Karnataka High Court
B Suresh S/O C B Bheemasena vs C B Bheemasena on 6 January, 2023
Author: V. Srishananda
Bench: V. Srishananda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
R.F.A.NO.84/2004(PAR)
BETWEEN
1. B SURESH
S/O C B BHEEMASENA
SINCE DECEASED BY LRS.,
1(a) SMT.VIJAYAKUMARI
W/O LATE B.SURESH
AGED ABOUT 39 YEARS
R/AT NO.46/2, 80 FEET ROAD,
RAJAJINAGAR,
BANGALORE 10
2. B MAHESH
S/O C B BEEMASENA
AGED ABOUT 31 YEARS,
BOTH ARE RESIDING AT
NO.46/2, 80 FT., ROAD,
RAJAJINAGAR,
BANGALORE - 10
...APPELLANTS
(BY SRI T SESHAGIRI RAO, ADVOCATE)
AND
1. C B BHEEMASENA
S/O BEERA LINGAIAH
2
MAJOR,
R/AT SOLUR HOBLI,
MAGADI TQ.,
BANGALORE DISTRICT.
2. MUNITHIMMAKKA @ THIMMAKKA
W/O MUNIYAPPA
AGED ABOUT 52 YEARS,
R/AT NO.61, I BLOCK,
KATHARARANAHYALLI,
RAJAJINAGAR,
BANGALORE -10
...RESPONDENTS
(BY SRI ANANDA RAJU, ADVOCATE FOR R1;
SRI ASHOK B. PATIL, ADVOCATE FOR R2)
THIS RFA IS FILED UNDER ORDER 41 R1 OF CPC
R/W S 96 OF CPC AGAINST THE JUDGMENT AND DECREE
DATED : 26.8.2003 PASSED IN O.S.NO.7319/1994 ON THE
FILE OF THE XX ADDL.CITY CIVIL JUDGE, BANGALORE
CITY (CCH.NO.32), PARTLY DECREEING THE SUIT FOR
PARTITION & SEPERATE POSSESSION AND MESNE
PROFITS.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 20.10.2022, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
JUDGMENT
1. The present appeal is filed by the plaintiffs challenging the judgment and decree passed in O.S.No.7319/1994 dated 26.08.2003 on the file of XX Additional City Civil Judge, Bengaluru in so far as 3 dismissing the suit in respect of item No.3 of the suit property.
2. Parties are referred to as plaintiffs and defendants as per their original ranking before the Trial Court.
3. Brief facts are necessary for disposal of the appeal are as under:
Suit came to be filed by the plaintiffs/appellants seeking 1/3rd share each in respect of the following property (hereinafter referred to as suit property).
Schedule (Item No. 1) Land bearing survey numbers Old No. 76, New No. 124, measuring 2-00 acres, situated at Muppenahalli, Solur Hobli, Magadi Taluk, bounded on the East by : Mallappa's property West by : Kempanna's land and Remesha's property North by : Shivanna's property and 4 South by : Gangamma's and Kempana's property.
(Item No. 2) House property bearing kaneshkumari new No.13, Old No. 5, situated at Ranganapalya, (Chikkayannapalya), Solur Hobli, Magadi Taluk, measuring East to West 29' and North to South 15', and bounded :
East by : B.C.D. Koppalu West by : Private Property North by : Road and South by : Private property (Item No. 3) House property, situated at Corporation 2nd Division, Bangalore, West of Chord Road, 1st Stage, 1st Phase, site formed in Sy.No.141/3 and 141/4 of Kathamaranahalli Grama, New BDA No. 218, measuring East to West (25.0 + 35.0)/2 North to South (42 + 36) /2 with building and bounded on :
East by : H.M. Marappa's site 5 West by : Nanjamma's house North by : Thammaiah's property and South by : 40 feet road.
4. Plaint averments further reveal that plaintiffs are the brothers and first defendant is their father. All of them constitute a Hindu undivided joint family and are governed by Mitakshara school of Hindu Law and first defendant acted as kartha of the joint family. Suit property is inherited by the first defendant in a panchayat parikath between first defendant and his brothers. It is further contended that the plaintiffs are also being the members of joint family are entitled for the share of 1/3rd each in the suit property and suit property is being enjoyed in common. When the matter stood thus, first defendant sold land being Sy.No.8/8 under registered sale deed dated 22.09.1975 to one Chikkaiah and land in Sy.No.65/8 through a registered sale deed dated 05.11.1975 to Gangaiah. Out of the sale proceeds thereof, he purchased a site bearing No.47 in Rajajinagar, 6 Bengaluru from Smt. Shakunthalamma through a registered sale deed dated 15.11.1975, measuring 11x16 feet for a valuable consideration of Rs.5000/- and another property measuring 16x115 feet which is also part of property bearing No.47 from Narayanamma through a registered sale deed dated 16.12.1977 for a consideration of Rs.2000/- and both are situated at Siddaramanadinne, Rajajinagar 4th Block, 51st cross, Bengaluru - 10. First defendant purchased suit property out of the joint family funds and thus, all the suit properties became the joint family property. Suit item No.3 was sold to Muthyala Naidu for a valuable consideration of Rs.16,000/- under a registered sale deed dated 07.12.1977.
5. Specific contention of the plaintiffs is that in the last week of November 1994 when plaintiffs demanded share in the suit property first defendant refused to grant the share. Not only he refused to grant the share, but he has executed an agreement of sale on 15.01.1982 in 7 favour of the second defendant and therefore suit came to be filed.
6. On receipt of suit summons, first defendant appeared before the Court, but did not choose to file any written statement. Second defendant appeared before the Court and filed a detail written statement contending that plaintiffs have colluded with the first defendant and filed a false suit in order to defeat the benefits of the decree passed in O.S.No.10315/1982.
7. It is further contended that decreeing O.S.No.10315/1982 was challenged before this Court in RFA NO.273/1985 and the same was dismissed and decree passed in O.S.No.10315/1982 was confirmed. The second defendant also contended that plaintiffs being the sons of first defendant were very much aware of the decree passed in O.S.No.10315/1982 and as an after thought in order to defeat the rights of the second defendant which is the subject matter in respect of agreement to sell, the present suit is filed.
8
8. The details as to the proceedings in the suit is also furnished in written statement and the execution of the sale deed is also pleaded. It is further contended that first defendant having failed in the suit filed by the second defendant, instigated the plaintiffs to file the present suit on false grounds and sought for dismissal of the suit.
9. Based on the rival contentions, the Trial Court raised the following issues:
(1) Whether the plaintiffs prove that they and the first defendant constitute un-divided Hindu Joint Family?
(2) Do they further prove that suit properties are joint family properties?
(3) Whether 2nd defendant proves that suit item No.3 was the self acquired property of 1st defendant?
(4) Whether the plaintiffs prove that Sale Agreement dated 15.1.1982 entered into between 1st defendant and the 2nd defendant was not for legal necessity and not for the benefit of the joint family?9
(5) Whether the plaintiffs have 1/3rd share each in the suit properties?
(6) Are they entitled for the reliefs of partition, separate possession and mesne profits?
(7) What decree or order?"
10. In order to prove the case of the plaintiffs, first plaintiff Suresh got examined himself as P.W.1 and relied on 12 documents which were exhibited and marked as Exs.P.1 to P.12. Second defendant Munithimmakka herself examined as D.W.1 and relied on 16 documents which were exhibited and marked as Exs.D.1 to D.16.
11. On conclusion of the recording of evidence, the learned Judge of the Trial Court heard the parties and on cumulative consideration of the oral and documentary evidence, decreed the suit of the plaintiffs in respect of item Nos.1 and 2 of the plaint schedule property, but dismissed the suit of the plaintiffs with regard to the item No.3 of the suit property.
10
12. Being aggrieved by the same, plaintiffs are in appeal before this Court in respect of dismissal of the suit in so far as item No.3 of the suit properties on the following grounds:
"The Court Below erred in holding that the Item No.3 of the Plaint Schedule Property was not a Joint Family Property. It is submitted the Plaintiff's have produced voluminous material evidence to show that Item No.3 of the plaint Schedule Property was acquired by the Joint Family i.e., out of Joint Family Nucleus in the name of Respondent No.1 who was the Member as well as the kharta of the Undivided Joint Family.
It is submitted, it was the Defendant No.2 who has taken a contention that the Item No.3 of the Plaint Schedule Property was the Self-acquired Property of Defendant No.1, accordingly, an Issue i.e., Issue No.3 was framed and ultimately answered in the affirmative on the basis of the finding recorded on Issue No.2.
The Court below while answering Issue No.2 did not record a finding that Item No 3 of the Plaint Schedule Property was the self acquired Property of Defendant No.1 who acquired the same out of his 11 personal earning. In the absence of clear finding on Issue No.3, the Court below ought to have held this Issue in the negative. However, in Para No.16 on Page No.32 and 33 of the Judgment of the court below has observed that the plaintiffs have failed to prove Item No.3 of the Plaint Schedule Properties is the Joint Family Property.
It is submitted absolutely there was no material on record to show that the Joint Family was severed prior to filing of the suit by way of partition. In the absence of the same the presumption requires to be drawn that the Plaintiffs and Defendant NO.1 were the Members of the joint Family.
Having held so., the Court below committed an error in further holding that Item No.3 of the Plaint Schedule Property was the separate property of Defendant No.1 and in order to hold so., absolutely was no materials were placed by the Defendant No.2 since the burden of proving the said aspect was on the Defendant No.2 only. The court below committed an error in holding that the Item No.3 of the Plaint Schedule Property was the self acquired property of Defendant No.1 Though the Defendant No.2 did not discharge her burden in proving that Item no.3 was the Separate Property 12 of Defendant No.1 the Court below answered the Issue No.3 in the affirmative.
The court below held Issue No.3 in the affirmative by holding that finding on this Issue was dependent on finding on Issue No.2 solely on the basis of the finding recorded on ISSUE NO.2. The Learned Judge while answering Issue No.2, nowhere held that Item No.3 was the personal Property of Defendant No.1. However, in Para No.16 on Page 32 the Learned Judge has observed that the Plaintiffs did not prove that Item No.3 was an Ancestral Joint Family Property. It is submitted the Defendant No.1 got certain properties in a Family Partition effected between himself and his brother on 21-5-1973 subsequent to the same he sold 2 Properties allotted to his share ie., one on 22-9-1975 and another on 5-11-1975. Out of the Sale Proceeds of those two properties Defendant no.1 purchased Property bearing Plot No.47 situated at Siddaramana Dinne under 2 Registered Sale Deeds dated 15-11-1975 and 16-12 1977 which are marked as Exhibits P4 and P5 respectively and which were sold in favour of one Muthyalanaidu under a Registered Sale Deed dated 17-12-1977 as per Ex.6 .13
Out of the Sale Proceeds of those 2 House Properties the Defendant No.1 purchased Item No.3 of the Plaint Schedule Property under a Registered Sale Deed dated 14-2-1978 i.e., as per Ex. P7. As such the acquisition of Item no.3 of the Plaint Schedule property by Defendant No.1 was not out of his own earning but out of the nucleus of Joint Family only and as such it was the Joint Family property and not the self acquired Property of Defendant no.1.
The court below reached a conclusion that Item No.3 was not acquired out of Sale Proceeds of Ancestral and joint Family properties on the ground that there is a time gap in between the Sale of Ancestral property and purchase of item No.3 of the plaint Schedule property. It is submitted the learned Judge did not make an attempt to know what transpired between these two dates. The Defendant No.1 after selling the Ancestral property acquired Property No.47 out of the sale proceeds of Ancestral property and he sold the same and purchased Item No.3 of the Suit Schedule property. The proximity of time in selling the Joint Family property and Acquiring the item No.3 of the Plaint Schedule Property was hardly about 1 and 1/3rd months and which was not a long gap in between 2 14 transactions. As such finding on issue No.3 liable to be set aside.
The court below except answering Issue No.2 did not make any endeavour to answer rest of Issues on merit on going through Documentary Evidence produced by the parties to the suit. This clearly goes to show that the Learned Judge without application of judicious mind has partly decreed the suit.
13. Reiterating the grounds urged in the appeal memorandum, counsel for appellant Sri T. Seshagiri Rao, vehemently contended that the suit of the plaintiffs being dismissed by the Trial Court in respect of suit item No.3 of the property is incorrect and has resulted in miscarriage of justice and sought for allowing the appeal.
14. It is further contended that the plaintiffs have sufficiently established by placing cogent evidence on record that suit item No.3 is purchased by the first defendant from the income of the joint family property and therefore, the Trial Court ought to have decreed the suit of 15 the plaintiffs in respect of 3rd item of the suit property and also sought for allowing the appeal.
15. Per contra, learned counsel for the respondents Sri Ashok B Patil vehemently contended that the suit on hand is cleverly filed by the plaintiffs in order to defeat the decree in O.S.No.10315/1982 which has ultimately being executed in Execution case No.373/1993 after the decree came to be confirmed in the appeal and therefore, there is no merit in the appeal and sought for dismissal of the appeal.
16. In support of his arguments, he has relied on following judgments wherein it has held as under:
"1. (2019) 7 SCC 300 - R. S. Anjayya Gupta - Vs- Thippaiah Setty and others,
17. In a recent decision of this Court in U. Manjunath Rao [U. Manjunath Rao v. U. Chandrashekar, (2017) 15 SCC 309 : (2018) 2 SCC (Civ) 682] , the Court after adverting to Santosh Hazari [Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179, para 15] , Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain 16 Singh [Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh, 1950 SCC 714 : AIR 1951 SC 120, para 15] , Madhukar [Madhukar v. Sangram, (2001) 4 SCC 756, para 5] , H.K.N. Swami v. Irshad Basith [H.K.N. Swami v. Irshad Basith, (2005) 10 SCC 243, para 3] and SBI v. Emmsons International Ltd. [SBI v. Emmsons International Ltd., (2011) 12 SCC 174 : (2012) 2 SCC (Civ) 289] went on to observe thus: (U. Manjunath Rao case [U. Manjunath Rao v. U. Chandrashekar, (2017) 15 SCC 309 : (2018) 2 SCC (Civ) 682] , SCC pp. 313- 15, paras 11-14) "11. ... '3. ... Thus, in the first appeal the parties have the right to be heard both on the questions of facts as well as on law and the first appellate court is required to address itself to all the aspects and decide the case by ascribing reasons.'
12. In this context, we may usefully refer to Order 41 Rule 31 CPC which reads as follows:
'ORDER 41 APPEALS FROM ORIGINAL DECREES
31. Contents, date and signature of judgment.--The judgment of the appellate court shall be in writing and shall state--
(a) the points for determination;
(b) the decision thereon;17
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled;
and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.'
13. On a perusal of the said Rule, it is quite clear that the judgment of the appellate court has to state the reasons for the decision. It is necessary to make it clear that the approach of the first appellate court while affirming the judgment of the trial court and reversing the same is founded on different parameters as per the judgments of this Court. In Girijanandini Devi [Girijanandini Devi v. Bijendra Narain Choudhary, AIR 1967 SC 1124] , the Court ruled that while agreeing with the view of the trial court on the evidence, it is not necessary to restate the effect of the evidence or reiterate the reasons given by the trial court. Expression of general agreement with reasons given in the trial court judgment which is under appeal should ordinarily suffice. The same has been accepted by another three-Judge Bench in Santosh Hazari [Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179, para 15] . However, while stating the law, the Court has opined that expression of general agreement with the findings 18 recorded in the judgment under appeal should not be a device or camouflage to be adopted by the appellate court for shirking the duty cast on it. We are disposed to think, the expression of the said opinion has to be understood in proper perspective. By no stretch of imagination it can be stated that the first appellate court can quote passages from the trial court judgment and thereafter pen few lines and express the view that there is no reason to differ with the trial court judgment. That is not the statement of law expressed by the Court. The statement of law made in Santosh Hazari [Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179, para 15] has to be borne in mind.
14. In this regard, a three-Judge Bench decision in Asha Devi v. Dukhi Sao [Asha Devi v. Dukhi Sao, (1974) 2 SCC 492] is worthy of noticing, although the context was different. In the said case, the question arose with regard to power of the Division Bench hearing a letters patent appeal from the judgment of the Single Judge in a first appeal. The Court held that the letters patent appeal lies both on questions of fact and law. The purpose of referring to the said decision is only to show that when the letters patent appeal did lie, it was not restricted to the questions of law. The appellant could raise issues pertaining to facts and appreciation of evidence. This is indicative of the 19 fact that the first appellate court has a defined role and its judgment should show application of mind and reflect the reasons on the basis of which it agrees with the trial court. There has to be an "expression of opinion" in the proper sense of the said phrase. It cannot be said that mere concurrence meets the requirement of law. Needless to say, it is one thing to state that the appeal is without any substance and it is another thing to elucidate, analyse and arrive at the conclusion that the appeal is devoid of merit."
18. In another recent decision in C. Venkata Swamy [C. Venkata Swamy v. H.N. Shivanna, (2018) 1 SCC 604, paras 10-11, 13-18 : (2018) 1 SCC (Civ) 280] , once again this Court reiterated the settled legal position regarding the purport of power of the appellate court coupled with its duty, under Section 96 of the Civil Procedure Code, 1908 while deciding the first appeal, by adverting to decisions in Kurian Chacko v. Varkey Ouseph [Kurian Chacko v. Varkey Ouseph, 1968 SCC OnLine Ker 101 : AIR 1969 Ker 316] , Santosh Hazari [Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179, para 15] , H.K.N. Swami [H.K.N. Swami v. Irshad Basith, (2005) 10 SCC 243, para 3] , Jagannath v. Arulappa [Jagannath v. Arulappa, 20 (2005) 12 SCC 303, para 2] , B.V. Nagesh v. H.V. Sreenivasa Murthy [B.V. Nagesh v. H.V. Sreenivasa Murthy, (2010) 13 SCC 530, paras 3 and 5 :
(2010) 4 SCC (Civ) 808] , SBI [SBI v. Emmsons International Ltd., (2011) 12 SCC 174 : (2012) 2 SCC (Civ) 289] and Union of India v. K.V. Lakshman [Union of India v. K.V. Lakshman, (2016) 13 SCC 124 : (2017) 2 SCC (Civ) 230] .
The Court, even in this reported case relegated the parties before the High Court for reconsideration of the first appeal afresh.
19. We are conscious of the fact that in the present case the suit came to be filed by Respondent 1 as back as in 1982 and that the present appeal has remained pending in this Court from 2009, against the impugned judgment of the High Court. We, at one stage were persuaded to consider and examine the matter on its own merits instead of relegating the parties before the High Court. But, it is noticed that the appellant has raised formidable issues on facts as well as on law which ought to receive proper attention of the High Court, in the first instance in exercise of powers under Section 96 CPC. Additionally, the High Court will have to address the grievance of the appellant that some of the documents, which in the opinion of the appellant are crucial have not been even exhibited 21 although the same were submitted during the trial, as noted in the written submissions filed by the appellant. Therefore, we do not wish to deviate from the consistent approach of this Court in the reported cases that the first appellate court must analyse the entire evidence produced by the parties concerned and express its opinion in the proper sense of the jurisdiction vested in it and by elucidating, analysing and arriving at the conclusion that the appeal is devoid of merit.
20. We refrain from analysing the pleadings and the evidence in the form of exhibited documents and including the non-exhibited documents and expect the High Court to do the same and arrive at conclusions as may be permissible in law. In other words, we should not be understood to have expressed any opinion either way on the merits of the controversy. The High Court shall decide the first appeal uninfluenced by any observation made in the impugned judgment. As the remanded first appeal pertains to year 2002, we request the High Court to dispose of the same expeditiously.
21. The appeals are accordingly allowed. The impugned judgment and decree and orders dated 7-9-2004 [R.S. Anjayya Gupta v. Thippaiah Setty S., 2004 SCC OnLine Kar 656] and 27-9-2006 22 [R.S. Anjayya Gupta v. Thippaiah Setty S., 2006 SCC OnLine Kar 884] respectively, passed by the High Court of Karnataka at Bangalore are set aside and instead remand RFA No. 456 of 2002 to the High Court with the aforementioned directions. No order as to costs. All pending applications are disposed of.
2. (2010) 2 SCC 114 - Dalip Singh -Vs- State of Uttar Pradesh and others,
1. For many centuries Indian society cherished two basic values of life i.e. "satya" (truth) and "ahimsa" (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post- Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.
2. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort 23 to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.
3. AIR 1947 PC 189 - Randhi Appalaswami -
Vs- Randhi Suryanarayanamurti,
11. It has been argued before the Board that the share which the appellant took under Ex. A formed the nucleus from which all his further acquisitions sprang. The learned District Judge found that under Ex. A the appellant had got six acres of land, a house and site at Rajahmundry valued then at Rs. 2,000, ¼th of a 6/16th share in the Radhakrishna Rice Mills, outstandings valued at Rs. 3,500, gold articles worth Rs. 446 and some utensils worth Rs.
70. The whole property was stated to be worth Rs. 7,220. These findings have not been challenged. The evidence of the appellant, which was not contradicted upon this point, was that the whole of this property was intact and unencumbered except for a godown on the Rajahmundry site which he had sold for Rs. 1,100, which sum he had debited 24 against household expenditure. From the figures which the appellant gave in evidence, which again were not disputed, it is clear that his family expenses far exceeded the income derived from the joint property which he acquired under Ex. A. Between 1918 and 1934 the appellant acquired various properties at a total expenditure of some Rs. 55,000 and it was conceded in the judgment of the High Court that the defendant was a man of enterprise and that it was largely due to his energy and labour that a large fortune had been acquired. 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 is 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 [ILR 1937 Bom. 708.] , Venkataramayya v. Seshamma [ILR 1937 Mad.
1012 : 45 LW 422.] and Vythianatha v.
25Varadaraja [ILR 1938 Mad. 696 : 48 LW 628.] ], In the present case their Lordships think that the acquisition by the appellant of the property under Ex. A, which as between him and his sons was joint family property, cast upon the appellant the burden of proving that the property which he possessed at the time of the plaint was his self-acquired property, but they agree with the District Judge in thinking that this burden has been discharged. The evidence establishes that the property acquired by the appellant under Ex. 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 the properties specified in the schedule to the written statement. Consequently there is no force in the suggestion that the appellant improperly claimed as his own property which belonged to the joint family, and that is the only ground now relied upon to show that this suit was filed in the interest of the minors.
4. AIR 1969 SC 1076 - Mudi Gowda Gowdappa Sankh -Vs- Ram Chandra Ravagowda Sankh,
6. We pass on to consider the next question arising in this appeal viz. whether the High Court was right 26 in holding that the 12 pieces of lands were joint family properties and were not the self-acquisition of Goudappa. The case of the appellants was that these lands were self-acquisition of Goudappa, but the respondents contended that they were joint family properties. The law on this aspect of the case is well settled. Of course there is no presumption that a Hindu family merely because it is joint, possesses any joint property. The burden of proving that any particular property is joint family property, is, therefore, in the first instance, upon the person who claims it as coparcenary property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate. In Appallaswami v. Suryanarayanamurti [ILR 1948 Mad 440] Sir John Beaumont observed as follows:
"The Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint 27 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 Hargoyandas [ILR 1937 Bom 708] ; Venkataramayya v. Seshamma [ILR 1937 Mad 1012] and Vythianatha v. Varadaraja [ILR 1938 Mad 696] .
5. AIR 1954 SC 379 - Shrinivas Krishnarao Kango -Vs- Narayan Devji Kango,
8. Coming next to the acquisitions, on 21st May, 1871, Siddopant purchased under Exhibit D-36 a house for Rs 200 from his mother-in-law. On 11th May, 1885, he purchased under Exhibit D-61 S. No. 23 Ukamnal village for a sum of Rs 475. On 23rd July, 1890, he purchased under Exhibit D-64 lands bearing S. Nos. 2025 and 2140 for Rs 2400. 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 28 S. Nos. 634 and 635. DWs 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 2000 and 4000. 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 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.29
Suryanarayanamurti [ILR 1948 Mad 440 at 447, 448] 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 [ILR 1937 Bom 708], Venkata-
ramayya v. Seshamma [ILR 1937 Mad 1012] , Vythianatha v. Varadaraja [ILR 1938 Mad 696] ."
10. Whether the evidence adduced by the plaintiff was sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions 30 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 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 produce 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
6. AIR 1996 SC 2127 - Gangadharan -Vs-
Janardhana Mallan,
16. In view of the findings which, we have already extracted regarding adequacy of sale consideration, substantial portion having gone into the discharge of antecedent debts and enquiries made by the purchaser regarding legal necessity coupled with the fact that the alienation was challenged after 12 years from the date of alienation, we find no difficulty in coming to the conclusion that the High Court went wrong in upsetting the judgments of the trial court as well as the first appellate court. Even though the judgments of the Privy Council and of this Court were brought to the notice of the 31 High Court, it unfortunately failed to give due consideration to the ratio laid down in those cases. The High Court simply observed as follows:
"It may not be possible to lay down any strait- jacketed rule as to what proportion of the consideration should be shown to have been antecedent debt in order to sustain an alienation by a Hindu father.""
17. In view of the rival contentions of the parties, following points would arise for consideration:
1) Whether the plaintiffs have successfully established that the suit item No.3 is purchased by the first defendant by joint family funds and therefore, the suit item No.3 is also a joint family property?
2) Whether the Trial Court in dismissing the suit of the plaintiffs in respect of the item No.3 of the property is just and proper?
3) Whether the impugned judgment in respect of denial of the right of the plaintiffs in respect of 32 item No.3 of the suit property is suffering from legal infirmity or perversity and thus calls for interference?
4) What order?
18. In order to prove the case of the plaintiffs, plaintiff No.1 got examined himself as P.W.1 and filed affidavit in lieu of his examination in chief, wherein he has deposed that himself, second plaintiff and first defendant forms members of Hindu undivided joint family. Second defendant is the purchaser of the suit property from his father. He has stated that his father got the properties bearing Sy.No.8/8, Solur Hobli, Chikkanayanakapalya, measuring 26 guntas and property in Sy.No.65/8 of Muppenahalli village, Solur Hobli, Magadi Taluk, measuring 25 guntas and yet another property at Muppenahalli and house property at Chikkanayakanapalya in a panchayath palupatti, when ancestral properties were divided between 33 his father and his brothers and thus, his father and plaintiffs are in joint possession of the aforesaid properties.
19. He further deposed that first defendant being the father of the plaintiffs, sold the land in Sy.No.8/8 through a registered sale deed dated 22.09.1975 to Chikkaiah and land in Sy.No.65/8 through a registered sale deed dated 05.11.1975 and out of the profits thereof he purchased a site which is part of property bearing No.47, Rajajinagar, Bangalore from Shakuntalamma W/o Rajagopal Setty on 15.11.1975 measuring 11 feet X 16 feet in a sum of Rs.5000/-, another house property measuring 16X 15 feet from Narayanamma on 16.12.1997 for sale consideration of Rs.2,000/-.
20. According to P.W.1, the properties purchased by first defendant under the registered sale deed dated 15.11.1975 and 16.12.1977 are thus the joint family properties of plaintiffs and first defendant and thus, plaintiffs are having the share. The demand made by 34 plaintiffs in November 1984 was evaded by the first defendant and therefore, the suit is filed.
21. He also deposed that in order to avoid the share in the property, he executed an agreement with second defendant on 15.01.1982 in favour of the second defendant even though there was no legal necessity and ultimately sold the same in favour of second defendant and thus sought for decreeing the suit.
22. He has produced the Genealogical tree as Ex.P.1 certified copy of the Sale deed dated 22-9-1975 as Ex.P.2, certified copy of the Sale deed dated 15-11-75 as Ex.P.3, certified copy of the Sale deed dated 15-11-75 as Ex.P.4, certified copy of the Sale deed dated 16-12-77 as Ex.P.5, certified copy of the Sale deed dated 17-12-77 as Ex.P.6, certified copy of Sale Deed dated 14-2-78 as Ex.P.7, the Krushi Pass book is marked as Ex.P.8, tax Demand Register is marked as EX.P.9, the Palu patti is marked only for the collateral purpose to prove that the properties therein is the joint family properties of the parties to the suit as on the said date is 35 marked as Ex.P.10, certified copy of Sale deed dated 16-4-96 is marked as Ex.P.11, RTC extract is marked as Ex.P.12.
23. In his cross-examination, he has answered that he is residing in property bearing No.46/2, 6th Block, Rajajinagar Road, Bengaluru since 1994. During the year 1981-82 to 1984 he lived in house bearing No.218 along with the parents and brothers and he was a third standard student by then. He has answered that his father was an electrical contractor till 1985 and thereafter he is not pursuing any avocation. He has answered that his mother is alive and his father is living in Chikkanayanakapalya since 1984 along with his mother. He has answered that he is working as a driver in a goods vehicle and he was earning Rs.2500/- per month.
24. He admits that he did not produce Ex.P.10 along with the plaint. He has pleaded ignorance about the sale consideration under Exs.P.2 and P.3. He has answered that properties mentioned at Exs.P.2 and P.3 are inherited by his father from his grand father. He denied 36 that the properties mentioned in Exs.P.2 and P.3 are the self acquired properties of his father. So also he pleaded ignorance about the sale consideration in Ex.P.5. He denied that properties covered under Exs.P.4 and P.5 are purchased by his father through his earning. He denied that suit is collusive suit and filed at the instance of his father.
25. In his further cross-examination, he has answered that he is not aware of consideration amount received by his father under sale consideration Ex.P.6.
26. He admits that her mother has no source of income and no properties are standing in her name. He denied that his brother has filed suit in O.S.No.10262/1998 on the file of Addl.City Civil judge, Bengaluru against his parents and Srichand katri.
27. He admits about partnership concern by name Lakshmi Travels and Tempo services wherein apart from him, Raghu, Srinivas and Nanjegowda are other partners 37 and the firm provides goods vehicles for transportation of goods. He admits that he has got a vehicle bearing No.KA03-1632.
28. Sri.Honna Gangappa is examined as P.W.2. He deposed about acquaintance of plaintiffs and first defendant. He further stated that first defendant did not provide proper education to plaintiffs and did not take care of plaintiffs properly. He further deposed that the plaintiffs had to work themselves to earn their livelihood and after the marriage of their elder sister Gangambika, they took shelter under her.
29. He further deposed that plaintiffs initially worked as coolies and when Gangambika started her factory, plaintiffs worked there. It is further deposed that first defendant neglected to take care of plaintiffs and started selling the properties belonging to joint family and purchased a house property at Bengaluru. He has stated that he is resident of the same village where first 38 defendant was residing and therefore, he is aware of the family affairs of the plaintiffs and first defendant.
30. In his cross-examination, he admits that Mahesh and Suresh were born at Bengaluru and are residing in their elder sister's house. He has answered that first defendant Bheemasena is an agriculturist, but he is not aware of first defendant was working as an electrical contractor. He has answered that after selling the house at 'Siddaramanadinne', he purchased a house in Manjunatha Nagar. He denied that plaintiffs are school drop outs and first defendant was spending money for their school expenditure. He denied the suggestion that first defendant purchased the suit property out of his own earnings and he has not shown any ancestral property. He has specifically answered that first defendant conduct is not good and he did not look plaintiffs in proper manner. He has answered that plaintiffs are having good name in the village.
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31. Sri Chikkanna is examined as P.W.3 he also deposed in the line with examination in chief of P.W.2 by filing affidavit.
32. In his cross-examination, he admits that he is an illiterate and first defendant is not his relative. However, he has answered that his house situated five to six house away of house of first defendant. He has answered that he has deposed as a witness at the request of first plaintiff. He has further answered that he is not a witness to the sale transaction effected by first defendant. He has answered that there is a recital in the sale deed executed by first defendant that he has sold the property for meeting the house hold expenditure and to meet the financial crunch. He admits that both the plaintiffs did not properly pursue their education despite the first defendant had joined them to the school.
33. However, he denied the suggestion that first defendant had spent money for education of second plaintiff. He admits that in the year 1978, first defendant 40 purchased a house for a sum of Rs.5,000/- and sold the same and purchased another house in Manjunatha Nagar. He denied the suggestion that the house at Siddaramanadinne and Manjunatha Nagar are self acquired properties of first defendant.
34. On behalf of the defendants, second defendant is examined as D.W.1. He filed an affidavit in lieu of his examination in chief, and relied on 16 documentary evidence which were exhibited and marked as Exs.D1 to D.16 comprising of certified copy of agreement of sale dated 15.01.1982 marked as Ex.D.1, certified copy of judgment passed in RFA 273/1985 dated 08.01.1993 marked at Ex.D.2, certified copy of the interlocutory application marked at Ex.D.3, certified copy of order passed on interlocutory application marked at Ex.D.4, certified copy of the order dated 16.09.1997 marked at Ex.D.5, certified copy of order dated 16.09.1997 marked at Ex.D.6, certified copy of warrant marked at Ex.D.7, certified copy of mahazar marked at Ex.D.8, certified copy of receipt of possession 41 marked at Ex.D.9, certified copy of order sheet marked at Ex.D.10, certified copy of plaint in O.S.No.10262/1998 marked at Ex.D.12, certified copy of I.A. under order 39 Rules 1 and 2 marked at Ex.D.14, certified copy of joint memo marked at Ex.D.15, certified copy of the ordersheet marked at Ex.D.16.
35. In his cross-examination, he admits that he has no knowledge about the children of first defendant. He admits that he has no documents to show that land in Sy.No.8/8, 65/8, 76 and house at Kaneshkumari No.13 are the self acquired properties of first defendant. He pleaded ignorance about those properties having fallen to the share of first defendant at a partition between first defendant and his brothers. He denied the suggestion that the share inherited by the first defendant in the ancestral properties were sold and site No.47 was purchased. He admits that he has no documents to show that first defendant had purchased site No.47 out of his earnings. He has stated that suit item No.3 is the self acquisition of first defendant. 42
36. He denied other suggestions and also pleaded ignorance about the family affairs of plaintiffs and first defendant.
37. On cumulative consideration of the above evidence on record, it is crystal clear from the oral and documentary evidence placed on behalf of the plaintiffs that first defendant did derive his share at a partition in the ancestral properties of the first defendant. The palupatti marked at Ex.P.10 clearly establishes the same. There is no dispute as to the relationship between plaintiffs and first defendant. Exs.P.2 to P.7 and Ex.P.11 are the certified copies of the sale deeds. On bare perusal of these documents, it is crystal clear that first defendant after obtaining share in the joint family properties, has sold the same and acquired few properties.
38. Material record also disclose that O.S.No.10262/1998 is filed by P.W.1, he denied the said suggestion. What exactly is the effect of the order passed in Ex.D.2 or the rejection of the amendment application in 43 O.S.No.10262/1998 is a matter that remains unexplained on behalf of the appellants. At the most, from the aforesaid proceedings, it can be stated that plaintiffs are challenging each and every action made by their father by filing necessary suit/application to protect their interest.
39. Learned counsel for the appellant contended that in para 17 of the impugned judgment, learned Trail Judge has come to the conclusion that the present suit is filed in collusion to defeat the decree passed in O.S.No.10315/1982 and there is no basis for the same. But, it is pertinent to note that the plaintiffs tried to implead in the said suit, but were unsuccessful.
40. Further, first defendant being the father of the plaintiffs did contest the suit in all seriousness and he challenged the validity of the judgment passed in O.S.No. 10315/1982 in RFA No.273/1985. Thereafter, the second defendant filed Execution Case No.373/1993. In the said execution petition, Court order is obtained for compulsory registration of the sale deed in respect of the agreement to 44 sell entered into by the first defendant in favour of the second defendant on 15.10.1984.
41. Possession of the property involved in the said agreement was also handed over to the second defendant in the said execution proceedings. These aspects of the matter are borne out from the records produced by the defendant marked at Exs.D.5 to D.10. Admittedly, first defendant has neither contested the suit, nor cited as a witness by the plaintiff in the present suit.
42. In an agreement to sell which is marked at Ex.D1, first defendant has narrated that third item of the suit properties, is a self acquired property. The plaintiffs are required to establish by placing cogent evidence on record that the disputed property is not the self acquisition of first defendant, but it is purchased by the first defendant out of the joint family income.
43. In this regard, Sri T.Seshagiri Rao, learned counsel for the appellants vehemently contended that 45 there is no dispute that the property belonging to joint family was sold and disputed properties purchased by the first defendant from the sale proceeds of the joint family property. But, the oral testimony of P.Ws.1 to 3 did not improve the case of the plaintiffs in this regard. P.Ws.2 and 3 no doubt deposed about the acquaintance of plaintiffs and first defendant. But, in their cross- examination, it has been elicited that they are not aware of the avocation of the first defendant. P.W.1 himself admits that his father worked as an electrical contractor between 1975 to 1985 apart from agriculture. Therefore, one can presume that first defendant had sufficient income to purchase the disputed property and the same being self acquired, he had every right to enter into agreement with second defendant.
44. In the cross-examination of P.W.1, it has been specifically suggested by contesting second defendant that sale deed executed by his father in favour of Gangaiah in relation to land in Sy.No.65/8 of Muppenahalli. It is 46 pertinent to note that those actions were not challenged by the plaintiffs. He admits that he does not know the sale proceeds under Exs.P.6 and P.7. Therefore, plaintiffs cannot plead that from the sale of few items of the joint family, the proceeds of the sale was utilized by the first defendant to purchase the disputed property.
45. It is settled principles of law that the plaintiffs are required to establish the joint family nucleus and then there was a sufficient amount available from the joint family nucleus after meeting the day to day expenses and some surplus should be available so as to utilize that amount for the purpose of purchasing the new property. The material on record is not sufficient to prove that their existed a joint family nucleus and there was a surplus after deducting the necessary in maintaining the family and that amount has been utilized for purchasing the suit property. The material on record is hardly sufficient to attract the doctrine of joint family nucleus and spill over. 47
46. As such, the findings recorded by the learned Trial Judge that the plaintiffs have not made out a case to seek partition in respect of suit item No.3 of the property is well founded on factual aspects and based on logical reasons. The decision relied on behalf of respondent - second defendant fortifies and supports the finding of the trial Court sufficient. Since this Court is concurring with the said finding of trial Court, no further discussion as to legal principles enunciated in those decisions are necessary.
47. In view of the foregoing discussion, even after re-appreciation of the material on record this Court is of the considered opinion that the grounds urged in the appeal memorandum are hardly sufficient to hold that the impugned judgment is suffering from legal infirmity or perversity.
48. Accordingly, point Nos.1 to 3 are answered in the Negative.
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49. Regarding Point No.4: In view of the findings on point Nos.1 to 3, this Court pass the following order:
ORDER Appeal is meritless and is hereby dismissed.
No order as to costs.
Sd/-
JUDGE MR