R.S. Anjayya Gupta vs Thippaiah Setty

2. The parties to this appeal are the children of the original defendant No.3­patriarch of the family, Hanumanthaiah Setty. The appellant is the eldest son, while respondent No.1 and respondent No.2 are his younger brothers. Respondent Nos. 3 to 5 are the daughters of Hanumanthaiah Setty and thereby sisters to the appellant and respondent Nos. 1 and 2. Respondent Nos. 3 to 5 came on record as the legal representatives of Hanumanthaiah Setty after he passed away during the course of the proceedings before the Trial Court.

3. This appeal has its origins in a suit for partition of certain properties, being O.S. 1300 of 1982, filed by respondent No.1 3 (original plaintiff) against the appellant (original defendant No.1), respondent No.2 (original defendant No.2) and the original defendant No.3 Hanumanthaiah Setty before the Court of the XXXI Additional City Civil Judge at Bangalore. Respondent No.1, claiming to be a member of a Joint Hindu Family comprising the other parties to the suit, alleged that the scheduled suit properties belonged to the said Joint Hindu Family since they had been purchased by the original defendant No.3 father with money from joint family funds. The crux of respondent No.1’s plea was that the suit properties mentioned in Schedules A and B to the plaint had been purchased ostensibly in the name of the appellant since he was the senior­most member of the family (after defendant No.3) and also the eldest son, however, in actuality, the said properties belonged to the joint family. Respondent No.1 also asserted that suit properties were in the joint possession of the appellant, respondent No.2 and the original defendant No.3 and that the appellant was attempting to illegally dispose of the same and obstruct partition thereof, thus necessitating the suit. Accordingly, respondent No. 1 sought a 1/4th share in the suit properties and mesne profits in that regard.

7. During the pendency of the matter, the original defendant No.3 expired and the present respondent Nos.3 to 5 daughters were brought on record as his legal representatives. Thereafter, the Trial Court rendered its judgment dated 30 th January, 2002, wherein it found in favour of respondent No.1/original plaintiff on all the issues. The Trial Court opined that the appellant had not claimed any partition or separation from the joint family and infact, had pleaded for a 1/4th share in certain other ancestral property of the original defendant No.3. This was sufficient to establish that the parties viz the appellant (original defendant No.1), respondent No.1 (original plaintiff), respondent No.2 7 (original defendant No.2) and the original defendant No.3, belonged to a Hindu Joint Family.

10. The Trial Court also found that the village panchayat had already effected a prior partition of certain properties, including those set out in Schedules A and B to the suit, between the parties, which indicated that such properties belonged to the joint family. On the basis of the aforesaid findings, the Trial Court ordered that the suit schedule properties be partitioned amongst the parties, with the appellant, respondent No.1 and respondent No.2 each getting 5/12th share and respondent Nos.3 to 5 getting remaining 1/12th share in the suit schedule properties. The Trial Court also ordered an enquiry into the mesne profits payable to respondent No.1.

11. Aggrieved by the decision of the Trial Court, the appellant preferred an appeal to the High Court of Karnataka being RFA No. 456 of 2002. In its judgment dated 7 th September, 2004, the High Court recorded that the contest was only in regard to the 10 properties set out in Schedules A and B to the plaint and accordingly, upheld the findings of the Trial Court in that regard. The High Court noted the submissions of the plaintiff that although the properties had been purchased in the name of the appellant, the said purchases were done during the continuation of the joint family status. The properties had been purchased with the help of loans and the interest on the same was, admittedly, being serviced by the original defendant No.3 and not by the appellant. The license of the business being conducted on the suit schedule property was in the name of respondent No.2, and the lease was taken in the name of the original defendant No.3, while the appellant was merely managing the business. The purported businesses of the appellant were infact jointly conducted by all the parties and the appellant had failed to establish either that he had any independent business or that he had purchased the suit schedule properties without the aid of family funds. The High Court then went on to conclude that the findings of the Trial Court were just and proper and thus rejected the appellant’s contentions, although it allowed the appellant to approach the Trial Court for an inquiry as to whether the sale of agricultural land by the other parties would bind the appellant 11 and to pass another preliminary decree in that regard, if necessary.

12. Thereafter, the appellant preferred a review petition before the same High Court being R.P. No. 567 of 2005. The said review petition was dismissed on 27th September, 2006. Hence, the present appeal.

(b) the decision thereon;

(c) the reasons for the decision; and

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.”

19. We refrain from analysing the pleadings and the evidence in the form of exhibited documents and including the non­exhibited documents and expect the High Court to do the same and arrive at conclusions as may be permissible in law. In other words, we 20 should not be understood to have expressed any opinion either way on the merits of the controversy. The High Court shall decide the first appeal uninfluenced by any observation made in the impugned judgment. As the remanded first appeal pertains to year 2002, we request the High Court to dispose of the same expeditiously.

20. The appeals are accordingly allowed. The impugned judgment and decree and orders dated 7 th September, 2004 and 27th September, 2006 respectively, passed by the High Court of Karnataka at Bangalore are set­aside and instead remand the RFA No.456 of 2002 to the High Court with the aforementioned directions. No order as to costs. All pending applications are disposed of.

……………………………..J (A.M. Khanwilkar) ……………………………..J (Ajay Rastogi) New Delhi;

July 01, 2019.