Karnataka High Court
K Venkatesh vs Vasurao @ Vasudeva on 31 July, 2014
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
1 RSA NO.1114 OF 2004
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 31st DAY OF JULY 2014
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
R.S.A. NO. 1114 OF 2004 (PARTN.)
BETWEEN
1. K VENKATESH,
AGED 40 YEARS
2. SAROJINI, AGED 37 YEARS
3. RAJESH, AGED 34 YEARS
4. K RAGHAVENDRA, 31 YEARS
5. KUMARI MALINI, 35 YEARS
6. SHARADABAI, 60 YEARS
NO.1 TO 5 ARE THE CHILDREN AND
6 IS THE WIFE OF LATE K SHANKAR RAO
@ SHANKAR RAO ALL ARE R/O.NEAR JOD,
MARUTI TEMPLE, GADAG TALUK & DISTRICT.
SHANKAR RAO S/O GANAPATHI RAO IS THE
ORIGINAL DEFENDANT, HE DIED DURING
PENDENCY OF THE SUIT AND THE APPELLANTS
HEREIN ARE HIS LEGAL HEIRS.
- APPELLANTS
(BY SRI SANJAY S KATAGERI, ADV.)
AND
2 RSA NO.1114 OF 2004
VASURAO @ VASUDEVA
S/O.GANAPATRAO UDUPI
@ GANIGA @ PADUKONE
68 YEARS, R/O.NADA VILLAGE
KUNDAPUR TQ, SOUTH CANARA DISTRICT.
- RESPONDENT
(BY SRI B V SOMAPUR, ADV.)
THIS RSA IS FILED U/SEC 100 CPC AGAINST THE
JUDGMENT AND DECREE DATED:12.8.2004 PASSED IN RA.NO.
97/1998, ON THE FILE OF THE DISTRICT AND SESSIONS
JUDGE, GADAG DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED: 30.10.98 PASSED IN
OS.NO.583/90, ON THE FILE OF THE PRL.CIVIL JUDGE (JR.DN.),
GADAG.
THIS APPEAL HAVING BEEN RESERVED FOR
PRONOUNCEMENT OF JUDGMENT AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
1. Defendants of an original suit bearing No.583/1990 which was pending on the file of the Court of Prl. Civil Judge (Sr.Dn.), Gadag, are before this Court challenging the concurrent findings. Respondent herein is the only plaintiff in the said suit. Parties will be referred to as plaintiff and defendants as per their ranking in the trial Court. 3 RSA NO.1114 OF 2004
2. Plaintiff and deceased first defendant Shankarrao are own brothers. Second defendant Sharada Bai is the wife of the first defendant Shankar Rao, i.e., plaintiff's sister-in-law. Plaintiff chose to file a suit for the relief of partition and separate possession in respect of properties described in the schedule appended to the plaint in O.S.No.583/1990. The said suit was contested by the defendants and ultimately suit was decreed as prayed for. Against the said judgment and decree, an appeal under Section 96 of CPC was filed before the District Court at Gadag in R.A.No.97/1998. Several grounds had been urged in the appeal memo. After hearing the arguments on merits the said appeal has also been dismissed confirming the judgment of the trial Court. Hence concurrent findings are called in question before this Court by filing an appeal under Section 100 of CPC.
3. Facts leading to the filing of the suit before the trial Court are as follows:
4 RSA NO.1114 OF 2004
One person by name Ganapayya @ Ganapatrao Ganiga, was the father of the plaintiff and deceased defendant No.1. First defendant was the elder brother of the plaintiff. Both of them were doing petty business in their native place at Nada Village of Kundapur Taluk. In the year 1959, the plaintiff came to Gadag Town in the erstwhile Dharwad District and started hotel business in a rented building bearing CTS No.3374 under the name and style 'Mandarti Prasanna Tea Club'. According to the plaintiff, he was alone doing the said business. After one year first defendant came to Gadag and joined him and started helping him in the business. Plaintiff and first defendant were stated to be members of the undivided family and hotel business was continued by both of them.
From the earning of the hotel business, plaintiff and defendant No.1 acquired some properties at Gadag and Nada Village. According to the plaintiff, the properties were purchased by the plaintiff in the name of the first defendant as he was the elder member of the joint family. The property 5 RSA NO.1114 OF 2004 bearing CTS No.339/5A/1, Station Road, Gadag and house property bearing No.CTS 3738/1B and CTS No.6838 and 6938 have also been purchased in the name of the first defendant and property bearing CTS No.339/5B has been purchased in the name of second defendant out of the joint family funds.
It is the case of the plaintiff that he had to go to Nada Village in Kundapura District, for the purpose of managing the landed properties purchased by them in Nada Village and defendant No.1 continued to manage the hotel business at Gadag. At the time of plaintiff leaving Gadag, the license of the hotel business was transferred in the name of the first defendant. Plaintiff and defendant No.1 had owned three cars and they were being used as Taxis in Gadag Town. It is the case of the plaintiff that himself and defendants were residing in the same house as members of the undivided family. As such the properties described in schedule 'A' are joint family belonging to the plaintiff as well as the first defendant. 6 RSA NO.1114 OF 2004
In the year 1986 some differences of opinion arose between the plaintiff and defendant No.1 and went to the extent of filing a suit in O.S.No.196/1986 before the then Court of Prl. Munsiff at Kundapura District and obtained a temporary injunction against the plaintiff relating to management of the lands situated in Nada and Hadavu Village. First defendant wanted to take advantage of his name appearing as owner of those lands. In the meanwhile, the elders intervened in the matter and it was amicably compromised. In the said compromise, lands and houses situated at Nada and Hadavu Villages were partitioned between plaintiff and first defendant and the suit was disposed of as settled out of Court. The properties at Gadag and the business in Gadag were kept in common and no partition took place, is the stand of the plaintiff.
In 1972 plaintiff went back to Nada Village for managing the properties at Nada. Business at Gadag was being carried on by first defendant and he was paying sales tax of the hotel business. Since the first defendant did not pay sales tax for 7 RSA NO.1114 OF 2004 the year 1977-78 a notice was issued to the plaintiff calling upon him to pay the arrears of tax. Therefore, plaintiff told the defendants to clear the dues. Since he refused to pay the tax an order was passed by the tax authorities to recover the said tax from the plaintiff by distress. Therefore, plaintiff had to pay a sum of Rs.8,053.20/- to the Government. Plaintiff demanded the first defendant to render accounts of the hotel business and demanded partition of the schedule properties. He refused to effect partition and hence he was constrained to file a suit for partition and separate possession in respect of house property and hotel property at Gadag.
First defendant has filed detailed written statement denying all the material averments. According to him, the suit itself is not maintainable either in law or on facts. According to him, mother of the plaintiff and first defendant died in the year 1942 and plaintiff was hardly ten months old baby and defendant No.1 was five years old. As the plaintiff's father again married, plaintiff and first defendant had to reside with their maternal grandfather and he looked after 8 RSA NO.1114 OF 2004 them. In the year 1953 first defendant came to Gadag in search of job and served as a supplier in Madras Restaurant for two years and for two years in New restaurant and then for two years in Komal Vilas. One Andanappa Puthane was running a hotel by name Mandarti Prasanna in property bearing CTS No.3374 in 1959. First defendant took the said hotel business on rental basis and started running the same. Plaintiff came to Gadag in the year 1956 and was serving as a supplier in Vinod Bhavan and served there for two years. Later on he served in Karnataka Bhavan for two years. In the meantime, first defendant married and as plaintiff and defendant No.2 could not pull on well, defendant No.1 left the said Mandarti Hotel by giving the same to the plaintiff in order to run it independently in the year 1964. Then the first defendant took another hotel by name Mandarti Bhavan and carried on the business independently. One person by name K.Raghuram Siddu Shetty, was running the said Hotel as a tenant under the name and style Mandarti Bhavan in CTS No.339/A and 339/B and defendant No.1 entered into an 9 RSA NO.1114 OF 2004 agreement with said Raghuram. Later on he purchased the goodwill and furniture of the said Hotel. Since 1964 first defendant has been carrying on his business and hotel under the name and style of Mandarti Bhavan. Subsequently defendant Nos.1 and 2 purchased the hotel premises from the owner Vaidya by availing loan from Vijaya Bank. Plaintiff has no right over the said hotel business. From the business carried on in the said hotel, first defendant is stated to have earned money and purchased property at Nada Village.
First defendant's further case is that from 1964-78, plaintiff was running the Hotel under the name and style Madarti Prasanna Hotel in CTS No.3374 as tenant and in 1978 he closed the business and went to his native place. While going to Nada Village, plaintiff vacated the said premises and gave its actual possession to its owner M/s.Jodu Maruti Temple Trust. After some days, first defendant took the said premises on lease from the said Trust and started business under the name and style Mandarti Prasanna. Plaintiff is stated to have no right, title or interest 10 RSA NO.1114 OF 2004 over the said property. The properties are stated to be his self-acquired properties, is his case.
It is his case that as plaintiff was the assessee of the sale tax upto 1978 Sales Tax Department recovered the arrears of sales tax from him and the first defendant was not liable to pay sales tax till 1978. Since plaintiff and first defendant never carried on hotel business jointly and since defendant No.1 was never managing the alleged joint family business, first defendant is not liable to give any account of his hotel business. According to him, suit schedule movable and immovable properties are his self-acquired properties and no joint family funds have been invested in running the said hotels for purchasing movables or immovables.
According to him, hotel business carried on in property bearing CTS Nos.339/5a1 and 339/5B of Gadag collapsed in 1983 and defendants 1 and 2 have reconstructed the said premises by raising loan to an extent of Rs.1,00,000/- from Vijaya Bank and Jagadamba Co-operative Credit Society and Syndicate Bank. First defendant sustained loss in his 11 RSA NO.1114 OF 2004 business from 1980 and as such, he had to raise loans to an extent of Rs.1.5 lakhs and it is in this regard he had mortgaged the property those two properties in CTS No.339/5a1 and 339/5B for Rs.1,50,000/- to one Sri Bansali and others. A sum of Rs.50,000/- is stated to have been raised to improve Mandarti Prasanna Hotel and the debts are still subsisting.
Alternatively, it is averred that if the Court were to come to a conclusion that plaintiff is entitled for a share in the properties, plaintiff would be liable to pay proportionate debt. The suit is stated to have been filed to make a wrongful gain. Second defendant has chosen to adopt the said written statement filed by the first defendant. During the pendency of the suit first defendant Shankarrao died and his children were brought on record.
4. On the basis of the above pleadings following issues came to be framed:
12 RSA NO.1114 OF 2004
1. Whether the plaintiff proves that the suit properties are the joint family properties of plaintiff and defendants or their joint properties?
2. Whether the plaintiff proves that he has got half share in the suit property?
3. Whether the defendant No.1 proves that the suit properties are his self acquired properties?
4. Whether the defendant proves that this court has no pecuniary jurisdiction?
5. Whether the defendant proves that the court fee paid is proper?
6. Whether the plaintiff proves that the defendant is liable to account since 1986?
7. Whether the plaintiff is entitled for partition and separate possession of half share in the suit properties?
8. What order or decree?
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5. Plaintiff is examined as PWs.1 and 2 witnesses have been examined on his behalf. 15 exhibits have been got marked on behalf of the defendants. Second defendant is examined as DW1 and one Shrinivas Ramachandra Mayya is examined as DW2. 7 exhibits have been got marked on their behalf.
13 RSA NO.1114 OF 2004
6. On hearing the arguments and assessing the evidence the learned Civil Judge (Jr. Dn.), has answered issues 1 to 3 and issues 6 and 7 in the affirmative and issues 4 and 5 in the negative. Consequently, suit was decreed. Against the said judgment and decree an appeal was filed under Section 96 CPC before the Court of Civil Judge (Sr. Dn.) at Gadag. This was withdrawn and transferred to the District Court at Gadag and numbered as R.A.No.97/1998. Ultimately the said appeal has also been dismissed after contest. Hence concurrent findings are called in question.
7. Several substantial questions of law have been proposed in the appeal memo. After going through the records and hearing arguments on admission, this Court has framed the following substantial questions of law for consideration:
"Whether the judgment and decree passed by the trial Court in respect of property bearing CTS No.339/5B is perverse and arbitrary for non- consideration of the material on record and in the absence of specific finding that the property purchased in the name of second defendant-wife of 14 RSA NO.1114 OF 2004 the first defendant and sister-in-law of the plaintiff is also purchased out of the joint income of the plaintiff and the first defendant?"
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8. Learned Counsel for the appellants and learned Counsel for the respondent have submitted their arguments at length.
9. What is argued before this Court by the learned counsel for the appellants is that the trial Court as well as the first appellate Court have not properly assessed the material evidence placed on record and that there is no specific finding about the property purchased in the name of the second defendant by the first defendant out of the joint income of the plaintiff and the first defendant. It is in this regard the substantial question of law framed by this Court assumes importance.
10. Learned counsel for the appellants has relied upon a decision reported in AIR 1979 SC 1880 (SMT. KRISHNABAI GANPATRAO DESHMUKH VS. APPASAHEB TULJARAMRAO NIMBALKAR AND OTHERS) to contend that there is a bar 15 RSA NO.1114 OF 2004 u/S 92 of the Evidence Act to lead oral evidence contradicting the contents of the earlier registered document of partition. One more decision of the Apex Court reported in AIR 1954 SC 379 (SRINIVAS KRISHNARAO KANGO V. NARYAN DEVJI KANGO AND OTHERS) is relied upon to contend that the burden is upon the person to prove the existence of joint family property in case he pleads acquisition by a member of the joint family as self-acquired property. What is argued before this Court is that the present suit filed by the plaintiff is one for partial partition and therefore suit is not at all maintainable more particularly in the light of division of the joint family properties between the plaintiff and the defendant on 04.07.1986 as per Ex.P.7, a registered partition deed. It is argued that in the absence of the clear and acceptable evidence in regard to the existence of sufficient nucleus in the joint family, the acquisition of properties made by the deceased first defendant and his wife cannot be considered as acquired out of the joint family funds.
16 RSA NO.1114 OF 2004
11. Case of the first defendant is that, an out and out partition took place between himself and the plaintiff on 04.07.1986 and the same is evidenced through a partition deed which is registered before the Sub Registrar, Kundapura of erstwhile Dakshina Kannada District, now coming under the purview of Udupi District. On going through Ex.P.7 it is clear that both the plaintiff and defendant lived as members of the joint family, having acquired several properties in Kundapura Taluk through registered sale deeds and release deeds and they were being jointly cultivated by both of them. It also discloses that they had agreed to sever jointness of the family by allotting the properties they had acquired. Admittedly the properties which are the subject matter of division effected on 04.07.1986 vide Ex.P.7 had been purchased in the name of first defendant only.
12. Admittedly, first defendant was the elder amongst two, i.e., the plaintiff and defendant no.1. Properties described in Schedule A of Ex.P.7 have been allotted to the share of the 17 RSA NO.1114 OF 2004 first defendant and properties described in Schedule B have been allotted to the share of the plaintiff. All the properties mentioned in schedule 'A' and 'B' are situated in Nada village of Kundapura Taluk. 46 cents in sy. No. 22/2A1, 20 guntas in sy. No. 11, 17 guntas in sy. No. 2, 6 guntas in sy. No. 74/4, 16 guntas in sy. No. 71/10, 15 guntas in sy. No. 17 and 15 guntas in sy. No. 75 came to be allotted to the share of first defendant and 30 guntas of wet land and 34 guntas of wet land in sy. No. 20/7 and 13/8 and 36 guntas in sy. No. 17/2 came to be allotted to the share of the plaintiff. What is argued by the learned counsel for the plaintiff-respondent herein is that there is no reference in Ex.P.7 about the division of movable and immovable properties situated at Gadag. It is argued on behalf of the appellants that Ex.P.7 unequivocally indicates not only severance of the joint family but also division of all the joint family properties. Therefore, the said partition is an out and out partition without reserving any properties for partition in future. 18 RSA NO.1114 OF 2004
13. Learned counsel for the appellants has vehemently argued that if there was an intention to keep the properties at Gadag joint, a mention would have been definitely made in Ex.P.7 and the non-mentioning of the same is fatal to the case of the plaintiff-respondent.
14. It is useful to rely upon a decision of the Apex Court reported in AIR 1982 SC 760 equivalent to 1982 (1) SCC 447 (M/S KALLOOMAL TAPESWARI PRASAD (HUF), KANPUR VS. THE C.I.T., KANPUR). What is held in the said decision is that under Hindu Law a partition may be either total or partial and partial partition may be as regards persons who are members of the family or as regards the properties which belonged to it. It is further held that where there has been a partition, it is presumed that it was a total one both as to the parties and properties. But when there is a partition between brothers there is no presumption that there has been partition between one of them and his descendents. It is, however, open to a party, according to the Hon'ble Apex 19 RSA NO.1114 OF 2004 Court, who alleges that the partition has been partial either as to person or as to property, to establish the same. It is further held that such a question depends on proof what the parties intended - whether they intended partition to be partial either as to persons or as to properties as to both, when there is partial partition as to property, the family ceases to be undivided, so far as properties in respect of which such partition has taken place, but continues to be undivided with regard to the remaining family properties. Hence it is useful to refer to the entire observations made by the Apex Court in paragraph no.16 of the C.I.T. Kanpur's case. The same is reproduced below:
16. Under Hindu law partition may be either total or partial. A partial partition may be as regards persons who are members of the family or as regards properties which belong to it. Where there has been a partition, it is presumed that it was a total one both as to the parties and property but when there is a partition between brothers, there is no presumption that there has been partition between one of them and his descendants. It is, however, open to a party who alleges that the partition has been partial either as to persons or as to property to establish it. The decision on that question depends on proof of what the parties intended whether they intended the partition to be partial either as to persons or as to properties or as to both. When there is partial partition as to property, the family ceases to be 20 RSA NO.1114 OF 2004 undivided so far as properties in respect of which such partition has taken place but continues to be undivided with regard to the remaining family property. After such partial partition, the rights of inheritance and alienation differ accordingly as the property in question belongs to the members in their divided or undivided capacity. Partition can be brought about (1) by a father during his lifetime between himself and his sons by dividing properties equally amongst them, (2) by agreement or (3) by a suit or arbitration. A declaration of intention of a coparcener to become divided brings about severance of status. As observed by the Privy Council in Appovier v. Rama Subba Aivan (1866) 11 Moo Ind. Appellant. 75;"
"when the members of an undivided family agree among themselves with regard to a particular property, that it shall thenceforth be the subject of ownership, in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject-matter so agreed to be dealt with, and in the estate each member thenceforth a definite and certain share, which he may claim the right to receive and to enjoy in severalty, although the property itself has not been actually severed and divided".
"A physical division of the property which is the subject- matter of partition is not necessary to complete the process of partition in so far as that item of property is concerned under Hindu law. The parties to the partition may enjoy the property in question as tenants in common. In Approvier's case (supra) the Privy Council further laid down that "if there be a conversion of the joint tenancy of an 28 undivided family into a tenancy in common of the members of that undivided family, the undivided family becomes a divided family with reference to the property that is the subject of that agreement, and that is a separation in interest and in right, although not immediately followed by de facto actual division of the subject-matter. This may, at any time, be claimed by virtue of the separate right."
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21 RSA NO.1114 OF 2004
15. In this regard we will have to see as to whether plaintiff has been able to probabalize that the partition that took place vide Ex.P.7 in the year 1976 was a partial partition in regard to few joint family properties and that the properties at Gadag were specifically left out to be partitioned at a later stage.
16. Admittedly, first defendant had purchased some properties in his native village in his own name and on the strength of the said sale deeds he had filed a suit for permanent injunction against the plaintiff in the Civil Courts at Kundapura and had obtained a temporary injunction. At the intervention of the elders and well-wishers of the plaintiff and the deceased first defendant, a compromise took place between them and partition was effected in regard to the properties situated in the native village Nada of Kundapura Taluk.
17. As could be seen from the evidence on record, plaintiff went to his native village to look after the lands situated in Nada village. If they were the absolute properties of the 22 RSA NO.1114 OF 2004 deceased first defendant, plaintiff returning to his native place to look after these lands would not have arisen. The very fact that these lands were the joint family properties though stood in the name of the deceased first defendant, would go to show that plaintiff had equal share in all the properties. Plaintiff and defendant had no ancestral or joint family properties at their native place Nada. All these properties were acquired from 1966 to 1970 through various sale deeds by the first defendant for and on behalf of the joint family and the very contents of Ex.P.7 would go to show that plaintiff and himself were the members of the joint family jointly cultivating the lands in question.
18. What is argued before this Court is that the Mandarti Prasanna Hotel at Gadag was taken on lease by the plaintiff and he discontinued in the year 1972 while going back to his native place and therefore he did not contribute anything for the purchase of properties at Gadag. But the very admission of defendant no.2 examined as D.W.1 would clearly indicate 23 RSA NO.1114 OF 2004 that Mandarti Prasanna Hotel was being run from 1972 up to 1980 by her husband, i.e., the deceased first defendant. The relevant portion of the admissions found in paragraph no.15 of the deposition of D.W.1 is relevant and is reproduced after translating the same from Kannada to English.
"From 1972 to 1980 my husband ran Mandarti Prasanna Hotel. It is not true to suggest that my husband has not paid the sales tax for the said hotel.
If the plaintiff had really abandoned the hotel business in 1972 while going back to his native village there was no question of paying the sales tax to this hotel. First defendant who was running the said hotel was expected to pay the sales tax and in the light of non payment of the same, plaintiff came and paid the arrears as determined by the Sales Tax Department. If the hotel in question was not being run jointly by the plaintiff and defendant, question of plaintiff handing over Mandarti Prasanna Hotel to the elder brother of deceased first defendant would not have arisen."
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19. In fact, D.W.1 has admitted about her husband filing a suit against the plaintiff in a Civil Court at Kundapura and obtaining an order of injunction and later on suit ending in a compromise. Her assertion is that from 1964 the plaintiff and first defendant started running hotels separately at Gadag. If 24 RSA NO.1114 OF 2004 both of them were running hotels separately at Gadag, they could not have acquired the properties at Nada from 1966 up to 1970. Contents of Ex.P.7 would falsify the deposition of D.W.1. Plaintiff was running Mandarti Prasanna Hotel from 1964 and first defendant was running Mandarti Bhavan and D.W.1 has admitted to that effect in paragraph no.13 of her deposition. She has feigned ignorance about the suggestion put to her that plaintiff and her husband were working as owners of Komal Hotel and purchased Mandarti Prasanna Hotel out of the income from Komal Hotel. She has feigned ignorance about the Mandarti Prasanna Hotel being run earlier by Gurusiddappa Putane. She has deposed that her husband was running the same but the license was in the name of the plaintiff. If that was not being run as a joint family business, the plaintiff would not have allowed the first defendant to run the said hotel. D.W.1 has admitted about two acres of land owned by her husband. D.W.1 was a housewife and did not have any separate source of income. Whatever purchase is made must be deemed to have been 25 RSA NO.1114 OF 2004 made by the deceased first defendant in the name of his wife is out of the joint family funds. Apart from this, the income that was earned from the immovable properties at Nada were being given by the plaintiff to the first defendant more particularly when they were residing here. Evidence also discloses that the plaintiff lived along with the defendant and his wife till he got married at Gadag and later on started residing separately as he could not pull on with his sister in law, i.e., D.W.1. In fact, D.W.1 has admitted that the marriage of plaintiff was also took place in Gadag.
20. An attempt is made to impress upon the Court that the properties in Gadag were no way concerned to the plaintiff and therefore the plaintiff cannot file a suit seeking partition of the properties at Gadag. It is in this regard learned counsel for the plaintiff has relied upon Ex.D.1, an unregistered partition deed stated to have been executed between the plaintiff and defendant on 14.04.1984. Ramanna, H. Manjunath Adiga and Srinivas Mayya are the 26 RSA NO.1114 OF 2004 attestors to the said document marked as Ex.D.1 after confronting the same to P.W.1. Srinivas Mayya, attestor to Ex.D.1 is examined as D.W.2. He has not spoken anything about the execution of Ex.D.1 between plaintiff and defendant. He has only deposed to the effect that Mandarti Prasanna Hotel was taken on lease by deceased first defendant and he was running the said hotel and that plaintiff was working in the said hotel. It is not the case of the defendants that plaintiff was working under the deceased first defendant as an employee. An altogether new evidence is sought to be introduced by D.W.2 through Ex.D.1. Admittedly, plaintiff has denied the signatures found on Ex.D.1. Suggestion put to him that Ex.D.1 bears his signature has been specifically denied. No attempt is made to prove the same. In fact, the contents of Ex.D.1 would contradict with the contents of Ex.P.7, the registered partition deed.
27 RSA NO.1114 OF 2004
21. In Ex.D.1 there is a specific reference about the properties allotted to the share of plaintiff and defendant and there is also a mention in Ex.D.1 that no property situated in Gadag was allotted to the share of plaintiff. If a mention could be made in Ex.D.1 to the effect that the properties at Gadag are not the properties of plaintiff in the partition effected on 12.04.1984, it is highly un-understandable as to why such a mention is not made in Ex.p.7, the registered partition deed.
22. It is in this regard, the evidence of P.W.2-K.T. Babu Rao is very relevant, who is the cousin brother of D.W.1. In the entire evidence, D.W.1 has not attributed any malice to P.W.2. Admittedly, P.W.2 has no axe to grind on the defendants. He is close to the plaintiff as well as the defendants and the deceased first defendant. He has spoken about the marriages of plaintiff and first defendant. He has specifically deposed that after the marriage they were living in Gadag and later on plaintiff came to Nada village. His evidence is very much credible and though he has been cross 28 RSA NO.1114 OF 2004 examined at length, nothing has been culled out from his mouth to discredit his deposition. He is very much in the know of the transaction that took place between the plaintiff and defendant both at Gadag and their native place and the purchases made by the first defendant. In fact he has deposed in paragraph no.22 of his deposition that plaintiff was firm that a mention should be made in Ex.P.7 stating that the properties at Gadag would be divided amongst themselves at a later point of time.
23. An important document like Ex.D.1 is sought to be brought into evidence by the defendants without laying foundation in the written statement. The authenticity of the document is also denied by the plaintiff and no steps are taken in this regard to prove the authenticity of the same. In the light of the parol evidence and the surrounding circumstances, it cannot be said that plaintiff is inhibited from leading oral evidence contrary to the contents of Ex.P.7. What the plaintiff is trying to make is to supplement his 29 RSA NO.1114 OF 2004 stand of partial partition having taken place in 1986 and other properties at Gadag remaining undivided. This aspect is supported by the credible evidence of P.W.2. Therefore, bar u/S 92 as contemplated in Krishna Bai Ganapath Rao AIR 1972 SC 1880, is not applicable to the facts of the said case.
24. Insofar as the decision in Srinivas Krishna Rao Kango (AIR 1954 SC 1370) is concerned, plaintiff is able to prove that himself and the first defendant were working initially in different hotels at Gadag and they started doing business under the name and style Mandarti Prasanna Hotel and subsequently purchased another hotel run under the name and style Mandarti Bhavan and purchased a house and two cars. Apart from this, the property at Nada were already yielding income. The joint exercise made by the plaintiff and defendant in Gadag and the income that was being generated from the immovable properties at Nada was the nucleus to acquire the properties at Gadag. As already discussed, second defendant who is the wife of deceased first defendant 30 RSA NO.1114 OF 2004 had no independent source of income and was virtually a name lender for all the acquisitions made in favour of her by her husband.
25. Defendants have taken a specific stand in their written statement that deceased first defendant had to raise from Vijaya Bank and other financial institutions to purchase the house and Mandarti Prasanna Hotel. They have not produced any material to that effect. Mere pleadings would be insufficient to substantiate the same. Hence, the decision reported in AIR 1954 SC 379 is clearly distinguishable on facts.
26. The decision in C.I.T. Kanpur's case has been referred to and relied upon by a Division Bench of this Court in the case of Malipatil Basavarajappa Vs. Sarvamangala reported in 2011 (4) KCCR 2930 in paragraph no.21. It is to be seen that all the acquisitions made by the first defendant in his name and in the name of his wife at Gadag were prior to the partition effected in the year 1986 vide registered 31 RSA NO.1114 OF 2004 partition deed marked as Ex.P.7. From a conjoint reading of the documentary and oral evidence, it can be definitely inferred that the family continues to be joint even after execution of Ex.P.7 and the suit items at Gadag continue to be joint family properties. This is further fortified by the credible evidence of P.W.2 who was a witness to several transactions that took place between the plaintiff and the deceased first defendant.
27. Suffice to state that the trial Court as well as the first appellate Court have assessed the entire oral and documentary evidence in right perspective, that too testing the same on the touchstone of intrinsic probabilities. The defendants have not taken any specific stand about the acquisition of properties by the second defendant in her individual capacity and the source to purchase the same. They did not request the trial Court to frame a specific issue in regard to the acquisition of properties by the second defendant in her individual capacity. Even in the first appeal 32 RSA NO.1114 OF 2004 filed under Section 96 of CPC no such ground is taken. In the absence of specific pleadings, defendants cannot expect the Court to give a specific finding on the properties so purchased by the second defendant is not out of the joint family funds. Admittedly, second defendant is also a member of the joint family though not a coparcener.
28. As already discussed, she had no independent source of income to acquire any property. In the light of first defendant acquiring properties at Nada in his name and treating them as joint family properties at the time of executing Ex.P.6, the same is referable to the acquisition allegedly made in the name of the second defendant. Hence the acquisition of property bearing CTS No. 339/5B by the second defendant is out of the joint income of the plaintiff and the deceased first defendant.
29. Hence the judgment and decree of the trial Court as well as the first appellate Court insofar as it relates to CTS No. 339/5B cannot be considered either as perverse or arbitrary. 33 RSA NO.1114 OF 2004 It is also to be seen that the other findings given by the trial Court as well as the first appellate Court have remained in tact.
30. The only substantial question of law insisted for consideration by the learned counsel for the appellants is in regard to the acquisition made by second defendant relating to CTS No.339/5B. In the light of other findings of the trial Court as affirmed in the first appellate Court, the substantial question of law is held in the negative. Consequently, the appeal will have to be dismissed.
ORDER Appeal filed u/S 100 of CPC challenging the judgment and decree passed in O.S. No. 583/1990 and affirmed in R.A. No. 97/1998 is dismissed. Consequently, the judgments of both the Courts are upheld.
There is no order as to costs.
SD/-
JUDGE JT/bvv