Karnataka High Court
Sri Goidu S/O Krishna Gouda vs Sri Iru on 9 December, 2024
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NC: 2024:KHC-D:18013
RSA No. 1903 of 2007
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 9TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO. 1903 OF 2007 (PAR)
BETWEEN:
1. SRI. GOIDU S/O. KRISHAN GOUDA,
AGED ABOUT 46 YEARS,
OCC. AGRICULTURE,
R/O. DEVASTANKERI, VANDOOR,
TQ. HONAVAR, DIST. UTTAR KANNADA.
2. SRI. GANAPA S/O. KRISHAN GOUDA,
AGED ABOUT 55 YEARS,
OCC. AGRICULTURE,
R/O. DEVASTANKERI, VANDOOR,
TQ. HONAVAR, DIST. UTTAR KANNADA.
Digitally
signed by
VISHAL 3. SRI. MARU S/O. KRISHAN GOUDA,
VISHAL NINGAPPA
NINGAPPA PATTIHAL
PATTIHAL Date: AGED ABOUT 51 YEARS,
2024.12.17
10:03:53
+0530 OCC. AGRICULTURE,
R/O. DEVASTANKERI, VANDOOR,
TQ. HONAVAR, DIST. UTTAR KANNADA.
... APPELLANTS
(BY SRI. A.S.PATIL, ADVOCATE)
AND:
1. SRI. IRU S/O. BOMMA GOUDA,
AGED ABOUT 67 YEARS,
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NC: 2024:KHC-D:18013
RSA No. 1903 of 2007
OCC. AGRICULTURE,
R/O. DEVASTANKERI, VANDOOR,
TQ. HONAVAR, DIST. UTTAR KANNADA.
1A. SMT. SUKRI W/O. LATE IRU BOMMA GOUDA,
AGE: 58 YEARS, OCC. HOUSEHOLD,
R/O. DEVASTANKERI, VANDOOR-581301,
TQ. HONAVAR, DIST. UTTAR KANNADA.
1B. SRI. ANNAPPA S/O. LATE IRU BOMMA GOUD,
AGE: 32 YEARS, OCC. AGRICULTURE,
R/O. DEVASTANKERI, VANDOOR-581301,
TQ. HONAVAR, DIST. UTTAR KANNADA.
2. SRI. KUPPA S/O. BOMMA GOUDA,
AGED ABOUT 63 YEARS,
OCC. AGRICULTURE,
R/O. DEVASTANKERI, VANDOOR-581301,
TQ. HONAVAR, DIST. UTTAR KANNADA.
2A. SMT. ANITA W/O. KRISHNA GOUDA,
AGE: 28 YEARS, OCC. HOUSEHOLD,
R/O. HALIDPUR, BADNIKERI-581327,
TQ. HONAVAR, DIST. UTTAR KANNADA.
3. SMT. MARI W/O. MASTI GOUDA,
AGED ABOUT 59 YEARS,
OCC. HOUSEHOLD WORK,
R/O. DEVASTANKERI, VANDOOR-581301,
TQ. HONAVAR, DIST. UTTAR KANNADA.
4. SMT. HALAMMA W/O. IRU GOUDA,
AGED ABOUT 59 YEARS,
OCC. HOUSEHOLD WORK,
R/O. GUNGUNIKERI, VANDOOR-581301,
TQ. HONAVAR, DIST. UTTAR KANNADA.
5. SMT. IRAMMA W/O. KANTA GOUDA,
AGED ABOUT 55 YEARS,
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NC: 2024:KHC-D:18013
RSA No. 1903 of 2007
OCC. HOUSEHOLD WORK,
R/O. HORASALU, KARKI-581301,
TQ. HONAVAR, DIST. UTTAR KANNADA.
6. SMT. DEVI W/O. MASTI GOUDA,
AGED ABOUT 53 YEARS,
OCC. HOUSEHOLD WORK,
R/O. HORASALU, KARKI-581301,
TQ. HONAVAR, DIST. UTTAR KANNADA.
7. SRI. JATTU S/O. NAGU GOUDA,
AGED ABOUT 61 YEARS,
OCC. AGRICULTURE, R/O. DEVASTANKERI,
VANDOOR-581301,
TQ. HONAVAR, DIST. UTTAR KANNADA.
8. SRI. MASTI S/O. NAGU GOUDA,
AGED ABOUT 58 YEARS,
OCC. AGRICULTURE, R/O. DEVASTANKERI,
VANDOOR-581301,
TQ. HONAVAR, DIST. UTTAR KANNADA.
8A. SRI. NAGAPPA S/O. LATE MASTI GOUDA,
AGE: 27 YEARS,
OCC. AGRICULTURE, R/O. DEVASTANKERI,
VANDOOR-581301,
TQ. HONAVAR, DIST. UTTAR KANNADA.
9. SRI. HOIDA @ IRU KUPPU GOUDA,
AGED ABOUT 67 YEARS,
OCC. AGRICULTURE, R/O. HORASALU, KARKI,
TQ. HONAVAR-581323, DIST. UTTAR KANNADA.
10. SRI. MANJI HOIDA @ IRU KUPPU GOUDA
AGED ABOUT 42 YEARS,
OCC. AGRICULTURE, R/O. HORASALU, KARKI,
TQ. HONAVAR-581323, DIST. UTTAR KANNADA.
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NC: 2024:KHC-D:18013
RSA No. 1903 of 2007
11. SRI. MANJUNATH HOIDA @ IRU KUPPU GOUDA,
AGED ABOUT 40 YEARS,
OCC. AGRICULTURE, R/O. HORASALU, KARKI,
TQ. HONAVAR-581323, DIST. UTTARA KANNADA.
12. SRI. GANAPATI HOIDA @ IRU KUPPU GOUDA,
AGED ABOUT 38 YEARS,
OCC. AGRICULTURE, R/O. HORASALU, KARKI,
TQ. HONAVAR-581323, DIST. UTTARA KANNADA.
13. KUM. JATTAMMA D/O. HOIDA
@ IRU KUPPU GOUDA,
AGED ABOUT 36 YEARS,
OCC. AGRICULTURE, R/O. HORASALU, KARKI,
TQ. HONAVAR-581323, DIST. UTTARA KANNADA.
... RESPONDENTS
(BY SRI. SHIVRAJ S.BALLOLI;
SRI. RAMESH I ZIRALI, ADVOCATE FOR R1(A), R1(B), R8(A);
SERVICE OF NOTICE TO R2(A), R5, R6-HELD SUFFICIENT;
R1, R2 AND R8-DECEASED;
R3, R4, R7, R9, R10 TO R13-NOTICE SERVED)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED 16.04.2007 PASSED IN
R.A.NO.351/2001 ON THE FILE OF THE CIVIL JUDGE
(SR.DN.), HONAVAR, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGEMENT AND DECREE DATED
16.12.2000 PASSED IN OS.NO. 159/1995 ON THE FILE
OF THE PRL.CIVIL JUDGE (JR.DN.), HONAVAR.
THIS APPEAL, COMING ON FOR FURTHER HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS
UNDER:
CORAM: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
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NC: 2024:KHC-D:18013
RSA No. 1903 of 2007
ORAL JUDGMENT
1. Assailing the judgment and decree, dated 16.04.2007, passed in R.A. No.351/2001 on the file of the Civil Judge (Sr.Dn.) Honavar (for short "the First Appellate Court") reversing the judgment and decree dated 16.12.2000, passed in O.S. No.159/1995 on the file of the Prl. Civil Judge (Jr.Dn.) Honavar (for short "the trial Court"), whereby, the First Appellate Court dismissed the suit of the plaintiffs seeking for partition and separate possession.
2. The parties herein are referred to as per their rank before the trial Court, for the sake of convenience.
3. Suit for partition and separate possession seeking 1/3rd share in the suit properties. According to the plaintiffs, the plaintiffs and defendants constitute a Joint Hindu Undivided Family and the suit properties are the joint family properties of plaintiffs and defendants. That, the grant of occupancy rights in favour of Bomma, the father of defendant Nos.1 to 6 was in the capacity of Manager of the -6- NC: 2024:KHC-D:18013 RSA No. 1903 of 2007 Family, on the Form No.7 filed by Bomma after the death of Iru Gouda, the original propositus and the grant of occupancy rights in favour of Bomma enures to the benefit of his brothers namely Nagu and Krishna and the plaintiffs being the legal heirs of Krishna are entitled for 1/3rd share in the suit properties.
4. The suit was contested by defendant Nos.1 to 6, the branch of Bomma and defendant Nos.7 to 9, the branch of Nagu. The defendants contended that the grant of occupancy rights in favour of Bomma was in his individual capacity and not as the Manager of the joint family. Bomma was cultivating the suit properties in his individual capacity, the original propositus Iru Gouda never cultivated the suit properties and hence, the claim of the plaintiffs that, the grant of occupancy rights in favour of Bomma enures to the benefit of the other brothers of Bomma is unsustainable.
5. The trial Court based on the pleadings, framed the following issues:
-7-NC: 2024:KHC-D:18013 RSA No. 1903 of 2007 "1. Whether the plaintiff proves that the suit schedule properties are joint family properties of himself and defendant no.1 to 9 as alleged in the Plaint?
2. If so, whether the plaintiff further proves that the suit schedule properties are in joint possession and enjoyment of himself and defendants as alleged?
3. Whether the plaintiff further proves that the father of first defendant Bomma Iru Gouda was looking after the family affairs and properties during his life time is alleged?
4. If so, whether the plaintiff Further prove that in that capacity his name came to be mutated in the record of rights as the manager of the joint family of the plaintiff and the defendants?
5. Whether the defendant no.1 prove that the suit properties are the self acquired properties of his father as contended in the W.S.?
6. Whether the plaintiff further proves that he is having 1/3 right in the plaint a schedule property as claimed?-8-
NC: 2024:KHC-D:18013 RSA No. 1903 of 2007
7. Whether the defendant no.1 proves that himself and defendant no.2 and 6 are only having right in the plaint properties as contended in the W.S.?
8. Whether the plaintiff is entitled for the partition as prayed in the plaint properties?
9. What order or decree?"
6. The trial Court based on the pleadings, oral and documentary evidence, arrived at a conclusion that:
(i) the plaintiffs have proved that, the suit schedule properties are joint family properties of plaintiffs and defendant Nos.1 to 9;
(ii) the plaintiffs prove that the suit schedule properties are in joint possession and enjoyment of the plaintiffs and defendants;
(iii) the plaintiffs prove that the father of first defendant Bomma Iru Gouda was looking after the family affairs and filing of Form No.7 was as the capacity of -9- NC: 2024:KHC-D:18013 RSA No. 1903 of 2007 Manager and occupancy rights granted in favour of Bomma enures to the benefit of his other brothers.
By the judgment and decree, the trial Court arrived at a conclusion that the plaintiffs are entitled for 1/3rd share in the suit properties.
7. Aggrieved, defendant No.1 - Iru Bomma Gouda preferred appeal before the First Appellate Court. The First Appellate Court, while appreciating the entire oral and documentary evidence independently, reversed the judgment and decree of the trial Court and dismissed the suit of the plaintiffs.
8. Aggrieved, the plaintiffs are before this Court, in this Regular Second Appeal.
9. This Court while admitting the appeal on 13.08.2008 framed the following substantial question of law:
"Whether the Lower Appellate Court erred in holding that the suit schedule properties are self acquired properties of father of defendant No.1, in
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NC: 2024:KHC-D:18013 RSA No. 1903 of 2007 the absence of proof to that effect and contrary to the presumption regarding joint status as per Hindu law?"
10. Learned counsel appearing for the appellants and the learned counsel appearing for the respondents have been heard on the substantial questions of law framed by this Court.
11. Learned counsel appearing for the appellants submits that, the father of defendant No.1 Bomma Iru Gouda submitted Form No.7 as the Manager of the family for himself and for his two brothers namely Nagu and Krishna and in Form No.7 it is categorically stated that, from time immemorial, Bomma is cultivating the suit properties and the grant of occupancy rights in favour of Bomma enures to the benefit of the other brothers. The initial burden which was on the plaintiffs was established and discharged as the document; more particularly Form No.7 clearly indicates that Bomma was cultivating the suit properties from time immemorial and in light of the same, the onus shifted upon the branch of Bomma to prove that
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NC: 2024:KHC-D:18013 RSA No. 1903 of 2007 the suit properties were self acquired properties of defendant No.1's father and the suit properties were their exclusive properties. The defendants did not discharge their onus which was on them to prove that the suit properties were self acquired properties of defendant No.1's father and in the absence of the same, the First Appellate Court was justified in dismissing the suit of the plaintiff for partition and separate possession of the suit properties.
12. Per contra, learned counsel appearing for the respondents justifies the judgment and decree of the First Appellate Court and contends that the plaintiffs have not produced any iota of evidence to establish that Iru Gouda-
the original propositus was cultivating the suit properties and in the absence of the same, filing of Form no 7 and grant of occupancy rights to Bomma would enure the benefit of his branch and not to the other brothers namely Nagu and Krishna and the First Appellate Court being the last fact finding Court has rightly appreciated the entire oral and documentary evidence and dismissed the suit of the
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NC: 2024:KHC-D:18013 RSA No. 1903 of 2007 plaintiffs and the substantial question of law needs to be answered against the appellants herein.
13. This Court has carefully considered the rival contentions, urged the learned counsel appearing for the parties and perused the materials available on record.
14. The family genealogical tree, is culled out as under:
15. The law is well settled that there is no presumption of property being a joint Hindu Family. The one who asserts has to prove that the property is joint family property. If, however, the person asserting proves that the nucleus with which the joint family
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NC: 2024:KHC-D:18013 RSA No. 1903 of 2007 property could be acquired, there would be presumption of the property being joint and onus would shift on the person who claims it to be self acquired property to prove that it is individual property and not the Joint Family property. The Privy Council in APPALASWAMI Vs. SURYANARAYANAMURTI1 has held that:
" ... The Privy Council held that 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. In the case before the Privy Council, on facts, it was held that the burden had shifted to the father to prove self-acquisition of properties as 1 AIR 147 PC 189
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NC: 2024:KHC-D:18013 RSA No. 1903 of 2007 it was established that the family possessed joint property which from its nature and relative value, may have formed the nucleus to acquire the property in question. Those properties were large in number and have been noticed in the Privy Council decision. However, on further facts found, it was held that the father had discharged that burden. The properties were held to be self- acquired properties of the appellant."
16. The Apex Court in the case of D.S. LAKSHMAIAH AND ANOTHER VS. L. BALASUBRAMANYAM AND ANOTHER2 has given a deliberate consideration to various decisions on the settled principles of law and held at para Nos.9 to 18 as under:
"9. In Appalaswami v. Suryanarayanamurti [AIR 1947 PC 189 : 1947 All LJ 587] in a partition suit filed against their father by minor sons from the first marriage, the father claimed that the properties in question were his self-acquired properties and denied that the plaintiffs had any right to seek partition. The High Court, reversing the judgment of the trial court, held that the view 2 (2003) 10 SCC 310
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NC: 2024:KHC-D:18013 RSA No. 1903 of 2007 expressed by the trial court that joint family property was only that which the father took under partition Exhibit A was not correct and further held that whole of the property set out in the schedule to the written statement of the appellant father, which had been acquired after partition Exhibit A was joint family property. The contention accepted by the High Court was that the share which the father took under Exhibit A formed the nucleus from which all his further acquisitions sprang. The plea of the father that was accepted by the Privy Council was that the whole of the property that came to him under Exhibit A was intact and unencumbered except a small portion sold which amount had been debited against household expenditure. The Privy Council held that 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
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NC: 2024:KHC-D:18013 RSA No. 1903 of 2007 to establish affirmatively that the property was acquired without the aid of the joint family property. In the case before the Privy Council, on facts, it was held that the burden had shifted to the father to prove self-acquisition of properties as it was established that the family possessed joint property which from its nature and relative value, may have formed the nucleus to acquire the property in question. Those properties were large in number and have been noticed in the Privy Council decision. However, on further facts found, it was held that the father had discharged that burden. The properties were held to be self- acquired properties of the appellant.
10. In Srinivas Krishnarao Kango v. Narayan Devji Kango [AIR 1954 SC 379] the contention that was urged on behalf of the appellant was that the burden was wrongly cast on the plaintiff of proving that the acquisition of the properties were made with the aid of joint family funds, the argument being that as the family admittedly possessed the ancestral watan lands of the extent of 56 acres, it must be presumed that the acquisitions were made with the aid of joint family funds and, therefore, the burden lay on the defendants who claimed that they were self-
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NC: 2024:KHC-D:18013 RSA No. 1903 of 2007 acquired acquisitions to establish that they were made without the aid of joint family funds and that the evidence adduced by them fell far short of it and that the presumption in favour of the plaintiff stood unrebutted. It was noticed by this Court that on the question of the nucleus, the only properties which were proved to belong to the joint family were the watan lands of the extent of about 56 acres bearing an annual assessment of Rs 49. There was no satisfactory evidence about the income which these lands were yielding at the material time. Under these circumstances, noticing with approval the aforesaid Privy Council decision, it was held that whether the evidence adduced by the plaintiff was sufficient to shift the burden which initially rested on him to establish that there was adequate nucleus out of which the acquisition could have been made is one of fact depending on the nature and 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
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NC: 2024:KHC-D:18013 RSA No. 1903 of 2007 substantial income which may well form the foundation of the subsequent acquisitions.
11. In Mudi Gowda Gowdappa Sankh v. Ram Chandra Ravagowda Sankh [(1969) 1 SCC 386] noticing the observations of Sir John Beaumont in Appalaswami case [AIR 1947 PC 189 : 1947 All LJ 587] it was reiterated that the burden of proving that any particular property is joint family property in the first instance is upon the person who claims it to be so. 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. We are unable to accept the contention of the learned counsel for the respondents that the aforesaid later observations have been made without reasons or that the Privy Council's decision does not hold so. The
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NC: 2024:KHC-D:18013 RSA No. 1903 of 2007 observation that only after possession of adequate nucleus is shown that the onus shifts also gets support from Srinivas Krishnarao Kango case [AIR 1954 SC 379] where, while considering the question of shifting of burden, it has been held that the important thing to consider is the income which the nucleus yields.
12. In Baikuntha Nath Paramanik v. Sashi Bhusan Pramanik [(1973) 2 SCC 334] this Court again held that when a joint family is found to be in possession of nucleus sufficient to make the impugned acquisitions then a presumption arises that the acquisitions standing in the names of the persons who were in the management of the family properties are family acquisitions.
13. In Surendra Kumar v. Phoolchand [(1996) 2 SCC 491] this Court held that where it is established or admitted that the family which possessed joint property which from its nature and relative value may have formed sufficient nucleus from which the property in question may have been acquired, the presumption arises that it was joint property and the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family funds.
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14. We may now refer to three decisions whereupon reliance has been placed by the learned counsel for the respondents. In Mallesappa Bandeppa Desai v. Desai Mallappa [AIR 1961 SC 1268] this Court held that where a manager claims that any immovable property has been acquired by him with his own separate funds and not with the help of the joint family funds of which he was in possession and charge, it is for him to prove by clear and satisfactory evidence his plea that the purchase money proceeded from his separate fund. The onus of proof in such a case has to be placed on the manager and not on his coparceners. It is difficult to comprehend how this decision lends any support to the contention of the respondents that in absence of leading any evidence, the claim of Appellant 1 of the property being self-acquired has to fail. In the cited decision, the manager was found to be in possession and in charge of the joint family funds and, therefore, it was for him to prove that despite it he purchased the property from his separate funds. In the present case, admittedly, no evidence has been led by the respondents that the first appellant was in possession of any such joint family funds or as to value or income, if any, of Item 2 property.
15. In Achuthan Nair v. Chinnammu Amma [AIR 1966 SC 411] it was noticed that there were a number of properties owned by the joint
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NC: 2024:KHC-D:18013 RSA No. 1903 of 2007 family which were received at the time of separation under a decree passed in a partition suit. The claim of the defendants in the written statement was that the property in question had been purchased from the private funds of Defendant 1 and her son Defendant 4. In this decision too, it was reiterated that when it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition, the law raises a presumption that it is a joint family property and the onus is shifted to the individual member to establish that the property was acquired by him without the aid of the said nucleus. After noticing these settled propositions, it was observed that if a property is acquired in the name of a karnavan, there is a strong presumption that it is a tarwad (joint Hindu family) property and the presumption must hold good unless and until it is rebutted by acceptable evidence. This Court did not hold that if a property is acquired in the name of karta, the law as to presumption or shifting of onus would be different. The question of presumption would depend upon the facts established in each case. In the present case, no evidence of nucleus having been led, the onus remained on the respondents and, therefore, there could be no question of presumption about the property being joint family property.
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NC: 2024:KHC-D:18013 RSA No. 1903 of 2007
16. The last decision relied upon is Mallappa Girimallappa Betgeri v. R. Yellappagouda Patil [AIR 1959 SC 906] . It cites with approval the earlier decision in the case of Srinivas Krishnarao Kango [AIR 1954 SC 379] . On facts, it was noticed that the courts below had held that the property provided a sufficient nucleus of joint family property out of which the properties in question might have been acquired and the sufficiency of nucleus is again a question of fact. In view of those circumstances, there was presumption of the properties being properties of joint family and the said presumption had not been displaced.
17. In view of the aforesaid discussion, the respondents having failed to discharge the initial burden of establishing that there was any nucleus in the form of any income whatsoever from Item 2 property and no other nucleus was claimed, the burden remained on the respondents to establish that Item 1 property was joint family property. In this view, the fact that the first appellant has not led any evidence to establish his separate income is of no consequence insofar as the claim of the respondents is concerned. Under these circumstances, for failure to lead evidence, the respondents' claim of Item 1 to be joint family property would fail as rightly held by the first appellate court.
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NC: 2024:KHC-D:18013 RSA No. 1903 of 2007
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 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."
17. Bearing in mind the settled principle of law, the material on record is perused. Ex.P9 is the Form No.7 filed by Bomma S/o. Iru Gouda, the father of defendant Nos.1 to 6 in respect of suit item No.2 property i.e., Sy.No.25.
Ex.P11 is the Form No.7 filed by Bomma S/o. Iru Gouda in respect of suit item Nos.1 and 3 i.e., Sy.Nos.8 and 7, age of Bomma is shown as 55 years and in the right hand side column of Exs.P9 and P11, it is stated that "C£Á¢PÁ®¢AzÀ ¥Á°£À£ÁvɬÄAzÀ EgÀÄvÀÛzÉ". This recital in the Form No.7 in respect of the suit properties was the basis for the trial
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NC: 2024:KHC-D:18013 RSA No. 1903 of 2007 Court to arrive at a conclusion that the original propositus -
Iru Gouda was cultivating the suit properties and the Form No.7 filed by Bomma as the Manager of the family and the plaintiffs are entitled for share in the suit properties. The initial burden was on the person who contends that the suit properties are the joint family properties, the plaintiffs had to establish that Bomma as the Manager of the family filed Form No.7 and occupancy rights were granted in favour of Bomma as the Manager of the family and not in his individual capacity and other than mere assertion, there are no materials forthcoming nor any clinching evidence to indicate that the original propositus - Iru Gouda was cultivating the suit properties at any point of time. It is also relevant to consider the cross-examination of PW1, who categorically and on unequivocal terms deposed that there are no materials produced by the plaintiffs to indicate that Iru Gouda was cultivating the suit properties. The relevant portion of the cross-examination of PW1 is extracted as under:
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NC: 2024:KHC-D:18013 RSA No. 1903 of 2007 "£ÀÀ£Àß vÀAzÉ PÀȵÀÚ UËqÀ wÃjPÉÆAqÀÄ ¸ÀĪÀiÁgÀÄ 20 ªÀµÀðUÀ¼ÁzÀªÀÅ. £À£Àß vÀAzÉ wÃjPÉÆAqÁUÀ £Á£ÀÄ CAzÁdÄ 22 ªÀµÀð ªÀAiÀĹì£ÀªÀ¤zÉÝ. £À£Àß vÀAzÉUÉ E§âgÀÄ CAtÚA¢gÀÄ. M§â £ÁUÀÄ ªÀÄvÉÆۧ⠨ÉƪÀÄä. £À£Àß zÉÆqÀØ¥Àà £ÁUÀÄ £À£Àß vÀAzÉVAvÀ F ªÉÆzÀ¯Éà wÃjPÉÆArzÁÝ£É. DzÀgÉ AiÀiÁªÁUÀ wÃjPÉÆArzÁÝ£É JAzÀÄ ºÉüÀ®Ä §gÀĪÀÅ¢®è. £À£Àß E£ÉÆߧâ zÉÆqÀØ¥Àà ¨ÉƪÀÄä ¸ÀĪÀiÁgÀÄ 15 ªÀµÀðUÀ¼À »AzÉ wÃjPÉÆArzÁÝ£É. £Á£ÀÄ ºÀÄnÖzÁV¤AzÀ £À£Àß vÀAzÉ ªÀÄvÀÄÛ CªÀ£À CtÚA¢gÀÄ ¨ÉÃgÉ ªÀÄ£ÉAiÀÄ°è ªÁ¸À ªÀiÁrPÉÆArzÀÝgÀÄ J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. £À£Àß vÀAzÉ ªÀÄvÀÄÛ zÉÆqÀØ¥ÀàA¢gÀÄ MqÉAiÀÄgÀ ªÀÄ£ÉUÉ PÀÆ° PÉ®¸ÀPÉÌ ºÉÆÃUÀÄvÁÛ EzÀÝgÀÄ. £À£Àß CtÚ£À ºÉ¸Àj£À°è d«ÄãÀÄUÀ¼ÀÄ EzÀÝ §UÉÎ £Á£ÀÄ AiÀiÁªÀÅzÉà zÁR¯ÁwUÀ¼À£ÀÄß ¥Àj²Ã®£É ªÀiÁr¯Áè. £À£Àß zÉÆqÀØ¥Àà ¨ÉƪÀÄä£À ºÉ¸ÀjUÉ d«ÄãÀÄUÀ¼ÀÄ ºÉÃUÉ §AzÀªÀÅ J£ÀÄߪÀ §UÉÎ ºÉüÀ®Ä §gÀĪÀÅ¢®è. £À£ßÀ vÀAzÉAiÀÄ ºÉ¸ÀjUÉ AiÀiÁªÀÅzÉ d«ÄãÀÄ zÁR¯ÁzÀ §UÉÎ £Á£ÀÄ ZËPÁ±À ªÀiÁqÀ°®è. ªÁådåzÀ D¹ÛUÀ¼ÀÄ £À£Àß CdÓ¤AzÀ §A¢zÉ JAzÀÄ vÉÆÃj¸À®Ä AiÀiÁªÀÅzÉà zÁR¯ÁwUÀ¼ÀÄ E¯Áè. ªÁådåzÀ D¹ÛUÀ¼À PÀÄjvÀÄ C¢¨sÉÆÃUÀzÁgÀÀ ºÀPÀÌ£ÀÄß PÉÆÃj £Á£ÁUÀ° £À£Àß vÀAzÉAiÀiÁUÀ°Ã ¨sÀÆ £ÁåAiÀÄ ªÀÄAqÀ½UÉ £ÀªÀÄÆ£É 7gÀ°è CfðAiÀÄ£ÀÄß ¸À°è¹¯Áè. ªÁådåzÀ D¹ÛUÀ¼ÀÄ 1 ªÀÄvÀÄÛ 2£Éà ¥ÀæwªÁ¢AiÀÄ ¸ÀéAvÀ D¹ÛUÀ¼ÀÄ J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀįÁè. ¸À¢æ D¹ÛAiÀÄ°è £À£ÀUÉ AiÀiÁªÀÅzÉà vÀgÀzÀ ºÀPÀÄÌ E¯Áè ªÀÄvÀÄÛ CªÀÅUÀ¼À£ÀÄß £Á£ÀÄ ¸Áé¢üãÀvÉ ºÉÆA¢zÀÄÝ C£ÀĨsÉÆÃUÀ ªÀiÁqÀ¯Éà E¯Áè J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀįÁè. ªÁådåzÀ D¹ÛAiÀÄ°è £Á£ÀÄ vÉAV£À ªÀÄgÀ ¨É½¹zÉÝÃ£É JAzÀÄ ¸ÀļÀÄî ºÉüÀÄwÛzÉÝÃ£É J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀįÁè. 1 ªÀÄvÀÄÛ 2£Éà ¥ÀæwªÁ¢AiÀÄgÀÄ £À£Àß zÉÆqÀØ¥Àà£À
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NC: 2024:KHC-D:18013 RSA No. 1903 of 2007 ªÀÄPÀ̼ÁVzÀÝjAzÀ ºÉÃUÁzÀgÀÆ ªÀiÁr CªÀgÀ ¸ÀéAvÀ D¹ÛAiÀÄ°è ¥Á®Ä ¥ÀqÉzÀÄPÉƼÀî¨ÉÃPÉA§ zÀÄgÀÄzÉÝñÀ¢AzÀ F ªÁådå ªÀiÁrzÉÝÃ£É J£ÀÄߪÀzÀÄ ¸ÀjAiÀįÁè."
18. The plaintiff has failed to discharge the initial burden that the suit properties were cultivated by the original propositus, the filing of Form No.7 by Bomma was as the Manager of the Family and not in his individual capacity and grant of occupancy rights in respect of item Nos.1 to 3 would enure to the benefit of the family members of Iru Gouda, on the other hand the defendants by cogent evidence established that Form No.7 filed by Bomma was in his individual capacity and grant of occupancy rights would enure to the benefit of the branch of Bomma and not to the branch of Iru Gouda. The First Appellate Court being the last fact finding Court has rightly appreciated and held that the plaintiffs are entitled for any share in the suit properties and the substantial questions law is answered holding that the suit properties are the self acquired properties of the father of defendant Nos.1 to 6 in the absence of any corroborative evidence produced by the
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NC: 2024:KHC-D:18013 RSA No. 1903 of 2007 plaintiffs to establish that Iru Gouda, original propositus was cultivating the suit properties. Accordingly, this court pass the following:
ORDER
(i) The Regular Second Appeal is hereby dismissed.
(ii) The judgment and decree of the First Appellate Court stands confirmed.
SD/-
______________________ (JUSTICE K.S. HEMALEKHA) VNP / CT: PA LIST NO.: 1 SL NO.: 44