JFCM-CUM-JCJ COURT-1- O.S.No.99/2016 URAVAKONDA 25-6-2019
IN THE COURT OF THE JUNIOR CIVIL JUDGE cum JUDICIAL
MAGISTRATE OF I CLASS :: URAVAKONDA
Present :: Smt. S. Komalavalli, Junior Civil Judge-cum-Judl. Magistrate of I Class, Uravakonda
Tuesday, the 25th day of June, 2019
O.S.No.99/2016
Between:
K.Purushotham ...Plaintif
And
1) Kuruva Mallikarjuna
2) Kumari Kuruva Kavitha, Minor Rep.by Natural guardian father K.Yerriswamy. .… Defendants
This suit came before me for final hearing on 21-6-2019 in the presence of Sri Y. Lakshminarayana Reddy, Advocate for the plaintif and of
Sri A.Ramohan, Advocate for the defendants 1 and 2, and upon perusing the material, on hearing both sides and having stood over for consideration till this day, the Court delivered the following:
J U D G M E N T
This is a suit filed for partition of the properties described in the schedule and referred to as the plaint schedule properties, for short "Schedule properties" into three equal shares by taking into account good and bad qualities with metes and bounds and allot one such share to the plaintif with separate possession and for costs.
02.At the first instance, the plaintif filed the suit seeking partition of only landed properties, pleading briefly stated are as follows:
The plaintif and 1st defendant are own brothers. 2nd defendant is the only daughter of deceased elder sister of both the 1st defendant and plaintif. The schedule properties were allotted to the share of one Kuruba
Mallesappa (the father of Plaintif, 2nd plaintif and grandfather of 2nd
JFCM-CUM-JCJ COURT-2- O.S.No.99/2016 URAVAKONDA 25-6-2019 defendant) in partition of his joint family properties along with brothers.
After the demise of Mallesappa - plaintif, 1st defendant and mother of 2nd defendant enjoyed the said properties with joint and constructive possession without partition of the properties. The mother of the 2nd defendant died intestate leaving behind the 2nd defendant as her legal heir.
3.It is further submitted that after demise of their father, plaintif and 1st defendant intended to solve some domestic problems and also to get loans from banks and to receive benefit of government schemes, as such they obtained pattadar pass books over the schedule properties, but they are enjoying the property in joint and construction possession. As the children of 1st plaintif grown up, the plaintif intended to partition the joint family properties and orally requested the 1st defendant, but the 1st defendant is postponing the same unnecessarily and the 2nd defendant is also not coming forward for partition due to minority. Hence the plaintif constrained to file the suit.
4.Subsequently when the suit is coming for further evidence of defendants, the plaintif amended the plaint by inserting house properties also for partition pleading that the father of 1st defendant and plaintif
Mallesappa advised his sons during his life time not to partition the house properties in future until the minor daughter of late K. Sudarsanamma i.e.
the 2nd defendant, who succeeded to the share of her mother
Sudarsanamma, attained majority for providing shelter to her. He further advised that even if under any circumstances, they partitioned the lands, not to get partition of house property until minor 2nd defendant attained majority. As the 2nd defendant attained majority, he is seeking partition of the house properties also.
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5. After receipt of summons 1st defendant filed written statement through his counsel, adopted by D2 by filing a memo, denying various allegations/averments made in the plaint, except admitting the relationship, denying relief claimed, pleading briefly stated as under:
It is submitted that the plaintif and defendant have partitioned their joint family ancestral properties orally as per the advice of the elders on 8-12-2008 and recorded the same in writing on the stamp paper worth
Rs.110-00 and based on that unregistered partition deed, the plaintif and defendant obtained individual pattadar pass books and title deeds to their respective of shares of property from the revenue authorities. The plaintif and 1st defendants are also residing separately from the date of their oral partition. The government also issued household card in favour of 1st defendant, his wife and daughter separately from plaintif. After 4 years of the said oral partition, the defendant picked up a quarrel with the defendant on 17-7-2012 and stabbed the defendant with a knife in his stomach. The 1st defendant also admitted in government hospital, Uravakonda and took treatment, but he did not give any complaint to the police, due to intervention of caste elders. The caste elders held a panchayat and drafted a consent letter also on 21-8-2012.
6.It is further submitted that the mother of 2nd defendant died about 17 years ago and she had taken her share of property by way of gold ornaments and cash at the time of her marriage. The court fee paid is not correct. Since partition had already taken place and the 1st defendant and plaintif obtained pattadar pass books separately to their respective shares and they are also residing separately in their respective houses, the question of again partitioning the suit schedule properties does not arise. The allegations contra are denied and the plaintif is put to strict proof of all those
JFCM-CUM-JCJ COURT-4- O.S.No.99/2016 URAVAKONDA 25-6-2019 allegations which are not specifically admitted herein and prayed to dismiss the suit.
7. Based on the above pleadings, material available on record and on hearing both sides, at the first instance my learned predecessor settled the following issues for determination of the suit.
1.Whether the plaintif is entitled 1/3rd share in the plaint schedule property as prayed for?
2. Whether the plaintif and 1st defendant are partition their joint family ancestral properties either oral and in writing dated 8-12-2008?
3. Whether share is given to the D2's mother at the time of her marriage?
4. To what relief?
8. Subsequently after amendment of the plaint incorporating house properties also for partition, the issue No.3 is recasted as follows :
"Whether share is given to D.2's mother at the time of
marriage, as such, D2 is not entitled for any share in plaint
schedule properties?"
The following additional issue was also framed
Whether there is nay direction from the father of plaintif
and D1 during his life time not to partition house
properties until D2 attained majority even if there is any
partition of landed properties?
9.During the course of trial, on behalf of the plaintif, the plaintif himself examined as PW1 and got marked Ex. A1 on his behalf. He also got examined PW.2 on his behalf. On behalf of the defendants, the 1st defendant himself examined as DW1, got examined D.Ws.2 to 4 and marked Ex.B1 to
B7.
10. Heard arguments on both sides. The learned counsel for plaintif written arguments.
JFCM-CUM-JCJ COURT-5- O.S.No.99/2016 URAVAKONDA 25-6-2019
11.ISSUE No.3:-
The relationship of the parties to the suit that plaintif and 1st defendant are own brothers and 2nd defendant is the only daughter of their elder sister Sudarshanamma @ Sulochanamma is not in dispute. It is also not in dispute that said Sulochanamma @ Sudarshanamma, who is D2's mother died leaving behind the 2nd defendant as her only legal heir.
12.As per Section 6 of Hindu Succession Amendment Act 2005, if no disposition or alienation or partition or succession of ancestral properties had taken place till 20th December, 2004 and where there had been no partition or death of a coparcener before this date, the married daughter would also count for a share in the event of partition of ancestral properties.
Section 6 of the Hindu Succession Act is as follows:
Section 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 coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary 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 afect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of
December, 2004.
JFCM-CUM-JCJ COURT-6- O.S.No.99/2016 URAVAKONDA 25-6-2019 .......
(5) Nothing contained in this section shall apply to a partition, which has been efected before the 20th day of December,2004.
Explanation- For the purposes of this Section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act,1908(16 of 1908) or partition efected by a decree of a court.
13.Moreover, in view of abolition of Bar contained in Section 23 of
Hindu Succession Act, 1956 by Amendment Act 2005, the partiable property includes even a dwelling house and even a daughter coparcener can claim partition of the dwelling house also.
14.The contention of the 1st defendant is the share of said
Sudarshanamma was given to her at the time of her marriage. In this regard it is the evidence of DW1 that "It is true that it is not mentioned in my written statement that how much gold and cash was given to my sister at the time of her marriage. Whatever gold or cash given to Sudarshaasmma was given by my father. "
DW4, the father of 2nd defendant and husband of said Sudarshanamma examined on behalf of 1ast defendant, even though supported the defendant's version that cash and gold were given to his wife
Sulochanamma at the time of her marriage, he pleaded ignorance of how much cash and gold were given to his wife, which is not believable. Hence, from the above evidence of DWs. 1 and 4 except simply making allegation that the share of Sudarshanamma was given to her at the time of marriage, it is not specifically mentioned whether the joint family properties are valued and how much worth cash and gold was given to Sudarshanamma.
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15.The contention of the defendants that when daughters were given gold and cash at the time of their marriages, they are not entitled for any share in the ancestral properties is not provided anywhere in Hindu
Succession Act, even in Amendment Act 2005. The only impediment for denying share to the daughters in the ancestral properties under the Hindu
Succession Amendment Act 2005 is if there is any partition took place by a registered partition deed or by a decree of court, or any alienation disposition or succession had taken place earlier to filing of the suit, but not otherwise.
16.The Hon'ble supreme Court in case of Government of
A.P. Vs. M. Krishnaveni , laid down, in consonance with the earlier expressions of the Apex Court in Kamaladevi Vs. Bachulal Quipto,
Guramma Bhratar Chanbasappa Deshmukh Nagamma Bhratar
Ghanbasappa Deshmukh(supra), Perumalakkal v. Balakrishuan and
of the Full Bench judgment of the Madras High Court of the
year,1929 - that " Property gifted by father to his daughter at the time of or after her marriage per se to an old aged custom prevailing in the area of
Andhra Pradesh and as per the said family arrangement at the marriage of the daughters, the object is as a family arrangement to protect the family from long drawn litigation or perpetual strifes, which mars the unity, solidarity of the family and create hatred and bad blood between the members of the family; other way, it promotes legal justice through wider distribution of wealth, therefore, such family arrangements have to be construed widely.
In so saying it was held further that, for family arrangement, if it is not confined only between persons having legal right to the property, for which a document, which is in the nature of memorandum of such oral family partition valid and when filed
before the court for its information, which is not compulsorily
registerable and therefore can be used in evidence of the family
JFCM-CUM-JCJ COURT-8- O.S.No.99/2016 URAVAKONDA 25-6-2019 arrangement as binding and final between the parties to create rights there under."
The same finding was also given by Hon'ble combined High Court of Andhra
Pradesh in in Gandevalla Jayaram Reddy case by the decision of Full
Bench.
17.In this case it is not the contention of the 1st defendant that there is any such custom prevailed in their community in this area and also that the same was mentioned in any document styled as family arrangement, which is unregistered to consider the contention of the defendants that already share of D.2's mother was given to her at the time of her marriage. Therefore, this court do not find force in the said contention of the 1st defendant that D2 was not entitled for any share in the ancestral properties is not tenable and this court finds no force in the said contention of the 1st defendant.
18.ADDITIONAL ISSUE:-
The contention of the plaintif is the schedule properties are ancestral properties and since their father Mallesappa advised not to partition the properties, especially house property, till 2nd defendant attained majority, he did not seek for the partition of properties till 2016. In this regard, the contention of the 1st defendant is one of total denial. In support of his contentions, the plaintif got examined himself as PW1 and deposed reiterating his pleadings. In this regard, it is pertinent to note that except the oral evidence of PW1 in that regard, he did not produce any other evidence either oral or documentary to prove that whether there is any such advice of h is father. Even PW2, examined on behalf of plaintif did not state anything about such advice of father of plaintif during his evidence. Hence
JFCM-CUM-JCJ COURT-9- O.S.No.99/2016 URAVAKONDA 25-6-2019 this court is not believing the said version of plaintif. Hence this issue is answered against the plaintif.
19. ISSUE NO.2:-
The contention of the plaintif is the schedule properties are ancestral properties and they are not yet partitioned. The 1st defendant is not denying that the schedule properties belonged to their father
Mallesappa, but the contention of the 1st defendant is in the year 2008 itself, himself and plaintif got partitioned their joint family properties orally and the same was also reduced into writing on a stamp paper worth Rs.110/-.
He further contended that based on the said partition deed, they obtained pattadar pass books and title deeds separately to the extent of their respective shares of properties and since the date of said partition they have been enjoying their respective shares and also they are living separately.
However, to prove the said partition no such document dt.8-12-2008 was marked on behalf of the defendants, even though he filed the said document, since it is unregistered and written on insufficiently document.
Since the 1st defendant is not denying that the schedule properties are ancestral properties, but there is partition, the burden is on the defendant to prove the partition, but the 1st defendant failed to prove the same. Hence issue No.2 is answered against the defendants.
20.ISSUE NO.1:-
The 1st defendant sought to contend that since the date of partition, they have been living in separate houses and he also obtained household card, Aadhar cards for his wife, children and himself separately from plaintif. In support of his contentions he also filed EXs. B1 to B7, the pattadar pass books in his name, household cards Aadhar cards. Further
JFCM-CUM-JCJ COURT-10- O.S.No.99/2016 URAVAKONDA 25-6-2019 they also obtained pattadar pass books also separately for their respective properties, but the plaintif intentionally not filed pattadar pass book in his favour and if he filed the same, the real truth will come out. Admittedly except Ex.A1, the plaintif did not file any document to show that schedule properties are ancestral properties. Ex.A1 is the adangal for the fasali 1424 for the land in S.No.119 of Peddamusturu village wherein an extent of
Ac.4-560 cents i.e. item No.3 of schedule property was shown in the name of
D1 as acquired from the father. The plaintif did not file any document with regard to the lands in item Nos. 1 and 2, so also with regard to item Nos. 4 to 6 house properties also. However since the 1st defendant is not denying that the schedule properties are ancestral properties, but there is partition, the burden is on the defendant to prove the partition, but the 1st defendant failed to prove the same.
21.The plaintif is also not denying that himself and 1st defendant are residing separately in two houses and obtained pattadar pass books also in their names, but his contention is they have not yet partitioned the joint family properties and mere residing separately does not mean that there is partition of joint family properties. In support of this contention he also relied on the judgments of Hon'ble Supreme Court reported in the case of
Roop Chand Vs. Indra Devi 1997 AIR (MP)200, lG. Rangaiah Vs.
Govindappa & others 2008(3) KLO 2566, Vanubhai Mangal Bhai Patel
Vs. Khalpabhai Mangalbhai Patel of Gujarat High court reported in
200 3GCD 2150 and Ram Gopal V. Maya Devi of Allahabad High Court
reported in 1978 AIR (All) 199. I find force in the said contention of the learned counsel for the plaintif that mere separate living does not amount to family settlement for independent dealing with the shares given to the parties concerned and the even if undivided members are carrying on
JFCM-CUM-JCJ COURT-11- O.S.No.99/2016 URAVAKONDA 25-6-2019 separate business, that does not amount partition, so also that in order to prove separation, it is not enough to show that diferent members of the family lived i.e. resided and messed separately. It is necessary to establish that either there was a partition of the joint family property by metes and bounds or at least that the members of the family dealt with it as if they had separate defined shares therein.
22.DW1 stated in his evidence that their father had Ac.10-00 of landed property, out of which 7 acres is red soil and 3 acres is black soil.
PW2, examined on behalf of the plaintif also stated in his evidenced that
Mallesappa (father of plaintif) possessed 10 acres of land. Perusal of item
Nos. 1 to 3 shows that it is in total AC,8.37 cents. PW1 also admitted in his evidence that their joint family is having Ac.10-67 cents of land during the life time of his parents. When it is not the contention of either of the parties that any property was sold out of the said Ac.10-67 cents of joint family property, it cannot be said that plaintif included all the joint family properties for partition. It is also settled legal position that partial partition of some of the joint family properties is not maintainable.
23.Now coming to the allotment of shares to the parties to the suit, as per Section 6 of Hindu Succession Amendment Act 2005, if no disposition or alienation or partition or succession had taken place till 20th
December, 2004, where there had been death of a coparcener before this date, the married daughter would also count for a share in the event of further partition or death on or after December 25, 2004, provided she is alive by 9th September, 2005. The Parliament consciously used the phrase "the daughter of a coparcener" is the person on whom they are conferring the right and not on any other female relative, who may be a member of
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Joint Hindu Family, so also, not used the words sister of a coparcener, as not intended to say irrespective of fathers death and of notional partition with all traits of actual partition by legal fiction and succession even opened there from, to seek partition with brothers for remaining coparcenary after death of father even continues. Therefore to claim a partition for the daughter of a co-parcener as per Hindu Succession Amendment Act 2005, when the co- parcener died prior to 20-12-2004, the married daughter must alive upto 9-9-2005 to claim a share in the properties of her deceased father as a coparcener along with her brothers equally and if the said condition is fulfilled, then the legal heirs of such deceased daughter can claim her share in the properties of deceased coparcener.
24.In this case, no evidence is placed before this court to show when the father of the plaintif and 1st defendant Mallesappa died, so also when the marriage of 2nd defendant's mother was performed and when she died to decide whether the mother of 2nd defendant is entitled for equal share along with plaintif and 1st defendant as a co-parcner and in the event of her death her legal heir 2nd defendant is entitled for such share. PW1 stated in his evidence on 18-8-2017 that "Mallesappa is my father. He died about 13 years ago. Lingamma is my mother. She died about 9 years ago. Sudarsanamma was married and second defendant Kavitha is her daughter.
Sudarsanamma died even before the death of my father. "
25.DW1 stated in his evidence on 18-12-2017 that his father died about 14 years ago and the mother of D2 i.e. his elder sister by name
Sudarshanamma died about 12 years ago. Whereas DW3 stated in his evidence that Mallesappa died about 5 or 6 years. DW4, the father of D2 stated in his evidence on 8-5-2019 that
JFCM-CUM-JCJ COURT-13- O.S.No.99/2016 URAVAKONDA 25-6-2019 "Our marriage took place about 30 years ago in Sanageswara
Swamy temple, Kuderu. Myself and Sulochanamma blessed with a daughter after 3 years of our marriage and her name is Kavitha (D2). I do not know the date of birth of my daughter kavitha. She completed her graduation in this year.
Now Kavitha is aged about 22 years. ...........Sulochanamma died about 20 years ago, but I do not remember the date. I do not know when my father-in-law Mallesappa died. "
Therefore, from the above evidence of PW1 and DWs. 1, 3 and 4 they did not give the exact dates of deaths of Mallesappa and Sulochanmmma, which is very much crucial to decide the shares of co-parcenrs. There are contradictions in their evidence in that regard. In those circumstances, it is not possible to decide the shares of co-parcenrs.
Therefore, in view of the above discussion, this court is coming to the conclusion that the plaintif is not entitled for 1/3rd share in the suit schedule properties. Issue No.1 is answered against the plaintif.
26. ISSUE NO.3:-
In the result, this suit is dismissed with costs.
Typed by me in my laptop and pronounced in the open court this the 25 th day of June, 2019.
JUNIOR CIVIL JUDGE,
URAVAKONDA
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFF FOR DEFENDANT
PW1 – K.PurushothamDW1 – K.Mallikarjuna PW2 – Talari VannurappaDW2 – K.Adilakshmi DW3 – M.Naganna DW4 – Kuruba Yerriswamy
JFCM-CUM-JCJ COURT-14- O.S.No.99/2016 URAVAKONDA 25-6-2019
EXHIBITS MARKED
FOR PLAINTIFF :- Ex.A-1 :- Certified copy of Adangal/Phani, dt.25-06-2015 of Sy.No.119 for fasaly 1424 from Mee Seva.
FOR DEFENDANT :- Ex.B-1 :- Pattadar pass book in the name of D1, dt.2-01-2009. Ex.B-2 :- Pattadar pass book in the name of D1’s wife, dt.6-02-2014. Ex.B-3 :- Household card issued in favour of D1 and his family members, dt.28-09-2006. Ex.B-4 :- Aadhar card of D1, dt.17-06-2011. Ex.B-5 :- Aadhar card of D’1 wife, dt.18-06-2011. Ex.B-6 :- Aadhar card of D1’s daughter, dt.14-05-2016. Ex.B-7 :- House tax payment receipt for the house bearing D.No.1-56 issued by Panchayat Secretary, Pedda Musturu in the name of D1.
JUNIOR CIVIL JUDGE,
URAVAKONDA