| SooperKanoon Citation | sooperkanoon.com/952992 |
| Court | Karnataka High Court |
| Decided On | Sep-04-2012 |
| Case Number | RFA No.197 of 2006 |
| Judge | K. SREEDHAR RAO & V. SURI APPA RAO |
| Appellant | Rudrappa |
| Respondent | H.R. Shivakumar and Others |
V. Suri Appa Rao J.
1. This appeal is filed against the judgment and decree dated 25.10.2005 in O.S. No. 127/2000 on the file of the Prl. Civil Judge (Sr. Dn.), Davanagere (hereinafter referred to as the ‘Trial Court’ for short). Respondent Nos.1 and 2 filed the suit against the appellant and others for partition of the suit schedule properties by metes and bounds after cancelling the registered partition deed dated 29.12.1969.
For the sake of convenience, the parties are referred to as per their ranking in the original suit.
2. The plaintiffs are the son and daughter of the third defendant Ramachandrappa, who is the son of defendant No.1 through his first wife Gangamma. After the death of Gangamma, the first defendant married one Ningamma and the second defendant is the son of the said Ningamma. The step mother of defendant No.3 never treated him with love and affection and she used to harass and beat him for trivial reasons. The first defendant father of the third defendant was always acting under the influence and instructions of his second wife Ningamma and under her pressure, the first defendant was forced to execute a registered partition deed dated 29.12.1969, when second defendant Rudrappa was minor. All the suit schedule properties being the ancestral and joint family properties were allotted to the share of second defendant and no share was allotted to the third defendant i.e., father of the plaintiffs, but a sum of Rs.1,500/- was given to him without assigning any reasons in the partition deed and that the third defendant was forced to sign in the partition deed under the influence of his father and his stepmother. After execution of the partition deed dated 29.12.1969, the first defendant drove the third defendant out of the house. Therefore, he took shelter at the house of his late mother Gangamma. The plaintiffs who are son and daughter of the third defendant came to know about the fact of the execution of the registered partition deed through their relatives Onkaramma, Nagamma and Nagarajappa and therefore, they approached defendant Nos.1 and 2 and enquired about the injustice caused to them, but the second defendant refused to give share of the third defendant. Therefore, the plaintiffs filed the suit for partition and separate possession of the share of their father i.e., third defendant Ramachandrappa.
3. The third defendant remained exparte in the suit. The second defendant filed written statement denying the allegation that the third defendant is not pragmatic in worldly affairs and incapable of understanding worldly things and also denied about the ill-treatment as narrated in the plaint. He further denied the allegation in the plaint that all the schedule properties are joint family properties. It was further contended that item No.3 of the schedule properties is his self-acquired property and there is no cause of action for the plaintiffs to file the suit for partition. The second defendant further contended that the third defendant after partition voluntarily left the house by taking Rs.1,500/- towards his share and was residing at his mother's house and he never claimed a share in the joint properties. On the basis of the above pleadings, the Trial Court framed the following issues:
1. Whether the plaintiffs prove that the suit schedule properties are the ancestral and joint family properties of plaintiffs and defendants?
2. Whether the plaintiffs further prove that the partition deed dated 29.12.1969 is void, illegal, unfair and is not binding on them?
3. Whether the plaintiff further proves that they are entitled for partition and separate possession of the suit schedule properties by metes and bounds?
4. Whether the suit is barred by limitation?
5. Whether the suit is maintainable?
6. Whether the plaintiffs are entitled for the relief as claimed?
7. What order or decree?
4. The plaintiff No.1 was examined as PW1 and another witness was examined as PW2 and documents at Exs.P1 to P7 were marked. On behalf of the defendants DWs.1 to 3 were examined and Exs.D1 to D10 were marked. Considering the oral and documentary evidence adduced by both the parties, the Trial Court decreed the suit of the plaintiffs for partition holding that plaintiffs and defendant No.3 are entitled for partition and separate possession of their 1/3rd share + three share out of 1 /3rd share of defendant No.1 in the suit schedule property by metes and bounds. The Trial Court further ordered that the partition deed dated 29.12.1969 effected between defendant Nos.2 and 3 is liable to be cancelled. Aggrieved by the judgment and decree passed by the Trial Court, the second defendant Rudrappa has filed the present appeal.
5. Heard the learned Counsel for both the parties.
6. The learned Counsel for the appellant submitted that the third defendant never challenged the partition deed dated 29.12.1969 and never raised any dispute before the elders alleging he was not given due share in the joint family properties and being satisfied with the amount of Rs.1,500/- given to him at the time of partition, he voluntarily left the house and was residing at his mother's house Gangamma. It is further submitted that though the third defendant was served with summons, he did not choose to contest the suit. It is also submitted that the plaintiffs are claiming their share through their father defendant No.3 who has not contested the suit filed by the plaintiffs, though he was arrayed as defendant No.3. It is further contended that he did not raise his finger stating that though the partition took place under the partition deed dated 29.12.1969, he was not given due share in the joint family properties and that he is entitled for equal share in the joint family properties.
7. Admittedly, the third defendant-father of the plaintiffs has not filed any written statement alleging that the partition deed dated 29.12.1969 effected between himself and second defendant is void, illegal and unfair and not binding on him, moreover, he remained exparte. Though the second defendant has contended that item No.3 of the schedule property is his self-acquired property, he did not file any document to prove that he purchased item No.3 of the schedule property subsequent to the partition that took place on 29.12.1969. In Ex.P1 partition deed relied on by the plaintiffs, item No.3 of the schedule property is also mentioned. Therefore, the contention of the second defendant that he subsequently purchased item No.3 of the schedule property, cannot be believed. The Trial Court also held that all the schedule properties are the joint family properties. As seen from the contents of Ex.P1 partition deed dated 29.12.1969, the properties worth Rs.1,000/- was taken by Rudrappa i.e., second defendant and that Ramachandrappa father of the plaintiffs has agreed to receive Rs.1,500/- towards his share. It is therefore clear from the recitals of Ex.P1 partition deed dated 29.12.1969 that the total value of the property taken by the second defendant is worth Rs.1,000/- only in the year 1969. Therefore, the third defendant has agreed to receive Rs.1,500/- earned by his father towards his share. The contents of Ex.P1 further reveals that he has already received sum of Rs.700/- from his father Kenchappa and it is agreed to receive balance amount of Rs.800/- at the time of registration of the document. Therefore, it is for the third defendant Ramachandrappa to raise any dispute if he has not received the balance amount of Rs.800/- at the time of registration of the partition deed entered into between himself and his stepbrother Rudrappa. Even during the trial also, he did not choose to examine himself to challenge the alleged partition deed executed between himself and Rudrappa, his step brother. The plaintiffs who are claiming share in the joint family properties of their grandfather Kenchappa through their father Ramachandrappa and when Ramachandrappa did not choose to challenge the partition deed dated 29.12.1969 effected between himself and his step brother Rudrappa, the plaintiffs cannot challenge the same on the ground that their father was not a pragmatic person, so innocent and incapable of understanding the worldly things. The Trial Court has also observed in the judgment that the plaintiffs failed to produce any kind of evidence to prove that their father Ramachandrappa was not worldly wise and was incapable of understanding things.
8. If at all Ex.P1 partition deed dated 29.12.1969 executed between the father of the plaintiffs and second defendant is void, illegal, unfair and is not binding, it is for Ramachandrappa-father of the plaintiffs to question the validity of the same on the ground that the partition deed was obtained by playing fraud, undue influence and misrepresentation. When the third defendant Ramachandrappa did not choose to question the partition deed entered into between himself and step brother, plaintiffs who are claiming share through their father, cannot question the partition deed already effected between the parties, on the ground that it is unfair and obtained by playing fraud on their father Ramachandrappa. Therefore, the partition effected between the father of the plaintiffs and his step brother Rudrappa cannot be re-opened, unless it is shown that the partition deed is obtained by playing fraud and coercion on the part of the third defendant. As the third defendant himself did not choose to contest the suit questioning the earlier partition effected between himself and step brother, the plaintiffs cannot question the same by filing partition suit during the lifetime of their father and therefore, the suit filed by the plaintiffs is not maintainable.
9. The plaintiffs are not entitled for partition of the schedule properties, in view of the earlier partition entered into between their father and the second defendant. Therefore, the suit filed by the plaintiffs is liable to be dismissed and the judgment and decree passed by the Trial Court is set aside. The appeal filed by the second defendant is allowed, in the circumstances, without costs.