Karnataka High Court
Sri N Venkatarama Raju vs Sri Chinnappa Raju on 18 April, 2023
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
R.F.A.No.1577/2011
BETWEEN:
1. SRI.N.VENKATARAMA RAJU,
S/O LATE NARAYANASWAMY RAJU,
SINCE DEAD BY THE LRs.,
1(a) SMT. V.SUDHA,
AGED ABOUT 30 YEARS,
1(b) KUM.V.SUKRUTHI,
AGED 8 YEARS,
1(c) BABY HARSHINI,
AGED 4 YEARS,
(b) AND (c) ARE MINORS,
REPRESENTED BY MOTHER AND
NATURAL GUARDIAN S.SUDHA.
1(a) IS THE WIDOW, (b) & (c) ARE THE
DAUGHTERS OF LARE N.VENKATRAMA RAJU
AND ARE RESIDING AT No.134, 1ST MAIN, 1ST CROSS,
VIJAYA BANK LAYOUT, BILEKAHALLI,
BANNERGHATTA ROAD, BANGALORE-76.
2. SRI.SRINIVASA RAJU,
S/O LATE NARAYANASWAMY, RAJU,
AGED ABOUT 37 YEARS,
R/AT BILEKAHALLI VILLAGE,
BEGUR HOBLI,
BANGALORE SOUTH TALUK.
2
3. SMT.RUKMINI @ MINI,
SINCE DEAD BY LRs.,
3(a) SRI.S.GOVINDA RAJU,
S/O LATE SANJEEV RAJU,
AGED 60 YEARS,
3(b) SRI.G.MOHAN KUMAR,
S/O S.GOVINDA RAJU,
AGED 38 YEARS,
3(c) SRI.G.RAJESH,
S/O S.GOVINDA RAJU,
AGED 35 YEARS,
3(d) SRI.G.DIVAKAR,
S/O S.GOVINDA RAJU,
AGED 32 YEARS,
ALL ARE R/AT No.123, 16/4,
ITI LAYOUT, MANGAMMANAPALYA,
BANGALORE-560 068.
4. SMT.PADMA,
W/O LAKSHMIKANTHA RAJU,
D/O LATE NARAYANASWAMY RAJU,
AGED ABOUT 44 YEARS,
R/AT No.20, 3RD CROSS,
ABBAIAYAPPA LAYOUT,
N.S.PALYA, BANGALORE-76.
5. SMT. VIJAYAMMA,
W/O K.P.NARASARAJU,
LATE NARAYANASWAMY RAJU,
AGED ABOUT 42 YEARS,
R/AT No.502, 1ST MAIN ROAD,
GULPET, KOLAR. ... APPELLANTS
(BY SRI.C.M.NAGABHUSHANA, ADVOCATE)
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AND:
1. SRI.CHINNAPPA RAJU,
S/O LATE MUNISWAMY RAJU,
AGED ABOUT 73 YEARS,
RESIDING IN A PORTION OF SY.No.133
OF BILEKAHALLI VILLAGE, NEAR VIJAYA BANK,
COLONY, BANNERGHATTA ROAD,
BEGUR HOBLI BANGALORE-26.
2. SMT.NALINI R.SHETTY,
W/O M.J.RAI,
AGED ABOUT 54 YEARS,
R/AT No.17, N.S.IYENGAR STREET,
SHESHADRIPURAM,
BANGALORE-20.
3. SRI.VENKATA RAJU,
DEAD BY LRs.,
3(a) SMT. GIRIJA,
W/O VENKATA RAJU,
AGED 60 YEARS,
3(b) SRI.SANTHOSH.V.
S/O VENKATA RAJU,
AGED 39 YEARS,
3(c) SMT.NAVANEETHA.V.
D/O VENKATA RAJU,
W/O SRINIVAS RAJU,
AGED 43 YEARS,
3(d) SMT.LAKSHMI.V.
D/O VENKATA RAJU,
W/O SRINIVAS RAJU,
AGED 37 YEARS,
3(e) SMT.SOWMYA.V.,
D/O VENKATA RAJU,
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W/O SRINIVAS RAJU,
AGED 35 YEARS,
ALL ARE RESIDING AT FLAT No.006,
COMFORT FLORA APARTMENTS,
Sy.No.134/3A, 5TH AND 6TH MAIN,
4TH CROSS, VIJAYA BANK LAYOUT,
BILEKAHALLI,
BANGALORE - 560 076.
... RESPONDENTS
(BY SRI.K.KVASANTH AND SRI.G.BALAJI NAIDU, ADV.,
FOR R-1;
SRI.Y.K.NARAYANA SHARMA, ADV., FOR R-2;
SRI.R.KALYAN, ADV., FOR R-3(a TO e))
THIS APPEAL IS FILED UNDER SECTION 96, ORDER XLI
RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE
DATED:11.08.2011 PASSED IN O.S.No.8828/2003 ON THE
FILE OF THE XXXVIII-ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BANGALORE, DECREEING THE SUIT FOR
THE DECLARATION AND PERMANENT INJUNCTION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 01.03.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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JUDGMENT
1. On 11.12.2003, Chinnappa Raju, along with Nalini Shetty, instituted a suit seeking for a declaration that he was the absolute owner in respect of 1 acre 30 guntas of land in Sy.No.133 of Bilekahalli village.
2. He also sought for a declaration that he and the 2nd plaintiff-Nalini Shetty were in possession and enjoyment of 32 guntas of land and 8 guntas of land in Sy.No.133 of Bilekahalli village which was described as 'B' and 'C' schedule to the plaint.
3. A declaration was also sought that Chinnappa Raju was alone entitled to receive the entire compensation amount including the enhanced compensation and all other amounts in that regard in respect of 30 guntas of land in Sy.No.133 of Bilekahalli from the concerned authorities.
4. It was stated that one Muniswamy Raju had four children i.e., Narayanaswamy Raju (defendant No.1), Chinnappa Raju (plaintiff No.1), Venkata Raju (defendant No.7) and a daughter called Acchamma. He stated that the 6 joint family comprising of his father Muniswamy Raju, his elder brother Narayanaswamy Raju, Chinnappa Raju himself and his younger brother Venkata Raju were jointly cultivating Sy.No.130 of Bilekahalli village. He stated that though his father sold the said land bearing Sy.No.130, they had continued cultivating the land as tenants and they had thus been earning an adequate income. He also stated that they had also taken on lease the adjacent land bearing Sy.No.129 apart from rearing 6 cows and 8 buffaloes and were also trading in guavas. He, thus, stated that the family had more than sufficient income from these agricultural activities.
5. He also stated that in the year 1961, he had taken up a course in the Industrial Training Institute (ITI) and had thereafter been employed in the Bharath Electronics Limited (BEL) on a monthly salary of Rs.500. He stated that he earned a promotion in the year 1967 and was started getting a monthly salary of Rs.1,100/- and he was given a further promotion in the year 1973 as a technical assistant and had started earning Rs.3000/- per month. Chinnappa Raju stated that he was paying the entire salary that he was receiving to his elder brother Narayanaswamy Raju.
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6. He stated that on 23.04.1969, the joint family had purchased 4 acres 26 guntas of land in Sy.No. 133 for Rs.17,500/- by way of a registered Sale Deed. He stated that on 11.02.1970, the joint family also acquired 1 acre 17 guntas of land in Sy.No.132/1B for Rs.6,000/-. He stated that by another Sale Deed dated 20.03.1974, the family had acquired 38 guntas of land in Sy.No.132/2. He stated that under two registered Sale Deeds, the joint family had acquired Sy.No.134/3A measuring 22 guntas and Sy.No.134/3 measuring 18 guntas.
7. He submitted that the owner of land bearing Sy.No.130 started insisting upon the family of Chinnappa Raju to vacate and as a consequence, the house was constructed in land bearing Sy.No.134/3.
8. He stated that in the month of October 1981, there was an oral partition in the family, and this was subsequently reduced into writing on 06.12.1981. According to him, under this partition, 1 acre 30 guntas in Sy.No.133 had been allotted to him and had been indicated as 'B' schedule in the Palupatti.
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9. He stated that remaining land measuring 2 acres 34 guntas in Sy.No.133 and the other two items of land bearing Sy.No.132/2 and 132/1B which had been classified as 'A' schedule in the Palupatti had been allotted to his elder brother Narayanaswamy Raju.
10. He lastly stated that the land bearing Sy.No.134/3 and 134/3B which were converted land measuring 1 acre had been allotted to his younger brother Venkata Raju (defendant No.7). It was also stated that having regard to the value of this converted land, it was agreed that defendant No.7 had to pay a sum of Rs.50,000/- to him.
11. Chinnappa Raju also contended that he had obtained a licence to construct a poultry farm and since 1982 he was running a poultry farm. He stated that in the year 1988, he had approached a bank to raise a loan and he was then informed that the khatha was standing in the name of his elder brother Narayanaswamy Raju and same was required to be changed in his favour in order to secure the loan. He stated that he thereafter sought for change of revenue entries and the Tahsildar passed an order dated 26.06.1989 9 thereby mutating the name of Chinnappa Raju vide M.R.1/89- 90 in respect of the said property.
12. It was stated that after lapse of two years, though Narayanaswamy Raju and Venkata Raju were served with notice in mutation proceedings, they preferred an appeal to the Assistant Commissioner against the mutation ordered and the Assistant Commissioner, remanded the matter to the Tahsildar and after remand, the Tahsildar rejected the request of Chinnappa Raju for effecting mutation.
13. It was stated that against the said order, Chinnappa Raju preferred an appeal in the year 1997 before the Assistant Commissioner, who allowed the appeal and as against which, Narayanaswamy Raju had preferred a revision to the Deputy Commissioner, who had proceeded to allow the revision. Since the revision filed by his elder brother Narayanaswamy Raju had been allowed and the revenue authorities refused to enter the khatha in his name, he was constrained to file the suit.
14. It was also stated that in the year 1983, the lands were notified by issuance of a notification under Section 4 of the 10 Land Acquisition Act. It was stated that out of the total extent notified, 1 acre in Sy.No.133 that was allotted to Chinnappa Raju had been dropped from acquisition and a declaration under Section 6 of the Land Acquisition Act was issued on 20.06.1985. It was also stated that in respect of lands acquired, a reference had been sought for under Section 30 of the Land Acquisition Act in LAC.No.54/88 and in the said proceedings, the compensation was enhanced and was awarded in his favour. He submitted that thereafter his brother, Narayanaswamy Raju filed a suit for permanent injunction.
15. He submitted that on 04.02.1995 by way of a registered Sale Deed, he had sold 8 guntas of land in Sy.No.133 to Nalini Shetty (plaintiff No.2).
16. It was stated that since the defendants were disputing and questioning their title, they were constrained to file a suit seeking for declaration.
17. The suit was filed against the wife of his elder brother Narayanaswamy Raju and his children i.e., defendants 2 to 6 as Narayanaswamy Raju had passed away in the year 2002. 11 The suit was also instituted against his younger brother Venkata Raju.
18. The wife and children of Narayanaswamy Raju entered appearance and contested the suit by filing a written statement.
19. They contended that as on the death of Muniswamy Raju, (the father of the plaintiff - Chinnappa Raju and Narayanaswamy Raju), the plaintiff Chinnappa Raju was aged about 4 to 5 years, while the younger son Venkata Raju was just 1 year old and the eldest son Narayanaswamy Raju was himself aged just about 12 years.
20. It was stated that Narayanaswamy Raju, by his hard work by engaging himself in milk business and taking several lands on lease and by engaging in trading Guavas had earned adequate income and out the income derived from these activities had purchased land bearing Sy.No.133 measuring 4 acres 26 guntas on 23.04.1969, land bearing Sy.No.132/1B measuring 38 guntas on 07.02.1970 and land bearing Sy.No.132/2 measuring 1 acre 17 guntas vide registered Sale Deed dated 20.03.1974 and 22 guntas in Sy.No.134/3A 12 under registered Sale Deed dated 21.03.1974 and 18 guntas in Sy.No.134/3B vide registered Sale Deed dated 23.04.1969.
21. It was stated that all the lands that had been acquired were his self-acquisitions and nobody had contributed to the purchase of the said lands.
22. It was stated that the plaintiff, Chinnappa Raju was living separately, and he was taking care of his own family. It was stated that he did not have any knowledge about agriculture and was not engaged in any agricultural activities.
23. It was stated that land measuring 4 acres 26 guntas in Sy.No.133, land measuring 38 guntas in Sy.No.132/2, land measuring 1 acre 17 guntas in Sy.No.132/1B were all notified for acquisition, but out of these lands, 1 acre of land in Sy.No.133 had been deleted. It was stated that an award had also been passed in favour of Narayanaswamy Raju and therefore, the averment that the properties were the joint family properties was incorrect.
24. It was contended that Narayanaswamy Raju had allowed the plaintiff Chinnappa Raju to occupy the house in a 13 portion of his land in the year 1986 and taking advantage of this, a claim was sought to be raised that the properties were the joint family properties. It was also stated that the claim of Chinnappa Raju in the land acquisition cases was that of a co- owner and not on the basis of a partition. It was also stated that in 1 acre of land that had been deleted, Narayanaswamy Raju had leased a portion of property for a Tiles Factory and in another portion, he had leased the property to a packing firm called "M/s.Suman Packaging Products" and he had also constructed a structure in which students were occupied the rooms as tenants.
25. It was contended that the Palupatti dated 06.12.1981 which was set up was a fraudulent Palupatti and Narayanasway Raju had never entered into such a Palupatti.
26. The youngest brother Venkata Raju also filed a written statement, more or less, in the same terms as the written statement filed by the wife and children of Narayanaswamy Raju. Thus, the youngest brother also contended that the suit properties were the separate properties of Narayanaswamy 14 Raju and the averment of there being a partition, as alleged by Chinnappa Raju, was incorrect.
27. On the basis of these pleadings, the Trial Court framed as many as six issues.
28. Chinnappa Raju examined himself as P.W.1 and also examined one Govindarajulu Naidu as his witness. He got 53 documents admitted in evidence and marked as exhibits.
29. On behalf of defendant Nos.1 to 6, defendant No.3 - Srinivasa Raju got himself examined as D.W.1 and he also got 22 documents admitted in evidence and marked as exhibits.
30. The Trial Court, on consideration of pleas put forth before it and on assessment of the evidence adduced by both the parties, came to the conclusion that Chinnappa Raju had proved that he was the absolute owner of 1 acre 30 guntas of land in Sy.No.133 of Bilekahalli Village and that he was in lawful possession and enjoyment of the same. The Trial Court accordingly decreed the suit and declared that Chinnappa Raju was the absolute owner having right, title and interest in 15 respect 1 acre 30 guntas of land in Sy.No.133 of Bilekahalli village i.e., the 'A' schedule property. It has also held that Chinnappa Raju was entitled to receive the entire compensation amount pertaining to 30 guntas of land in Sy.No.133 of Bilekahalli village including the enhanced compensation and statutory benefits. The Trial Court ultimately declared that Chinnappa Raju and Nalini Shetty were the owners of the 'B' and 'C' schedule properties respectfully and proceeded to restrain the defendants from interfering with their possession.
31. Being aggrieved by this decree, the wife and children of Narayanaswamy Raju i.e., defendants 1 to 6 are in appeal.
32. Sri.C.M.Nagabhushan, learned counsel appearing for the wife and children of Narayanaswamy Raju contended that the admitted facts of the case were that when the father of Chinnappa Raju and Narayanaswamy Raju i.e., Muniswamy Raju died, all his children were minors, in as much as Narayanaswamy Raju was aged about 12 years, while the plaintiff Chinnappa Raju was aged about 4 to 5 years and the youngest brother Venkata Raju was aged about 1 year. 16
33. Learned counsel contended that it was also the admitted case of Chinnappa Raju that his father Muniswamy Raju did not own any land either ancestral or his own property and it was also admitted that Sy.No.130 had been sold by Muniswamy Raju and thereafter the family did not own or possess any other property at the time of the death of their father.
34. Learned counsel contended that it was the categorical admission of all the parties that after selling the land bearing Sy.No.130, the family was not owning and possessing any land or property. He submitted that in the light of these admitted facts, the properties which had been purchased by Narayanaswamy Raju about 20 years after his father died could never be construed as the joint family properties. He submitted that in the light of the fact that the family neither possessed any property nor had any means of sturdy income, the averment that the joint family had adequate income to purchase the properties could not be accepted.
35. Learned counsel also contended that even according to Chinnappa Raju, he joined service in BEL in the year 1963 on 17 a monthly salary of Rs.130/- and in the light of the fact that he was earning only Rs.130/- and given the fact that he had four daughters, the question of him contributing in any manner for the purchase of land by paying a sale consideration of Rs.17,500/- would never arise.
36. Learned counsel also contended that it was also admitted that except Palupatti, there was no other document produced to even indicate that there was a joint family property. He submitted that the evidence of the plaintiff indicated that he had no knowledge of agriculture at all and therefore, his entire plea that the properties in question were joint family properties could not be accepted.
37. Learned counsel lastly contended that the Palupatti that was produced could not be accepted since that was a concocted document and a reading of the same would also indicate that it was incomplete.
38. Learned counsel submitted that this Palupatti was not set up when the lands were acquired. He submitted that in fact Narayanaswamy Raju was the only person who litigated against the acquisition and there was absolutely no challenge 18 to the acquisition from any of his brothers which also indicated that the properties were that of Narayanaswamy Raju. He submitted that the awards had been passed in favour of Narayanaswamy Raju and therefore, it was clear that the properties belong to Narayanaswamy Raju.
39. Sri.K.K.Vasanth, learned counsel appearing for Chinnappa Raju, however, contended that the evidence on record clearly indicated that the suit properties were the joint family properties.
40. Learned counsel submitted that the fact that poultry license was issued in the name of Chinnappa Raju and the fact that there was evidence on record to show that he had started a poultry farm on the land in question itself clearly indicated that there was indeed a division of the family properties on 06.12.1981 as evidenced by Palupatti dated 06.12.1981.
41. Learned counsel submitted that there was a general denial of the allegations and there was no specific denial as contemplated under Order VIII Rule 5 of CPC and it would, therefore, have to be held that the averments made by 19 Chinnappa Raju that the suit properties were joint family properties was an admitted fact.
42. Learned counsel contended that in the land acquisition proceedings, no doubt, a sum of Rs.5,28,630/- had been paid to Narayanaswamy Raju, but a sum of Rs.75,161/- was already deposited in respect of 30 guntas of land over which Chinnappa Raju had made a claim. It was stated that the miscellaneous petition of Chinnappa Raju had been allowed and subsequently, after enquiry, it was held that he was entitled for the compensation on the basis of Palupatti dated 06.12.1981 and it was, therefore, clear that there was indeed a Palupatti and Chinnappa Raju was allotted 1 acre 30 guntas in Sy.No.133, out of which 30 guntas had been acquired and he was, therefore, entitled to be declared as the owner of 1 acre.
43. Learned counsel contended that since the revenue entries were also changed in favour of Chinnappa Raju on the basis of Palupatti dated 06.12.1981, the fact that partition had taken place stood proved. Learned counsel also submitted that the other witness examined also supported 20 the case of Chinnappa Raju that there was indeed a partition and Chinnappa Raju had been allotted 1 acre 30 guntas in Sy.No.133.
44. Sri Y.K.Narayana Sharma, learned counsel appearing for the 2nd plaintiff - Nalini Shetty supported the arguments put forth by Sri.K.K.Vasanth, learned counsel for the 1st plaintiff - Chinnappa Raju and it was also contended by him that the family as a whole were agriculturists and were also engaged in the business of milk vending and they had adequate income to purchase the properties. It was stated that since the fact that three brothers were living jointly was admitted, a presumption would arise that the properties which had been acquired when the family was joint were joint family properties.
45. Learned counsel ultimately submitted that the 2nd plaintiff being a bonafide purchaser, her interest should be protected notwithstanding the dispute between the brothers.
46. In the light of the arguments advanced, the point that arises for determination in this appeal is: 21
Whether the Trial Court was justified in coming to the conclusion that the suit properties were the joint family properties and, in a partition, the suit schedule properties had been allotted to Chinnappa Raju and as a consequence, whether he would be entitled to be declared as the owner of these properties?
47. Chinnappa Raju, who deposed as P.W.1 has stated as follows during the course of his cross- examination:
"My father has sold the said Sy.No.130 in favour of one Ramakrishnaraju. I cannot say in which year, my father has sold the said land Sy.No.130. After selling the said land Sy.No.130, my father was not possessing or owning any land. After selling the said land Sy.No.130, my father's family was also not owing and possessing any land or property. After selling the said land Sy.No.130, my father was cultivating the said land for about 10 to 15 years as a tenant and continued to be a tenant till 1969. My father died in the year 1948. At the time of death of my father, I was aged about 8 years.
Narayanaswamy Raju is my elder brother. He is elder to me by about 6 years. At the time when my father died I was a school going boy. After the death of my father I continued my studies."22
48. Thus, as could be seen from his deposition, he categorically admitted that after land bearing Sy.No.130 had been sold, his family did not own or possess any land or property. He also admitted that when his father died in the year 1948, he was aged about 8 years, his elder brother Narayanaswamy Raju was aged about 14 years, and he was in fact a school going boy. He also admitted that after the death of his father, he continued his studies.
49. These admissions by Chinnappa Raju clearly establish that as on the date his father died, the family really had no resources at all. It was, therefore, clear that the family did not possess the financial strength to purchase any property.
50. Chinnappa Raju also stated that he attended training in the ITI and had obtained a certificate. He also admitted that the ITI course comprised of having regular classes, but he also stated that he and his brother used to cultivate some other land as a tenant, though there was no agreement between the owners. He, thus, sought to contend that the family was cultivating the land of others as tenants and was earning income. However, as admitted by him, since he was 23 hardly aged about 8 years when his father died, the question of him engaging in any cultivation would never arise, more so, when he admitted that he continued his studies and secured a certificate from ITI.
51. Chinnappa Raju also admitted that after finishing his ITI course, he joined BEL as a welder in the year 1963 and at that time, his salary was Rs.130/-. He also admitted that after he had married, he had four daughters. The first Sale Deed in relation to the suit property was on 23.04.1969 when 4 acres 26 guntas was purchased in Sy.No.133 for a sum of Rs.17,500/-. It is to be noticed here that even if Chinnappa Raju had paid his entire salary to his elder brother Narayanaswamy Raju, which is inconceivable, still the sale consideration of Rs.17,500/- could not have been paid by him given the fact that his monthly salary was about Rs.130/-.
52. It is to be stated here that a monthly salary of Rs.130/- would translate to an annual income of Rs.1,560/-. Thus, even if Chinnappa Raju had given his entire salary to his elder brother, it would take virtually 11 years for the sale consideration of Rs.17,500/- to have been met. Having 24 regard to the fact that Chinnappa Raju had married in the meantime and had also had children, the question of him contributing his entire salary cannot be accepted. It is not the case of Chinnappa Raju that he contributed only a part of the sale consideration, and he had not stated what was the extent contributed by him. On the other hand, his case was that he was paying the entire salary to his brother. Thus, there is absolutely no evidence to come to the conclusion that he had contributed to the acquisition in any meaningful manner.
53. It is also to be noticed here that in the very next year, another land bearing Sy.No.132/1B was purchased for Rs.6,000/- and two other lands were purchased on 20.03.1974. Having regard to the proximity of the purchases, it is manifestly clear that there could have been no contribution of Chinnappa Raju for acquisition of said properties keeping in mind he was earning only about Rs.130/- every month.
54. The argument that since all the members lived jointly, a presumption would arise that all acquisitions would be joint 25 family properties cannot be accepted as this is not the position of law. In fact, the position of law is that whoever contends that the properties are the joint family properties, will have to establish with positive evidence that the properties were in fact acquired as a result of joint efforts by the family. Merely because the family was joint, there is no presumption that the properties acquired in the family was joint and would become joint family properties. The judgment of the Apex Court in the case of BHAGWAT SHARAN Vs PURUSHOTTAM & OTHERS - (2020) 6 SCC 387, in which it is stated as follows, would answer the contention raised by the learned counsel for Chinnappa Raju.
"11. The Privy Council in Randhi Appalaswami v. Randhi Suryanarayanamurti - ILR 1948 Mad 440 held as follows:
"...The Hindu Law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone 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 26 property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquisition to establish affirmatively that the property was acquired without the aid of the joint family property."
The aforesaid view was accepted by this Court in Shrinivas Krishnarao Kango v. Narayan Devji Kango-AIR1954 SC 379.
12. In D.S.Lakshmaiah v. L.Balasubramanyam- 10 SCC 310 this Court held as follows:
"18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available."
Similar view was taken in Rukhmabai v. Lala Laxminarayanan - AIR 1960 SC 335 and Appasaheb Peerappa Chamdgade v. Devendra Peerappa Chamdgade - (2007) 1 SCC 521. The law is thus 27 well settled that the burden lies upon the person who alleges the existence of the Hindu Undivided Family to prove the same.
55. In this case, there is absolutely no evidence to indicate, firstly, that the family had some income out of which, it could have purchased the properties and secondly, that Chinnappa Raju had contributed financially or in any other manner for acquisition of these properties.
56. It must also be stated here that, even if it is assumed that the members of the family lived together under the same roof, it cannot be assumed that the properties were joint family properties in the light of the above law laid down by the Apex Court. Thus, the argument advanced by Sri K.K.Vasanth, learned counsel appearing for Chinnappa Raju cannot be accepted.
57. In the light of these facts, it would have to be held that there was absolutely no evidence to indicate that the suit properties were the joint family properties.
58. The Trial Court has proceeded on the footing that the possession of Chinnappa Raju was not in dispute and by 28 virtue of the permission granted by the panchayath and the khatha standing in his name, it will have to be held that there was a partition and Narayanaswamy Raju had allowed him to construct a poultry farm and reside in the property. The Trial Court has relied upon the licence given for establishing a poultry farm in order to come to the conclusion that the suit properties were joint family properties. It may be pertinent to state here that Chinnappa Raju in the course of his cross- examination has stated as follows:
"I have not obtained any training in running a poultry farm. I had kept near about 2000 chicks in one batch. I cannot say how many varieties are there in chicks. One person can manage 2000 chicks. The said 2000 chicks used to be fed by 3 times every day. I cannot say the timings of the said feeding. For each time feeding, we used to offer 25 kgs. of poultry feeds. We required 30 quintals of poultry feeds right from beginning to end for a batch. It is false to suggest that I had no time to look after the poultry farm and I am deposing falsely."
59. As could be seen from this deposition, Chinnappa Raju admits that he had not obtained any training in running a poultry farm. He, in fact, has stated that he cannot even state as to how many varieties of chicks are there. He also 29 admitted that he could not say at what time the feeding of the chicks were required to be done. In the light of this evidence, it is clear that the possibility of Chinnappa Raju engaging himself in a poultry business is simply unbelievable.
60. It is also to be noticed here that if Chinnappa Raju had been employed in a public sector undertaking like BEL and was working as a welder, it is obvious that he would have to put in at least 8 to 10 hours of work every day and given this fact, the question of him starting and running a poultry farm cannot be accepted. It is no doubt true that licences have been produced to indicate that a licence had been granted by the Panchayath for establishing a poultry farm, but merely because the licences were produced that would not indicate that there had been a partition and that Chinnappa Raju had constructed the poultry farm.
61. It is to be noticed here that if at all Chinnappa Raju was running a poultry farm, evidence indicating the purchase of chicks and the sale of eggs which would establish that he was running a poultry farm could have been produced. However, no such documents are produced and merely because a 30 licence and a few photographs are produced that cannot lead to an inference that he was running the poultry farm. The Trial Court, in my view, on the basis of these documents could not have come to the conclusion that Chinnappa Raju was running a poultry farm.
62. It is also to be noticed here that the State had proceeded to acquire the properties which had been purchased by Narayanaswamy Raju. If there was indeed a partition and 1 acre 30 guntas had been allotted to Chinnappa Raju, Chinnappa Raju would have definitely challenged the acquisition. However, it is the admitted position in this case that it was only Narayanaswamy Raju who litigated against the acquisition. The award in respect of the land was also passed in favour of Narayanaswamy Raju. It is only because a claim was made by Chinnappa Raju in respect of 30 guntas of land, the matter was referred under Section 30 of the Land Acquisition Act and the Reference Court, on the basis of Palupatti concluded that there was a partition. It is, therefore, clear that there is nothing on record indicating the exercise of ownership by Chinnappa Raju over any extent of the suit properties.
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63. The entire thrust of the claim of Chinnappa Raju is on the basis of a document which is titled as "Vibaga Patra" i.e., Partition Deed. This Partition Deed is typed on two sheets of paper, one of which is in green paper i.e., ledger paper and the other is on a white paper. The first sheet indicates that the properties have been divided between three brothers and each of which were classified as A, B & C schedules. It also indicated that the youngest brother had agreed to pay a sum of Rs.50,000/- since the 1 acre of land that was allotted to him carried a higher value. Though the document indicates that there were three schedules i.e. A, B and C, however, the schedule only indicates schedule 'A' and 'B'. This document would, therefore, be doubtful since it does not reflect the contents as narrated in the first page which specifies three schedules.
64. However, learned counsel appearing for Chinnappa Raju and Nalini Shetty contended that there was an omission in not mentioning 'C' schedule, but a complete reading of document would indicate that there is indeed a partition into three portions.
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65. It is to be stated here that though Palupatti indicates that a sum of Rs.50,000/- was to be paid by Venkata Raju to Chinnappa Raju i.e., the plaintiff, there is no evidence forthcoming that this sum of Rs.50,000/- was indeed paid. As a matter of fact, the youngest brother has totally denied the execution of this Palupatti and he has chosen to support the assertion of the other defendants that the suit properties were the absolute properties of Narayanaswamy Raju.
66. It is also to be noticed here that there were four witnesses to this Palupatti and none of the witnesses were examined to establish this Palupatti. In my view, since no witnesses have been examined to support this Palupatti, it cannot be held that there was indeed a partition in the October 1981 and the same was reduced into writing on 06.12.1981.
67. It may also be pertinent to state here that though this partition was alleged to have executed in the year 1981, there was no effort made to get the revenue entries changed till the year 1989-1990. If there was indeed a partition and on the basis of the partition, a licence was obtained for 33 running a poultry farm, it was essential that the khatha was changed in favour of Chinnappa Raju in 1981 itself. However, even though the khatha was not made out in favour of Chinnappa Raju, the licence was stated to have been given in his favour to start a poultry farm and this indicates that the grant of licence itself is not free from doubt.
68. In my view, since no effort was made to change the entries till the year 1989, it cannot be held that the partition was indeed established. It is also to be noticed here that the mutation that was sought for by Chinnappa Raju was unilateral and without notice to his brothers. The Tahsildar in fact rejected this request, but the same was overturned by the Assistant Commissioner in the appeal. The Deputy Commissioner ultimately accepted the revision of Narayanaswamy Raju's wife and her children and directed the parties to approach the Civil Court. Since the entries were not changed pursuant to this Palupatti dated 06.12.1981, it cannot be accepted that there was indeed a Palupatti, under which, the properties were partitioned amongst the three brothers.
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69. In this appeal, an application was filed seeking permission to produce additional documents. In my view, since the appeal arises out of a suit for partition, it would be appropriate to grant the said application. Accordingly, I.A.2/2023 is allowed.
70. One of the documents sought to be produced is the judgment rendered in O.S.No.8959/1996, which was a suit filed by Narayanswamy Raju against Chinnappa Raju for injunction. In the said suit, Narayanaswamy Raju sought for an injunction to restrain his brother from interfering with his possession. The said suit was decreed in favour of Narayanaswamy Raju. Chinnappa Raju, who was the defendant, was restrained from cutting the plants, trees and fence, which were existed over the land and Chinnappa Raju was also restrained from undertaking any construction work or by making any alterations in the suit property.
71. In the said suit, Chinnappa Raju had examined his brother-in-law Govindarajulu Naidu, who had supported his contention that he had put up a poultry farm. In the said suit, an assertion was made that in the year 1981, there was a 35 partition. However, no Partition Deed was produced in the said suit. The fact that the Palupatti put forth in this suit was not even placed on record in the earlier suit, casts a serious doubt about the veracity of the claim that the partition was reduced into writing on 06.12.1981.
72. Another document that has been produced alongwith the application is a representation given under Section 18 of the Land Acquisition Act by Chinnappa Raju. In this representation, which was submitted on 24.04.1990, Chinnappa Raju states that there was a partition between him and his brothers and a portion of land measuring 1 acre 30 guntas was allotted to him and the remaining was allotted to his elder brother Narayanaswamy Raju. However, the allotment to his younger brother was not mentioned and more importantly, the Palupatti which was sought to be relied upon in the suit was also not forthcoming in the representation. The fact that there is no reference to the alleged Palupatti dated 06.12.1981 either in the representation dated 24.04.1990 given to the Land Acquisition Officer under Section 18 or in the suit, which had been filed by Narayanaswamy Raju in O.S.No.8959/1996 36 clearly establishes that this plea of partition being reduced into writing on 06.12.1981 cannot be accepted at all.
73. In this view of the matter, since the Palupatti dated 06.12.1981 has not been established, the question of considering the suit properties as joint family properties would never arise.
74. Learned Counsel Sri Y.K.Narayana Sharma sought to rely upon the judgment of the Apex Court rendered in the case of KALE & OTHERS Vs. DEPUTY DIRECTOR OF CONSOLIDATION AND OTHERS - AIR 1976 SC 807 to contend that the Palupatti is required to be accepted since it was entered into voluntarily without there being an element of fraud, coercion or undue influence. This judgment can be of no relevance in this case since the execution of Palupatti is stoutly denied and as noticed above, the execution of Palupatti itself has not been established.
75. In the light of the admitted fact that all the suit properties were purchased by Narayanaswamy Raju under registered Sale Deeds, it will have to be held that the suit properties were indeed the properties of Narayanaswamy 37 Raju and none of his brothers i.e., either Chinnapa Raju or Venkata Raju had any right, title or interest or even a share in these properties.
76. The Trial Court, without considering the matter in the proper prospective, has wrongly decreed the suit which would, therefore, have to be set aside. Accordingly, the impugned judgment and decree are set aside, and the suit filed by Chinnappa Raju and Nalini Shetty is dismissed.
Appeal is accordingly allowed.
Sd/-
JUDGE PKS