RFA No.1403 of 2003,C/w 1404 of 2003

16th November, 2007

Petitioner Counsel: Sri. T. N. RAGHUPATHY
Respondent Counsel: Sri. B. V. RAMAN,Sri. G. S. VEMKATACHALAPATHY,Sri S. SHANKARANARAYANA,Sri CHRISTOPHER NOEL,Sri S. SHANKARANARAYANA,Sri B. V. RAMAN and G. S. VENKATACHALAPATHY,Sri CHRISTOPHER NOEL,Sri P. NATARAJU

Cases Cited:
S. Saireddy Vs. C. S. Narayana Reddy, (1991)3 SCC 647 [Para PARA8]
Anar Devi Vs. Parmeshwari Devi, 2006(6) ALL MR 2 (S.C.)=2006 SAR (Civil) 874 [Para 8]
Gokul Chand Vs. Parvin Kumari, AIR 1952 SC 231 [Para PARA8]
Ramrati Kuar Vs. Dwarika Prasad Singh, AIR 1967 SC 1134 [Para PARA8]
P. S. Sairam Vs. P. S. Rama Rao Pisey, 2004(5) ALL MR 386 (S.C.) =2004(2) Civil L.J. 438 [Para 9]
Veerabhadrappa Vs. Smt. Gangamma, 2003(3) KCCR 1672 [Para PARA9]
B. P. Arun Kumar Vs. Smt. Achala, 2001(3) Civil L.J. 352 [Para PARA9]
Subbaraya Setty (Dead) by LRs. Vs. L. Nagappa (Dead) by LRs., [Para 9]
M. Arthur Paul Ratna Raju Vs. Gudese Garaline Augusta Bhushanabai, (1998)7 SCC 103 [Para PARA9]
Sushil Kumar Vs. Rakesh Kumar, AIR 2004 SC 230 [Para PARA9]
Sheela Devi Vs. Lal Chand, 2007 ALL SCR 1632 : 2007(2) Civil L.J. 364 [Para PARA99,18]
Dhanalakshmi Vs. P. Mohan, 2007(3) ALL MR 872 (S.C.)=2007 SAR (Civil) 155 [Para 9]
Badri Prasad Vs. Dy. Director of Consolidation, AIR 1978 SC 1557 [Para PARA911,14]
Smt. Nirmala Vs. Smt. Rukmibai, AIR 1994 KAR 247 [Para PARA911,15]

JUDGMENT

-H. N. NAGAMOHAN DAS, J.:- These two appeals are directed against the common judgment and decree dated 14.07.2003 in O.S. No.305/2000 and O.S .No.567/2001 passed by the Principal Civil Judge (Senior Division), Mysore, partly decreeing both the suits for partition.

2. Subject matter in O.S. No.305/2000 is immovable property bearing Nos.1120, 1121, 1122, 1123 and 1452 situated at Vinoba Road, Shivaram Pet, Mysore and the subject matter in O.S. No.567/2001 is property bearing No.2011 situated at Seebaiah Road, Devaraj Mohalla, Mysore (hereinafter referred to as 'schedule properties'). Appellants are plaintiffs in O.S. No.305/2000 and defendants Nos.1 to 8 in O.S. No.567/2001. The plaintiffs in O.S. No.567/2001 are defendant Nos.1, 2 and 4 in O.S. No.305/2000. Defendant Nos.3 and 5 in O.S. No.305/2000 are purchasers of property situated at Vinoba Road, Shivaram pet, Mysore. Both the suits are for partition. In this judgment the parties are referred to by their status before the Trial Court in O.S. No.305/2000.

3. Plaintiffs contend that K. Doddananjundaiah and Puttamma are husband and wife and they had three daughters by name N. Parvathamma, (mother of plaintiffs), N. Leelamma, (defendant No.1), and K. Kamalamma (defendant No.2), Puttamma died in the year 1959 and K. Doddananjundaiah died in the year 1969 leaving behind the three daughters as their only legal representatives. The first daughter N. Parvathamma died in the year 1998 leaving behind the plaintiffs and defendant No.6 as her legal representatives. The schedule properties are the ancestral properties of K. Doddananjundaiah Defendant No.4 falsely claiming to be the adopted son of K. Doddananjundaiah got his name entered in the revenue records in respect of the schedule properties. Defendant No.4 in connivance with defendant Nos.1 and 2 sold the property situated at Vinoba Road. Shivaram Pet, Mysore in favour of defendant No.3 under a registered sale deed dated 14.04.1999. Defendant No.3 inturn sold this property in favour of defendant No.5. Plaintiffs contend that the sale made by defendant No.4 in favour of defendant No.3 and inturn to defendant No.5 are not binding on them and that despite repeated requests, demands and lawyer's notice, the defendants refused for partition and division of schedule properties. The plaintiffs having no other alternative filed O.S. No.305/2000 for partition and separate possession of their 1/3rd share in the schedule property.

4. Defendants contend, that after the demise of first wife Puttamma in the year 1959 K. Doddananjundaiah took Yashodamma as his second wife on 29.03.1960 and through her defendant No.4 was born on 16.10.1961. Defendants contend that Yashodamma is legally wedded by K. Doddananjundaiah and as such the defendant No.4 was their legal son. That during the life time of K. Doddananjundaiah defendant No.4, his mother and family of plaintiffs were residing together in the house situated at Seebaiah Road, Devaraj Mohalla, Mysore. Whereas K. Doddananjundaiah's second wife Yashodamma executed a registered settlement deed dated 16.04.1971 settling the schedule properties in favour of her son - defendant No.4 and the Defendant No.4 inturn sold the schedule property situated at Shivarama Pet, Mysore in favour of defendant No.3 and who in turn sold the same in favour of defendant No.5. The defendants further contend, that they are having a right in the property situated at Seebaiah Road, Devaraj Mohalla, Mysore and are entitled for a share in the said property. Therefore the defendants were obliged to file O.S. No.567/2001 against the plaintiffs for partition and separate possession of plaint schedule property.

5. Defendant Nos.3 and 5 who are the subsequent purchasers of the schedule property contend, that they are bonafide purchasers of property situated at Shivaram Pet, Mysore for valuable consideration and they pray to dismiss the suit in O.S. No.305/2000.

6. On basis of pleadings, the Trial Court framed the following issue in the said two suits as hereunder:

I. Whether the plaintiffs prove that Smt. N. Parvathamma and defendants 1 and 2 are the only daughters of late Doddananjundaiah and plaintiffs are the children of N. Parvathamma and the said Doddananjundaiah had no male issues ?

II. Whether the plaintiffs further prove that the schedule property is the joint family property of mother of the plaintiff, and the 1st and 2nd defendants ?

III. Whether the plaintiffs further prove that 4th defendants is not the adopted son or the natural son of late K. Doddananjundaiah?

IV. Whether the plaintiffs prove that the alleged sale deeds dated 14.04.1999 purported to have been executed by the 4th defendant in favour of 3rd defendant are void-ab-initio and does not bind the plaintiffs nor convey any title to the 3rd defendant ?

V. Whether the defendants prove that plaintiffs have not valued the suit property and the Court fee paid is insufficient ?

VI. Whether the defendants prove that there is no cause of action for the plaintiffs to file the present suit ?

VII. Whether the 5th defendant proves that he is a bonafide purchaser of the schedule property ?

VIII. Whether the plaintiffs are entitled for 1/3rd hare in the schedule property ?

IX. Whether the plaintiffs are entitled for mesne profits to be determined under Order 20, Rule 12 of CPC ?

X. Whether the plaintiffs are entitled for the relief sought for ?

XI. What order or decree ?

Issues in O.S. No.567/2001

I. Whether the plaintiffs prove that the 1st plaintiff is the son and the plaintiffs 2 and 3 and Smt. Parvathamma, the deceased mother of the defendants 1 to 8 are daughters of late Sri K. Doddananjundaiah, who lived in Do No.2011, Seebaiah Road, Devaraja Mohalla, Mysore ?

II. Whether the plaintiffs further prove that the 1st plaintiff is the son of Sri K. Doddananjundaiah born to his 2nd wife Yashodamma ?

III. Whether the plaintiffs further prove that the suit property is the joint family property and K. Doddananjundaiah died intestate in the year 1969 ?

IV. Whether the plaintiffs prove that they together entitled to 9/10th share in the suit property ?

V. Whether the first defendant proves that he is entitled to a share in the suit property? If so, what quantum ?

VI. Whether the defendants 2 to 8 prove that they have perfected their title to the suit property by operation of doctrine of adverse possession ?

VII. Whether the defendants 2 to 8 prove that the suit is hit by the provisions of Section 23 of the Hindu Succession Act ?

VIII. Whether the defendants 2 to 8 prove that there is no cause of action for the suit ?

IX. Whether the defendants 2 to 8 further prove that the suit is not properly valued and Court fee paid is insufficient ?

X. Whether there shall be an enquiry to determine future mesne profits to be determined under Order 20, Rule 12 of CPC ?

XI. Whether the plaintiffs are entitled for the relief sought for ?

XII. What decree or order ?

7. The plaintiffs examined one witness as P.W.I and got marked Ex.P.1 to Ex.P.15. The defendants examined three witnesses as D.W.I to D.W.3 and got marked Ex.D.1 to D.40. The Trial Court after hearing both the parties and on appreciation of the pleadings, oral and documentary evidence on record concludes that Yashodamma is the legally wedded wife of K. Doddananjundaiah and defendant No.4 is their legal son. The Trial Court further held, that the schedule properties are the joint family properties of K. Doddananjundaiah and there exists a joint family between the plaintiffs and defendants. The Trial Court held that the sale of one of the schedule properties in favour of defendant Nos.3 and 5 is not binding on the plaintiffs and that it will not affect their right in the schedule property. Consequently the Trial Court passed the impugned judgment and decree partly decreeing both the suits declaring that plaintiffs are entitled for 1/10th share in both the schedule properties. The plaintiffs being aggrieved by the impugned judgment and decree in both the suits have filed these two appeals.

8. Sri. T. N. Ragupathy, Learned Counsel for plaintiffs had contended that the Trial Court committed an error in not properly appreciating and assessing the oral and documentary evidence on record. He further contended that Ex.D.3, the lagna patrika (a document prepared on the date of engagement) produced by the defendants is a concocted and false document and no reliance could have been placed on the same. That the defendants have failed to prove and establish that Yashodamma was the legally wedded to K. Doddananjundaiah and that in the absence of a valid marriage, defendant No.4 could not become a co-parcener and at best he might be entitled for a share with other children of K. Doddananjundaiah and that the registered settlement deed of the year 1971 executed by Yashodamma was without authority and the same is not binding on the plaintiffs and that Defendant Nos.3 and 5 had the knowledge of the right of plaintiffs in the schedule properties and therefore defendant Nos.3 and 5 are not bonafide purchasers. Alternatively it is contended, that during the pendency of these appeals Section 6 of the Hindu Succession Act ("the Act' for short) came to be amended and the same is applicable to the facts of the case. As per the amended Section 6 of the Act plaintiffs mother, Parvathamma becomes a co-parcener and as such the plaintiffs are entitled for a share in the schedule properties equal to the other members of the family. Reliance is placed on the following decisions.

1. S. Saireddy Vs. C. S. Narayana Reddy and Others, (1991)3 SCC 647.

2. Anar Devi and Others Vs. Parmeshwari Devi and Others, 2006 SAR (Civil) 874 : [2006(6) ALL MR 2 (S.C.)].

3. Gokul Chand Vs. Parvin Kumar, AIR 1952 SC 231.

4. Ramrati Kuar Vs. Dwarika Prasad Singh and Others, AIR 1967 SC 1134.

9. Sri.G. S. Venkatachalapathy Learned Counsel for defendant Nos.1, 2, 3 and 5 supports the impugned judgment and decree of the Trial Court. He contends, that Ex.D.3, the lagna patrika had come into existence at the earliest point of time and the genuineness of the same cannot be questioned at this length of time. He further contends, that apart from Ex.D.3 the other documents like Ex.D.1, Ex.D.5 and Ex.D.8 establishes that Yashodamma as the second wife of K. Doddananjundaiah. It is further contended that plaintiffs, their mother late Parvathamma, K. Doddananjundaiah, Yashodamma and defendant No.4 were residing in the same house at Seebaiah Road, Mysore and as such a presumption arises that there was valid marriage between K. Doddananjundaiah and Yashodamma. In support of the argument reliance is placed on the following decisions.

1. P. S. Sairam and Another Vs. P. S. Rama Rao Pisey and Others, 2004(2) Civil L.J. 438 : [2004(5) ALL MR 386 (S.C.)].

2. Veerabhadrappa and Another Vs. Smt. Smt. Gangamma and Another, 2003(3) KCCR 1672.

3. B. P. Arun Kumar Vs. Smt. Achala and Another, 2001(3) Civil L.J. 352.

4. L. Subbaraya Setty (Dead) by Lrs. and Others Vs. L. Nagappa (Dead) by LRs. and Others, 2002 SAR (Civil) 469.

5. M. Arthur Paul Ratna Raju and Others Vs. Gudese Garaline Augusta Bhushanabai and Another, (1998)7 SCC 103.

6. Sushil Kumar Vs. Rakesh Kumar, AIR 2004 SC 230.

7. Sheela Devi and Others Vs. Lal Chand and Another, 2007(2) Civil L.J. 364 : [2007 ALL SCR 1632].

8. Dhanalakshmi and Others Vs. P. Mohan and Others, 2007 SAR (Civil) 155 : [2007(3) ALL MR 872 (S.C.)].

10. Sri. B. V. Raman, Learned Counsel for some of the defendants contend that plaintiffs in O.S. No.305/2000 specifically pleads that defendant Nos.1 and 2 created fictitious person by name D. N. Dinesh as the adopted son of K. Doddananjundaiah and through him one of the schedule properties are sold in favour of defendant No.3. If defendant No.4 is a fictitious person, then suit filed against him for partition in O.S. No.305/2000 is liable to be dismissed as not maintainable. He supports the impugned judgment and decree.

11. Sri. S. Shankaranarayana, Learned Counsel for LRs. of defendant So.4 contended that even in the absence of Ex.D.3 Lagna Patrika there was oral and documentary evidence on record to show that K. Doddananjundaiah and his second wife Yashodamma lived together as husband and wife for a long length of time and as such, there arises a presumption in law that there was valid marriage between them and that defendant No.4 is their legal son. He further contended, that plaintiffs and their mother Parvathamma were living with K. Doddananjundaiah. Yashodamma and their son - defendant1 No.4 under one roof During the period from 1960 to 1991 and that there was no dispute at all with regard to the validity of marriage of Yashodamma with K. Doddananjundaiah and further with regard to the status of defendant No.4 as their legal son. Therefore according to the Learned Counsel for the respondent No.4 the Trial Court was perfectly justified in holding that the marriage of K. Doddananjundaiah with Yashodamma was legal and defendant No.4 was their legal son. He further placed reliance on the following decisions.

1. Badri Prasad Vs. Dy. Director of Consolidation and Others, AIR 1978 SC 1557.

2. Smt. Nirmala and Others Vs. Smt. Rukmibai and Others, AIR 1994 KAR 247.

12. We heard arguments on both the sides and perused the entire appeal papers and various decisions cited at the Bar.

13. At the outset it is worth observing that it is not in dispute that the schedule properties were the ancestral properties of late K. Doddananjundaiah and that Puttamma was the wife of K. Doddananjundaiah and through her there were three daughters by name N. Parvathamma, N. Neelamma and N. Kamalamma. The important dispute in this case is whether there is valid marriage between K. Doddananjundaiah and his second wife Yashodamma. Ex.D.3 lagna patrika is one of the documents produced by the defendants to show that there is valid marriage between K. Doddananjundaiah and Yashodamma. This document lagna patrika is not signed by the scribe, the parties to it and the same is dated nil. In this document, the lagna patrika the marriage date is specified as Monday, the 29th March, 1960. On comparison with the calendar for the relevant year the marriage day, 29.03.1960 falls on Tuesday and not on Monday. It is also an admitted fact that Hindus will not celebrate auspicious events like marriage on an inauspicious day like Tuesday. In this document it is specified that Sunday the 28th February, 1960 is the day of performance of certain poojas like devatha karya. In the normal course the devatha karya is performed on the day previous to the day of marriage. But in the instant case there is a gap of nearly one month between the day of devatha karya and the day of marriage. For these reasons, Ex.D.3 -the lagna patrika creates a suspicion with regard to the marriage between K. Doddananjundaiah and Yashodamma and the same cannot be relied on.

14. Learned Counsel for the defendants alternatively contend that K. Doddananjundaiah and Yashodamma lived together under one roof for reasonably long length of time as husband and wife and therefore a presumption arises that there is valid marriage between them. In support of this contention reliance is placed on the decision of Supreme Court in Badri Prasad Vs. Dy. Director of Consolidation and Others (supra) where in it is held as under :

"For around 50 years, a man and a woman, as the facts in this case unfold, lived as husband wife. An adventurist challenge to the factum of marriage between the two, by the petitioner in this special leave petition, has been negatived by the High Court. A strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin. Law leans in favour of legitimacy and frowns upon bastardy. In this view, the contention of Shri. Garg, for the petitioner, that long after the alleged marriage, evidence has not been produced to sustain its ceremonial process by examining the priest or other witnesses, deserves no consideration. If man and woman who live as husband and wife in society are compelled to prove, half a century later, by eye-witness evidence that they were validly married, few will succeed. The contention deserves to be negatived and we do so without hesitation. The special leave petitions are dismissed."

15. A division bench of this court in Smt. Nirmala and Others Vs. Smt. Rukmibai and Others (supra) by following the law laid down by the Supreme Court in Badriprasad's case held that when there is a presumption that there is a legal and valid marriage the same is rebuttable presumption.

16. Keeping in view the principle laid down by the Supreme Court and this Court in the decisions referred to above it is necessary to examine the fact situation in the instant case. Ex.D.1 is the voter's list for the year 1966 showing that K. Doddananjundaiah and Yashodamma lived as husband and wife. This document further establishes the fact that K. Doddananjundaiah and Yashodamma, plaintiff's mother Parvathamma and her family members lived under one roof in the house situated at Vinoba Road, Shivaram Pet, Mysore. Ex.D.5 is the photograph showing the presence of Yashodamma and her son - deceased defendant No.4 - Dinesh with the dead body of K. Doddananjundaiah. These two documents came into existence at an undisputed point of time. The material on record discloses that between 1960 and 1969 K. Doddananjundaiah and Yashodamma lived together as husband and wife under one roof and gave birth to a son by name Dinesh. The plaintiffs mother Parvathamma and her family members also lived with K. Doddananjundaiah during the relevant period. The plaintiffs and their parents have recognized the relationship between K. Doddananjundaiah and Yashodamma as that of husband and wife. Even in the absence of evidence regarding proof of actual marriage, their arises a presumption in favour of valid marriage between K. Doddananjundaiah and Yashodamma. Except bare denial of valid marriage between K. Doddananjundaiah and Yashodamma, the defendants have not adduced any evidence rebutting the presumption of valid marriage. A heavy burden lies on the plaintiffs to adduce strong evidence rebutting the presumption of valid marriage and have failed to do so.

17. Ex-D.4 - the birth certificate, Ex-D.12 -the S.S.L.C. markscard, Ex-D.13 - the sworn affidavit, Ex-D.14 - the P.U.C. markscard, Ex-D.15 - the job oriented course certificate, Ex-D.17 - the marriage invitation, Ex-D.1 - the assessment register extract are the documents produced by the defendants to show that deceased defendant No.4 - Dinesh as the son of K. Doddananjundaiah through Yashodamma. Though there are certain discrepancies in these documents it is not seriously disputed that deceased defendant No.4 as the son of K. Doddananjundaiah. The oral and documentary evidence on record establishes the fact that deceased defendant No.4 - Dinesh as the legitimate son of K. Doddananjundaiah and Yashodamma.

18. The contention of Learned Counsel for the plaintiffs that as per the amended provisions of Hindu Succession Act which came into effect on 9.9.2005, the three daughters of K. Doddananjundaiah through his first wife will become co-parcenors and entitled for equal share with the male co-parcenors. We decline to accept this contention of the Learned Counsel for the plaintiffs. The Supreme Court in Sheela Devi and Others Vs. Lal Chand and Another [2007 ALL SCR 1632] (supra) while dealing with the amended Hindu Succession Act, 2005, it is held as under :

"The Act indisputably would prevail over old Hindu Law. We may notice that the Parliament, with a view to confer right upon the female heirs, even in relation to the joint family property, enacted Hindu Succession Act, 2005. Such provision was enacted as far back in 1987 by the State of Andhra Pradesh. The succession having opened in 1989, evidently, the provisions of Amendment Act, 2005 would have no application. Sub-Section(1) of Section 6 of the Act governs the law relating to succession on the death of a co-parcener in the event the heirs are only male descendants. But, proviso there appended to sub-Section (1) of Section 6 of the Act creates an exception. First son of Babu Lal, viz., Lal Chand, was thus, a co-parcener. Section 6 is exception to the general rules. It was therefore, obligatory on the part of the plaintiffs-respondents to show that apart from Lal Chand, Sohan Lal will also derive the benefit thereof. So far as the Second son Sohan Lal is concerned, no evidence has been brought on records to show that he was born prior to coming into force of Hindu Succession Act, 1956."

19. Keeping in view the law laid down by the Supreme Court in Sheeladevi's case, the fact situation in this case is required to be examined. It is not in dispute that K. Doddananjundaiah died in the year 1969. On the demise of K. Doddananjundaiah in 1969, the succession is opened. As per the Hindu Succession Act in force in 1969 a co-parcenor is entitled for co-parcenory property. In the year 1969 K. Doddananjundaiah and his son deceased defendant No.4- Dinesh are the two persons who are the co-parcenors of the joint family. It is not in dispute that the schedule properties are the ancestral properties of K. Doddananjundaiah. On a notional partition K. Doddananjundaiah is entitled for half share and his son deceased-Dinesh is entitled for half share in the schedule properties. After the demise of K.Doddananjundaiah in the year 1969 his half share devolve upon class - I heirs. Class-I heirs in the instant case are deceased, wife Yashodamma, three daughters by name Parvathamma, Neelamma, and Kamalamma and the only son Dinesh and each one of them are entitled to equal share in the half share of late K. Doddananjundaiah. Therefore, the amended provisions of Hindu Succession Act, 2005 are not applicable to the facts of this case since the succession had already opened in the year 1969 on the demise of K. Doddananjundaiah.

20. The material on record discloses that after the demise of K. Doddananjundaiah, his second wife Yashodamma executed a registered settlement deed on 16.4.1971 in favour of deceased defendant No.4. On the strength of this registered settlement deed dated 16.4.9171, defendant No.4 and two daughters of K. Doddananjundaiah by name N. Neelamma and N. Kamalamma executed a registered sale deed on 14.4.1999 in favour of defendant No.3 and in turn to defendant No.5. The registered settlement deed dated 16.4.1971, the registered sale deed dated 14.4.1999 and the subsequent registered sale deed in favour of defendant No.5 are not binding on the plaintiffs and the same will not affect their right in the schedule properties. The sale deeds in favour of defendant Nos.3 and 5 are valid only on the extent of share of defendant Nos.1, 2 and 4 and binding of them. The impugned Judgment and Decree declaring that plaintiffs are entitled for 1/10th share in the schedule properties is in accordance with law. We do not find any justifiable ground to interfere with the impugned Judgment and Decree of the Trial Court.

For the reasons stated above these two appeals are hereby dismissed with no order as to costs.

Appeals dismissed.