of the same. It is contended that defendant No.1 is not taking care of the family members and also not taking any steps to make any development in the suit schedule properties. He was spending money for himself out of the earnings of the family properties. Hence the plaintiff demanded for partition and separate possession, but the defendant No.1 refused to effect partition. Hence cause of action arose for the plaintiff to file the suit for partition and separate possession.

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4. Defendant No.1 filed written statement admitting the relationship of plaintiff and defendants and admitted that the suit schedule properties are the ancestral properties of plaintiff and defendant No.1 and that they are in cultivation and enjoyment of the said properties. He also admitted that the plaintiff has got share in the suit schedule properties and admitted that he has acquired the suit properties under the family partition dated 10.04.1980, and he has no objection for grant of share to the plaintiff and it is also further contended that defendant No.1 gave 180 grams of gold to defendant No.2 out of love and affection and also gave money to her. He also contended that he has borrowed loan of Rs.4,00,000/- from Bank and Societies and invested it for the improvement of land and other family necessities. Hence he has no objection to allot the share to the plaintiff in suit properties by considering the bank loan of Rs.4,00,000/- and prayed to decree the suit by allotting share to the plaintiff in accordance with law.

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5. Though defendant No.2 appeared through counsel, did not chose to file written statement.

6. The Trial Court, on the basis of the above said pleadings, framed the following issues:

1) Whether plaintiff proves that suit schedule properties are ancestral properties of plaintiff and defendants?

2) Whether plaintiff proves that suit properties are in joint possession and enjoyment of the plaintiff and defendants?

3) Whether plaintiff proves that, they have constituted Hindu Joint family?

4) Whether the 1^st defendant proves that 2^nd defendant is not entitle for share in the joint family as contended in para-5 of the written statement?

5) Whether 1^st defendant proves that he has borrowed loan of Rs.4,00,000/- from societies and banks for improvement of the lands?

6) Whether plaintiff has entitled for the relief of 1/3^rd share in suit schedule properties?

7) What order?

7. In order to prove the case of the plaintiff, the plaintiff examined himself as PW-1 and got marked 5 documents as Exs.P1 to P5. In rebuttal, defendant No.1

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examined himself as DW-1 and got marked 6 documents as Exs.D1 to D6. The trial Court after assessing the oral and documentary evidence of the parties, answered issue Nos.1 to 3 and 6 in affirmative; issue Nos.4 and 5 in negative; issue No.7 as per the final order. The suit of the plaintiff was decreed. It is ordered that the plaintiff is entitled for 1/3^rdshare in the suit schedule properties and that defendants 1 and 2 are also entitled for 1/3^rdshare each in the suit schedule properties.

8. Defendant No.1 aggrieved by the judgment and decree passed in the above said suit, filed an appeal in R.A.No.68/2011. The First Appellate Court, after hearing the parties, has framed the following points for consideration:

1) Whether the finding given on issue Nos.4 and 5 is against to the admissions, evidence available and contrary to the law and therefore it is liable to be set aside?

2) What order?

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9. The First Appellate Court, on re-assessing the oral and documentary evidence, answered point No.1 in affirmative and point No.2 as per the final order and consequently allowed the appeal filed by defendant No.1 and set aside the finding given on issues No.4 and 5 in O.S.No.233/2008. It is ordered and declared that the plaintiff and defendants 1 & 2 are entitled for 1/3^rdshare each in all the suit schedule properties and also they are liable to take responsibility of discharging the loans to the extent of their shares. It is also held that 180 grams of gold shall be taken for consideration in the share to be allotted in favour of defendant No.2 and the same is to be deducted out of the share of defendant No.2 during the course of final decree proceedings. The remaining portion of the judgment is kept intact. Defendant No.2, aggrieved by the judgment and decree passed by the First Appellate Court, has filed this second appeal.

10. Heard learned counsel for defendant No.2.

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11. Learned counsel for defendant No.2 submits that the First Appellate Court committed an error in passing the impugned judgment wherein 180 grams of golden articles shall be taken for consideration in the share to be allotted in favour of defendant No.2 and same is to be deducted out of the share of defendant No.2 during the course of final decree proceedings. Hence, to the said extent, defendant No.2 has filed this appeal.

12. Perused the records and considered the submissions of learned counsel for defendant No.2.

13. It is not in dispute that defendant No.1 is the father of plaintiff and defendant No.2. It is also not in dispute that the suit schedule properties are acquired by defendant No.1 under partition dated 10.04.1980, and the suit schedule properties are the ancestral properties of plaintiff and defendants. The plaintiff and defendants are the members of Hindu undivided family. Further there is no partition effected between the plaintiff and defendants. Plaintiff in order to substantiate his case, examined

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himself as PW-1 and he has reiterated the plaint averments in his examination-in-chief and in order to prove that the suit schedule properties are the ancestral properties of plaintiff and defendants, plaintiff has produced documents. Ex.P1 is the genealogical tree; Ex.P2 is the mutation register; Ex.P3 to P5 are the RTC extracts.

14. In rebuttal, defendant No.1 was examined himself as DW-1 and he has reiterated the written statement averments in his examination-in-chief. He has admitted that the suit schedule properties are the ancestral properties of plaintiff and defendants and he had acquired the said properties under partition dated 10.04.1980 and he has also deposed that he has no objection to grant share to the plaintiff in accordance with law and he has also deposed that he had obtained loan from bank for the improvement of suit properties and in order to establish that he had obtained loan from Bank, he has produced documents. Ex.D1 is the loan details

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obtained from Canara Bank; Ex.D2 is the certificate of loan issued by Malur VSSN Co-operative Bank; Ex.D3 is the letter from Krishnaprasad Adike Mandi, Shimoga regarding loan due amount; Ex.D4 to D6 are the notices issued by Canara Bank which discloses that defendant No.1 is a defaulter and he has not repaid the loan amount.

15. From the perusal of the pleadings and evidence of parties, it is clear that the suit schedule properties are the ancestral properties of plaintiff and defendants. The trial Court was justified in decreeing the suit of the plaintiff and awarding 1/3^rdshare to the plaintiff and 1/3^rdshare each to defendants 1 and 2 in the suit schedule properties. Though defendant No.2 has entered appearance through counsel, did not chose to file written statement and also did not enter the witness box. Defendant No.2 aggrieved by the judgment and preliminary decree passed by the trial Court, has filed the appeal before the First Appellate Court. The First Appellate Court on re-appreciation of the material available on record, set aside the findings on

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issue Nos.4 and 5 wherein the trial Court had held that whatever properties given to defendant No.2 is her 'stridhana' property.

16. It is necessary to refer to Section 6 of the Hindu Succession Act, 1956, which reads as under:

"6. Devolution of interest in coparcenary property."(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,"

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenery property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenery property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:

Provided that nothing contained in this sub- section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20^th day of December, 2004.

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(2) xxx

(3) xxx

(4) xxx

(5) xxx (emphasis supplied)

17. The properties which were given to defendant No.2 in her marriage is the joint family properties of plaintiff and defendants. The said properties are amenable for partition. Section 6(1)(c) of the Hindu Succession Act, 1956, provides that the daughter of a coparcener shall be subject to the same liabilities in respect of the said coparcenery property. As observed above, the properties given to defendant No.2 in marriage is also a coparcenery property. Hence, the First Appellate Court was justified in setting aside the findings recorded by the trial Court on issue Nos.4 and 5. The First Appellate Court has also held that the plaintiff himself has admitted that the loan borrowed by his father is invested for the improvement of properties and for performance of marriage of defendant No.2 and has held the plaintiff and defendant No.2 liable

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to take the responsibility of clearing the loan equal to that of their respective shares. The First Appellate Court was justified in passing the impugned judgment which is just and proper and does not call for any interference.

18. In view of the above discussion, I do not find any substantial questions of law that arise for consideration in this appeal and any error in the impugned judgments and decrees. Accordingly, I proceed to pass the following:

O RDER

The appeal is dismissed. Consequently, the judgment dated 17.01.2013, passed in R.A.No.68/2011 by the II Addl. Sr. Civil Judge, Shimoga is confirmed. No order as to the costs.

SD/-

JUDGE

RD