Karnataka High Court
Krishne Gowda vs Ningegowda on 16 July, 1987
Equivalent citations: ILR1987KAR2883
JUDGMENT K.A. Swami, J.
1. This appeal by the 4th defendant is directed against the judgment and decree dated 14-11-1986 passed by the Civil Judge, Chikmagalur, in O.S. No. 56 of 1980.
2. That was a suit brought by the 1st respondent/plaintiff for partition and possession of his share in the joint family properties.
3. There is no dispute that the plaintiff and the defendants are the members of the joint family. The joint family owned Vast extent of properties as mentioned in Schedule 'A' to the plaint. As far as the appellant is concerned, he claimed items 35, 16 and 17 of Schedule 'A' properties as his self acquired. The Trial Court has held that Items 15, 16 and 17 of Schedule 'A' properties are also the joint family properties.
4. The only grievance of the Appellant/Defendant No. 4 in this appeal is that the Trial Court is not justified, on the evidence on record, in holding that Items 15, 16 and 17 properties arc also the joint family properties, whereas they are his (4th defendant) self acquired properties.
5. Sri Bhat, Learned Counsel for the appellant, has taken us through the evidence of P.Ws. 1 and 2 and D.W. 1 who is no other than the appellant himself and contends that burden is upon the plaintiff to prove that Items 15, 16 and 17 are the joint family properties and that the evidence on record is not sufficient to discharge that burden and, therefore, the Trial Court is not justified in holding that Items 15, 16 and 17 are also joint family properties.
6. On going through the evidence of P.Ws. 1 and 2 and D.W. 1 on which reliance is placed by the Learned Counsel for the appellant and other documents referred to by the Trial Court and the other findings recorded by it, it appears to us that the submission made by Learned Counsel for the appellant is not well founded. We first refer to the decision of the Privy Council in Kumbhan Lakshmanna and ors. v. Tangirala Venkateswarlu and ors., AIR 1949 PC 278 regarding burden of proof. Paras 43 and 44 of the Judgment read as follows :
"(43). What is called the burden of proof on the pleadings should not be confused with the burden of adducing evidence which is described as 'shifting'. The burden of proof on the pleadings never shifts, it always remains constant (see Pickup v. Thames Insurance Co., (1878) 3 Q.B D 5941 : (47 L.J.Q.B. 74(sic)). These two aspects of the burden of proof are embodied in Sections 101 and 102 respectively of the Indian Evidence Act. Section 101 states :
'Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exists.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.' "Section 102 states :
'The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.' (44) This section shows that the initial burden of proving a prima facie case in his favour is cast on the plaintiff ; when he gives such evidence as will support a prima facie case, the onus shifts on to the defendant to adduce rebutting evidence to meet the case made out by the plaintiff. As the case continues to develop the onus may shift back again to the plaintiff. It is not easy to decide at what particular stage in the course of the evidence the onus shifts from one side to the other. When after the entire evidence is adduced, the tribunal feels it cannot make up its mind as to which of the versions is true, it will hold that the party on whom the burden lies has not discharged the burden ; but it has on the evidence no difficulty in arriving at a definite conclusion, then the burden of proof on the pleadings recedes into the background."
Thus, from the aforesaid enunciation it is clear that the burden of adducing evidence is not constant and it shifts as the case continues to develop. When once the entire evidence is adduced and on the entire evidence on record the Court is able to come to the conclusion that the case pleaded by the plaintiff is established, it will be a case for holding that the plaintiff has discharged his burden. On the contrary, if the Court is not able to come to a definite conclusion as to which version, i e., either of the plaintiff or of the defendant, is true, in such an event, as the burden of proof on the pleading is on the plaintiff, it will be a case where the plaintiff has failed to prove the case pleaded by him and thereby he has failed to discharge the burden of proof.
7. Therefore, the Trial Court is right in taking into consideration the entire evidence on record for determining as to whether Items 15, 16 and 17 are the joint family properties or the self-acquired properties of the 4th defendant as averred by him. In this case, it is not in dispute that the joint family possessed vast extent of properties. In fact, none of the defendants disputed that Items 1 to 14 were the joint family properties which consisted of irrigated lands, cardamom plantation and paddy fields. As is found by the Trial Court, which is amply supported by the evidence on record, the joint family properties were yielding surplus income in several thousands of rupees. Of course in the case of acquisition by a junior member of a joint family the fact that the joint family possessed considerable nucleus capable of yielding income sufficient to enable acquisition of property is not by itself sufficient to hold that acquisition by a junior member of such joint family is with the aid of the joint family and the presumption to that effect cannot also be drawn. It shall have to be proved either by showing that it was acquired by the joint family funds or by proving that such junior member was in charge or management of the joint family property or business, though riot the kartha of the family, capable of yielding income so as to enable him to purchase the property. In the latter case, if such junior member Was not able to show that he had independent source of income or the consideration to the acquisition of the property had flown from the particular source not connected with joint family property, a presumption shall have to be drawn that such acquisition of property was with the aid of joint family funds inasmuch as in such a case the junior member being in possession and management of the joint family property or business, his position will be akin to that of kartha. It is also elicited from the 4th defendant that the joint family shop dealing in clothes and provisions was opened in Gonibeedu and for some time it was managed by the 1st defendant who was the kartha of the joint family, and thereafter it came to be entrusted to him (the 4th defendant) in 1968. It is not the case of the 4th defendant that he had other source of income nor the shop yielded meagre income. The case of the 4th defendant is that he had acquired Items 15, 16 and 17 with the aid of the funds made available to him by his brother-in-law. But, no evidence was adduced in this regard and the brother-in-law was not examined. No evidence was also adduced to show that his brother-in-law was in such an affluent position so as to be capable of making available a sum of Rs. 10,000/- to the 4th defendant. When once it is admitted that the 4th defendant was put in management of the joint family shop at Gonibeedu which was a cloth shop as well as a provision store and that the management of the 4th defendant continued even at the time when he purchased the properties in question, his position was more or less that of a kartha of the joint family in so far he was in management and control of the joint family shop and as such he had access to and control over, the joint family funds, the burden shifted upon him to prove that he acquired Items 15, 16 and 17 of the properties with the aid of the fund which was independent of and unconnected with the joint family fund. As already pointed out no such evidence was adduced. In the light of the evidence on record, the inference drawn by the Trial Judge that these properties have been purchased by the 4th defendant out of the joint family funds is fully justified.
8. No other contention is urged to disturb the finding recorded by the Learned Trial Judge in respect of Items 15, 16 and 17 of Schedule 'A' properties. The grievance of the appellant as it is already pointed out in this appeal is only in respect of Items 15, 16 and 17 of Schedule 'A' properties. Hence, we do not find any ground to admit this appeal. Accordingly, this appeal is rejected.