SooperKanoon Citation | sooperkanoon.com/843890 |
Subject | Property;Family |
Court | Karnataka High Court |
Decided On | Jul-01-2009 |
Case Number | Regular First Appeal No. 397 of 1993 |
Judge | Anand Byrareddy, J. |
Acts | Limitation Act, 1963 - Schedule - Articles 65 and 110; Hindu Succession Act, 1956 |
Appellant | Sri H.L. Srinivasa Gupta S/O. M. Lakshmipathi Setty, ;sri. H.L. Ananthapadmanabha Gupta and His Lega |
Respondent | Sri H.L. Sridhara Gupta S/O. M. Lakshmipathi Setty Merchants, ;sri. H.L. Nagaraj S/O M. Lakshmipathi |
Appellant Advocate | R. Gopala and ;B.G. Sridharan, Advs. |
Respondent Advocate | Ramesh P. Kulkarni, Adv. for Respondent No. 1 and ;R. Chandranna, Adv. for Respondent No. 2 |
Disposition | Appeal allowed |
Cases Referred | Indira v. Arumugam and Anr. |
Anand Byrareddy, J.
1. Heard the counsel for the parties.
2. The parties are referred to by their rank before the trial Court for the sake of convenience.
3. The appeal is by the plaintiffs. The plaintiffs No. 1 and 2 and the defendants No. 1, 2 and 3 are all sons of late Lakshmipathi Setty. It was contended by the plaintiffs in the suit that the parties are members of a Hindu Co-parcenery. That though they are living separately there is no severance of status between them and that they remain undivided. It is contended that the grandfather of the parties had a petty business at Hiriyur which was inherited by their lather and other properties acquired from out of income from that property. The business was styled 'Lakshmipathy Setty & Sons' and run as a partnership firm by the Father along with the plaintiffs, after they came of age.
In 1957 the business was shifted to another location and run as 'Sri Srinivasa Stores' and the business is said to have flourished with the active assistance of the first plaintiff who was the eldest son. The several items of property under schedule A to the plaint are said to have been acquired out of the funds of the family.
Defendants 1 and 2, it is contended were pursuing higher studies and did not play an active role in the family businesses.
In the year 1967 a new firm in the name of 'Sri Ganesha Trading Company' was commenced. The first and second defendant and two strangers to the family were said to be partners in that firm. After about 10 months differences arose and the firm stood re-constituted with the strangers retiring and the first plaintiff being inducted as a partner. It is contended that the plaintiff was actively managing these businesses and the defendants were dormant partners. The capital for the business had always been drawn from the family funds. In 1970 a brother of the plaintiff, Jagannath, died and Defendants, 1&2 got themselves released from the firm Ganesha Trading Company on receiving their Share Capital. No funds were given to the first Plaintiff on a pro-rata partition of the business.
All movable property described under Schedule 'B' & 'C to the plaint were also acquired from the joint family funds.
The first plaintiff is said to have been expelled from the joint family residence in the year 1970 and was denied his share in the family properties. It is staled that inspite of it - he continued to contribute to the family businesses till 1977. in .1977 the Second plaintiff was also expelled from the family home and denied his share of the property.
It is alleged that there was a settlement at the instance of one J.R. Ashwathnarayana who had recorded the terms of settlement while ignoring the very existence of plaintiff No. 1 -however, that settlement was not acted upon. Later the father of the plaintiffs is said to have effected a partition in the year 1979 which was duly registered. The plaintiffs were not parties to the same, nor are mentioned therein. It was alleged that the Second defendant had married his sister's daughter and was thus able to wield much influence over his father and thus kept him along with him till his death, in 1986. And during this period has even persuaded their father to execute a will bequeathing various properties to the wife of defendant No. 2 in order to deprive the plaintiffs of their legitimate share.
On a persistent demand by the plaintiffs for partition and separate possession the defendants having resiled and denied their share. The plaintiffs were before the Court, seeking partition and separate possession of the suit properties. The second defendant contested the suit. The relationship between the parlies was admitted. However it was denied that their father had inherited any business from their grandfather. Except item No. 1 of 'A' Schedule properly which was gifted to their lather in the year 1915 all other items were said to be the self-acquired property of their father.
Their lather had inducted them on their coming of age as nominal partners in his businesses. It is denied (hat the first plaintiff had actively participated in the said businesses from 1957. It is however, admitted that the defendants 1 & 2 had retired from Ganesha Trading Company in 1970 and it was made the exclusive business of the first plaintiff and that he was expelled from the family. The family was hence no longer joint insular as the First Plaintiff was concerned. It is contended that there was no further participation of the first plaintiff in the family businesses.
It is admitted that there was a registered partition deed as between defendant No. 2 and their lather in the year 1979, which was pursuant to an earlier partition of the year 1976. It is denied that there was fraud involved or that defendant No. 2 wielded undue influence over their father.
On the other hand it is stated that with the first plaintiff expressing his intention to separate (rum the family he was given the business Ganesha Trading Company as his share apart from haul in survey No. 77 measuring 2 acres at Maskal village. He had thus separated from the family. He has been doing business independently and has acquired other properties.
It is asserted that it is evident from the submitted circumstances that there is severance of status and that the suit is not maintainable. On the above pleadings, the trial court having framed nine issues - answered the material issues against the plaintiffs and held that the suit was barred by limitation and dismissed the same. It is this which is under challenge.
4. The Counsel for the appellant contends that the mere fact that the members of the family started to live separately from the year 1970, by itself did not lead to the presumption or establish that there was a severances in the status of the joint family. As the business started by the grand father of the parties and inherited by their father formed the nucleus for further acquisition of properties and commencement of other bussinesses-the co-parcenery continued as a joint family. It is contended that the trial court has failed to note that all the suit properties were acquired prior to 1970 and out of earnings from co-parcenery property and as there is no partition deed, involving all the members of the co-parcenery, subsequent to the said dale, the mere fact that the. members of the family lived separately does not create a severance in status.
It is contended that though plaintiff No. ! had left the house of the family in the year 1970. The members of the co-parcenery would continue as tenants-in-common vis-a-vis plaintiff No. 1 and unless the other co-parceners held the family properties adversely against appellant no 1, there is no ouster from the joint family properties. There is no pleading as regards adverse possession by the defendants or ouster of the first plaintiff. In the absence of a conscious and deliberate act amounting to a denial of the right of the plaintiffs and in the absence of a notice of such exclusion -limitation would not run against the plaintiff and hence the finding of the trial court is wrong.
It is further contended that possession of one co-owner or co-sharer is possession on behalf of others: And mere possession by one or the other for any length of lime, - non participation in rent or profits, mutation in the name of other co-sharers, would not amount to ouster or denial of tide.
It is contended that there was never a partition by meles and bounds and as such the suit ought to have been decreed.
It is contended that the trial court has failed to address the rights of the plaintiff by succession to the property of his parents, even if it could be assumed that there was severance of status as early as 1970 in the joint family.
5. On the other band, the counsel for the respondents would submit that the very plaint averments are self-defeating. It is the plaintiffs own case that be was expelled from the house of the family in the year 1970 and that he was denied a share. It was also his contention that he held Ganesha Trading Company exclusively after defendants 1 and 2 retired from the same. It is also not denied that the Maskal properly was purchased in 1970 in the first plaintiff's name by their lather. The further partition as between their lather and other brothers of the plaintiff in 1976 followed by a registered partition deed in the year 1979 is consistent with the apparent intention of the parties.
The contention that the defendants ought to have pleaded ouster and set up a claim of adverse possession in order that limitation could be pressed into service is therefore untenable as it is the plaintiff's positive case - he was expelled from the family and denied his share in the year 1970 itself. Hence it is prayed that the appeal be dismissed.
6. In the above background, it is to be noted at the outset that the appeal was preferred by both the plaintiffs. However, the Counsel appearing for the appellants having retired, the first appellant alone has engaged counsel to prosecute the appeal and the said counsel has no instructions from the second appellant.
Having regard to the pleadings of the parties and the admitted circumstances, in addressing the question whether the trial court was justified in dismissing the suit us barred by limitation, does not detain this Court for long. It is the plaint averment that plaintiff No. 1 was expelled from the house of the joint family and that he was denied a share to which he was entitled while further admitting that M/s Ganesh Trading Company, a firm which was tun by the plaintiff defendants 1 and 2 and two other strangers had become the exclusive property of plaintiff No. 1 in addition to 2 acres of land at Mascal Village which was also his exclusive property and in the absence of any further evidence, as to his participation in the family business, would demonstrate that there was severance of status vis-a-vis plaintiff No. 1 from the joint family in the year 1970 itself. Hence the suit having been filed, seeking partition and separate possession in the year 1986 was clearly barred by limitation, as it would be squarely covered under Article 110 of the Schedule to the Limitation Act, 1963. The contention that the case would be one covered under Article 65 of the Schedule to the Act is not tenable. When it is an admitted circumstance on the part of the plaintiff, that he has been excluded from the joint family and was denied a share as early as in 1970. The plea that there was no claim of adverse possession by the other co-parceners and that there was no positive action of ouster is not tenable and cannot be pressed into service.
7. The several authorities cited by the Counsel for the appellant would not apply as they are all cases, which turn on the facts therein and arc not identical of the facts on hand.
The counsel for the appellant has relied on a large number of authorities in support his contentions:
a) Velayudhan Copula Panickan v. Velumpi Kunji : AIR1958Ker178
- Radhoba Baloba Vagh and Ors. v. Aburao Bhagwantrao Shirole and Ors. AIR 1929 P.C. 231
- Govindasami Chettiyar v. Kothandapanbi Chettiar and Anr. AIR 1927 Mad 111
- Malhari Vaman Kramavant and Ors. v. Vinayak Ravji Kramavant and Ors. AIR 1929 Bom 323
- Gouranga Sahu and Ors. v. Bhaga Sahu and Ors. : AIR1976Ori43
Reliance is placed on (be above authorities in support of the contention that it is neither the case of first plaintiff nor the case of second defendant nor any evidence is adduced to show that the plaintiff No. 1 is excluded from the suit schedule properties. There is no plea of adverse possession or ouster or exclusion of first plaintiff from joint family properties in written statement much less any evidence in terms of Article 110 to hold that the suit is barred by lime. The totality of the pleadings in plaint and evidence of PW-1, the first plaintiff only shows that he was expelled from joint family residence and that there was some panchayathis and that respondents promised to give share but did not give and hence he was compelled to file the suit, Exclusion contemplated under Article 110 is a conscious and deliberate act on the part of other side amounting to denial of right of plaintiff and that such exclusion becomes known to plaintiff.
As is evident from the pleadings and the admitted circumstances, it is plain that the appellant had been excluded from the family home and according to him, denied of his share - hence limitation would run iron! the year 1970 and the suit is barred under Article 110 of the Limitation Act, 1963.
- P. Lakshmi Reddy v. L. Lakshmi Reddy : [1957]1SCR195
- Syed Shah Gulam Ghause Mohiuddin and Ors. v. Syed Shah Ahmad Mohiuddin : [1971]3SCR734
- Karbalai Begum v. Mohd. Sayeed and Anr. : [1981]1SCR863
- Sadasivam v. K. Doraisamy : [1996]2SCR336
- Darshan Singh and Ors. v. Gujjar Singh and Ors. : [2002]1SCR91
In support of the contention that possession of one co-owner or co-sharer is possession of other co-owner or co-sharer and mere possession by other for any length of time, non-participation in rent and profits, mutation in the name of other sharers would not amount to ouster or denial of title of the other, that is appellant No. 1 in this case and hence, the appellant's right is not extinguished.
This proposition is stated out of context. The above proposition would apply when there is no expulsion of a coparcener to his knowledge.
c) Mohammadbhai Kasambhai Sheikh and Ors. v. Ahdulla Kasambhai Sheikh (2004) 13 SCC 385
- M.N. Aryamurthi and Anr. v. M.L. Subharaya Setty and Ors. : AIR1972SC1279
- Siddappa Nagappa Divate v. Vishvanathsa Ramchandrasa Kabadi : AIR1943Bom419
- Smt. Lajwant Kaur and Anr. v. Abnashi Singh and Ors.
- Kumarappa Chettiar and Ors. v. Saminatha Chettiar and Ors. ILR 42 Madras Series 431
Relying on the said authorities, it is contended that even otherwise in view of the contention raised by the second defendant and the findings recorded by trial Court that there was severance in status of first plaintiff in 1970, the first plaintiff becomes tenants in common and consequently Article 110 is not applicable but Article 65 is only applicable in which event also unless the defendant plead and prove adverse possession the first plaintiff cannot be denied the share and the trial court ought to have considered the same and granted decree for partition on the plea of second defendant himself and failure to consider the same rendered the judgment unsustainable.
This proposition is also erroneously pressed into service. A distinction ought to be made of members of a co-parcenery enjoying properly jointly and that of co-owners in respect of whom alone the concept of adverse possession may be relevant. Hence, the contention that Article 65 ought to apply is not tenable.
d) Firm Sriniwas Ram Kumar v. Mahahir Prasad and Ors. : [1951]2SCR277 :
In support of the contention that decree can be granted on the case of defendant even though not pleaded by plaintiff.
Though the proposition is accepted, it cannot be said that it can be applied in the present case on hand.
e) MD. Mohamened Ali v. Jagadish Kalita and Ors. : (2004)1SCC271
- Indira v. Arumugam and Anr. : AIR1999SC1549
In support of the contention that no partition of suit schedule properties has taken place by metes and bounds and as such the suit ought to have been decreed in the absence of plea and proof of ouster and adverse possession and in such cases Article 65 apply.
This is an erroneous proposition for reasons already stated.
8. Under Article 110 of the Schedule to the Limitation Act, 1963, a co-parcener ought to have been excluded from the enjoyment of the joint family properly to his knowledge. This being an admitted circumstance, it cannot be said that there was no exclusion of the plaintiff from the joint family property.
There is no warrant to consider whether the case would be covered under the general Article 65 of the Limitation Act, 1963. A distinction must be made between adverse possession of a co-owner of an estate claiming to hold it in severally and that of a member of a joint family. It is a settled principle that mere lapse of time or uninterrupted sole possession, participation in rent and profits, change in mutation of the name, would all not deprive a member of his rights in the joint family property as possession of one co-parcener is deemed in law to be possession on behalf of all other coparceners. However, in the case on band, it being the plaintiff's own assertion thai he was excluded from and denied a share in the joint family properly, the suit is clearly barred by limitation. Hence, there is no infirmity in the judgment of the trial court in having dismissed the suit of the plaintiff as being barred by limitation.
Insolar as the second plaintiff is concerned, the trial court having found that he had obtained his share in the year 1976 itself, the said finding stands affirmed.
However, before parting with the case, it is to be seen that both the parents of the plaintiff and the defendants, have died during the pendency of the proceedings and that they have received properly in the course of partition us between the defendants and the late lather of the plaintiffs.
By virtue of the provisions of the Hindu Succession Act, 1956 and in the absence of any testamentary disposition having been established in the course of proceedings, the plaintiffs would be entitled alongwith the defendants and their sisters to a share in the property left behind by the parents. II is therefore appropriate that the plaintiffs and the defendants alongwith their sisters be apportioned their respective shares of the properties left behind by their parents in appropriate final decree proceedings.
In the result, the appeal is allowed in part in terms as above and the judgment and decree stands modified accordingly.