MAHENDRA SWAMY AND OTHERS Vs. BASAVARAJAPPA AND OTHERS

JUDGEMENT

(1.) THIS appeal is filed by the plaintiffs. The parties are referred to by their rank before the trial Court for the sake of convenience.

(2.) THE facts of the case are as follows: Plaintiffs 1 and 2 are the children of one Marisiddaiah and plaintiff No. 3, who is the widow of Marisiddaiah. The genealogical tree under which the plaintiffs' claim is as under: - Basavaiah @ Basappa (Deceased) Madamma (D -1) Marisiddaiah (Deceased) MadammaSannamma(D -2) Puttadevamma @ (Thayamma P -3) Basavarajappa (D -3) Mahendra Swamy (P -1) Manjula (P -2) It was their case that Basavaiah, the propositus and Marisiddaiah constituted a Hindu Coparcenery. Defendant No. 1 is the widow of Basavaiah, defendant No. 2 is her daughter and defendant No. 3 is her son -in -law. Defendant No. 2 was married much prior to the suit. It was the case of the plaintiffs that defendant No. 2 had been married much prior to 1956 and even before the death of Basavaiah, who is said to have died in the year 1952. Therefore, defendant No. 1, Marisiddaiah and plaintiffs 2 and 3 constituted a Hindu Undivided Joint family. Marisiddaiah in turn, had died in the year 1991, leaving behind the plaintiffs and defendant No. 1. Hence, it is claimed that plaintiffs and defendant No. 1 are class -I heirs of Marisiddaiah. The properties described in the suit schedule are said to be the ancestral and joint family properties of Basavaiah, Marisiddaiah and plaintiff No. 1. Basavaiah had died intestate and as an undivided member of the family. Marisiddaiah and defendant No. 1, along with the plaintiffs, had succeeded to the suit properties, which continued to be joint family properties. It was contended that the defendants have no right over the suit properties. They were not the members of the family. On Basavaiah's death, defendant No. 1 had no right to represent the family. However, she had executed a gift deed dated 20.12.1976 in respect of a portion of the suit property. The plaintiffs were not parties to the said deed and the plaintiffs remained unaware of the said deed till about one year prior to the suit. It was only when defendants 2 and 3, were said to have made an attempt to occupy the suit properties, that the deed come to light and it was also discovered that the revenue entries had been made in favour of defendant No. 2 on the basis of the said gift deed and, therefore, the plaintiffs having disputed the right of the first defendant to have executed a gift deed in favour of defendant No. 2, have questioned the same in the present suit, seeking a declaration that the gift deed was ab initio and for partition and separate possession of the plaintiffs' share in the suit properties by metes and bounds and for settlement of accounts and other reliefs. The suit was contested by the defendants, who had filed their written statement, to contend that the genealogical tree furnished by the plaintiffs was admitted and the relationship of the parties was admitted, but, the allegation that the first plaintiff being the son of Marisiddaiah was one of the co -parceners consisting of Basavaiah, Marisiddaiah and plaintiff No. 1 and defendant No. 1 was denied as incorrect. All the other allegations were also generally denied. It was contended that Basavaiah, the husband of the first defendant and the father of the second defendant died in the year 1957 leaving behind his son Marisiddaiah, his daughter, Madamma @ Sannamma and his wife Madamma. At that point of time, Marisiddaiah was only five years old and was lame. He was not capable of normal activities nor was in a position to manage the affairs of the family. The first defendant, as the elder in the family, took over the affairs and management of the family including the properties. The marriage of the second defendant was performed with the third defendant and that marriage had taken place after the death of Basavaiah. After their marriage, the third defendant came to live with the family of the first defendant, and defendants 2and 3, therefore, enjoyed the family properties. The khata of the family properties was changed to the name of the first defendant with the consent of Marisiddaiah. Basavaiah, during his life time, had an intention to gift some portion of the family properties in favour of his daughter, but did not do so during his life time. In order to fulfill his wish, when the second defendant married, the first defendant had executed a gift deed in her favour dated 20.12.1976, donating 1 acre of land in Survey No. 130/2 and 33 guntas of land in Survey No. 125/3 and 15 guntas of land in Survey No. 543/5, which are described as items 1, 2 and 3, respectively, of the suit schedule. Pursuant to the gift deed, defendants 2 and 3 have been absolutely enjoying the same. The revenue records stood transferred in favour of the second defendant, who has continuously paid taxes in respect of the same. It was stated that plaintiffs 1 and 2 and the husband of plaintiff 3 had filed a civil suit in O.S. No. 96/1981 before the Court of the Civil Judge, Mandya, seeking a declaration that the gift deed was not binding on them. The same was dismissed as on 7.12.1983 and no appeal was filed against the same and, therefore, had attained finality. Plaintiff -3 was all along aware of the execution of the gift deed from inception. Plaintiffs 1 and 2 were not at all born at the time of execution of the gift deed and hence, have no right to question the gift deed executed by the first defendant in favour of the second defendant. In view of the dismissal of the earlier suit, the present suit is barred by res judicata apart from being barred by time and, therefore, the defendants sought dismissal of the suit.

(3.) THE gift deed executed by defendant No. 1 in favour of defendant No. 2 of the year 1976, was in respect of 2 acres 8 guntas, out of more than 7 acres of suit schedule properties. The said gift deed had been questioned by Marisiddaiah in O.S.96/1981. PW.1, the widow of Marisiddaiah had admitted that she knew about the gift deed one year after its execution. Therefore, even the previous suit in O.S. No. 96/1981 ought to have been filed within 3 years from the date of their knowledge and the said suit having been posted for evidence, in May 1983, Marisiddaiah had defaulted in appearance. The Counsel, who appeared for Marisiddaiah, even had retired from the case and immediately on the same day, namely, 7.12.1983, the suit was dismissed. Therefore, the plaintiffs seeking to claim that they remained unaware of the gift deed till one year prior to the filing of the present suit, was not acceptable as they had not produced any material to show that they had been in undisturbed possession of the suit properties and that they were enjoying the same. On the other hand, the defendants had produced abundant material to show their exclusive possession. The khata was made in favour of defendant No. 2 when Marisiddaiah was a major and he could have objected to the same. Plaintiff No. 3, who has filed the suit on behalf of the minor plaintiffs, did not choose to challenge the gift deed at an earlier point of time. Since it is the same cause of action that is sought to be pursued, issue No. 1 was answered in the negative. It was also held that the gift deed was executed much earlier to the birth of plaintiffs 1 and 2, who were born in the year 1979 and 1981, respectively, and, therefore, on the dismissal of the suit in O.S. No. 96/1981, the matter having attained finality, they lost their right to question the gift deed. Further, even under notional partition, on the death of Basavaiah, Marisiddaiah would have got half share in the suit properties and the remaining half share is again liable to be divided among the widow of Basavaiah, Marisiddaiah and the daughter. Therefore, Marisiddaiah would have been entitled to four -sixth share and not five -sixth share. It is not unusual for a daughter to be gifted properties from her maternal home and if the share of defendants 1 and 2 cannot be denied, the extent of property that is held by the second defendant under the gift deed, would not exceed the combined shares of defendants 1 and 2, which they were entitled to in any case. Hence, it was held that the plaintiffs were not entitled to claim partition of the entire suit properties. It is on such reasoning that the Court below has proceeded to dismiss the suit. It is that which is under challenge in the present appeal.