Karnataka High Court
K T Venkatappa vs K N Krishnappa on 27 September, 2012
Bench: Ajit J Gunjal, B.V.Nagarathna
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27th DAY OF SEPTEMBER 2012
PRESENT
THE HON'BLE MR. JUSTICE AJIT J.GUNJAL
AND
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
R.F.A. NO.1068/2002
c/w.
R.F.A. NO.1073/2002
In R.F.A.No.1068/2002
BETWEEN :
K T VENKATAPPA
SINCE DEAD BY L.RS
1 KODANDARAMA
S/O.ADIMURTHY
R/A. K.R.PURAM,
BANGALORE
2 HEMANTH
S/O.KODANDARAMA
AGED 4 YEARS, MINOR
R/B.FATHER NATURAL GUARDIAN
R/A.K.R.PURAM, BANGALORE
3 SRINIVASA
AGED ABOUT 25 YEARS
4 KUM GEETHA
AGED 24 YEARS, MINOR
REP.BY MOTHER AND NATURAL
GUARDIAN SMT.LAKSHMINARASAMMA
5 K V GOPAL
AGED ABOUT 47 YEARS
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6 SARASWATHAMMA
AGED 40 YEARS,
W/O.K.V.GOPAL AND
D/OF.LATE YELLAMMA
R/A.K.R.PURAM,
BANGALORE-36 ...APPELLANTS
(By Sri.Srinivas Iyer, Adv. for
Sri.S.V.Tilgul, B.R.G.K.Achar,
Sri.Yogesh R,
Sri.Konanur N.Chandrashekar, Advs.)
AND :
1 K N KRISHNAPPA
S/O.K.T.NARAYANAPPA ALIAS
BAJJAPPA, AGED ABOUT 32 YEARS
SINCE DEAD BY
L.RS LAKSHMINARASAMMA
AGED ABOUT 40 YEARS
W/OF.K.T.NARAYANAPPA
R/AT.K.R.PURAM, BLORE-36
2 ADI NARAYANA
AGED 18 YEARS
S/OF.K.T.NARAYANAPPA
R/AT K.R.PURAM, BLORE-36
3 JAYARAM
AGED 14 YEARS
S/OF.K.T.NARAYANAPPA
R/AT K.R.PURAM, BLORE-36
4 K N SRINIVASA ALIAS GANESH
S/O.LATE NARAYANAPPA @ BAJJAPPA
AGED ABOUT 30 YEARS, AGRICULTURIST
SINCE DEAD BY L.RS
SUSHEELA W/O.LATE K N SRINIVASA
ALIAS GANESH R/AT K.R.PURAM
BANGALORE-36
5 ARATHI
D/O.LATE K N SRINIVASA @ GANESH
AGED ABOUT 12 YEARS
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MINOR, REPTD BY MOTHER AND
NATURAL GUARDIAN SUSHEELA
R/AT K.R.PURAM, BLORE-36
6 PRATHAPPA
S/O.LATE K N SRINIVASA @ GANESH
AGED ABOUT 09 YEARS
MINOR, REPTD BY MOTHER AND
NATURAL GUARDIAN SUSHEELA
R/AT K.R.PURAM, BLORE-36
7 HEMA
D/O.LATE K N SRINIVASA @ GANESH
AGED ABOUT 05 YEARS
MINOR, REPTD BY MOTHER AND
NATURAL GUARDIAN SUSHEELA
R/AT K.R.PURAM, BLORE-36
8 K N VENKATARAMANAPPA
S/O.LATE K T NARAYANAPPA ALIAS
BAJAPPA, AGED ABOUT 28 YEARS
STUDENT,
R/O.K.R.PURAM, BLORE-36
9 K N YELLAPPA
S/O.LATE K T NARAYANAPPA ALIAS
BAJAPPA, AGED ABOUT 27 YEARS
STUDENT,
R/O.K.R.PURAM, BLORE-36
10 SAROJAMMA
D/O.LATE K T NARAYANAPPA ALIAS
BAJAPPA, W/O.VENKATAMURTHY
R/O.K.R.PURAM, BLORE-36
11 THOLASAMMA
W/O.LATE T N JAYARAMAIAH
R/O.K.R.PURAM, BLORE-36
12 JAYAPRAKASH
S/O.LATE T N JAYARAMAIAH,
AGED 10 YEARS,
R/O.K.R.PURAM, BLORE-36
13 PRAKASH
S/O.LATE T N JAYARAMAIAH,
AGED 08 YEARS
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R/O.K.R.PURAM,
BANGALORE-36
14 SUDHAMANI
D/O.LATE T N JAYARAMAIAH,
AGED 06 YEARS
R/O.K.R.PURAM, BLORE-36
15 K V RANGAPPA
AGED ABOUT 54 YEARS
16 K V LAKSHMAN
AGED ABOUT 52 YEARS
17 K V THIMMAPPA
AGED ABOUT 40 YEARS
18 K V RAJAPPA
AGED ABOUT 43 YEARS
19 YELLAMMA
SINCE DEAD BY L.RS
20 LALITHAMMA
W/O.K.T.RAMACHANDRA
R/AT KOTE TEMPLE,
K.R.PURAM, BLORE-36
21 GOWRAMMA
SINCE DEAD BY L.RS
ASWATHAIAH S/O.K.T.VENKATAPPA
AGED ABOUT 38 YEARS
22 K V RANGAPPA
S/O.K.T.VENKATAPPA
AGED ABOUT 35 YEARS
23 K V LAKSHMAN
S/O.K.T.VENKATAPPA
AGED ABOUT 30 YEARS
24 K V THIMMAPPA
S/O.K.T.VENKATAPPA
25 K V GOPAL
S/O.K.T.VENKATAPPA
AGED ABOUT 25 YEARS
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26 K V RAJAPPA
S/O.K.T.VENKATAPPA
AGED ABOUT 25 YEARS
SINCE DEAD BY L.RS
27 NANJAMMA
W/O.K.V.RAJAPPA
AGED ABOUT 33 YEARS
28 MANJULADEVI
D/O.K.V.RAJAPPA
AGED ABOUT 19 YEARS
29 HEMALATHA
D/O.K.V.RAJAPPA
AGED ABOUT 16 YEARS
MINOR REPTD BY MOTHER
AND NATURAL GUARDIAN
NANJAMMA
30 LAKSHMI
D/O.K.V.RAJAPPA
AGED ABOUT 12 YEARS
MINOR, REPTD BY MOTHER
AND NATURAL GUARDIAN
NANJAMMA
31 YELLAMMA
D/O.K.T.VENKATAPPA
W/O.K.N.RAMAIAH
SINCE DEAD BY L.RS
32 RATHNAMMA
32 LALITHAMMA
33 K N RAMAIAH ...RESPONDENTS
(By Sri.S.V.Vijayashankar Senior Counsel for
Sri.A.Venkatachalapathi & Assts for C/R1-7 &
9-14,
Sri.VNR Assts., Advs. for R1-R7 & R9
Sri.S.R.Krishna Kumar & Sri.Ramesh, Advs.
for R25-R27, R16, R17, R19)
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This R.F.A. is filed under filed u/s 96 & Order 41
of CPC against the Judgment and Decree Dated: 4.6.02
passed in OS No.1309/1980 on the file of the XVII
Addl.City Civil Judge, Bangalore City, partly decreeing
the suit for partition and separate possession.
In R.F.A.No.1073/2002
BETWEEN :
1 SRI.K V LAKSHMAN
AGED ABOUT 60 YEARS
S/O K T VENKATAPPA
R/A K R PURAM
BANGALORE
2 SRI.K V THIMMAPPA
S/O K T VENKATAPPA
AGED ABOUT 56 YEARS,
R/A K R PURAM
BANGALORE
3 SMT.NANJAMMA
W/O K V RAJAPPA
AGED ABOUT 39 YEARS,
4 MANJULADEVI @ MANJULA SRINIVAS
D/O K V RAJAPPA,
AGED ABOUT 23 YEARS
5 HEMALATHA @ HEMAVATHI
D/O K V RAJAPPA,
AGED ABOUT 21 YEARS
ALL R/A K R PURAM
B'LORE ...APPELLANTS
(By Sri.S.R.KRISHNA KUMAR & SRI.K.S.RAMESH ADVS.)
AND :
1 SMT.LAKSHMINARASAMMA
MAJOR
W/O LT K N KRISHNAPPA
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2 ADI NARAYANA
S/O LATE K N KRISHNAPPA
MAJOR
3 SRI.JAYARAM
S/O LATE K N KRISHNAPPA
MAJOR
4 SMT.SUSHEELA
W/O LATE K N SRINIVASA
MAJOR
5 ARATHI
D/O LATE K N SRINIVASA
MAJOR
6 PRATHAPA
S/O LATE K N SRINIVASA
MAJOR
7 HEMA
D/O LT K N SRINIVAS
MAJOR
8 K N VENKATAMANAPPA
S/O LATE K T NARAYANAPPA
MAJOR
9 K N YELLAPPA
S/O K T NARAYANAPPA
MAJOR
10 SMT.SAROJAMMA
D/O LATE K T NARAYANAPPA
MAJOR
11 SMT.THOLASAMMA
W/O LT T N JAYARAMAIAH
MAJOR
12 JAYAPRAKASH
S/O LATE T N JAYARAMAIAH
MAJOR
13 PRAKASH
S/O T N JAYARAMAIAH
-8-
MAJOR
14 SUDHAMANI
D/O T N JAYARAMAIAH
MAJOR
ALL R/A MASJID ROAD
KRISHNARAJAPAURAM
BANGALORE - 560 036
15 SMT.LAKSHMINARASAMMA
W/O LATE T V ASHWATHAIAH
MAJOR
16 KODANDARAMA
S/O ADIMURTHY
MAJOR
17 HEMANTH
S/O KODANDARAMA
MAJOR
18 SHANTHAMMA
D/O LATE T V ASHWATHAIAH
MAJOR
19 SRINIVASA
S/O LATE T V ASHWATHAIAH
MAJOR
20 GEETHA
D/O LATE T V ASHWATHAIAH
MAJOR
21 K V RANGAPPA
S/O LT K T VENKATAPPA
MAJOR
22 K V GOPAL
SINCE DEAD
REPRESENTED BY LR (RESPONDENT NO.26)
ALL R/A MASJID ROAD
KRISHNARAJAPAURAM
BANGALORE - 560 036
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23 LAKSHMI
MAJOR
D/O K.V.RAJAPPA
R/A MASJID ROAD
KRISHNARAJAPURAM
BANGALORE - 560 036
24 SMT.RATHNAMMA
25 SMT.LALITHAMMA
26 SARASWATHAMMA
ALL ARE MAJORS
AND DAUGHTERS OF
SMT.YELLAMMA
27 K.N.RAMAIAH
MAJOR
HUSBAND OF SMT.YELLAMMA
ALL ARE R/A MASJID ROAD
KRISHNARAJAPAURAM
BANGALORE - 560 036
...RESPONDENTS
(By Sri.A.S.Vijayashankar Senior Counsel for
Sri.A.Venkatachalapathi & Assts., Advs. for C/R1-7 &
9-14
Sri.S.V.Tilgul Adv. & Sri.B.R.G.K.Achar for R19, R22,
R26
Sri.N.N.R.Assts., Advs for R1-R7 & R9-R14)
....
This R.F.A. is filed under Section 96 of CPC
against the judgment and decree dated: 4.6.02 passed
in OS NO.1309/1980 on the file of the XVII Addl.City
Civil Judge, Bangalore City, partly decreeing the suit for
partition and separate possession.
These R.F.As. having been heard and reserved,
coming on for pronouncement of orders this day, Ajit
J.Gunjal, J., delivered the following:
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JUDGMENT
Both these appeals are disposed of by this common judgment.
2. R.F.A. 1068/2002 is by some of the legal heirs of defendant No.1 and R.F.A. No.1073/2002 is by defendants 4, 5 and remaining legal heirs of defendant No.1.
3. During the course of this judgment, the parties would be referred to as per their ranking in the Trial Court.
4. Before considering the case of the parties, it is to be noticed that plaintiffs 2 and 3 have died and their legal representatives are brought on record.
5. The case sought to be made out by the plaintiffs is that 1st defendant is the elder brother of the father of the plaintiffs. The 1st defendant has seven sons. His first son is not heard of for over a period of 20 years and
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his whereabouts are not known. The 1st defendant has a daughter by name, Smt. Yellamma, the 8th defendant, who is residing with her husband. The father of the plaintiffs, Sri.K.T.Narayanappa alias Bajjappa died about 7½ years prior to the institution of the suit. He had five sons and one daughter. His last son Sri.T.N.Jayaramaiah died about 4½ years prior to the institution of the suit leaving behind his wife and two minor sons and one minor daughter, who are plaintiffs 6 to 9. The case made out by the plaintiffs is that the plaintiffs and defendants constitute a Hindu Joint Family and the properties as stated in the schedule are their ancestral and joint family properties and they are in joint possession and enjoyment. The said properties are acquired in addition to the ancestral properties out of the joint family funds earned by all the Joint Family members. The 1st defendant and the father of the plaintiffs i.e., K.T.Narayanappa were the only two sons of late Sri.Thimmaiah. However, since the death of Sri.Thimmaiah, the 1st defendant, who was the eldest in
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the family was acting as a kartha and he was managing the suit properties and the affairs of the family. It is their case that some of the properties are purchased by him in the name of K.T.Narayanappa i.e., father of the plaintiffs and some properties in his own name. The father of the plaintiffs was innocent and basically engaged in agricultural work, toiling hard. The 1st defendant used to manage all the affairs of the family as a Kartha. The case of the plaintiffs is that, theirs is an affluent family and all the members of the family were working hard in co-operation and contributed their best towards the family income and welfare of the family and also in improvement and acquisition of the movable and immovable properties of the family. After the death of the father of the plaintiffs certain misunderstanding took place in the family and frequently the women folk started quarrelling amongst each other. The 1st defendant started ill-treating the plaintiffs. He refused to provide them the required facilities as a Manager of the family and showed discrimination and began to act
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against the common interest of the joint family and started mis-using the funds of the joint family and started acquiring properties in his individual name. Thus, it is their case that the 1st defendant has acquired the property with the income generated from the Joint Family properties. They would contend that the 1st defendant is making attempts to cut casurina as well as Eucalyptus trees in item Nos. 25, 26, 27 and 28 of `A' schedule properties and is making efforts to sell them. It is their case that all the money, which is garnered by sale of these properties, is with defendant No.1. Notwithstanding the protest from the plaintiffs, the 1st defendant is carrying on the business in selling of the properties.
6. The specific case made out by the plaintiffs is that the Joint Family had sufficient alienated properties inasmuch as their grand father, Thimmaiah, i.e., the father of K.T.Narayanappa as well as defendant No.1 was also doing extensive business in tobacco and doing money lending business also. Hence, he had sufficient
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funds. It is their case that the partition is necessarily to be effected between the plaintiffs and the defendants inasmuch as the interest of the joint family is suffering. It is their specific case that the plaintiffs have half a share in the suit schedule properties. Thus, the suit for partition.
7. The defendants entered appearance and have filed their written statement. The written statement is filed by defendant No.1 on behalf of all the remaining defendants. The specific defence of the 1st defendant is that all the allegations made in the plaint are false, frivolous, malafide and out of jealousy and with an ulterior motive to have a share in the property, which essentially is self-acquired property of defendant No.1. It is the case of the defendants that the father of the plaintiffs, K.T.Narayanappa alias Bajjappa died in the year 1968 and had died divided in status and separated from defendant No.1, each having separate messing as well as residence. The defendants would contend that the averments that the plaintiffs and defendants are the
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members of Hindu Joint Family and the properties mentioned in the schedule are their ancestral and Joint Family Properties and they are in possession and enjoyment, are all false and denied. The defendants would emphatically submit that the plaintiffs and defendants are not the members of the Hindu Joint Family and that the schedule properties are not the ancestral and Joint family properties. The specific case of the defendants is that only item Nos. 1, 2, 7(a) & (b), 8 and 21 of the `A' schedule and item Nos. 2, 5, 6, 7, 18, 19, 21, 22, 25 and 26 of the `B' schedule properties are self-acquired properties of late Thimmappa i.e., father of 1st defendant and K.T.Narayanappa, father of the plaintiffs. After the death of the Thimmappa in the year 1943, the income from some of the above mentioned items i.e., lands, which were being managed by K.T.Narayanappa, the father of the plaintiffs, was divided and he enjoyed those properties in his individual capacity and separately to the exclusion of the defendants. The defendant No.1 would contend that
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he has an equal share in the property of the items mentioned. He would specifically deny that the properties have been acquired out of the Joint Family Funds earned by the efforts of all the Joint Family members. He would submit that the properties in the `A' schedule are self-acquired and he has acquired the same by his own exertion, skill and talent and without any aid from the income derived from the Joint Family properties. Thus, they are required to be classified as self-acquisition and cannot be termed as Joint Family properties. He would contend that the said self- acquired and absolute properties are in his exclusive possession and enjoyment right from the dates of their respective purchases, during the lifetime of late Thimmappa as well as K.T.Narayanappa. He would also contend that as regards the self-acquired properties of late Thimmappa, division by metes and bounds is required to be made, which has not been done, when both defendant No.1 and his brother K.T.Narayanappa separated and joint family status was disrupted. He
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would submit that most of the properties mentioned in the `A' schedule are the properties of the defendants. Hence plaintiffs claim that they would be entitled for a share in the suit schedule property, does not arise. He would contend that even during the lifetime of his father and his brother, he started doing business independently and by his own skill, hard labour and also with certain amount of luck, started acquiring properties independently and also acquired properties from the income derived from his own independent business and also from the rents and income from his self-acquired properties. He also contends that he was doing tobacco business with the help of his maternal uncle and he was also having his own rice mill, which was fetching him good income and he was doing money lending business as well as doing P.W.D contract work and other contract work. The case of the defendants is one of total denial and the question of the plaintiffs seeking any share in the suit schedule property would not arise.
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8. Incidentally, it is to be noticed that during the pendency of the suit, the plaintiffs moved an application for amendment under Order 6 Rule 17 of the Code of Civil Procedure for amending the pleadings inasmuch as they proposed to add a few more paragraphs to the plaint regarding the status of the family and also to plead that Kodigehalli Thimmaiah, i.e., the father of the 1st defendant and grand father of the plaintiffs, in addition to agriculture was carrying on money lending business, doing business in Tobacco and also Tobacco dust. He was also running a flour mill, buying and selling agriculture produce, manufacturing `PURI' and buying and selling bullocks etc. That he was growing casurina trees in the lands in addition to food crops. They would also take up a plea by way of amendment that the 1st defendant was actively assisting his father and because of his dominant nature, virtually, he was managing all the affairs of the Joint Family even during the life-time of his father. The said application was allowed and the defendants have filed their additional
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written statement inter alia admitting to some extent that the said Kodigehalli Thimmaiah and his two sons i.e., K.T.Venkatappa-defendant No.1 and K.T.Narayanappa were the member of the Hindu Joint Family and he was carrying on money lending business and he was also doing business in Tobacco and Tobacco dust. But however, they would specifically deny that the said Thimmaiah was running flour-mill, buying and selling agriculture produce and manufacturing `PURI' and buying and selling of bullocks etc.
9. On the basis of these pleadings, the learned Trial Judge has framed the following issues:
1. Whether the plaintiffs prove that the suit properties other than Items - 1, 2, 7 (a) and (b), 8 and 21 of `A' Schedule and Items 2, 5, 6, 7, 18, 19, 21, 22, 25 and 26 of `B' schedule are the joint family properties of Plaintiffs and Defendants 1 to 8?
2. Whether the Plaintiffs prove that the provision stores run in K.R.Puram is joint
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family property and that the 1st Defendant has fraudulently transferred it to 9th Defendant?
3. Whether the defendants 1 to 8 prove that there was a division of status between defendant No.1 and that K.R.Narayanappa?
4. Whether the defendants prove that items 3 to 6 to 16, 18 to 20, 22, 23(a) and (b), 25
(a) to (j), 26 to 28 of `A' Schedule and Item 1, 3, 4, 8 to 17, 20, 23 and 24 of `B' Schedule and some items of moveables showing in the `D' Schedule are the self acquired property of Defendant 1?
5. Whether items 24(a) to (c), 29(a) to (d) of `A' Schedule were the self acquired and absolute properties of late Narayanappa?
6. Whether the Court fee paid in insufficient?
7. In which of the suit item the Plaintiffs are entitled to a share?
8. What order?
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10. During the course of trial, plaintiff No.3 was examined as P.W.1 and plaintiff No.4 was examined as P.W.2 and three more witnesses as P.Ws. 3, 4 and 5. On behalf of the defendants, two witnesses were examined as D.W.1 and D.W.2. During the course of trial, the plaintiffs have got marked as many as 224 documents at Ex.P1 to Ex.P224 and on behalf of the defendants Ex.D1 to Ex.D197 were marked.
11. The learned Trial Judge, having regard to the evidence let-in by the parties was of the view that the plaintiffs have proved that the suit schedule properties are the Joint Family properties of the plaintiffs as well as defendants 1 to 8, and that defendants 1 to 8 have failed to prove that the suit schedule properties are the self-acquired properties of defendant No.1 inasmuch as the initial burden, which was cast on the plaintiffs to prove that they had enough joint family nucleus for purchased of the properties having been discharged and the burden shifted on to defendant No.1 to prove that, the properties are not purchased from the nucleus of
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joint family. The defendants have failed to discharge the burden. The learned Trial Judge has found that the plaintiffs are entitled for half a share in all the suit schedule properties, except the provision stores, which is run in K.R.Puram.
12. In support of their respective appeals, we have heard Mr. Srinivas Iyer, learned counsel appearing for the defendants in R.F.A.No.1068/2002 and Mr.Yoganarasimha, learned Senior counsel as well as Mr.S.R.Krishna Kumar, learned counsel appearing for defendants in the connected appeal and Mr.S.Vijaya Shankar, learned Senior counsel appearing for plaintiffs in both the appeals.
13. Mr.Yoganarasimha and Mr.Srinivas Iyer learned senior counsel and Mr.Krishna Kumar, learned counsel for the appellants in tandem submitted that the evidence on record does not disclose that the family had sufficient income so as to purchase the properties as mentioned in the schedule. In fact they would contend
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that the income was not sufficient enough to maintain themselves. Indeed Mr.Yoganarasimha as well as Mr.Srinivas Iyer, learned Senior Counsel have taken us through the pleadings as well as evidence on record to buttress their contention that the Joint Family, though owned certain agricultural lands, that by itself did not generate enough income so as to acquire the properties, which the defendant No.1 would claim as his self acquisition. They would also contend that the plaintiffs have failed to discharge their burden inasmuch as initial burden is on them to prove that the Joint Family had sufficient income and after meeting the expenses of maintenance, surplus income remained, from which the properties could have been purchased. With reference to the evidence of P.W.1, they would contend that there is an admission by P.W.1 during the course of his evidence that defendant No.1 was doing military contract as well as PWD contracts. Ex.D 108 are documents, which relate to the money lending licence, which is issued in the name of the defendant No.1;
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Ex.D93 are the promissory notes; Exs.D 102-107 are the Tobacco licence and Exs.D 132-140 are the permits to transport the Tobacco; Exs.D121-122 are the Accounts books relating to the Cloth Business. Thus, according to them, notwithstanding the fact that there was no division of the Joint Family properties, nevertheless the 1st defendant was enterprising and with his own efforts right from the age of 20 years, started doing independent business in money lending, tobacco and cloth business and so also was doing military contract as well as PWD contract. Thus, according to them, the plaintiffs have not discharged the initial burden on them to the effect that there was surplus amount, from which the defendant No.1 could acquire the property. In the absence of such material evidence, the question of presuming that all the properties mentioned in the schedule are the Joint Family properties does not arise. They would also contend that K.T.Narayanappa, with his own efforts had acquired several properties. They would submit that
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initially, the Joint Family owned about 25 acres of land and thereafter, K.T.Narayanappa started acquiring the land with his own efforts. They would contend that Narayanappa acquired an extent of 20.37 acres in the year 1946 and another extent of 43.13 acres in the same year. They would also contend that they had purchased an extent of 40 acres on 25.01.1954 from one H.S.Madhava Murthy but however, the said sale was annulled inasmuch as it was a gomal land. They would further contend that Narayanappa with his own effort had acquired about 100 acres of land in addition to the Joint Family Property and 25 acres. Hence, they would submit that by implication, both Narayanappa as well as the 1st defendant were doing independent business. In the circumstances, the question of plaintiffs claiming that the self - acquisition of the defendant can be termed as Joint Family Properties, does not arise.
14. Indeed in anticipation of certain documents, which are likely to be pressed into service by the
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plaintiffs, they would contend with reference to Section 53 of Mysore Agricultural Income Tax Act, 1957 that Exs.P109 to P122 which are the agricultural tax returns, cannot be looked into inasmuch as they are not admissible in evidence. They would contend that notwithstanding the fact that a statement is made by defendant No.1 in the declaration that the income is derived from the joint Family Properties, that by itself cannot be said that all the properties are the Joint Family properties.
15. Another contention raised by the defendants is that the learned Trial judge was not justified in looking into the said documents to come to a conclusion that the declarations, which are made before the competent authority cannot be discarded. Hence, a presumption is required to be raised to the effect that the statement made in those declarations are required to be accepted. Thus, they would also submit that the learned Trial Judge has not taken into consideration all the relevant documents, which are made available. They would
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submit that the learned Trial Judge has failed to note that the initial burden, which was cast on the plaintiffs having not been discharged, the question of shifting the burden on to defendant No.1 to discharge the burden that the properties, which are purchased by him are from his own funds does not arise. Another contention raised by the learned counsel appearing for the defendants is that when the primary evidence itself is not admissible, the question of admitting the certified copies as secondary evidence would not arise.
16. Mr.Vijay Shankar, learned Senior counsel appearing for the plaintiffs submitted with reference to Section 53 of the Mysore Agricultural Income Tax Act that the bar initially, was before the amendment regarding confidentiality, but however, after the amendment to Section 53 in the year 1975, the rigour of Section 53 of the Act is watered down with respect only to declarations made by the declarents before the Tax Officer. Hence, Section 53 of the Act is not at all applicable.
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17. In the alternate, he would submit that two applications were made by the plaintiffs during the course of trial i.e., I.A.No.13 and I.A.No.15. I.A.No.13 was under Order XIII Rules 1 & 2 of the Code of Civil Procedure to produce the certified copies of the tax returns and I.A. No.15 was under Order XVI Rule 6 of Code of Civil Procedure seeking permission to summon the documents from the Income Tax Officer. He submittted that both the applications were granted by the learned Trial Judge as against which, the defendant No.1 was before this Court by way of revision petition and this Court has only decided the application, which was filed under Order XVI Rule 6 of the Code of Civil Procedure i.e., I.A.No.15 and remitted the matter for fresh disposal. Hence, he submitted that the application granting permission to the plaintiff to produce the certified copies of the tax returns remain intact. Even otherwise, he submitted that when the documents were being marked during the course of evidence, the defendants did not take any objection.
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Hence, it is not open for them at this point of time to contend that the declarations, which are made in the said tax returns cannot be looked into for any purpose.
18. Insofar as the admissibility of secondary evidence when the primary evidence is not permissible, he would press into service Section 65(a) of the Indian Evidence Act inasmuch as if there is a bar in producing documents, the consequential evidence is permissible. He would also submit that the fact that defendant No.1 is resiling from the declaration, which is given before the income tax authorities, he is liable to be prosecuted under Section 50 of the Act. Hence, in the circumstances those documents are required to be looked into atleast for the purpose of ascertaining the status and that the suit schedule properties are the Joint Family properties.
19. Insofar as the nucleus is concerned, he would submit that the family was doing money lending business since 1900. He would press into service
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Ex.P176, a document, which is referable to the year 1900 wherein, the grand father of the plaintiffs and father of defendant No.1 was into money lending business. Indeed he would submit that the family of the plaintiffs and defendants was very affluent and they had advanced considerable some of money to various persons even to the tune of `1,400/- in those days. Hence, he submits that it cannot be said that the family did not have enough funds and nucleus. He would also refer to various documents to buttress his contention that indeed the family did have surplus funds from various activities like money lending, agriculture, tobacco business etc. He would also submit that defendant No.1 being the eldest member of the family born in the year 1903, being very shrewd was managing the suit schedule properties even during the life time of his father Thimmappa. He would also further submit that no evidence is forthcoming from the defendant's side to show the resources for purchasing of the properties, which he claims as self-acquisition. He
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would also press into service two more documents i.e., his statement before the Deputy Commissioner seeking re-grant of the agricultural lands where he states that he is making an application on behalf of the Joint Family. He would also refer to the oral evidence wherein D.W.1 has admitted that the family continued to be joint. In support of the judgment, he would submit that the learned Trial Judge has taken into consideration the entire evidence on record. Hence, the question of upsetting the judgment and decree of the Trial Court does not arise.
20. Having regard to the various contentions urged the two points, that would fall for our consideration are:
(1) Whether the evidence on record would disclose that the Joint Family had enough funds and nucleus so as to apply the same to purchase the suit schedule properties and the said burden was discharged by the plaintiffs?
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(2) In the event, the plaintiffs discharging their burden that there was sufficient nucleus, whether defendant has discharged the burden shifted on him and have produced the evidence to prove that the income from the Joint Family nucleus was not made use of for the purchase of the suit schedule properties, which are his self- acquisitions?
21. Before adverting to the various contentions, it is necessary for us to observe that it is settled law that the proof of existence of a Joint Family does not lead to the presumption that it possesses joint family property. The property held by a member of a Joint Family cannot be presumed to be a Joint Family Property. In a Joint family, if a person claims that it is a Joint Family property, the burden of proving that it is so, rests on the party who asserts it. However, in the case where it is established that the Joint Family possesses some joint family properties, which from its nature and relative value appears to be joint family property, the
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presumption arises that it is a joint family property and the burden shifts on the defendants alleging that the property was acquired without the aid of the Joint family. The legal position would be that the joint and undivided family is the normal condition of Hindu society. An undivided . family is not only joint in estate but also in food and worship. The existence of joint estate is not an essential requisite to constitute a joint family and a family which does not own any property may nevertheless be joint. The presumption of union is the general presumption in the case of father and sons. The strength of presumption necessarily varies in every case. But the presumption is strong in the case of brothers. This is also well settled that where on the date of the acquisition of a particular property, the Joint Family had nucleus for acquiring the property in the name of any member of the Joint Family, should be presumed and was to form the part of the joint Family property unless it is shown to the contrary. It is more so in the case of a kartha of the Joint Family proving
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that he acquired with the independent funds without aid of the joint family funds.
22. The Apex court in the case of Srinivas Krishnarao Kango V/S Narayan Devji Kango reported in AIR 1954 SC 379 has observed thus:
"Proof of existence of a Hindu Joint Family does not lead to the presumption that property held by any member of the family is joint and the burden rests upon any one asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property."
23. An important ingredient, which is required to be considered is the income of the nucleus family. Incidentally, it is to be noticed that after P.W.1 was
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examined in chief and when he was partly cross- examined, he died. The question would be whether his evidence could be looked into. It is no doubt true that a contention is raised by the plaintiffs before the Trial Court that the said evidence is required to be eschewed inasmuch as he was not completely cross-examined whereas the defendants would contend that they had nothing more to cross-examine. Hence, the evidence is required to be considered in full.
24. Once the evidence adduced by the plaintiff is sufficient to shift the burden, which initially rested on them of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and the extent of the nucleus. The important thing to consider is the income, which the nucleus yields. A building in the occupation of the members of a family and yielding no income cannot be considered as a nucleus out of which acquisitions could have been made even though it might be of considerable value. On the other hand, a running
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business in which the capital invested is comparatively small might conceivably produce substantial income, which might form the foundation of the subsequent acquisitions. These are not abstract questions of law, but questions of fact to be determined on the evidence in the case. Where the finding of the Courts is that the income from the ancestral lands was not sufficient enough for the maintenance of the members and the houses in dispute are substantial, burden is on the plaintiff, who alleges the houses to have been acquired out of the Joint Family Funds to establish it.
25. The Apex Court in the case of Srinivas Krishnarao Kango V/s. Narayan Devji Kango and others reported in AIR 1954 SC 379 has held that "while it is not unusual for a family to hold properties for generations without a title deed, an acquisition by a member would ordinarily be evidenced by a deed. When therefore, a property is found to have been in the possession of a family from time immemorial, it is not unreasonable to presume that it is ancestral and to
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throw the burden on the party pleading self-acquisition to establish it".
26. A Division Bench of this Court in case of K.M.Subbaiah and others V/s. Union of India and others reported in ILR 1973 KAR 1335 has observed thus:
"An admission of a `Kartha' of a Joint Hindu Family would be binding on the other members of a Co-parcenary in the absence of intention on the part of the `Kartha' himself giving rise to an inference that he was attempting to acquire some property for himself at the expense of the other members of the family."
To render the property joint, the plaintiff must prove that the family was possessed of some property, out of which income, other property could have been acquired or from which the presumption could be drawn that all the property possessed by the family is joint family property, or that it was purchased from the Joint Family funds such as the proceeds of sale of ancestral property, or by joint labour. None of these alternatives is
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a matter of legal presumption. It can only be brought to cognizance of a Court in the same way as any other fact, namely, by evidence. There is at times un-discriminated use of the expression `presumption' in the context. It is to be understood to indicate those presumptions of fact, which may be said to arise in considering whether the burden of proof has or has not been discharged by a party. It is not as if there is any general rule for all cases.
27. Where it is established or admitted that the family possessed some joint property which, from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the presumption arises that it was joint property and the burden shifts to the party alleging self acquisition to establish affirmatively, that the property was acquired without the aid of the joint family. However, no such presumption would arise, if the nucleus is such that with its help, the property claimed to be joint could not have been acquired.
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28. As to the definition of `Business'; Business means occupation, calling; an immediate task or occupation; a commercial or industrial enterprise; trade, commerce, profession, manufacture etc. Business is a wider term than, and not synonymous with, trade; and means practically anything which is an occupation as distinguished from pleasure. Profit or the intention to make profit is not an essential part of the legal definition of a trade or business; and payment or profit does not constitute a trade or business that which would not otherwise be such.
29. Having regard to the principles laid down as to the concept of Joint Family Property, the nucleus and the acquisition of the properties, one is required to examine whether the suit schedule properties are the Joint Family properties or at least some of the properties are the self-acquisitions of the defendant. Before considering the evidence on record, there are two primary issues, which are required to be dealt. One is
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that during the course of trial, an application was moved under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure for amendment of the pleadings. The proposed amendment at para 3 is as follows:
"The said Kodigehalli Thimmaiah, his two sons the first defendant herein and K.T.Narayanappa were members of the Joint Hindu Family. The said Kodigehalli Thimmaiah in addition to agriculture was carrying on money lending business, doing business in Tobacco and Tobacco dust, running of the flour mill, buying and selling agricultural produce, manufacturing `PURI' buying and selling bullocks etc. He was growing casurina trees in the lands in addition to food crops. The first defendant and the father of the Plaintiffs 1 to 5 were also assisting their father in the above said ventures. Out of the said avocation, the Joint Family during the life time of Thimmaiah, had substantial surplus income. The first defendant was actively assisting his father during his lifetime and because of his dominating nature, virtually, he was managing all the joint family affairs, even during the lifetime of his father. In the
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course of such management he acquired several properties in his name also out of the joint family funds. After the death of the said Kodigehalli Thimmappa his sons continued the joint family along with their sons and the first defendant continued as the Manager of the Joint Family".
30. This amendment is in furtherence of the pleadings filed by the plaintiffs to establish that the joint family does have business, which would generate income, which would form the nucleus to acquire the other properties. Indeed, a contention was sought to be raised before us that the said application could not have been granted by the learned Trial Judge in the first instance. We are of the view that such a contention is not open for the defendants inasmuch as during the course of trial, they have consented for allowing of the said application. Once the application is allowed on a concession made by the defendants, it is not open for them to resile from such a concession and contend that the application would tend to amplify the pleadings. In fact the learned Trial Judge, during the course of the
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judgment would refer to the same and has recorded a finding that the said application for amendment has been allowed pursuant to the consent given by the defendants.
31. This takes us to the question as to the nucleus as to whether the Joint Family indeed had any business worthwhile which would generate enough income enabling the family to purchase the schedule properties. The general defence of the defendants appears to be that their father Timmappa did not inherit any ancestral property nor was he in possession of any such property. He started his life from scratch, inasmuch as he was eking out his livelihood by preparing and selling `fried rice' (puri/chirumure/burugu) and he was being called also as `Burugal Thimmappa'. The eldest son K.T.Venkatappa defendant No.1 went to Bangalore for education, when he was about 5 years old and studied up to 8th standard. At Bangalore, he was under the care of one Thimmakka, who was childless. She was doing business in K.R.Market. After his education,
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K.T.Venkatappa started earning by doing business in `ragi' and other food grains in small scale. Later K.T.Venkatappa started doing business in tobacco with the help of his maternal uncle, H.Narayanappa and further engaged himself in different types of business and acquired considerable money and properties. Thimmappa, grand father of plaintiffs and defendants died in the year 1943. His younger brother K.T.Narayanappa and family were in possession and enjoyment of all the properties left behind by Thimmappa. Thus, it is the contention of the defendants that all the properties, which are acquired are the self- acquired properties of the defendants. It is not the genealogy, which is sought to be objected. It is not at all disputed that Thimmappa died in the year 1943 when he was 70 years old. K.T.Narayanappa, who is the younger son of Thimmappa died in the year 1968. K.T.Venkatappa, who is 1st defendant died in the year 1993 and P.W.1 died in the year 1987 and P.W.2 was born in the year 1951. The suit is filed in the year 1976
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i.e., on 07.03.1976 and in 1980 it was renumbered as O.S. No.1309/1980. The application for amendment of the pleading was filed on 16.11.1998. The defendants themselves would admit that there was no partition in the family. Thimmappa i.e., the original propositus had acquired `A' schedule lands inasmuch as that is the admission of defendant No.1 that they are the Joint Family Properties. A perusal of `A' schedule properties would disclose that they are agricultural lands. The total extent of those agricultural lands will be about 24 acres. `B' schedule properties are the houses and the sites. We are of the view that the lands referred to in `A' schedule are all agricultural lands and certainly they would generate enough income. Indeed the case of the defendants as observed, at the outset is that there was no partition in the family but however defendant No.1 started earning on his own and from his earnings has purchased the properties, which are a part of the `A' schedule. Insofar as the `B' schedule is concerned, there appears to be no serious dispute. The properties
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which are sought to be acquired by K.T.Narayanappa are also to an extent of about 20.37 acres, which was purchased in the year 1946-47. The documents, which are referable to the said sale deeds are Ex.D116 & Ex.D117. K.T.Narayanappa also acquired few more lands in the year 1945-46 i.e., to an extent of 43.13 acres. Thus according to the defendants the fact that K.T.Narayanappa had acquired innumerable properties to an extent of about 46 acres, that there is a presumption that notwithstanding there was no partition in the family, nevertheless pursuant to an understanding, both the plaintiffs as well as the defendants were acquiring the properties with their separate income. It is also to be noticed that the propositus Thimmappa had exercised his rights by mortgaging the properties. Thus properties were purchased by Thimappa's own income and also in respect of properties, which were acquired by defendant No.1 inasmuch as the Thimappa financed the acquisition.
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32. Before considering the oral and documentary evidence on record another primary contention of the learned counsel appearing for the defendants is required to be dealt with. It is not in dispute that P.W.1 was examined and his examination-in-chief was recorded. He was also cross-examined but however, the cross-examination could not be completed, since, by then he had died. Hence, a contention was sought to raised by the plaintiffs before the learned Trial Judge as well as before us that the evidence of P.W.1 cannot be looked into at all as he was not completely cross- examined. But however, the defendant's contention before the learned Trial Judge and also before us is that even though the evidence of P.W.1 is not complete, still the evidence can be relied upon under Section 23 of the Evidence Act, since he died at a later stage of the same proceedings, the evidence therefore can be relied upon. When nothing is pointed out by the plaintiffs to show that the witness deliberately avoided to tender himself for the purpose of cross-examination, the plaintiffs
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cannot object for placing reliance on the evidence of P.W.1. The sum and substance was that the evidence of P.W.1 regarding income was not satisfactory and his evidence on the score that he was not alive, cannot be discarded. It was also the contention that P.W.1's evidence is not admissible in evidence, as it was not legal evidence as the defendants had not cross- examined him completely. Thus, the evidence cannot be looked into.
33. It is not in dispute that P.W.1 was examined- in-chief on 23.02.1978 and cross-examined in part on 22.03.1978. Subsequent cross-examination could not be done. So the cross-examination was only in part. The learned Trial Judge having regard to the evidence, which was let in was of the view that the evidence of P.W.1 can be considered and it has been considered.
34. Another contention was advanced on behalf of the defendants was to the effect that the agricultural income tax returns and the orders cannot be looked into
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in view of the prohibition under Section 53 of the Agricultural Income Tax Act. It was further contended for the defendants that even calling for such documents from the authorities concerned is prohibited. So, even though the documents have been called for, they cannot be looked into at all. In this regard, it is to be noticed that an application was filed under Order XVI Rule 6 of the Code of Civil procedure for summoning those documents. The said application was granted, as against which a Civil Revision Petition was preferred before this Court, which came to be dismissed. Hence, certified copies of the documents were marked and the documents were summoned. Indeed this Court in the Revision Petition has observed that the amendment to the Agricultural Income Tax Act prohibited calling for all documents prior to 1975-76. Hence, documents i.e., tax returns can be looked into. It appears the matter was taken to the Apex Court and the Apex Court dismissed the Special Leave Petition by observing that by the impugned judgment and order, the High Court has
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followed only the earlier decisions in the revision petition. Thus, to that extent, the returns of the income tax, which were filed under the Agricultural Income Tax Act, can be looked into. As all the preliminary objections having been considered, as observed, the oral and documentary evidence is required to be considered. Points No.1 & 2
35. Plaintiff No.3 was examined as P.W.1. A perusal of his evidence would disclose about the relationship inter se between the parties. To establish the fact that defendant No.1 was a kartha of the family, the plaintiffs have made available Ex.P5, the marriage invitation of their sister. Plaintiff No.3 - P.W.1 would contend that some properties have been purchased by the Joint Family and the purchases have been made out of the Joint Family Income. The Joint Family was getting an income of about Rs.40,000/- from agricultural lands and about Rs.20,000/- was being saved out of that income. The family properties have been purchased in the name of his father Thimmappa
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and the 1st defendant. P.W.1 would depose that their father was also doing agricultural work. The 1st defendant was managing the affairs of family. It was the 1st defendant, who purchased some properties in the name of P.W.1's father on the ground that if all the properties are purchased in his name, the agricultural tax is to be paid. Apart from the properties purchased out of the joint family income, the 1st defendant has not purchased any properties of his own. The evidence would further disclose that the suit properties are in possession of the Joint Family and the 1st defendant was managing them.
36. In the cross-examination P.W.1 would speak about his completion of B.E. Degree Course and his Date of Birth is 20.08.1947. The 1st and the 2nd plaintiffs have studied up to middle school. To a suggestion as to the origin of his grand father Thimmappa, he has pleaded his inability to say. He would admit in the cross-examination that he has not seen the title deeds with regard to the above items.
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37. A contention is sought to be raised before us by the learned counsel appearing for the defendant that most of the answers and most of the evidence which is given by P.W.1 is on a hearsay and they would stress on a phrase which would read as under:
"¦vÁæfðvÀ d«ÆãÀÄUÀ¼À°è DUÀÀ w£ÀÄߪÀÅzÀPÀÆÌ DUÀĪÀµÀÄÖ ªÀiÁvÀæ §gÀÄvÉÛ,,"
Hence, the defendants would contend that the income generated from the agricultural lands and the allied business was sufficient for the maintenance of the family and there was no surplus income, which was available for purchase of the remaining schedule properties.
38. But however, a further reading of the evidence would disclose that his father as well as the 1st defendant used to earn about Rs.40,000/- from the agricultural lands and after the monies expended for taking care of the family for their sustenance, there was a surplus income of Rs.20,000/- from which the
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properties were purchased. It is not in dispute and it has also come in evidence that the 1st defendant was doing money-lending business, Tobacco business, purchase and sale of Ragi and Paddy and he was also doing the business of purchase and sale of casurina groves along with his father when he was alive. It has also come on record through evidence that defendant No.1 was doing military contract and P.W.D. Contract work. The family also owned flour mill as well as rice mill and they were in existence even during the lifetime of his father and it also generated enough income.
39. P.W.2 is plaintiff No.4. He would reiterate that his grand-father Thimmappa was the head of the family and he died in the year 1943 and his uncle i.e., the 1st defendant became the Kartha. The family was into business of selling bullocks as well as cattle and the family was saving about Rs.25,000/- to Rs.30,000/- per year. Money-lending business was also being run from the house. The evidence would further disclose that the Flour mill was installed during the life time of his
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grandfather Thimmappa and the machineries were purchased from the Joint Family income. The provision stores was started after the senior uncle i.e., defendant No.1 became the Kartha. The Joint Family Income was invested to start provision stores. Item No.33 (Land bearing Sy.No.19 of Bilesivale) originally belonged to the Joint Family. It was sold to Venkatarayappa by his grandfather for Rs.1,000/- and the entire sale consideration was not paid by the purchaser. The sale consideration only to an extent of Rs.400/- was paid. The purchaser mortgaged the very same property in favour of his grandfather for the balance of sale consideration of Rs.600/- on the same day. Purchaser did not repay Rs.600/- and interest thereon. As the purchaser could not repay the loan and interest, he has executed sale deed in respect of item No.33 in favour of the senior uncle by receiving some more consideration. The account books and also the bill books in respect of the flour mill transaction are also made available during the course of trial. The lands bearing Sy.Nos. 119, 120,
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125 and 126 were purchased in the public auction, from the joint family income. They were purchased in the name of the father of plaintiff No.4. Bid amount was paid out of joint family income by defendant No.1. Saguvali chits in respect of the above said four lands were issued in favour of defendant No.1.
40. Insofar as the Tobacco business is concerned, P.W.2 would depose that it was started by his grandfather in the year 1900. The grandfather was lending money on the mortgage of landed property and also on promissory notes. After the death of his grandfather, all the joint family properties were transferred in the name of the senior uncle - defendant No.1. During the lifetime of his grandfather, all the members of the family were residing in the same house where plaintiff No.4 is residing. All the members of the joint family were sharing common food and common roof. It is only about seven years prior to the filing of the suit, the plaintiff and defendant No.1 started residing separately inasmuch as it was because of the
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differences among the women folk. The revenue records in respect of the suit properties are to be found and marked at Ex.P17 to Ex.P25. Ex.P26 to Ex.P40 are the Form No.4 extracts of the suit properties. The money lending business documents are produced at Ex.P130 to Ex.P131. He has also identified the handwriting of his senior uncle and that the documents shown are the diaries maintained by his senior uncle regarding joint family accounts. They are marked as Ex.P132 to Ex.P137. Ex.P138 to Ex.P157 which are correspondences with regard to the manufacture of tobacco dust are marked through P.W.2. Ex.P138(a) to Ex.P157(a) are the English version of the said documents inasmuch as Ex.P138 to Ex.P157 are in Tamil language. During the cross-examination, a specific question was put to the witness, which would read as follows:
Que: When did the 1st defendant started earnings?
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Ans: 1st defendant had no independent business. The businesses were carried out by him in the joint family.
P.W.2 would also refer to Sy.No.19 which was sold by his grandfather and the amount appropriated for purchase of another property. Another question was put to the witness, which would read as under:
Que: In the account books it is not mentioned that the business is a joint family business? Ans: Joint Family accounts are written in the account books.
41. The account books relate to joint family business. Hence, it can be inferred that the business was a joint family business.
42. P.W.3 is a family friend, who would speak about the business of Thimmappa and he was the Manager of the Joint Family and after Thimmappa's demise, it is only defendant No.1 who was managing the affairs of the family. The evidence of this witness can be
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looked into, only to ascertain whether the family was affluent, so also the evidence of another witness.
43. This takes us to the evidence of the defendants. D.W.1 is one of the sons of original defendant No.1. It is his evidence that in 1934 his father took up the contract work of construction of a tank in Obalahalli, along with another. In 1946 and 1937 his father was doing contract work with military relating to supply of fuel and onion. In 1946 his father was having a lorry. In 1940, his father along with two others took up the contract work of construction of a tank at Yelachenahalli. In 1941, his father purchased a number of casurina plantations and sold the same. He would refer to the relationship inter se between the parties. He would also advert that his father i.e., defendant No.1 purchased 1 acre 32 guntas of land in Sy.No.112 of Krishnarajapuram. He had also purchased Sy. No.113, measuring 14 guntas, Sy.No.115, measuring 1 acre 10 guntas and Sy.No.104/4 measuring 1 acre and Sy.No.66/1,
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measuring 4 acres and 15 guntas. All these lands are in Krishnarajapuram. A perusal of the evidence of D.W.1 discloses that vast extent of properties was purchased by the 1st defendant during his lifetime. D.W.1 would state that his father got financial help from one Thimmakka to start the business initially. From the said amount, the business improved and the income from the properties left by the grandfather were not utilized for the said business and no such properties were left behind by the grandfather. He would refer to the Sale Certificate issued by the Court in Execution proceedings in favour of defendant No.1. The said Sale Certificate is produced at Ex.D1. Ex.D2 is the certified copy of the Possession Certificate. The documents, which are sought to be pressed into service by the evidence of D.W.1, are in the nature of various sale deeds in respect of the properties purchased by defendant No.1.
44. We are of the view that the evidence of D.W.1 with reference to various documents running up to
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more than 100 are only with reference to the carrying on the business and acquisition of the property in his name. But however one cannot lose sight of the fact that the specific stand taken by the parties to the lis is that there was no partition in the family. It is also to be noticed that it is not a case wherein the family did not possess any property at all or for that matter the property it possessed did not generate enough income. Admittedly, assuming that the house properties are to be excluded inasmuch as they do not generate any income, it can be said that the agricultural lands which Thimmappa held generated enough income. The business of the family commences during the lifetime of Thimmappa who died in the year 1943. By that time, defendant No.1 had acquired sufficient properties. A perusal of the evidence of D.W.1 discloses that there was no enmity between the plaintiff's father K.T.Narayanappa and their father defendant No.1. D.W.1 would reiterate that there were eleven members in the family when they shifted to the house on Old
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Madras Road. The marriage of his elder brother Ashwathappa was performed in the year 1963-64. Jayaramaiah, son of his uncle was also married at the same time. Both the marriages were performed simultaneously by his father and his uncle. The marriage invitations were printed in the name of his father as he was the eldest in the family. During the lifetime of his father, he was looking after this case. D.W.1 would further depose that his father had filed O.S.No.426/67 on the file of II Munisff Court, Bangalore against Village Panchayath of Krishnarajapuram on the ground that the taxes levied are excessive, questioning the notice issued by the Panchayath. He would further depose that his Advocate has taken the certified copy of Ex.P123, which is the judgment of the said suit. D.W.1 would plead ignorance about some of the aspects of the matter. To a specific question as to "Whether your grand father's family owned lands in Koudenahalli?"
The answer is "My grand father was owning lands in Koudenahalli". It is also admitted by him that his father
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D.W.1 had filed an application for regrant of Inam lands belonging to his grandfather. Indeed the learned Trial Judge has noticed the demeanor of the witness. Ex.P22 is the certified copy of the deposition of his father and Ex.P23 is the certified copy of the regrant order in the name of his father.
45. Thus, a compendious reading of the oral evidence of the plaintiffs' witnesses as well as the defendants' witnesses would give rise to the presumption that their grandfather i.e., Thimmappa started the business, had considerable amount to acquire sufficient agricultural lands and it would have generated income. It is also to be noticed that they had put up a flour mill and were running a provision stores also. They were also doing Tobacco business and Tobacco dust business. The sum and substance of the oral evidence leads the inescapable conclusion that the joint family was acquiring the properties.
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46. Another factor, which would give credence to the fact that the family continued to be joint was the income tax returns filed by defendant No.1 under the Mysore Agricultural Income Tax Act indicating that it was a family, which continued to be joint and the returns were filed on behalf of the joint family, which would necessarily mean that the income, which was reflected in the returns was from the `A' Schedule as well as `C' & `D' Schedule properties. It is no doubt true that a contention was sought to be raised before us with reference to the fact that the said documents cannot be looked into having regard to Section 53 of the Act. Indeed Section 53 of the Act would refer to disclosure of the information by public servant. They would contend that all the returns, which were filed shall be treated as confidential and notwithstanding anything contained in any law, no Court shall save as provided under this Act be entitled to require any public servant to produce before it such documents or accounts or record or give evidence in support to thereof. They would press into
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service the said provision and submit that the said document i.e., income tax returns, which were summoned pursuant to the order passed by this Court could not have been looked into having regard to the confidentiality. There is no gain saying that the said documents cannot be looked into inasmuch as during the trial, two applications were made I.A.No.13 and I.A.No.15. I.A.No.13 was an application filed by the plaintiffs under Order XIII Rules 1 and 2 of the Code of Civil Procedure and I.A.No.15 was filed by the plaintiffs under Order XVI Rule 6 read with Section 151 of the Code of Civil Procedure. Under the first application I.A.No.13, the plaintiff sought permission of the Trial Court to produce as many as six documents, which are the certified copies of the agricultural income tax returns, all the applications of defendant No.1 which are filed with the Agricultural Income Tax Officer and certified copies of certain documents, in the Court proceedings.
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47. I.A.No.15 is an application to summon the original application and the returns which defendant No.1 had filed with the Agricultural Income Tax Officer. Notwithstanding serious objections, both the applications were granted inasmuch as I.A.No.13 which was filed under Order XIII Rules 1 and 2 of the Code of Civil Procedure was allowed and they were permitted to produce documents and delay caused in filing the application was condoned. I.A.No.15 filed under Order XVI Rule 6 was also allowed and the original documents mentioned therein, were ordered to be summoned. Suffice it to say that I.A.No.15 was subject matter of a revision petition before this Court in C.R.P.Nos. 3699 & 3700/1983. The said revision petitions were referred to a Division Bench and the Division Bench of this Court, having regard to the decision rendered by another Division Bench was of the view that for the years 1961- 62 to 1974-75, the law which stood under the Parent Act 22 of 1957, would govern, while for the years 1976- 77, the law of the year 1976 would apply. Incidentally,
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it is to be noticed that the subject matter before the revision petition was only with reference to I.A.No.15 which was filed under Order XVI Rule 6 of the Code of Civil Procedure and insofar as I.A.No.13 is concerned that was not at all questioned by the defendants. Indeed during the course of trial another application I.A.No.15 was filed under Order XVI Rule 6 read with Section 151 to issue summons to the Agricultural Income Tax Officer, Bangalore for production of the records mentioned in the schedule but however, the application was disposed of by the Trial Judge inasmuch as summoning of the records for the years 1961-62 to 1974-75 was rejected and the application was allowed in respect of the records subsequent to 1975. Taking advantage of the situation a contention is sought to be raised that the income tax returns, which are filed, cannot be looked into. We are of the view that the said contention cannot be accepted. Having regard to the fact that what was questioned by way of revision was the order passed on I.A.No.15, which was filed
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under Order XVI Rule 6 of the Code of Civil Procedure and not the other applications which are filed under Order XIII Rules 1 and 2 of the Code of Civil Procedure. Indeed the order passed on the application filed under Order XIII Rules 1 and 2 of the Code of Civil Procedure has remained intact inasmuch as the certified copy of the income tax returns, which were made available can be looked into. Even otherwise, it is to be noticed that the said documents having been marked during the course of evidence, it is not open for the defendants to contend that the said documents cannot be looked into for any other purpose.
48. Apart from the oral evidence we are required to consider the documentary evidence also. Ex.P1 is the Invitation Card printed in the name of the 1st defendant for the obsequies of the father of the plaintiff. It is dated 02.11.1968. Likewise, Ex.P2 is an identical invitation for the obsequies of the brother of the plaintiff, which is dated 27.06.1971. Thus, it is sought to be contended by the defendants that since defendant No.1 was the
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eldest in their family, the obsequies invitation cards were printed in his name. But however it is to be noticed that Ex.P1 and Ex.P2 are not only the stray documents. Ex.P3 and Ex.P4 are the marriage invitations printed in English and Telugu for the marriages of the son of the 1st defendant and the son of plaintiffs' brother. Once again, it is sought to be contended that as an elderly member, the 1st defendant invited everyone for the marriage of his son as well as the son of his younger brother. Indeed if the contention of the defendants is to be accepted that they were staying separately and all the acquisitions of the property are, independent then separate invitations were required to be issued as if there had been a partition of the joint family. Another document Ex.P5 is the marriage invitation card printed in the name of the 1st defendant for the marriage of daughter of his younger brother K.T.Narayanappa. Indeed in all the invitations it is seen that the eldest member of the family has invited everyone for the marriages and also
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the obsequies ceremonies. But there must be clinching material to show that the Joint Family owns properties and the properties must fetch sufficient income. Then only it can be said that the other properties are purchased out of the joint family nucleus and partition could be demanded by the plaintiffs even though some of the properties stand in the name of the 1st defendant.
49. It is to be noticed that the learned Trial Judge has observed the demeanor of D.W.1 and has recorded a finding that D.W.1 is not a believable witness and he has no regard for truth and also to the elders. The learned Trial Judge has observed that the learned Advocate for the defendants made a request to the Court that he may be excused for the erratic behaviour in trying to snatch the papers from hands of the Advocate, when he was in the box, the same may be accepted. While P.W.2 and witness for the plaintiffs stated that Kodigehalli Thimmappa was doing business in tobacco and money lending etc., D.W.1 has gone to the extent of stating that his grandfather was riding
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bullock cart for hire. Indeed the evidence of D.W.1 has been taken with a pinch of salt by the learned Trial Judge. There is no reason for us to take a contrary view.
50. Indeed the evidence with respect to the admission made by P.W.1 in the cross-examination was pressed into service by the defendants, inasmuch as P.W.1 himself admitted that the ancestral property was enough only to maintain themselves inasmuch it was from hand to mouth. It is not in dispute that the family owned several other establishments in the nature of business establishments. It is to be noticed that:-
(1) The money lending business commenced from 1930 onwards. Ex.D108 is the Money lending Registration Certificate dated 03.08.1940 and Exs. D109 to D114, D127, D155-D158 are the pronotes.
(2) Road and Civil Contracts commenced from 1928 onwards, which is referable to Exs. D82 to D84 and D144 & D145.
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(3) Rice and Flour mills were established in 1932 onwards and the documents relating to them are at Ex.D18 i.e., the sale deed dated 16.06.1932 and Ex.D58 to Ex.D60 which are the receipts and the bills.
(4) Military and P.W.D. contract, which is from 1935 onwards, is referable to Exs.D87 to D89 and D125 to D142.
(5) Shandy contract is from 1931 onwards and is referable to Ex.D128 to Ex.D141 and so on and so forth.
51. Indeed a perusal of all these business / commercial enterprises would indicate that they were in existence during the lifetime of Thimmappa, the father of 1st defendant. It is not in dispute that Thimappa died in the year 1943.
52. Indeed, the business in flour mill, Tobacco and Tobacco dust and casurina business was conducted by Thimmappa. He was also doing agricultural and money
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lending business. Indeed P.W.1 would state that his grandfather was getting Tobacco and Tobacco dust from Tamil Nadu and his father was assisting his grandfather in the business. His uncle defendant No.1 had no independent income. Indeed Ex.P130 shows that as on 22.10.1924 one Chinnaiah of Mahadevapura had borrowed a sum of Rs.400/- from Kodigehalli Thimmappa on execution of demand promissory note and the interest was Re.1/- per month. The next transaction is dated 07.12.1925. Rs.200/- was lent by Thimmappa to Ramaiah. The next one was Rs.500/- lent on 26.11.1926 to Devasandra Kenchappa and the interest was Rs.1/4 annas. The transaction dated 11.02.1926 shows the lending of Rs.400/- to Gubbi Hanumanthaiah and his son Sanjeevaiah from Kodigehalli Thimmappa. The transaction dated 20.11.1921 is to be found at Ex.P131 which shows that Vimala Mutha Ramaiah had borrowed Rs.500/- from Kodigehalli Thimmaiah by mortgaging his house. Indeed several transactions in the nature of pronote are
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produced during the course of trial. But however, suffice it to note that Kodigehalli Thimmappa i.e., original propositus was into money lending business and was lending substantial amount to various persons. The interest on the said money lending was Rs.1/- per month. If all these documents are read in tandem, the financial capacity of Kodigehalli Thimmappa cannot be disputed. Indeed as on 21.02.1923 he had the capacity of lending a huge amount on Rs.1,400/- to another person of some status called as Sahukar Mallappashetty. It discloses that the total amount lent was Rs.1,806/- 12 annas and it was paid by the borrowers. Ex.P131 shows lending of money both on pronote as well as on mortgage of the land and open sites. Ex.P176 is another document of the year 1900, which discloses that Kodihalli Thimmappa was into money lending business and the said business was on behalf of the family.
53. Insofar as the Tobacco business is concerned it is no doubt true that D.W.1 has pleaded ignorance as
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to whether Ex.D132 is in the handwriting of his father. But however, his father was writing his initials as K.T. He further states that Ex.P131(a) the writing `K.T.Venkatappa' looks like it was written by his father. Ex.P131 is indeed the handwriting of his father. A perusal of Ex.P132 clearly shows that it is written by the deceased - 1st defendant from page 119 of Ex.P132 entry dated 28.04.1926 shows that a sum of Rs.812/- had been taken by the father for the Tobacco business. The words used are "£ÀªÀÄä vÀAzÉAiÀĪÀgÀÄ ºÉÇUɸÉƦàUÉ vÉUÉzÀÄPÉÆAqÀÄ ºÉÇÃVzÀÄÝ". If the accounts were not written by the deceased 1st defendant, then the words "£ÀªÀÄä vÀAzÉAiÀĪÀgÀÄ" would not have been mentioned. Hence, this document proves that the name, which is written by the 1st defendant was written by the 1st defendant himself. Ex.P132 discloses that Kodigehalli Thimmappa had taken a sum of Rs.2,010/- for Tobacco business. It is the case of the plaintiffs that Kodigehalli Thimmappa was getting tobacco in wagons from Tamil Nadu. This particular evidence is supported by Ex.P132. Ex.P133
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shows that Thimmappa had taken a sum of Rs.1,000/- and another some of Rs.2,000/- for tobacco business and taken a sum of Rs.45/- towards railway charges, also Ex.P133 shows and reveals same facts. A perusal of these documents would disclose that the family had enough and substantial funds inasmuch as they were into money lending business and tobacco business. The business of the Joint Families can be partly classified into three categories i.e., Agriculture, Money lending and commercial establishments.
54. This takes us to the agricultural lands and the income therefrom. According to the defendants properties at Sl.Nos. 24(a) to (c) and 29 (a) to (d) of `A' schedule are the self-acquired properties of K.T.Narayanappa. If it is so, the income there from was to be realised from K.T.Narayanappa only and he was required to pay agricultural tax for the income from those landed properties and not from the deceased 1st defendant. Item Nos. 24(a) are Sy.Nos. 18, 19 and 20 of Kammasandra, Bidarahalli. Ex.P.109 is the copy of the
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returns of the income tax of the year 1961-62. It pertains to the lands in Sy.Nos.19 & 20 of Rampura Bidarahalli and Kammasandra respectively. According to the defendants these lands are the self-acquired properties of the defendant K.T.Narayanappa. But however, if the agricultural income tax returns at Ex.P109 is looked into, it shows that the assessee is K.T.Venkatappa. He has filed the return as the Manager (Kartha) of the Joint Hindu Undivided family. Hence, it is evidently clear that the lands, which are stated to have been acquired by K.T.Narayanappa were certainly from the nucleus of the Joint Family Income and the income is shown in the returns filed. A perusal of the income tax returns discloses that the first name is K.T.Venkatappa the 1st defendant and against his name it is written as `Manager'. Sl.No.10 is K.T.Narayanappa. The name of other family members are also mentioned. They are at Sl.No.15. The agricultural income tax is for the years 1966-67 to 1975-76. Hence, till 1976, the 1st defendant himself
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asserted that the said lands are Joint Family Properties and the Joint Family consisting of himself and the father of the plaintiffs existed as on that day. It is contended in the written statement that K.T.Narayanappa died in the year 1968 as a divided member and separated form the 1st defendant. But however, the income tax returns at Ex.P109 - Ex.P119 belie the statement of the 1st defendant. If these documents are taken into consideration, then it is substantially proved that till 1975-76, the family of the 1st defendant and the plaintiffs were joint and Sy Nos. 19 and 20 were the Joint Family Properties.
55. Indeed the record of rights of several lands are made available. Under Section 133 of the Karnataka Land Revenue Act, the entries in the Record of rights have presumptive value. It is no doubt true that it can be rebutted by appropriate evidence. But however, we are of he view that the defendants have failed to adduce any rebuttal evidence to disprove the entries in the Revenue records. The claim is Items 3 to 6, 9 to 16, 18
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to 20, 22, 23(a) & (b), 25(a) to (j), 26 to 28 of `A' schedule are the self acquired properties of deceased 1st defendant. Item No.3 is Sy.No.66/1, Item No.4 is Sy.No.112, Item No.5 is Sy.No113, Item No.6 is Sy.No.115, Item No.9 is 104/3 of Krishnarajapuram. The plaintiffs have filed the record of rights with respect to these lands. Ex.P81 would relate to Sy.No.2 of Kammasandra, which shows the name of 1st defendant as the owner and cultivator. The other record of rights also show the name of the 1st defendant as owner, possessor and cultivator and the mode of possession of katha is shown as 'Hissa Podi'. Only Sy.No.5/2 is shown to have been purchased by the 1st defendant. Sy.Nos. 49, 73 to 81 are shown in the name of the 1st defendant and the mode of ownership is shown as pursuant to order of the Special Deputy Commissioner for Inams Abolition. The total extent of these lands is 81 acres 19 guntas. Insofar as Ex.P25, which would relate to Sy.No.66/1 is concerned, it discloses that there is a reference to the loan taken by Channabasappa
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Shetty from the 1st defendant's father by virtue of a mortgage. Hence, it is shown that the 'Hissa podi' does not show that it is the self-acquired property of the 1st defendant. It is no doubt true that the Record of rights do not confer title but however as to the mode of cultivation and the status of the family can certainly be gathered from the entries in the record of rights.
56. Ex.P41 is the Record of rights for the year 1971-72. Ex.P42 shows the name of the 1st defendant as owner in possession in respect of Sy.No.44 and it is shown as ancestral. Similar are the Record of Rights of other lands namely Sy.Nos. 2, 15, 18, 19, 55, 130/2 and 33/2. The entries are all for the years 1971-72 and 1973-74. The name of the 1st defendant is shown as owner in possession and the mode of possession is shown as `¦vÁæfðvÀ'.
57. This takes us to the next contention as to the properties, which 1st defendant would claim as his self acquisition. P.W.2, during the course of evidence,
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would contend that the annual income of his grandfather was Rs.10,000/- to 15,000./- from agriculture and Rs.2000/- to Rs.3,000/- from Tobacco business. He has denied the suggestion that several items claimed by the 1st defendant are his self-acquired properties.
58. We are of the view that when the plaintiffs have proved that their exists a Joint Family, which owns several properties and sufficient nucleus, from which the properties could have been purchased, the burden certainly shifts on the defendants to prove that they are self-acquisitions of the 1st defendant, who purchased the same without the aid of the joint family funds. The defendants have come out with a story that the 1st defendant started earning from the age of 13, which certainly cannot be accepted. The deceased 1st defendant was dealing in Ragi and Paddy in small scale at the age of 13 years and after 1918 his father and Narayanappa started to deal in tobacco. K.T.Narayanappa was born in the year 1906. Hence,
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according to D.W.1 Narayanappa started tobacco business at the age of 12 years, which is an improbable story putforth by D.W.1. According to him in the year 1920, the 1st defendant started business in the house. Indeed the learned Trial Judge has chosen not to believe this part of evidence of D.W.1, wherein it is asserted by him that his father defendant No.1 started earning from the age of 13 and amassing wealth from the age of 17 years. Undoubtedly, defendant No.1 had his fingers in many pies. In the year 1930, he started sandy contracts along with a few persons. In 1936-37 he was doing contract work with the military. During the year 1941, he purchased a number of casurina plantations and doing money lending business out of his self- investment. Indeed it is the case of the defendants that all this was from out of his self-acquisition. But however, what is significant to note is, that there is no pleading in this regard. Similarly, there is no pleading that the 1st defendant was doing arrack and ganja
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business as a sub-contractor and dealing in controlled cloth with H.Narayanappa.
59. It is also to be noticed that the 1st defendant being the eldest in the family was assisting his father in the business. Even during his lifetime, he being the eldest son was managing the Joint Family properties and from the amount, which was generated from the said Joint family nucleus, the other properties were purchased. Indeed it is but natural that the 1st defendant was the Kartha of the family even during the lifetime of his father inasmuch as it is always the Kartha of the family has a hand in discriminating between the children of the kartha and the children of the other members of the family. Indeed in a case of this nature, all the circumstances put together only lead to the conclusion that there was a joint family and the joint family had sufficient earnings. Indeed P.W.2 would depose during the course of his evidence that K.T.Venkatappa i.e., defendant No.1 had met the marriage expenses of defendant No.1 out of his income.
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Indeed this certainly cannot be taken out of the context inasmuch as one is required to hold that the marriage of plaintiffs 1 to 5 was performed by defendant No.1 as a Kartha of the family and the money spent for the marriage expenses was from the joint family income.
60. From the above discussion, what emerges is that Kodigehalli Thimmappa was having many businesses like money-lending business, tobacco business, casurina and puri business. He had left behind vast properties. The 1st defendant in the family was managing the property. Indeed there is paucity of evidence on behalf of the defendants to prove that he had other independent income other than the joint family income. In view of the fact that there was sufficient joint family nucleus and in the absence of any acceptable material to show that the 1st defendant has his own independent income, it has to be held that all the properties were purchased from the income of the Joint Family. Consequently, the properties, which were inherited from Thimmappa and K.T.Narayanappa will
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have to be held as Joint Family Properties. To our mind, the defendants have failed to prove that the deceased 1st defendant purchased the properties from his independent income and not from Joint family income.
61. Only one item remains i.e., provision stores alleged to be sold to defendant No.9 by deceased 1st defendant. Indeed a perusal of the pleadings as well as the evidence does not disclose that it was a joint family business and the deceased 1st defendant secretly transferred the same in the name of defendant No.9. The allegations are very vague. Hence, a finding is recorded that the plaintiffs have failed to prove that the provision stores belong to Joint Family and was fraudulently transferred to defendant No.1. We do not propose to disturb the said finding.
62. Having given our anxious consideration, we are of the view that the judgment and decree of the trial court cannot be faulted. Hence, the following order:
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Appeals stand dismissed confirming the judgment and decree passed by the learned Trial Judge.
Cost made easy.
SD/-
JUDGE SD/-
JUDGE SPS