Karnataka High Court
Munivenkatappa vs Smt Muniyamma on 21 December, 2023
Author: V. Srishananda
Bench: V. Srishananda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
REGULAR FIRST APPEAL No.1812/2007(PAR)
BETWEEN
1. MUNIVENKATAPPA
S/O LATE YERAPPA
AGED ABOUT 64 YEARS
2. SMT VARALAKSHMAMMA
W/O MUNIVENKATAPPA
AGED ABOUT 40 YEARS
3. KUM ROJA
D/O MUNIVENKATAPPA
AGED ABOUT 14 YEARS
4. GANGADHARA
S/O MUNIVENKATAPPA
AGED ABOUT 12 YEARS
5. RAJA
S/O MUNIVENKATAPPA
AGED ABOUT 10 YEARS
6. KUM UMA RANI
D/O MUNIVENKATAPPA
AGED ABOUT 08 YEARS
ALL ARE RESIDENTS OF
NAGASHETTIHALLI VILLAGE
KAMMASANDRA POST
2
BETHAMANGALA HOBLI
BANGARPET TALUK
(WRONGLY SHOWN AS KOLAR TALUK IN THE
TRIAL COURT)
KOLAR DISTRICT -563 129
APPELLANTS 3 TO 6 ARE SINCE MINORS
REPRESENTED BY THEIR MOTHER
NATURAL GUARDIAN
SMT VARALAKSHMAMMA
-APPELLANT NO.2 HEREIN.
...APPELLANTS
(BY SRI C M NAGABUSHANA AND
SRI P.V.CHANDRASHEKAR, ADVOCATES)
AND
1. SMT MUNIYAMMA
W/O MUNIVENKATAPPA
AGED ABOUT 55 YEARS
2. VENKATARAJU
S/O MUNIVENKATAPPA
AGED ABOUT 38 YEARS
3. SRINIVAS
S/O MUNIVENKATAPPA
AGED ABOUT 34 YEARS
PARTIES 1 TO 3 ARE
RESIDENTS OF LAKSHMISAGARA VILLAGE
NARSAPURA HOBLI
KOLAR TALUK -563 133
4. SMT LAKSHMIDEVAMMA
W/O MUNIRAJU
AGED ABOUT 36 YEARS
3
R/AT KODIKONNURU VILLAGE
KASABA HOBLI
KOLAR -563 101
5. SMT BHARATHI
W/O KRISHNA KUMAR
AGED ABOUT 32 YEARS
R/AT HUNASENAHALLI
KASABA HOBLI
KOLAR -563 101
6. RAJA REDDY
S/O PAPAIAH REDDY
AGED ABOUT 47 YEARS
R/AT NO.70/1, AJANTA NIVAS
3RD MAIN, SRI CHOWDESHWARI LAYOUT
MARATHAHALLI
BANGALORE - 560 037
7. K R SANTOSH
S/O K RANGAIAH
AGED ABOUT 45 YEARS
R/AT RANGAPPA COMPOUND
GOWRIPET
KOLAR -563 1 101
...RESPONDENTS
(BY SRI K.RAGHAVENDRA RAO, ADVOCATE FOR R2 TO R3;
SRI C M VENKATA REDDY, ADVOCATE FOR R1;
SRI K.BHANU PRASAD, ADVOCATE FOR R6;
SMT.VIDYA SELVAMONY, ADVOCATE FOR R4 TO R5;
SRI RAKSHIT K.N, ADVOCATE FOR R7;)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF CIVIL PROCEDURE CODE AGAINST THE
4
JUDGMENT AND DECREE DATED 23.01.2007 PASSED IN
O.S.NO.117/1997 ON THE FILE OF THE I ADDL.CIVIL
JUDGE (SR.DN.) KOLAR, PARTLY DECREEING THE SUIT
FOR PARTITION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-
JUDGMENT
The present appeal is filed by defendant Nos.1 to 6 challenging the validity of the judgment and decree passed in O.S.No.117/1997 dated 23.01.2007 on the file of the I Additional Civil Judge (Sr.Dn.), Kolar.
2. For the sake of convenience, parties are referred to as plaintiffs and defendants as per their original ranking before the Trial Court.
3. The facts which are utmost necessary for disposal of the present appeal are as under:
5
The family pedigree is as under:
Munivenkatappa 54 years 1st wife 2nd wife Muniyamma 45y Narayanamma, 22 yrs Roja 1 year Venkatarama Srinivas Laksmidevi Bharathi 31 yrs 26 yrs 25 yrs 23 yrs
4. Plaintiffs filed the suit in respect of 17 movable and immovable properties morefully described hereunder and hereinafter referred to as suit properties for the sake of convenience with the following prayer:
Schedule Properties "1. Agricultural land bearing Sy.No.59, measuring 1-
05 acres, assessed at Rs.2/- situated at Lakshmisagara Village, Kolar, bounded on East by Muniyappa Land, West by Plantation, North by Lakshmaiah Land, South by : Basamma Land.
2. Agricultural land bearing Sy.No.19/2A measuring 1.01 acres situated at Lakshmisagara Village, Kolar Taluk, bounded on East by: Govindamma land, West 6 by Ramaiah land, North by Sites and South by Shemanna Land, assessed at Rs.2.10/-.
3. Agricultural land bearing Sy.No.136, measuring 3- 00 acres assessed at Rs.6/- situated at K.B.Hoshalli, Narasapura Hobli, Kolar Taluk. bounded on East by:
Rajanna land, West by Joint family lands, North by Bande and South by Krishnareddy land.
4. Agricultural land bearing Sy.No.11, measuring 3.00 acres assessed at Rs.4.23/- situated at Lakshmisagara Village, Kolar Taluk, bounded on eest by Bachanna land West by : Plantation North by Gopalareddy lands and South by Inamathi lands.
5. Agricultural lands bearing Sy.no.34, measuring 25 guntas, assessed at 1.01 rupees, situated at Lakshmisagara village, Srinivaspur Taluk, bounded on East by: Ramaiah and "Lakshmiah Lands West by Govindamma land North by: Govindamma land South by Krishnappa land.
6. Agricultural land bearing Sy.No. 15, measuring 1.31 acres assessed at Rs.2.51/- situated at Lakshmisagara Village, Kolar Taluk, bounded on East by Tank bund West by Plantation North by Joint family property, South by Joint family property.
7. Agricultural land bearing Sy.No.46 measuring 1.17 acres and Karab 14 guntas, assessed at Rs.1.75/- out of this 29 guntas, situated at Lakshmisgara Village, Kolar Taluk, bounded on East by Sites West by Bande 7 North by Govindappa land and South by Munegowda and Shamanna land.
8. Agricultural land bearing Sy.No.136, measuring 3.00 acres assessed at Rs.6.00/- situated at K.B.Hosahalli, Kolar Taluk bounded on East by Joint family property West by Muniraju land North by Bande and South by Krishnappa land.
9. Agricultural land bearing Sy.No.194, measuring 3.00 acres assessed at Rs.3.95/- situated at K.B.Hosahalli bounded on East :Rajareddy Factory, West by 136 Land North by Bande and South by Krishnappa land
10. Tractor and trailor bearing registration No. AAY 4734 and AAY 4735.
11. Lands bearing Sy. No.13, measruing 2 acres Sy.No.14 measuring 5 acres 32 guntas, Sy.No.16 measuring 7 acres 5 guntas in all 14 acres 37 guntas, situated at Nagasheettihalli village and having common boundaries bounded on East by Adolla Venkataramappa's land, North by Nagashetti halli Kere Angala, South by Chinnapalli Kondandappa Munirerappa's land.
12. House property bearing Katha No.8, assessment No.34, measuring 62'x 36' situated at Lakshmisagara village, bounded on East by Lakshmaiah house, West by Ramaiah house, North by Govindamma House, south by Ramaiah vacant site.
8
13. Vacant site measuring 40'x60' katha No. Old 164/157 N-14 assessment No.180/169 New No.14 situated at Gandinagar, Kolar town with house measuring 23½ x 11½ thereon bounded on East by Balaji's land, West by Narayanappa, South by Government land, North by Appojappa's house, assess at Rs.45/-.
14. Land bearing Sy.No.59, measuring 1.5 acres situated at Lakshmisagara village, bounded on East by Muneerappa land West by Plantation, North by Munivenkatappa's land, South by Basammas land.
15. Vacant site granted from the Govt. measuring 30'x 40 situated at Lakshmisagara village, Kolar Taluk, bounded on East by : Lakshmaiah's site, West by Chikkamuniyappa site, North road, South by suit schedule Sy. No.19. The grant certificate and the katha extract will be produced at a latest stage.
16. House property bearing No. 18 property No.21, measuring 12' x 29' with sheet roofed house, with vacant site, measuring 18' 19' situated at Nagashettihalli village, bounded on East by Ganti Muniswamy vacant site, West by Road, North by Passage and Nallappa's house property and South by Sandelli Kondappa's house property.
17. Land bearing Old Sy.No.44(new Sy.No.60) measuring 1-07 acre with standing eucalputs trees, situated at Uddappanahalli, Narasapura Hobli, Kolar 9 Taluk, bounded on East by Poojrappa land, West Government Plantation, North by Sy. No.11 suit item No.4 (our own lands) and South by suit item No.1 Sy. No.59 of our own land."
Prayer in the plaint is as under:
"Wherefore, it is prayed that this Hon'ble Court be pleased to pass judgment and decree in favour of the plaintiffs by declaring their 1/6th share to each of the plaintiffs in the suit schedule properties by effecting partition and put them in their respective possession with metes and bounds and also make enquiry for mesne profits and declare plaintiffs share and also award costs of this suit and such other reliefs in the interest of justice and equity."
5. Plaint averments reveal that the common propositus being Yerappa, was in adverse possession and cultivation of agricultural lands and he had applied for re-grant of said lands when Inam Abolition Act came into force. After Yerappa died, suit properties came to be re-granted in the name of first defendant. Out of the income from the agricultural lands, plaintiffs and defendants acquired house sites at Lakshmisagara village and constructed house and 10 joint family also acquired a house site at Gandhinagar, Kolar.
6. It is further contended that plaintiffs and defendant No.1 are in joint possession and enjoyment of all the suit properties. It is also contended that out of joint family income, 20 acres of agricultural lands are also purchased at Nagashettihalli village, Bethamangala Hobli, Bangarpet Taluk, in the name of first defendant. It is also the contention of the plaintiffs that a tractor and trailer was purchased from the joint family income and said vehicle was also possessed by the first defendant.
7. Plaintiffs further contended that first defendant had illicit relationship with one Smt.Narayanamma and started residing with her in Kadirenakota, Bethamangala Hobli, Bangarpet Taluk. Plaintiff opposed the illegal acts of first defendant and advised him not to quarrel with the plaintiffs. Plaintiffs also demanded their legitimate share in the suit properties, as the first defendant failed to give up the illicit relationship with Smt.Narayanamma. The 11 demand made by plaintiffs was flatly refused by first defendant resulting in filing of suit by plaintiffs seeking their legitimate share, as aforesaid.
8. In pursuance of the summons issued in the suit, first defendant appeared before the Court and filed detailed written statement. He admitted the relationship of plaintiffs with him but denied all other averments made in the plaint.
9. He also contended that plaintiffs did not approach the Court with clean hands and contended that first plaintiff deserted the first defendant about 20 years earlier and at that point of time, the relationship was snapped by giving properties to the first plaintiff. He also contended that plaintiff Nos.2 and 3 were working as drivers and it is the first defendant who performed the marriages of plaintiff Nos.4 and 5.
10. He also contended that plaintiffs are living separately and are not having any sort of connection with the first defendant and suit item Nos.1, 3 to 6, 9, 11, 13, 14, 15 12 are the self acquired properties of the first defendant and therefore, the suit is to be dismissed.
11. He specifically contended that suit item Nos.2 and 7 are the only ancestral properties and item No.8 is the agricultural land granted in favour of second plaintiff by the Government and therefore, it is not a joint family property. He also maintained that suit item No.10 is not in possession and enjoyment of the first defendant and the said property has got nothing to do with the joint family. He specifically contended that item No.12 does not belong to the first defendant and about 20 years ago plaintiff Nos.1 to 5 took their share in the joint family in a oral partition and started living separately and therefore, the suit is to be dismissed.
12. Defendant Nos.2 to 6 though appeared before the Court did not chose to file any written statement. Defendant No.7 also has not filed any written statement.
13. Defendant No.8 filed a separate written statement contending that first defendant stood as surety to accused 13 in S.C.No.133/2002 and he had offered the land Sy.No.11 measuring 6 acres situated at Lakshmisagara village, Narasapura Hobli, Kolar Taluk i.e., which is item No.4 as security for his appearance. As the accused in the said case failed to appear before the Court, Sessions Court issued Fine Levy Warrant against the first defendant. When the Fine Levy Warrant was not complied by the first defendant, land in suit item No.4 was put to Court auction and as per Court Order dated 21.01.2006, 8th defendant purchased the said property in the Court auction for a sum of Rs.12,400/- and therefore item No.4 is to be excluded from partition.
14. Based on the rival contentions of the parties, the learned Trial Judge raised the following issues and additional issues:
1. Whether the plaintiff proves that the suit schedule properties are joint family properties and they are entitled to 1/6th share in the suit schedule properties?14
2. Whether defendant proves that the item No.1, 3, 4, 5, 6, 9 to 15 are his self acquired properties and only item No.2 & 7 are the ancestral properties and the plaintiffs have no right over the above said items of the properties?
3. Whether the defendant further proves that he is not the owner and trailer shown in the plaint?
4. Whether the defendant No.1 further proves that there is no relationship with the suit schedule properties and the 1st plaintiff is not entitled for any share as she deserted him in the circumstances stated in para 9 of the plaint?
5. Whether the defendant No.1 further proves that the suit is bad for mis-joinder and non-joinder of necessary parties?
6. Whether the plaintiffs are entitled for 1/6th share in the suit schedule properties ?
7. What decree or order?
Addl.Issues:
1. Whether No.1 proves that item No.16 is his self-
acquired property and plaintiffs have no right and interest in the said property?
2. Whether the defendant No.8 proves that he is bonafide purchaser of suit item No.4 and he is the absolute owner in possession of the said property? 15
15. In order to prove the case of the plaintiffs, plaintiff No.3-Srinivasa got examined himself as P.W.1 and two independent witnesses on his behalf viz., Lavanna as P.W.2 and Sanjeevappa as P.W.3. Plaintiffs furnished as many as 80 documents before the Trial Court in support of their claim which were exhibited and marked as Exs.P.1 to 80, comprising of Genealogical tree at Ex.P.1, pahani extracts at Exs.P.2 to 9, demand register extract at Ex.P.10, assessment extract at Ex.P.11, demand register extract at Ex.P.12, genealogical tree at Ex.P.13, sale agreement at Ex.P.14, tax paid receipt at Ex.P.15, mutation register extract at Ex.P.16, school receipt at Ex.P.17, receipt at Ex.P.18, form No.7(A) at Exs.P.19 and 20, endorsement at Ex.P.21, ahaval thakthe at Ex.P.22, election identity card at Ex.P.23, bank pass book at Ex.P.24, caste certificate at Ex.P.25, election card at Ex.P.26, bills at Exs.P.27 to 40, CC of complaint at Ex.P.41, CC of FIR at Ex.P.42, mutation register extract at Ex.P.43, CC of voters' list at Ex.P.44, photo at Ex.P.45, receipt at Ex.P.46, bank pass book at Ex.P.47, certificate 16 (NOC) at Ex.P.48, tax paid receipts at Exs.P.49 to 51, endorsement at Ex.P.52, Form No.29 at Ex.P.53, certificate issued by RTO at Exs.P.54 and 55, form No.29 at Ex.P.56, receipt at Ex.P.57, RC at Ex.P.58, ration card at Ex.P.59, tax paid receipt at Ex.P.60, RTC extracts at Exs.P.61 to 77, CC of statement at Ex.P.78, settlement akarband at Ex.P.79 and pody copy at Ex.P.80.
16. As against the evidence placed on record by the plaintiffs, Munivenkatappa-first defendant got examined himself as D.W.1. He also examined one K.R.Santhosh as D.W.2. He placed on record 33 documents and relied on the same which were exhibited and marked as Exs.D.1 to D.33, comprising of pahanis at Exs.D.1 to 16, kanadayam receipts at Exs.D.17 and 18, demand register extracts at Exs.D.19 and 20, tax paid receipts at Exs.D.21 to 26, demand register extracts at Ex.D.27, patta book at Ex.D.28, pahani at Ex.D.29, mutation extract at Ex.D.30, notice at Ex.D.31, receipt at Ex.D.32 and copy of order sheet at Ex.D.33.
17
17. The learned Trial Judge on conclusion of recording of evidence, heard the parties in detail and after considering the material available on record in a cumulative manner, decreed the suit of the plaintiffs in part as under:
"1. The suit of plaintiffs is decreed in part.
2. The prayer made by plaintiff No.1 for partition of the plaint schedule properties is hereby rejected.
3. The plaintiff No.2 to 5 and defendant No.1 are entitled for 1/5th share each in the suit schedule item No.1 to 3, 5 to 9, 11 to 17.
4. The Division and separate possession of the suit schedule properties shall be in accordance with Section 54 of CPC.
5. Draw preliminary decree accordingly.
6. Both the parties to the suit shall bear their own costs."
18. Being aggrieved by the same, defendant Nos.1 to 6 have preferred the present Appeal on the following grounds:
The learned Judge erred in decreeing the suit and the Judgment is contrary to law and evidence in the case.18
The learned Judge failed to consider that under Hindu Law, there is no presumption that properties are ancestral properties or joint properties and if it is established that, the joint family possessed adequate nucleus then only the burden shifts on the person who claims the properties as self-acquired properties. In the instant case, it is an admitted fact that, item No.2 i.e., Sy.No.19/2A of Lakshmisagara Village measures 01 Acre 01 gunta and item No.7 i.e., Sy. No.46 measures 0-29 Guntas are the only ancestral properties and they being dry lands and the income from those lands was not even good enough for the sustenance of the family and therefore, the other plaint properties i.e., No.1 & 3, 4, 5 & 6,9,11 & 13, 14 & 15 are the self acquired properties of appellants/defendants is undisputable fact The evidence on record, at para 13 of PW-1's evidence - PW.1 admits as follows:
"¸ÀÀzÀj «¨sÁUÀzÀ°è £À£Àß vÀAzÉUÉ ¦vÁæfðvÀªÁV ªÀÄÆgÀÄ LlA C¹ÛUÀ¼ÀÄ §A¢zÀݪÀÅ DªÀÇUÀ¼ÉAzÀgÉ £ÀªÉð £ÀA. 19-2J £À°è 1 JPÀgÉà 1 UÀÄAmÉ, ¸ÀªÉð £ÀA.46 gÀ°è 0.29 UÀÄAmÉ ºÁUÀÆ ªÀÄvÉÆÛAzÀÄ LlA D¹Û §A¢vÀÄÛ CzÀ£ÀÄß £À£Àß vÀAzÉAiÀĪÀgÀÄ £Á£ÀÄ aPÀ̪À¤zÁÝUÀ¯Éà ªÀiÁgÁl ªÀiÁrzÁÝgÉ."
The learned judge failed to see that in the absence of any evidence placed by the respondents to establish or show that Item No.2 and Item No.7 of the plaint 19 schedule properties are being only ancestral properties, the said properties were yielding enough income of nucleus sufficient to make that the property acquired by the appellants cannot be presumed to be joint family properties and even if the 1st appellant has not lead any evidence to establish his separate income from out of which he has acquired other properties is inconsequential. The learned judge failed to see that the 3rd respondent / 3rd plaintiff admits in his evidence that the 1st appellant / 1st defendant was cultivating certain lands on Bagur Hukum and as a tenant and his evidence is as follows:
"£Á£ÀÄ ºÁUÀÆ £À£Àß CtÚ ºÀÄlÄÖªÀÅzÀPÉÌ ªÉÆzÀ°¤AzÀ®Æ £À£Àß vÀAzÉAiÀĪÀgÀÄ PÉ®ªÀÅ C¹ÛUÀ¼À£ÀÄß §UÀgïºÀÄPÀÄA ¸ÁUÀĪÀ½ ªÀiÁqÀÄwÛzÀÝgÀÄ ªÀÄvÀÄÛ PÉ®ªÀÅ D¹ÛUÀ¼À£ÀÄß UÉÃt £É¯ÉAiÀÄ°è C£ÀĨsÀ«¸ÀÄwÛzÀÝgÀÄ JA§ÄzÀÄ £À£ÀUÉ UÉÆwÛ®è"
The learned Judge while framing the issue No.2, has cast the burden of proving that the suit item Nos., 1, 3, 4, 5, 6, 9 to 15 are the self- acquired properties is erroneous and the burden of proving that those items of properties are acquired by the 1st appellant from out of the nucleus income derived from item Nos..2 & 7, is on the respondent plaintiff and they have not discharged that burden, as no evidence is placed by them in the case.
20 The learned Judge failed to frame an important issue, which arises out of the pleadings in para 9 (a) of the written statement, wherein it is contended that there was an oral partition, as that important issue is not framed the entire judgment is vitiated. The learned Judge has erroneously come to the conclusion that item Nos., 1, 3, 4, 5, 6, 9 to 15 are the ancestral properties without any basis and that finding is not based on any evidence much less on the legal evidence.
The learned Judge has failed to see that, item Nos., 1 & 3 of the schedule property is granted to the 1st appellant under Darkast Rules and therefore, it is not an ancestral property.
The learned Judge has failed to see that item No.4 of the suit schedule property being an agricultural land, the occupancy right of it was granted by the Land Tribunal and therefore the finding is erroneous. The learned Judge has failed to see that the item Nos. 5, 6, 9 & 11 are the lands granted to the 1st appellant/ 1st defendant and as such they do not acquire the character of joint family properties. The learned Judge has failed to see that item Nos., 13 & 15 are vacant sites granted by the Government to the 1st Appellant/1st defendant and item No.13, the 1st appellant has constructed a house out of his self earnings.
21 The learned Judge erred in decreeing the suit granting 1/6th share to 1st respondent, even the case set up by the plaintiffs is true, then the defendants 3 to 6 are entitled for a share and therefore, the Judgment & Decree is vitiated.
19. Reiterating the grounds urged in the appeal memorandum, Sri C.M.Nagabhushana, learned counsel for the appellants vehemently contended that the Trial Court has grossly erred in not properly appreciating the material evidence on record and wrongly decreed the suit in part resulting in miscarriage of justice and thus sought for allowing the appeal.
20. He also pointed out that the suit against the defendants is not at all maintainable in view of the authoritative legal principles enunciated in Commissioner of Wealth Taxes, Kanpur vs. Chandersen reported in AIR 1986 SC 1753.
21. He further contended that when the first plaintiff deserted the first defendant about 20 years earlier, there was severance of joint family inasmuch as share has been 22 granted to first plaintiff for herself and her children and therefore, they cannot maintain a suit for partition after the oral partition has taken place.
22. He also pointed out that the learned Trial Judge failed to note that there was no sufficient evidence placed on record with regard to the properties that has been acquired out of the self earnings of the first defendant after the oral partition and after the first plaintiff and her children started living separately from the first defendant and said aspect of the matter is not properly appreciated by the learned Trial Judge and sought for allowing the appeal. He also furnished the written submissions with necessary documents and also relied on the following judgments.
(i) D.S. Lakshmaiah & another -Vs- L. Balasubramanyan & another, reported in AIR 2003 SC 3800,
(ii) Srinivasa Krishnarao Kango -Vs- Narayana Deevji Kango and others, reported in AIR 1954 SC 379,
(iii) Mrs. Rukmabhai -Vs- Lala Lakshminarayan and others, reported in AIR 1960 SC 335, 23
(iv) Mudigoudappa Sankh and others -Vs-
Ramachandra Revagouda Sank (dead) by his LRs and another, reported in AIR 1969 SC 1076,
(v) Bhagwat Sharan dead through LRs Vs-
Purushottam and others, reported in 2020 (6) SCC 387,
(vi) Makhan Singh dead by LRs -Vs- Kulwant Singh, reported in 2007 (10) SCC 602,
(vii) Rangammal -Vs- Kuppuswami and another, reported in 2011 (12) SCC 220,
(viii) Commissioner of Wealth Tax Kanpur etc V/S Chandrsen etc, reported in AIR 1986 SC 1753,
(ix) Yudhishter V/S Ashok Kumar, reported in AIR 1987 SC 558,
(x) Mrs Mallika and others -Vs- Mr. Chandrappa and others, reported in ILR 2007 KAR 3216,
(xi) Smt. Shakuntala and others -Vs- Basavaraj and others, reported in ILR 2016 KAR 3604,
(xii) Smt. Revamma and another -Vs- Basha Saheb and another, reported in 2008 (4) Kar LJ 42,
(xiii) Dr. Prem Bhatnagar by LR's V/S Ravi Mohan Bhatnagar and others, reported in 2012 SCC Online Delhi 4092, 24
(xiv) Commission of Income Tax, U.P, -Vs- Ram Rakshpal, reported in 1966 SCC Online Allahabad 429,
(xv) S.P. Chengalaraya Naidu -Vs- Jaganath, reported in AIR 1994 SC 853,
23. Per contra, Sri K.Raghavendra Rao, learned counsel for the contesting respondents/plaintiffs supported the impugned judgment by contending that the theory put forward by the first defendant that there was oral partition 20 years earlier and first plaintiff has been settled with the properties for herself and her children is not established by the first defendant by placing cogent and convincing evidence on record. Therefore, in view of the categorical admission made in the written statement to the effect that suit item Nos.2 and 7 are the ancestral properties, the initial burden that was on the plaintiffs that the other items of the suit properties are purchased by the first defendant from the income of the joint family has been discharged by the plaintiffs and it is for the first defendant to establish before the Court that there was oral partition and after oral 25 partition, he aquired the suit properties except item Nos.2 and 7.
24. He also contended that no such plausible evidence is placed on record on behalf of the first defendant and oral evidence of D.Ws.1 and 2 did not improve the case of the defendants to any extent in establishing the defence that the properties other than item Nos.2 and 7 are the self acquisition of first defendant and therefore, decreeing of the suit by the Trial Court is just and proper.
25. He also pointed out that the Trial Court has granted decree only in respect of suit item Nos.1 to 3, 5 to 9, 11 to 17 and plaintiffs are satisfied with part decreeing of the suit. Learned counsel for the respondents relied on the following judgments:
(i) Vineeta Sharma vs. Rakesh Sharma, reported in (2020) 9 SCC 1,
(ii) Commissioner of Wealth Tax Kanpur etc V/S Chandrsen etc, reported in AIR 1986 SC 1753,
(iii) Smt. Shakuntala and others -Vs- Basavaraj and others, reported in ILR 2016 KAR 3604, 26
(iv) Nagindas Ramdas vs. Dalpatram Ichharam alias Brijram, reported in (1974) 1 SCC 242
26. On behalf of respondents also written submissions are filed and while filing the written statement, certified copy of the judgment in O.S.No.103/2009 is furnished which attained finality in Regular Appeal No.165/2016 wherein, very same first defendant has admitted that there is joint family and the same has been taken note of in the said judgment and sought for dismissal of the appeal.
27. In view of the rival contentions of the parties, this Court perused the material on record meticulously. On such perusal of the material on record, the following points would arise for consideration:
(i) Whether the appellants have made out a case that suit item Nos.1 to 3, 5 to 9, 11 to 17 are the self acquisition of the first defendant and therefore plaintiffs are not entitled for share in those properties?27
(ii) Whether the plaintiffs have successfully established that plaintiffs and first defendant formed a joint family and suit item Nos.1, 3 to 6, 9 to 15 are earned from the income of the joint family?
(iii) Whether the impugned judgment is
suffering from legal infirmity and
perversity and thus calls for interference?
(iv) What Order?
28. In the instant case, there is no dispute as to the relationship among the parties. Plaintiffs are the first wife and her children born to first defendant. Defendant No.2 is the second wife and defendant Nos.3 to 7 are the children born to the second wife of first defendant. As per the written statement filed by first defendant, there is a clear and categorical admission that suit item Nos.2 and 7 are the ancestral properties. Likewise, there is no dispute as to the fact that Yerappa was the common propositus as is mentioned in Ex.P.1. When exactly the properties were acquired by Yerappa is not forthcoming from the pleadings. 28 It is not in dispute that first defendant married first plaintiff. Written statement contents would go to show that first plaintiff deserted the first defendant about 20 years earlier and at the time of her separation in the company of first defendant, there was a oral partition and in such oral partition, land bearing Sy.Nos.19/2A, 46 and 98 were given to the plaintiffs. In other words, the gist of the written statement averments in a way to be considered as ouster of plaintiffs from the joint family. It is settled principles of law and requires no emphasis that if defendant pleads ouster, burden to establish the fact of ouster is always on the defendant, inasmuch as there is a presumption that all the joint family members continue in the joint family, unless, there is a positive proof of severance of joint family.
29. No doubt, first defendant has taken a specific contention that suit item Nos.1, 3, 4, 5, 6, 9 to 15 (hereinafter referred to as 'disputed properties') are his self acquired properties. In the absence of any proof as to 29 the ouster, contention of the plaintiffs that they continued to be members of the joint family assumes significance.
30. In view of the specific contention taken on behalf of the first defendant that suit item Nos.2 to 7 the ancestral properties, it is for the defendants to plead and prove that disputed properties are self acquisition after severance of the joint family.
31. With the above factual aspects in the background, when the material evidence on record is appreciated by exercising the power vested by this court under Section 96 of the Code of Civil Procedure, genealogical tree being not in dispute, the RTC extract, tax demand register extract, assessment extracts and other revenue records placed on record by the plaintiffs would establish that suit properties are the properties of the joint family.
32. First defendant got examined himself as D.W.1 and a witness on his behalf by name Sri K.R.Santhosh as D.W.2. D.W.1 has reiterated the written statement contents in his examination-in-chief which is placed on record by way of 30 an affidavit. However, there is a deviation from the written statement contents in the affidavit filed in lieu of examination-in-chief, wherein, he has stated that item No.2 is the only ancestral property. However, in paragraph 4, again he has stated that item No.7 is the only ancestral property. Further, in paragraph-6 of the examination-in-chief, he has stated that first plaintiff deserted him more than five years ago. In examination- in-chief filed on 17.01.2006, it is deposed that disputed properties are acquired by first defendant as is found in paragraphs 4, 5 and 7 of the examination-in-chief. In paragraph 3 of the examination-in-chief, he has specifically contended that he has performed the marriage of plaintiff Nos.4 and 5.
33. In his cross-examination, D.W.1 admits that he has not filed any application seeking divorce on the ground that first plaintiff has deserted him. He has also admitted that when alleged desertion took place, second plaintiff was aged 15 years, third plaintiff was aged 6 years, fourth 31 plaintiff was aged 7½ years and fifth plaintiff was aged 3 years. He admits that after the alleged desertion, he got admitted his sons born in the wedlock with first plaintiff to a hostel near old bus stand. 4th and 5th plaintiffs were being reared by his grand-mother and he was contributing for the same. He admits that he has performed the marriage of Plaintiff No.4-Lakshmidevamma. He admits that in the year 1985, he married the second defendant- Varalakshmi. He has answered that land in Sy.No.59/1 measuring 1 acre 5 guntas and land in Sy.No.136, New No.196 measuring 3 acres has been granted to him by the Government. Likewise, land in Sy.No.11 measuring 3 acres, land in Sy.No.45 measuring 1 acre 35 guntas and land in Sy.No.34 measuring 25 guntas are tenanted lands and same has been re-granted in his favour. He admits that in the year 1982, he has applied for re-grant of these lands and from the year 1980 he was cultivating those lands. He also admits that he has furnished necessary documents as to the number of years of cultivation of those lands while applying for re-grant. He also admits in 32 his cross examination that he never stayed in Nagashettihalli. He admits that he does not have personal knowledge of plaintiff Nos.2 and 3 working as drivers. He further admits that he is acquainted with 7th defendant and he has sold 3 acres of land to him in a sum of Rs.1,30,000/- and subject matter of the said land is Sy.No.194. Further he has answered that even after sale, land continues with him.
34. D.W.2 is one K.R.Santhosh. He filed an affidavit in support of the case of defendants by contending that he is the owner in possession of land property in Sy.No.11 measuring 3 acres of Lakshmisagara village. He is the 8th defendant in the suit. He deposed that suit item No.4 of the property was originally belonging to first defendant and he purchased the same in Government auction. His evidence is not of much relevance to the disposal of the appeal, inasmuch as, the Trial Court believed the evidence of D.W.2 and has not granted decree in item No.4 and 33 plaintiffs have not filed any appeal against the denial of share in item No.4.
35. On cumulative consideration of the above oral and documentary evidence on record, it is crystal clear that the theory of ouster put forward on behalf of the plaintiffs is unbelievable for more than one reason.
36. Firstly, in the written statement, first defendant has taken a contention that about 20 years earlier, first defendant has deserted him. In the affidavit filed in lieu of examination in chief which is filed on 17.01.2006, he has stated that first defendant has deserted more than five years ago.
37. Secondly, he has specifically contended in the written statement that there was an oral partition and in such oral partition, land in Sy.No.19/2A and Sy.Nos.46 and 98 were given to the share of the plaintiffs. If that were to be so, there was no necessity for the first defendant to admit his sons to boys hostel and allowed the 4th plaintiff- 34 Lakshmidevamma tobe looked after by grand mother and contribution to be made towards her well being.
38. Crowning all these things, admission in cross- examination of D.W.1 that he married second defendant in the year 1985 pre supposes that he continued to live with the family comprising of himself, first plaintiff and other plaintiffs till the year 1985. Assuming that first plaintiff has deserted him, there should have been legal proceedings initiated to obtain a decree of divorce on the ground of desertion. Further, revenue entries did not get mutated as per the contentions urged on behalf of the first defendant in respect of the properties said to have been given to the share of first defendant and her children.
39. Thirdly, admittedly, suit item Nos.2 and 7 are the ancestral properties and, disputed properties are acquired by him from the income that has been derived out of item Nos.2 and 7. Therefore, acquisition of disputed properties must be construed as joint family properties. 35
40. Fourthly, theory of ouster gets defeated by admission of D.W.1 in his cross-examination that he performed the marriage of his sons and he has helped the second plaintiff to get the land granted in his favour. Further, except oral testimony of D.W.1 which is self serving testimony, no other plausible or possible evidence is placed on record by the first defendant to establish the theory of ouster.
41. Fifthly, in a subsequent suit O.S.No.103/2009 filed on the file of the Prl. Civil Judge, Kolar, by Lakshmaiah against first defendant and others, first defendant has taken a contention that there was a partition in the family of Yerappa and plaintiff (Lakshmaiah) and first defendant Munivenkatappa started living separately from 1966 and there was a arrangement that suit properties have to be cultivated to the extent of half share by mutual understanding and there is written document in that regard. He further contended as per the said mutual 36 arrangement, revenue entries were mutated. In the said suit, no plead is taken about ouster.
42. Sixthly, according to the first defendant, land in Sy.Nos.19/2A, 46 and 98 were given to the share of the plaintiffs in an oral partition. But, perusal of documents pertaining to those lands produced on behalf of defendants, especially, Ex.D.9 it would establish that khatha of the land in Sy.No.19/2A continues to be in the name of first defendant. So also, Ex.D.2 establish that khatha of land in Sy.No.46 continues to be in the name of first defendant. Insofar as land in Sy.No.98 is concerned, it establishes that the said land is granted to Muniyamma- first plaintiff by way of darkasth. Therefore, the theory of oral partition propounded by the first defendant cannot be accepted for want of necessary proof thereof.
43. Resultantly, when theory of ouster is not established by placing suitable evidence on record, presumption of existence of joint family automatically enures to the 37 benefit of plaintiffs and thereby, plaintiffs' case that they are entitled for share in the property needs to be considered in accordance with law.
44. The second defendant being the second wife of first defendant and other defendants viz., defendant Nos.3 to 6 are the children born in the second marriage. Plaintiffs 1, 2, 3, 4 and 5 together are entitled for 1/5th share in the suit properties.
45. The learned Trial Judge has therefore, rightly come to the conclusion that plaintiffs are entitled for 1/5th share as aforesaid, in the impugned judgment.
46. In the written arguments, the details of acquisition of suit properties is mentioned as under:
" Regarding suit schedule properties"
Sl. Suit Item No. & Sy Submissions
No. Nos.
1. Item No.1: It is a granted land as per order of
Sy.No.59 No.DR344/1963-64 by way of
Lakshmisagara Darkast as same is reflected in the
38
measuring 01 Acre RTC at Ex-P67, Page No.158 to Sri
05 guntas. Munivenkatappa, the Appellant
No.1, the same is admitted by the
plaintiffs in their Written
Submissions. It is the self-acquired property of Munivenkatappa and of the contention of the plaintiffs that, it is for the benefit of Joint family is denied and the plaintiffs have not proved the said fact in the manner known to law.
2. Item No.2: Sy It is an ancestral property because No.19/2A of Yarrappa, father of the 1st Lakshmisagara, 01 Defendant and grandfather of the Acre 01 gunta Plaintiff Nos.2 to 5 as such it is not a joint family property and it is self acquired property of Yarrappa and also the property does not take the nature of coparcenary property - it is not a coparcenary property as such the Plaintiffs 2 to 5 cannot file a suit for partition during the lifetime of 1st Defendant - their father.
3. Item No.3: Sy This land is granted in favour of of Munivenkatappa by way of Darkast No.136 vide ASLR135/1980-81, the same Kadurudubande is reflected in the RTC at Ex-D6, Hosahalli Page No.202. Further, the said land has been mortgaged in favour of Vijaya Bank, Narasapura as per MR No.12/1995-96. It is the self acquired property of 1st Appellant Munivenkatappa and the contention of the Plaintiffs that it is a joint family property is disputed by this Defendant. The plaintiffs except contending that, it is a joint family property, they have not proved the same in the manner 39 known to law.
4. Item Nos.4,5&6: These lands are granted land to Sy Nos.11, 34 & 45 the 1st Appellant Munivenkatappa respectively of under the Karnataka (Religious Lakshmisagara. and charitable) Inams Abolition Act, 1955. The application in Form No.8 dated 17-06-1981 was filed by Munivenkatappa and the same was granted at individual capacity.
The orders of the Tribunal produced by way of Additional Evidence under Order 41 Rule 27 and it is the his self- acquired property. During the pendency of the suit, the 3rd plaintiff and his wife purchased the said land in Sy No.11 on 20- 03-2006 in collusion with the 8th Defendant. Both have suppressed the said fact. The aforesaid properties are the self acquired properties of the Appellant No.1. The plaintiffs have no right over the same.
5. Item No.7: Sy It is an ancestral property because No.46 Lakshmisagara Yarrappa, father of the 1st of measuring 01 Acre Defendant and grandfather of the 31 guntas. Plaintiff Nos.2 to 5 as such it is not a joint family property and it is self acquired property of Yarrappa and also the property does not take the nature of coparcenary property - it is not a coparcenary property as such the Plaintiffs 2 to 5 cannot file a suit for partition during the lifetime of 1st Defendant - their father.
6. Item No.8: Sy It is granted land in favour of of No.136 of Plaintiff No.2 - Venkataraju at the Karudubande instance of 1st Appellant and entire Hosahalli measuring 40 03-00 Acres. amount was paid by the Appellant.
7. Item No.9 : Sy Item Nos.3 & 9 and one and the No.194 of Κ.Β. same.
Hosahalli measuring 03-00 Acres.
8. Item No.10 : The Trial Court has dismissed the Tractor suit in respect of this.
9. Item No.11: Sy The plaintiffs / respondents in their Nos. 13,14 and 16 of Written Submissions contend that, Nagashettyhalli at page No.14 that, which are all Village, Bangarpet joint family properties and Taluk, present KGF "Plaintiffs 2 to 5 have a share". It Taluk. is submitted that, the plaintiffs can take all these properties and Appellants have no objection.
10. Item No.12 :- The plaintiffs claim that, it is a House Property joint family property. But in the Khatha No.8 pleadings and in the evidence the measuring 62 x 36 plaintiffs have stated that, Item feet Lakshmisagara Nos.2 and 7 are the only ancestral properties. This property is a self acquired property of the Appellant No.1, but as per Oral Partition, the Defendant No.1 has given this house to plaintiffs.
11. Item No.13: Site It is purchased by the Defendant and house bearing No.1 and it is his self acquired khatha No.Old No. property.
164, measuring 40 x 60 feet with a house situated at Gandhi nagar, Kolar Town.
12. Item NO.14: Sy Item Nos. 1 and 14 are one and No.59 of Lakshmi the same.
sagara measuring 01 Acre 05 guntas.41
13. Item No.15 : It is granted by the Government in Vacant Site favour of the Defendant No.1 and measuring 30 x 40 it is the self acquired property of feet at the Defendant No.1. The plaintiffs Lakshmisagara in their Written arguments have contended that, Defendant No.1 has not proved, on the contrary the plaintiffs have not proved who acquired and how it is acquired.
Therefore, the claim of the Plaintiff Nos.2 to 5 is only an illusory.
14. Item No.16: House It is purchased by the Defendant property No.18 No.1 vide sale deed dated 21-02- measuring 18 x 19 1997 marked as Ex-P5, Page 84 of feet, situated at Paperbook. It is purchased for sale Nagashettyhalli, consideration of Rs.13,000/-. It Is Bangarpet Taluk, his self-acquired property. The present KGF Taluk. plaintiffs in their Written Submissions except saying joint family properties, there is no iota of evidence to prove the joint family has surplus income in the family to acquire the properties.
15. Item No.17: Sy The plaintiffs admit that, it is a No.44, new No.60, granted land in favour of 1st situated at Defendant-Munivenkatappa as per Uddapanahalli as per Darkast vide IHRCR23/1985 96, the plaint schedule Ex-P7, Page No.74 of Paperbook, it but in the Written is the self acquired property of the Submissions it is 1st Defendant.
shown as
Lakshmisagara
measuring 01 Acre
07 guntas.
47. It is pertinent to note that above contents are mentioned as an afterthought inasmuch as in the 42 impugned judgment the learned Trial Judge has specifically observed that date of acquisition and the amount spent thereof for the acquisition of the disputed properties is not mentioned either in the pleadings or in the evidence.
48. Perhaps to overcome such an observation, the above list is furnished in the written arguments on behalf of the appellants.
49. It is pertinent to note that even in the above list, the amount spent for acquisition of disputed properties is not forthcoming. So also, there are no particulars as to the dates of acquisition.
50. When the theory of ouster fails, having regard to the admission made by first defendant in his evidence supra, following the dictum of Hon'ble Apex Court in the case of Bhagawan Dayal vs. Mrs.Reoti Devi reported in AIR 1962 SC 287, it should be presumed that plaintiffs and first defendant continued to be the members of joint family 43 albeit the fact that the plaintiffs and first defendant had separate residence.
51. Sri C.M.Nagabhushana, learned counsel for appellants however contended that plaintiffs have failed to place on record the proof of existence of joint family nucleus for acquisition of the disputed properties, as an alternative argument. The said contention cannot also be countenanced in law inasmuch as the defendant No.1 himself did not whisper a single word in his examination in chief that he had sufficient income whereby he acquired the disputed properties out of self earning and therefore, the disputed properties are his self acquisitions.
52. It is presumed that when the existence of joint family is established by disbelieving the contentions of the first defendant, the burden of establishing self acquisition of disputed properties automatically shifts on to the first defendant, in view of the principles of law enunciated by the Hon'ble Apex Court in the case of Mudigowda vs. Ramachandra reported in AIR 1969 SC 1076 wherein, 44 their Lordships ruled that when a Manager of a Hindu Joint Family claims that the properties acquired are his separate property, he should prove the same that the acquisition of suit properties is with his separate funds.
53. Learned Trial Judge in the impugned judgment in paragraph 15 has bestowed his attention to the acquisition of first defendant of the disputed properties while dealing with issue Nos.1 to 3 and 6 additional issue Nos.1 and 2.
54. While assessing the probative value of Exs.D.9, D.2 and D.16, learned Trial Judge discussed in detail and held that Ex.D.16 is of no avail to the defendant in establishing that one of suit property in Sy.No.98 standing in the name of Muniyamma and said property is granted to Muniyamma by way of darkasth.
55. So also in Ex.D.2, the name of first defendant appears in column No.9 which would only denote the possession. Further, the learned Trial Judge while considering the plea of self acquisition of the first 45 defendant in respect of item Nos.5, 6, 9 and 11, has observed that the documents produced by defendant are not sufficient enough to establish that it is the self acquisition of the first defendant.
56. All these factors have been properly appreciated by the learned Trial Judge in the impugned judgment.
57. In view of the foregoing discussion, even though there cannot be any dispute as to the principles of law enunciated in the judgments relied on by the counsel for appellants, the same are not applicable to the facts of the present case and whereby, this Court does not deem it fit to discuss application of those principles to the case on hand. As such, no detailed discussion is carried out in this judgment for the sake brevity about applicability of those decisions.
58. Since this Court is accepting the reasoning assigned by the learned Trial Judge in the impugned judgment in decreeing the suit as prayed by the plaintiffs, of course, by 46 supplementing additional reasons, the decisions placed on record on behalf of the contesting respondents are also not discussed in detail.
59. From the foregoing discussion, invariable conclusion that this Court can reach is to hold point Nos.1 and 3 in the negative and point No.2 in the affirmative.
60. Regarding Point No.4: In view of the finding of this Court on the point Nos.1 to 3 as above, the following:
ORDER
(i)Appeal is meritless and is hereby dismissed.
(ii) No order as to costs.
Sd/-
JUDGE kcm