Karnataka High Court
Babaji @ Bharatraj vs Gajanan on 20 January, 2022
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20TH DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A.NO.974/2008 (PAR)
C/W
R.S.A.NO.973/2008 (PAR)
IN R.S.A.NO.974/2008 (PAR)
BETWEEN
BABAJI @ BHARATRAJ
S/O BAPURAO @ SHANMUKH INGALEAGE
AGE : 55 YEARS OCC: SERVICE,
(STENOGRAPHER MUNSIFF AND
JMFC COURT, SINDGI)
R/O DARBARGALLI, BAGALKOT ROAD,
INFRONT OF SANGLIKAR CHAWL,
(INTERIOR) BIJAPUR-583101,
TQ: & DIST: BUJARPU.
...APPELLANT
(BY SRI V.M.SHEELVANT &
SRI S.H.MITTALKOD, ADVTS.)
AND
1. GAJANAN
S/O VITHOBA INGALE,
AGE 65 YEARS, OCC PRIVATE SERVICE,
R/O DARBARGALLI, BAGALKOT ROAD,
INFRONT OF SANGLIKAR CHAWL,
(INTERIOR)BIJAPUR,
TQ. AND DIST. BIJAPUR.
2. HARI S/O VITHOBA INGALE
SINCE DECEASED BY HIS LRS.,
2(A). VIJAYKUMAR S/O HARI INGALE,
AGE 53 YEARS, OCC: SERVICE,
R/O PLOT NO.71, PULAKESHI NAGAR,
2
MANAGOLI ROAD, BIJAPUR-586101.
2(B). SMT.SHOBHA
W/O TULASIDAS WALAKE
AGE 50 YEARS, OCC: HOUSEHOLD WORK,
R/O NEAR ALLAPUR GATE FORTE,
BEHIND HANUMAN TEMPLE,
NEAR ASHTAPAIL BUNGLOW, J.M.ROAD,
BIJAPUR-586101.
3. SMT.RUKAMANI
W/O VISHNU INGALE,
AGE : 65 YEARS, OCC: HOUSEHOLD WORK,
R/O : ATHANI-591304, BIJAPUR-586101.
4. JAGANNATH S/O BHANUDAS BHOSALE,
AGE : 62 YEARS, OCC: PRIVATE SERVICE,
R/O NEAR MULTANIYA, BAKERY,
KALYAN NAGAR, SOLAPUR-413007,
MAHARASHTRA.
5. SMT.SATYABHAMA
D/O BHANUDAS BHOSALE,
AGE : 59 YEARS, OCC: PRIVATE SERVICE,
R/O NEAR MULTANIYA, BAKERY,
KALYAN NAGAR, SOLAPUR-413007,
MAHARASHTRA.
6. SMT.SHAKUNTALA
W/O SHIVAJI INGALE,
AGE : 68 YEARS, OCC: HOUSEHOLD WORK,
R/O JALANAGAR, BIJAPUR-586101.
7. SMT.USHA W/O PRAMOD SHINDE,
AGE : 37 YEARS, OCC: HOUSEHOLD WORK,
R/O KOLEGALLI, PANDHARPUR-413403.
MAHARSHATRA.
8. SMT.LATA W/O POPAT DHUMALE,
AGE : 34 YARS, OCC: HOUSEHOLD WORK,
R/O BHAVALI TQ: PANDHARPUR-413403,
DIST: SOLAPUR, MAHARASHTRA.
9. ASHA W/O DHANJAYA ALAT,
AGE : 33 YEARS, OCC: HOUSEHOLD WORK,
R/O NO.1102, RAILWAY LINES,
SOLAPUR-413007, MAHARASHTRA.
3
10. UMA D/O SHIVAJI INGALE,
AGE : 30 YEARS, OCC: HOUSEHOLD WORK,
R/O DARBARGALLI, BIJAPUR-586101.
11. VANDANA D/O SHIVAJI INGALE,
AGE : 30 YEARS OCC: HOUSEHOLD WORK,
R/O DARBARGALLI, BIJAPUR-586101.
12. VISHNU S/O VITHOBA INGALE,
AGE : 54 YEARS, OCC: SERVICE (SUPRVISOR
TELEGRAPH'S OFFICE, ATHANI)
R/O TELEGRAPHS EMPLOYEES HOUSING COLONY,
NEAR RAGHAVENDRAMATH, ATHANI-591304,
TQ: ATHANI, DIST: BELGAUM.
13. SMT.LAXMIBAI W/O TUKARAM PAWAR,
AGE : 51 YEARS, OCC: HOUSEHOLD WORK,
R/O DARBARGALLI, BAGALKOT ROAD,
INFRONT OF SANGLIKAR CHAWL (INTERIOR),
BIJAPUR-586101.
TQ: AND DIST: BIJPAUR.
14. VASUDEV S/O VITHOBA INGALE,
AGE : 49 YEARS, OCC: SERVICE (LINEMEN,
TELEGRAPH'S OFFICE BIJAPUR),
OCC: BEHIND KSRTC WORKSHOOP,
BIJAPUR, TQ: AND DIST: BIJAPUR-586101.
15. DEVENDRA S/O VOTHOBA INGALE,
SINCE DECEASED REPRESENTED BY HIS LRS.,
15(A) SMT.REKHA W/O DEVENDRA INGALE,
AGE : 45 YEARS, OCC: HOUSEHOLD,
R/O DARABARGALLI, NEAR ANDU MAZJID,
SANGLIKAR CHAWL (INTERIOR),
BAGALKOT ROAD CROSS,
BIJAPUR-586101.
15(B) CHANDRAKANT S/O DEVENDRA INGALE,
AGE : 25 YEARS, OCC: AGRICULTURE,
R/O DARABARGALLI, NEAR ANDU MAZJID,
SANGLIKAR CHAWL (INTERIOR),
BAGALKOT ROAD CROSS,
BIJAPUR-586101.
15(C) SURYAKANT S/O DEVENDRA INGALE,
4
AGE : 23 YEARS, OCC: AGRICULTURE,
R/O DARABARGALLI, NEAR ANDU MAZJID,
SANGLIKAR CHAWL (INTERIOR),
BAGALKOT ROAD CROSS,
BIJAPUR-586101.
15(D) SMT.SUHASINI D/O DEVENDRA INGALE,
AGE : 21 YEARS, OCC: HOUSEHOLD WORK,
R/O DARABARGALLI, NEAR ANDU MAZJID,
SANGLIKAR CHAWL (INTERIOR),
BAGALKOT ROAD CROSS,
BIJAPUR-586101.
(BY SRI LAXMAN T MANTAGANI, ADV. FOR R.1, R3 TO R7 AND
R.9 TO R.14) (NOTICE TO R2A R2B, R8, R.15A TO R.15D:
SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING THIS
COURT TO SET ASIDE THE JUDGEMENT & DECREE DATED
11.01.2008 PASSED IN R.A.NO 101/1994 ON THE FILE FAST
TRACK COURT JAMKHANDI CONFIRMING THE JUDGEMENT AND
DECREE DATED 03.10.1989 PASSED IN O.S.NO.227/1989 ON
THE FILE OF THE CIVIL JUDGE, PRINCIPAL MUNICIF, BIJAPUR.
IN R.S.A.NO.973/2008 (PAR)
BETWEEN
BABAJI @ BHARATRAJ
S/O BAPURAO @ SHANMUKH INGALEAGE
AGE : 55 YEARS OCC: SERVICE,
(STENOGRAPHER MUNSIFF AND
JMFC COURT, SINDGI)
R/O DARBARGALLI, BAGALKOT ROAD,
INFRONT OF SANGLIKAR CHAWL,
(INTERIOR) BIJAPUR-583101,
TQ: & DIST: BUJARPU.
...APPELLANT
(BY SRI V.M.SHEELVANT,
SRI G.S.KANNUR, &
SRI S.H.MITTALKOD, ADVTS.)
AND
1. GAJANAN
S/O VITHOBA INGALE,
AGE 65 YEARS, OCC PRIVATE SERVICE,
5
R/O DARBARGALLI, BAGALKOT ROAD,
INFRONT OF SANGLIKAR CHAWL,
(INTERIOR)BIJAPUR-586101,
TQ. AND DIST. BIJAPUR.
2. HARI S/O VITHOBA INGALE
SINCE DECEASED REPRESENTED BY HIS LRS.,
2(A). VIJAYKUMAR S/O HARI INGALE,
AGE 53 YEARS, OCC: SERVICE,
R/O PLOT NO.71, PULAKESHI NAGAR,
MANAGOLI ROAD, BIJAPUR-586101.
2(B). SMT.SHOBHA
W/O TULASIDAS WALAKE
AGE 50 YEARS, OCC: HOUSEHOLD WORK,
R/O NEAR ALLAPUR GATE FORTE,
BEHIND HANUMAN TEMPLE,
NEAR ASHTAPAI BUNGLOW, J.M.ROAD,
BIJAPUR-586101.
3. SMT.RUKAMANI
W/O VISHNU INGALE,
AGE : 65 YEARS, OCC: HOUSEHOLD WORK,
R/O : ATHANI-591304, BELGAUM.
4. JAGANNATH
S/O BHANUDAS BHOSALE,
AGE : 62 YEARS, OCC: PRIVATE SERVICE,
R/O NEAR MULTANIYA, BAKERY,
KALYAN NAGAR, SOLAPUR-413007,
MAHARASHTRA.
5. SMT.SATYABHAMA
D/O BHANUDAS BHOSALE,
AGE : 59 YEARS, OCC: PRIVATE SERVICE,
R/O NEAR MULTANIYA, BAKERY,
KALYAN NAGAR, SOLAPUR-413007,
MAHARASHTRA.
6. SMT.SHAKUNTALA
W/O SHIVAJI INGALE,
AGE : 68 YEARS, OCC: HOUSEHOLD WORK,
R/O JALANAGAR, BIJAPUR-586101.
7. SMT.USHA W/O PRAMOD SHINDE,
AGE : 37 YEARS, OCC; HOUSEHOLD WORK,
6
R/O KOLEGALLI, PANDHARAPUR.
MAHARSHATRA.
8. SMT.LATA W/O POPAT DHUMALE,
AGE : 34 YEARS, OCC: HOUSEHOLD WORK,
R/O BHAVALI TQ: PANDHARPUR-413403,
DIST: SOLAPUR, MAHARASHTRA.
9. ASHA W/O DHANANJAY ALAT,
AGE : 33 YEARS, OCC: HOUSEHOLD WORK,
R/O NO.1102, RAILWAY LINES,
SOLAPUR-413007, MAHARASHTRA.
10. UMA D/O SHIVAJI INGALE,
AGE : 30 YEARS, OCC: HOUSEHOLD WORK,
R/O DARBARGALLI, BIJAPUR-586101.
11. VANDANA
D/O SHIVAJI INGALE,
AGE : 30 YEARS OCC: HOUSEHOLD WORK,
R/O DARBARGALLI, BIJAPUR-586101.
12. VISHNU
S/O VITHOBA INGALE,
AGE : 54 YEARS, OCC: SERVICE (SUPRVISOR
TELEGRAPH'S OFFICE, ATHANI)
R/O TELEGRAPHS EMPLOYEES HOUSING COLOY,
NEAR RAGHAVENDRAMATH, ATHANI-591304,
TQ: ATHANI, DIST: BELGAUM.
13. SMT.LAXMIBAI
W/O TUKARAM PAWAR,
AGE : 51 YEARS, OCC: HOUSEHOLD WORK,
R/O DARBARGALLI, BAGALKOT ROAD,
INFRONT OF SANGLIKAR CHAWL (INTERIOR),
BIJAPUR-586101.
TQ: AND DIST: BIJPAUR.
14. VASUDEV S/O VITHOBA INGALE,
AGE : 49 YEARS, OCC: SERVICE (LINEMEN,
TELEGRAPH'S OFFICE BIJAPUR),
OCC: BEHIND KSRTC WORKSHOOP,
BIJAPUR, TQ: AND DIST: BIJAPUR-586101.
15. DEVENDRA
S/O VOTHOBA INGALE,
SINCE DECEASED REPRESENTED BY HIS LRS.,
7
15(A) SMT.REKHA
W/O DEVENDRA INGALE,
AGE : 45 YEARS, OCC: HOUSEHOLD,
R/O DARABARGALLI, NEAR ANDU MAZJID,
SANGLIKAR CHAWL (INTERIOR),
BAGALKOT ROAD CROSS,
BIJAPUR-586101.
15(B) CHANDRAKANT
S/O DEVENDRA INGALE,
AGE : 25 YEARS, OCC: AGRICULTURE,
R/O DARABARGALLI, NEAR ANDU MAZJID,
SANGLIKAR CHAWL (INTERIOR),
BAGALKOT ROAD CROSS,
BIJAPUR-586101.
15(C) SURYAKANT
S/O DEVENDRA INGALE,
AGE : 23 YEARS, OCC: AGRICULTURE,
R/O DARABARGALLI, NEAR ANDU MAZJID,
SANGLIKAR CHAWL (INTERIOR),
BAGALKOT ROAD CROSS,
BIJAPUR-586101.
15(D) SMT.SUHASINI
D/O DEVENDRA INGALE,
AGE : 21 YEARS, OCC: HOUSEHOLD WORK,
R/O DARABARGALLI, NEAR ANDU MAZJID,
SANGLIKAR CHAWL (INTERIOR),
BAGALKOT ROAD CROSS,
BIJAPUR-586101.
(BY SRI LAXMAN T MANTAGANI, ADV. FOR R.1, R3 TO R7 AND
R.9 TO R.14) (NOTICE TO R2A R2B, R8, R.15A TO R.15D ARE :
SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING THIS
COURT TO SET ASIDE THE JUDGEMENT & DECREE DATED
11.01.2008 PASSED IN R.A.NO 101/1994 ON THE FILE FAST
TRACK COURT, JAMKHANDI CONFIRMING THE JUDGEMENT AND
DECREE DATED 03.10.1989 PASSED IN O.S.NO.227/1989 ON
THE FILE OF THE CIVIL JUDGE, PRINCIPAL MUNICIF, BIJAPUR.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
8
: JUDGMENT :
The captioned second appeals are filed by the plaintiff questioning the judgment and decree of the First Appellate Court which has modified the judgment and decree of the Trial Court by dismissing the suit insofar as Schedule-B properties are concerned.
2. It would be useful for this Court to refer the genealogy of the family between the parties, the same is as follows:
PROPOSITOR BAPU (Had three sons and one daughter) Son Son Son Daughter Dattu Vithoba Babaji Harnabai (Died (Died durin (Died during (Died Issueless. 1962) 1924) issueless) 1st wife Dhondibal Wife Godibal (Died, issueless) (Died, during 1968 2nd Wife Durapatabai Daughter Son Daughter Died during 1972) Bhagirathi Bapurao Shevantabai @ Bhagubai @ Shanmukh (died, during 1985) Son son dtr. Son son dtr. Son Son Gajanan Hari Shantha Shivaji Vishnu Laxmibai Vasudev Devendra (D1) (D2) (D3) (D4) (D5) (D6) (D7) (D8) Wife Rukminibai (Died, during 1950) (Had only one son to them) Babaji @ Bharatraj(Plainitff) 9
3. The present appellant/plaintiff claims that he represents Babaji's branch. Propositus Bapu had four sons by name Dattu, Vithoba, Babaji and Harnabai. In the family tree, it is shown that the elder son Dattu and daughter Harnabai died issueless. Therefore, the contest is only between two branchs i.e., Vithoba Branch which is represented by defendants and Babaji branch which is represented by plaintiff. The appellant/plaintiff filed a suit for partition and separate possession in O.S.No.227/1989. The appellant/plaintiff contended that the propositus Bapu had inherited ancestral house bearing CTS No.699 which is referred as Schedule-A to the Plaint. The appellant/plaintiff contended that after death of propositus Bapu, his legal heirs namely Vithoba and Babaji inherited Schedule-A property. It is the specific case of appellant/plaintiff that Vithoba and Babaji while living jointly have purchased Schedule-B property with the aid of joint family funds for consideration of Rs.250/- through a registered sale deed way back in the year 1919. The 10 appellant/plaintiff contends since Vithoba was the manager of the joint family, the sale deed was registered in his name. However, the appellant/plaintiff contends that, though the sale deed was registered in the name of Vithoba, however Schedule-B was purchased by utilizing joint family funds and therefore it is joint family ancestral property and appellant/plaintiff representing branch of Babaji is entitled for half share in the Schedule-B property also.
4. The grievance of the appellant/plaintiff is that since he is residing at Bijapur, it is contended that respondents/defendants are taking undue advantage and therefore he was compelled to file a suit for partition and separate possession. The said suit was contested by the respondents/defendants by stoutly denying the entire averments made in the Plaint. Respondents/defendants specifically contended that it is only Schedule-A property which is a residential house which is ancestral property of appellant/plaintiff and respondents/defendants. However, respondents/ 11 defendants stoutly denied that Schedule-B property is also joint family ancestral property. It was specifically contended that Schedule-B property was purchased by Vithoba from his self earnings and therefore no share can be granted to the appellant/plaintiff in the Schedule-B property. The respondents/defendants further specifically averred in the written statement that both the brothers i.e., Vithoba and Babaji were living separately and they had independent transaction. It is also specifically pleaded in the written statement that after marriage, Vithoba and Babaji started residing separately and therefore question of joint nucleus and there by purchasing Schedule-B property jointly would not arise at all. On these set of pleadings respondents/defendants sought for dismissal of the suit.
5. The Trial Court having assessed oral and documentary evidence has answered Issue No.1 in the affirmative and Issue No.2 in the negative and has 12 proceeded to decreed the suit granting half share to appellant/plaintiff in the both the properties.
6. The respondents/defendants feeling aggrieved by the judgment and decree of the Trial Court in granting share in Schedule-B property also preferred appeal before the First Appellate Court in R.A.No.101/1994. The Appellate Court on re- appreciation of oral and documentary evidence, has reversed the finding of the Trial Court. The Appellate Court having independently assessed the oral and documentary evidence has meticulously referred to all the documents which were placed on record by the appellant and respondents. The Appellate Court has taken note of the sale deed registered in the name of Vithoba pertaining to Schedule-B property. The Appellate Court while examining Ex.P.3 which is a sale deed pertaining to Schedule-B property, which is of the year 1919, the Appellate Court has also meticulously examined the cross-examination of appellant/plaintiff. In cross-examination, the respondents/defendants have 13 succeeding in eliciting that Vithoba and Babaji were in- fact doing coolie work. Taking note of this material aspect, the Appellate Court was of the view that the family of appellant/plaintiff and respondents/defendants at the relevant point of time did not possess joint nucleus and also did not possess joint family property which yielded income. The Appellate Court has further examined the sale transaction entered into by grandfather of plaintiff herein pertaining to Sy.No.10 during the year 1917. The Appellate Court has also taken judicial note of the fact that after death of Babaji, his widow Godabai and son have sold Sy.No.10 way back in the year 1946. The Appellate Court on re- appreciation of evidence has also taken a different view insofar as sale pertaining to Sy.No.10 as per Ex.D.3 is concerned. The Appellate Court was of the view that, the Trial Court has misread the evidence and has come to conclusion that Vithoba was also signatory to Ex.D.3.
7. However, on re-appreciation, it was found that defendants' ancestor namely Vithoba was not at all 14 party to Ex.D.3. On re-appreciation of oral and documentary evidence, the Appellate Court has come to conclusion that family of appellant/plaintiff and respondents/defendants did not constitute an undivided joint family, they did not possess properties which generated surplus income from which two brothers could have invested the said income to purchase Schedule-B property. On the contrary PW.1 in the cross-examination has admitted that both the brothers were doing coolie work.
8. On perusal of the judgment under challenge, I would find that the families of appellant/plaintiff and respondents/defendants possessed one ancestral house, which is not in dispute. If the family of appellant/plaintiff and respondents/ defendants possessed only an ancestral house, then the theory set up by the appellant/plaintiff in the plaint that the joint income was utilized to purchase schedule-B property cannot be believed. If the evidence on record indicates that it is not only Vithoba who had purchased Schedule- 15 B property, but Babaji also during his life time has purchased some properties which were sold by his legal heirs after his death, the same is forthcoming in sale deed executed by widow of Babaji and his son namely Bapurao.
9. It is a trite law that through there is a presumption in regard to existence of a joint family, however a property cannot be presumed to be a joint family, property. Merely because of existence of a joint family burden to prove it to be a joint family property lies on the person who asserts it. Initial burden is always on the plaintiff to show that the family possess of sufficient nucleus and it is with the aid of the joint family funds, the properties are acquired and it is only then that the presumption would be that property is joint and onus shift upon the person claiming it to be self acquired. This Court and the Apex Court in catena of judgments have held that there is a no presumption that the property is joint family property even when there is presumption of a joint family. Therefore 16 property held by a member cannot be presumed to be joint family property and the person alleging must prove sufficient nucleus and absence of separate fund of the acquirer to acquire the property. It is only when nucleus is proved, the property acquired in the name of a 'kartha' or in the name of a person in management of joint family property shall be presumed to be the joint family property. Therefore, what emerges from these principles is that it is only after possession of an adequate nucleus is shown, the onus shifts on to the person who claims the property as self acquired to show that he has purchased the property in question with his individual resources and without the help of family assets. In the present case on hand admittedly, the family of plaintiff and defendant only owned one ancestral house. Therefore both the courts have pointed out that plaintiff has failed to prove that there was a family nucleus and the said family nucleus was sufficient to purchase the property. In the present case on hand the onus never shifted on the respondents- 17 defendants to prove that their ancestors purchased from their individual income. Therefore inevitable conclusion in the present case would be that properties which were purchased by defendants' ancestor were never acquired with the aid of joint family fund as the family did not possess nucleus.
10. The residential house admittedly would not generate any income as that would be occupied by joint family members. The question of presumption also would not arise in the present case on hand because it is the grandson of Babaji who is asserting that the properties are joint family ancestral properties. As we go down the degree, the presumption stands diluted and the same is not at all available. The clinching rebuttal evidence which is placed on record by the respondents/defendants would clearly establish that there was no joint nucleus, the family did not possess any property which would have yielded surplus income which could have been saved and utilized for purchasing properties.
18
11. Therefore, I am of the view that the judgment and decree of the Appellate Court in decreeing the suit of the appellant/plaintiff only in respect of Schedule-A property is based on the evidence on record. I do not find any infirmities or illegalities in the judgment and decree of the Appellate Court in dismissing the suit insofar as Schedule-B property is concerned. If the sale deed of the year 1919, at this juncture the question of examining whether it was purchased by utilizing joint family fund would be a futile effort. Babaji during his life time never asserted his right in his brother's property. It appears grandson has made a feeble attempt and has taken chance by filing the present suit. There is no even slender evidence to examine and test whether the sale deed registered in the name of Vithoba pertaining to Schedule-B property out of joint family funds. There is absolutely no materials on record, the Appellate Court has rightly appreciated oral and documentary evidence and has come to conclusion it is only Schedule-A 19 property which is available for partition, I do not find any infirmities and illegalities. No substantial question of law arises. Accordingly the appeal is devoid of merits and the same stands dismissed.
12. The connected RSA.No.973/2008 is filed claiming mesne profit in respect of Schedule-A property. It is nobodies' case that Schedule- A property is the rented or which was utilized for any other purpose which could have generated income. If the property is utilized by family members, both the Courts have rightly dealt with the issue and declined to grant mesne profit in respect of Schedule-A property. Concurrent findings recorded by the Courts below declining to award mesne profit cannot be examined under Section 100 of CPC.
13. Accordingly, the appeal does not warrant any substantial question of law and the same also stands dismissed.
Sd/-
JUDGE EM