Karnataka High Court
Veerappa S/O Hanamappa Rati @ Talawar vs Shantavva W/O Hanamappa Rati @ Talawar on 5 July, 2023
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NC: 2023:KHC-D:6721-DB
RFA No. 100254 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF JULY 2023
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
REGULAR FIRST APPEAL NO. 100254 OF 2017
BETWEEN:
1. VEERAPPA,
S/O. HANAMAPPA RATI @ TALAWAR,
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O: KODLIWAD, TQ: KUNDGOL,
DIST: DHARWAD-581117.
2. BASAPPA,
S/O. HANAMAPPA RATI @ TALAWAR,
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O: KODLIWAD, TQ: KUNDGOL,
DIST: DHARWAD-581117.
3. KALLAPPA,
S/O. HANAMAPPA RATI @ TALAWAR,
Digitally signed by AGE: 47 YEARS, OCC: AGRICULTURE,
VIJAYALAKSHMI
M KANKUPPI R/O: KODLIWAD, TQ: KUNDGOL,
Location: HIGH
COURT OF
KARNATAKA
DIST: DHARWAD-581117.
Date: 2023.07.24
16:45:08 +0530
...APPELLANTS
(BY SRI.S.S.PATIL, ADVOCATE)
AND:
1. SHANTAVVA,
W/O. HANAMAPPA RATI @ TALAWAR,
AGE: 67 YEARS, OCC: HOUSEHOLD WORK,
R/O: KODLIWAD, TQ: KUNDGOL,
DIST: DHARWAD-581117.
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NC: 2023:KHC-D:6721-DB
RFA No. 100254 of 2017
2. GOURAVVA,
W/O. MALLAPPA TALAWAR,
AGE: 40 YEARS, OCC: HOUSEHOLD WORK,
R/O: ALLABHAKSHA ANI BUILDING,
ISHWARNAGAR, HUGAR PLOT,
GIRIYAL ROAD, OLD HUBBALLI,
TQ: HUBBALLI, DIST: DHARWAD-580024.
3. GANGAVVA,
W/O. SHIVAPPA DAVAGI,
AGE: 38 YEARS, OCC: PRIVATE SERVICE,
R/O: TONDUR, TQ: SAVANUR,
DIST: HAVERI-581118.
4. MAHADEVAPPA,
S/O. HANAMAPPA RATI @ TALAWAR,
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O: KODLIWAD, TQ: KUNDGOL,
DIST: DHARWAD-581117.
...RESPONDENTS
(BY SRI.VISHWANATH P.ALNAVAR ADVOCATE FOR SRI. DINESH
M.KULKARNI, ADVOCATE FOR RESPONDENTS Nos.1 TO 4)
THIS RFA IS FILED UNDER SEC.96 READ WITH ORDER 41
RULE 1 OF CPC. AGAINST THE JUDGMENT AND DECREE DATED
21.04.2017 PASSED IN O.S.NO.82/2015 ON THE FILE OF THE II-
ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI, DECREEING THE
SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,
ASHOK S. KINAGI, J., DELIVERED THE FOLLOWING:
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NC: 2023:KHC-D:6721-DB
RFA No. 100254 of 2017
JUDGMENT
This appeal is filed by the appellants challenging the judgment and decree dated 21.04.2017 passed in O.S. No.82/2015 by the learned II Additional Senior Civil Judge, Hubballi.
2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court.
3. The appellants are defendant Nos.1 to 3 and respondent Nos.1 to 3 are the plaintiffs and respondent No.4 is defendant No.4. The plaintiffs filed the suit for partition and separate possession in respect of the suit schedule properties. It is contended that one Sri. Hanamappa is the original propositus. He had two wives namely Smt.Gangavva-first wife, who died long back and Smt.Shantavva is the second wife/plaintiff No.1. Hanamappa begotten 3 children from his first wife Smt.Gangavva i.e. defendant Nos.1 to 3. Plaintiff No.1 got 3 children from Hanamappa i.e. plaintiff Nos.2 and 3 and defendant No.4. The original propositus Hanamappa expired on 08.08.2014 -4- NC: 2023:KHC-D:6721-DB RFA No. 100254 of 2017 leaving behind him the plaintiffs and the defendants as his legal heirs who have succeeded jointly to the estate of the deceased. Item Nos.1 and 2 in schedule A property and item No.1 of schedule B property are the ancestral joint family properties of the propositus Hanamappa which are derived from his brother as per M.E. No.361 in the year 1976. After the death of his first wife-Gangavva, with huge wealth and movables, came to reside at Kodliwad village, Kundagol taluk. After orally mortgaging the said properties at Mumaraddikoppa in Badami taluk and out of the income derived from the ancestral properties and endeavours of deceased Hanamappa and plaintiff No.1, he purchased agricultural lands described in item Nos.3 and 4 of schedule A and item Nos.2 and 3 in schedule B from time to time in his name. The suit properties are the joint family properties of the propositus Hanamappa, the plaintiffs and the defendants. It is contended that, Hanamappa purchased agricultural land at item No.5 in schedule A property in the name of his sons namely defendant Nos.1 to 4 jointly and purchased land at Sl.Nos.6 to 9 in schedule A separately in -5- NC: 2023:KHC-D:6721-DB RFA No. 100254 of 2017 the names of defendant Nos.1 to 4. Propositus Hanamappa fell ill seriously and was suffering from old age related diseases like incomprehension dementia and unsoundness of mind. Very recently before his death, defendant No.1 took him to Hubli saying that he was taking him for medical treatment. Defendant No.1 henched a plan and with the help of his henchmen, created and concocted the alleged gift deed in his favour by alleged registered gift deed dated 15.07.2014 in respect of the properties described at item Nos.3 and 4 in schedule A. The alleged execution, attestation and genuineness of the alleged gift deed are denied by the plaintiffs. It is contended that, defendant Nos.1 to 3 in collusion with each other, concocted and created the alleged gift deed in favour of defendant No.1. The said alleged gift deed is not binding on the plaintiffs. The suit schedule properties are the ancestral joint family properties of the plaintiffs and the defendants. No partition is effected by metes and bounds in the family of the plaintiffs and the defendants in respect of the suit schedule properties. The plaintiffs requested the defendants to effect a partition but -6- NC: 2023:KHC-D:6721-DB RFA No. 100254 of 2017 the defendants refused to effect a partition. Hence, cause of action arose for the plaintiffs to file a suit for partition and separate possession.
4. Defendant Nos.1 to 3 filed written statement denying the averments made in the plaint and it is contended that the plaintiffs have no locus standi to file a suit against the defendants. It is denied that, the plaintiff No.1 is the wife of deceased Hanamappa and plaintiff Nos.2 and 3 and defendant No.4 are the children of deceased Hanamappa. It is contended that the plaintiffs are the native of Devanur village. The plaintiffs and defendant No.4 got created some illegal documents stating that they are the wife and children of deceased Hanamappa. The plaintiffs and defendant No.4 are in no way concerned to the family of the defendants 1 to 3. The suit filed by the plaintiffs is not maintainable. The properties situated at Mumaradikoppa is inam land. The said land though entered in the name of grand father of the defendants Sri Kallappa. It is not fertile and was not getting any income and this land is in possession of Sankappa, who is doing walikarki and pooja of -7- NC: 2023:KHC-D:6721-DB RFA No. 100254 of 2017 Durgamma and the family was not possessing any properties. It is contended that, father of defendant Nos.1 to 3 was tailor by profession and he was having very good income from his tailoring profession and defendant No.1-the elder son of Hanamappa is also doing tailoring since his childhood. He was getting good income from tailoring. Defendant Nos.2 and 3 were grazing sheep and further they were also doing sheep selling business and they were getting good income. It is contended that the father of the defendants by his own earnings purchased landed property bearing R.S. No.138/A measuring 8 acres 33 guntas out of which 3 acres 33 guntas towards eastern side and R.S. No.138/B measuring 1 acre 18 guntas and these lands are adjacent to each other. The father of the defendant No.1 was having more love and affection towards defendant No.1, hence, Hanamappa gifted the properties purchased from Kallavva Bandi on 31.03.1992. The father of defendant No.1 executed registered gift deed on 15.07.2014 in favour of defendant No.1 and handed over possession of the properties to defendant No.1. Defendant No.1 became -8- NC: 2023:KHC-D:6721-DB RFA No. 100254 of 2017 absolute owner of the properties bearing R.S. No.138/A/1 measuring 3 acres 38 guntas and R.S. No.138/B measuring 1 acre 18 guntas both situate at Koliwad village by virtue of the said registered gift deed. Defendant Nos.1 to 3 by their earnings purchased the properties bearing R.S. No.4/3 measuring 12 acres 21 guntas out of which 4 acres 8 guntas towards eastern side in which 1 acre 8 guntas was purchased by defendant No.1 and defendant No.2 by his own earnings purchased property bearing R.S. No.4/3 measuring 12 acres 21 guntas out of 4 acres 8 guntas towards southern side in which 1 acre 5 guntas towards southern side was purchased and defendant No.3 also by his own earnings purchased land bearing R.S. No.4/3 measuring 12 acres 21 guntas out of 4 acres 8 guntas in which 1 acre was purchased by his own earnings. Defendant Nos.2 and 3 having more love and affection towards defendant No.1, they have gifted the properties purchased from Devaji and Attatraya on 19.05.1997. Hence, defendant Nos.2 and 3 executed gift deeds on 08.01.2015 in favour of defendant No.1 and further defendants Nos.2 and 3 handed over the possession of the -9- NC: 2023:KHC-D:6721-DB RFA No. 100254 of 2017 suit properties to defendant No.1. Thus, defendant No.1 because absolute owner and in possession of the suit properties and name of defendant No.1 was entered in the records of the said properties as owner and kabzedar. Defendant Nos.1 to 3 purchased property bearing R.S. No.138/A/2 and property bearing VPC No.18 was purchased by defendant No.1 out of his own earnings, VPC No.177/B is the property of Hanamappa who is the father of defendant Nos.1 to 3. After the demise of Hanamappa, defendant Nos.1 to 3 became the owners and are in possession of the same. The House property bearing VPC No.46 is not in possession of anybody. Hence, the plaintiffs and the defendants No.4 have no right or share in the said property. The defendants were not getting any income from the agricultural properties. Hence, prayed to dismiss the suit.
5. Defendant No.4 filed written statement supporting the case of the plaintiffs and prayed to decree the suit of the plaintiffs.
6. The trial Court on the basis of the pleadings of the parties, framed the following issues:
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NC: 2023:KHC-D:6721-DB RFA No. 100254 of 2017
1. Whether the plaintiffs prove that they and the defendants are the members of Hindu undivided joint family and further proves that the suit schedule properties are their joint family properties?
2. Whether the plaintiffs prove that they are entitle for 1/7th share each in suit-A and B schedule properties?
3. Whether the plaintiffs are entitle for the suit claim?
4. What order or decree?
7. The plaintiffs in support of their case examined plaintiff No.1 as PW.1 and got marked documents at Exs.P-1 to P-23. Defendant No.1 was examined as DW.1 and examined 3 witnesses as DWs.2 to 4 and got marked documents at Exs.D-1 to D-13.
8. The trial Court after recording the evidence and considering the oral and documentary evidence answered issue Nos.1 to 3 in the affirmative and consequently decreed the suit of the plaintiffs. It is ordered and decreed that the plaintiff Nos.1 to 3 are entitled for 1/7th share each in the suit schedule properties.
9. Defendant Nos.1 to 3 aggrieved by the judgment and decree passed by the trial Court have filed this appeal.
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NC: 2023:KHC-D:6721-DB RFA No. 100254 of 2017
10. Heard the learned counsel for defendant Nos.1 to 3 and also the learned counsel for the plaintiffs.
11. Leaned counsel for defendant Nos.1 to 3 submits that, the plaintiffs have failed to prove that, plaintiff No.1 is the legally wedded wife of deceased Hanamappa and plaintiff Nos.2 and 3 and defendant No.4 are the children of deceased Hanamappa. He also submits that, the plaintiffs and defendant No.4 have no right, title or interest over the suit schedule properties. He submits that, item Nos.6 to 9 are self acquired properties of defendant Nos.1 to 3. The trial Court has committed an error in awarding a share in the aforesaid items and in decreeing the suit of the plaintiffs when the plaintiffs have failed to establish their relationship with deceased Hanamappa. Hence, he prays to allow the appeal.
12. Per contra, learned counsel for the plaintiffs submitted that, the plaintiffs have produced records to show that, plaintiff No.1 is the legally wedded wife of deceased Hanamappa and plaintiff Nos.2 and 3 and defendant No.4 are
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NC: 2023:KHC-D:6721-DB RFA No. 100254 of 2017 the children of plaintiff No.1 and deceased Hanamappa. He submitted that Hanamappa was having ancestral properties i.e. item Nos.1 and 2 of schedule A property and item Nos.1 and 2 of schedule B property and out of the income derived from the ancestral properties, Hanamappa has purchased the properties in the name of defendant Nos.1 to 4 and the properties purchased in the name of defendant Nos.1 to 4 are the joint family properties of the plaintiffs and defendant Nos.1 to 4. Hence, he submits that the trial Court was justified in passing the impugned judgment and decree. Hence, he prays to dismiss the appeal.
13. Heard, perused the records and considered the submissions made by the learned counsel for the parties.
14. The points that arise for our consideration are:
(i) Whether the plaintiffs proves that the suit schedule properties are the ancestral joint family properties of the plaintiffs and the defendants and they constitute members of Hindu undivided join family?
(ii) Whether the plaintiffs prove that the properties acquired in the name of defendant Nos.1 to 3 are purchased out of joint nucleus?
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NC: 2023:KHC-D:6721-DB RFA No. 100254 of 2017
(iii) Whether defendant Nos.1 to 3 prove that the suit properties are purchased out of their own income?
(iv) Whether defendant Nos.1 to 3 have made out a ground for interference?
(v) What order or decree?
15. Point No.(i), (ii) and (iii) are taken together for common discussion in order to avoid repetition of facts.
16. It is the case of the plaintiff that, deceased Hanamappa was the original propositus. He had two wives i.e. Smt.Gangavva-the first wife and Smt.Shantavva-the second wife/plaintiff No.1. From 1st wife, Hanamappa had begotten 3 children i.e. defendant Nos.1 to 3 and 3 children from the 2nd wife-Shantavva(plaintiff No.1), i.e. plaintiff Nos.2 and 3 and defendant No.4. It is contended that Hanamappa died on 08.08.2014 leaving behind the plaintiffs and the defendants as his legal heirs. The plaintiffs and the defendants are the members of Hindu undivided family and admittedly, no partition took place in between the plaintiffs and the defendants. It is contended that out of the joint nucleus, some of the properties are purchased by Hanamappa in the names of defendant Nos.1 to 4. All the
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NC: 2023:KHC-D:6721-DB RFA No. 100254 of 2017 suit properties are the joint family properties of the plaintiffs and the defendants. The plaintiffs demanded for partition and separate possession but the defendants refused to effect a partition.
17. The plaintiffs in order to substantiate their case got examined plaintiff No.1 as PW.1 and she has reiterated the plaint averments in her examination-in-chief and got marked documents. Ex.P-1 is the death certificate of Hanamappa; Ex.P-2 is the survival certificate issued by the Village Accountant which discloses the names of legal heirs of deceased Hanamappa; Ex.P-3 is the RTC extract in respect of land bearing Sy.No.33/5K and the said land stands in the name Hanamappa; Ex.P-4 is RTC extract of land bearing Sy.No.1/3K and it stands in the name of Hanamappa; Ex.P-5 is the RTC extract in respect of land bearing Sy.No.138/A/1 and it stands in the name of Rati @ Talawar Hanamappa; Ex.P-6 is the RTC extract in respect of land bearing Sy.No.138/8 and stands in the name of Rati @ Talawar Hanamappa; Ex.P-7 is the RTC Extract of land bearing Sy.No.138A/2 and stands in the name of Rati @
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NC: 2023:KHC-D:6721-DB RFA No. 100254 of 2017 Talawar Veerappa, Rati Talawar Basappa, Rati @ Talawar kallappa and Rati @ Talawar Mahadevappa; Ex.P-8 is the RTC extract of land bearing Sy.No.4/3d stands in the name of Rati @ Talawar Veerappa i.e. defendant No.1; Ex.P-9 is the RTC extract in respect of land bearing Sy.No.4/3E stands in the name of defendant No.1; Ex.P-10 is the RTC extract of land bearing Sy.No.4/3K stands in the name of defendant No.1; Ex.P-11 is the RTC extract of land bearing Sy.No.4 stands in the name of defendant No.4; Ex.P-12 is the property register card stands in the name of Hanamappa in respect of property bearing VPC No.46; Ex.P-13 is the property extract in respect of VPC No.185/A stands in the name of defendant No.1; Ex.P-14 is the property extract in respect of VPC No.188/2B in the name of Hanamappa; Ex.P- 15 is the certified copy of the registered gift deed alleged to have been executed by Hanamappa in favour of defendant No.1 in respect of land bearing Sy.No.138/A/1 measuring 3 acres 33 guntas and Sy.No.138/B measuring 1 acre 18 guntas; Ex.P-16 is the certified copy of the mutation order; Exs.P-17 and 18 are the School certificates issued by the
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NC: 2023:KHC-D:6721-DB RFA No. 100254 of 2017 Principal, Government School, Kodliwad, Kundagol taluk, Dharwad district. Ex.P-17 discloses that, defendant No.4 has studied in the school and he was admitted in the school wherein the name of the father is shown a Hanamappa Rati and Ex.P-18 is the School certificate of plaintiff No.3 wherein her father's name is mentioned as Hanamappa Rati. The said certificates issued on 04.07.2015. The plaintiffs produced Ex.P-19-voter's list which discloses that, the plaintiffs, the defendants and Hanamappa Rati are residing together and name of husband's name of plaintiff No.1 is show as Hanamappa, father of plaintiff Nos.2 and 3 and defendant No.4 is shown as Hanamappa; Ex.P-20 is the Aadhar card of plaintiff No.1 which discloses her husband's name as Hanamappa; Ex.P-21 is the voter's Election identity card which discloses husband's name as Hanamappa; Ex.P- 22 is the voters identity card which discloses that plaintiff No.3 is the daughter of Hanamappa and Ex.P-23 is the receipt for having paid the fees in respect VPC No.177/B.
18. The defendants have not challenged the said documents. The defendants have produced Ex.D4 registered
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NC: 2023:KHC-D:6721-DB RFA No. 100254 of 2017 sale deed. It discloses that item No.5 of schedule 'A' property was purchased in the names of defendants Nos.1 to 3 and 4 wherein father's name of defendant No.4 is shown as Hanamappa. Defendant Nos.1 to 3 are parties to the said registered sale deed. If defendant No.4 has no relationship with Hanamappa, there was no necessity to purchase a property jointly in the name of defendant Nos.1 to 4.
19. In the course of cross-examination of PW.1 she admits that Gangawwa is a Hanamappa's wife. It is true that defendant Nos.1 to 3 are children of said Gangavva and the defendant No.4 is her son. Gangavva died when defendant No.3 was five months old. A question was put to PW.1 where did you get married, she answered that her marriage took place at Hanamappa's house in Kodliwad village. It is stated that she do not remember the date of her marriage, because she is illiterate. At the time of wedding, wedding invitation cards were printed. At the time of wedding no photographs were taken. There are no records to show that Hanamappa got one acre of land. It is true that Hanamappa did not have any property in Mummaradikoppa village, at that time
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NC: 2023:KHC-D:6721-DB RFA No. 100254 of 2017 Hanamappa came to Kodliwad village. It is false to say that Hanamappa was doing a tailoring work and it is true to say that the defendant No.1 was started doing tailoring work. It is elicited that her marriage was performed with Hanamappa Rate. However, she do not know the date, month and year of the marriage. However, Hanamappa lived in Padesur village. There is no record of death of Gangawwa W/o. Hanamappa and Gangavva might have died about 35 to 40 years back. It is false to say that her marriage was performed with Hanamappa. After the death of Hanamappa, she has got varasa patra, she has not produced any documents to show that, at Mummaradikoppa village, there are lands measuring 34 guntas and 6 guntas. It is true that they have not included the said properties in this suit. It is elicited that whoever does worship of goddess will cultivate the land shown in item Nos.1 and 2 of Schedule - A properties. It is true that Hanamappa did not perform the puja of goddess Durga, father-in-law used to take money for performing the Puja. She do not possess any document to prove that her name is removed from the Ration Card of Hanamappa Rate.
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NC: 2023:KHC-D:6721-DB RFA No. 100254 of 2017 It is false to say that, she has not produced a document showing her name in the Ration Card, Basappa S/o. Hanamappa Rate, who was the first wife of Hanamanthappa Rate and had 4 sons from the first wife of Hanamappa Rate. Children of first wife of Hanamappa are residing separately. It is true that defendant No.1 has engaged in tailoring since beginning. Defendant Nos.2 and 3 were grazing sheep and doing agricultural coolie work. It is false to say that defendant Nos.1 to 3 have purchased a property out of their own income. In the said registered sale deed, her son has affixed his signature. It is not correct to say that there are three registered sale deeds but, witness admits that there are 2 registered sale deeds and one is in the name of her husband and another one is in the name of son, land was purchased for Rs.35,000/- per acre, she has not produced a copy of registered sale deed. Land situated at Kodliwad village measuring 10 acres 18 guntas and it was purchased from Mahadevappa for consideration of Rs.8,000/- per acre. It is false to say that at the time of purchase of land the said Hanamappa was having his own income. The said land was
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NC: 2023:KHC-D:6721-DB RFA No. 100254 of 2017 purchased at the time of marriage of her daughter i.e., 33 years back. It is false to say that the said land was purchased out of her own income. It is true that, the land situated at Kodliwad village measuring 5 acres in the name of her sons and remaining land measuring 5 acres 18 guntas were purchased in the name of Hanamappa Rate. It is denied that Hanamappa Rate executed a registered gift deed. It is denied that the registered gift deed does not bear the signature of Hanamappa. It is denied that the Hanamappa has executed a registered gift deed in favour of defendant No.1. Except denial, nothing has been elicited from this witness.
20. The defendants in order to support the defence, defendant No.1 was examined as DW.1 and he has reiterated the written statement averments in the examination-in-chief. In support of his defence, he has produced a documents as Ex.D.1 the Ration Card, it stands in the name of Hanamappa Yallappa Rate. Ex.D.2 the copy of registered sale deed executed in favour of defendant No.1, in respect of land bearing RS. No.4/3 measuring 1 acre 3 guntas out of an
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NC: 2023:KHC-D:6721-DB RFA No. 100254 of 2017 extent of 12 acre 21 guntas. The age of the defendant No.1 was shown as 32 years on the date of the execution of a registered sale deed. Ex.D.3 is the registered sale deed, in respect of land bearing Sy. No.138/A measuring 5 acres, stands in the name of defendant Nos.1 to 4. Ex.D.5 is the registered sale deed in respect of land bearing Sy. No.4/3 measuring 4 acres 8 guntas, stands in the name of defendant No.6 and his age was shown as 27 years as on the date of purchase of the said land. Ex.D.6 is the registered sale deed dated 31.03.2012 in respect of land bearing Sy. No.138/A and 138/B stands in the name of Hanamappa Rate. Ex.D.7 is the registered gift deed executed by Basappa S/o. Hanamappa Rate in favour of defendant No.1, in respect of land bearing Sy. No.4/3E. Ex.D.8 is the registered gift deed in respect of land bearing Sy. No.4/3K executed by Kallappa S/o. Hanamappa Rate in favour of defendant No.1. ExD.9 is the registered gift deed executed by Hanamappa in favour of defendant No.1 in respect of land bearing Sy. No.138/A/1 and 138/B measuring 3 acre 33 guntas and 1 acre 18 guntas respectively. Ex.D.10 is the certificate issued
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NC: 2023:KHC-D:6721-DB RFA No. 100254 of 2017 by the School and Ex.D.11 is the Elections Voters Identity Card of Hanamappa Rate and Ex.D.12 is the registered sale deed in respect of land bearing Sy. No.4/3 stands in the name of Mahadevappa S/o. Hanamappa Rate. Ex.D.13 is the RTC extract in respect of land bearing Sy. No.4/3B stands in the name of defendant No.4.
21. DW-1 admits that no records are produced to show that the biological father was engaged in tailoring work and he admitted that, he has not produced any pass book to show that amount was kept in the bank and further admits that he has not produced any receipt to show that he used to purchase the cloth/garments for his tailoring work. He admits that he cannot say the date of purchase of item No.5 of the property. He says that Sy.No.138/A/2 measuring 5 acres was purchased in the name of defendant Nos.2 to 4. He cannot say what was his age at the time of purchase of the suit item and he does not know what was the age of defendant Nos.2 and 3 at the time of purchase of suit land. It is denied that it is false to say that, the income derived from the ancestral property, suit property is purchased in his
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NC: 2023:KHC-D:6721-DB RFA No. 100254 of 2017 name and in the names of defendant Nos.2 to 4. He does not know Sy.No.138/A/2 measuring 5 acres was purchased. It is true that the said land is cultivated by defendant Nos.2 to 4. It is true that in the registered sale deed, his age is shown as 27 years. It is true that, himself and defendant Nos.2 to 4 had been to the Office of the Sub-Registrar. It is true that, he came to know about registration of the sale deed in his favour and in favour of defendant Nos.1 to 4. It is true that, in Ex.D-4, defendant No.4 father's name is shown as Hanamappa Rati. It is true that in Ex.D-4, defendants' father's name is not shown as Hanmappa Ballari. It is true that their father knows reading and writing. It is suggested that, his father and 1st plaintiff were getting old age pension to which he has stated that, only, his father was getting the old age pension.
22. Further the defendants examined DW-2 who is the attestor to the registered gift deeds Exs.D7 and 8. He has deposed in his evidence that, Hanamappa Rati was his paternal uncle and his sons are Veerappa, Basappa and Kallappa and he knows them. He has deposed that,
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NC: 2023:KHC-D:6721-DB RFA No. 100254 of 2017 Hanamappa Rati has gifted the suit schedule properties in favour of defendant No.1 by virtue of the registered sale deeds at Exs.D-7 and 8. He has deposed that after gift deed was read over and explained by the scribe to the executant and the executant on understanding the contents of Exs.D-7 and 8 has affixed his signature and he also stated that he has signed as a witness to Exs.D7 and D8. He identified his signature as Exs.D7(a) and 8(a).
23. From the perusal of the cross-examination of DW-1, it seems that the said witness is a tutored witness.
24. DW-2 is the relative of defendant No.1. and deceased Hanamappa Rati is his uncle. When such being so, he ought to have known whether plaintiff No.1 is the second wife of Hanamappa Rati or not.
25. DW-3 is examined in order to prove that defendant Nos.1 to 3 purchased the suit properties out of their income. He has deposed that, he knows Veerappa, Basappa and Kallappa and he also knows their father, who is Hanamappa and he also knows Gangawwa, who is the wife of Hanamappa. Veerappa's father Hanamappa and
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NC: 2023:KHC-D:6721-DB RFA No. 100254 of 2017 Hanamappa father Kallappa left Mumarddikoppa and resided at Kodliwada village, as they were not getting any yield from land measuring 1 acre situated at Mumaraddikoppa. He has deposed that, Hanamappa was doing tailoring work at Kodliwad village and his first son was also doing tailoring work and used to sell the garments and the other two sons of Hanamappa i.e. Kallappa ad Basappa were doing business of sheep and they used to get a good income from the above said business. Hanamappa had not inherited any property. Hanamappa and his sons Veerappa, Basappa and Kallappa purchased the suit property out of their own earnings. In the course of his cross-examination, he has stated that, he does not know reading and writing but he knows to sign. He denies that the plaintiffs and the defendants are the members of Hindu undivided family and he does not know the date and month of death of Hanamappa and Gangavva and he does not know that, plaintiff No.1 is the wife and plaintiff Nos.2 and 3 and defendant No.4 are the children of late Hanamappa.
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NC: 2023:KHC-D:6721-DB RFA No. 100254 of 2017
26. Defendant No.4 is examined as DW-4. He has deposed that, item Nos.1 and 2 in schedule A and house property described in Sl.No.1 of schedule B property are the ancestral joint family properties of propositus Hanamappa which are derived from his brothers as per M.E. No.361 in the year 1976 and after his demise, his 1st wife Gangavva resided at Kodliwad village after orally mortgaging the said properties at Mumaraddikoppa in Badami taluk and out of the income from the ancestral properties and efforts and endeavours of deceased Hanamappa and plaintiff No.1, he purchased agricultural lands described at Sl.Nos.3 and 4 of schedule 'A' and Sl.Nos.2 and 3 in schedule 'B' properties from time to time. In order to establish that there exists relationship between the plaintiffs and deceased Hanamappa, the plaintiffs have produced school certificates as Exs.P-17 and 18 and also Ex.P-19-voter's list which discloses that father's name of plaintiff Nos.2 and 3 and defendant No.4 is shown as Hanamappa Rati and further Ex.D-4 is the copy of the registered sale deed which discloses that the plaintiff No.1 is the wife of deceased Hanamappa Rati.
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NC: 2023:KHC-D:6721-DB RFA No. 100254 of 2017
27. From the perusal of the records and evidence of the plaintiffs, the plaintiffs have proved, plaintiff No.1 is the wife of deceased Hanamappa Rati and plaintiff Nos.2 and 3 and defendant No.4 are children of Hanamappa Rati.
28. It is the case of the plaintiffs that the properties purchased under the registered sale deeds Exs.D.6 and 7 to 9 are out of the joint nucleus. In order to show that there was a joint nucleus, the defendants have clearly admitted in the written statement that the family was possessing item Nos.1 and 2 of schedule 'A' properties and item No.1 in schedule 'B' properties and further it is not denied by the defendants that, the family was not getting any income from the said properties. In view of the same, initial burden is always on the plaintiff to establish that the properties are purchased out of joint nucleus. As observed above, the family was possessing joint family properties i.e., agricultural lands and was getting income from the said lands. The Hon'ble Apex Court in the case of Rukhmabai v. Laxminarayan reported in AIR 1960 SC 335 has held that, there is no presumption that any property, whether
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NC: 2023:KHC-D:6721-DB RFA No. 100254 of 2017 moveable or immoveable held by a member of a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. Buy if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint family property. Further, the Hon'ble Apex Court in the case of Achuthan Nair v. Chinnammu Amma and Others reported in 1966 SC 411 held that, under Hindu Law, when a property stands in the name of a member of the a joint family, it is incumbent upon those asserting that it is a joint family property to establish it. 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
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NC: 2023:KHC-D:6721-DB RFA No. 100254 of 2017 nucleus. Further, in the case of Baikuntha Nath Pramanik v. Sashi Bhusan Pramanik reported in (1972) II SCWR 406, a similar view has been expressed by the Hon'ble Apex Court wherein it has 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 acquisition standing in the name of the persons who are in the management of the family properties are family acquisitions.
29. From these judgment, it can be culled out that the Hon'ble Apex Court has been taking a consistent view that for raising a presumption that a property standing in the name of a member of the Hindu joint family could have been purchased out of the joint family nucleus, two essential conditions are to be satisfied. In other words, it is the burden of one who asserts that it is the joint family property to prove that first of all there was a joint family nucleus and secondly the joint family nucleus has surplus income, from out of which, one can reasonably presume that the property in question could have been purchased.
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30. In the instant case, DW.1 in the course of cross- examination has admitted that, the defendants have not produced any pass book to show that defendant Nos.1 to 4 were possessing amount at the time of purchase of the said land. The plaintiffs have established that there was a joint family nucleus at the time of purchasing item Nos.7 to 9. In view of the same, the plaintiffs proved that there was a joint family nucleus at the time of purchasing the suit property and the defendants have failed to establish that the defendants were having sufficient income for purchasing the suit properties.
31. In view of the above discussion, we answer point Nos.(i) and (ii) in the affirmative holding that the plaintiff No.1 is the wife and plaintiff Nos.2 and 3 and defendant No.4 are the children of deceased Hanamappa Rati and we hold that the suit schedule properties are the ancestral joint family properties of the plaintiffs and the defendants and they constitute members of Hindu undivided joint family. Admittedly, no partition has been effected in between the plaintiffs and defendant Nos.1 to 4. Hence, the plaintiffs
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NC: 2023:KHC-D:6721-DB RFA No. 100254 of 2017 being the co-parceners are entitled for share in the suit schedule properties.
32. In view of the above discussion, we answer point No.(iii) in the negative holding that the defendants 1 to 3 have failed to prove that the properties are purchased out of their own income.
33. Point No.(iv): The trial Court after considering the oral and documentary evidence and the documents produced by the parties has rightly held that the suit properties are ancestral joint family properties of the plaintiffs and defendant Nos.1 to 4 and has rightly held that plaintiff No.1 is the wife and plaintiff Nos.2 and 3 and defendant No.4 are the children of deceased Hanamappa Rati and further held that the defendants have failed to prove that the suit properties are acquired out of their own earnings. The trial Court has assigned the reasons in detail, hence, we do not find any reason to interfere with the impugned judgment and decree. Hence, we answer Point No.(iv) in the negative.
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34. Learned counsel for the plaintiffs submits that the plaintiffs will not claim any right in respect of item Nos.6 to 9 of Schedule 'A' property.
35. The submission is placed on record.
36. In view of the above discussion and submission made by the learned counsel for the defendants, we proceed to modify the judgment and decree passed by the trial Court.
Accordingly, the appeal is allowed in part. The judgment and decree dated 21.04.2017 passed in O.S. No.82/2015 by the learned II Additional Senior Civil Judge, Hubballi, is modified. The plaintiffs are entitled for share only in respect of item Nos.1 to 5 in Schedule 'A' and plaintiffs are also entitled for share in schedule 'B' properties.
No order as to the cost.
Sd/-
JUDGE Sd/-
JUDGE Kmv upto para 16 & from para 20 till end.
PJ para Nos.17, 18 and 19.