Karnataka High Court
H K Govindappa S/O Krishnappa vs Smt Mahadevamma W/O Late Ningaiah on 23 August, 2012
Author: K.Bhakthavatsala
Bench: K. Bhakthavatsala
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 23RD DAY OF AUGUST 2012
BEFORE
THE HON'BLE DR. JUSTICE K. BHAKTHAVATSALA
REGULAR FIRST APPEAL NO.468/2006 (PAR)
A/W
MISC. CIVIL NO.4863/2009
BETWEEN
H K Govindappa,
S/o Krishnappa,
Age: 46 years,
R/at No.14, 12th 'B' Cross,
Vyalikaval,
Bangalore-03. Appellant
(By Sri B Papegowda, Adv., for appellant)
AND
1. Smt. Mahadevamma,
W/o late Ningaiah,
Age: 50 years,
R/at No.14, 12th 'B' Cross,
Vyalikaval,
Bangalore-03.
2. A Ningaiah @ Ninga,
S/o Daddi Ningegowda,
Age: 75 years,
R/at Door No.11,12th Cross,
1st Main Road,
2
Subbaiah Road,
Vyalikaval,
Bangalore-03.
Since deceased, rep. by L.Rs.,
R-3,4 and 5.
3. Shankarlingegowda,
S/o A Ningaiah,
Age: 52 years,
Token No.187,
Mysore Lamp Works Ltd.,
Old Tumkur Road,
Bangalore-55.
4. M G Javaregowda,
S/o A Ningaiah,
Age: 45 years,
R/at No.14, 12th 'B' Cross,
1st Main Road,Subbaiah Road,
Vyalikaval,
Bangalore-03.
5. Smt. Kempamma @ Gundamma,
W/o A Ningaiah,
Age: 70 years,
R/at Door No.11,
12th Cross, 1st Main Road,
Subbaiah Road, Vyalikaval,
Bangalore-03.
Since deceased, rep. by L.Rs. R-3 and 4.
6. S Venkatalakshmamma,
W/o S Nagaraj,
Age: 40 years,
R/at No.69,EL No.97,
3
Proprietor of Sri Devi Milk Centre,
Jayamahal Vilas 2nd Stage,
Ashwathnarayana Nagar,
Bangalore-44.
7. The Sub-Registrar,
Gandhinagar,
Bangalore-560 009. Respondents
(By Sri K L Sreenivasa, Adv., for M/s. KNL Associates,
for R-1)
(Sri Nagendra C S, Adv., for R-4)
(R-2 is dead)
(R-3 and 4 are L.Rs., of deceased R-5)
(R-6 and 7 are served, but unrepresented)
---
This Regular First Appeal is filed under Section 96 of
the Code of Civil Procedure, against the judgment and
decree dated 15.10.2005 passed in O S No.4023/1989 on
the file of I Addl. City Civil and Sessions Judge, Bangalore,
(CCH-2), partly decreeing the Suit for partition and mesne
profit.
Misc.Civil No.4863/2009 is filed under Order XXXIX
Rules 1 and 2 r/w Section 151 of CPC, praying to issue ad-
interim order of temporary injunction restraining the
appellant from alienating, encumbering item No.1 of
schedule property to any third party pending disposal of
the Appeal.
This Appeal coming on for hearing this day, the Court
delivered the following:
4
JUDGMENT
Defendant No.7 in O S No.4023/1989 on the file of I Addl. City Civil Judge at Bangalore City, is before this Court under Section 96 of the Code of Civil Procedure, challenging the impugned judgment and decree dated 15.10.2005 decreeing the Suit for partition and separate possession, in so far as item No.1 under schedule 'A' house property.
2. Learned Counsel for the appellant submits that the respondent/plaintiff filed a Suit against father-in-law, brothers-in-law, mother-in-law and purchasers of item No.1 of 'A' schedule property. The appellant is the purchaser of the said property from defendant No.6. He further submits that defendant No.6/Venkatalakshmamma purchased item No.1 of 'A' schedule property from defendant No.1, who was allotted a site measuring 5 20'x35' as per Ex.D1- memo dated 4.1.1961 when he was working as a Peon, by the then City Improvement Trust Board. Thereafter, khata was transferred and in the year 1996, defendant No.1 borrowed a sum of `9,100/- being 80% of the building cost from the Karnataka Housing Board by executing a mortgage deed as per Ex.D4 and the same was repaid and got discharged. Subsequently, the said house property was sold to defendant No.6/Venkatalakshmamma as per registered sale deed dated 25.10.1989 (Ex.D6) and the present appellant/defendant No.7 purchased the same from defendant No.6 under a registered sale deed dated 27.10.1991 and he is in possession and enjoyment of the same. He submits that the plaintiff, being widow of one of the deceased-son of defendant No.1, has not proved in evidence to establish that item No.1 of 'A' schedule property is joint family property and erred in decreeing the Suit in part. He submits that the trial Court has not properly appreciated the oral and documentary evidence of 6 D.W1 on record. He relies upon the following decisions:
(i) AIR 2003 SC 3800 (D S LAKSHMAIAH
AND ANOTHER Vs. BALASUBRAMANYAM
AND ANOTHER);
(ii) AIR 2004 SC 1619 (P S SAIRAM
AND ANOTHER Vs. P S RAMA RAO PISEY
AND OTHERS); and
(iii) AIR 2007 SC 1808 (MAKHAN SINGH
(D) BY L.RS. Vs. KULWANT SINGH)
He submits that the impugned judgment and decree may be set aside by allowing the Appeal.
3. Learned Counsel for respondent No.1/plaintiff submits that the trial Court, on proper appreciation of oral and documentary evidence placed on record, held that respondent No.1/plaintiff is entitled for 5/16 th share in item 7 No.1 of 'A' schedule property and there is no illegality or infirmity in the impugned judgment and decree.
4. Perused the LCR.
5. It is pertinent to mention that respondent No.1 plaintiff filed a suit against father-in-law, brothers-in law and purchasers of item No.1 of 'A' schedule property for partition and separate possession of three items of 'A' schedule property and 'B' schedule property. 'A' schedule house property consists of ground and first floor and item Nos.2 and 3 are two sites each measuring 30'x40' and 'B' schedule property is cash of `60,000/- with defendant No.2 and gold ornaments worth about `50,000/- in the custody of defendant No.1. He filed a Suit for partition and separate possession claiming that the plaintiffs are defendant Nos.1 to 4 are members of Joint Hindu Family and she is the widow of deceased Ningaiah- (the eldest son of defendant 8 No.1); and defendant Nos.2 and 3 are sons of defendant Nos.1 and 4. She has pleaded that the suit schedule 'A' properties are joint family properties of plaintiff and defendants. She has pleaded that she was in joint possession and enjoyment of 'A' schedule properties along with defendant Nos.1 to 4; her husband died on 26.4.1983 and out of her lawful wedlock she has a daughter. It is also pleaded that out of joint family properties, the plaintiff has got 1/3rd share and after the demise of her husband, the plaintiff was taken care of by defendant No.1 and her daughter and she was working as a maid servant. It is stated in para-7 of the plaint that defendant No.1-her father-in-law was getting a rent of `750/- per month out of the joint family properties and she is entitled to share; she issued a legal notice to defendant No.1 calling upon him to pay a sum of `1,000/- per month for maintenance of the plaintiff and her child, but in vain. It is pleaded in para-8 of plaint that on 9.9.1987, the plaintiff issued a legal notice to defendant Nos.1 and 2 calling upon them to give her 9 legitimate share in the joint family properties, but in vain. Therefore, she filed a suit for partition and separate possession of her 1/3rd share in the suit 'A' and 'B' schedule properties.
6. Defendant No.1/father-in-law of the plaintiff entered appearance and filed written statement denying the averments of the plaint. He has admitted the relationship between him and the plaintiff. Defendant No.1 has emphatically stated that the suit schedule properties are not joint family properties. In para-9 of the written statement, he has stated that item No.1 of 'A' schedule property site was allotted in his favour by the BDA when he was working as Class IV servant in the Government Office and thereafter he constructed a building by raising loan and out of his salary savings. In para-11 of the written statement, it is pleaded that the plaintiff and her husband lived in a Village enjoying the ancestral properties given to him exclusively; the plaintiff-husband died in the village in 10 mysterious circumstance and the plaintiff came to Bangalore; she was permitted to reside in a portion of 'A' schedule premises; she created all complications with active co-operation of the 3 rd defendant and the plaintiff and 3rd defendant harassed him by lodging false complaints and dragging him to Criminal Court. In para-12 of the written statement he has specifically pleaded that the plaintiff does not have any right either in 'A' schedule property or any other property and prayed for dismissal of the Suit.
7. Defendant No.6, who is the first purchaser of item No.1 of 'A' schedule property, filed a written statement contending that the Suit is vexatious and prayed for dismissal of the same. It is also stated that having purchased item No.1 of 'A' schedule property, she made improvements by investing substantial sum and sold the same recently. The appellant, who is defendant No.7, also entered appearance and filed written statement denying 11 the averments of the Plaint, in so far as the claim made as against item No.1 of 'A' schedule property, and prayed for dismissal of the suit.
8. In view of the pleadings on record, the trial Court framed issue Nos.1 to 7; additional issues on 1.6.1998; and 1.2.2002 as under:
1. Whether the plaintiff proves that she and other defendants 1 to 4 constitute an undivided Hindu Joint Family ?
2. Whether she further proves that the suit 'A' schedule properties are the joint family properties of the said Hindu undivided joint family and they were acquired out of joint family funds ?
3. Whether she proves that suit 'B' schedule properties exist and belong to joint family ?12
4. Whether she proves that she is entitled to 1/3rd share as alleged ? If so, in which properties ?
5. Whether the 1st defendant proves that the plaintiff has not included all the properties ?
6. Whether the suit is not maintainable ?
7. To what reliefs, if any, the parties are entitled ?
Additional issues dated 1.6.1998:
1. Whether the 6th defendant proves that suit schedule item No.1 of 'A' schedule property is the self-acquired property of the first defendant ?
2. Whether the 6th defendant proves that she has purchased the property through a valid registered sale deed dated 25.10.1989 ?13
Additional issues dated 1.2.2002:
2(a) Whether the 7th defendant proves that after the death of her husband she has married the brother of her husband and living with him ?
(2)(b) Whether the 7th defendant further proves that it is a false suit brought by the plaintiff in connivance with the third defendant ?
9. In support of the case of the plaintiff, she got herself examined as P.W1 and no document was got marked. In rebuttal, defendant Nos.7 and 6 have got themselves examined as D.Ws.1 and 2, respectively, and got marked Exs.D1 to D15. The trial Court, on appreciation of oral and documentary evidence, answered issue No.1 in the affirmative; issue Nos.2 and 4 partly in the affirmative; issue Nos.3,5 and 6 and both the 14 additional issue dated 1.6.1998 in the negative; and two additional issues framed on 1.2.2002 were answered as they did not survive for consideration. The trial Court partly decreed the suit holding that the plaintiff and her child are entitled for 5/16th share in the item No.1 of 'A' schedule property. This is impugned in this Appeal.
10. In the light of the arguments addressed by the learned Counsel for the parties, the only point that arises for my consideration is:
Whether the Court below is
justified in decreeing the Suit for
partition and separate possession of
5/16th share in the item No.1 of 'A'
schedule property ?
11. My answer to the above point is in the negative for the following reasons:
15
At the very outset, it must be mentioned that except the self serving testimony of the plaintiff, there is not a scintilla of evidence on record to establish that item No.1 of 'A' schedule property was joint family property of plaintiff and defendant Nos.1 to 4. Merely because she was allowed to stay in the portion of the house in item No.1 of 'A' of suit schedule property is not a good ground to hold that she was entitled for partition in item No.1 of 'A' of suit schedule property. It is pertinent to mention that the plaintiff has not challenged the impugned judgment and decree in so far as dismissing the suit in respect of the relief sought for in respect of item Nos.2 and 3 of suit 'A' schedule property and 'B' schedule property. Defendant No.1 filed written statement. He has already sold item No.1 of 'A' schedule property to defendant No.6 and she in turn sold the same to defendant No.7. Defendant Nos.6 and 7 have taken much pain to establish that the property in question is self acquired property of defendant No.1. 16 They have produced the documents viz., Exs.D1 to D15 to prove that the house property is self acquired property of defendant No.1 as it was allotted to defendant No.1 when he was working as Class-IV Government servant; he had borrowed `9,100/- from the Karnataka Housing Board for the purpose of construction of house; out of his salary savings the loan was discharged and constructed the house; thereafter sold the property to defendant No.6, who in turn, after improvement, sold the same to defendant No.7. The plaintiff has utterly failed to establish that item No.1(a) of property is joint property. In this regard, it is useful to refer to the decision of the Apex Court reported in AIR 2003 SC 3800, supra. It will be useful to excerpt para-18, which reads as under:
"18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint 17 Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available."
The decision reported in AIR 2004 SC 1619 is in relation to the joint family business. In the decision reported in AIR 2007 SC 1808, it has been held that there was no presumption that the property owned by the members of the Joint Hindu Family could be a fortiori be deemed to be 18 of the same character and to prove such a status it has to be established by the propounder 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 a situation lay on the party, who so asserted it where the suit property had been purchased by the father from his income as an employee of the Railways and it was therefore his self-acquired property such a property falling to his sons by succession could not be said to be the property of the Joint Hindu Family.
12. In view of the above ratio laid down by the Apex Court and that the plaintiff utterly failed to establish that item No.1 of 'A' of schedule property was joint family property, the trial Court should have dismissed the Suit in toto, but erred in decreeing the Suit, in so far as item No.1 of 'A' schedule property. The impugned judgment and decree are not sustainable in the eye of law. Accordingly, 19 the point for consideration is answered in the negative.
13. In the result, Appeal is allowed the impugned judgment and decree dated 15.10.2005 on the file of I Addl. City Civil Judge at Bangalore City, are set aside. Consequently, the Suit is dismissed. No costs.
In view of disposal of the Appeal, Misc.Civil No.4863/2009 for temporary injunction does not survive for consideration and the same is accordingly disposed off.
Sd/-
Judge Bjs