Rajesh Ramchander Rao Tandle v. Laxman Narsing Rao Tandle

the parties are 3 is house property The subject matter of the suit

3. bearing Municipal No.7-2-159 (old). 7-2-166 (new), situated at Gorkhagali, Bidar, and the shop bearing Municipal No.6-5-78 situated at Jawahar Bazar, Bidar. hereinafter referred to as schedule property’. The case of the plaintiff is that the suit schedule 4. properties are ancestral properties of plaintiff and defendants and their family members are in joint possession of the suit schedule properties. The plaintiff and his sons are residing at Hvderabad doing private services for their livelihood so also the defendant-i by doing private service. Defendants—2 and 3 are Previously in the residing at Bidar by doing cloth business. Municipal records, the suit house was standing in the name of the plaintiff and defendant No. l’s father namely Narsing Rao. the suit house and shop was mutated in the name Thereafter, of the plaintiff and defendant- 1 s mother Chandrakala Bai, who the demise of Chandrakala Bai, died on 21.02.1995. After defendants-2 and 3 approached the Municipal authorities on ‘I C 4

07.04.1995 by submitting Form No.9 for sanctioning mutation of the suit house and shop In their names as successors, at the Instance of the first defendant. They ified a Wifi deed alleged to have been executed by deceased Chandrakala Bai and got sanctioned the mutation In their names. Chandrakala Bai was suffering from paralysis and was unconscious on the alleged date of the Wifi deed as shown In the said document. The said Wifi deed Is created by the first defendant in the names of his sons, defendants-2 and 3 after the demise of said Chandrakala Bal by putting forged thumb Impression of the said deceased and by putting ante date. The said Wifi is created In order to deprive the plaintiffs half share In the suit properties. On 20.04.1997 the plaintiff came to Bidar and 5. entered the suit house as usual, but the defendants started quarreling and beat the plaintiff mercilessly stating that the entire suit properties belong to defendants-2 and 3 and plaintiff has no right In the said properties. Thereafter the plaintiff approached the respectable persons of the community. but the 5 defendants declined to give the legitimate share to the plaintiff. Therefore the plaintiff was constrained to ifie a suit for partition and separate possession claIming ½ share in the suit properties. After service of summons,

6. appearance. Defendants-i to 3 filed detaIled wrItten statement denying the claim of the plaintiff. the defendants entered The defendants in the written statement admitted 7. that the suit schedule properties are ancestral properties of the It is their specific case that first defendant and the plaintiff. deceased Naming Rao dining his life time gifted the said properties in favour of Chandrakala Bat and since then she has and possessor occupied the exclusively. As per her right of acquisition, the said shop and house were transferred in the name of Chandrakala Bat and the plaintiff has given consent before the CMC and even among the Therefore society of the plaintiff, defendants and relatives. 1— said properties I.’ 6 Chandrakala Bai acquired all the rights to the suit properties. the suit properties are The contention of the plaintiff that family properties and they are In join undivided and joint possession, is false and baseless. The plaintiff has no right to seek any partition or division in the said property. The plaint is manipulated one and there is no truth. The name of Chandrakala Bai was entered In the 8. Municipal records not by way of Inherltence but on the basis of gift. Therefore the allegation that as a successor, the name of Chandrakala Bai was entered In the records Is false. The suit properties were transferred In the name of defendants-2 and 3 by a Wifi executed by Chandrakala Bat and therefore, they have The the rights of ownership and possession. acquired all paralysis course during allegation unconsciousness of Chandrakala Bai the Wifi deed was made and executed Is false. Chandrakala Bal during her life time executed the Will deed In presence of the locality persons and the real sister of plalntlff Premabai and Padmabai, Harnabai 7 and Sharadabai and this fact is also well known to plaintiff and he did not object to the same during the said execuiion. types of Plaintiff is addicted person with different 9. activities including alcohol and he is indulged in other illegal activities. During the lifetime of Chandrakala Bai the plaintiff demanded partition with regard to the properties and in the family settlement. Plot No.18 out of Sv.No. 15 of Village Mailoor the plaintiff was mortgaged by Laxman Rao, S/o Narsing Rao. herein, on the ground of securing security of Chandrakala Bai After Industries. Bidar. in favour of Khadi and Village mortgaging the said property, the plaintiff availed loan and utilized the entire loan for his business. settlement in the family, the plot No.18 of Sy.No. 125 of Mailoor was given to Laxrnan Rao. which is having a value of more than to claim any Rs.2 lakhs and now the plaintiff has no right So during the partition in the suit properties. 8

10. The house shop bearing CMC No.1-5-53 located at Chowbara Road was sold by Chandrakala Bai in favour of one Vachalabai, and Laxrnan Rao, Sb Narsing Rao was consenting witness and this amount was availed by Laxman Rao, which was sold for Rs.55,000-OO, Therefore the plaintiff has no right to claim any partition in the suit properties. Even from the immovable property of plot No.18 and the mortgaged property in Khadi Village Industries Board, Bidar, the plaintiff was given 8 tolas gold and Rs. 15,000-00 net cash. Legally the suit is not maintainable as the plaintiff has not included the other parties in the suit, further he has not impleaded family members necessary parties, particularly, Premabai and Padmabai. The suit is also not maintainable as it is based on false grounds. Hence they sought for dismissal of the suit.

11. Defendants-4 7 their written statement. They have admitted the relationship pleaded in the plaint. They also admit that the suit properties are ancestral I 9 properties and that the properties are not divided. They admit the name of Chandrakala Bai being entered in the Municipal records. They deny that Chandrakala Bai has not at all executed any gift deed or any Wifi deed in favour of anybody and even she was not competent to do so. Therefore the claim of plaintiff and the first defendant on the basis of gift deed or Will deed is not correct and not legally tenable. Therefore they sought for a share In the suit property.

12. On the aforesaid pleadings, the trial Court framed the following issues:

1. Whether plaintiff prove that the suit properties I.e. house bearing Munclpal No.7-2-159 (Old). 7-2-166 (New) situated at Gorkha gaili and shop bearing Muncipal No.6-5-78 situated at Jawahar Bazar are the ancestral properties of the plaintiff and defendant No.1 and that he and defendants are in joint possession of the suit properties?

2. Whether plaintiff further proves that the defendant No.1 has created a will deed in the names of his sons i.e. deft. 2 and 10 3 after the death of Chandrakala Ball the mother of the plaintiff and defendant No.1?

3. Whether defendants prove that Narsingrao during his life time had gifted the suit properties to Chandrakala Bai as contended at pan No.2 of their written statement?

4. Whether cause of action has arisen to the plaintiff to file this suit?

5. Whether suit of the plaintiff is not maintianable as all the properties have not been brought into hotoch-pot?

6. Whether suit of the plaintiff is bad for non-Joinder as necessary parties i.e., premabai. Padmabai. Horna bai and Sharadabia?

7. What decree or ordeil

13. The plaintiff in order to substantiate the claim examined himself as P.W-1 and also examined four witnesses P.Ws-2 to 5. He produced 3 documents, which are marked as Exs.P- 1 to 3. The defendants did not step into the witness box. He has produced no evidence. 11

14. The trial Court on the basis of the aforesaid oral and documentary evidence on record held that the plaintiff has proved that schedule properties ancestral properties. The daughters were all married even before 1962. That means they were all born prior to 1956 and therefore they are not entitled to a share in the property. The properties being ancestral properties. when the case of gift and Will is not established by the defendants by producing any acceptable evidence, the trial Court proceeded to decree the suit of the plaintiff as prayed for and granted ½ share to the plaintiff.

15. Aggrieved by the said judgment and decree of the trial Court. the defendants-2 and 3 have preferred this appeal.

16. The learned Counsel for the appellant assailing the impugned judgment and decree contended that two witnesses who were examined on behalf of the plaintiff were not offered for cross examination by the defendants. Even before their evidence could be completed. the other witnesses’ evidence was L 12 recorded. Sufficient opportunity was defendants to adduce evidence to substantiate their defence. The case of the defendants is that plaintiff had mortgaged Plot TO. 18 to Khadi and Village Industries. Bidar and raised funds and utilized the entire funds. Similarly, he was consenting witness to the sale of the properties by her mother where Rs.55.000-OO was the consideration amount and the entire amount was taken by him. The properties are family properties and therefore a suit for partition is not maintainable. These aspects have not been considered by the trial Court and therefore, the judgment and decree of the trial Court is vitiated.

17. However the learned Counsel the plaintiff supported the impugned order.

18. In the light of aforesaid and rival contentions, the points that arise for consideration in this appeal are as under: 13 (1) Whether the Judgment and decree of the thai Court granting decree for partition to the plain4ff Is vitiated for the aforesaid ground? (2) Whether the share allotted by the Court below IsJust and proper? POINT NO.1

19. From the pleadings, It is clear that there is no dispute that the schedule properties are ancestral properties originally belonging to Nagendra. His son is Naming Rao Tandle who Is the father of plaintiff and the first defendant. After the death of Nagendra, the property was mutated In the name of Naming Rao. After the death of Naming Rao. the property was mutated in the name of Chandrakala Bal. his wife. who died on

21.02.1995. After her death. the plaintiff and the first defendant are entitled to equal share. However as Naming Rao died living behind female heirs. a deemed partition Is to be 14 effected prior to his death in which event, Narsing Rao would have got 1/3rd share and his two sons would have got 1/3rd share as co-parceners. In Narsing Rao’s share, his wife, four daughters and two sons would rights. As Chandrakala Bai is no more, they would get 1 /6th share in 1/3rd share of Narsing Rao. The defence is, Narsing Rao gifted the property to Chandrakala Bai. Therefore, Chandrakala Bai became the absolute owner, who in turn gifted the property in favour of defendants-2 and 3, the sons of first defendant. Therefore the plaintiff has no right in the property. Even if the entire allegation in the plaint is said to have been proved. Narsing Rao had no right to gift the properties to his wife, as the properties which he inherited was ancestral properties in which the plaintiff and the first defendant being co-parceners, had right by birth. Admittedly, the said gift is not evidenced by any registered deed. No reference is made lo th registered deed in the written statement nor the document is produced. Therefore Chandrakala Bai did not become the absolute owner. If she was not the absolute owner and even if she had made a Will, 15 the legatees under the Will gets no right in the property. It is in this context. the evidence of five witnesses is of no consequence. Therefore, not giving an opportunity to cross examine or examining the witnesses before cross examination is complete or not giving opportunity to the defendants to lead evidence, is ol no relevance in deciding the rights of the parties. Therefore, the decree for partition passed by the trial Court cannot be found fault with.

20. However trial Court proceeded assumption that these daughters were married in 1962. Therefore they were all born prior to 1956. Therefore they cannot be treated as co-parceners and their share would not be equal to that of the sons. But none the less. the father died after 1956. The suit property are ancestral properties. Section 6 of the Hindu Succession Act. 1956. unamendecl, provided that if one of the co-parceners dies living behind female member, then the property goes by inheritencc and not by survivorship. Therefore the deemed partition is to be effected prior to the 16 death of Naming Rao. in which event Naming Rao would have got 1/3M share, plaintiff would have got 1/3rd1 share and first In that 1/3M share of defendant would have got 1/3M share. Naming Rao, again his sons, daughters and wife would get equal share. As his wife is no more as already stated, each one of them would get 1/6111 share and 1/3M share of Narsing Rao. Therefore the sons would be entitled to 1/3M share and 1/6th1 share, whereas, the daughters would be entitled to only 1/6th in the plaintiff would be the 1/3’ share of their father. Thus, entitled to 7/18th share, first defendant would be entitled to 7/18th share and daughters-defendants-4, 5, 6 and 7 would be entitled to 1/18th share In the schedule property. Though the daughters have not preferred any 21. appeal. this Court has got ample power under Order 41 Rule 33 relief to persons who have not preferred appeal. to grant Exercising that power conferred on this Court, in order to met the ends of justice and to uphold the rights of the daughters who are born prior to 1956, before amendment.

22. Therefore the judgment and decree is modified to that extent Though the daughters have not preferred an appeaL they have been given a share lo which they are legitimately entitled to. Hence. I pass the following order: Appeal is allowed in part as under: (1) (LI) Plaint(ff is entitled to 7/i 8th share. First defendant is entitled to 7/18tI share. (iii) Defendants-4 to 7 would be entitled to 1/18th share in all the suit schedule properties. (iv) No costs. sdI ksp/