LATHA Vs. SUBBALAKSHMI S

JUDGEMENT

(1.) THIS is plaintiffs' regular first appeal challenging the judgment and decree of the trial Court which had dismissed the suit for partition and separate possession of their 1/8th share each in the plaint schedule properties. For the purpose of convenience, the parties are referred as they are referred in the original suit.

(2.) ONE Sri. Muniswamappa was the propositus. The schedule property belongs to him. He had a son by name Sri. N. Anjan Murthy. They constituted a coparcenary and a joint family. After the death of Sri. Muniswamappa, Sri. N. Anjan Murthy became the absolute owner of schedule property. Sri. N. Anjan Murthy married late Smt. Komala and she had 4 daughters. Plaintiff No. 1, plaintiff No. 2, defendant No. 5 and defendant No. 6 are the daughters. After the death of Smt. Komala, Sri. N. Anjan Murthy married Smt. Subbalakshmi and through her he had two sons by name Sri. Ashok Kumar and Sri. Arvind Kumar who are defendant Nos. 2 and 3 and a daughter by name Kumari. Ramya - defendant No. 4. Smt. Subbalakshmi is defendant No. 1. The property belonging to joint family is more particularly described in the schedule in the plaint as hereinafter referred as schedule property. The case of the plaintiffs is, their father constructed the residential houses and building in the schedule property during his life time and residential houses measures about 20 squares. The building in the schedule property measures about 89 squares. The portion of the said building are let out to 33 tenants and they are paying monthly rents. Approximately 1 acre is remaining in the suit schedule property. The father of the plaintiff died on 21.12.1994 leaving behind the plaintiffs and defendants as his legal heirs. Defendant No. 1 mismanaged the affairs of the joint family and the properties with the assistance of other defendants especially defendant No. 5 and her husband. The father of the plaintiffs also possessed huge movable properties during his life time. The plaintiffs are entitled to equal share in the movable properties also. The plaintiffs have financially assisted by spending huge money for the development of suit schedule property after the death of their father. Plaintiffs and their husbands have assisted and donated lot of things in the affairs of joint family during the life time and after the death of their father. The defendants and the husband of defendant No. 5 made conspiracy to knock off the properties and funds of the joint family. On coming to know some of the plaintiffs demanded equal share in the suit schedule property. The defendants are making illegal effects to create third party encumbrances in the said properties. The husband of defendant No. 5 and defendant No. 1 invited the plaintiffs to come to the house to discuss about the partition of the suit schedule property and to confirm their shares. Plaintiffs believing their version went to their house. They told the plaintiffs that the partition will be affected only after the execution of some instruments before the Sub -Registrar and share of the plaintiffs will be confirmed soon. Believing the said representation they followed their instructions without knowing the terms and conditions and without knowledge of worldly affairs and other legal consequences. They reserved the right to take necessary action after getting necessary knowledge. The plaintiffs got issued a legal notice on 05.12.2000 demanding 1/8th share in the suit schedule property. The notice was not received by the defendants and therefore plaintiffs were constrained to file a suit for partition and separate possession of their 1/8th share in the suit schedule property.

(3.) AFTER service of summons the defendants entered appearance, have filed a detailed written statement contesting the claim. They do not dispute the relationship set out in the plaint nor do they dispute the title of the suit schedule property. They contended that late Sri. Anjan Murthy during his life time disposed a major portion of the properties to several persons. Only a small portion of the property measuring 20 guntas was left out as on the date of his death. On the date of death of late Sri. Anjan Murthy, that is on 21.12.1994 the Hindu Undivided Family constituted himself and defendant Nos. 2 and 3 as coparceners of the family. Plaintiffs as well as defendant Nos. 5 and 6 were married during the life time of late Anjan Murthy and therefore they ceased to be the members of Hindu Undivided Family. Late Sri. Anjan Murthy was not keeping good health and he was suffering from various diseases. In the course of time his Kidneys failed to function and he had to undergo operation by incurring expenses leaving the entire family in debt. For this reason major portion of the properties were sold by him for legal necessity of his treatment. Property bearing survey Nos. 2/1, 2/2, 2/3A and 2/4 were notified for acquisition by the BDA. In this regard late Sri. Anjan Murthy fought several litigations against the BDA and ultimately the acquisition in respect of land measuring an extent of 5 acres was withdrawn by notification dated 10.11.1992. Late Sri. Anjan Murthy had entered into an agreement of sale dated 21.12.1988 with Sri. H.M. Hanumantha Raju, Sri. K.B. Laxman and Sri. D. Venkatesh agreeing to sell 1 acre to each of them out of survey Nos. 2/1 and 2/2 of Lottegollahalli village, Bangalore North taluk. However late Sri. Anjan Murthy could not conclude the sale transaction during his life time. After his death the plaintiffs and defendants jointly executed sale deed dated 24.05.1995 in favour of the agreement holders Sri. H.M. Hanumanthas Raju, Sri. K.B. Laxman and Sri. D. Venkatesh and thus land to an extent of 3 acres was sold by the plaintiffs and defendants jointly in pursuance of the sale agreements entered into by late Sri. Anjan Murthy during his life time. Thereafter the plaintiffs and the defendants arrived at a mutual understanding with the intervention of the wellwishers of the family and accordingly there was an oral partition among the plaintiffs and the defendants on 10.02.1996. Pursuant to the oral partition plaintiff No. 1 sold her property measuring approximately about 10485 Sq.ft. to Sri. Ramakrishna Gupta and Sri. Lakhan Singh for a valuable consideration of Rs.7,50,000/ - through a registered sale deed dated 13.03.1996. Even defendant Nos. 5 and 6 have sold their respective properties for valuable consideration. Thus the parties have acted upon the oral partition and the plaintiffs ceased to be the members of joint family. The plaintiffs, after sale of their respective shares have purchased several properties in their individual names and are well settled. Besides late Sri. Anjan Murthy had celebrated the marriage of plaintiffs and defendant Nos. 5 and 6 by spending several lakhs of Rupees and valuable jewels worth several lakhs were given to the plaintiffs and defendant Nos. 5 and 6 at the time of their marriages. Besides late Sri. Anjan Murthy gifted a site bearing Municipal No. 45/4 measuring 41 feet 6 inches X 32 feet situated at 2nd Main Road, Mathikere Village in favour of Sri. M. Ramamurthy husband of plaintiff No. 1. Late Sri. Anjan Murthy also got purchased immovable properties in the names of plaintiffs and those properties are given to the plaintiffs. Late Sri. Anjan Murthy also got constructed dwelling houses for the plaintiffs and defendant Nos. 5 and 6 by spending considerable amount. Besides the defendant Nos. 1 to 4, out of love and affection, purchased units for Rs.10,000/ - each from the Unit Trust of India for 4 grand sons including the sons of the plaintiffs. Thus the plaintiffs have taken much more valuables and properties than what they were entitled to in law. The properties remained are the dwelling houses which had fallen to the share of defendant Nos. 1 to 4 and the defendant Nos. 1 to 4 are in joint possession and enjoyment of the properties exclusively as absolute owners. Neither the plaintiffs nor the defendant Nos. 5 and 6 have got any subsisting right, title and interest over the properties possessed by the defendant Nos. 1 to 4. Smt. Kamalamma the elder sister of late Sri. Anjan Murthy after his death filed O.S. No. 1432/1995 in the Court of City Civil Judge at Bangalore claiming share in the properties and for separate possession of their share in the properties. At the instance of plaintiffs, defendant Nos. 5 and 6 and at the intervention of the well -wishers of the family the said case was compromised and accordingly defendant Nos. 1 to 4 were constrained to pay a sum of Rs.11,00,000/ - to Smt. Kamalamma towards her share and the properties are retained by defendant Nos. 1 to 4. Plaintiffs have deliberately withheld the above true facts and have filed the above suit falsely claiming share in the properties. The plaintiffs were joint family members till 10.02.1996. After oral partition there is a severance of status wherein the plaintiffs and the defendant Nos. 5 and 6 got separated and they have sold their respective shares acting on the oral partition. Now the joint family consists of only defendant Nos. 1 to 4. The relationship of the plaintiffs and defendants with late Sri. Anjan Murthy as mentioned in para 3, 4 and 5 is admitted as true. The genealogical tree drawn in para 3 of the plaint is without mentioning the name of Smt. Kamalamma who is the daughter of late Sri. Muniswamappa. The plaint schedule property is not available for partition. Whatever the properties remained are the dwelling houses fallen to the share of defendant Nos. 1 to 4 in the oral partition. Therefore the plaintiffs have no subsisting right and interest in the plaint schedule property and they do not have semblance of any legal right to claim share and for partition of the properties. They denied the allegation that the plaint schedule property in survey Nos. 2/1 and 2/2 totally measures 8 acres. There is no such property available in the said survey numbers. They admit that the father of plaintiffs and defendants constructed residential houses during his life time. They denied the allegation that the schedule property measures approximately 89 squares. The allegation that there are 33 tenaments and 33 persons are occupying as tenants is also denied as false. There cannot be a second partition as the plaintiffs have not challenged the earlier partition. After the partition defendant Nos. 1 to 4 have made considerable development of their shares by investing considerable amount. The defendant Nos. 1 to 4 are in exclusive possession and enjoyment of their shares. The allegation that there is approximately 1 acre remaining vacant in the suit schedule property is false. The allegation of mismanagement is denied. The theory of conspiracy put forth is also denied. The plaintiffs have no legal semblance or right to seek partition once again. Whatever the properties which are subsisting, they absolutely belongs to defendant Nos. 1 to 4 and the plaintiffs have no legally enforceable right and therefore they sought for dismissal of the suit. Further the plaint was amended including a schedule. Additional written statement was filed stating that the immovable property bearing survey Nos. 2/3A and 2/4 of Lottegollahalli village, Bangalore North Taluk which was in possession of the family, though acquired by the BDA had fallen to the share of the defendant Nos. 1 to 4. In pursuance of the efforts made by the defendants with the State Government land bearing survey Nos. 2/3A and 2/4 came to be de -notified by the State Government in the year 2005. Defendants have spent considerable sums of money to obtain such de -notification. Thereafter, for the legal necessity of celebration of the marriages of defendant Nos. 2 to 4 the said property came to be sold in favour of M/s. Anriya Project Management Services Private Limited who in turn have developed the property as residential apartments. Therefore property in survey Nos. 2/3A and 2/4 is not available in the family of defendants. Plaintiffs are aware of the de -notification made by the State Government and sale made by these defendants. Therefore, the claim is false and therefore they sought for dismissal of the suit. Defendant Nos. 5 and 6 have not filed any written statement. Subsequently defendant Nos. 7, 8, 9 and 10 who are purchasers were all impleaded as defendants. They also have not filed any written statement. On the aforesaid pleadings, the trial Court framed the following issues.