Karnataka High Court
Kariyappa vs T K Chikkanna on 8 December, 2009
Bench: N.Kumar, C.R.Kumaraswamy
IN TH E HIGH COURT OI' KARNA'I.Y~\KA AT BANGALORE
DATEI) THIS THE 8"" DAY OF DEC EIMIBER, 2009
PRES KENT
TI--I1?) H0N'133L1<: MR.JUS'l'ICI£ N.KuMAR_:""" 5 ;_. A'
AN D
"rm: HONBLE MRJUSTICE .
REGULAR FIRST APPEAL No4.;:9'9»0F 200:3 " "
RFACROB No.3'a.Q}i= 2003 .
In RFA N0.399/2003'
Between:
Srl. Kariyappav
@ Byrappa f _ _ & _
S/0 Late Do'l"Ieg«.Qi>xrvdI:: ' j ._
@ Ken1pego\V'.daf,_ ;'iiii11i:¥u.V
Aged ab(;--u--12 .6.OM.ye"é£:;rs. . .
R/at Na,.354.J"'?':_.:» ' -
N0354. 77'-" C1*os':{§_'-~.,j M
Wiison Gardrm,' «
Bangalore ¥«--.56vO 027; V Appellant
-- .{By G . Papi Advocate)
L;«wm:1;;:1%
1. T..K '.' CI'1i'k ¥E:§2[EH21
S / I,a__ '£c'-. .D~"o1leg<) wd a
@ Kempsgowda
"since by- his was
« '13 :1 )'C h' k a m m 21
about 55 years
" W/0 Late Chikkanna
I[b)Chancirakaia
D/0 Late Chikkanna
Aged about 47 years
l{c)Nages11a
S/0 Late Chikkannex
Aged about 44 years
1(d)Kumar2:
S/0 Late Chikkarma
Aged about 40 years
Respondents 1(a) to E[d}'a_1fe
R/at No.56, 10"! Cross.
BTS Main Road. Wilson G{:r.§§1'e_g. Bangalore ~«-- 560 02,7'.
2. Dodéaiah S/0 Laie Dollegowda @ Kempegowdav Since by hi3'LjR S 2{a)H0nnarriV.r IV1av,-"'* 'w --. . :
W/O D_Q_§id'a.jé1'3i«;. _I*{indu " "
Aged é1b0tri;. yi¢a;~_g.__' 2[b;cmkg.&am; V l _ S/0 La1.ev.%D%oc£Cim'éh .--
Hindu, 33'=.year_s' _ " '2_(_c)T_; f';._ Chapi)'a« ..... <4 . S/0' Leif)': _DQ_ddaiah V ' I:11'm:1_uv.._ $38"-._\(E%a-lrs V 2(d'iT."D.By1" ?ApVfj$;1 S/Q Late iioddaiah 'V H1nd1u,1." l8 years x V' '2 (e)S'1nt. Shivamma " VJ / 0",'Ra m a i a 11 D/"oooddalah Fifiindu. 30 years 2
-Hindu. 37 years R/at Malekme Town.
KanakapL.1ra "I'a}uk.
Bangalore [)is:rie1'..
{f}Smt:. Manjula W/0 Doddegowda D/0 Doddaiah Hindu. 26 years Respondents 2(a) to 2(d) V and 2(1) are 1'/at Thattekere Vikiage, Maralavadi Hobli. ' Kakanapura Taluk, ' Bangalore District".
. Kempegowda S/0 Late Dol1egowd__a *~. f @ Kempegowda, 4' ' - ' Hindu. 55 years, _ .
R/at N0.373. Madiva"1"a;.."' Bangalore C31'iy., ." ' . Deleted . Smt. H0h'r1aemII1e£jV ' _ W/o Chilikai.'f1;r3(ei'p»1ja_, ' D/0 D'o;Iegowda..'f, ' I-Iindu, 6.2 yea"1"--s,°.
R/at BhernasanLi1'a:_V'i"I'Iage. H01'-.;jha.1li H0'E.:_li'.
K a.,ii'é._ Iggpp Ll_1'€i Ta 'lu----!{« ; ' . ' }3as--Vav'a._i'aj "e.
-..S /,0 Kemp .2: f_a.17:~' Hiridu. 4~8f--yAea1*s . Nagara} MS/0 Kepipaiazh »_Hm...du, 39 years _. £?G'CiCia1ah S;/0 Kempaiah Respondents 6 1.0 8 are R/at Malena Halli.
Maralavadi Hobli.
Kakanapura Taluk.
Bangalore District.
9. Snat. Kenlpamma W/o Kempaiah, Aged about 52 years.
R/ai l\/ialanahalli.
Maralavadi Hobli. ._ Kakanapura Taluk. V Bangalore Dis1iri.cE..
lO.SmL.Si(:ldamma W/o Parasurarna.
Aged about 47 years.
R/at Police Quarters?
Ananolarao Circle. ._ V Bangalore --«« 560 009. ";--.j_'=.VRespondents {Sri.A.V.GangacllfiIar'.appa:."Adv'ocai.e» for responC§en_is_s. 1 {Al V_ Respond_e_ni'slI'C'}.:{__ }[D_)' .ali;e1~i2V{{--_\.}7 to 2{F) are served ResponC;leni" *Nj'o_. 3 lselrvzed Respon*§len.t NoV.v4'V-_,~"udTe'iVeted' ' Respond-?:i1i.s 6- iov':_i~Q'=~.__n»o'i.-ice dispensed with) R_egulllafr" ''''' "First Appeal is filed under lVSe«:::{i--o_Vn CPC against. the judgment and Ciel-«-we-_.,~ 28.11.2002 passed in O.S. l No.3944{39/V.1.9s.5i'on {he file or the 1: Addl. City cm} ll=.__JVudge No.17). Bangalore, partly deereeing liherlsuii for partition and separate possession. Lit/..
In RFACROB No.38/2003 Between:
Dodclaiah S/0 Late Dollegowda @ Kempegowda Since by his LRS (a]I"«Ionnamn"1a W/0 Docidalah. Hindu Aged about 47 years [b)Chi1~:kaiah S/0 Late Doddat-ah Hindu. 33 yearsT R/8.1. NO.8385.
Gayathrinagar.
Near Ram Mandir, , } Bangalore -- 560 021. V ' {c)T.D.HuChap.pa.._V ._ S/0 Late I43C\,VdC':5éi;1'rn. 3 Hindu. 2:8 b td1T.D.Byr*app%:% S/0 L-;5ne_ I)Qc'u.1a_1ah ' Hinc1u"._l8_ ye.ar's' «.V {e)SmE. ShiV"am"n'1a'._ W/Cj'Ran'1ala=hA V V D/_"O"«:.D:Q'dd_aiah'"'~-. %%%%% '*H1r1du'*,"3O~yea1-S 2 V RV/~:~1_1. Ma.]k.Qfa_ Town.
' Ka_naI§_:1'~pLi r.;i~.V'I7~a1u k. E3ai3.ga10rE:._ 1")::iS1.riC.t'.. {F} Smut"; :1} {Ala QW/0 lloddegowda 13,'0_ Ddddaiall H.i_r1 'C111. 2 6 years Cfiross objectors 1(a). (C). [d] 8: {f} "Are 1'/at Thaiiekere Village. 1\/Iaralavadi Hobli.
Kakanapura Taluk.
Bangalore I)ist:rict.. ...Cross Objeetprs {By Smt. Naleena Logan. Advocate} And:
1. T.K.Chikkar1ria S/0 Late Doliegowda @ Kempegowda. Hindu.
Aged about 68 years.
R/at No.56. 10'" Cross,' .' BTS Main Road. -- ' Wilson Garden.
Bangalore - 560 027.
2. Sri. Kartyappa @ Byrappa '- _ V S/o Late D0lleg0wda""'~-_"
@ Kempeg0wdau.V:'Hirid Aged abou_I,'--..60§fyears«. _V R/at N0.354f.7"""'--C:'d--S:'s.., V' V. ' 310.354. '7".1* C'--r1'V§_)Vss. " A «-
Wilsqtj _ Bangalore a ' 3. Kenipeglo-wdav A » S/0 Late £}0l'legC»wd_a @ Kiempegovxfda. years'; ***** 'R,/aa No', 373. Madivala.
Vl3afigAa'l--.Qrlۤ4'"Cii:y.
4. 1i)'e:1"eiec1' ' ' I 'A D1' . Stat. riamma "'W/0 C'E:;ikkat.hayappa.
VA '..:"~D/C-~.D0lleg0wda @ Kempegowda. _ ' --H'i--r.1d=u. 62 years.
' R./at Bommasandra Village.
_,V_HV0r0halli Hobli.
Kanakapura Taluk.
s14- Kempegowda. He has left behind 3 daughters. who are not included in the suit". Therefore, he contended that the suit is bad for non--joinde_r oi' necessary and proper parties. as such it is_.'lvi.ab_leVV to be dismissed. He admitted that and defendants are the nl€'.Il'ibN€'.>i'S Hindu Family. He denied alle..gat:':'t:.ri tfhat Kartha of the family even f"i:L1~T_'.ll"ig at-he his father. He denied that he isi41'avv;--{ry literate. worldly wise and C1eVv.eif a Diploma holder in Publieyl-Iealth_._a_n.d t'l'i'eVld':a.i,y'lhe filed the statement. he l],x..v'ei.s"--. wyo'rkilr:g M/S. indian Telephoinlellllvlliidlustries_:{'i?.:}' Ltvas Assistant' Health and San"'i_tatio'n_lOl£"i7.i.t:'iesrib.Ilijle denied the allegation that the i'ali*nilly ow_t1e_d'~V~*ast: extent oi' valuable and _Vferti1efiylarieestra'-l.._yagricultural lands. yielding vast V.Vinlcornle :'a.nz:l"«..also 1TlOV-'3.bl€S like jewels. cattle. gA1*-ai2a['s.&1 b.r'i..(;R .Allg.i.l"11s, pumpset. etc. He denied that " the }.oir1tv.i'airi1ill'y' property was getting substantial _.44i'n,,eome'*an:.d joint family nucleus was surplus and the death of Dollegowda @ Kempegowda, l"»___"t:hel;same state of aE'i"luence has continued. He / .
_18i item No.6 of 'A' schedule. items 8. 9 and 12 of 'B' schedule are the sell' acquired p1'opert'ies of defendant. No.2 and he is in possession ___and enjoyment of the said properties as an ab's.o'l'«!.1_t=e owner. The plaiiitiff and other defei'1dant_si_hajv-e;*--no~..._j't. manner of right. title or intehrest .'i'n""=t:li€V°rs'a_id_. properties.
He has set out in det;2i_i'l-..jxwhdi:v.'zire Aui._t»e..r.IV1s3oi'h 'C' schedule which to defendant No.1. it it A it In the Il1OAI'1{.l1 dCle'Vf'e'11dant No.1. joined :"ser'vi.e'e _"Rpt:ral. "Education Society. Kai1akap'ui"a.. aI'i'.e.r:Vhi"$;.4V.--matriculation and he worked 1953. on a consolidated
---------- Wper month. Thereafter he "--..:aor.'k'ed_ lineman (clerk) in the l?ilet:tr'ieitjz'l)f_e;j21ri.n1ei1t. at Sarjapura. Anekai Taluk 'f1f0n1dJt1l1y l"954 to May 1955. on a consolidated '.s}.:=.iary._oi"'125.40/+. During this period he applied ._'.l'.or":gre111t of 8 acres oi' land in survey No.72 of "-.'l"h'é£tt'.ekeI'e Village and 8 acres oi' land was granted V. egg"
during that period. towards his salary including allowance. In the month of May. 1958, he was i:ransi'erred io Town Municipal Council. Anelgal. By the time he could report on duty. the Tr_a'n:'s«f_e~r_ Order was cancelled and he was posted _1=o_ Taluk. In the year l958. tliewbDisi.ri'e1=::'_Board_s..v which were there in Kariiataka,:_"we're*,a'bo'l1shied';:1;_' Then defendant No.1 Board. Channapatana and from November. 1958 to No.i also Worked inAV'Ba1i1ga_lV_o:rle from April. 1962 t.q"J?;:;r§e. 11.965? O1'i1_26.03('V1.9-62,_"d_e'fe1i1d"anL No.1 got married. After his marriagel."iAh»eV'"was living with his wife in V his fE'l43':L'1'1'V€~If~il1wlV}';i--I.l_\V./V;V$' fariiily up to May 197'}. and his lefaiiherwi1'i'{lawa.was maintaining the entire family of then. From June 1965 upito ' the end oi' A.iig;ust E966. defendant No.1 worked in "":I"V'A"«_i5i"imar3;=...i5Iealih Centre. Kaggalipura, Bangalore S0.,u't.h.'.n~"Taluk. }f)uring {his period. his wife and '"wc:_h_i_ldre1i1 were in the house of his f€£l.h€I'~}1'1~1ELVV. V Si*i.K.N.Gopala Krishna and paid a stiin of Rs.2,000/~ as advance and the laiidiord got constructed a shop and handed over the possession oi" the same to Smt.Chikkar1'1ma on a monthly rent of Rs.-40/--. After taking out of the financial assistance given by Sri.Kempaiah. she instaiied the. shop premises and she si.art'ed :"I'--'.i~:;l'1l1"'f.1'1g agency in the name of she was doing milk agent of the Bangalore llulpto the end of April getting an average; in_eoniej'_of".Rs';._l}-Q_C--OJ'-- per mont.h from the milk Ven'd_ing_; "bus'iAnes"s_l"dtiring the said period. That ;a:p_art,a V-s_h'e'1 xnlrasl also getting substantial ixnCi0xITieE*Kfrol"fl1' the lllll tloui' mill and huiier, etc. t'nsl't.ai'ie t he s ho p. On 18. 1. 0. 19 73, Smtl.».De\Ianit1j-.--a mother of Chikkamma entered into agr"eeli'nent. of sale with K.Gopalakrishnai to a portion of the property bearing site Corporation No.352/3 [old]. New u;'No.31/O1, ineiudirig the shop that was leased to V"
_g6- She has let out the outhouse to one Sri.l\d.D.l\/lathew @ Papanna. on 21 monthly rent of Rs.200/- under an agreemelli of lease dat"ed 01.07.1975. by receiving an advance of Chikkamnta Continued to run t.he flour"~mi;l:l"»2tn<:iX huller as before till 10.07.198.67"on-._1.o<.of7}_;9s€s.tn':
she stopped the running o!'V4'.the_. unavoidable eircum stances she 's.eI'1v.t on that date to the VK3.H.B..
East Area, stop the supply of poutelfg mill with immediate ;}§§.~m authorities of the K.Ei;B. _d_ieeov11.h:e.C1'efiil"-powhe1' supply. At' art"ee4eil1']VyVla.ge._ 'r',)v1'T:..'elcil or 15. the plaintifl' ran .._away..«.3-jfro"m. t.he"~--VhV_o1.1&se and he was working in A"gr_I1»2'l:i'ta_Vry.,:h«ohte:l"~--.at; Malavally from the year 1956 to 1Q62".-_xThe_1=ea*lft'er. he worked a casual labourer in t,he" E!.Ve.cr'tflicity Department from the year l962 ~ll.9_.65V.V"' He also worked for one year in the _Wo.ol"en: Society. He was not at all eowoperating the members of the joint. family either in X/,.
We ":mpe"i11b_ers" oi" his family. But even after expiry of 6 \/W. agriC.u1i.uraI operation or in any other joim family work.
On 05.06.1972. t.he father of the piaint.iff and this defendant performed the ii'1arriage of,p""t.he i3iaintifi'. After his marriage. he was Iivini-{ '4i1i"'-'[he"-« house of one J.K.Siddaiah and M Jalakariteswara shim upto th:e""'efid 1984. In the month of approached this dei'enda11Vt--,§ihVd re.f'qL__ie'si,e'-d to permit him to oecupysthe VA(.T"..~'.€LA.'i'V1'T)1'j'~S_A€ poi'tvi.or1/Eof the premises of item property, which \}\:'VE"lS"1-E|J}tg€I1V"::i:jU'T Vi-emporé1'i'y" period of 6 months and assured .£.h'2s'-,dte,I;e:id:a1iii. and his Wife that he would va".;a"::e the~jsar1i._e"'«Wii'hin that period after making hee"essa.r_y-.a'rré;~hgen1ents. This defendant ~-.Ep_1nd pe1'iiii*i.1..e_d.~the p1ai11i.iI'I' to occupy the Kouthouse.i'or'~.a period of 6 rnonihs without paying armyi..i'reii'itfizihdig'-.1"='i'1ereafter to vacate the same. In J3r1'L1_.eidryV_i'9i'-§5V'. the plaintiff shifted his family '$0 the O'L1..HiTOLlvS€ and st.3.rted liviiig there with the H28, months. he did not vacate the house. In the meanwhile, the father of the plaintiff and this defendant passed away on 12.08.1984. Again.___1.he plaintiff assured this cfefendant and his he would vacate the cmthouse witl1i11__--'..a period. Therefore. he was pern1iA1;Vt.»ed to"e'o"n'ti.11"L1e',to~e.v occupy. After the death of t'he~.i'r of opinion arouse beiween5ih._e ;.)2ir£_ilVels..V V l l . In paragraph No:_..?.2 of___ilhe_'wvrittlelnl_§.lAaVi!emeI1t, he has set out in dei:ai.l'thll=3 1Lii;r:ol1§5'eLi'*€:A:lile:s'acquired by Kemp-anna._ dei'e.r1dani.,-'No.13 out of his own fu nds. was adr11i.tte:'d'. of the parties to the admiited. But the p1'ope;-fliers were__VnVoi partitioned in respect of item V"V.VNo;2_xlof:' eA';,}1e'«..._property. Police eomplaints were EAo"dg*l°K_d.llbe'i.«v§lee'Vn.*:"i',he parties. 'I'herei'ore._ defendant No.]"'««wan't'e-dhthe plaintiffs suit. to be dismissed in far as"self~aequisii.ion of himself and his wife are included in the plaint schedule is l""lC.,C.'_'.7<§C€rr1ed.
A39- been effected. The daughters were duly served. did not enter a;,_)pea1rar1ce and file written statement.
7. Or: the aforesaid pleadings. the framed the following issues:
1. Whether the plaini,iI'f:fj»rlobir'e:-3 and defendants to 4b'l'.arw3lA'ltl1e'--_on,ly. "
heirs of Dollegowdaffl
2. Does he furteher that<..eve:lr3 during life .o.i"~-.__'».VI:§ollegowda defendant No. 1 Joint Family?' 3;; eds vl(.'V h i m m 0 Va b 1 e 8:
a bi 2 'r es (1 e S C rib e d i n St-:]ieid_ule:~_.zl"--\i,l C are joint. family prol;§e»rtie:~§ 'or? acquired from the ;_Ar1:1eir1A1ber"s"" **** "oi" the joint . family ,_p*rr04p_le'riy'?
Court. fee paid is proper'?
5".VVI_?3 plaintiff erztitled to 1/5"' share in all the suit schedule properiies? or in which of the suit schedule properties?
w34e schedule properties and other joint family properties which was reduced into writing on 30.9.1985 which is signed by all the parties and the present suit for partition is no_1'"~.i"
maintainable'?
8. The plaintiff in order to S1jbS[ari"!__i:ai:C'~.u%}1.i,Snot claim has examined himseifas[;E3W"1';&_ other 2 witnesses by name Sh.ivar'1a G'o_w"dva'~ Beere Gowda as PWs.2 and '46 documents which are~._mar'Redvi.:'as'"*.E',xs.P1" to P46. On behalf Of the No.1.
D.K.Chivk'i<"ar1rija "eXamiri'e'd""as DWI. He also examined anoit.hera"'iVi"t.néi's,s_.Sri.J.Iniayan as E3x.DW2 and produoed 14'-}V1'V._do,eu~~fiier1is which are marked as DI41'."~{--}--ri'e of the legal representatives of'.=d'e"fer1-diarrt_i'=lo.2. Chikkaiah was examined as DW3»"'ar'1d_«.'hhe_jglhas produced 32 documents which re n1a1~'ke;.d as E3xs.D142 to £3173. .. Trial Court on appreciation of the '' :<1fore--e--aid orai and documentary evidence on reeord R'/..
-37, l0. Sr1.Papireddy. learned Counsel appearing for the appellant assailirig t.hejudgmei1t and decree of the Trial Court contended that the Trial Court. eomn1tt-led a serious error in not adjtidioati_n.g_!'-.t_:h,§. dispute with i'€fCI'€i"iC€ to item No.2 of property on the ground that.
whose name. the property of defendant No.1 was: .4_notlV"._in'ade Secondly. he contended t.he Trial Court; that 'Ahluselhedule property is a defendant No.1 is not s;~.ap"porte€l by-Variy."e:iz"id__eyf1Ce on record. When the refloorded a categorical find that'-.there'eVXis*t.s"a__:joei«n1.. family property, there exists avncesltraiwp..rop.erty and out of the income of lithe properties all the family properties l'are=la'eqi:v.i_rieVdx,_lVthen to hold that. merely because item No.1' schedule property stands in the y "name lo.l'id..el;ei1dant No.1 by way of an allotment by Housing Board. items l and 2 of 'A' property and items 1 and 4 of 'B' "'«.sehedtiIe property are sell'-acqtiisition by \/ -38- defendant No.1 is erroneous. Similarly. he contends. item No.1 of 'B' schedule property was allotted to defendant No.1 in the year E953. when he had no income at all. and the eviderioe"-.._'o*::_1 record shows by disposing of one of the the consideration was paid for the s_a'id--..:g.ra'ntgin__ favour of defendant No.1 and=__ finding requires to be set,as__.ide.l"._l;l"e respect of the item No.4 of was paid on 3 occasio_r:~s rcioinsidelrlatlvion for the said purchase family nucleus and n1'e'r.e.'1'y stood in the rcxarne in the absence of any evidence plpaciedll"olri~»,is'eco1*d to show that the income for tlhell puhi-'chv.as'e of the suit properties has itl'i7-lowniliro-.r;c1 vvdefendant No.1. the Trial Court. was in "in"i1'old"ing--.it to be a self acquired property of dellenlltlant"l§J'i_o.;rl1. Therefore. he submits that the }VudgrI1e.nlt'«:_aVnd decree oi" Trial Court. refusing the I g.jra11t."«--share in these 4 items is to be set aside and plaintiff should be granted share in all the "".aloHresaid 4 items. NZ s39.
11. Per contra. the learned counsel appearing For the defendant No.1 supported the impugned judgment and decree and contended that there is absolutely no iota of evidence placed on record'-.._'b*y the plaintiff or the other defendants to was the income from ancestral p1'opert'y'v--a:n.dl"'j.o'in't,o_ 4 family income has flown for ac=.gui:siit.ivoun, oifl items. It is settled law,,'i.Q the.V_labse:1vcle_:oi such evidence. when there llrlo'i:i.li_lEl:3itlioldi for a member of joint in his own name and when!" merely because he w;as'";a_-.'ntelniber of family, there is no _lt:l1l_\aE it" is a joint. family propertytv On thve"fif;o_n't--Ifa'ry~"the presumption is it is the pr.Qpe1't'yV_lof_:'telie. l}")..e1'so11 in whose name it ;_.~._:Ufll€SSH'ffl'l'2{l'.l presumption is rebutted by telavdillng evidence before the Court. showilrig that {lie consideration has flown from the joint, funds. '.I.'herefore. he contends. the I recorded by the Trial Court in this regard legally valid and based on legal evidence and do Knot call for any ini,ert"e1'ence. -41- defendant: No.1 calls for any ir11erfe1'encte'?
{3} Whether the Trial Couri was justified in not. going into and ' ad_jL1dicat.e the question \mrhet1}i.€?_i"»V.'V"'<' second item of 'A' S(,'.1'l€.'~._4'111:;'l1€,_VV"' 3 property is a joint i"an"1Vibly' pro"p€:r'/\\&..,,. or -a seif--acquisiExa:on Chikkamma. wife b"~--_d.efen'd_a'n.i«. iv 3 No.1'?
(4) In Vi€W oi',.--.the Succession {AII1é5,Wv'Ci'f'x?q¢'i1€U, Act.
2005, w}:1et1'i_€ji*' ..§i;;«;_»_' {sina~ajesIlj;ai~-ioued "-pariiieis . oarti cuiar to the d_a~'LI"gh '£Qc§:.1f';'S " ifs, in --._aolL: 0 rd a r; C e wi i h
14. Poi'm_§:o.g<1;'«j_~,_"~_, Item iV'oif'V-111A'c3_ scheduie property is land 'V"boarviin'g;_s1ur_vey No'~;--~72 nioasuflrig 8 acres situated Kanakapura Hobii. Bangalore Disiriot. i"i.f'j_was granted in ihe name of defendant. NHo.1 ¢nVM'29V.oo.1953 as per £321,983 for an up set' 'pji~i:c.ei'~«--p:" R3482/--. The grant is dated 29.oo.:953 the gram" Certificate was issued on M48"
In so far as item 4 of the schedule property is concerned. which is a garden land measuring 2 acres 33 guntas situated in survey No.36. is situated in Thattekere \4'.i..lVVl'aC1g€_. Kakanapura Taltlk. Bangalore l)istric:t._..§'_M'"l3_if'=:__u5S.___"'_ submitted that it was a dry land on-~t;he:'~..d'a.te«AofL:it acquisition and later it was .l land. The said acquisitions' xvagrlloi.' on 30.04.1973. as per pavrioiolerty belongs to one Das;e'goxv(:ila".fi_'VA said property was taken on Ex.D93 by paying a 1.500/M on 18.03. 1,'97i'.' petying Rs.5.000/-- in ir1stallmxer1"ti.s.Va. s'e.'VC;4onvdV'l'1n4oV.:t.gage was created. It is laier theVV"p__ropeVrt_y21was_." purchased for a sum of Rs.14;;CrOQ/M»byjdpaying the balance consideration, .aftgfvs..g{'dj,usti*i.;1g thelllniortgeage amount. Thereafter, a .Vw'eV|Vl'"»has"~ib~r:é'n_ dug. coconut trees have been become garden land. It is the Caseflof,__"dei7:enda1:1t No.1 that this property was all-'««___a-cquirelciei'out of the salary income. In that c_on_né"e.i:ion, he has given evidence about the salary 'V. In fact, in the impugned judgment at paragraph 30 ii is held as under:
"It. is for the said Smt. Chikkamma and Chikkarnma alone to plead and prove and nvotlylior defendant No.1 to contend that it is acquisition. Defendant No.1 has no to plead and prove this observed that. it is not the opt to array said Smt. party to the suit in:".as nitulchlj?ts--_._afoi'lenicntioned reasonings would bona fide efforts made pi-.i;t.he At. this juncture t;h_Ails'l5C()u';'Vts -i4s"~h_ouz_';d to observe that the defer1da1"A1't'uNo.l' hii?hise4l%f:l'o«Li"ght not to have opposed the said 4IlufA_ilN'0.l'5l'-where though the plai1'1t:iff .si.x1&c"e..f:ely":aiigeniptlelldlllto bring said Smt. Chikkanima hon"ifselCoif'd_Ll2isAis.joli;.oposed defendant. No.11. Had the dei'endan.'i.llN--j;';l1 conceded for such an attempt, on partlof the plaint.if'i'. certainly this suit could been meaningI'ully and completely ll".___"'é1dj;ud1cated inclusive of these two suit properties covered by additional issue No.5 framed on V"
M57- representative. Under these circumstances. the evidence adduced in the oiher case where Chikkamma had the fuil opporiuniiy in meet the case of the piainiiff couid be Eooked into a1i1.di'-.f;'};.e said issue can be decided one way or ii1e_fci'i1.er.___i';1-__'_ these proceedings. We are aiiaid _f.h--3..i'f~.sL'i~ci1. course would be contrary the}sei.:i.1.'e'd">1'ega:E:c.A principles. It is not pee:r4iniss'ib!'1'e evidence in another case e\Vfi~d.eViic':e Wi.his case and decide the issiie iihiisiiiciéise. in fact those legai evidence recorded in i.iie"..5}gw.--id =,caSe..'ai*e"'1'i_'e.i.V___e3/en marked in this case ihe decree passed in O.S.N0.i355/V19V87A:,:'._i'h--e:iA"j3.1~ainiiif has preferred an appeal is tagged on with this 'v"a.ppev-§iI':; M.ereE3"rV"'b'ecause both the appeais are dpesitedi _ this Court, it is wholiy 111115e.1;'i*z1iss.i'bi_e}: for this Court to 100k into the _ eviderice 'ig_r1 'two independent" suits. evidence in _ Vcase and decide the issues on that basis. At '"'~.___"'i"he§same time v_vhen the app1ie:;1i:'01'1 made by the '4"vpisHini.ii'f 1.0 impiead Chikkanima has been i/ -58- dismissed by like {rial Court. Enough the said order has not been challenged by preferring 21 revision at that stage, it is settled law that once the judgement goes against. the party even the interlocutory orders are not. (?1'1€1ll(?i"}§_>5,E3.-4%."li'}V. :'l:~h'<:':"._.V.'.. appeal to be filed they could very we--i'l'"=cl1iail'l'eI1-ge the orders passed on il1_ose~_.:? in1,e.rl'ocuiory;TA' applications. Section 105?
on the party to challenge on interlocutory appiiCaliu_ii;y.1lS on merits. It was ground is set out ir1;' L'3'],§! afi_p€a'l"x1fi'€:ITi'i):v.._...:lI1 a suit for partition. parties are not impieacied 10(2) of the CPC.
the Couri. haéI'sV_VVam.ple'v.ooyver to direct. impleadrnent lo-!'_su-?:.F1 iji-ioriu;in1pie'2:i'(i'ed parties. Under Section 105 i;1'1e"CPC..V"'Cy:oL{ri has got the power to set aside theiroirdersiiipeilssed on interlocutory applicaiiioris _ 'é;hoL1gh..il'l«ey are moi, challenged in revision. when a§poel9£i..s are filed against the final judgment.
"{iltVi§mat.eiy, these are procedural matters and it is '"=seii.]ed law that procedure is hand made ofjusiice. \/
-5}-
After the alloimerli: a sum of Rs.4».660.15 was payable within 30 days from the daie of allotment. RS.4.460.I5 was the initial deposit" and azioiher Rs.2.IOO/M was payable within one Rs.2,360.15 was payable in 12 installments after taking property. The evidence the first defendant. married-.___i.n on 28.8.1966 he resigned llffyervioe and joined IT]. Goirernxnerli service initially he was :;i'~iJ6'lll,1'j»§vb.1l€"aripura for about 2 years" \Alika's"vrl.riawing a salary of lhflmllillle. of transfer from Shikariplura he a salary of Rs. 125/- per month.i'--.._VFvron"i_ S.h'il2.aripura he was transferred __to in 1958. Before he could join at 1ransE'errecl to i\/Iagadi Taluk. He w*ork{ed' ..fo~zg'Vl:"'yVe'ar 9 months and from Magadi he was._oosi.ve.(lli'l:i.ol' Channapaina where he worked till April and from {here he was transferred to lB_'ar1gla-i&o1'e City Corporation in May 1962 where he
-jwoiikelld for three years. It is his Case that. he was '/, hardly spending Rs.4»O/-- towards his personal expenses and the rest oi' the amouht was his savings. Absolutely no mal.ei'ial is placed on record to show where the so called s£1ving's..Vlw_a~s_ kept and how he was able t.o accumulatem"ri'e_'a----F_l'3*-'.___3'._ Rs.l3.000/-- which is the considerati--on.--..{j;.ai'd: «fo1*_:l purchase of the house. H..oAwe'\--re'r.,.l"---la'b'wouvt:..l Rs.2.O0O/A and odd out of the was paid by 12 monthly said payment was really from the salary eitheij records should have be;.ey.'n E.he:;re7 e'vAi'd--ie'n.c__iHng the same. Except. aprodu"c.li_ng the-44al'_o1'es--aid document. showing the allotment. .l'21V.OL11'. sale deed in his favour, tax 15"ai_d'r.e'ce'i.;3t"in his favour. no document. l.il3~.pF"Q(':1'U5..C.€Cl'"~ to sho"W"fron1 where the consideration t'or"'tl1"e..s'ale». actually come. At the same time plaintiff lialsialso not produced evidence to show how Rs». 1.3.000/» was accumulated out of the joint income. But. the first defendant has ll"~v.___"'f)ro'duced documents evidencing the salary which hihhellliias drawn from ITI Limited. The documents t/ produced by the defendant do not pertain to the relevant period for which the consideration was paid for acqtlirmg, item No.1 01' 'A' schedule property. It was acquired on 3O.9.1965V.'l.:a'11.d t ll e re a lie r. Th e fi rs t. d e {e n d a I1 t. 4' ll employment with the ITI on date he was drawing a saiary of all benefits. The >.doculian.Aelt1_t's it produced before the Coui"'t«i:.:2;.:'e lto'::_:'s;1:":=:
subsequent to 198OVa~n_r':1 "date of retirement. As pejl-Ml in Ex.D23--the le.t,t.g;:rv..Oi" attotipee.;1At~.;"_:p;iythent. had to be made priorl't'ofj,t.hel.¢date.._'of_ his appointment. in 1T1 itself and.=the1fefore';--~._:lAt"hose documents and the income_ n1eh'ti_oned t.he7rei11 do not establish the "'¢ase--'[__6r at/?c1el~i. A1'i1'stlllCi'e"i'enda1it. that the consideration ion acqiciv.i1_fing__lthis property has flown from his salary'. H'l"l'L"¢\'}E'EV€I'. we feel though voluminous __ley*idenc.ell'i_svproduced by both the parties. both of t_heVrt1d"--?nave not applied their mind. kept the dates '~li'1r]§mii1d while leading evidence. Probabiy that is Wtlie reason why there is no clinching evidence x/ -55- triai Court wouid be in at better position to appreciate and record a firiding. Hence. the finding of the trial Court even in respect of i_t.en'1 No.1 of the 'A' schedule is set. aside.
17. Point.N0.§-4} The material on record discloses.Vt_ti'a.:t_j':,t.:}v1§~,_ were five ancestral of the income from the co§.p_aree'13.Aa.r_xt pro,pA€'i'V'ty' V the joint" labour some n1o'i§:"*;a1~og§e;-.:'_1eAsj".:
acquired. The suit 1f.:*i'é'd--'[;§.:{V"%'=.3é_12tt'9s'5'. On the date of the suit. the-1'daitt'g!sit.e:.r§,--sAAt,;,rVe1j_e not made parties.,;V taken by the first defendar"1_t'. 'in' _th~te~..dwfr_di"tt¥e'1j hstatement. daughters were impleddded ap.a'r,ti"es. As one of the daughter __was rife more, her' L.E<:s were impleaded as parties. A'~._'l"hen.,HinvAciVu,'S~uecession Act was amended by the Legivs!a':t,3.'i*Vevi' efo;1.vt'er1'ing on daughters the right of eo--pa1'eer)ei'i's_..'i However. such a right was not "»,_t:on{'e1'1'edA'1.on daughters who were married on the d_'atei"«--.tot'" the amendment and in respect. of ._si&p1'eVp"ei'Aties which are the subject matter of L/,,