Karnataka High Court
Smt H T Netra W/O A V Ravindra vs Shankappa S/O Late Venkataramana Naik on 18 September, 2014
Bench: K.L.Manjunath, A.V.Chandrashekara
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18TH DAY OF SEPTEMBER 2014
PRESENT
THE HON'BLE MR.JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR.JUSTICE A.V.CHANDRASHEKARA
R.F.A.NO.913/2006
BETWEEN:
1.SMT. H.T.NETRA, 35 YEARS,
W/O A.V.RAVINDRA,
OCC: AGRICULTURIST.
2. SRI. A.V.RAVINDRA, 40 YEARS,
S/O LATE VENKATARAMANANA NAIK,
AGED 40 YEARS,
OCC: AGRICULTURIST.
BOTH R/AT ABBLI,
ASAGODU VILLAGE,
HOSKOPPA POST,
CHICKMAGALUR DISTRICT
PIN 577101.
...APPELLANTS
(BY SHRI.RAJENDRA S, ADVOCATE FOR
SHRI. S.V.PRAKASH, ADVOCATE)
AND:
2
1. SHANKARAPPA, 50 YEARS,
S/O LATE VENKATARAMANANA NAIK,
R/O AT ABBLI, ASAGODU VILLAGE,
HOSAKOPPA POST,
CHICKMAGALUR DISTRICT - 577101.
2. CHANDRASHEKAR, 30 YEARS,
S/O LATE VENKATARAMANANA NAIK,
R/O AT ABBLI, ASAGODU VILLAGE,
HOSAKOPPA POST,
CHICKMAGALUR DISTRICT - 577101.
3. SMT. SHESHAMMA, 71 YEARS,
W/O LATE VENKATARAMANANA NAIK,
R/O AT ABBLI, ASAGODU VILLAGE,
HOSAKOPPA POST,
CHICKMAGALUR DISTRICT - 577101.
4. SMT.SRIMATHI, 31 YEARS,
W/O NARAYANA GOWDA,
D/O LATE VENKATARAMANANA NAIK,
R/O HERURPAL, DEVAGODU VILLAGE,
N.R.PURA TALUK, CHICKMAGALUR
DISTRICT - 577101.
5. SMT.LALITHA, 45 YEARS,
W/O H.D. SRINIVAS GOWDA,
R/O HERURPAL, DEVAGODU VILLAGE,
CRS POST, BALEHONUR,
N.R.PURA TALUK, CHICKMAGALUR
DISTRICT - 577101.
6. SMT.PRATHIMA, 27 YEARS,
W/O SURAPPA, R/O AT ABBLI,
ASAGODU VILLAGE, HOSAKOPPA POST,
CHICKMAGALUR DISTRICT - 577101.
3
...RESPONDENTS
(BY SMT.S.NAGANANDINI, ADV. FOR
M/S. G.JAIRAJ & ASSOCIATES, FOR R2,
R1 - NOTICE HELD SUFFICIENT
R3 TO R6 - SERVED & UNREPRESENTED)
THIS R.F.A. IS FILED U/S.96 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 8.2.2006
PASSED IN O.S. NO.4/99, ON THE FILE OF THE CIVIL
JUDGE (SR.DN) CHICKMAGALUR, DECREEING THE
SUIT FOR PARTITION AND SEPARATE POSSESSION
ETC.
THIS APPEAL COMING ON FOR HEARING THIS
DAY, A.V.CHANDRASHEKARA J, DELIVERED THE
FOLLOWING:-
JUDGMENT
Defendants 2 and 3 in O.S.No.4/1999, which was pending on the file of the Court of Civil Judge ( Sr.Dn), Chickmagalure, are before this court by filing an appeal under Section 96 of the Civil Procedure Code, challenging the judgment and decree passed against them. The suit filed for the relief of partition and separate possession in respect of immovable properties as described in the schedule appended to the plaint has 4 been decreed as prayed for granting 8/28th share i.e. 2/7th share each to the defendants 1 and 2.
2. The parties would be referred to as per their rank in the Trial Court.
3. The facts leading to filing of the present appeal are as follows:-
i) One Venkataramanana Naik, was the husband of defendant no.1 and father of the plaintiffs 1 and 2 and defendants 2, 4, 5 and 6. The 3rd defendant is the legally wedded wife of the 2nd defendant - Ravindra.
The case of the plaintiffs, as projected before the Trial Court is that, items 1 to 4 and items 7 to 10 are the ancestral properties of late Venkataramana Naik and that Item no.5 was purchased by Venkataramana Naik in the name of his son A.V. Ravindra/2nd defendant and item no.6 was purchased by Ravindra in the name of his wife - Nethra, out of the joint family funds. House property in item No.9 was constructed by 5 Venkataramana Naik during his lifetime. Since Venkataramana Naik died on 7.9.1992, a request was made to defendants 1 and 2 to give their legitimate share and the same was not considered and hence, a suit was filed for partition and separate possession.
ii) Defendant no.2 chose to file the written statement denying the existence of joint family as averred in the plaint, but admitted all other averments in regard to suit schedule properties, except item nos.5, 6 and 9. It is his specific case that item nos.5 and 6 are the self acquired properties of himself and his wife respectively and that house in item no.9 was constructed by him out of his own funds. It is his case that there was already a partition during the lifetime of his father - Venkataramana Naik. Therefore, the plaintiffs are not entitled to seek any partition and he requested the Trial Court to dismiss the suit. 6 Defendants 1, 3 to 6 have adopted the written statement filed by defendant no.1.
iii) On the basis of the pleadings, the following issues were framed by the Trial Court:-
" 1) Whether the plaintiff proves that during the lifetime of Venkataramana Naik, the father of the plaintiffs had purchased an extent of 3 acres 20 guntas of land in Sy.No.130 i.e. item No.5 in the name of the defendant No.2 out of the joint family income?
2) Whether the plaintiff proves that the defendant No.2 has purchased schedule item No.6 of the property in the name of his wife, the defendant No.3 the said property was purchased out of the income of the joint family?
3) Whether the defendants prove that the partition made between the parties in the presence of panchayathdars?7
4) Whether the plaintiffs entitled to 1/3 share each in this schedule property?
5) What order or decree?
vi) Plaintiff no.2 - Chandrashekar is examined as P.W.1 and got marked Ex.P.1 to Ex.P.15. Defendant no.3 - Nethra and defendant no.2 - Ravindra have been examined as D.W.1 and D.W.2 respectively. Two more witnesses have been examined on their behalf as D.W.3 and D.W.4 Ultimately, the suit was decreed. It is this judgment which is called in question in this appeal on various grounds as set out in the appeal memo.
4. We have heard the learned counsel for the parties.
5. Learned counsel for the appellants has vehemently contended that the Trial Court has adopted wrong approach to the real state of affairs without looking into intrinsic evidence let in by the defendants. 8 It is further argued that on 7.9.1992, Venkataramanana Naik died and that item no.6 was purchased after his death i.e. in the year 1998 by his wife - Nethra with her own funds. It is argued that the oral and documentary evidence adduced by the defendants have not been properly analysed by the Trial Court. It is further argued that acceptable evidence is placed on record to probabalise the earlier partition and subsequent purchase of item no.5 by him in the year 1988.
6. Per contra, learned counsel for the respondents/plaintiffs has supported the judgment of the Trial Court. It is argued that the defendants 3 and 4 have failed to make out a clear case that there was an earlier partition and therefore any acquisition made by defendant no.2 or defendant no.3 must be deemed to be one acquired out of the joint family funds. In this regard, learned counsel for the respondent has argued that the Trial Court has critically evaluated the oral and 9 documentary evidence keeping in mind the silent features relating to the partition of the Hindu joint family properties. Hence, he requested the court to dismiss the appeal.
7. Having heard the learned counsel for the parties and after perusal of the impugned judgment and records, following points would arise for our consideration:-
1) Whether the Trial Court is justified in holding that there was no earlier partition as claimed by the 2nd defendant in the written statement?
2) Whether the Trial Court is justified in not holding that items nos. 5 and 6 were acquired out of their own funds and that house property in item no.9 was constructed by 2nd defendant?
3) Whether any interference is called for and if so, what extent?10
8. Normally, a Hindu family is presumed to be joint till the contrary is proved. There is no presumption that Hindu joint family possesses joint family property. If a party takes up the plea of partition, the burden is always upon such person. If initial burden is cast upon such a person is effectively discharged, then only onus will get shifted on the other side. The defendants' clear case as projected in the written statement is that there was already an oral partition during the life time of Venkataramana Naik and properties had been given as share to the plaintiffs and therefore there was no joint family in existence on the date when Venkataramanana Naik died or subsequent to it. It is in this regard, it is useful to refer to the evidence of defendants to re-assess the entire oral and documentary evidence on record.
9. Mr. Chandrashekar, the second defendant is examined as P.W.1. In his examination- in-chief, he has virtually reiterated the contents of the plaint. In his 11 examination-in-chief, P.W.1 has specifically deposed that house in item no.8 bearing No. 264 is in possession of the 1st plaintiff and house in item no.9, bearing No. 90 is in possession of the appellant- Ravindra and house in item no.10, bearing No.265 is in his possession. He has categorically deposed in his examination-in-chief that all of them are residing separately, as there was no cordiality amongst the members of the family. Of course he has not explained since exactly when they heave been living separately. During the course of cross-examination he has admitted that item nos.1 to 4 and house in item no.7 are ancestral properties. He has further admitted that item no.8, house bearing No. 254 and item no.10, house bearing No.265, belong to himself and the 1st plaintiff. He has specifically admitted that Mr.Ravindra has constructed a house bearing No.90 in item No.9. 12
10. Plaintiffs and defendant No.2 are the sons and defendant Nos.3 to 6 are the daughters and defendant No.1 is the wife and defendant No.2 is the daughter-in-law of Late Venkataramana Naik. Item Nos.1 to 6 are the agricultural lands and item Nos.7 to 10 are houses. Item No.5 is stated to have been purchased from defendant No.2 on 20.5.1988 through a registered sale deed and item No.6 is stated to have purchased from defendant No.3 on 13.4.1998. Item Nos.1 to 4, 7 to 10 are the ancestral properties of late Venkatramana Naik and there is no dispute to that effect. Venkataramana Naik died on 7.9.1992 is not in dispute.
11. The learned counsel for the appellants has vehemently argued that cross examination of PW-1 would disclose that oral partition had taken place during the life time of Venkataramana Naik and accordingly parties have put up houses separately and 13 enjoying the agricultural land separately. Cross examination of PW-1, Chandrashekar would disclose that house in item No.8 bearing No.264 belongs to plaintiff No.1, item No.9 belongs to defendant No.2 and item No.10 house bearing No.265 belongs to him. Reliance is placed upon the deposition of PW-1 found in examination-in-chief. PW-1 has deposed in his evidence that since 1993 he has been living separately and that item No.2 measuring 1 acre in Sy.No.131 has been given to him for his maintenance and 1 acre of land in item No.6 in Sy.No.129 has been given to the plaintiff No.1 and item No.7 bearing Sy.No.88 is in possession of his mother and plaintiff No.1 is residing in house described in item No.8. He has admitted that he is residing in house described in item No.10. Therefore, the learned counsel for the appellant has argued that this speaks in volumes about the oral partition. We cannot overlook the fact that all the plaintiffs and defendant No.3 are married and there was no cordiality 14 between them. Therefore, PW-1 has given explanation that they could not live together as same differences had cropped up amongst them often.
12. It is useful to refer to documentary evidence. Ex.P-1 is the copy of the RTC of Sy.129/P measuring 1.08 acres. Ex.P-2 is the copy of the RTC bearing Sy.No.131/P measuring 1 acre. Ex.P-3 is the RTC bearing No.132/P measuring 2.32 acres. The name of defendant No.1 and plaintiffs and defendant No.3 finds a place in Column 9 as Kathedars and their names have been incorporated in accordance with the mutation entry bearing MR.16/1997-98. In Exs.P1 to 3, the same mutation entry is found. Ex.P-6 is the copy of the mutation bearing 16/1997-98 dated 11.11.1997 accepted by the Revenue Inspector. If really these properties had been divided amongst the plaintiffs, and defendant No.3, as sought to be contended on behalf of the appellants, these mutation entries would not have 15 been in existence. No evidence is placed on record to rebut such a statutory presumption under Section 133 of Karnataka Law Revenue Act 1964. Therefore, reasonable inference that can be drawn is that after death of Venkataramana Naik, there was no proper cordiality between his sons more particularly as they were married and hence were living separately in the houses.
13. The evidence of DW-2, Ravindra is relevant and that has to be reassessed. According to him, the oral partition was effected by his father in the year 1985. The oral partition, according to DW2 Ravindra, was effected between himself and brothers in the year 1985 in the presence of Ganeshaiah, his uncle Mallappa Naik and Krishna Murthy Rao. According to his examination-in-chief, land measuring 1.32 acres in Sy.No.136 was granted to his father and mother jointly apart from 12 guntas of land in item No.4 and house in 16 item No.7. According to him, certain properties had been given to defendant No.6-Prathima since she was unmarried at that time. Admittedly, her marriage was solemnized after the death of Venkataramana Naik. The marriage of Prathima was solemnized by her mother, i.e., defendant No.1. It is his case that one acre of land in item No.1 was given to the plaintiff No.1, one acre of land in item No.2 was given to plaintiff No.2 and in item No.3 one acre of land was given to him and the remaining land was given to his father and mother. According to him, plaintiff Nos.1 and 2 have put up their respective houses in item Nos.8 and 10 and he has constructed house in item No.9. According to him, his parents and unmarried Prathima were living in house at item No.7. If really the oral partition, as contended by DW-2, had taken place in the year 1985, it would have been acted upon by getting their names incorporated in the revenue records and the sharers would have paid tax in respect of their respective shares so allotted. 17
14. On reassessment of entire evidence, we have to uphold the findings of the Trial Court that defendants have failed to prove the plea of earlier partition. The defendants have not been able to discharge the initial burden cast upon them effectively in regard to plea of earlier partition. If defendant No.2 has put up the house in item No.9, he has put up at his risk and nothings comes in the way of seeking equities in his favour when final decree proceedings is initiated either by him or against him. Hence, we answer point No.1 in the affirmative.
Point No.2:
15. The case of the defendants is that item No.5 was purchased by defendant No.2 in the year 1988 and item No.6 was purchased by defendant No.3 in the year 1988. The case of the plaintiffs is that item No.5 was purchased actually by deceased Venkataramana Naik 18 out of the joint family funds in the name of defendant No.2 and therefore, it is an acquisition made out of the joint family funds. It is argued that the said acquisition is a joint family property for all practical purposes. It is further argued that item No.6 has been purchased by defendant No.2 in the name of defendant No.3 out of funds of joint family and therefore, these two properties will have to be treated as joint family properties available for partition. DW-2 has produced certified copy of the sale deed relating to item No.5 and it is marked as Ex.D-2. This was purchased on 13.5.1988 by defendant No.2 from Parvathamma for a consideration of Rs.19,000/.- What is argued before this Court by the learned counsel for the plaintiffs is that Venkataramana Naik was very much alive when this Ex.D-2 was executed in favour of defendant No.2 and defendant No.2 had no independent source of income during 1988. 19
16. Admittedly, the suit was filed in the year 1988. The age of Mr.Ravindra is shown as 34 years as on the date of filing the suit. Eleven years prior to filing of suit, approximate age of the Ravindra was 23 years. Admittedly, he was unmarried and he has averred that he had independent source of income by working under one Krishna Murthy. The said Krishna Murthy under whom he was working is examined as DW-4. He is a resident of Jeerkodige Village and DW-4 knew the family of the parties to this appeal.
17. It is his specific case that defendant No.2 was coming to his house as worker from 1982 and apart from this he was vending stone, banana and flowers. It is his case that sum of Rs.3,000/- was due to DW-2 and that he paid the same while he purchased item No.5. It is his case that apart from this, he paid a sum of Rs.10,000/- as advance and the same was returned after 5-6 years. Even during cross examination, DW-4 20 has specifically deposed that defendant No.2 was coming to his garden land as a worker and was working from morning till 5° clock in the evening. He was getting Rs.30 to 40 per day. Ofcourse, DW-4 has not maintained any records for having paid a sum of Rs.3,000/- which was due to defendant No.2 or a sum of Rs.10,000/- paid as loan. But he is a very credible witness and his credibility is not attacked during cross examination. He has no axe to grind against the plaintiffs and he cannot be considered as an interesting witness. Suggestion put to him that he did not pay Rs.3000/- or Rs.10,000/- to defendant No.2 and that he was not working in his garden has been specifically denied.
18. The fact that DW-2 was working in the house of DW-4 is elicited by putting a suggestion to DW-4. It is suggested to him that he has deposed falsely as defendant No.2 was coming to his house as worker. 21 This would also indicate that from a young age, defendant No.2 was working in the garden land of defendant No.4 and was having income. The same is further supported by pass book entries relating to his savings bank account in Karnataka Bank, Hosakoppa Branch Exs.D-3 to 5 are the pass books. Ex.D-3 is relating to the year 1989. He had deposited a sum of Rs.3,200/- and in all had deposited a sum of Rs.6,400/- in the month of February 1989 and Rs.2000/- in October 1989. Pass book for the year 1990-91 would disclose that he was often depositing thousands of rupees to his account and withdrawing the same. If he was not working and earning income, he could not have deposited amount to his account on various occasions. If he had purchased the property as Manager of the property, burden would have been on him to prove that acquisition was not out of joint family funds.
22
19. Admittedly, in the year 1988, he was a junior member of the joint family, plaintiff No.1 was aged 31 years and plaintiff No.2 was aged 13 years and defendant No.2 was aged 23 years in the year 1988 when the purchase was made. It is not the case of the plaintiffs that Ravindra was the Manager of the joint family. Normally senior most male members of the joint family would be the Manager of the joint family, unless such a senior member is unable to discharge the duties as manager due to physical or mental ailments. Even otherwise plaintiff No.1 was elder to defendant No.2. There is no inhibition for a junior member of a Joint Hindu Family to acquire the properties. Normal presumption in the joint Hindu family is that if a property stands in the name of a junior member of the family, such junior member is presumed to be the owner of the property, unless it is specifically pleaded and proved that such a junior member had no income of the his own to purchase the property.
23
20. In the present case, we have credible oral evidence of DW-4 under whom defendant No.2 was working. We have documentary evidence to show that he was earning amount and that is reflected in pass books. Oral evidence of DW-4 in so far as assertion that DW-2 was working in his garden and that he had given loan to purchase the property cannot be disbelieved. He has withstood the rigor of the cross examination. Thus Ravindra has effectively proved that item No.5 was purchased by him out of his own funds and that it was not acquired by joint family funds. Even otherwise the joint family had 5 acres of land and the income that the family was getting was required to maintain a big family of 9 members inclusive of Venkataramana Naik. Apart from this Prathima was unmarried and joint family had to make provision to perform her marriage.
21. Taking all these aspects into consideration and on reassessment of evidence, we are of the 24 considered opinion that the Trial Court has not properly analysed the oral and documentary evidence in regard to acquisition of item No.5 by defendant No.2 Ravindra.
22. Defendant No.3, Nethra is examined as DW-
2. She has purchased item No.6 through a registered sale deed dated 9.4.1998 for a sum of Rs.19,000/-. Item No.6 bearing Sy.No.129/P measuring two acres of land in Sy.No.129/P it is a wet land. If any property is held by a Hindu Lady, it is presumed that it is her acquired property. Burden is upon the plaintiffs to prove that the property is acquired by the joint family or that she is only a name lender. As per Section 4(1) (b) of the Benami Transactions (Prohibition) Act 1988, there must be a clear pleading that the property was purchased from out of the joint family funds in her name and that she is only a trustee for others as a mere name lender. 25
23. Defendant No.3 is examined as DW-1. She has deposed that her brother had given some amount to her to purchase the property . Defendant No.2, Ravindra has asserted that he has also contributed same amount to her in order to purchase item No.6. Pass books marked at Exs.D-3 to 5 discloses that Ravindra had good transaction in Karnataka Bank Hosakoppa Brnach. He was remitting sufficient amount to the bank and withdrawing the same. DW-3 is the brother of Nethra. He has deposed that at the time when his sister purchased the property, he had given her some amount. It is their case that they have 4 acres of wet land and one acre of areca nut. This fact is not disputed while cross examining the brother of DW-1. He has not maintained any records for having paid a sum of Rs.50,000/- to his sister Nethra in the year 1988 to purchase the property. But his assertion that 15 quintals of arecanut was produced from the garden land and approximate price per quintal ranges from 26 Rs.16,000 to 18,000/- is not disputed while cross examining him. It was he who performed the marriage of his other sisters. There is no serious cross examination in so far as the assertion found in examination-in-chief. He has withstood the rigorous of cross examination also .
24. On reassessing the oral and documentary evidence and in the light of the inability of the plaintiffs to prove the purchase of the property at item No.6, we are of the opinion that the Trial Court has adopted wrong approach to the real state of affairs. The learned Judge has not analysed the evidence of DWs-1 to 4 critically. The oral and documentary evidence have not been analysed on the touch stone of intrinsic probabilities. On reassessment of the evidence, we are of the considered opinion that plaintiffs have not been able to probabilise that item Nos.5 and 6 have been purchased out of joint family funds. Defendant Nos.2 27 and 3 have been able to effectively discharge their burden cast upon them and onus which had shifted on the plaintiffs is not explained properly. Hence, the Trial Court is not justified in coming to the conclusion that item Nos.5 and 6 are acquired out of the joint family funds. Accordingly, point No.2 is answered in the negative.
Point No.3 :
25. Site over which defendant No.2 has put up a residential house in item No.9 as joint family property and he has constructed a house thereon is out of his own funds. Item Nos.1 to 4 and 7 to 10 are admittedly joint family properties. We have specifically held that plea of earlier partition is not proved. Therefore, these items 1 to 4 and 7 to 10 are available for partition. Ofcourse, defendant No.2 can plead for equities in so far as item No.9 is concerned since he has put up house by earning money of his own while final decree petition is either filed by him or filed against him. 28
26. In this view of the matter, inference is called for by this Court in so far as it relates to relief of partition and separate possession granted in respect of item Nos.5 and 6. The judgment and decree of the Trial Court will have to be upheld in so far it relates to Item Nos.1 to 4 and 7 to 10. The relief of partition and separate possession granted in respect of item Nos.5 and 6 will have set aside.
ORDER The appeal filed under Section 96 of CPC challenging the order passed in O.S.4/1999 on the file of the Civil Judge (Sr.Dn.) Chickmagalur is allowed-in- part. Relief of partition and separate possession granted by the Trial Court in respect of item No.5 bearing Sy.No.130 measuring 3.20 acres and item No.6 bearing 129/P measuring 2 acres is set aside. The judgment and decree in so far as item Nos.1 to 4 and 7 to 10 stands unaltered.
29
Notwithstanding the confirmation of the decree in respect of item Nos.1 to 4 and 7 to 10, Defendant No.2 is at liberty to plead for working out his equities in respect of a house put up by him in item No.9 in the final decree proceedings. In such an event final decree court to apply equities after taking into consideration all the aspects in the light of law laid down in the decision of the Hon'ble Supreme in the case of M.L.Subbaraya Shetty's v/s M.L. Nagappa Shetty & Others reported in AIR 2002 (2) SC 2066.
Sd/-
JUDGE Sd/-
JUDGE Msu/DM