Appellants/Defendants: 1. Chikkavenkatamma (W/o Chikkavenkategowda )
(both are dead) Dead by LRs on Record
2. R.Venkataswamy Gowda S/o Chikkavenkategowda
3. R.Narayana Gowda S/o Chikkavenkategowda
Respondents/Plaintiffs:1. Munivenkatappa Dead by LRs
2. Kenchamma D/o Munivenkatappa
3. Narayanamma D/o Munivenkatappa
4. Muniyamma D/o Munivenkatappa
Schedule items:
1. Sy.No. 20, 4 Guntas, khata in the joint name of Chikkavenkategowda and Munivekatappa.
2. Sy.No. 38, 14 Guntas, khata in the name of Narayanagowda (Dead) F/o Chikkavenkategowda and Munivekatappa
3. Sy.No. 74/6, 16 Acres, 8 Guntas, purchased by Chikkavenkategowda in 1940 khata in the name of Chikkavenkategowda and changed by pavathivarasu in the joint name of his sons R.Venkataswamy Gowda & R.Narayanagowda in 1995 after his death (20 years)
4. Sy.No. 135, 1 Acre, 24 Guntas, purchased by Chikkavenkategowda in 1940 khata in the name of Chikkavenkategowda and changed by pavathivarasu in the joint name of his sons R.Venkataswamy Gowda & R.Narayanagowda in 1995 after his death (20 years)
5. Sy.No. 145/5 & 145/8, 4 guntas, khata in the name of Narayanagowda (Dead) F/o Chikkavenkategowda and Munivenkatappa
6. House purchased by Chikkavenkategowda in 1948 from Perumakka and khata in the name of Chikkavenkategowda and currently possessed and managed by his sons R.Venkataswamy Gowda & R.Narayanagowda.
In OS 13/2012 at the Civil court, Malur, the suit filed by the Plaintiffs was decreed for half share and separate possession (Preliminary decree). It was based upon the presumption of Undivided Hindu family and not based upon any material facts and merits and hence the Defendants have challenged the order of the trial court and filed an appeal in the District court, Kolar on 16.01.2015, praying for setting aside the judgement of the trial court and to dismiss the suit as per law.
Contention of the Plaintiffs: All items are joint family properties, demand half share in all.
Contention of the Defendants: Items 1, 2 & 5 are joint family properties and hence both Defendants and Plaintiffs are in half share whereas items 3, 4 & 6 are self acquired properties of Chikkavenkategowda, who purchased it on 29 June 1940 from Nagappa. Nagappa purchased items 3 & 4 from court auction on 25.01.1940 by a court decree against Narayanagowda due to non payment of mortgage money to Nagappa. Narayangowda mortgaged items 3 & 4 to Nagappa in 1933 for Rs.300 but did not pay the mortgage money and interest. Hence Nagappa filed OS 555 in 1933-34 in Kolar Munsiff court and got decree for attaching the properties for sale, which was executed vide Ex.1393 in 1938-39 and sold on 25.01.1940. Sale was confirmed on 01.03.1940. Sale certificate issued to Nagappa by the court on 15.03.1940 vide Order 21, Rule 94 Section 47 CPC. Hence Nagappa got the rights and title over items 3 & 4 as evidenced in IL & RR extracts. Narayangowda lost his title and rights. On 29.06.1940 (after 105 days) Chikkavenkategowda (elder son of Narayanagowda) purchased these two items from Nagappa and registered in his name when his Father Narayanagowda was alive. Since then Chikkavenkategowda possess these properties, as eveidenced in IL & RR extracts. The khata for which was changed by pavathivarasu in the names of his sons R.Venkataswamy Gowda & R.Narayanagowda in 1995 after his death. Now, they are in the possession and enjoyment of these two items.
After death of Narayanagowda in 1969 his younger son Munivenkatappa filed case with Tahsildar, Malur in 1980 for half share and khata change in items 1-5. Tahsildar ordered joint katha for both brothers (Chikkavenkategowda and Munivenkatappa) in items 1, 2 & 5 and deleted the name of Munivenkatappa from the pahani (agriculturist column) in items 3 & 4 on the grounds that it was a wrong entry and they are self-acquired properties of Chikkavenkategowda. Munivenkatappa filed appeal against the order of the Tahsildar in Asst.Commissioner’s court in 1982-83, which was dismissed for default two times. He then challenged it in an appeal before the Special DC in Kolar in 1985. The Special DC while upholding the order of the Tahsildar, dismissed the appeal on the grounds that it was not maintainable and directed the Plaintiff Munivenkatappa to approach the proper forum of court (Civil court) to take partition proceedings. But Munivenkatappa was silent for nearly 23 years and he filed the civil suit only in 2008 for partition and half share in all 6 items. The civil court, Malur has decreed the suit for partition and half share on the basis of the presumption of joint Hindu family. But the Plaintiffs never proved or established the surplus income yielding joint family nucleus as required by the well settled principle of law but falsely claimed that these items were purchased by Chikkavenkategowda (elder son of Narayanagowda) as kartha of family by investing joint family income when his younger brother Munivekatappa was a minor of age 5-7. All these were false claims of the plainitiffs as there were no documentary proof to establish that Chikkavenkategowda was Kartha of the family and Munivenkatappa was a minor. Hence the Defendants have filed an appeal based upon the merits of the case and prayed for dismissing the suit as it was barred by time and laches. The contention of the defendants/appellants is that items 3, 4 & 6 are self acquired properties of his father, who purchased from his independent source of income and from any joint family nucleus. Already the defendants and plaintiffs have half share in items 1, 2 & 3, which are ancestral properties.1) it appears that sr no 3,4 , 6 are self acquired properties of Chikkavenkategowda purchased in 1940 and 1948 respectively .
2) on demise of father mutation has been done in name of the son .
3)it has to be proved by plaintiffs that suit property was purchased out of joint family funds .
4) it appears that suit is barred by limitation as for 23 years even after passing of order By Dc no suit for parttition has been filed
1) in Mst.
Rukhmabai v. Lala Laxminarayan and Ors. AIR 1960 SC 335, where the Court enunciated the legal position in this regard as under:-
"The legal position may be briefly status thus: The right to sue under Article 120 of the Limitation Act accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however, ineffective and innocuous it may be, cannot be considered to be clear and unequivocal threat to as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right."
2) In Krishna Pillai Rajasekharan Nair v. Padmanabha Pillai AIR 2004 SC 1206, the Apex Court observed that for a suit for partition, the starting point of limitation is--when the right to sue accrues, that is, when the plaintiff has notice of his entitlement to partition being denied. This issue also came up for consideration before the Division Bench in the case of Nanak Chand (supra). In that case, the plaintiff had served a notice for partition upon the defendants on 17.05.1963. Computed from that date, the period of limitation expired on 17.05.1969. The suit, however, was filed on 23.07.1969. Relying upon the aforesaid decisions of the Privy Counsel and Supreme Court, the Division Bench held that the right of partition sprang into existence when the notice of severance and demand for partition was served, but, the right to sue did not accrue until the defendant infringed or threatened to infringe that right.
3) in the present case since suit has been filed after 23 years suit would be barred by limitation
Suffering from laches of time is equitable defence and the court only takes into account while granting equitable relief and the suit is not simply barred by way ot.
In this case the delay if any is not so damaging.
1. What is your query please?
2. You are for the appellants or the respondents?
3. The Civil Court's order for the said partition against petition filed after 23 years of the Special DC in Kolar is maintenable since it is a partition suit only which he can file any time of his own,
4. The respondents shall have to contest the case on its merits.
