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1 IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 16TH DAY OF APRIL, 2014
PRESENT:
THE HON'BLE MR.JUSTICE N.KUMAR
AND
THE HON'BLE MR.JUSTICE H.BILLAPPA
Regular First Appeal No.496/2012 (Par)
BETWEEN:
Sri.U.P.Narendra, S/o.Late Sri.Urvinkan.S.Puttan, Aged 77 years, Coffee Planter, Gowankan Estate, Byravalli Village Mallandur Post, Chickmagalur : 577 101. ... APPELLANT
(By Sri.Vinayak.N.Kamath, Adv.)
AND:
Sri.Goutham Narendra, S/o.Sri.U.P.Narendra, Aged about 47 years.
Sri.Vikram Narendra, S/o.Sri.U.P.Narendra, Aged about 45 years.
2 3. Smt.Shwetha Goutham Narendra, W/o.Sri Goutham Narendra, Aged about 41 years.
Smt.Monisha Vikram Narendra, W/o.Sri.Goutham Narendra, Aged about 44 years.
Smt.Vasantha Narendra W/o.Sri.U.P.Narendra,
Respondent Nos.1 to 4 are Residing at Gowankan Estate, Byaravalli village, Avathi Hobli, Chickmagalur – 577 101. ...RESPONDENTS
(By Sri.M.S.Raghavendra Prasad, Adv. for R1 to R4)
***** This RFA is filed u/sec.96 of CPC, against the Judgment and Decree dated: 30.11.2011 passed in O.S.147/2004 on the file of the Senior Civil Judge, Chikmagal!ur, dismissing the suit for partition and separate possession.
This RFA coming on for Orders, this day, N.KUMAR, J., delivered the following: J U D G M E N T
This is a plaintiff’s Regular first appeal challenging the judgment and decree dated 30.11.2011 passed in
3 O.S.No.147/2004 by the Trial Court which has dismissed the suit for partition and separate possession.
For the purpose of convenience, the parties are referred to as they are referred to in the original suit.
Plaintiff is the father of the defendants 1 & 2. Defendant No.3 is the wife of the first defendant. Defendant No.4 is the wife of the second defendant. Defendant No.5 is the wife of the plaintiff. The case of the plaintiff is, he is the Kartha or Manager of the joint family. In the family division between his cousins, he had received only a small sum of money in lieu of his share in the immovable property. The plaintiff had purchased Gowankan Estate consisting of Item Nos.1 to 8 in the suit schedule under a sale deed dated 01.02.1971 from the legal representatives of late F.R.P.Cannon being N.G.F.Graham and other legal representatives for the price of `.3,61,250/- out of which Rs.1,36,250/- was paid in cash and balance of
4 Rs.2,25,000/- was made payable with interest at 9% p.a. on or before 31.03.1972. The plaintiff was then working in the British Company in Kerala in Kannandevan Hill Produce Company Limited, where in addition to his salary he had the benefit of rent free quarters and a Car for his use and he was an assessee under Central Income Tax Act and assessed by Salary Circle-Eranakulam. From out of his savings he had not only discharged the said balance of price but also subsequently having served in the said Company which was taken over by TATAs, for 20 long years, he had accumulated Provident Fund and Gratuity with which he had not only improved the schedule property but purchased Lower Gowankan Estate under the sale deed dated 11.07.1988 which are Item Nos.9 to 15 of the suit schedule in the name of the first defendant with the assistance and financial help from Smt.Sharada, sister of the plaintiff and her husband late K.S.Eshwaran and with his own and with common funds he had built bungalow for comfortable living
5 of himself and his family. The plaintiff had also sold the first luxury Car and Royal Enfield motor cycle for the said purpose.
With the object of reducing the incidence of taxes and to avoid payment of unnecessary wealth tax and estate duty, the plaintiff had executed a nominal partition deed dated 01.04.1982 under which the plaintiff allotted to himself only an extent of 19.25 acres but allotted an extent of 43 acres 07 guntas to the eldest son, the first defendant, 63 acres 03 guntas to his second son, the second defendant and an extent of 22 acres 27 guntas to his wife, the fifth defendant though she was not entitled to a share as some money was invested by her which was the bequest from her father. The partition is unequal and inequitable and it was not for evading taxes but only lawfully avoiding unnecessary taxes which is legal. Such taxes were disincentive taxes such as wealth tax and estate duty which were both subsequently withdrawn and repealed and the
6 partition of 1982 under the partition deed dated 01.04.1982 was nominal and not intended to be acted upon and it was never acted upon. The family continued to be joint even to this day and there was no ceasure of commensality. The family continued to live together under one roof and the bungalow, drying yard for coffee and coffee pulper unit are being used by all together in common. To enable the plaintiff as Kartha or Manager and to facilitate management he had also obtained a GPA for the purpose of effective management from defendants 1 & 2 dated 06.01.1986.
The plaintiff had put his own vast sum from out of savings from his salary and from Provident Fund and Gratuity amount for the purchase and development of properties. The plaintiff has been toiling and working hard to improve the schedule property while the defendants 1 & 2 were enjoying their life in Bangalore. Their life style was such that each of them have been enjoying two Cars and spending huge amounts whenever they visit Bangalore as
7 per the entries made by the second defendant himself in the account books. He was spending huge amounts for his motor rallies, i.e., races and both defendant Nos.1 and 2 went twice for foreign tours and therefore, the plaintiff with the object of disciplining them required them to cut short their spending as the coffee industry is now facing a crisis due to fall of prices and increase of price of inputs and there was difficulty in recovering the cost of production of coffee. The defendants 1, 2 & 5 were enraged and through their notice by their advocate dated 22.03.2004 got the power of attorney dated 06.01.1986 revoked and sent notices to Chikmagalur Branch of Corporation Bank to freeze the facility, which resulted in dislocation of agricultural operations and payment of annual settlement to the labour and got sent copies of the notices to the Bank as well as relatives making unfounded allegations while the plaintiff only had the intention to tighten the belts of his sons in view of the crisis in the coffee industry. From out of his
8 own personal funds, the plaintiff had paid long time ago for the apartment of 3 bed room flat bearing No.1A on the ground floor of Block No.1 in Regency Place and therefore had purchased it under the sale deed dated 26.04.2004. As this flat is his own self acquired property it is not included in the plaint schedule. From out of the common funds the plaintiff had purchased another 3 bed room flat in the first floor in Regency Place which is Apartment No.A1 and detailed in Item No.16 of the schedule under the three sale deeds each for 1/3 undivided right in it and each dated 28.10.1998 in the name of fifth defendant in the name of Smt.Shwetha Goutham, the 3rd defendant and in the name of fourth defendant Smt.Monisha Vikram. The third and fourth defendants have not invested any money but had only lent their names and they have absolutely no right, title or interest over Item No.16 of the suit schedule. Without the consent of the plaintiff, the first and second defendants sold 1400 bags of coffee in April 2004 for
9 `.2,450/- per bag which were kept for warehousing in Bhadra Coffee Curing Works when the prices were raising and incurred a loss of `.6,00,000/- and they are therefore accountable to the plaintiff. The friend of the plaintiff late Donald Graham had bequeathed a sum of `.10,00,000/- to the plaintiff which he received and paid in full to the third defendant Smt.Shwetha Goutham by way of gift. The partition of 1982 was nominal and not intended to be acted upon and therefore the family continues to be joint and the plaintiff and defendants 1 & 2 each have 1/3rd undivided right in all the suit schedule properties. The fifth defendant is not entitled to a share but she is entitled to a share in lieu of right of maintenance and also as her money was invested and she had been allotted an extent of 22 acres 27 guntas which the plaintiff has no objection for allotting the same to her. The suit is filed for partition of plaintiff’s 1/3rd share and accounts from the defendants 1 & 2.
After service of summons, the defendants 1, 2 & 5 have filed their written statement. They have contended that the suit filed by the plaintiff for partition and separate possession of his alleged 1/3rd share in the suit schedule properties without seeking the cancellation of earlier partition is not maintainable in law and therefore on this ground alone the suit is liable to be dismissed. The suit of the plaintiff is also hopelessly barred by time as there is already a partition admittedly under the registered partition deed dated 01.04.1982. The plaintiff’s suit is mischievous and malicious in as much as he cannot be permitted to reopen the earlier partition at his whims and fancies. The allegation that the registered partition deed dated 01.04.1982 is a nominal deed and intended to reduce the incidence of taxes and to avoid unnecessary wealth tax and Estate duty is false. The partition as evidenced by the deed dated 01.04.1982 is a real partition brought about by the plaintiff himself and has been acted upon.
The plaintiff’s father late U.S.Puttanna was a rich person hailing from a wealthy family know as Urvinkhan family. The plaintiff’s father late Sri.U.S.Puttanna got a sum of `.90,000/- from out of joint family proceeds and nucleus wayback in the year 1936 at a partition between himself, late Sri.Kalasegowda and late Sri.U.S.Lokappa Gowda.
Unfortunately, the plaintiff’s father late U.S.Puttanna died at an early age leaving behind him his minor children plaintiff and U.P.Sharada. They were looked after by their uncle U.K.Lakshman Gowda who is a known personality in Chikmagalur District. The said amount of `.90,000/- so received by the plaintiff’s father was passed on to the plaintiff together with interest and it constituted a huge ancestral amount to the plaintiff to acquire the suit schedule Item Nos.1 to 8. Therefore, it is incorrect that the plaintiff had received only a small sum of money in lieu of his share in his ancestral properties. It is true that the
12 plaintiff and defendant No.5 together had purchased Gowankhan Estate i.e., suit schedule Item Nos.1 to 8 under the registered sale deed dated 01.02.1971 from out of his ancestral funds and also from the fund of the 5th defendant.
M/s.U.K.Subbaiah as well as U.K.Lakshman Gowda have also paid the substantial amounts to the plaintiff to purchase these properties. Ofcourse, the plaintiff was then working in British Company and getting salary and emoluments and he might have contributed some portions of savings in connection with the purchase of suit schedule Item Nos.1 to 8. However, he did not invest all his earning in purchasing the suit schedule Item Nos.1 to 8.
Again, the plaintiff purchased an extent of 43 acres of coffee lands known and called as lower Gowankhan Estate measuring 43 acres which properties are mentioned as Item Nos.1 to 8 in the ‘B’ schedule of the registered
13 partition deed dated 01.04.1982 from out of the ancestral nucleus which the plaintiff had received and also from out of the financial assistance from the plaintiff’s brother-in-law K.S.Eshwaran and the brother of the fifth defendant maternal uncle of the defendants 1 & 2, Mr.M.D.Balakrishna. The money so received from them has been repaid. As on 01.04.1982, the plaintiff, the defendants 1 & 2 and defendant No.5 jointly had held Items 1 to 8 then known and called Upper Gownkhan Estate and an extent of 43 acres known and called as Lower Gownkhan Estate. So far as the suit schedule Items 9 to 15 are concerned these properties have been purchased by the first defendant during 1988 i.e., on 11.07.1988 known and called as Ginimao Estate from out of the income which had been accumulated from the properties allotted to his share under the registered partition deed dated 01.04.1982 which are mentioned in the ‘B’ schedule of the said deed. Of course, the 5th defendant has also contributed from out of
14 her share allotted under the registered partition deed (24 acres of coffee lands) by way of gift to the first defendant to purchase 60 acres of Gunimavu Estate. Therefore, the plaint schedule Item Nos.9 to 15 are the properties exclusively belonged to the first defendant. It is false that the plaintiff has purchased these properties from out of his earnings. It is false that the plaintiffs sister and brother-in- law contributed funds to acquire these properties.
After the purchase of the suit schedule Item Nos.1 to 8, the plaintiff as the head of the HUF got constructed a residential house, coolie line, drying yard and got installed coffee pulping machine in Lower Gownkhan Estate which fell the share of the first defendant. These were during 1976 as till then the plaintiff and the defendants were residing at Munnar in Kerala State where the plaintiff was working and the family was getting income from the suit schedule Item Nos.1 to 8 and other items fell to the share of the first defendant. Thereafter, the plaintiff
15 with the defendants shifted from Munnar to Lower Gownkhan Estate. The plaintiff from out of the income got from the properties allotted to the share of the first defendant and the fifth defendant, got constructed a new residential building during 1993-1994 in Ginimao Estate purchased by the first defendant under the registered sale deed dated 11.07.1988. Because the defendant got married the 4th defendant during 1995, he along with defendant No.4 shifted to the said new bungalow so constructed by the first defendant through his father, the plaintiff. Whereas the defendants 1, 3 and 5 continued their residence in the bungalow got constructed in Lower Gownkhan Estate during 1976. The plaintiff, even after the partition dated 01.04.1982, was managing the affairs of these defendants as well as their properties and from the income derived, he had purchased the vehicles referred to in Para – 2 of the plaint and thereafter sold them and realized the proceeds. The deed of partition referred to in
16 Para – 3 of the plaint is the creation of the plaintiff himself during the minority of the defendants 1 & 2. He cannot now be permitted to get over the same by alleging that the said document is a nominal document. As a matter of fact, the deed of partition dated 01.04.1982 has been acted upon by the plaintiff himself. He was maintaining three separate accounts. He got the revenue documents changed to the respective names of these defendants. The plaintiff has also since the date of registered partition deed used to declare the taxable income of these defendants separately. These defendants have acted upon the registered partition deed and they were assisting the plaintiff in managing not only the properties fell to their respective shares and also the properties fell the share of the plaintiff himself. The allotment of shares to these defendants is the voluntary act of the plaintiff himself and he was content with the extent of properties allotted to his share. So far as the share of the 5th defendant is concerned, a share was allotted to her
17 by the plaintiff himself having regard to her right of maintenance and also having regard to her contribution in purchasing the properties. The allegation that the partition under the registered partition deed dated 01.04.1982 is unequal and inequitable merely because the extent retained by the plaintiff is far less than the extents allotted to the share of these defendants is not correct. It may also be noted that the extents allotted to these defendants are also not equal. Perhaps, in the best interest of the parties to the partition deed, the plaintiff must have thought fit and arranged for allotment of shares as mentioned in the registered partition deed dated 01.04.1982. The other reasons assigned by the plaintiff of avoiding unnecessary taxes etc., cannot be a ground to the plaintiff to avoid the registered partition deed dated 01.04.1982.
The defendants allowed the plaintiff to manage their properties even after partition and even after the defendants 1 & 2 attained majority because of the regard and respect they
18 had for the plaintiff. They admit the execution of the Power of Attorney and also its revocation. There is a legal severance and cessation of commonality in the eye of law. They have also categorically joined to develop the properties and all the allegations made are denied. The reasons for revocation of the Power of Attorney is clearly set out in the legal notice issued and therefore, the defendants 1, 2 and 5 have prayed for dismissal of the suit.
On the aforesaid pleadings, the Trial Court has framed the following issues
Whether the plaintiff proves that the suit schedule properties are the joint family properties of himself and the defendants?
Whether the plaintiff proves that the partition deed dated 01.04.1982 was nominal and it was never acted upon the parties?
Whether the defendants prove that the suit schedule Item Nos.9 to 15 are the exclusive properties of 1st defendant?
Whether the plaintiff proves that he is entitled for partition and separate possession of 1/3rd share in the suit schedule properties?
Whether the plaintiff is entitled for the accounts from the defendant Nos.1 and 2 as prayed for?
Whether the defendants prove that the suit of the plaintiff is not maintainable without seeking the cancellation of earlier partition?
Whether the defendants prove that the suit of the plaintiff is barred by time?
Whether the plaintiff is entitled for the relief as prayed for ?
What order or decree?
The plaintiff in order to substantiate his claim has examined himself as PW-1 and has produced 28 documents which are marked as Exs.P1 to P28. On behalf of the defendants, the second defendant has been examined as DW-1. They have not produced any documents.
The Trial Court on appreciation of the oral and documentary evidence on record has held that the plaintiff has failed to prove that the suit schedule properties are the joint family properties of himself and the defendants. Further, the plaintiff has failed to prove that the partition deed dated 01.04.1982 was nominal and it was never acted upon. The defendants have proved that the suit schedule Item Nos.9 to 15 are the exclusive properties of the defendants. The plaintiff has failed to prove that he is entitled to partition and separate possession of 1/3rd share in the suit schedule properties. The plaintiff is not entitled to any amount from the defendants 1 & 2. The defendants
21 have proved that the suit filed by the plaintiff for partition and separate possession without seeking the cancellation of the earlier partition is not maintainable. They have also proved that the suit is barred by limitation and therefore, the Trial Court has dismissed the suit of the plaintiff.
The learned counsel for the appellant assailing the judgment and decree of the Trial Court contended that the partition deed dated 01.04.1982 is a nominal document. It is not acted upon. Inspite of the said partition deed, the family continued to be joint and after the partition deed, the plaintiff has acquired properties in the name of his children out of the joint family funds and therefore, the suit filed for partition is maintainable and the plaintiff is entitled to 1/3rd share. Infact, at the time of hearing of this appeal, an application has been filed for amendment of the plaint seeking relief of cancellation of the nominal partition deed on the ground that it is unequal and inequitable and not acted upon by the parties. He also
22 contended that the suit is not barred by time as no period is prescribed for filing the suit for partition.
Per contra, the learned counsel appearing for the defendants/respondents submitted that the partition deed is executed by the father during the minority of his sons for the purpose of avoiding tax liability. The partition deed has been acted upon and the revenue entries have been made in the name of the parties. Khatha of the properties has been transferred, separate income tax returns have been filed on behalf of the children which goes to show that no force or undue influence was practiced on the plaintiff to execute the partition deed and therefore, the plaintiff is estopped from contending that the partition is inequitable and the partition deed is a nominal document. The suit is filed nearly after 22 years from the date of the partition deed and therefore, it is clearly barred by time. Without seeking the relief of cancellation of the earlier partition deed, the suit for partition is not maintainable as rightly
23 held by the Trial Court and therefore, no case is made out for interference and the appeal is liable to be dismissed.
In the light of the aforesaid facts and rival contentions, the points that arise for our consideration are; 1) Whether the finding of the Trial Court that the partition deed dated 01.04.1982 is not a nominal one and is acted upon is illegal and calls for interference?
2) Whether the suit for partition without seeking cancellation of the earlier partition deed is maintainable?
3) Whether the suit of the plaintiff for partition is barred by limitation?
Point No.1: The father of a joint family has the power to divide the joint family property at any moment during his life provided he gives his sons equal shares with himself, and if he does so, the effect in law is not only a separation of the father from the sons, but a separation of
24 the sons inter se. The consent of the sons is not necessary for the father to exercise that power. However, a grandfather has no power to bring about a separation among his grandsons. Even if he allots shares, they remain joint. This right of a father at times is described as his ‘superior power’ or ‘peculiar power’ or patria potestas. The said power was recognized in ancient Hindu Law and due effect was given to the same. The father was entitled to effect a partition of joint family properties by virtue of his right as patria potestas.
When under a partition by a father, unequal shares are given to the sons, the transaction will be binding on the sons as a family arrangement, if acquiesced by them. If the partition is unequal and unfair, it is open to the sons if they are majors to repudiate the partition, but if they are minors, it is open to them to avoid it after they attain majority. The partition will be good, until it is set aside. The right of a minor is a personal right and cannot
25 be exercised by others. In any case, it is not necessary for the minor to formally seek to set aside the earlier partition before filing a suit for partition. If the sons find that the partition was not just and fair or unequal, it would be open to them to challenge the partition. A partition between a karta and his wife who was not a coparcener ignoring the claim of the son was considered as no legal partition.
Therefore, under Hindu Law, the father has a superior power as patria potestas to effect a partition of the joint family properties even without the consent of the other members of the joint family. As long as the said partition is fair and equal, sons cannot have any grievance whatsoever against the said partition. Only if such a partition is unequal, the other members would get a right to challenge such a partition. It necessarily follows that the person who effects the partition holding superior power cannot question the partition effected by him. He cannot contend that the partition which he has affected is unequal
26 or is not real and therefore, the family continues to be a joint and the properties of family continues to be joint family properties. In the instant case, it is not in dispute that the plaintiff received `.90,000/- from his father. Out of the said amount, item Nos.1 to 8 of the suit schedule properties have been purchased under a registered sale deed. Defendant Nos.1 and 2 are the sons of the plaintiff, they constitute a joint family and they are coparceners. Therefore, item Nos.1 to 8 of the suit schedule properties are coparcenery properties and also a joint family properties. The plaintiff was employed in a tea estate, he was getting salary, he was provided a car and a bungalow. The income derived from the coffee estate along with his income was taxed, apart from that, he was liable to pay wealth tax and gift tax. Under these circumstances, as a prudent man in order to avoid payment of tax and having regard to the fact that the properties belong to the joint family, the plaintiff has effected partition by giving
27 legitimate shares to his sons in the joint family properties so that the tax burden is brought to the minimum. Accordingly, a registered partition deed has been executed on 01.04.1982 allotting properties to his sons as well as his wife who has contributed in purchasing the properties. After the execution of the partition deed, the evidence on record shows that mutation has been effected in the name of the plaintiff, defendants 1, 2 and 5 in respect of the properties allotted to them in the partition deed. Khatha was also transferred. It was a coffee estate yielding income and therefore, all of them have filed separate income tax returns showing the income derived from the properties belonging to their respective share in the partition. On the day the partition was effected, defendant Nos.1 and 2 were minors. Therefore, notwithstanding the partition, the plaintiff was managing the estate. Thereafter, the defendants 1 and 2 became majors. Therefore, the defendants executed a general power of attorney dated
28 06.01.1986 empowering the plaintiff to manage their respective properties. If after the partition, if the family continued to be joint, the plaintiff continued to be the kartha of the family, then, there is no necessity for execution of the power of attorney. The kartha or the manager of the property can manage the property without any such power of attorney. The kartha or the manager severe the status on distribution of properties to the coparceners. Even after the partition, if the coparceners insist any other person to manage their respective shares, then they have to execute a fresh power of attorney as was executed on 06.01.1986, which again shows that the partition was acted upon. Absolutely there was no problem since 1986 to 2004. It is by that time, sons were also grown, they were married and they found that the management of their respective properties by their father was prejudicial to their interest and they got the power of attorney revoked by a written letter dated 22.03.2004.
29 Thus, they intended to revoke the power of attorney and manage their properties in terms of the partition deed. Because the power of attorney was withdrawn, the father could not accept the hard reality. Therefore, he filed the suit on 21.06.2004 stating that the partition is a nominal one and the family continues to be joint family and he continues to be the kartha of the family and he wanted partition and separate possession of his 1/3rd share.
When the partition deed was acted upon from 1982 to 2004, for 22 long years, it is too late in the day for the plaintiff to contend that it is a nominal one and a sham document not acted upon. At any rate, it is not open to the plaintiff who effected the partition during minority of his children. There is no fraud, undue influence and there is no mistake. It was an act on the part of the plaintiff to avoid payment of tax. Accordingly, the family status is severed. There is no reunion and the family ceases to be a joint family. That is what precisely the trial Court has held. The
30 finding of the trial Court that the partition deed is acted upon and it is not a sham document or nominal one is well founded and based on legal evidence and therefore, it does not call for interference.
Point No.2: The suit is one for partition and separate possession. In the plaint, the plaintiff has pleaded that the partition deed came to be executed on 01.04.1982 which is duly registered. Prima facie, a document expressing the intention to divide brings about a division in status, but it is open to a party to prove that the document was a sham or a nominal one, not intended to be acted upon and executed for some ulterior purpose. It sometimes happens that persons make statements which are self serving. It is not their statements, but their relations with the estate which is the determining factor. The mere existence of a deed of partition with a declaration that the properties belonging to the father were being partitioned will not make such a deed valid in the absence of proof of
31 ownership of the father and no title could be conveyed by such document.
It is often a question of interpretation of a document as to whether there was the intention to separate. The mere fact that it is recited in a document that owing to lack of amity a person has been residing separately would not establish that he had gone out of the family. Whether a document executed by members of a family records an outright partition or a mere arrangement for maintenance may depend on the effect of all the provisions of the document and relevant factors. A partition may be reopened if any coparcener has obtained an unfair advantage in the division of the property by fraud upon the other coparceners. Where after a partition has been made, it is discovered that the property allotted to one of the coparceners did not belong to the family, but to a stranger, or that it was subject to a mortgage, the coparcener to whom such property has been allotted is
32 entitled compensation out of the shares of the other coparceners, and the partition may, if necessary, be reopened for readjustment of the shares. Therefore, when the parties prove that there is fraud or mistake in the partition or any unfair and detriment to the interest of the coparceners, the partition can be reopened at any time. Therefore, when once the plaintiff admits that there is a partition which is evidenced by a registered document, unless he gets over the said document he would not be entitled to a decree for partition. The reason being, already the joint family properties are partitioned by metes and bounds and there is severance of status. In the absence of the existence of joint family, maintenance of joint family properties does not arise. The case of the plaintiff is that the said partition is nominal one and not acted upon. It is not proved. Once the plea is not proved, suit for partition is not maintainable because as on the date of the suit, there was no joint family or joint family properties and the
33 suit for partition and separate possession of 1/3rd share in the joint family properties was not maintainable. The finding recorded by the trial Court is just and proper and therefore, it does not call for interference.
Point No.3: No limitation is prescribed under law for filing a suit for partition. The reason being that, till the joint family properties are divided by metes and bounds, each member of the joint family continues to have a share in the joint family. The suit for partition could be negatived if the plaintiff is ousted from the possession of the joint family properties. But once the joint family status comes to an end and the joint family properties are partitioned by metes and bounds and if the suit is brought for a partition contending that the partition is nominal one or the partition is illegal, the limitation starts running from the date of the execution of the partition deed or from the day the fact that the said partition is un-equitable or illegal came to the knowledge of plaintiff.
34 24. In the instant case, the plaintiff is the person who effected the partition. On that day his sons were minors. As is clear from the plaint averments, in order to avoid tax liability steps have been taken to execute the registered partition deed. The allocation of properties was made by the plaintiff in favour of his sons assigning larger portion of the properties and the plaintiff retained a small portion. It is not open to the plaintiff to challenge the unequal distribution because he is the person who intended to distribute the joint family properties unequally. He executed the documents. He wanted to evade tax. Therefore, he distributed the joint family properties to his sons and wife and later on looked after the properties. But, the suit is filed 22 years after the execution of the partition deed. Therefore, it is proper to hold that the suit is barred by time.
Insofar as the partition deed is concerned, it not in dispute. It has been acted upon and the suit is filed after
35 22 years after the date of partition. The application for amendment seeking cancellation of partition deed is filed after 32 years from the date of partition deed at the time of hearing. The amendment is not necessary to determine the rights of the parties and to do justice and therefore, it is rejected.
Insofar as the other items 9 to 16 are concerned, admittedly, they are standing in the names of defendants. The argument is that they all are purchased out of the funds of plaintiff. Because of close relationship, the plaintiff purchased the properties in the names of the defendants. The evidence on record shows that partition was effected when his children were minors and out of the income derived from their shares the plaintiff has purchased some properties. The plaintiff has partitioned the joint family properties to coparceners who are his sons and wife and the properties were in the hands of the plaintiff and he has made a good investment and purchased the property in
36 their respective names. This shows that the shares allotted to his wife and children fetched income and out of that the other properties have been purchased. This clearly shows that there was no joint family in existence and the parties in whose name the sale deeds stand are entitled and it is rightly so held by the trail Court.
From the aforesaid facts, it is clear that the parties are father, wife and sons. Now at the old age, the wife and the children are on the one side and father is on the other side. The father effected partition when his children were minors, thereafter performed their marriage and acquired the properties which are now very valuable. Because of frustration, the plaintiff has filed the suit. Under these circumstances, in order to maintain good family relationship, what we can do is to set aside the costs imposed for having filed the suit. We do not see any justification to award cost of `.7,93,325/- on the plaintiff.
37 That portion of the decree is set aside and the other part remains intact.
In the result, the appeal is partly allowed. The cost imposed by the trial Court is set aside and the judgment and decree of the trial Court in all other respects is confirmed. No costs.
Sd/- JUDGE
Sd/- JUDGE
dh/NVJ*