Karnataka High Court
Venkatamma W/O Late Krishna Reddy vs Subba Reddy S/O Late Doddappa Reddy on 2 April, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 2ND DAY OF APRIL, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
R.F.A.NO.1784/2006
C/W
R.F.A.NO.2304/2006
R.F.A.NO.1784/2006:
BETWEEN:
1. Venkatamma
W/o late Krishna Reddy
Aged about 51 years,
R/at: Godugapalli Village,
Masti Hobli,
Malur Taluk - 563 130
2. K.Srinivasa Reddy
S/o late Krishna Reddy
Aged about 29 years,
R/at: Godugapalli Village,
Masti Hobli,
Malur Taluk - 563130. ..APPELLANTS
(By Sri.B.Papegowda, Advocate)
2
AND:
1. Subba Reddy
S/o late Doddappa Reddy
Aged about 55 years,
2. Smt.Devamma
W/o Subba Reddy
Aged about 45 years,
3. Babu Reddy
S/o Subba Reddy
Aged about 42 years,
4. Raja Reddy
S/o Subba Reddy,
Aged about 28 years,
5. Krishnamurthy
S/o Subba Reddy,
Aged about 22 years,
All are residents of
Godugapalli Village,
Masti Hobli,
Malur Taluk - 563 130. ..RESPONDENTS
(By Sri.G.L.Vishwanath, Advocate for C/R)
This RFA is filed under section 96 of C.P.C against the
Judgment and decree dated 01.08.2006 passed in
O.S.No.19/1999 on the file of Civil Judge (Sr.Dn), KGF
dismissing the suit for partition and separate possession.
3
R.F.A.NO.2304/2006:
BETWEEN:
1. Subba Reddy
S/o late Doddappa Reddy
Aged about 62 years,
Agriculturist
Godugapalli Village,
Masti Hobli,
Malur Taluk - 571 512.
2. Smt.Devamma
W/o Subba Reddy
Aged about 52 years,
Godugapalli Village,
Masti Hobli,
Malur Taluk - 571 512.
3. Babu Reddy
S/o Subba Reddy
Aged about 49 years,
Godugapalli Village,
Masti Hobli,
Malur Taluk - 571 512.
4. Raja Reddy
S/o Subba Reddy,
Aged about 35 years,
Godugapalli Village,
Masti Hobli,
Malur Taluk - 571 512.
5. Krishna Murthy
S/o Subba Reddy,
Aged about 29 years,
4
Godugapalli Village,
Masti Hobli,
Malur Taluk - 571 512. ..APPELLANTS
(By Sri.G.L.Vishwanath, Advocate)
AND:
1. Venkatamma
W/o late Krishna Reddy
Aged about 52 years,
R/at: Godugapalli Village,
Masti Hobli,
Malur Taluk - 571 512
2. K.Srinivasa Reddy
S/o late Krishna Reddy
Aged about 29 years,
R/at: Godugapalli Village,
Masti Hobli,
Malur Taluk - 571512 ..RESPONDENTS
(By Sri.B.Papegowda, Advocate)
This RFA is filed under section 96 of CPC against the
Judgment and decree dated 01.08.2006 passed in
O.S.19/1999 on the file of the Civil Judge (Sr.Dn), Kolar Gold
Fields, dismissing the suit for partition and separate
possession.
These RFAs coming on for hearing this day, the Court
delivered the following:
5
JUDGMENT
These two appeals are directed against the Judgment and decree passed by Civil Judge (Senior Division), KGF in O.S.19/1999 dated 01.08.2006 whereunder plaintiff suit for partition and separate possession has been dismissed and first defendant has been directed to pay a sum of `30,000/- to plaintiffs towards digging of a well in schedule A property and its also held that plaintiff are entitled for maintenance from the date of the order passed on I.A.3 till date of judgment and decree.
2. RFA 1784/2006 has been filed by the plaintiff being aggrieved by the above said judgment and decree dismissing the suit for partition and separate possession. RFA 2304/2006 has been filed by defendants 1 to 5 being aggrieved by the direction issued to first defendant to pay a sum of `30,000/- to the plaintiffs. Both these appeals are taken up together for consideration and they are disposed of 6 by this common judgment. Parties are referred to as per their rank in trial court.
3. I have heard the arguments of Sri.B.Papegowda, learned counsel appearing for plaintiff and Sri.G.L.Vishwanath, learned counsel appearing for the defendants. Perused the judgment and decree passed by trial court also records secured from the trial court.
4. It is the contention of Sri.Papegowda, learned counsel appearing for plaintiffs that trial court committed a serious error in dismissing the suit without considering the fact that there is a clear admission regarding relationship between the parties and when there was no dispute with regard to suit schedule A property being the joint family property suit ought to have been decreed; trial court did not consider the evidence tendered by plaintiffs including the witnesses who have been examined on behalf of plaintiffs and evidence available on record would clearly indicate that suit schedule A property is a joint family property and out of the income generated from 7 schedule A property first defendant had purchased B schedule properties and as such suit ought to have been decreed granting the plaintiff's half share; he would also contend that trial court erred in concluding that schedule B properties are self acquired properties though there was no iota of evidence placed by defendant's nor there was any material document available on record to arrive at such a conclusion; he would submit that there has been improper appreciation of available evidence on record and there is also non consideration of available evidence on record by trial court which has resulted in erroneous Judgment and decree being passed; it is contended that when there was no dispute with regard to relationship between the parties and when defendants had pleaded that `B' schedule property was self acquired property burden was cast on them to prove that it was their self acquired property or there was no nexus to the joint family property or it was not purchased from out of the income generated there from since it was not generating any income at all and non consideration of this vital aspect has 8 resulted in great prejudice to defendants; he contends that trial court has not properly appreciated the pleadings with regard to acquisition of properties by the first defendant in as much as the alleged agreement of relinquishment of rights executed by first defendant's father stating that he is releasing himself from joint family is an inadmissible document, sham and void and it ought not to have been considered by trial court for whatsoever purpose to arrive at a conclusion that there was severance of joint family status; hence he submits judgment of the trial court dismissing the suit by relying upon said Relinquishment deed dated 05.06.1970 marked as Exhibit D-42 was erroneous and was liable to be rejected. He would elaborate his submissions by contending that trial court had failed to appreciate the evidence tendered by plaintiffs and his witnesses which would clearly indicate that schedule A property was yielding income and it was in joint possession of all the members of joint family including first defendant and as such suit ought to have been decreed; he contends that admittedly there was no 9 partition of schedule `A' property prior to the filing of the suit and as such trial court ought to have decreed the suit in its entirety; he contends that during the pendency of the suit maintenance was awarded in favour of plaintiffs by trial court and it was confirmed in favour of plaintiff before this court and by consent the maintenance was awarded and as such trial court erred in not considering this aspect while considering the claim of plaintiffs for partition and as such there has been total non application of mind by trial court; he would also submit that alleged relinquishment deed dated 05.06.70 marked as Exhibit D-42 was created and concocted for the purpose of denying the legitimate right of the plaintiffs and same has no evidentiary value; he would draw the attention of the court to oral evidence of the parties whereunder DW-1 has categorically admitted that he did not have any other income except income from schedule A property and there being no other contrary evidence available on record, plea put forward by first defendant that his father- in-law had paid money to purchase items 1 to 5 of schedule 10 `B' properties was too remote for being accepted and evidence on record would indicate that father-in-law of first defendant was not financially sound and as such question of advancing any money to first defendant to purchase items 1 to 5 of `B' schedule properties did not arise at all; he would also contend that oral evidence available on record would indicate that PW-2 and PW-3 who are of the same village have stated that husband of first plaintiff died due to electrocution in B schedule property and school certificate relating to second plaintiff marked as Exhibit P-19 would clearly indicate that first defendant was taking care of first plaintiff's son i.e., second plaintiff and said evidence has not at all been considered by trial court; he would also submit that mortgage deeds Exhibits D-20 and D-22 has not been considered in proper perspective by trial court in as much as it would clearly establish that first defendant's father is also a signatory to said deeds and if really he had relinquished his right in schedule `A' property or severed the status of joint family in the year 1970 there was no need or necessity for 11 him to join in execution of these two mortgage deeds in the year 1976. He would also state that there was no other nucleus or any other income available with the first defendant for purchasing B schedule property. Alleged relinquishment deed dated 05.06.70 produced as Exhibit D-42 is an unregistered document and right in a immovable property having been relinquished under the said document by deceased Sri.Doddappa Reddy it was required to be compulsorily registerable and on account of non registration of the said document it cannot be looked into. On account of non placing of any positive evidence by defendants showing severance of status due to earlier partition trial court ought to have decreed the suit. On these grounds he submits that trial court committed a serious error in dismissing the suit of the plaintiff for partition and as such he prays for allowing the appeal and decreeing the suit as prayed for. In support of his submission he has relied upon the following Judgments:
1. 1988 (2) KLJ 155 - Umakant Rao Vs Lalitabai and others
2. AIR 2008 Kar 151 - G.Rangaiah Vs Govindappa and others 12
3. AIR 2003 SC 1880 - Madanlal (Dead) by LRs and others Vs Yoga Bai (dead) by LRs
4. AIR 2003 A.P 498 -M.Krishna Rao and anr Vs M.L.Narasikha Rao and others
5. AIR 2003 Orissa 180 - Mahendra Mahanta and others Vs Smt.Tarini Dei and others
6. AIR 1987 Madras 24 - P.Kaliappa Gounder and others Vs Muthuswami Mudaliar
7. AIR 2007 SC 218 - Appasaheb Peerappa Chandgade Vs Devendra Peerappa Chandgade and others
8. AIR 2003 Kar 245 - V.K.Thimmaiah and others Vs Smt.V.K.Parvathi and others
9. KCCR 2003(2) SN 113 - Nanjappa and others Vs B.L.Shivananjappa and others
10. AIR 2000 NOC (Guj) 74- Vanubhai Mangalbhai Patel and others Vs Khalpabhai Mangalbhai Patel
6. Per contra Sri.G.L.Vishwanath, learned counsel appearing for defendants would support the judgment and decree of the trial court to the extent of dismissing the suit for partition and separate possession and in support of it he submits that till the year 1970 defendant No.1 was residing along with his father Sri.Doddappa Reddy and his brother 13 Sri.K.Krishna Reddy and on account of dispute and difference between 1st defendant and his father since got married to second defendant against his father's wish, 1st defendant's father severed the status of joint family and at that point of time first defendant's father executed a relinquishment deed dated 05.06.1970 Exhibit D-42 and it is thereafter 1st defendant got married to second defendant and started residing separately; only on account of financial help extended by his father-in-law he was able to purchase item no.4 of B Schedule and thereafter from the income generated from the said property he purchased other items of the `B' schedule property and contends that contents of Exhibit D-42 viz., relinquishment deed dated 05.06.70 would clearly indicate that there was severance of status between first defendant and his father and there being no other material available on record to establish that status of joint family continued thereafter trial court has not rightly taken note of the contentions raised by plaintiffs and as such he submits that dismissal of the plaintiffs suit for partition and separate 14 possession in respect of schedule B and C property is just and proper and it does not call for any interference. He would also submit that item No.1 in schedule C property is given to the first defendant by his uncle i.e., his father's brother Sri.Yerrappa Reddy and he has been residing in the said house after constructing a new building and undisputedly plaintiff's are residing in item No.2 of schedule C property which she acquired it from her father-in-law Sri.Doddappa Reddy after his demise. He would contend that plaintiff has to establish the fact that from out of joint family nucleus or from the funds generated from the schedule `A' joint family property 1st defendant had purchased schedule `B' properties and only thereafter burden would shift to the defendants to disprove this fact and not otherwise; he would draw the attention of this court to evidence of PW-2 and PW-3 particularly to paragraph 8 of examination-in-chief of PW-2 to contend that said witness has stated that after the death of first defendant's brother i.e., first plaintiff's husband Sri.Krishna Reddy his wife Smt.Venkatamma and son 15 Sri.Srinivas second plaintiff were under the care and protection of Sri.Doddappa Reddy i.e., 1st defendant's father and there is no whisper even in the evidence of plaintiffs or these two witnesses that first defendant was residing or staying in the family of Doddappa Reddy as a joint family member. He would submit that PW-1 herself has admitted in her evidence namely cross examination dated 01.07.2004 (on I.A.3 for maintenance) that first defendant was living separately by constructing a separate house and this evidence was sufficient enough for trial court to arrive at a conclusion that there was severance of status in the joint family between first defendant and his father, which would also indicate that they were not residing together. He would also submit that though relinquishment deed Exhibit D-42 cannot be relied upon on the ground of said document having not been registered, even then for collateral purpose namely to find out as to whether there was severance of status between the parties it can be looked into and in order to establish that there was due execution of Exhibit D-42 defendant No.1 has 16 examined DW-2 to DW-4 who are sons of the witnesses and scribe to said document and they have categorically stated that signature found in Exhibit D-42 are the signatures of their father and as such Exhibit D-42 rightly came to be looked into by trial court which was for collateral purposes only. He would also contend that when marking of said document having not been objected to by the plaintiff said objection at appellate stage cannot be raised since said document has already been marked before the trial court.
7. He would also submit that insofar as item No.6 of schedule `D' property is concerned it was purchased by second defendant and consideration amount has been paid by her father which is admitted by her vendor's son who was examined as DW-8 and who is also witness to the sale deed Exhibit D-81 and his signature has been marked as Exhibit - D-81A which has not been disproved and as such he contends that the finding of the trial court that item No.6 is the self acquired property of second defendant is just and 17 proper and it does not call for any interference. He would also draw the attention of the court to Exhibit D-78, D-79, D- 80, D-81, D-82, D-83, D-84 to contend that these documents would indicate that 2nd defendant had purchased item No.6 of `B' schedule property and it is her self acquired property. He would also contend that Exhibit D-78 to D-80 would indicate that 2nd defendant had submitted an application for obtaining power connection to item no.6 of schedule `B' property since it was her self acquired property. He contends that these facts would clearly go to indicate and establish that plaintiff has been in exclusive possession of schedule A property and there was no existence of joint family of which first defendant was a member and as such trial court on appreciation of said evidence available on record has rightly come to a conclusion that plaintiffs had failed to establish that items 1 to 6 of schedule B property were acquired out of joint family funds. He would also contend that trial court rightly held that item 1 to 5 and 6 of schedule `B' property was the self acquired property of defendants 1 and 2 respectively. He would also 18 contend that boundaries and measurements of schedule B property is erroneously mentioned and it is not in consonance with the title deeds. He contends that measurement shown in plaint item Nos.1 to 6 of B schedule property are not in consonance with the documentary evidence available namely Exhibits D-6, D-9, D-13, D-16, D-43 and D-81 and they are contrary to the recitals in the respective sale deeds. He would also contend these documents namely Exhibits D-6, D-9, D- 13, D-16 and D-43 would indicate the name of the first defendant as the purchaser, owner (title holder) and there is no mention or reference about the income having generated from schedule A property to link it to the purchase of these properties by first defendant and it is out of joint family funds he had purchased said properties. As such he seeks for dismissal of the appeal filed by plaintiff. In support of his prayer for allowing the appeal filed by defendants namely to set aside the judgment and decree passed by trial court directing first defendant to pay a sum of `30,000/- to the plaintiffs he would contend that when trial court has held 19 that plaintiff had failed to prove the existence of joint family and/or schedule B and C properties being joint family properties it could not have directed the defendants to pay a sum of `30,000/- to plaintiffs. He would also contend that trial court having accepted Exhibit -D-42 to arrive at a conclusion that there was severance of status in joint family and also the fact that share had been given to the plaintiff's in schedule A property and further fact that first defendant had acquired schedule B property out of his own efforts it ought not to have issued direction to the defendants to pay an amount of `30,000/- to the plaintiffs. He would also contend that at the time of purchase of B and C properties by first defendant his father namely Sri.Doddappa Reddy was alive and it was not purchased in the name of his father and if it was purchased out of joint family nucleus as contended by plaintiffs then the natural course of action would have been to purchase the same in the name of 1st defendant's father Sri.Doddappa Reddy or jointly in both the names which was not the course adopted while purchasing schedule `B' 20 properties and as such he contends trial court has rightly come to a conclusion that he purchased the properties out of his own earnings and as such there was no necessity for trial court to have issued directions to defendants to pay `30,000/- to plaintiffs. He would contend that trial court having held that plaintiffs are in exclusive possession as owners of schedule A property it was not justified in issuing direction to first defendant to pay a sum of `30,000/- for digging a well in schedule A property. In support of his submission he has relied upon the following Judgments:
1. (2011) 9 SCC 451 - Marabasappa (dead) by Lrs and others Vs Ningappa (dead) by Lrs and others
2. (1976) 3 SCR 202 - Kale and others Vs Deputy Director of Consolidation and others
3. (2006) 4 SCC 658 - Harishankar Singhania and others Vs Gaur Hari Singhania and others
4. (1971) 2 Mys. L.J. 137 - item No.333 - Chikkanna Vs Narayappa 21
5. AIR 1979 SC 982 - The Commissioner of Wealth Tax, Mysore Vs Vijayaba Dowjev Maharani Saheb, Bhavnagar and others
8. Having heard the learned advocates appearing for the parties and on perusal of the Judgment and decree passed by trial court as also evidence both oral and documentary tendered by both parties I am of the considered view that following points would arise for my consideration:
"1. Whether trial court was justified in arriving at a conclusion that there was no joint family in existence and schedule A to D are not the joint family properties?
2. Whether trial court was justified in relying upon deed dated 05.06.70 marked as Exhibit D-42 to dismiss the suit?
OR To what extent deed dated 05.06.70 Exhibit D-42 could be relied upon?22
3. Whether trial court was justified in dismissing the suit of the plaintiff for partition and separate possession of schedule A to D properties?
4. Whether the trial court was just and correct in issuing directions to the defendants to pay the plaintiffs a sum of `30,000/- for digging a well in Schedule `A' property?
5. What order?"
9. In order to appreciate the contentions raised by learned advocates appearing for the parties and to answer the points formulated herein above it would be necessary and appropriate to extract the genealogical tree of the family of original propositus Sri.Basappa. Same reads as under: 23
Basappa Muniamma
1)Doddapapa Reddy 2) Chikkapapa Reddy 3)Yarrappa Reddy 4) Nyathappa Reddy Muniamma Byamma Nanjamma Gowramma
1) Subba Reddy 2) Krishna Reddy 1)Jairam Reddy 1) Rathnamma 1) Lokesh Reddy
2) Smt.Devamma 3) Smt.Venkatamma
3. Babu Reddy 4.K.Srinivas Reddy 2)Narayana Reddy 2) Venkatrama 2) Venkatesh Reddy Reddy (3 & 4 are plaintiffs)
4. Bhagyamma 3) Raja Reddy 3) Narayana Reddy
5. Raja Reddy 4) Sarojamma 4) Govinda Reddy
6. Krishnamurthy 5) Ramesh Reddy 5) Sumangala Devi
6) Varalakshamma (1,2,3,5 & 6 are defendants 1 to 5)
10. First plaintiff is the wife of Sri.Krishna Reddy and second plaintiff is the son of Sri.Krishna Reddy and Smt.Venkatamma. First defendant Sri.Subba Reddy is the brother of Sri.Krishna Reddy. Father of Sri.Krishna Reddy and Sri.Subba Reddy is Sri.Doddappa Reddy. Defendants 2 24 to 5 are the wife and children of Sri.Subba Reddy. Father of Sri.Krishna Reddy and Sri.Subba Reddy, Sri.Doddappa Reddy had got separated from the joint family of original propositus Sri.Basappa and his three other members of the family namely Sriyuths Chikkappa Reddy, Yarappa Reddy and Nyathappa Reddy and by virtue of said separation or partition effected amongst members of joint family of Sri.Basappa and his four sons the said Sri.Doddappa Reddy acquired certain immovable properties. The properties acquired by him are morefully described in schedule A property. It is not disputed that Sri.Doddappa Reddy having acquired title to schedule A property was in joint possession and enjoyment of the said property along with his two sons Sri.Krishna Reddy (1st plaintiff's husband) and Sri.Subba Reddy (1st defendant).
11. It was contended in the suit that at a young age first plaintiff's husband Sri.Krishna Reddy died and she was taken care by Sri.Doddappa Reddy her father-in-law who was the manager of the joint family of plaintiffs 1 and 2 and first 25 defendant. It was also contended that out of joint labour of all the members of the family, schedule B to D properties were acquired out of the income generated from schedule A property. Plaintiff contended that defendants continued to be joint family members and though certain properties were purchased by them were in Chembenahalli they were just three furlongs away from Godugapalli Village and they were residing in their ancestral homes at Godugapalli Village itself and on the demise of Sri.Doddappa Reddy about five years prior to the filing of the suit defendants started giving pin- pricks to plaintiffs taking advantage of the demise of Sri.Doddappa Reddy and on account of intolerant attitude of the defendants plaintiff sought for her ½ share from suit schedule properties and on account of refusal of the demand made by the plaintiff Panchayat was held, where advise given by Panchayatdars during March 1999 to allot share in suit schedule property to the plaintiffs was not acceded to by defendant and the advise given by elders of the village having gone in vain plaintiff's was constrained to file the suit in 26 question seeking partition and separate possession of ½ share.
12. On suit summons being served defendants appeared and first defendant filed written statement denying the averments made in plaint. Relationship between the parties was admitted. It was also admitted that Sri.Doddappa Reddy got the properties of his share as mentioned in schedule A in the partition that took place between himself and his father and his brothers. It was contended that husband of the first plaintiff expired on 22.02.1978. It was denied that Sri.Doddappa Reddy was manager of the family and first defendant or that plaintiffs continued to be members of joint family. Other averments made in the plaint with regard to B schedule property having been acquired out of the income generated from schedule A property came to be denied. It was specifically contended by first defendant that on account of his father Sri.Doddappa Reddy not agreeing for first defendant getting married to second defendant there was 27 disharmony in the family and on account of said situation prevailing in the family, first defendant entered into an agreement/settlement on 05.06.70 and on such deed of settlement being drawn first defendant got married to second defendant and father-in-law of first defendant who was in affluent circumstances came forward to help first defendant to acquire schedule `B' properties. As such it was contended by 1st defendant that out of his sheer hard work he had purchased schedule B properties from his own earnings. It was also contended that first defendant had not taken any share from schedule A property and properties referred to in schedule B property belong to defendants 1 and 2 exclusively and house property in item No.1 of C schedule property belongs to first defendant as also the motorcycle referred to in D schedule. It was contended that description given by plaintiff with reference to B schedule properties are improper and at paragraphs 9 to 14 of the written statement the actual description of B schedule properties purchased by first defendant and second defendant under various sale deeds 28 has been stated. It was also contended that item No.1 of schedule C property was obtained by 1st defendant from Sri.Yerrappa Reddy i.e., his uncle and defendants have been residing in the said house and likewise in item No.2 of C schedule property plaintiffs have been in possession of the same and they are residing therein from the year 1970, after severance of joint family status. It was also contended that first defendant had mortgaged Sy.Nos.25, 50 and 60/1 to Primary Land Development Bank, Bangarpet for purchase of a tractor and till today he is discharging the said loan which would establish that it is his self acquired property. It was also contended in the written statement that all the items of B schedule property were acquired by first defendant out of his own funds and first defendant's father-in-law had contributed for the purchase of schedule `B' property. On these grounds first defendant sought for dismissal of the suit. Defendants 2 to 5 adopted the written statement filed by first defendant. 29
13. On the basis of the pleadings of the parties trial court framed following issues for its consideration:
"1. Whether the plaintiffs prove that plaintiffs and defendants formed a joint Hindu family and that the suit schedule properties are the ancestral joint family properties?
2. Whether the plaintiffs prove that they have half- share in all the suit schedule properties?
3. Whether the 1st defendant proves - that defendants 1 and 2 are the absolute owners of the plaint `B' schedule properties being their self- acquired properties?
4. Whether the 1st defendant proves that item No.1 of the suit schedule property is his self-acquired property?
5. Whether the defendants prove that moped shown in `D' schedule is his absolute property?
6. Whether the plaintiffs prove the existence of `D' schedule properties?30
7. To what relief the plaintiffs are entitled to?
8. What order or decree?
14. First plaintiff got herself examined as PW-1 and in support of her claim she examined three witnesses namely PW-2 to PW-4 and in all she produced 19 documents and got them marked as Exhibits P-1 to P-19. On behalf of the defendants first defendant got himself examined as DW-1 and in all he examined 7 witnesses namely DW-2 to DW-8 and got produced 84 documents by getting them marked as Exhibits D-1 to D-84. On appreciation of evidence both oral and documentary trial court dismissed the suit for partition and separate possession and directed the defendants to pay a sum of `30,000/- to the plaintiffs for digging a well in the schedule A property.
31CONCLUSIONS ARRIVED AT BY THE TRIAL COURT:
15. Trial court has framed Issues 1 and 2 casting a burden on the plaintiffs to prove that they along with defendants constituted a Hindu Joint Family and suit schedule properties are joint family properties and as such plaintiffs are having ½ share over the said properties. While answering these two issues in the negative, trial court has rested its conclusion by placing reliance on the evidence of PW-1 whereunder PW-1 has admitted that she does not know from whom and when the `B' schedule properties were purchased and for what consideration. It has also arrived at a conclusion that PW-1 did not possess any document to establish that `B' schedule properties were purchased out of the income generated from joint family properties namely Schedule `A' properties. With regard to severance of joint family status trial court relied upon Exhibit D-42 namely relinquishment deed dated 05.06.70 said to have been executed by Sri.Doddappa Reddy; for collateral purposes only 32 namely to find out as to whether there was severance of status and disruption in the joint family status and arrived at a conclusion that joint family ceased to exist after 1970. Trial court has held that first defendant had left joint family in year 1970 and purchased schedule `B' lands from various persons as evidenced from the sale deeds produced by him and it is his self acquired properties. It also held that first defendant had not purchased from out of the joint family funds and if it were to be so he would have purchased in the name of his father Sri.Doddappa Reddy since he was alive at that time and on account of same having purchased in his name it would indicate that it is his self acquired property. Trial court held that there cannot be any presumption with regard to all the properties being joint family properties and burden is on the asserting parties to prove that such properties are not joint family properties and first defendant has proved that schedule B, C and D properties are his self acquired properties after having separated from the joint family in the year 1970. While answering issues 3 to 5 which related to 33 defendants being absolute owners of B schedule properties and first defendant being the owner of item No.1 of suit schedule C property trial court has held that plaintiff is in possession of schedule A properties and on account of PW-1 not stating as to when and in whose name first defendant purchased the properties. Plaintiff has failed to prove that it was purchased out of joint family income.
16. Trial court has relied upon the relinquishment deed dated 05.06.1970 Exhibit D-42 to arrive at a conclusion that 1st defendant was residing separately from said date and on account of issue Nos.1 and 2 being held against plaintiff issue No.6 was also held in the negative i.e., against plaintiff. While answering issue no.7 namely, as to whether plaintiffs are entitled for any relief Trial Court has issued a direction to the defendants that though 1st plaintiff is not entitled for any maintenance she would be entitled for some amount for digging borewell in plaintiff lands and accordingly, it has 34 directed defendants to pay a sum of ` 30,000/- to the plaintiffs.
RE POINT NO.1:
17. As already noticed hereinabove there is no dispute with regard to the relationship between the parties. 1st plaintiff has specifically contended that after she got married to Sri. Krishna Reddy, she was residing with her father-in- law, Sri Doddapapi Reddy (he has also been referred to as Doddappa Reddy by parties before trial court) and her husband's brother Sri Subba Reddy (1st defendant herein) in the family house at Godugapalli village, Malur Taluk, Kolar District along with her husband. 1st plaintiff's husband Sri.Krishna Reddy expired on 22.02.1978. It is the contention of 1st plaintiff that on the demise of her husband she and her son Sreenivasa Reddy i.e., 2nd plaintiff herein were taken care of by her father-in-law, Sri Doddapapi Reddy and 1st defendant. She has contended that Sri Doddapapi Reddy was the manager of the joint family constituting 35 plaintiffs and 1st defendant. As against this claim 1st defendant has specifically contended that on account of difference of opinion between himself and his father i.e., on account of 1st defendant then intending to get married to 2nd defendant, which was not approved by his father namely Sri.Doddapapi Reddy, he entered into an agreement of settlement with his father on 05.06.1970 and a deed of settlement was drawn whereunder his father has admitted that from the date of said deed, whatever 1st defendant earns would be his individual and self acquired property and he would not have any right over those properties which 1st defendant may acquire and only on execution of said deed on 05.06.1970 1st defendant married 2nd defendant and started residing separately and as such schedule `B' properties are his self acquired properties. In this background let me now examine as to whether oral evidence tendered by the parties is in consonance with their pleadings.
36
18. 1st plaintiff has entered the witness box and has tendered evidence as P.W.1. She has reiterated the contentions raised in the plaint.
19. Sri G.L.Vishwanath, learned counsel appearing for defendants has pressed into service the evidence put forth by P.W.1 in her examination-in-chief particularly paragraph 8 to contend that it would indicate that only Doddapapi Reddy was residing along with the plaintiffs and there is no mention of 1st defendant residing along with them and as such he has contended that trial court rightly relied upon the recitals found in Exhibit D-42 to find out as to whether there was severance of status in the joint family and held in the affirmative. It is also required to be noticed that at paragraph 11 of the examination-in-chief of PW-1 it has been contended to the following effect;
"I swear my father-in-law Sri Doddapapi Reddy died about 5 years prior to filing of the suit and after his death myself and my son are living with the defendants."37
20. 1st defendant has also entered the witness box and has got himself examined as D.W.1. In his cross-examination dated 20.03.2006 D.W.1 has admitted that after partition between his father, grandfather and brothers of his father, he along with his brother Krishna Reddy (1st plaintiff's husband) continued to reside in the family house for a period of 2 years. He also states that at that time he was aged about 22 years. Plaintiff has contended that 1st defendant was taking care of plaintiffs on the demise of her father-in-law Sri.Doddapapi Reddy which was denied by 1st defendant in the written statement. However, in the cross-examination dated 20.03.2006 when he was confronted with the document Exhibit P-19 i.e., school certificate pertaining to 2nd plaintiff he admits that he had got admitted 2nd plaintiff to the school at Godagupalli where his three children i.e., defendant Nos. 3, 4 and 5 were also studying.
21. P.W.2 who was the Ex-Chairman of Dinnihalli Panchayat was examined on behalf of plaintiff. Apart from 38 reiterating the evidence of P.W.1 it has been elicited in his cross-examination that immediately on demise of Krishna Reddy 1st plaintiff was taken care by her father-in-law Sri Doddapapi Reddy vide cross-examination dated 09.01.2005. Nowhere it is suggested in his cross-examination that 1st defendant was not residing with Doddapapi Reddy and plaintiffs. But on the other hand 1st defendant himself admits that he was with his father for about 2 years after the partition that took place between his father and grandfather, which would clearly indicate that there existed joint family status amongst the members of Doddapapi Reddy and his two sons. It is because of this precise reason defendant took up the contention that he got separated from the joint family in the year 1970 from his father and was residing separately elsewhere. From this evidence it would emerge that there was existence of joint family of Sri.Doddapapi Reddy and his two sons and Schedule A properties are the joint family properties namely property acquired by Doddapapi Reddy from the original propositus Sri Basappa (grandfather of 1st defendant 39 and Krishna Reddy). Exhibit P-19 which has been admitted by D.W.1 would also indicate that 1st defendant had got admitted 2nd plaintiff to Government Lower Primary School at Godagupalli village where defendant Nos. 2 to 5 namely the sons of 1st defendant were also studying. This would also establish or atleast indicate the fact that plaintiffs and 1st defendant were residing together or in the alternate plaintiffs were being taken care of by 1st defendant. Said admission of 2nd plaintiff was for the academic year 1983-84. If there was severance of status in the year 1970 as contended by plaintiffs and there was no relationship between 1st defendant and plaintiffs, there was no necessity or need for 1st defendant to take care of plaintiffs and in particular getting 2nd plaintiff admitted to the school where his children were also studying. This fact would strongly weigh in favour of plaintiffs to hold that there was existence of joint family. Trial Court while arriving at a conclusion that there was no existence of joint family has heavily relied upon Exhibit D-42 namely relinquishment deed or release deed dated 40 05.06.1970, which is marked as Exhibit D-42 to reject the claim of plaintiffs and accept the plea put forward by 1st defendant.
22. While adjudicating point No.2 formulated hereinabove in the fore going paragraphs, I would be discussing as to whether Trial Court was justified in relying upon the said relinquishment deed or not. At this juncture it would suffice to notice the judgment of Hon'ble Apex Court in the case of INDRANARAYAN V/s ROOP NARAYAN AND ANOTHER reported in AIR 1971 SC 1962, whereunder it has been held that one who pleads that a joint family member had got separated himself from the family has to prove it satisfactorily. It is no doubt true that initial burden is on the plaintiff to establish the existence of joint family. In the instant case as discussed hereinabove plaintiff has been able to establish the fact that there was existence of joint family. 1st defendant does not dispute the relationship and existence of joint family till he allegedly got separated from the joint 41 family in the year 1970, by virtue of relinquishment deed said to have been executed by his father Sri Doddapapi Reddy on 05.06.1970 as per Exhibit D-42. It is in this background the judgment of INDRANARAYAN V/s ROOP NARAYAN AND ANOTHER's case referred to supra has to be looked into and applied to the facts and circumstances of the present case whereunder it has been held by their lordships as under:
"15. The first question that has to be decided is whether there was a separation between the plaintiff and the members of his family. The plea taken in the written statement is a somewhat curious one. There is no allegation that the plaintiff had separated from his family. On the other hand what was pleaded is that the plaintiff had separated from his father. No members of a Hindu family can separate himself from one member of the family and remain joint with others. He is either a member of the joint family or he is not. He cannot be joint with some and separate from others. It is true that for the existence of a joint family, the family need possess no property. The chord that knits the members of the family together is not property but the relationship. There is no gainsaying the fact that Dr. Pandit and his sons were members of a joint family though that family as such possessed no property. All properties possessed by Dr. Pandit were his self-acquired properties. We agree with the finding of the High Court that there was no separation between the plaintiff and his family. The 42 law presumes that the members of Hindu family are joint. That presumption will be stronger in the case of a father and his sons. It is for the party who pleads that a member of a family has separated himself from the family to prove it satisfactorily. There is not an iota of evidence in this case to show that the plaintiff had at any time made any unequivocal declaration that he had separated himself from his family much less there is any evidence that much less there is any evidence that he communicated his intention to separate himself from the family either to the karta or to any of the members of the family. There is no doubt that there was great deal of disagreement between Dr. Pandit and the plaintiff. It is also true that as far back as 1936 Dr. Pandit had threatened to dis- inherit the plaintiff but these facts by themselves do not prove the factum of separation. The fact that the plaintiff was now and then expressing that he was not interested in his father's estate do not amount to a declaration of his intention to separate from the family. The High Court rightly considered these statements as emotional outbursts. We have earlier seen that in the reply notice sent on behalf of the 1st defendant there is not even a whisper of the plaintiff's separation from the family. Therefore the plea of the 1st defendant that the plaintiff had separated from the family is clearly an afterthought. It is based on no evidence. To prove that the plaintiff had separated himself from the family, reliance was placed on the testimony of Col. Madhav. His evidence is too vague and too slender to found a case separation.
(Emphasis supplied by me) 43
23.Keeping the contours laid down by the Hon'ble Apex Court in the case of INDRANARAYAN V/s ROOP NARAYAN AND ANOTHER referred to supra when the facts on hand are further scrutinized, it would emerge that documentary evidence namely Exhibits P-3, P-6, P-9, P-7 and P-11 namely revenue records relating to item Nos.1, 2, 3, 4 and 6 of Schedule 'A' property would evidence the fact that these lands are standing in the name of 1st defendant or the original propositor namely Sri Basappa Reddy whose father name was also Sri Subba Reddy. Exhibit P-9 - RTC Extract relating to Sy.No.32 i.e., item No.4 of schedule `A' property would also indicate that it is standing in the names of Sriyuths Basappa, s/o Subba Reddy and Sathyappa Reddy s/o Basappa Reddy namely grandfather of 1st defendant and his uncles i.e., father's brothers. It is no doubt true revenue records would not confer title in the property in favour of a person whose name is entered in those records. However, with regard to possession inference can be drawn in whose favour such 44 entry is found though it is a rebuttable presumption. In other words burden was cast on 1st defendant to rebut the said presumption namely rebut the entries found in these documents to establish that those properties are not joint family properties. Such an exercise was not undertaken by 1st defendant even being fully cautious of fact that Schedule 'A' properties are the joint family properties. In fact in the written statement 1st defendant unequivocally admits that Schedule 'A' properties are joint family properties. For this reason also trial Court was in error in ignoring the material evidence namely revenue records available on record to arrive at a conclusion that plaintiffs have failed to prove the existence of joint family. Hence, the conclusion arrived at by Trial Court in rejecting the claim of plaintiffs is erroneous and cannot be sustained.
24. P.W.2, P.W.3 and P.W.4 who were the three witnesses examined on behalf of plaintiffs have also stated that on the demise of Sri Krishna Reddy i.e., plaintiff's 45 husband, she and her son were initially taken care of by Sri Doddapapi Reddy i.e., father-in-law and later on 1st defendant. This is also one strong factor which requires to be held in favour of plaintiffs to arrive at a conclusion that there was existence of joint family. Cross-examination of P.W.2 and P.W.3 dated 03.01.2006 would also clearly indicate that Doddapapi Reddy had acquired Schedule A property in the partition entered into amongst him, his father and brothers, which would also strongly support the case of the plaintiff that there was existence of joint family nucleus. These two witnesses who have been cross-examined on behalf of 1st defendant have denied the suggestion that plaintiffs have no right over 'B' and 'C' schedule properties. They have also denied that Schedule 'B' and 'C' properties have been purchased by 1st defendant out of his own income. As such, I am of the considered view that point No.1 formulated hereinabove has to be answered in the negative i.e., against 1st defendant and in favour of plaintiffs.46
RE POINT NO.2:
25. As already noticed hereinabove Trial Court has very heavily relied upon Exhibit D-42 to arrive at a conclusion that there was severance of status between 1st defendant and his father way back in the year 1970 itself and as such, it arrived at a conclusion that there was no existence of joint family.
26. Sri.Papegowda, learned counsel appearing for appellants has vehemently contended that Trial Court committed a serious error in relying upon said document and in support of his contention he has relied upon the judgments referred to supra.
27. In the case of UMAKANT RAO'S VS. LALITABAI & OTHERS reported in 1998 (2) KAR.L.J. 155 it has been held: if there is partition of joint family properties in addition to immovable properties mentioned therein is worth more than ` 100/- it is required to be registered under Section 17(1)(b) of the Indian Registration Act, 2908, and as such it could not have been considered as a valid document. In the 47 very same judgment it has also been held that if several other matters which do not require to be registered is also included therein and though the document is inadmissible in evidence to prove that partition was effected between defendant Nos.1 and 3 therein, becomes admissible only to prove that the members of the family were in possession of the joint family properties. In other words Division Bench of this Court has held that for collateral purposes the document can be looked into. Same has been the tenor of the judgment in the case of G.RANGAIAH VS. GOVINDAPPA & ORS. reported in AIR 2008 KAR 151.
28. Coordinate Bench of this Court in the case of K. ANJANEYA SETTY VS. K.H.RANGIAH SETTY reported in ILR 2002 KAR 3613 has held that in view of proviso to Section 49 there is no prohibition for receiving unregistered document in evidence. It has also been held that unregistered partition deed could be received in evidence to prove any collateral transaction.48
29. Sri G.L.Vishwanath, learned counsel appearing for defendant has relied upon the judgment of Apex Court in the case of KALE AND OTHERS VS. DEPUTY DIRECTOR OF CONSOLIDATION AND OTHERS reported in 1976 (3) SCR 202 whereunder it has been held that assuming that family arrangement was compulsorily registerable, said arrangement would be binding on the parties to it and would operate as an estoppel by preventing the parties to resile from the same or try to revoke it after having taken advantage under the arrangement. There cannot be any dispute with regard to the proposition of the law laid down by the Apex Court and Division Bench as well as Coordinate Bench of this Court in the above judgment. The Hon'ble Apex Court after analyzing various case laws on this aspect has laid down the contours under which the Courts can examine a document which is brought in evidence which is either inadmissible under the relevant Stamp Act or the Registration Act, as the case may be. In the case of K.B.SAHA AND SONS PRIVATE LIMITED 49 VS. DEVELOPMENT CONSULTANT LIMITED reported in 2008 (8) SCC 564 at paragraph 34 the Apex Court had laid down the guidelines and it has also been held by their lordships that it is not exhaustive. Those guidelines read as under:
"34. From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that:
1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document 50 for the purpose of proving an important clause would not be using it as a collateral purpose."
30. On perusal of the above judgment it would emerge that a document can be looked into by a court as an evidence of collateral transaction which must be independent or divisible from the transaction and said transaction does not require registration and to that extent transaction can be looked into. In the instant case there was severance of status according to 1st defendant under the said document between himself and his father. To establish this severance of status he produced this document and got it marked as Exhibit D-
42. Plaintiff did not object to the marking of this document. Under Section 34 of the Karnataka Stamp Act, 1957 if a party to the lis does not object to the marking of the said document at the time of marking, he would be estopped from raising a plea about marking of the said document. Hence, for the said reason contention of Sri Papegowda cannot be accepted. 51
31. If the essential term of the document itself is relied upon then the said document if it requires to be registered it need not be looked into even for collateral purposes. Admittedly, transaction relating to severance of status is a collateral purpose and said document does not require to be compulsorily registered inasmuch as for establishing the past transaction if a family arrangement is entered into it would be admissible in evidence and as such the document produced and marked as Exhibit D-42 before the Trial Court cannot be found fault with.
32. Mere production of the document would not suffice. The contents of it requires to be established and proved by the person relying upon the said document. In the instant case defendant has relied upon evidence of D.W.2, D.W.3 and DW4 who are the sons of those witnesses who had affixed their signatures to the said document and also the sons of scribe, to contend that they have identified the signatures of the said document and it would evidence the 52 existence or due execution of said document by father of 1st defendant and as such trial court was justified in holding that severance of status between plaintiff, defendant and his father had taken place in 1970. In order to appreciate said contention it would be necessary to examine the said document at the first instance itself, the original of which is available on record and has been marked as Exhibit D-42. The perusal of said document would clearly indicate that recitals are hand written and it is on a 5 rupees non judicial stamp paper and it is said to contain the signatures of Sriyuths Doddapapi Reddy (father of 1st defendant and father in law of 1st plaintiff), two witnesses Byrappa and Basegowda as well as the signature of the scribe Sri.Chikkaveeranna Shetty. Under the said document Dodddappa Reddy states to the following effect:
"£Á£ÀÄ M¦à §gÉzÀÄPÉÆlÖ ªÉÄîÌAqÀ ¥Á¦gÉrØ DzÀ £Á£ÀÄ M¦à §gɹPÉÆlÖ £À£Àß ¨Á§ÄÛ £À£Àß ¸Áé¢üãÀ C£ÀĨsª À z À À°ègÀĪÀ ¸ÉÆvÀÄUÛ À¼ÀÄ F¯ÁUÁ¬ÄÛ¤AzÀ ¤Ã£ÀÄ ºÉƸÀzÁV ¸ÀA¥ÁzÀ£É ªÀiÁrzÀ D¹ÛUÀ¼ÀÄ ¤ªÀÄä «£ÀºÀ AiÀiÁªÀÅzÉà ºÀPÀÄÌzÁgÀgÀÄ ¸Áé¢üãÀzÁgÀgÀÄ AiÀiÁgÀÄ EgÀĪÀÅ¢®è. ¤ªÀÄä «£À: D¹ÛUÀ¼À°è £À£Àß ¸Á®¸Á®Ä ¥ÀÆgÁ ¤£ÀUÉ ºÀPÀÄÌ ©nÖgÀÄvÉÛãÉ. £Á£ÀÄ F PɼÀUÉ PÀAqÀ 53 ¥ÀAZÁ¬ÄÛzÁgÀ ¸ÁQëUÀ¼À ªÀÄÄAzÉ £Á£ÀÄ ¤¤ßAzÀ jðeï AiÀiÁ ºÀPÀÄÌ ©qÀÄUÀqÉ ºÉÆA¢gÀÄvÉÛãÉ. £ÀªÀÄUÀÆ ¤ªÀÄUÀÆ AiÀiÁªÀ dAdgï d«Ää®è zÉúÀ ¸ÀA§Azsª À ÃÉ ºÉÆgÀvÀÄ CxÀð CxÀð ¸ÀA§Azsª À ÃÉ £ÀÄ EgÀĪÀÅ¢®è JA§ÄzÁV §gÉ¢lÖ PÀgÁgÀÄ ¥ÀvÀæ."
It indicates that from the date of execution of said document, if any property is acquired by 1st defendant it would be his self acquired property and executant (father of 1st defendant) would not have any right and he is getting himself relinquished or released. Said document does not indicate that executant is relinquishing right or title in respect of any property. Said document does not contain the signature of 1st defendant. In his written statement 1st defendant says that he entered into an agreement and settlement with his father on 05.06.1970 and a deed of settlement was drawn. If there was a deed of settlement between father and son both would have been signatories to the said document. In his cross- examination dated 28.03.2006 D.W.1 admits that he did not execute any relinquishment deed releasing his right over the joint family properties. This evidence would indicate that 54 there was no relinquishment of any right, title and interest by 1st defendant in favour of his father either releasing or relinquishing his right, title and interest over the joint family properties. In other words 1st defendant continued to be a member of the joint family.
33. One another strong factor which would tilt in favour of plaintiffs to corroborate this fact is documentary evidence available on record namely exhibits D-20 and D-22, which are the mortgage deeds. They are executed by 1st defendant along with his father Doddapapi Reddy in the year 1976 i.e., on 14.04.1976 and 12.10.1976 respectively. Said mortgage deeds are executed by these two persons in favour of Primary Land Development Bank (hereinafter referred to as 'PLD Bank' for short) whereunder property bearing survey No. 34/2 has been mortgaged in favour of PLD bank for having borrowed loan. If really defendant had got separated himself from the joint family as contended in the year 1970 then the moot question that would arise is: as to why Doddapapi 55 Reddy joined 1st defendant in execution of the mortgage deed in favour of PLD bank, which was required to be answered by 1st defendant by producing a cogent evidence which he has utterly failed to do so. In his cross-examination dated 20.03.2006 D.W.1 has admitted that his father knew how to read and write. He has denied the suggestion that Doddapapi Reddy was illiterate. In other words said Doddapapi Reddy i.e., father of 1st defendant being aware of the contents of Exhibits P-20 and P-22 had affixed his signature and as such even assuming that there was a relinquishment deed executed by late Doddapapi Reddy as per Exhibit D-42 the one and only conclusion which can be drawn is it was not given effect to or in other words it was not acted upon inasmuch as the very same Doddapapi Reddy who is said to have executed Ex.D-42 has joined 1st defendant to execute mortgage deeds in favour of PLD Bank. As such the contents of Exhibit D-42 recedes to the background. The witnesses who have been examined to prove the contents of Exhibits D- 42 namely D.W.2, D.W.3 and D.W.4 are from different 56 villages, and they are not from the village where 1st defendant has been residing and where deceased Doddppa Reddy was residing. They are from Yelesandra and Budkote villages, whereas deceased Doddapapi Reddy was a resident of Godugapalli village. As such much reliance cannot be placed on the evidence of these witnesses and even when they are looked into, they are required to be brushed aside for the reason that defendant has not been able to demonstrate that he had got released himself from the joint family and there was disruption in the joint family status. As such point No.2 is to be held in the negative i.e., against 1st defendant and in favour of plaintiffs.
RE POINT NO.3:
34. Apart from the reasons assigned while answering point Nos.1 and 2 it requires to be noticed that D.W.5 admits that the father of 1st defendant had ancestral lands at Godugapalli village. One of the witness who was examined on behalf of 1st defendant namely D.W.7 Sri.Jayarama Naika 57 himself has stated in his examination-in-chief to the following effect:
"2) I swear plaintiff is the wife xxxxxxxxxxxxx one house. That as the plaintiffs husband was dead, the entire properties were given to the share of plaintiff in the said partition and since the date of partition she is in possession of the said properties at Godagapalli village and her annual income is nearly Rs.1,00,000.00. There is a well with pumpset in plaintiff. That the 1st defendant has purchased a separate house in Godagapalli and residing in the said house. I swear as I am a permanent resident of Godagapalli and I am the uncle of plaintiff and defendants and hence I am fully aware of the above said facts."
35. Said witness in the evidence for the first time states that partition took place between the members of Doddapapi Reddy on the demise of Krishna Reddy. Neither it was the case pleaded by 1st defendant nor such plea was put forward by 1st defendant. On the other hand it was the case of 1st defendant that there was severance of status in the year 1970. Whereas Krishna Reddy i.e., husband of 1st plaintiff expired in the year 1978. This would also cut the case of 1st defendant namely till 1970 there was continuance of joint 58 family. In other words the evidence on record would indicate that at the first instance 1st defendant contended that he got separated from the joint family in the year 1970. In his evidence he states till 1972 he continued to reside with his father and brother. Whereas in 1976 both 1st defendant and his father have mortgaged item No.4 of schedule `B' property which is claimed by 1st defendant as his self acquired property. On the other hand evidence on record would indicate that income was being generated from Schedule 'A' property. 1st defendant himself admit in his cross- examination that from the income generated from Schedule 'A' property his father and brother and their family members were eking out their livelihood. In his cross-examination dated 20.03.2006 he admits that till he purchased item No.4 of Schedule 'B' property in the year 1972, he did not have any income. There is no evidence available on record to demonstrate that other than income generated from Schedule 'A' property there was no income available to the family including 1st defendant. As to his source for income for 59 purchasing item No.4 of Schedule 'B' property, there is no evidence. 1st defendant himself has admitted that prior to said purchase of land he did not have any income whatsoever. He would also admit in his cross-examination of even date that between 1999-2002 the income that was generated from Schedule 'A' property was rupees 1 lakh. This chain of admissions on the part of 1st defendant would clearly establish that other than the income that was being generated from Schedule 'A' property 1st defendant had no other independent income. For the 1st time he purchased item No.4 of Schedule 'B' property in 1972. Thereafter he mortgaged the said property along with his father as per Exhibits D-20 and D-22 and has also derived the income therefrom and has started purchasing properties one after the other. Thus, source of income for purchase of these properties has to be necessarily traced to the income that was being generated from Schedule 'A' property. As such, I am of the considered view that Trial Court was not justified in 60 dismissing the suit filed by the plaintiff for partition and separate possession of Schedule 'A' to 'D' properties.
36. In view of the undisputed fact that Schedule 'A' is a joint family property and other items in Schedule 'B' having been purchased from out of the funds generated from Schedule 'A' property plaintiffs are entitled for partition and separate possession of item Nos. 1 to 5 of schedule `B' property only.
37. Insofar as item No.6 of schedule `B' property is concerned, said property has been purchased by Smt. Devamma i.e., 2nd defendant under a sale deed dated 30.11.1983 Exhibit D-81. She has entered the witness box as D.W.7 and contended that her father and brothers had agreed to give the said land to her for 'Arisina Kunkuma' and as such she purchased the said land i.e., item no.6 in Schedule 'B' property from one Smt.Chinnamma. She has also stated that consideration for purchase of said land was paid by her father and brother since they had agreed to give the said land to her 61 at the time of her marriage. Except a stray sentence in her cross-examination that her sister Smt.Papamma was not given any land after her marriage there is nothing worthwhile elicited in her cross examination to disbelieve the testimony of D.W.7 Smt. Devamma. She has also examined her vendor's son as D.W.8 and he has stated that the consideration amount for purchasing of item No.6 Schedule 'B' property by 2nd defendant was paid by her father and brother. In the cross-examination of said witness nothing worthwhile has been elicited to discard his evidence. In fact he is a witness to the said sale deed and his signature has been marked and identified by him as Exhibit D-81A. In that view of the matter evidence of D.W.8 read with evidence of D.W.7 cannot be brushed aside or it cannot be held that 1st defendant facilitated defendant No.2 to purchase this property or consideration had flown from 1st defendant to 2nd defendant. On account of overwhelming evidence available on record to establish that 2nd defendant had purchased item No. 6 of Schedule 'B' property and consideration had been paid by her 62 father and brother as accepted by her vendor's son D.W.8, plea of plaintiffs that said property is also a joint family property cannot be accepted and it stands rejected.
38. Insofar as Schedule 'C' property is concerned it is undisputed fact that item No.1 is in possession of defendants and item No.2 is in possession of 2nd defendant and they are enjoying their properties respectively.
39. Thus, plaintiff would be entitled for partition and separate possession in respect of item Nos.1 to 6 in Schedule 'A' property and item Nos. 1 to 5 of schedule 'B' property. In view of the said conclusion arrived at by this Court, direction given by the Trial Court that defendants are liable to pay a sum of ` 30,000/- to plaintiffs cannot be sustained particularly when it has been held by the trial court itself that plaintiff is not entitled for any interim maintenance. In view of the fact, that plaintiffs have been deprived of proceeds of Schedule 'B' properties they would be entitled to work out 63 their remedy for mesne profits under Order 20 Rule 12 CPC before Jurisdictional Court.
RE POINT NO.4:
40. For the reasons aforestated, following order is passed:
ORDER i. Appeals are hereby allowed in part.
ii. Judgment and decree passed by Trial Court in O.S.NO. 19/1999* dated 01.08.2006 dismissing the suit of plaintiff for partition and separate possession of suit schedule properties is hereby set aside.
iii. Plaintiff suit for partition and separate possession of half share insofar as item Nos.1 to 6 of Schedule 'A' property and item Nos. 1 to 5 of Schedule 'B' property is hereby decreed. Plaintiff's claim for partition and separate possession of item no.6 of Schedule `B' property is hereby dismissed.
*Corrected V.C.O dated 13-06-2013 64 iv. Plaintiff is entitled for past mesne profits under Order 20 Rule 12 CPC before jurisdictional Court in respect of item Nos. 1 to 5 of Schedule 'B' property only.
v. Insofar as direction issued to 1st defendant to pay plaintiffs a sum of ` 30,000/- is hereby set aside in view of the fact that plaintiff's suit for partition and separate possession having been decreed.
vi. Registry to draw the decree accordingly.
vii. In view of the close knit relationship between parties they are directed to bear their respective costs.
Sd/-
JUDGE SBN/DR