Karnataka High Court
Sri. Naveenkumar vs Sri. Prabhulinganagouda on 31 January, 2025
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NC: 2025:KHC-D:1969-DB
RFA No. 100123 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 31ST DAY OF JANUARY, 2025
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE UMESH M ADIGA
REGULAR FIRST APPEAL NO. 100123 OF 2020 (PAR/POS)
BETWEEN:
1. SRI. NAVEENKUMAR
S/O. PRABHULINGANAGOUDA BASANAGOUDAR
AGE: 29 YEARS, OCC: AGRICULTURE,
R/O. ALADAKATTI,
TQ: AND DIST: HAVERI.
2. SRI. JAYADEV
S/O. PRABHULINGANAGOUDA BASANAGOUDAR
AGE: 29 YEARS, OCC: AGRICULTURE,
R/O. ALADAKATTI, TQ: AND DIST: HAVERI.
3. SMT. SWETA
W/O. SANTOSH KERODI
AGE: 25 YEARS, OCC: HOUSEHOLD,
R/O. HAMSABHAVI,
TQ: HIREKERUR, DIST: HAVERI.
Digitally signed
by V N BADIGER ...APPELLANTS
Location: HIGH
COURT OF
KARNATAKA
Date:
(BY SRI. SURESH N. KINI, ADVOCATE)
2025.02.17
15:42:02 +0530
AND:
1. SRI. PRABHULINGANAGOUDA
S/O. MARISANGANAGOUDA BASANAGOUDAR
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: ALADAKATTI,
TQ: AND DIST: HAVERI.
2. SRI. JAGADISH
S/O. SHIVAPPA KUDLAPPANAVAR
AGE: 46 YEARS, OCC: BUSINESS,
R/O: YALAKKI ONI,
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NC: 2025:KHC-D:1969-DB
RFA No. 100123 of 2020
NEAR BANNADAMATH,
TQ: AND DIST: HAVERI.
3. SRI. VIJAYKUMAR
S/O. SHIVAPPA KUDLAPPANAVAR
AGE: 44 YEARS, OCC: BUSINESS,
R/O: YALAKKI ONI,
NEAR BANNADAMATH,
TQ: AND DIST: HAVERI.
4. NATIONAL HIGHWAY AUTHORITY OF INDIA
REP. BY ITS PROJECT DIRECTOR,
VIDYAGIRI, DHARWAD.
5. SRI. MALLANAGOUDA
S/O. MARISANGANAGOUDA BASANAGOUDAR,
AGE: 65 YEARS, OCC: BUSINESS,
R/O: YALAKKI ONI, NEAR BANNADAMATH,
TQ: AND DIST: HAVERI.
...RESPONDENTS
(BY SRI. VEERESH S. GADAD, ADVOCATE FOR R1;
SRI. N.P. VIVEKMEHTA, ADVOCATE FOR R2 AND R3;
SRI. SAGAR LADDA, ADVOCATE FOR R4;
NOTICE TO R5 SERVED BUT UNREPRESENTED)
THIS RFA IS FILED UNDER SEC. 96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 07.11.2019 PASSED IN
O.S.NO.9/2013 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
JUDGE, HAVERI, PARTLY DECREEING THE SUIT FILED FOR
PARTITION AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE UMESH M ADIGA
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NC: 2025:KHC-D:1969-DB
RFA No. 100123 of 2020
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Regular First Appeal is filed by the appellants, challenging the judgment and decree dated 07.11.2019, passed in O.S.No.9/2013, by the learned Additional Senior Civil Judge, Haveri, dismissing the suit regarding item No.1 of the suit schedule property.
2. For convenience, the parties are referred to, based on their ranking before the Trial Court. The appellants were plaintiffs and the respondents were the defendants.
3. Brief facts, leading rise to the filing of this Regular First Appeal, are as follows:
The plaintiffs filed a suit against the defendants for partition and separate possession regarding the suit schedule properties. It is the case of the plaintiffs that, defendant No.1 is the father of plaintiffs No.2 to 4 and husband of plaintiff No.1. Defendant No.4 acquired land bearing R.S.No.205/1A to an extent of 18 guntas for the use of National highway. The plaintiffs and defendant No.1 -4- NC: 2025:KHC-D:1969-DB RFA No. 100123 of 2020 constitute a Hindu Joint Family. The suit schedule properties are the ancestral properties of the plaintiffs and defendant No.1. Originally, the suit schedule properties belonged to the father of defendant No.1 by the name Marisangangouda Basangoundar. A partition was effected between defendants No.1 to 4 and Marisangangouda. In the said partition, suit schedule properties have fell to the share of defendant No.1.
It is contended that the father of defendant No.1 out of the income derived from the joint family properties, purchased item No.1 in the name of defendant No.1. The said item No.1 property is the joint family property of the plaintiffs and defendant No.1. It is contended that, defendant No.1 was addicted to bad habits like playing cards, drinking alcohol and womanising, etc. Defendant No.1 wasted the joint family assets without corresponding legal necessities. Defendant No.1 colluding with defendants No.2 and 3 created a sale deed dated 29.05.2000. The sale deed executed by defendant No.1 in favour of defendant Nos.2 and 3 is not binding on the share of plaintiffs. The plaintiffs demanded partition and separate possession. Defendant No.1 refused to -5- NC: 2025:KHC-D:1969-DB RFA No. 100123 of 2020 effect partition. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession.
Accordingly, prays to decree the suit.
4. Defendants No.1 and 4 appeared through the counsel and did not file a written statement. Defendants No.2 and 3 filed a written statement denying the averments made in the plaint. It is contended that, defendant No.4 had acquired 18 guntas of land in R.S.No.205/1A. It is contended that defendant No.1 was the absolute owner of R.S.No.205/1A, measuring 5 acres 21 guntas 8 annas. It is contended that, defendant No.1 sold item No.1 of the suit schedule property to defendants No.2 and 3 for valuable consideration and accordingly, executed a registered sale deed on 29.05.2000 and handed over the possession of the said land to them. Based on the registered sale deed, a mutation order was passed vide M.E.No.11912, certified on 31.10.2000. It is contended that, the suit filed by the plaintiffs is barred by limitation. The plaintiffs have filed the suit after 10 years from the date of execution of a registered sale deed. It is contended that, item No.1 of the suit -6- NC: 2025:KHC-D:1969-DB RFA No. 100123 of 2020 schedule property was the self-acquired property of defendant No.1 since the defendant No.1 had his own lorry and used to drive the said lorry by obtaining the license and out of the income earned from said lorry, defendant No.1 purchased the said property and the plaintiffs have no right to claim a share in item No.1 of the suit schedule property. It is contended that the suit is hit by estoppel.
5. It is contended by defendants No. 2 and 3 that, defendant No.1 had obtained a loan from Haveri Urban Co- operative Bank, Haveri for purchasing the lorry/goods truck. He did not repay the Earnest Money Investment. The Haveri Urban Co-operative Bank authorities seized the goods truck through attachment. The defendant No.2 stood as surety to defendant No.1 to the said loan. The bank authorities filed a suit against defendant No.2 in 2001 also against Sri.S.P.Chinnikatti, another surety. Defendant No.1 utilized the said sale consideration amount and paid the loan amount to the Haveri Urban Co-operative bank. The sale is for family and legal necessities. Defendant No.2 after purchasing item No.1 of the suit schedule property is in possession and -7- NC: 2025:KHC-D:1969-DB RFA No. 100123 of 2020 enjoyment of the suit property. Hence, the suit filed by the plaintiffs against defendants No.2 and 3 regarding item-1 of the suit property is not maintainable, and accordingly prays to dismiss the suit against defendant Nos.2 and 3.
6. Defendant No.5 filed a written statement denying the averments made in the plaint. It is contended that, land bearing R.S.No.162/1+2A measuring 5 guntas belonging to defendant No.1, who sold the said land in favour of defendant No.5 for valuable consideration of Rs.2,50,000/- under a registered sale deed dated 04.04.2003. Defendant No.5 became an absolute owner based on the registered sale deed dated 04.04.2003. Hence, prays to dismiss the suit.
7. The trial court, based on the pleadings of the parties, framed the issues and additional issues:-
1. Whether plaintiffs prove that, themselves and defendants are the members of Hindu Joint Family?
2. Whether plaintiffs prove that, themselves and defendants are joint owner and joint possessor of the suit properties?-8-
NC: 2025:KHC-D:1969-DB RFA No. 100123 of 2020
3. Whether plaintiffs prove that, defendant No.1 was addicted bad habits like playing cards, drinking alcohol etc.,?
4. Whether plaintiffs prove that, defendant No.1 was wasted the joint family properties?
5. Whether defendant No.2 and 3 proves that, suit of the plaintiffs is bad for mis- joinder of parties?
6. Whether defendant No.2 and 3 proves that, suit of the plaintiffs is barred by law of limitation?
7. Whether defendant No.2 and 3 proves that, this court has no jurisdiction to try the suit?
8. Whether defendant No.2 and 3 proves that, suit of the plaintiffs is hit by the rule of estoppel?
9. Whether defendant No.2 and 3 proves that, suit lands are the self acquired properties of defendant No.1?
10.Whether defendant No.2 and 3 proves that, defendant No.1 was sold the suit lands for his family necessity?
11.Whether defendant No.2 and 3 proves that, plaintiffs have paid insufficient court fee?
12.Whether plaintiffs are entitled the relief of partition and separate possession of suit schedule properties?
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NC: 2025:KHC-D:1969-DB RFA No. 100123 of 2020
13.Whether plaintiffs are entitled 4/5th share in the suit schedule properties?
14. What order or decree?
ADDITIONAL ISSUES FRAMED ON 16.07.2014:-
1. Whether the plaintiffs prove that, themselves and defendant No.1 are the members of Hindu Joint family?
2. Whether the plaintiffs prove that, themselves and defendant No.1 are the joint owners and joint possessors of the suit properties?
ADDITIONAL ISSUES FRAMED ON 25.04.2019:-
1. Whether plaintiffs prove that suit properties are joint family properties?
2. Whether the defendant No.5 proves that, defendant No.1 was the absolute owner of land bearing RS No.162/1+2A measuring 5 guntas?
3. Whether suit is barred by law of limitation?
8. The plaintiffs to substantiate their case, plaintiff No.2 was examined as PW.1, and marked 11 documents as Ex.P1 to P11. In rebuttal, the defendants to substantiate
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NC: 2025:KHC-D:1969-DB RFA No. 100123 of 2020 their defense, defendant No.3 was examined as DW1 and marked 13 documents as Ex.D1 to D13. The trial court, after recording the evidence, hearing on both sides and on assessment of oral and documentary evidence, answered issue Nos.1, 9, and 10 in the affirmative, issue No.2, issue No.12, additional issue No.2 framed on 16.07.2014 and additional issue No.1 framed on 25.04.2019 answered partly in the affirmative. Issue Nos.3 to 8, 11 and additional issue No.1 framed on 16.07.2014 and additional issue Nos.2 and 3 framed on 25.04.2019 in the negative and issue No.13 as per final order. The suit of the plaintiffs was partly decreed. It is declared that, plaintiffs No.1 to 4 and defendant No.1 are entitled to 1/5th share in suit 'A' schedule Sl.Nos.2 and 3 and second Sl.No.3 properties. It is declared that, defendant No.5 being a purchaser of the land bearing R.S.No.162/1+2A measuring 5 acres of Haveri is entitled to work out his equity in final decree proceedings. The prayer of the plaintiffs for partition and separate possession of their shares in land bearing R.S.No.205/1A measuring 5 acres 21 guntas 0.08 annas of Haveri was dismissed. Suit schedule 'A', 2 and 3
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NC: 2025:KHC-D:1969-DB RFA No. 100123 of 2020 properties and second SL.No.3 properties shall be partitioned as per Section 54 of the CPC., 1908. The plaintiffs aggrieved by the dismissal of the suit in respect of R.S.N.205/1A filed this Regular First Appeal.
9. Heard the learned counsel for the plaintiffs and learned counsel for defendants No.2 and 3.
10. Learned counsel for the plaintiffs submits that, item No.1 of the suit schedule property was purchased in the name of defendant No.1 out of the joint family nucleus and submits that item No.1 is a joint family property of the plaintiffs and defendant No.1. The plaintiffs have produced the records to establish that, there was a nucleus for purchasing item No.1 of the suit schedule property. However, the trial Court did not properly appreciate the evidence on record and committed an error in dismissing the suit regarding R.S.No.205/1A. He also submits that the sale deed alleged to have been executed by defendant No.1 in favour of defendants No.2 and 3 is a sham and bogus document and the same is not binding on the plaintiffs. He further submits that, though, the trial Court has framed
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NC: 2025:KHC-D:1969-DB RFA No. 100123 of 2020 additional issues on 25.04.2019, the trial Court has not provided an opportunity to the parties to lead evidence on additional issues framed on 25.04.2019. Hence, on these grounds, he prays to allow the appeal.
11. Per contra, learned counsel for defendants No.2 and 3 submits that defendant No.1 had purchased item No.1 of the suit schedule property under a registered sale deed and the said property is a self-acquired property of the defendant No.1. He submits that defendant No.1 sold item No.1 in favour of defendants No.2 and 3 under a registered sale deed. He submits that the plaintiffs have not challenged the sale deed executed by defendant No.1 in favour of defendants No.2 and 3 within three years of attaining the age of majority. He submits that, the suit filed by the plaintiffs is barred by limitation as per Article 60 of the Limitation Act. He also submits that, the sale is for family legal necessity and the sale deed executed by defendant No.1 in favour of defendants No.2 and 3 is binding on the plaintiffs. The trial court considered the evidence on record
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NC: 2025:KHC-D:1969-DB RFA No. 100123 of 2020 and has rightly passed the impugned judgment. Hence, prays to dismiss the appeal.
12. Perused the records and considered the submissions of the learned counsel for the parties.
13. The points, that arise for our consideration are :
1) Whether the plaintiffs prove that item No.1 i.e. R.S.No.205/1A measuring 5 acres 21 guntas 0.08 annas is a joint family property of the plaintiffs and defendant No.1?
2) Whether the plaintiffs prove that the judgment and decree passed by the trial Court is perverse and erroneous?
3) What order or decree? Point No.1 :
14. The plaintiffs to substantiate their case, plaintiff No.2 was examined as PW1. He deposed that, item No.1 of the suit schedule property was purchased in the name of defendant No.1 out of the joint family nucleus. The said
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NC: 2025:KHC-D:1969-DB RFA No. 100123 of 2020 item No.1 of the suit schedule property is a joint family property of the plaintiffs and defendant No.1. The plaintiffs and defendant No.1 constitute a Hindu Joint Family and no partition is effected between the plaintiffs and defendant No.1. The plaintiffs demanded partition and separate possession, but the defendants refused to effect partition. The plaintiffs to prove their case, examined plaintiff No.2 as PW.1 and produced three documents i.e. record of rights regarding the land bearing R.S.No.205/1A which are marked as exhibit P1 to P3 which stands in the name of defendant No.3. Exhibit P1 is the RTC extract of R.S.No.205/1A which stands in the name of defendants No.2 and 3. Ex.P2 is the RTC extract of R.S.No.205/1A which stands in the name of defendants No. 2 and 3. Ex.P3 is the RTC extract of the land bearing S.No.205/1A which stands in the name of defendants Nos.2 and 3. Ex.P3 is the RTC extract of the land bearing survey No.205/1A stands in the name of defendant No.1. Exhibit P4 is the RTC extract of land bearing survey No.45/3A/1 which stands in the name of defendant No.1. Exhibit P5 is the Form No.9 issued by Gram Panchayath in
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NC: 2025:KHC-D:1969-DB RFA No. 100123 of 2020 respect of VPC No.435/6 which stands in the name plaintiffs No.2 and 3. Ex.P6 is a certified copy of a registered sale deed which discloses that, the defendant No.1 sold the land bearing S.N.205/1A in favour of defendants No.2 and 3 on 29.05.2000, Ex.P7 is the mutation extract of ME No.2354, Ex.P8 is the mutation extract of ME No.9659, Ex.P9 is a certified copy of ME No.11912. Ex.P10 is the award passed by the Land Acquisition Officer, which discloses that the portion of land bearing S.N.205/1A was acquired for the National Highway. Ex.P11 is the copy of the award notice and Ex.P11(a) is the entry about defendants No.2 and 3 at serial No.1821 of R.S.N.205/1A. During the course of cross examination by defendants No.2 and 3 it was suggested that item No.1 of the suit schedule property is the self acquired property of defendant No.1 and he was the absolute owner of the suit schedule property and he sold item No.1 in favour of defendants No.2 and 3 for family and legal necessity. The said suggestion was denied by the PW.1.
15. In rebuttal, defendant No.3 was examined as DW.1. He deposed that, defendant No.1 purchased item No.1
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NC: 2025:KHC-D:1969-DB RFA No. 100123 of 2020 of the suit schedule property under a registered sale deed in 1983. He obtained a loan from Haveri Urban Co-operative Bank for the purchase of a truck/goods truck. Defendant No.1 did not pay the EMI. The said property was put in for auction. The bank has initiated the recovery proceedings against defendant No.1. To clear the loan obtained from Haveri Urban Co-operative Bank, Haveri, he had sold item No.1 bearing R.S.No.205/1A in favour of defendant Nos.2 and 3 under a registered sale deed dated 29.05.2000 and defendant No.1 delivered the possession of the suit schedule property to the defendants No.2 and 3. He also deposed that item No.1 is the self acquired property of defendant No.1. To prove, their defense, defendant Nos.2 and 3 produced Election Voters List, marked as exhibit D1 and Ex.D2 is the certified copy of sale deed created in favour of defendant No.1 regarding R.S.No.205/1A. Ex.D3 is the certified copy of the sale deed executed by defendant No.1 in favour of defendant No.5 regarding R.S.No.162/1+2A. Exhibit D4 is the mutation entry No.203/2005-06 which discloses that based on the registered sale deed, name of the defendant
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NC: 2025:KHC-D:1969-DB RFA No. 100123 of 2020 No.2 was entered in the revenue records. Exhibit D5 is the record of rights of the land bearing R.S.No.162/1+2A, exhibits D6 and D7 are the encumbrance certificates, exhibit D8 is the certified copy of the relinquishment deed, exhibit D9 is the certified copy of the varadi, exhibit D10 is a certified copy of the resolution passed by the Gram Panchayath, exhibit D11 is the registered sale deed dated 29.05.2000 executed in favour of defendants No.2 and 3. Exhibits D12 is the certified copy of ME No.11912 and exhibit D13 is the certified copy of ME No.5642. During the course of cross examination, it was suggested that, the said item No.1 was purchased out of the joint family nucleus and it was the joint family property of the plaintiffs and defendant No.1. The said suggestion was denied by the DW.1.
16. On perusal of the records, it is clear that defendant No.1 had purchased item No.1 i.e. R.S.No.205/1A measuring 5 acres, 21 guntas and 0.08 annas under a registered sale deed. The plaintiffs contended that, defendant No.1 had purchased the said item No.1 out of the joint family nucleus. The plaintiffs to establish that the family
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NC: 2025:KHC-D:1969-DB RFA No. 100123 of 2020 had sufficient nucleus for purchasing item No.1 of the suit schedule property, have not produced any material. The registered sale deed stands in the name of defendant No.1 and it is well established principle of law that "there was no presumption that the property owned by the members of the Joint Hindu Family could a fortiori be deemed to be of the same character and to prove such a status it has to be established by the profounder that a nucleus of Joint Hindu Family income was available and that the said property had been purchased from the said nucleus and that the burden to prove such situation lay on the party, who so asserted it where the suit property had been purchased by the father from the joint family nucleus. Further, proof of the existence of a joint family does not lead to the presumption that the property held by any member of the family is joint and the burden rests upon anyone asserting that any item of property was joint to establish the fact."
17. The Hon'ble Apex Court in the case of Srinivas Krishnarao Kango Vs. Narayan Devji Kango and others
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NC: 2025:KHC-D:1969-DB RFA No. 100123 of 2020 reported in AIR 1954 SC 379 held in paragraphs Nos.8 and 10 as below:
"8. Coming next to the acquisitions, on 21- 5-1871, Siddopant purchased under Exhibit D-36 a house for Rs.200 from his mother-in- law. On 11-05-1885, he purchased under Exhibit D-61 S.No. 23 Ukamnal village for a sum of Rs.475. On 23-07-1890 he purchased under Exhibit D-64 lands bearing S.Nos.2025 and 2140 for Rs.2,400. In this suit, we are concerned only with S.No.2025. Apart from these purchases, he constructed two houses, one on S.Nos. 639, 640 and 641, and another on S.Nos. 634 and 635.
D.Ws.2 and 3 have deposed that these constructions would have cost between Rs.20,000 and Rs.25,000, and both the Courts have accepted this evidence. It was argued for the appellant that these witnesses had no first-hand knowledge of the constructions, and that their evidence could not be accepted as accurate. But making all allowances for inexactitude, there cannot be any doubt that the buildings are of a substantial character.
After 1901, Devji built a house on S.Nos. 642, 644 and 645 at a cost estimated between Rs.2,000 and 4,000. Thus, sums amounting to about Rs.30,000 had been invested in the acquisition of these properties and construction of the houses. Where did this money come from?
The evidence is that Siddopant was a Tahsildar in the State of Hyderabad, and was in service for a period of 40 years before he retired on pension. Though there is no precise evidence as to what salary he was drawing, it could not have been negligible, and salary is the least of the income which Tahsildars generally make. The lower Courts
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NC: 2025:KHC-D:1969-DB RFA No. 100123 of 2020 came to the conclusion that having regard to the smallness of the income from the ancestral lands and the magnitude of the acquisitions made, the former could not be held to be the foundation for the latter, and on the authority of the decision of the Privy Council in ' Appalaswami v. Suryanara yanamurti ' AIR 1947 PC 189 AT P. 192 (C) held that the initial burden which lay on the plaintiff of establishing that the properties of which a division was claimed were joint family properties had not been discharged.
The law was thus stated in that case:
"The Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property:
See-'Babubhai Girdharlal v. Ujamlal
Hargovandas' AIR 1937 Bom 446(D);-
Venkataramayya v. Seshamma', AIR 1937 Mad 538 (E);-Vythianatha v. Vdradaraja',AIR 1938 Mad 841 (F)".
10. Whether the evidence adduced by the p plaintiff was sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and the extent of the nucleus. The important thing to consider is the income which the nucleus yields. A building in the occupation of the members of a family and yielding no income could not be a nucleus out of which
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NC: 2025:KHC-D:1969-DB RFA No. 100123 of 2020 acquisitions' could be made, even though it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small might conceivably product substantial income, which may well form the foundation of the subsequent acquisitions. These are not abstract questions of law, but questions of fact to be determined on the evidence in the case.
In 'AIR 1947 PC 189 (C)', the nucleus of Rs.7,220/- included 6/16th share in a rice mill and outstandings of the value of Rs.3,500/-, and as the acquisitions in question were made during a period of 16 years it was possible that the joint family income might have contributed therefore. But in the present case, the finding of the Courts is that the income from the lands was not sufficient even for the maintenance of the members, and on that they were right in holding that the plaintiff had not discharged the initial burden which lay on him. But even if we are to accept the contention of the appellant that on proof of the existence of the Watan lands the burden had shifted on to the defendants to prove that the acquisitions were made without the aid of joint family funds, we must hold on the facts that that burden had been discharged.
In 'AIR 1947 PC 189 (C)', in holding that the father had discharged the burden of proving that the acquisitions were his own, the Privy Council observed:
"The evidence establishes that the property acquired by the appellant under Exhibit A is substantially intact, and has been kept distinct. The income derived from the property and the small sum derived from the sale of part of it have been properly applied towards the expenses of the family, and there is no evidence from which it can be held that the nucleus of joint family property assisted the appellant in the acquisition of
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NC: 2025:KHC-D:1969-DB RFA No. 100123 of 2020 the properties specified in the schedule, to the written statement."
Likewise, in the present case all the ancestral Watan lands are intact, and are available for partition, and the small income derived from them must have been utilised for the maintenance of the members of the family. Whether we hold, as did the learned Judges of the High Court, that the plaintiff had failed to discharge the burden which lay on him of establishing sufficient nucleus, or that the defendants had discharged the burden of establishing that the acquisitions were made without the aid of joint family funds, the result is the same. The contention of the appellant that the findings of the Courts below are based on a mistaken view as to burden of proof and are in consequence erroneous, must fail."
18. The plaintiffs have failed to establish that, the family was possessed sufficient nucleus for purchasing item No.1 of the suit schedule property. In a suit for partition and separate possession, the initial burden is on the plaintiff to prove that the suit properties are joint family properties and the burden is discharged, it shifts on the defendants to prove the properties to be self-acquired. The plaintiffs have failed to establish that item No.1 of the suit schedule property is the joint family property of the plaintiffs and defendant No.1. The defendant No.1, though, appeared through the counsel did not file a written statement. Defendant No.1 got filed the
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NC: 2025:KHC-D:1969-DB RFA No. 100123 of 2020 present suit, through the plaintiffs to harass defendants No.2 and 3 who are the purchasers. In view of the above discussion, we answer point No.1 in the negative. Point No.2:
19. The plaintiffs failed to establish that item No.1 i.e. R.S.No.205/1A measuring 5 acres 21 guntas, 0.08 annas was purchased out of the joint family nucleus and the said property is a joint family property of the plaintiffs and defendant No.1. We have already discussed in point No.1 that the plaintiffs have failed to establish that the family was having sufficient nucleus for purchasing item No.1 of the suit schedule property. There is no presumption about the joint family property. The trial court has rightly recorded a finding that item No.1 bearing R.S.No.205/1A measuring 5 acres 21 guntas 0.08 annas is the self acquired property of defendant No.1 and he sold the property in favour of defendant Nos.2 and 3 for family and legal necessity and the said sale deed is binding on the plaintiffs. The trial Court has considered the material placed on record, and rightly dismissed the suit insofar as item No.1 of the suit, schedule property. We do
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NC: 2025:KHC-D:1969-DB RFA No. 100123 of 2020 not find any error in the impugned judgment. We concur with the finding recorded by the trial court, insofar as item No.1 of the suit schedule property. In view of the above discussion, we answer point No.2 in the negative. Point No.3.
20. Accordingly, we proceed to pass the following:
ORDER The Appeal is dismissed.
The Judgment and decree passed in OS No.9/2013 dated 07.11.2019 by the learned Addl. Senior Civil Judge, Haveri is hereby confirmed.
No order as to costs.
Sd/-
(ASHOK S. KINAGI) JUDGE Sd/-
(UMESH M ADIGA) JUDGE VB-Upto para No.4 HMB-Para 5 to end Ct-cmu LIST NO.: 1 SL NO.: 3