Karnataka High Court
Sri Bettachari vs Jayamma W/O C.Ramachar on 17 July, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JULY 2020
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
RSA No.878/2007 (PAR)
BETWEEN:
SRI.BETTACHARI
SINCE DEAD BY HIS LRS
1(a) SMT.GOWRAMMA W/O LATE BETTACHARI,
AGED ABOUT 51 YEARS,
1(b) SRI.CHANDRASEKHAR H.B. S/O LATE BETTACHARI,
AGED ABOUT 35 YEARS,
1(c) SRI.HARISH H.B. S/O LATE BETTACHARI,
AGED ABOUT 32 YEARS,
LR'S 1(a) TO 1(c) ARE RESIDING AT HAROHALLI VILLAGE,
KASABA HOBLI, KURUBARA BEEDI, PANDAVAPURA TOWN,
MANDYA DISTRICT.
2. SRI.RUKMANGADACHARI, S/O LATE PUTTASWAMACHARI,
AGED ABOUT 43 YEARS, R/O HAROHALLI VILLAGE,
KASABA HOBLI, PANDAVAPURA TALUK.
.. APPELLANTS
(BY SRI.D.S.DWARAKANATH, ADV. FOR A1(a-c) & A2)
AND:
1. JAYAMMA W/O C.RAMACHAR,
AGED ABOUT 55 YEARS,
KASABA HOBLI, PANDAVAPURA TALUK.
2. H.R.RAVINDRACHARI, S/O RAMACHAR C.,
AGED ABOUT 39 YEARS,
R/O HAROHALLI VILLAGE, KASABA HOBLI,
PANDAVAPURA TALUK.
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3. H.R.VIDHYADHARA S/O C.RAMACHAR,
AGED ABOUT 34 YEARS,
R/O HAROHALLI VILLAGE, KASABA HOBLI,
PANDAVAPURA TALUK.
4. S.R.YOGANNA S/O C.RAMACHAR,
SINCE DEAD BY HIS L.Rs.
4(a) SMT.NANDINI W/O LATE YOGANNA @ YOGACHARI,
AGED ABOUT 30 YEARS,
4(b) KUMARI YASHASHWINI D/O LATE YOGANNA @ YOGACHARI,
AGED ABOUT 5 YEARS,
4(c) MASTER SUBHASH @ SUBBU
S/O LATE YOGANNA @ YOGACHARI,
AGED ABOUT 3 YEARS,
THE L.R'S 4(b) & 4(c) ARE MINORS AND
REP.BY THE GUARDIAN I.E., THEIR MOTHER
AND NEXT FRIEND SMT.NANDINI.
ALL ARE RESIDING AT HAROHALLI VILLAGE,
KASABA HOBLI, KURUBARA BEEDI,
PANDAVAPURA TOWN, MANDYA DISTRICT.
5. H.R.JANARDHANA S/O C.RAMACHAR,
AGED ABOUT 27 YEARS,
R/O HAROHALLI VILLAGE, KASABA HOBLI,
PANDAVAPURA TALUK.
6. H.R.PUSHPALATHA D/O C.RAMACHAR,
AGED ABOUT 25 YEARS,
R/O HAROHALLI VILLAGE, KASABA HOBLI,
PANDAVAPURA TALUK.
7. SMT.NARASAMMA W/O LATE PUTTASWAMACHARI,
SINCE DEAD THE APPELLANTS 1 AND 2 ARE
ALREADY ON RECORD AS L.Rs OF R7.
.. RESPONDENTS
(BY SRI.K.N.NITISH, ADV. FOR
SRI.K.V.NARASIMHA, ADV. FOR R1-R3, R4(a), R5 & R6;
R4(b) & R4(c) ARE MINORS REP.BY R4(a);
APPELLANT NOS.1 AND 2 ARE TREATED AS LRS OR R7)
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THIS APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE DATED 10.03.2006
MADE IN O.S.NO.129/2001 BY THE COURT OF CIVIL JUDE (SENIOR
DIVISION) SRIRANGAPATNA AND THE JUDGMENT AND DECREE
DATED 14.12.2006 MADE IN R.A.NO.147/2006 BY THE COURT OF
ADDITINOAL DISTRICT JUGDG AT MANDYA.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 28.05.2020, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is defendants' second appeal challenging the concurrent findings of both the Courts below granting share to the respondents/plaintiffs by holding that the suit properties are joint family ancestral properties.
2. The brief facts leading to this second appeal are as under:
Respondents/plaintiffs filed a suit for partition and separate possession by specifically contending that one Chaluvachari was the propositus who had two sons by name, Puttaswamachari and Ramachari. The respondents/plaintiffs are claiming to be the legal heirs of 4 Ramachari whereas appellants/defendants are claiming to be legal heirs of Puttaswamachari. Respondents/plaintiffs averred in the plaint that propositus Chaluvachari was the manager of the joint family and after his death, the ancestor of appellants/defendants namely, Puttaswamachari being the eldest member became the manager of the joint family. At para 3 of the plaint, respondents/plaintiffs have specifically averred that both brothers, i.e., Puttaswamachari and Ramachari were very hard working and as such they pooled their hard work and income from the joint family and acquired some more properties out of the income of joint family and joint labour. The respondents/plaintiffs specifically contended at para 3 of the plaint that family properties are very fertile lands and were yielding very good income and as such the family was able to save surplus income after the maintenance of the joint family.5
3. The present suit is filed by contending that since January 2001 the present appellants/defendants are acting adversely to the interest of respondents/plaintiffs and there was further allegation in the plaint that appellants/defendants are intending to sell some of the suit schedule properties and hence, the present suit is filed since appellants/defendants refused to effect partition by metes and bounds.
4. The present appellants/defendants on receipt of summons contested the proceedings by filing written statement. At para 4 of the written statement, the present appellants/defendants stoutly denied the nature of the properties. At para 4 of the written statement, the present appellants/defendants specifically contended that suit properties are not joint family properties. At para 13 of the written statement, the present appellants/defendants have set up a defence apart from denying the averment made in the plaint. The appellants/defendants specifically 6 contended that husband of defendant No.1 was granted item No.2 bearing Sy.No.18 which is renumbered as Sy.No.203 by the competent authority. As such, the respondents/plaintiffs have no semblance of right over the suit item No.2. Insofar as item No.3 is concerned, the appellants/defendants averred in the written statement that it does not belong to the family of respondents/plaintiffs. The appellants/defendants also stoutly denied that item No.4 is joint family ancestral property.
5. The trial Court based on the rival contentions framed following issues:
i) Whether the genealogy of the family shown in the plaint is correct?
ii) Whether the plaintiffs prove that suit properties are the undivided joint family properties of themselves and defendants? 7
iii) Whether the plaintiffs prove that they are in joint possession and enjoyment of the suit properties along with defendants as joint owners?
iv) Whether the defendants prove that the suit item no.2 is their self-acquired property?
v) Whether the plaintiffs are entitled further reliefs sought for?
vi) What order or decree?
6. The respondents/plaintiffs in support of their contention examined plaintiff No.2 as P.W.1 and one independent witness was examined as P.W.2 and relied on one document as Ex.P1. The appellants/defendants in support of their contentions examined defendant No.2 as D.W.1 and by way of rebuttal evidence produced documentary evidence vide Exs.D1 to D7. 8
7. The Trial Court on appreciation of oral and documentary evidence at para 10 has recorded a finding that respondents/plaintiffs have not produced any documentary evidence to substantiate their contention that suit properties are ancestral joint family properties of themselves and defendants. Having recorded the above said finding, the Trial Court by relying on the averment made by the appellants/defendants at para 13-e has proceeded to hold that since appellants/defendants have admitted that they were joint prior to 1990, the burden would shift on the appellants/defendants. The Trial Court proceeded to draw presumption to hold that suit properties are joint family ancestral properties. By relying on the pleadings at para 13-e of the written statement, the Trial Court has proceeded to hold that prior to 1990 plaintiffs and defendants and their ancestors continued to enjoy the suit properties as joint family members and since the husband of defendant No.1 namely Puttaswamachari was the eldest son, the grant made in respect of item No.2 was 9 on behalf of joint family members. On these set of reasoning, the Trial Court has decreed the suit.
8. The appellants/defendants being aggrieved by the judgment and decree of the Trial Court preferred an appeal before the Appellate Court. The Appellate Court concurs with the finding of the Trial Court insofar as failure of respondents/plaintiffs in not producing evidence to substantiate that respondents/plaintiffs are joint family properties. The Appellate Court has taken note of the finding of the Trial Court that respondents/plaintiffs have not produced any evidence to substantiate their contention that suit properties are ancestral properties. But however, the Appellate Court proceeds to confirm the judgment and decree of the Trial Court on the premises that averments made at para 2 and 3 of the plaint is established through admission of defendants in the written statement. The Appellate Court was of the view that in view of admission in the written statement, the burden shifts on the 10 appellants/defendants to establish the division of the properties amongst the plaintiffs and defendants since 1990. With these set of reasoning, the Appellate Court has proceeded to dismiss the appeal on the ground that the judgment and decree of the Trial Court does not suffer from any irregularities. The Appellate Court has recorded a finding that there is absolutely no evidence on record to establish that item No.2 property was granted exclusively in the name of Puttaswamachari. The Appellate Court has also further recorded a finding that appellants/defendants have failed to establish that Puttaswamachari was not acting as a Kartha of a joint family.
9. The appellants/defendants being aggrieved by the judgment and decree passed by the Courts below have filed the present second appeal.
10. This Court while admitting the appeal on 18.04.2012 has framed the following substantial question of law:11
i) Whether the Courts below are justified in holding that suit item Nos.3 and 4 properties were acquired out of joint family nucleus?
When the matter was heard by this Court on 28.05.2020, this Court was of the view that additional substantial questions of law needs to be framed and the proposed substantial questions of law submitted by the appellants at Sl.No.1 and 2 of I.A.No.2/2018 were accepted. This Court finds that the proposed substantial questions of law are relevant for adjudication of controversy between the parties. The following additional substantial questions of law are framed in the appeal.
ii) Whether both the Courts below are justified in holding that the suit schedule item No.2, 3, and 4 are the joint family properties?
iii) Whether the burden cast on the defendants to prove the division of the properties without framing any issues?
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11. The learned counsel for the appellants to buttress his arguments would vehemently argue and contend before this Court that Courts below have not at all appreciated the rebuttal evidence and the pleadings at para 13-e are totally misread and as such, there is substantial error in appreciating the pleadings and evidence on record. He would vehemently argue and contend before this Court that, at para 13, the appellants/defendants have specifically averred that mode of acquisition of item Nos.2 to 4 and in support of their contention they have lead in rebuttal evidence. The learned counsel for the appellants/defendants would submit that principle of presumption that a family having joint nucleus is deemed to be a joint Hindu family cannot be extended to the properties also. He would submit to this Court that plaintiffs have miserably failed to discharge their initial burden and this material aspect has not been considered by both the Courts below. Both the Courts below have recorded a categorical finding that respondents/plaintiffs 13 have failed to establish and produce evidence to indicate that suit properties are joint family ancestral properties. He would vehemently argue and contend before this Court that there is absolutely no admission given by the appellants/defendants in the pleadings at para 13-e of the written statement. He would stress and take this Court to para 13-e of the written statement and submit to this Court that appellants/defendants have not used the property in para 13-e. He would submit to this Court that both the Courts below have misread the pleadings and by virtually treating it as an admission have proceeded to decree the suit solely relying on the pleadings at para 13-e of the written statement and this finding is mechanically confirmed by the Appellate Court. In this background, he would submit to this Court that the judgment and decree of the Courts below granting a share to the respondents/plaintiffs in item Nos.2 to 4 by holding that they are joint family ancestral properties suffers from serious perversity and the same has resulted in miscarriage 14 of justice and hence, would give raise to substantial question of law. As such, the same would warrant interference by this Court. In support of his contention, learned counsel for the appellants/defendants has relied on the following judgments.
i) MANU/SC/0522/2018 (Union of India (UOI) Vs Rina Devi).
ii) ILR 1994 KAR 2728 (Management of Sate Bank of India Vs V.M.Mahapurush). iii) AIR 2007 SC 1808 (Makhan Singh (D) by Lrs. Vs. Kulwant Singh). iv) AIR 1984 SC 1171 (Kuppala Obul Reddy Vs Bonala Venpata Narayana Reddy (Dead) through Lrs) v) AIR 2014 SC 1830 (Kesharbai (D) by L.Rs. and Others Vs. Tarabai Prabhakarrao Nalawade and Others). 15 vi) MANU/SC/0679/2019 (Hari Steel and General
Industrial Ltd. And Others Vs Daljit Singh and Others).
vii) AIR 1971 SC 1542 (Chikkam Koreswara Rao Vs. Chikkam SubbaRao and Others).
viii) MANU/De/3415/2012 (Satish C.Sharma and
Others Vs. S.A.S.Leasing Pvt. Ltd. and
Others).
ix) ILR 2001 KAR 3988 (B.S.Malleshappa Vs.
Koratagere B.Shivalingappa and Others).
12. Per contra, learned counsel for respondents/plaintiffs would vehemently argue and contend before this Court that both the brothers i.e., Puttaswamachari and Ramachari were jointly cultivating item No.2, both brothers have contributed and hence, item No.2 is a joint family ancestral property. Insofar as item No.3 is concerned, learned counsel for 16 respondents/plaintiffs would vehemently argue and contend before this Court that appellants/defendants have specifically pleaded that item No.3 is a stranger property cannot assert during trial that it is self-acquired property of defendant No.1. He would support the reasoning assigned by the Courts below and would submit to this Court that admission at para 13-e of the written statement would go to the root of the case and that would clinch the issue. In this background, he would submit to this Court that concurrent findings of both the Courts below that the suit schedule properties are joint family ancestral properties is in accordance with law and the same does not suffer from any infirmities. Hence, he would requests this Court to dismiss the appeal.
13. Before I advert to the finding recorded by both the Courts below, I deem it fit to reproduce paragraphs 2 to 4 of the plaint filed by the respondents/plaintiffs in O.S.No.129/2001, which reads as under:
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"2. Chaluvachari has his 2 sons formed into a joint family and during the life time of Chaluvachari he was the Manager of the joint family. After the death of Chaluvachari continued in the joint family and Puttaswamachari being the eldest member was the manager of the joint family.
3. Both the brothers Puttaswamachari and Ramachari were very hard working and pooled their hard work and income from the joint family and acquired some more properties out of the income from the joint family and joint labour. The joint family properties are very fertile land and were yielding very good income and there used to be surplus income after the maintenance of the joint family.
4. The schedule properties are joint family and ancestral properties."
14. I would also feel it appropriate to cull out the relevant portion of the written statement based on which, both the Courts below have proceeded to decree the suit by treating it as an admission by appellants/defendants in regard to nature of the suit schedule properties. Para 13-e of written statement is reproduced hereunder:
"13-e. Since 1990, there exist no joint family between the parties to the suit. The plaintiffs who are 18 having their evil eyes over the second item of the suit property have come up with this present frivolous and false suit just to have the wrongful gain for them."
15. On perusal of the averments made in the plaint, there are absolutely no particulars forthcoming in the plaint. At para 3 of the plaint, respondents/plaintiffs have made a feeble attempt by contending that Puttaswamachari and Ramachari were very hard working and pooled their hard work and income from joint family and acquired some more properties out of the income from the joint family and joint labour. Admittedly, it is not in dispute that family of appellants and respondents did not own any ancestral properties. There are absolutely no details what was the avocation of both the brothers. No details are furnished either in the plaint or during the course of trial in regard to income of Puttaswamachari and Ramachari. There is absolutely no clinching evidence to indicate that earning of both the brothers blended with joint family estate. The material on record clearly indicates that item Nos.2 to 4 are acquired under different modes. 19 Item No.2 i.e., Sy.No.203 was granted to the husband of defendant No.1, i.e., Puttaswamachari. Item No.3 was purchased by defendant No.1 under registered sale deed dated 23.09.1953 and item No.4 was purchased by husband of defendant No.1 under registered sale deed dated 06.02.1960. If these material aspects are taken into consideration and the same are examined in the context of the pleadings at paragraphs 2 to 4 of the plaint, I am of the view that there is absolutely no foundation in the plaint. It appears, a feeble attempt is made by the respondents/plaintiffs to claim share in the suit properties. Pleadings must be drafted with sufficient definiteness. The material facts must be stated precisely. The plaint must be allege the existence of all the ingredients which contribute the cause of action. It is a trite law that, Court should not allow the plaintiff to go to trial in absence of proper pleading. It is trite law that, parties must lay down the foundation for the reliefs they seek by making clear and specific allegations in the pleadings.
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16. The question that would arise before this Court is whether plaintiffs at paragraph 3 of the plaint that both the brothers were very hard working would form a foundation that there exists a nucleus and the earnings of brothers concussively generated substantial income. On perusal of the averment made at paragraph 3, this Court is of the view that pleadings in regard to existence of a nucleus and joint earning by two brothers in the absence of joint family properties are not abstract question of law but question of fact to be determined on evidence. Both the Courts below were required to examine the pleadings and evidence adduced by respondents/plaintiffs and thereafter find out as to whether said pleadings and evidence if any is sufficient to shift the burden which initially rested on the plaintiffs of establishing that there was adequate nucleus out of which acquisition could have been made and these deciding factors are totally given a goby, by both the Courts below by relying on the averment made by the 21 appellants/defendants at para 13-e of the written statement.
17. The relevant portion at para 13-e which is culled out above no way indicates that appellants/defendants have admitted that suit schedule properties are joint family ancestral properties. On bare perusal of the above said averments made at para 13-e, it is clearly evident that there is absolutely no reference to property. The concurrent findings of both the Courts below by relying on this para 13-e of the written statement and thereby arriving at a conclusion that appellants/defendants have admitted that suit schedule properties are the joint family ancestral properties is palpably erroneous and perverse. Both the Courts below have not at all examined the effect of so called admission at para 13-e of the written statement. An admission in written statement should be taken as a whole and not in part. The admission has to be complete and sufficient. If the admission is not unequivocal 22 and the admission in the written statement raised several contentions and issues, the Court is required to call upon the plaintiff to prove his case irrespective of any admission.
18. Order VIII Rule 5(1) of CPC in this regard reads as under:
"5. Specific denial: (1) Every allegation of fact in plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability:
Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission."
19. In the present case on hand, the appellants/defendants have denied the entire averment made in the plaint and under para 13-e have asserted absolute title over the suit land. During trial, the appellants/defendants have placed on record title documents relating to item Nos.2 to 4 by way of rebuttal evidence. Insofar as item No.2 is concerned, the said land 23 is granted by the competent authority and the grant certificate is placed on record as per Ex.D2 and D3. On perusal of the nature of grant, it is forthcoming that husband of defendant No.1 namely, Puttaswamachari has submitted an application in form No.50 and 51 seeking regularization of unauthorized occupation of land. The authority after enquiry has regularized the unauthorized occupation of husband of defendant No.1. The finding of the Courts below that grant made in favour of husband of defendant No.1 would enure for the benefit of other family members is perverse. There is absolutely no pleading in the plaint insofar as this item No.2 property is concerned. In fact there is absolutely no whisper as to how this land was acquired by husband of defendant No.1. There is absolutely no material on record to demonstrate that family of plaintiffs and defendants had pre-existing right in item No.2. If the land at item No.2 was granted for the first time, this Court cannot accept the contention of the plaintiffs that grant made in favour of husband of 24 defendant No.1 would enure for the benefit of his brother Ramachari also. Though learned counsel appearing for the respondents/plaintiffs while defending the judgment would submit to this Court that both the brothers have contributed towards occupancy price, there is absolutely no pleadings to that effect and no evidence is adduced in that regard. The doctrine of enuring for the benefit of the family members cannot be extended to the grants made in respect of surplus lands. The doctrine of enuring would come to the aid to those tenants wherein ancestor is protected tenant and after his death the tenancy rights are inherited under Section 24 of the Land Reforms Act. If Form No.7 is filed by eldest son, and there is grant of occupancy right, the doctrine of enuring would come into play. But same principle cannot be applied in respect of all other grants also. Item No.2 was granted to husband of defendant No.1 which has to be presumed that it was in his individual capacity.
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20. For the reasons stated supra, I am of the view that concurrent finding of both the Courts below in holding that grant made in favour of husband of defendant No.1 would enure for the benefit of other family members also and it is joint family ancestral property is palpably erroneous and suffers from serious perversity.
21. Now coming to item No.3. The appellants/defendants have lead in rebuttal evidence and have produced the original sale deed of 23.09.1953 as per Ex.D4. On perusal of Ex.D4, it is clearly evident that it is standing in the name of defendant No.1. Insofar as item No.3 is concerned, there is absolutely no pleading in the plaint. There is no reference in whose name the said property is standing. The plaintiffs have also not whispered in regard to the sale deed in favour of defendant No.1. Both the Courts below have not at all examined this clinching rebuttal evidence adduced by the appellants/defendants. Admittedly, this property is 26 standing in the name of defendant No.1 since 1953. A property acquired by a Hindu woman has full ownership over the property acquired under registered sale deed exclusively in her name. Such property would not become a part of a joint family property. Where a Hindu female is in possession of a property and she has acquired title on the basis of a registered sale deed, there cannot be a presumption that property purchased was from the joint family funds. Even otherwise, the relevant portion of the plaint which runs in three paragraphs does not disclose any details and there is no claim by the respondents/plaintiffs over this item No.3. There cannot be a blending of property held by female, more particularly when item No.2 is purchased in 1953 under registered sale deed and the same discloses that it is appellant No.1/defendant No.1 who has purchased the same. Both the Courts below have not even dealt with this material aspect and no reasons are assigned while recording a finding that item No.3 is also a joint family ancestral property. In the light of the above 27 said discussion, I am of the view that property held by defendant No.1 on the basis of registered sale deed which is of the year 1953 cannot be held as a joint family ancestral property.
22. Insofar as item No.4 property is concerned, the appellants/defendants have produced certified copy of sale deed of the year 1950 as per Ex.D5. The certified copy of sale deed clearly indicates that it was purchased by Puttaswamachari on 06.02.1950 and thereafter husband of appellant No.1 has constructed house. The finding of the Courts below that, except the ocular evidence and the title documents, the appellants/defendants have not placed any other material on record to demonstrate that item Nos.2 to 4 were self-acquired properties is capricious and palpably erroneous.
23. Both the Courts below have also not examined categorical admission given by P.W.1 who has admitted in unequivocal terms that, it is appellants/defendants are in 28 possession over the suit schedule properties. If this categorical admission coupled with rebuttal evidence is taken into consideration, it clearly demonstrates that brother of Puttaswamachari namely, Ramachari during his lifetime never made a claim and asserted his right over the suit schedule properties.
24. As discussed above, both the Courts below have recorded a categorical finding that respondents/plaintiffs have failed to establish that suit schedule properties are joint family ancestral properties. Having recorded so, the Courts below proceeded to decree the suit by relying on para 13-e of the written statement. The finding recorded by the Courts below holding that suit schedule properties are joint family ancestral properties is based on no evidence and both the Courts below have erred on account of improper rejection of rebuttal evidence and proceeded to decree the suit of the respondents/plaintiffs by placing onus on wrong shoulders. The presumption raised by the 29 Trial Court in regard to existence of joint family property is in disregard of sound judicial principles and the Appellate Court being the final fact finding authority ought to have examined the pleadings, admissibility of evidence to prevent miscarriage of justice. The finding of the Trial Court is manifestly erroneous. The Trial Court has proceeded on superficial view of admission in written statement. I am of the view that, there is no admission at para 13-e of the written statement. Both the Courts below have not at all taken into note the ambiguous and unsatisfactory assertions in the plaint. From a reading of Rule 5(1) of Order VIII and Section 58 of the Evidence Act, it is clear that two provisions do not contain any flexible rule of evidence. What is contained therein is a broad proposition to be applied in the light of facts of each case. When the initial burden is not discharged either in the pleading or during the trial, the onus would never shift on the defendants. Even otherwise, the appellants/defendants in support of their contention have succeeded in placing on 30 record clinching rebuttal evidence and the clinching evidence on record clearly establishes that item Nos.2 to 4 properties are self-acquisition of appellants/defendants and there is absolutely no evidence forthcoming from respondents/plaintiffs side to indicate that it was purchased with the aid of joint family nucleus.
25. The important element for consideration in the present case on hand is whether there is clinching evidence to indicate that there exists a nucleus which yielded substantial income. Merely on the bald allegations in the plaint that both the brothers were hard working and pooled their income and purchased the suit schedule properties cannot be termed as a clinching evidence to grant the relief to the respondents/plaintiffs.
26. The admission as held by the Courts below is not at all conclusive. The appellants/defendants have been successful in demonstrating that alleged admission at para 13-e of the written statement has no bearing on the 31 present case on hand. Even if admission at para 13-e may amount to proof of existence of joint family but that does not lead to the presumption that properties are joint family properties. There is absolutely no specific pleading to establish that family possessed some joint property, which, from its nature, may have formed the nucleus. When there is no ancestral nucleus with the help of which the properties could have been acquired, the onus is heavy on the plaintiffs. A person suing for a share must show, not only that the property is joint family property but also that he had possession of his share or received payments on account of it. In the present case on hand, the appellants/defendants have not at all acknowledged that suit properties were acquired by any joint exertion of plaintiffs, mere circumstances of the parties having been united in food, at the time of acquisition, raises no presumption so as to relieve the plaintiffs from the onus of proving their averments made in the plaint that they had a joint share and interest in the acquisition. 32
27. The plaintiffs have miserably failed to discharge their initial burden that suit properties were purchased from joint labour. If the plaintiffs do not prove what it is incumbent on them to prove, then it is immaterial whether defendants along with plaintiffs were united prior to 1990. This material aspect is totally misunderstood by both the Courts below. The mere fact that the members lived together or that one member undertook the responsibilities of management as alleged by plaintiffs, would not be sufficient to prove that suit properties were acquired out of joint labour. There is a satisfactory explanation by the appellants/defendants during the trial so far as pleadings at para 13-e is concerned and hence, plaintiffs cannot, after failing to discharge the onus that lay upon them, fall back on alleged admission at para 13-e of the plaint. The general presumption being that when there is admitted to be some joint property, then a presumption arises that the whole of the property of joint family including any acquisition by a member of joint family is joint family 33 property. But in the present case, family did not possess any ancestral property and hence, the alleged admission at para 13-e of the written statement has no relevancy and hence, both the Courts below erred in holding that suit properties are joint family ancestral properties by solely relying on the pleadings at para 13-e and as such judgment of both the Courts below are palpably erroneous and suffer from serious infirmity and also perversity.
28. The entire process of arriving at a finding by the Courts below has resulted in substantial error of procedure. The finding of fact arrived at by the Courts below is not at all based on legal evidence. The error committed by the Courts below has virtually affected the ultimate decision by the Courts which suffers from serious perversity and has resulted in miscarriage of justice. The Appellate Court on an assumption has proceeded to accept the finding of the Trial Court as concluded and thereby committed a grave error of law. The presumption raised by the Trial Court in 34 regard to existence of joint family property is in disregard of sound judicial principles and the Appellate Court ought to have examined the pleadings, admissibility of evidence and admission of plaintiffs in cross-examination. Both the Courts below, on the contrary have examined categorical admissions given by P.W.1 in the following terms.
P.W.1 has stated in his cross-examination that he has documents to show that suit schedule properties are joint family ancestral properties and he has no impediment to produce the same before the Court. Further, he has admitted that record of rights produced by the plaintiffs are standing in the name of legal representatives of Puttaswamachari. It is also elicited in the cross- examination of P.W.1, Puttaswamachari has executed a Will and based on the Will, his legal representatives got their names mutated in item No.2, i.e., Sy.No.203. It is also well within the knowledge of the plaintiffs that all the properties are standing in the name of appellants. At para 35 3 of the cross-examination, P.W.1 has further admitted that item No.4 is self-acquisition of Puttaswamachari and P.W.1 has further admitted that Puttaswamachari after purchase has constructed a residential house in item No.4.
The next categorical admission which goes to the root of the case is also found at para 3 of the cross-examination where P.W.1 has admitted in unequivocal terms that item Nos.2 to 4 are exclusive possession of the appellants/defendants. However, it is relevant to note that respondents/plaintiffs have cross-examined D.W.1 and except denial, there is absolutely no suggestions put to appellants/defendants in regard to possession and enjoyment over the suit schedule properties.
29. The litigation is being fought by the legal heirs of two brothers i.e., Puttaswamachari and Ramachari. The Courts below have also not examined the trite law that presumption of union is stronger in case of brothers than in 36 the case of cousins and farther you go from the founder of the family, the presumption become weaker and weaker.
30. In the light of the above said discussions, this Court has come to the following conclusion:
a) The concurrent findings of both the Courts below that respondents/plaintiffs having failed to produce any documentary evidence to establish that suit schedule properties are joint family properties have still proceeded to decree the suit by relying on the admission at para 13-e of the written statement which is not at all an admission in regard to joint family ancestral properties and hence, finding of both the Courts below is palpably erroneous and suffers from serious infirmities.
b) The concurrent finding of both the Courts
below that respondents/plaintiffs and
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appellants/defendants are in joint possession and enjoyment of suit properties as joint owners is perverse and contrary to the rebuttal evidence lead in by the appellants/defendants as per Exs.D2 and D3 which are grant certificates and D4 and D5 which are sale deeds coupled with categorical admission given by P.W.1 at para 3 of the cross-examination wherein P.W.1 has admitted in unequivocal terms that item No.4 was purchased by Puttaswamachari in his individual capacity and thereafter constructed a house in item No.4. P.W.1 has further admitted in unequivocal terms that item Nos.2 to 4 are in exclusive possession of the appellants/defendants.
c) The concurrent findings of both the Courts below that appellants/defendants have failed 38 to establish that suit schedule properties are their self-acquisition suffers from serious perversity and the same is contrary to the clinching rebuttal evidence on record vide Exs.D2 to D5 coupled with failure on the part of the respondents/plaintiffs in not discharging their initial burden.
d) Both the Courts below have erred in decreeing the suit and decision is based on no evidence at all and the same is on mere surmises and conjecturers.
Based on these conclusions, I am of the view that both the Courts below have discarded the rebuttal evidence wrongly and it has assumed certain evidence to exists where there is none. I am of the view that, decision arrived at by both the Courts below is based on irrelevant and inadmissible evidence.
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31. For the reasons stated supra, the substantial questions of law framed by this Court are answered in the affirmative. The regular second appeal is allowed and judgment and decree passed by the Appellate Court in R.A.No.147/2006 and judgment and decree passed by the Trial Court in O.S.No.129/2007 are set aside and the suit filed by the respondents/plaintiffs in O.S.No.129/2007 is dismissed.
32. Since the appeal is allowed and the suit is dismissed, I.A.No.1/2018 filed for production of documents does not survive for consideration and the same is rejected.
Sd/-
JUDGE MBS/-