Karnataka High Court
H C Iyengar S/O H Appanna Iyegar vs Smt M C Vimala Narasimhan on 22 April, 2010
Bench: N.Kumar, K.Govindarajulu
I REA E U? 3/2003
IN THE HIGH COURT OF KARNATAKA AT BA;\;c;Aj;Q§E
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DATED THIS TH DAY OF APRH_.£__2'O If
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PRESENT ; ~ % f -3 *
THE HON'BLE 4'
THE HON'BLE MR :I{--C;O\'/.INI:)'xiRAV§JULU
REGULAR Ffiisr @003
Between: .
1.Sri.H.C.Iyé.ng;%if_-_~_ ~ ; M S / 0 I-I.Ap{;:£'anr;e}E1v >Ijkegar,""'-3]': ' Aged ab_Q_ut "6.v1"'_'}7:(i:Lf[_1'VS, "
Rainajfriohvalaaipureiiji _ é ' ' ' ~ I Baflg&t1=Ore_w21.. *
2. sri.H.A.LAr1atéi:-afi "
S / 0 IfjI,Appam'1_a Iyengar, Age;r2j1aj0r. "
=Res'idéi1%1"g as:..No.2775, :3*'% Mai11;»2%'!''"''Siage, ' V 'olock, Raj aj'1'ng'ar, _ 1 ' -- V {BY 'B 1M Sid clap pa, advocate) Bangalore» .A . ..Appel1ants. 3"'.-'\ 1013/2003 Ix.) And:
1. Smt M.C.Vima1a Narasimhan W/0 Yoganarasimhan.
Agezmajor, MIG Housing Colony. KHB Colony, Kuvempunagar, Hassan.
2. Smt.Rukmini W/0 Rangar1athan.S. dead Plaintiffs are exempted ' From substituting the;
L.Rs V
3. K.S.Annaiah, age;.mwaj.qr. C /0 B . S. Seeshzwflri. Iye:_ngar....' ~ .. _ N02092/A, 1-.8€h;_i\/Ig_1iu,: BV.10c}*:, if" . , II Stage, Rajaj'inéiga.r, Banga1'Q;fe+"1.Q".* « , -
4. Sham_a;zf1aVVS'/ c)"B.'N,:Scshadri. Age:mE1}'0r',« L'
5. S:/oB.N'.'SVé§hadri.
Age.:;maj~or, ' » » Kum;. %S1;ijatha ' .570 B.,.'N~...Sesh,a.dri, Agezmajor, R.esp0nd-ct;-ts.1=4 to 6 are residing At--No. _1v43,..§II Block.
Thyagaraj anagar, Banga}0re~28. M
13. Smt.Lakshmikant W/0 T.K.Lakshmikanth, Age:dead plaintiffs are exempted From substituting the L.Rs
14. Smt.Usha Krishna W/0 Major S.V.Krishna.
Agezmajor, O.C.N0.8I8, F.D.Workshop, C/0 56.
Army post office.
15. Smt.Geetha S.Jairam,=.__ agezmajor, N02823, 901 Block East South EndAR0ad, fi L Jayanagar, Bangalore. A
16. H.S.Sh£L}?I1*._ _' _ 1: V. W/0 I-I.Sree1*1iVa§sVa_11,~V _ _ agezmajori 6%h"CfOs-s, J .C.R.E)_;te11$fOi1.:.;:V_ _ "
Chitradurgafi 7?. '
16. H.'S.Ramanuj.faw.
S/0 H.Sfeer1iVasan;. "
Agegmajor, ' "C~t_h Cross; J C:R Extensic H 2"
_ Chi1::rad'urga. "
as A ;1V"?...'1\/Iis;H;.SI'Anu A Df-O AH..Sre'eri.i-vwasan, age:vmajorV§ej':6¥'* Cross, JCR Extensimz. Ch-itradurga.
a 18. H;sIBa1aj1 » . ' " / (51-I . Sreenivasan, "age:major, 6"" Cross, JCR Extension.
-"-Chitradurga.
1: FA 1013/2003 5 §:1'~'A 101312003
20. H.C.Rama Iyengar S /0 Late.H.Cha1uVa Iyengal', Agezmajor, No.278, 6"' Main, 9th Cross, 2nd Block, R.T.Nagar, Bangalore.
21. H.C.Narayana Iyengar S/0 Late.H.Cha1uVa Iyengar, Age:maj0r, ded by L.Rs. j;
Deft.No.21(a) to (f) and deft.No.2L3 A'
22. H . C . Gopala Iyengar S'/' Late.I-I.Chaluva Iyengar, Agewmaj or Assr Mohaila, Chit: ash:
Since dead by L.Rs V {a)Seetha1akshmi V _ Late.H.C.Gopa1z;1iyerigar, Agezmaj0r,4_Ass1éf1\/iolaalla; _V _ « T . Chitraduxigam. """ '
(b)E*I.G.1\/Ieera W/'ojV'Sri'dh"ar;"
age:majc11*,__ Juvnic-_r Tr;-1"ec?:rm Officer Vij aynagar' 'F;-Iepllone Exchange, Vijafynagar, B an galore. g »A (C)~lfI.G .:Ta1'*a: V'J/o T.Rame-sh, age:ma'3Qr; 'I'~3n_',ga}1 Post, Te'r1gah,~ 1:{adL1'r Taluk, hlisztnagaiur D1str1ct. [d)H.G~,.Ramya @ Sheela 4 " 'W:,'_.0 B.'Har1das, '_NQ.4_/34, Arban Road, "v1C"3122, % Aiustralla Ph.No.03~818-8350. 5 R?-'A ;o:3r:z003 {e)H.G.Vidya D/0 H.C.Gopa1a Iyengar, Agezmajor, Assar Mohalli, Chitradurga.
(flH.G.Raghavar1 S / 0 Late.H.C.Gopa1a Iyengar, Ageunajor, Assar Mohalli, "
Chitradurga.
23. Smt.Sharadammaf_ AA W/0 T.K.Krish:naswan1y!.Iyer1ga:*. . ' Age:maj0r,Te1'1gali, KadurTa1u1§,,"~.._V Chikmagalur.
24. Smt.Laksh:nami11é1;;___ _ W/0 K.S.G0\:"'indarajj'u_, 73.4 Q agezmajor. r ' V N02775, E Block; Rajajin.;aga:t.,'_""«. Bar1ga}0re--1O. " _ '. 7 25':1v..H-D¢S'3§3ii§3Char %%%%% S /.0 L-ate'.'1\T' Ch'a1u"va_ Iyengar, Age":Maj.oI',.. near~ IR, Circle, J .C.R.L--Extensi0i1...V " L..(_Lhitradurga. ' j_ V , . ) , sondents jay' SR1 A K1»:sr;na Bhat. Advfor ra.22(Aw; AGAINST THE JUDGEMENT 3:» : :35; 5f;:?.._.200:j3 PASSED IN O.S.NO. 1. .18/8%.") <'4'2f~.i 2 2 ,_..___'£'HE I"*ADDL. CIVIL JUDGE (sR.m'.), iii-EE"E'%3ADURGA, ?.i3.i.%%i3C.96 OF DATED C FILE OF '~:5f§§IIS"'*~RFA IS FILED U/() 41 5»: 1 ya/M {Q RFA r013/2003 H Cheluva Iyengar. Items 3 and 9 of the suit lands are wet and fertile lands yielding income. Item 16-"'of the suit schedule "A" property in which defendantswlifllli"_.and 22 are living in a portion of the houpsefii 'i'ilf1evl"ot}ie1j V' portion of the house is leasevdlllltlo"tih'e_ fetching rent of more thanR_s. e. per "tihe pp alternative it is pleaded that».:items of the plaint "A" schedule' properties of Sri H.C.Cheluva iyengar ff; plaintiffs. After so acquired:_"'1jj}'j;:jp.H' Cheliiva threw the said properties i'iritfo (:3:fj1'l'_l1Il(_)1} stock of the joint hindu family lvoluntar.ily--intention to abandon all separate claims 'Thereby he showed his clear ""'intentioi1 waive his separate rights on the said l.AV.Tliereby the said properties acquired the character-the joint family properties of the joint hindu .l_mi7an7iily.V""likllethe plaint "A" and "B" schedule properties 'eaoept said items 3, 9 and 16 were purchased out of the ''''income of the joint family properties of the joint hindu xi/it 1 3 RFA i0} 3/'2.oo3 feet has failed. Item 15 is a saline land. So farwas item 16 is concerned, it was a Mangalore tiled cement flooring. It is 70 years old. changed and the walls and "~w_ood.;'wor1t"-:wer'e strengthened. Inspite of it cracks. The cow shed of flour- rnill are zinc sheet sheds. property is fixed and therefore, have not paid the requisif"%"e';%";5i*'tfe:<§-g. i ' «-- father of these defendants Shroof of the District Treasury viV)_eeemberv1937 on a monthly pension of a,ndi_._a allowance" of Rs.2.00, His family was 6 sons and 3 daughters. He had no aricestral qdroperty what--so-ever. There was no joint it l<3i:1.du Vfarnily at all. In abont 1902 he had self acquired l "'stiit"items 3 and 9 when he was a Tree Marker. He built ' "item 16 in about 1920 by borrowing Rs.2000/~ from his lit/r 19 RI-"A 1013/2.003 brother, Sri Ramanuja lyengar (H R lyengar) which he discharged only after he retired. He had to edilrcaltellliuis sons and perform the mariage of his Plaintiffs father and defendant'20"had,_enteVredJ:seryie'e and had small job. Sri Srinivas'ari.'A*lhad Cycle repair shop. He "severed asthmatic. In 1950 his arild' had and he had edrubunele but again and he died in 1;'95:{*gi,:t1" mother had an enlarged since about 1950.
care. Since 1940 defendant "2l1 In the Chitradurga Town Coeperatixre till he was arrested in 1942 in the . CA"*Quitllllridiallviovernent. After training at Tirupur, he was '~..ruI1n'ingfaC"textile dyeing and printing works, known as "The Colour Works", till he was arrested J'a.gain.i'ri'.the Mysore Sathyagraha in 194148. After he
- C 'v§*as"released he was running a Control Cloth Shop for it -~at)out 2 years 9 1 RFA 1013/2003 having their own independent families and affairs from the very beginning. They have acquired properties separately for themselves accordingiy out efforts. There was no income from the properties of Sri K Chaluvajiyengar.
8. Defendants 21, themselves the suit properties er and 16, out of their loans several of thempwwere during their father.
Particulars if t acquired by Darkast for an /-.
;=Siuit no. viras purchased from Chikkappa Rs.2000/- under a registered sale if 1967.
Sufititem 110.15 was purchased under revenue 4 H ' .r,.:ciea::1gast"r'1.. auction suit for RS246 on 6.5.1952. °'On 28.8.1952 item 110.13 of the suit property was T " "purchased for a consideration of Rs.318/ --. V 22 RFA 101 312003 Item no.1 was purchased from Bheemaiah for Rs.1500/-- on 21.11.1966.
On 30.7.1952 25m defendant sr1_s¥i5¢sii:e¢hea.:1' purchased from Sri Raghavacharfor ht"
items 4 to 8, 11 and 14.
On 26.7.1965 he pt:fCh_ased" a N B"? Krishnan for Rs.1QQx0/-- "1:u_,.1iIt.' fla~...h,e§use for Rs.20,000/~. He pti1'et1ased:»V::va" its west for RS.4-32/" frc')_m: q the Council, both Cgmpfise from Gangappa for These ~perope1*tieVs"\§vefe acquired by Savings in the flour irteeme kept in Lakshmi Deposit of loans from the said bank, H R Nafasimha. Iyengar and defendant no.2, Dr S I K .t,V?Prab'haj3"1ain, his sister--in-law the income of his Wife .' S-tfittitndiranama, a graduate and teacher in the convent Wsehool and private tuition and by saie of her jewels. 23 RFA 1013/2003 Thus, all the above properties are the self acqnired properties of defendants 21, 22 and 25 and exclusive possession and enjoyment. It-t.'_is respective khathas and they have"
hypothecated the same and dealt'.jwith thelnigas to the knowledge of all it They have also improved the other defendants have absoliitelyg therri.
9. up, the father Sri fohrvmdefendant 110.20 and informed hilmglconsideration his having celebrated inarI'iage's of plaintiffs father the marriages anldw defendant 110.20 and his three was left except suit items 3,9 and 16 and"'*in Consideration of the fact that defendants 21, 22 25l'had looked after him and his wife their mother, . sacrificed their education and careers and were still not iriarried he had given suit items 3,9 and 16 absolutely gt/.
24 RFA :02 312093 to defendants 21, 22 and 25. He further told him that he had intimated this fact to plaintiffs father and Srinivasan individually and collectively and had consented to this, Defendant 110.20 . thereto both on moral grounds,»it».beiné'a" if and legally as they were his properties. Besides, the ufere sand it entirely justified. Plaintiff' 'land SriniV'asan have confirmed this fact flfétintiffs and the other d€f€I1ClElI1lTiS¥1_$ZflO\:'iT defendants 21, 22 and fh;a_veV exelusive possession of the same as 'absolute'otvneirsadversely. Plaintiffs or other defendants fcannot claim the same. The parents had informgggpdefendantll£3 also about this. 10;: Without prejudice to the aforesaid contentions, was pleaded that suit items 3, 9 and 16 were the self .' aoquired, separate properties of Sri Chaluvaiyengar. T "They are not the joint family properties of his legal 25 RFA E01 3/2903 heirs. At the worst they succeeded to the same as tenants-irrcommon. Any property acquired --its aid does not take the character of joint family Suit to recover their shares should have by his legal heirs within 12 ye'ar's"fron:.1A death 21.12.l956. 'l'herefore,A:4'.theV_nsuit.y'V_'c1ajm sustainable in law and is ba'rre'd by time;» 1}. Defendant claiming any share in the s:';;it'prt1peirty:. brothers have craved estates to each one of them. Dealthlyiyrith owner, had his own affairs without reference the others clearly negatives the d " any joirltmtamily.
iyengar purchased a site at JCR Exts:-ns_io11,and built a house in 1969370. The same was sold bysthe plaintiffs for Rs.2,80,000/~. He has also
-- .,?'1jrC11ased a land in Hosadurga Taluk. 36 RFA 101 3/2003 Srinivasan started and carried on a tyre and automobile and cycle business. He acquired several building sites and house. His children have of them after his death by themselves H to the other brothers or cousins. I >' A it 3 l2. Defendant no.2O purcha.sc.cl "i:r1_:i JCR Extension for hirnselffl He sold to no.1 for Rs.3000/-- in 1971572 anc1-:hjes_h-ae builtl.a_'tw_in house thereon. V K it Likewise eiefenden"teIL'2 miles have been living separately, separate properties and have been having %separa.te dealitigs. Items 3, 9 and 16 were §iV6I-'5 to _defer1dl?11"1~t"'21.l; and 25 to the exclusion of the 1951.'Wand ever: since then they have been in 'ejxclusivve 15os'session and enjoyment thereof, without claim or derriand by the others including the plaintiffs .V.:for.four"d¢ecades. This leads to all irresistible inference of ouster and there has also been overt ouster since i "'1'951 itself.
27 RFA [DEB/2003 T he other properties were acquired without the aid of any ancestral nucleus by defendants 21, possessed and enjoyed exclusively, peac;eal3ly::.'.,:
adversely to the knowledge of "= claim is defeated by adverse pos:s.1essl;i'orJ3. A
13. 24th defendant filed'.ani:.indeper1dent written statement. of the plaintiff and states that a decree' and separate Possession and 22 filed a memo adopting of 251" defendant.
_--15. Tliereaiter', plaintiff has filed a detailed . if""rep1y{'traversing allmthe allegations made in the written A e--.sta._teme.r:t, "
l6i."l'a?'{_)l.efendants 20, 23 and 25 also filed an lx_yadditioria;l Written statement giving the particulars of 'acquisitions of the properties which are standing in LL/' 23 RFA 1013/2003 their names and the businesses which they were carrying on independently.
17. On the aforesaid pleadings, the K framed the following issues:
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flrafiejafidafioda 5395305.); A . ' §@&@鮀 2 ¢'oa5aa:j;3o.,z*5_ 5 exmficfi Ugfifio '*~-.--~2fir° 225310 mama 2555 a:;@a3:>\«i3ai3d) szafibeafaciga wwfléag ibé&)O2JC§ wgabom ajafimgzwaméom aamm; :-@2393) aaaaagdabr? :7 :-- a:§2»>c:)° ca aaéso R50 4 @055 8, 11, 14 $2-arira 17 553219 23 afiaaficzrfiafiqdaaj fiagp fiéyef 02$ 3a3a@,§,a1:awr3 wgfiéom 21 M. 30 RFA 1013/2003 5'59 22 fir' warm 25a3'c= 5'-\';3c:5acffaa1);:i> F\Fa2L')(°C§.) §;c'3,%cxg;3ai)€? "
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111/.
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18. The piaintiffs in order to substantiate their examined first piaintiff as PW} and 2%' plaintiff as h/,.
33 RFA 20 1 3/2003 of their own income and there is nothing on record to show for acquisitions of these properties, family nucleus income is utilised or as a joint family income or l'1L1Cl€US:.-Wa3..lI1 if and therefore, he submits the trial Court is legal and . '
23. in the light of theaforesaid' facts and rival contentions, the follo\z2~iitig'p_oi1:its "arise'lfor consideration in this appeal: V if V (1) trial Court that the pllaint'iffs to establish any joint family {nucleus have been made use of in l properties in the names of either before the death of Cljgeitifaiyengar or after his death calls for any .. interference?
'iwhether the evidence on record would establish that all the acquisitions by the defendants are K//,, 39 RFA 20:3/2003 made out of their own separate independent income and not from the income of the join'tV..fa_Vmi]y or joint family properties? V 31,, Point No.1: From the vmat.eria}'_"it isrf clear that the Propositus and Three daughters. f~tev:,e:'dj_ed than % 10'? months thereafter histvifeé..Sntt;'fhangarn'Ir1a aiso died. The evidence on reeorti Iyengar was woriting§.a's:gt1' in 1937. He was gettiriigfl Item Nos.3 82 9 agriciiitural 1.at1ri's.:LWe're_:pt1rchased in the year 1902 by Che1uVaNo.16 the family house was the year 1920. The evidence on ifeeorti-v._Vdise1oses that these three items of properties s"ej}f}aaequisitio1'1s though originally the plaintiff eoriteritiedythat this is an ancestral property. He was "t°Lz_nah1e to subst:ant.iate the said Claim. Infaet, the pteadings were amended putting forth an alternative it//"
40 RFA 10: 3/2003 case that the said properties are se1f--acquis:£t1ons of Cheluva Iyengar. The said case is supported»».by.:ithe evidence on record. Further, the evidence discloses that on the day he retired it"
yet to perform marriage of his::":thrfeei~ from educating his Six * L' diabetes. He was frequently--:fai1ingAill.t "Therefore, the evidence on record that after his retirement, earning. He was depen.'diiig.Von';'.'p;5i-._p.eriSi§-nil'andtvifhatever he would able to "glands. The case of the plaintiffs se1f--acquisition of Cheluva Iyengar, he'"'t_r_eate.d joint family property. He put " " «...,that i:se1'f-acquisitioninto joint family by way of blending I ~..an_d Vafteii infer-.ii_'icorne from the said properties, the other properfies.Qstanding in the name of his sons were purchased. As rightly pointed out by the Trial Court, A' 81 2 have repeated What has been said in the
-iv-pleadings. There is absoiutely no evidence adduced on \i\/' 42 RFA 1013/2003 educate Six sons and even if those two agricultural lands were cultivated, having regard to the nuinljer"*.of persons in the family, it is difficult to beli.ey'e _ excess income was in the hands"'of-CheiuyaldiIycngar to acquire properties. Therefore, appreciation of the evidence-torirecordhhasgrightly'heldV that there was no nucleus the family, which was made use it the property standing in That apart, the evidence that the sons of some substance. The first * got into government empleyrrient' andrehe stayed with his father and he . .,.,.Wqefi--fl' shiftingvwhis family as and when he was place to place and therefore he and his chi1drer;'iNei'e away from Cheluva Iyengar and the lands Jv.rere owned by him. But the fact remains that the son had an independent income and he was not it 'depending on his father. Infact, the evidence on record 3/ 43 RFA :0: 312003 goes to show that he acquired the property in Chitradurga and even the first plaintiff purchased a property on the premise that it is their Now coming to the defendants evidence, the. _:ev_idence on -« .. record shows that the second Sri.SreeniVasa Iyengar started shop. Thereafter he becanli:e"«..l'a dealer Automobile tyres and spare parts.;:-«.._.l*IeA Well out of the income from the acquired vast properties _died«wi-thottit iissueslland thus his wife had to.tl:'§the:'e{i_'tire estate. It is admitted that Sreeniyasanp Iyeiiga'1*.ltWaps"<.carrying a separate business and th.erefore .vpro'perties which were standing in the '"nAafI'1e. of'rSreenivasan Iyengar cannot be construed as a lacqluisitions as contended by the plaintiffs that-. out the joint family funds made available by :_mC.hVeluva" slyengar, the properties were purchased by _' Sreenivasan Iyengar. The evidence further discloses T "'that the third son Narayana lyengar was working in the V. 44 RFA 1013/2003 Town Cowoperative Bank, Chitradurga and was living separately from his father. He did not marry. He-..died as a Bachelor. He fought for the independen_ceVVl:olfth'e. . country in the year 1942 Quit India Moverrieintgfhe K V' arrested and underwem. imprisonlilnlentv.H111"
of his services to the cause of v'afte1';tli_Ve"~Vc independence the Goxrernrnerlt» in Rottihaili, item 5 which he was cultivating, 3953 by which he was and from his income tttt he reldtiisvite charges to the Governrneln-t.l "on record also discloses that he was Ldoingivipriritirigand dyeing business, which is .~.,.,/g1"?'?'1rl fi?"orr1" infact, this dyeing work was his correspondence letters with Mysore Che'mica1s Fertilizers Limited. He was also carrying Vlyynlonhusiriess in the name and styie of Karnataka Coiour \?5.;_7o'r'is;s. He underwent training in dyeing work in the it "year 1947' itself. in View of the above, it cannot be said L/..