Karnataka High Court
Smt.Sharada W/O Shivayogi Kalayani vs Sri.Rajashekar Gudleppa Hallikeri on 14 March, 2025
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RFA 100384/2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 14TH DAY OF MARCH, 2025
PRESENT
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
AND
THE HON'BLE MR. JUSTICE G BASAVARAJA
REGULAR FIRST APPEAL NO.100384 OF 2018
BETWEEN:
SMT. SHARADA W/O. SHIVAYOGI KALAYANI
AGE: 54 YEARS, OCC: HOUSEHOLD,
R/O: PLOT NO.878, RAMTIRTH NAGAR,
BELAGAVI.
...APPELLANT
(BY SRI. JAGADISH PATIL, ADVOCATE)
AND:
1. SHRI. GUDLEPPA KALAYANAPPA HALLIKERI
(RESPONDENT NO.1 DELETED VIDE ORDER
DATED 21.10.2019)
Digitally signed by 2. SRI. RAJASHEKAR GUDLEPPA HALLIKERI
MOHANKUMAR B
SHELAR AGE: 61 YEARS, OCC: HOUSEHOLD,
Location: HIGH
COURT OF R/O: HOSARITTI VILLAGE,
KARNATAKA
DHARWAD TQ AND DIST: HAVERI.
BENCH
Date: 2025.03.15
10:55:38 +0530
3. VIJAYALAXMI @ NANDINI
W/O. SHIVAKUMAR HALLIKERI,
AGE: 61 YEARS, OCC: HOUSEHOLD,
R/O: HOSARITTI VILLAGE,
TQ AND DIST: HAVERI.
4. KUMAR VISHWANATH
S/O. SHIVAKUMAR HALLIKERI,
AGE: 22 YEARS, OCC: STUDENT,
R/O. HANGAL, TQ AND DIST. HAVERI.
-2-
RFA 100384/2018
5. SMT. UMA MHARUDRAPPA HUGGI
AGE. 69 YEARS,
OCC. HOUSEHOLD WORK,
R/O. HANGAL, TQ AND DIST. HAVERI.
6. SMT. JAYASHREE
W/O. SHIVAYOGAPPA KORISHETTER,
AGE. 66 YEARS,
OCC. HOUSEHOLD WORK,
R/O. MICHIGAN COMPOUND, SAPTAPUR,
TQ AND DIST. DHARWAD.
7. SMT. GADIGEWWA W/O. GUDLEPPA HALLIKERI
(SINCE DECEASED, THE RESPONDENTS
NO.2 TO 6 ARE HER LEGAL HEIRS AND
THEY ARE ALREADY ON RECORD IN THE
INSTANT APPEAL)
...RESPONDENTS
(BY SRI. HANUMANTHAREDDY SAHUKAR, ADV. FOR R2 TO R5;
SRI. I.C.PATIL, ADV. FOR R6; R1-DELETED; R7-DECEASED)
THIS REGULAR FIRST APPEAL IS FILED UNDER SEC.96 OF
CPC., PRAYING TO CALL FOR RECORDS AND ALLOW THE APPEAL
AND MODIFY THE JUDGMENT AND DECREE PASSED BY THE
ADDITIONAL SENIOR CIVIL JUDGE AT HAVERI, DATED
01.08.2018 IN O.S.NO.73/2013 BY AWARDING 1/6TH SHARE IN
THE SUIT SCHEDULE PROPERTIES.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
03.03.2025, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RFA 100384/2018
CORAM: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
AND
THE HON'BLE MR. JUSTICE G BASAVARAJA
CAV JUDGMENT
(PER: THE HON'BLE MR.JUSTICE SACHIN SHANKAR MAGADUM) The captioned appeal is filed by the appellant assailing the judgment and decree dated 01.08.2018 passed in O.S.No.73/2013 by the Additional Senior Civil Judge, Haveri, wherein the plaintiff sought for the relief of partition and separate possession of her legitimate share in the suit schedule properties.
2. The trial court has decreed the suit in part granting 1/7th share in item Nos.8 and 9, while the plaintiff's claim in item Nos.1 to 7 in schedule 'B' properties is rejected. Therefore, the plaintiff is before this court in this appeal.
3. For the sake of convenience, parties are referred to as per their ranking before the trial court. -4- RFA 100384/2018
4. Before proceeding with the matter, we deem it fit to cull out the family tree, which is as under:
GENEOLOGY Schedule "A"
Gudleppa K Hallikeri
(D-1)
Uma Jayashree Rajshekar Shivakumar Sharada
(D-5) (D-6) (D-2) (Dead) (Plaintiff)
Vijayalaxmi
(wife of D.3)
Vishwanath
(son D.4)
5. The present suit is filed by a daughter against her father who is arraigned as defendant No.1, and brothers who are arraigned as defendant Nos.2, 5 and 6 and against the widow of the predeceased son Shivakumar. The plaintiff has specifically contended that the suit schedule properties are the joint family ancestral properties and the properties purchased by defendant Nos.1, 2 and deceased Shivakumar are from the joint family funds. Therefore, the plaintiff has specifically contended that item Nos.8 and 9 properties are ancestral -5- RFA 100384/2018 properties, while the properties purchased in the name of defendant No.1/father, defendant No.2 and deceased brother Shivakumar are also ancestral joint family properties. The plaintiff claims that she has got 1/7th legitimate share in the suit schedule properties.
6. The present suit is filed alleging that defendant No.1/father while acting detrimental to the interest of the plaintiff has tried to convey the properties by way of mutation in favour of his sons. The plaintiff, therefore, contended that the suit schedule properties are the joint family ancestral properties and there is no severance in the family, and therefore, the plaintiff is entitled for a share. The plaintiff also sought for a declaration, questioning the sale deeds obtained by the father and her two brothers.
7. Upon receiving the summons, Defendant No.3, Vijayalaxmi who is the sister-in-law of the plaintiff and widow of the predeceased brother, Shivakumar filed a written statement, categorically denying all the allegations made in the plaint. She asserted that a partition had -6- RFA 100384/2018 already taken place within the family as early as 1952, involving Defendant No.1, his father Kalyanappa, and Defendant No.1's brothers. In this partition, Defendant No.1 was allotted Item No.8 of the suit properties.
8. Defendant No.3 further contended that the ancestral properties were solely in the name of her father-
in-law, Defendant No.1. She argued that Defendant No.1's sons, Rajashekar and the late Shivakumar, both medical practitioners, had independent sources of income. As a result, she claimed that Item Nos.1 to 7 in Schedule 'B' were self-acquired properties of Defendant Nos.1 and 2, as well as the deceased Shivakumar.
9. Moreover, Defendant No.3 emphasized that Defendant No.1 had not utilized any income derived from the ancestral property (Item No.8) for the purchase of these lands. Given that Defendant No.1 and his sons were financially independent due to their medical profession, she maintained that the joint family's corpus was never used to acquire these properties. On these grounds, Defendant No.3 sought the dismissal of the suit. -7- RFA 100384/2018 10. A memo was filed by defendant Nos.4, 5 and 6 adopting the written statement filed by defendant No.3.
11. The trial court based on the rival pleadings formulated the issues and the parties let in oral and documentary evidence in support of their claim.
12. The trial court having appreciated the oral and documentary evidence, answered issue No.1 partly in the affirmative and issue No.2 in the affirmative. While answering issue No.1 partly in the affirmative, the trial court held that the plaintiff has failed to substantiate that item Nos.1 to 7 properties are also joint family ancestral properties. While answering issue No.2 in the affirmative, the trial court held that defendant Nos.3 to 6 have succeeded in substantiating that item Nos.1 to 7 of schedule 'B' properties are self-acquired properties of defendant Nos.1, 3 and the deceased Shivakumar. Accordingly, the plaintiff was non-suited insofar as item Nos.1 to 7 of schedule 'B' properties are concerned. -8- RFA 100384/2018
13. Heard the learned counsel appearing for the plaintiff and learned counsel appearing for the defendants.
14. The following point would arise for our consideration:
"Whether the finding of the trial court that defendant Nos.3 to 6 have succeeded in proving that item Nos.1 to 7 of schedule 'B' properties are self- acquired properties of defendant Nos.1, 3 and the deceased Shivakumar is perverse and in absence of rebuttal evidence?
15. The present suit has been instituted by the plaintiff, who is the daughter of Defendant No.1, against family members, including Defendant No.1 (her father), Defendant No.2 (her brother), and her two sisters, who are arrayed as Defendant Nos.5 and 6. Additionally, the suit is also directed against Vijayalaxmi, the widow of her predeceased brother, Shivakumar, who is named as Defendant No.3.
16. The plaintiff has asserted that Item Nos.8 and 9 of Schedule 'B' properties, along with the house properties detailed in Schedule 'B' and the properties listed in -9- RFA 100384/2018 Schedule 'C,' are joint family ancestral properties. She has specifically pleaded that Item Nos.1 to 7 of Schedule 'B' were not self-acquired by Defendant Nos.1, 2, and the late Shivakumar but were instead acquired through the utilization of joint family funds.
17. To substantiate her claim, the plaintiff has contended that the family had a sufficient ancestral nucleus, which served as a financial source for the acquisition of additional properties. In support of this assertion, she has placed reliance on revenue records, including the RTCs of the ancestral properties, which have been marked as Exhibits P8 and P9. Through these documents, the plaintiff has sought to establish that the joint family possessed ancestral properties with adequate financial means, thereby strengthening her claim that Item Nos.1 to 7 in Schedule 'B' were acquired using joint family resources.
18. After a careful examination of the documentary evidence produced by the plaintiff, this Court is of the opinion that she has successfully discharged her initial
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RFA 100384/2018burden of proof in demonstrating the existence of a joint family nucleus and its financial sufficiency to acquire the properties in question.
19. In light of the evidence presented by the plaintiff, which includes both oral and documentary evidence, it becomes necessary to examine the counter- evidence produced by the defendants. Before delving into the evidence put forth by the defendants, it is pertinent to first take cognizance of the stand taken by Defendant No.3 in her written statement. Given its significance to the case, particular attention must be paid to Paragraphs 10 and 11 of her written statement, which are extracted below for reference.
"10. It is submitted that there was partition had taken place in respect of properties long back between the defendant No.1 and his father Kalyanappa and the brothers of the defendant No.1 long back i.e. in the year 1952. During the said partition RS No.116/2 measuring 05 Acres 36 Guntas of Akkur village was fallen to the share of the defendant No.1. The said property is the only ancestral property of the plaintiff and the defendants. The said property is still in the nae of the defendant No.1 exclusively. The defendant No.2 or the
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deceased Shivakumar have not taken any share in the said property and not taken any benefit from it. Further, the defendant No.1, 2 and the deceased Shivakumar were living separately by doing their medical practice independently sine long time. The properties as shown in suit schedule 'B' at serial Nos. 1 to 7 are self acquired properties of the defendants 1, 2 and the deceased Shivakumar. Even the defendant No.1 has taken any benefit from the said ancestral property of the family i.e., property shown at 'B' schedule '8'. The defendant No.1 has also acquired the properties from his independent medical practice. The defendant No.1 had taken much strain in educating the plaintiff and the defendants 2, 5 and 6 and in performing the marriage of the plaintiff and the defendants 1, 5 and 6. At the time of the marriage of the plaintiff and the defendants 5 and 6 the defendant No.1 had given valuable gift in terms of money, gold, silver and other properties and further the marriages have been made by expensing huge amount.
11. It is submitted that the defendant No.1 is a medical practitioner by profession and so also by the defendant No.2 and the deceased Shivakumar. They are/were very good medical practitioners and they have earned good name in the surrounding villages of the Hosaritti. The defendants 1 and 2 and the deceased Shivakumar have earned money in the said medical practice and they have not given, much importance to the agriculture. The defendant No.1 having the entire possession of suit schedule 'b' serial No.8 ancestral property even today. The defendant No.2 and the deceased Shivakumar have not taken any share any
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benefit in the ancestral properties of the defendant No.1. The landed properties as shown in the suit schedule 'B' at serial Nos.3 to 7 are the properties earned by the defendant Nos.1 and 2 and the deceased Shivakumar independently. As such the family arrangement has been made in the year 1978 between the defendants 1 and 2 and the deceased Shivakumar. But the said properties are the self acquired properties of the deceased Shivakumar. As such the said properties have been given to the share of the deceased Shivakumar exclusively. In view of the same ME No.995 of Mannur village has been certified on 06/10/1978. After the untimely death of the deceased Shivakumar, the name of his wife and his son by name Vishwanath were mutated to the said properties. The said mutation has not been challenged till today by the plaintiff."
20. Upon a careful reading of the averments made in Paragraphs 10 and 11 of the written statement, it becomes evident that the defendants have firmly asserted that Item Nos.1 to 7 of Schedule 'B' properties are their self-acquired properties. To substantiate this claim, the defendants have relied on the contention that Defendant Nos.1, 2, and the deceased Shivakumar were medical practitioners with independent sources of income. However, in order to establish that these properties were indeed self-acquired and not purchased from joint family
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RFA 100384/2018funds, the defendants were required to lead cogent rebuttal evidence demonstrating their independent earnings.
21. It is a well-settled principle of law that the mere existence of a joint family does not automatically raise a presumption that the properties owned by its members are joint family properties. However, once it is shown that a joint family possesses a substantial nucleus with sufficient income, the burden shifts to the party claiming self- acquisition to establish that the properties in question were acquired without utilizing joint family funds.
22. In the present case, the plaintiff has succeeded in at least placing some slender evidence before the court to demonstrate that the family did possess a sufficient ancestral nucleus. She has produced documentary evidence, including revenue records such as RTCs, to show that the family owned substantial ancestral properties. Surprisingly, despite being the contesting parties, Defendant Nos.1 and 2 have chosen not to step into the
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RFA 100384/2018witness box to substantiate their claim of self-acquisition. Their failure to do so significantly weakens their defense.
23. Furthermore, the defendants' claim that Defendant Nos.1, 2, and the deceased Shivakumar were medical practitioners with independent incomes remains unsupported by any documentary evidence. While the plaintiff has, to some extent, discharged her initial burden by proving the existence of ancestral property and a joint family nucleus, the defendants have utterly failed to discharge their corresponding burden. Apart from producing two Power of Attorney documents, marked as Exhibits D1 and D2, and the testimony of D.W.2 who appears to be the maternal uncle of Defendant No.2,the defendants have not led any credible evidence to establish that Defendant No.1 and his three sons had independent earnings. There is not a single piece of documentary evidence, such as professional records, income statements, or tax filings, to prove that Defendant No.1 and his sons had a lucrative medical practice that enabled
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RFA 100384/2018them to purchase Item Nos.1 to 7 in Schedule 'B' without relying on joint family funds.
24. Despite the defendants' specific assertion that Defendant Nos.1, 2, and the deceased Shivakumar were medical practitioners with independent incomes, they have failed to produce even the most fundamental documentary evidence, such as income tax returns, to support their claim. Given that income tax returns serve as critical financial documents reflecting a person's earnings, their absence raises serious doubts about the defendants' defense. The production of such records would have been the most direct and reliable way to establish that the properties in question were acquired using independent earnings rather than joint family funds.
25. The failure of the defendants to produce their income tax returns suggests that they have deliberately withheld crucial evidence that could have clarified the source of funds used to purchase Item Nos.1 to 7 of Schedule 'B' properties. As per the well-established legal principle, when a party in possession of relevant evidence
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RFA 100384/2018chooses not to produce it, an adverse inference can be drawn against them. This failure on the part of the defendants significantly weakens their case and supports the presumption that the properties were acquired using joint family funds. Notably, the trial court, while appreciating the evidence, overlooked these critical omissions on the part of the defendants. The court's failure to take cognizance of these missing documents has led to an erroneous assessment of the evidence led by the defendants.
26. The plaintiff, on the other hand, has successfully produced revenue records, particularly RTCs, to establish that the family owns approximately 14 acres of ancestral land. This evidence sufficiently discharges her burden of proof by demonstrating that the family had an ancestral nucleus with the financial capacity to acquire additional properties. As a result, a legal presumption arises that Item Nos.1 to 7 in Schedule 'B' properties were purchased from the joint family corpus.
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RFA 100384/2018
27. Since the plaintiff has met her burden of establishing the existence of an ancestral nucleus, the onus then shifts to the defendants to rebut this presumption by proving that these properties were self- acquired. However, in the present case, the defendants have completely failed to produce any convincing evidence to counter this presumption. Their mere assertions regarding independent earnings are insufficient in the absence of substantive documentary proof.
28. Given the circumstances, an adverse inference must be drawn against Defendant Nos.1 and 2 for their failure to step into the witness box and lead rebuttal evidence. Defendant No.1, being the father and Karta of the family, was in the best position to provide firsthand testimony regarding the source of funds used to acquire the disputed properties. Similarly, Defendant No.2, who is actively contesting the plaintiff's claim, has also failed to present himself as a witness to defend his assertion of self-acquisition. This deliberate absence further weakens
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RFA 100384/2018the defendants' credibility and raises serious doubts about their claim.
29. Furthermore, Defendant No.3, the widow of the deceased Shivakumar and the daughter-in-law of Defendant No.1, has also refrained from stepping into the witness box. Her testimony could have shed light on the financial affairs of her late husband and provided additional clarity on whether he had an independent source of income. The complete absence of testimonies from the key defendants significantly undermines their defense.
30. The oral testimony of D.W.1, who has attempted to testify regarding the alleged independent income of Defendant Nos.1, 2, and the deceased Shivakumar, is neither reliable nor admissible in evidence. His competency to speak on the financial affairs of the defendants is highly questionable, as he has not produced any supporting records to validate his statements. While it is a settled principle that the competency of a Power of Attorney holder cannot be challenged before his testimony
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RFA 100384/2018is recorded and tested in cross-examination, in the present case, even after evaluating the testimony of D.W.1, this Court finds that it does not carry sufficient weight to counter the plaintiff's documentary evidence.
31. Therefore, in the absence of credible rebuttal evidence, this Court finds that the plaintiff has successfully demonstrated that Item Nos.1 to 7 of Schedule 'B' properties were purchased using joint family funds, and the defendants have failed to disprove this claim. Conclusion:
32. The trial court, while addressing Issue No.2 in the affirmative, has erroneously placed the entire burden of proof upon the plaintiff, disregarding the absence of rebuttal evidence from the defendants. The court failed to acknowledge that the plaintiff had effectively discharged her initial burden by demonstrating that the family possessed a sufficient ancestral nucleus capable of acquiring the suit properties. Instead of appreciating this crucial aspect, the trial Court overlooked the fundamental
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RFA 100384/2018principle that once a party has established a prima facie case, the onus shifts to the opposing party to disprove or rebut the claim.
33. Furthermore, the trial Court neglected to draw an adverse inference against defendant Nos.1 to 3 who failed to step into the witness box to substantiate their respective claims or to refute the plaintiff's allegations. It is a well-settled principle of law that when a party against whom serious allegations are made refrains from entering the witness box to counter those allegations, the court must draw an adverse inference against them. The failure of defendant Nos.1 to 3 to lead any evidence in their defense, either by way of oral testimony or documentary proof, raises serious doubts regarding the veracity of their claims. Additionally, defendant No.3, being the widow of deceased Shivakumar, also abstained from presenting any evidence to counter the allegations. The trial court, in its reasoning, failed to recognize the legal consequences of such inaction on the part of the defendants. By not drawing an adverse inference against defendant Nos.1, 2,
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RFA 100384/2018and 3, the trial court has committed a grave error in the appreciation of evidence, leading to a miscarriage of justice.
34. In light of the well-established legal principles enunciated by the Hon'ble Supreme Court in Surendra Kumar v. Phoolchand (Dead) & Anr., reported in (1996) 2 SCC 491, it is evident that the plaintiff has successfully proved the existence of ancestral joint family properties, thereby establishing a sufficient nucleus. Once such a nucleus is shown to exist, a presumption arises that any subsequent acquisitions, including item Nos.1 to 7 in Schedule 'B' properties, are also joint family properties. This presumption gains even greater significance in the present case due to the complete lack of rebuttal evidence from the defendants.
35. Despite this legal position, the trial court has failed to appreciate the evidence in the proper perspective and has, instead, misdirected itself by erroneously placing the entire burden of proof upon the plaintiff. The court overlooked the fact that once the plaintiff had established
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RFA 100384/2018the existence of an ancestral nucleus, it was for the defendants to provide cogent evidence to dislodge the presumption that the suit properties were joint family properties. The defendants' failure to adduce any such evidence either documentary or oral renders the trial court's findings wholly perverse and unsustainable in law.
36. Moreover, the trial court has virtually misread and misappreciated the evidence presented by the plaintiff. The fact that defendant Nos.1 to 3 deliberately chose not to enter the witness box or tender any rebuttal evidence should have led to an adverse inference against them. The trial court's failure to apply this well-settled principle of law has resulted in a palpably erroneous conclusion, necessitating interference by this court. In view of the defendants' failure to discharge their burden and the trial court's improper appreciation of evidence, the findings recorded are perverse and warrant correction at the appellate stage. Accordingly, the point formulated is answered in the affirmative.
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RFA 100384/2018
37. For the forgoing reasons, we proceed to pass the following:
ORDER
i) The appeal is allowed.
ii) The suit of the plaintiff is decreed.
iii) The plaintiff is entitled to 1/7th share in all the suit schedule properties.
iv) Similarly, defendant Nos.1 to 6 are also entitled to 1/7th share each in all the suit schedule properties.
Draw decree accordingly.
Sd/-
(SACHIN SHANKAR MAGADUM) JUDGE Sd/-
(G BASAVARAJA) JUDGE MBS Ct:vh