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1987 SCC OnLine Kar 232 : ILR 1987 Kar 3091 : (1987) 2 Kant LJ 394 (DB) :
(1988) 2 AP LJ (DNC 1) 34 : AIR 1988 Kar 174 : (1988) 1 HLR 79
In the High Court of Karnataka
(BEFORE CHANDRAKANTARAJ URS AND NAVADGI, JJ.)
Basettappa Bangerappa Bargarshettar
Versus
Irawwa Kom Totappa*
R.F.A. No. 62 of 1978
Decided on August 18, 1987
(A) CIVIL PROCEDURE CODE, 1908 (Central Act No. 5 of 1908) — Order VI — Pleadings —
While precise pleadings not to be insisted upon, without pleading no issue can be raised or relief
granted.
Held :
While it is not necessary that the Court should insist on precise pleadings, having regard to many
factors such as poverty ignorance illiteracy, etc., it is not, however, conceded that without pleading, which
is understandable by the Court as well as by the opposite party, issues must be raised or framed and
even without evidence supporting such unraised issues, the Court should give relief.
(Para - 9)
(B) HINDU LAW — JOINT FAMILY PROPERTY — Burden of proof on party asserting.
Held :
In so far as Hindus are concerned, that if they live jointly, the presumption is that they are joint in
status on the well recognized
Page: 3092
principles of joint in food, worship and estate. But no such presumption may be raised that the Joint Hindu
Family possesses the joint property or any property at all. The normal rule is, when in a suit for partition,
a party claims that any particular item of property is joint family property, or when in a suit on a
mortgage, a party contends that the property mortgaged is joint family property, the burden of proving
that it is so rests on the party asserting it.
(Para - 11)
(C) HINDU SUCCESSION ACT, 1956 (Central Act No. 30 of 1956) — Section 23 — Female
heir not to seek division of dwelling house if there are male heirs not claiming division —
Applicable to estate of deceased co-parcener & female Hindu dying intestate — Benefit to male
heirs not lone male heir.
Held :
Undoubtedly, in so far as it relates to a dwelling house, a female heir or heirs are not entitled to have
the dwelling house divided if there are male heirs who have not claimed the division. This rule is available
not only to the estate of a deceased co-parcener, but also to the estate of a female Hindu dying
intestate. But the benefit of that rule is available to the male heirs only when they exist in plurality and not
when there is a lone male heir.
(Para - 13)
CASES REFERRED:
1. (1987) 2 SCC 555 : AIR 1987 SC 1242 - (Foll)
Ram Sarup v. Bishum Narain
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2. 1984 (1) KLJ 273 - (do)
Kariyavva v. Hanumantappa
Advocates who appeared in this case :
Mr. R.U. Goulay for Appellant
Mr. M. Rama Bhat for R-1
The Judgment of the Court was delivered by
CHANDRAKANTARAJ URS, J.:— This appeal arises out of the Judgment and decree dated
27th day of September, 1977, passed in O.S. No. 29/75 on the file of the Civil Judge,
Gadag. The appellant before us is the 1st defendant. In the course of this Judgment, we
will refer to the parties by the ranks assigned to them in the trial Court.
Page: 3093
2. The suit was one for partition brought by the plaintiff, who is respondent-1 here. The
suit plea was that she was entitled to ¼th share in the suit schedule properties belonging
to her father and that the 1st defendant was her step-brother and defendants 2 and 3
were her step sisters, being the son and daughters of her deceased father through his
Second wife. She sought partition by metes and bounds and separate possession.
3. The 1st defendant entered appearance and filed his written statement. While
admitting the relationship of the defendants and the plaintiff, the 1st defendant resisted
the claim on the ground that after the death of his father, on the advice of the elders, the
plaintiff as well as defendants 2 and 3 agreed to execute an agreement releasing their
right, title and interest in the suit schedule properties in consideration of the plaintiff and
defendants 2 and 3 receiving moveables belonging to his deceased father in the form of
gold ornaments, vessels, etc. It was averred by the 1st defendant that defendants 2 and 3
executed such deeds of relinquishment, while the plaintiff, on one pretext or the other,
postponed the execution and that now fraudulently had brought the suit for partition. He
further averred that he had spent Rs. 10,000/- for the improvement of the suit schedule
agricultural lands and, therefore, in the event of the suit being decreed, the plaintiff must
be made liable to contribute her share of the expenses. As regards the quantum of share
to which, according to the 1st defendant, the plaintiff was entitled, and having regard to
the arguments submitted for the 1st defendant before us we feel that it should be
extracted as it was pleaded:
Page: 3094
In the result, he prayed for dismissal of the suit.
4. On such pleadings, the Court below framed as many as 6 issues which are as
follows:
1. Whether defendant No. 1 proves that plaintiff has relinquished her share in the suit
properties by taking some moveables as contended by him in para 2 of his written
statement?
2. Whether defendant No. 1 further proves that he has spent Rs. 10,000/- towards
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improvements of the suit properties, and if yes, is he entitled to be reimbursed?
3. Whether defendant No. 1 proves that the suit is barred by time?
4. Whether plaintiff is entitled to any share in the suit properties and if yes, to what
share?
5. Whether plaintiff is entitled to the past three years mesne profits amounting to Rs.
6,000/-?
6. Whether plaintiff is entitled to the future mesne profits and if yes, at what rate?
5. As is apparent, the burden was entirely cast on defendant-1 and those issues were
held against him. The suit came to be decreed, decreeing that the plaintiff was entitled to
¼th share and for partition by metes and bounds and for separate possession of the suit
schedule properties. She was also awarded mesne profits in a sum of Rs. 3,000/- for the
past 3 years and a preliminary decree was, therefore, directed to be drawn-up under Order
XX of the C.P.C.
6. While admitting this appeal, this Court, on 29-5-1978, did not grant stay of the
Judgment and Decree under appeal. Paper Books were required to be filed early and the
matter itself posted for hearing early. Due to the usual delay, to which the High Courts in
this Country have become accustomed, the matter has not been disposed of. In view of
the pendency of the appeal and the records being held up in this Court, no final decree
appears to have been drawn up.
Page: 3095
7. Before us Mr. R.U. Goulay, learned Counsel for the appellant, has strenuously
contended for setting aside the Judgment and Decree and remanding the matter to the
Court below for raising an additional issue which goes to the very root of the matter. He
contends that there should have been an issue as to the nature of the suit schedule
properties, i.e., whether it was the ancestral property or the self-acquired property of the
1st defendant's father? Such an issue not having been framed, it is contrary to the
pleadings and, therefore, the Judgment and Decree is liable to be set aside. He has further
contended that having regard to Section 23 of the Hindu Succession Act, 1956, the
plaintiff - a female heir was not entitled to seek partition of the dwelling house and,
therefore, the Judgment and Decree is liable to be modified in that behalf.
8. We do not think, we should accede to these contentions. It is true that no issue was
raised in regard to the nature of the property left behind by the deceased father of the
plaintiff and defendants. That was so, because nobody pleaded that it was the ancestral
property of a joint Hindu family. The Trial Court appears to have taken the substance of
the written statement in which the 1st defendant pleaded that his sisters had agreed to
give up their shares in the property of their deceased father having taken the moveables
and the value corresponding to the value of their shares and that while his own sisters
executed the deeds of release, the plaintiff failed to execute the deed of relinquishment
though she had taken away gold ornaments and other moveables. He also pleaded only for
reimbursement of the expenditure incurred by him for the improvement of the properties
to the extent the plaintiff's share was liable. However, Mr. Goulay argued that having
regard to the specific plea in para-5 of the written statement, which has been extracted
earlier in the course of the Judgment, it was the duty of the Court to determine the nature
of the properties as the 1st
Page: 3096
defendant had said that the plaintiff was entitled to only ⅛th share in the suit schedule
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properties thereby meaning that she was entitled to ¼th of the half share which his father
had in the properties.
9. It is now well settled by a catena of decisions in this Country that while it is not
necessary that the Court should insist precise pleadings, having regard to many factors
such as poverty, ignorance, illiteracy, etc., it is not, however, conceded that without
pleading, which is understandable by the Court as, well as by the opposite party, issues
must be raised of framed and even without evidence supporting such unraised issues, the
Court should give relief. In this context, it would be useful to draw the attention to the
ruling of the Supreme Court in a recent case in the case of Ram Sarup Gupta (dead by
L.Rs) v. Bishun Narain Inter College1 . The supreme Court has ruled as follows:
It is well settled that in the absence of pleading, evidence it any, produced by the
parties cannot be considered. It is also equally settled that no party should be
permitted to travel beyond its pleading and that all necessary and material facts should
be pleaded by the party in support of the case set up by it. The object and purpose of
pleading is to enable the adversary party to know the case it has to meet. In order to
have a fair trial it is imperative that the Party should state the essential material facts
so that other party may not be taken by surprise. The pleadings however should receive
a liberal construction, no pedantic approach should be adopted to defeat justice on hair
splitting technicalities. Sometimes, pleadings are expressed in, words which may not
expressly make out a case in accordance with strict interpretation of law, in such a case
it is the duty of the Court to ascertain the substance of the pleadings to determine the
question. It is not desirable to place undue emphasis on form, instead the substance of
the pleadings should be considered. Whenever the question about lack of pleading is
raised the enquiry should not be so much about the form of
Page: 3097
pleadings, instead the Court must find out whether in substance the parties knew the case
and the issues upon which they went to trial. Once it is found that in spite of deficiency in
the pleadings parties knew the case and they proceeded to trial on those issues by
producing evidence, in that event it would not be open to a party to raise the question of
absence of pleadings in appeal.”
(underlining is ours)
10. Mr. M. Rama Bhat, appearing for the 1st respondent-plaintiff, has argued that the
Trial Court has correctly taken the substance of the pleadings and that the 1st defendant
having stated in the written statement that his sisters were entitled to their share, but
were given moveables in lieu of their shares, it is not open to the 1st defendant now to
contend that his sisters are not entitled to a share or partition, much less a share less than
what the plaintiff claimed. He also argued that by the same logic applied by the Counsel
for the 1st defendant that by pleading for a decree in favour of the plaintiff for ⅛th share,
the Court must presume it to be ancestral property of the deceased father, the Court
should also presume that the plaintiff had pleaded that it was the self-acquired property
for her deceased father, because she asked for ¼th share and, therefore, the Trial Court
correctly held that Section 8 of the Hindu Succession Act was attracted and not Section 6.
11. We do not think, we should stretch the liberal approach in the matter of pleadings
to such an extent as to draw inference on arithmetical figures indicated by the parties. It
is now well settled, in so far as Hindus are concerned, that if they live jointly, the
presumption is that they are joint in status on the well recognized principles of joint in
food, worship and estate. But no such presumption may be raised that the Joint Hindu
Family possesses the Joint property or any property at all. The normal rule is, when in
Page: 3098
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a suit for partition, a party claims that any particular item of property is joint Family
Property, or when in a suit on a mortgage, a party contends that the property mortgaged
is Joint Family Property, the burden of proving that it is so rests oil the party asserting it.
12. Now we have been taken through the evidence of the 1st defendant in the Trial
Court. He has spoken mostly about the stand taken by him in the written statement about
the agreement arrived at amongst them subsequent to the death of his father in regard to
the deeds of relinquishment which the sisters were supposed to give and which two of the
sisters did give while the plaintiff evaded and finally refused. He has not spoken a word
about the property being ancestral. Therefore, the argument that there is sufficient
pleading which ought to have given rise to an issue in that behalf must be rejected.
Therefore, the contention must fail.
13. The next contention advanced was that Section 23 of the Hindu Succession Act was
a bar for the plaintiff to maintain a suit. Undoubtedly, in so far as it relates to a dwelling
house, a female heir or heirs are not entitled to have the dwelling house divided if there
are male heirs who have not claimed the division. This rule is available not only to the
estate of a deceased co-parcener, but also to the estate of a female Hindu dying intestate.
But the benefit of that rule is available to the male heirs only when they exist in plurality
and not when there is a lone male heir. That is the view taken by this Court in the case of
Kariyavva v. Hanumantappa Mallurappa2 .
14. For the reasons stated above, this appeal must fail and it is dismissed. But in the
circumstances of the case, there will be no order as to costs.
———
*
R.F.A. No. 62 of 1978.
1.
(1987) 2 SCC 555 : AIR 1987 SC 1242.
2.
1984 (1) KLJ 273.
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