R Dileep Kumar vs S Ramu on 18 July, 2008

[Cites 0, Cited by 1]

Karnataka High Court

R Dileep Kumar vs S Ramu on 18 July, 2008

Bench: Subhash B.Adi

- ; -
IN THE H§GH COURT OF FARNATAKA AT BANGALQRE

DATED THIS THE :8?" DAY OF 3" UL'! 2003 

BEFORE

THE HONBLE MR.JUS'I'i{ZlE SUBHASH 2:§.:AD£      

BETWEEN:      "

S17; R. Diieep Kumar,

S/0. R. Rama,

Aged, abeut 56 years,

R/a. Sy.N0.54,

Subramgmyagmm Road, V

Chikkallasandra, _T ' '

U  hobli, V    .V '  jv --. -'
Bangalore-560 061.; '    _  -  " .. APPELLANT
(By Sri. Sri. G. visvegwaza,'   '
Sri. s. G. Rajeév   "I'sEa_j1:, }'Z~.dv9.)

AND: % V
1.

Sri. S. Ramu,* _ ' ._ SI 0- 191- %'Sidda19:&a, = ' Aged about 80 yr:"azs',*.

Rjﬁa. 'Khatha":¢g.55o in $§y.1'*~I<3_,». Sxzbmﬁianyapttra Road, %' ' « Chikkanaséndra, Uttarahalii Hobii, ' B$1g&1_ofc-§'*3.§C- 'O6 1.

81*}. R. Siiélaraju, S)'-.0. R-aihu, V' Aged. about 51 years, AA R/a. frihailla No.:'350 in ~ Sy~...No.:'54, Subramanyapura Road, ' Vﬂhjkkallasandra, Uttarahaﬂi Ho-bli, V' E Bangalsre-56006 1 , ..7A1s:) reading at Door No.1199, Srirampuia, 29¢' Main, Mysore. .. RESPDNDENTS $0 (By Sri. H. Rajanarayana, Adv. for R1 Sri. A. G. R& , Adv. for R2) .. ﬁ , claim of the glaintiﬁ' for 'C' and 'D' properties.

"2', The triai -mart based on these pleadings, the, fallowing issues:

1. Does the plaintﬁfgmzre his enjeymeni 'B' scheduie prcperiies as 'srfjairzﬁ « ftzmify wiih defendant? = ~' ».

§~.3 Does defendant No.2" prgkve Vs1.z'i3.' A-32-:':.3:-.{.=2«V:i':23Ze % praperties are 3:15 se§f~aa:ju§'Siiiort? V '

3. Whether the suit «is -the pféiiisiéns sf ﬁémami Tran.-3ac:'ti"ert?.3 1989?

4. Whether defendani i3g.*z%£iﬁ£«fed joermanent or rrtanda£o:y«¢'ir§.,iumi:fior;

5. Does; :.1§'9f;24'_p© :'f:oLs§:' famiiy partition in

6. iifhétfzer " ,!Vé.2 is entitled for the possession? " ' 7;,' {Fees upI£iint:f}f?° gézmve his right fer partition and " p§>s3¢ssiori«:;f_1_{.\3Td share in the suit properties? ' "8, the suit is bad for non-joinder of necessary T T';?d'f'?€'3?*-¥,.V~~ A reiiefs she parties are entitled?

AﬂB{?'YOAE4L ISSUE FRAMED ON 5.1.1.999 x _ Whether the court fee paid on the counter claim is ' " sujfideni andproper?

iﬂefem the trial zrgurt, plaintiff was examined as PW-1 and one Witness was examined as PW---2 and he get marked EXSP1 to I _g -

joint family fund. Later, said suit was withdrawn by the defsnciani N0. 2.

11. Sr;i,(T'n8.Viswes}Wa::'a, learned Senior Counsel for the piai:nt:iﬂ' submitted that the suit .313 acquired ﬁom out caf joint famiiy fund. He amount was derived from the Sri Gu.i19uné:ﬂ;a "Rice Sli ; Gmunaﬂxa Rice Miii ﬁrm is a i3};~ famﬂy in which piajntjﬁ', defendai:£:}'€9.1,.vﬁ1eft;i1e1éi1tVV«Nvf.$¥V2; 'Vf§'o11i1"§:iV, the daughtar ef the 1" dcfgndazif when $111:

plaintiﬁ sscured a Gﬂvezﬁﬁcht of plaintjﬁj his wife was madc.v;1$ Va 1978, the site at R31' lwiagagf wa$1:~i< L¢:! 1' ~ in order to purchase thg suit scheciuie v if; supfxéﬁ: his centerztien, be strongly relied on the *_§t: "E{ ﬁ.§¢(} t§e*--.d@fcndaﬂt No.2 in O.S.Ne.134/1988, which is as Relying on the said exhibit, he submitted V that, ﬁi'cfc:1§,§a'11£ No.2 had ﬁled a. suit. for partition 313:3 scpalate .'A4 1:.'s<'§sA3t:s;sioii" far 113" share in the suit schsduie garaperty {_'.'3§<._ N'a:3.*:'.','~««~<3~). He mlied on para--~3 of the piaint and Sllbmiftéd than VT _ 'i;h€: éefenda11t No.2 in the said suii has stated as under:

".3. Farmer during June 29,79 {Nineteen Seventynine}, an exfeni cf {and of 3 acme 20 Qantas in Sy..:"§o.54 (Three acres and twenty gamers in Survey IV0.F:}'iyf0ur] of Chikkaiasandra vfilage, Ufiarahaiif Hobk', Qangaiom £91 \ ,.9,.

Sent}? Taiukt was purchased for yaluabfe oonsidemiion in fhe name of me piainiiﬁj out of the income fram {he joirzi famiiy properties{ Out of Skis iand two aa*es ;r':f land has been cmrwerfed for nori-agrimgifural The 119$! of the Icmd is usedfor pouftry and a:griczgl£:cfe,-f'--V[. , By relying on the said decument, he further s11,7r.>2ﬁ1;3L;{i.'t*:Vc:i:iV--T.}i:;'r1:;«.tT,biagi, vim? of the admission 1:33,: the defandanﬁ No:,_;?;,« it §::f'O"?téd.. ztioubt ihat; the suit schedula prgxperty iéﬂa 'jaihnt "

He alse mibmitteci. that, tha s;é£ic3: "31;it x'§it}3§(1§ra1ée*n on 28.8.1979, which is proaucgésé aiggd further submjttsd that, though t}1f':% as withdrawn, however, the in defendant N02 wilibmd him.

13. He if'1j.c;_1VA:'0Iz 'E}§{;'R_14§{a§, me haiamte sheet as an 303' June 193oén_ ¥.>I de'1'V.,_%§b:--j.Sﬁ§§:i!:::" ilcxézt, an amount of Rs.36,887.-45 paisc, Wh'§.€'}} is EXeP14(c) is Sh()'WI1 standing in tha G\.i;1*rufii::v Poijlﬁj} Faxm as an asset belonging to the He further relied Ex.P'?2, a suit ﬁied by the against the defendani No.2 wherein the father 3:aotI:::f% i~ of the plajntjﬁ sought for permanent injunctian "the defendant No.2, restraining from irlterferilzg wifth use and exigioyment of the suit schedule property (house beaxing N0550 in Sy.Ne.54). Relying on Ex.P'?2, he further submitted that, at pr.-1:ra--5 of the said suit, both the

-1@_ plaintiﬁs father and mother alleged that, the defendant No.2 is trying to oust them fimm the suit scheduie property £1; V~a?§'z?5x1:;{ of withdrawal of the suit in 0.55.310. 134/ 1988.» Ha ;_-QA41:1« % EXP74, 21 writtsn siatement ﬁled by the c¥e:fe1}c1a: 1_§j'--V.I'§t>:.VA;'Zf' saéd suit and submitfaci that, in the 'as:1fi'ttcﬁ'):A4s§;a'1?:;11i?:;'Lt_.:at thczugh the seems; dcfenciazxt aygges ¢h%a%:,% he ﬁ.1;%J::i sé,?:i{ i1i"= O.S.Ne.134/ .1988 as he was india-cg: "by. ::»;e'_ is: the purpose of regulazisation cf~:§h€ (3-r.I$;!'fi;S';'fE'?{};€v'M'?1Ei(31I3., the sajci suit: was compromiscrzd was given to the éefendzmt.bc1o§§,$:«:1§_d$§§ﬁ§éa§:t sairi compromise was not re::::::°dt.:§i'; §_§€VVdefendant N033' on 0115:

breath 3eli§;':a&§:%ju:§;:é§;'Vpi;:;psrt}*§ at the same tires, he ciajms pfoperty. He fﬁzrther submitted that, a memer$i:2_§i:.m <5c:'.:i1p:f3mise filed in 'the suit {ﬂed by the fame: umcssthern'éf fif;§:__&p»1aintiﬁ" in 0.S.Ne,3257/1990 as per E1'!ffEI"thOUght ané the piajnﬁﬁ is not party' to the sair.;1 the allegczd ad mission by the defenéant 31351 moﬂzer are net binding on the piaintiﬁi " §;i_.L§A1';§;v;ﬂz év..ze:'f,'. Thsgiltifemed to the gaid dacument and 3uhm.ittc{i that, in «i;'f§:.::._«js:aViéi'--c--;§m;;remise, it is admittad than in the event of dttcreeing the ssctond ci€fsnd3I1t.w'o~u£:i be antitlcd far 1/ 3"' sham. Hzgjaisc sub.mitte:d that the piaintéif did make an appiicatiorz as per E:x,P'78 to get himseif impisaded in the suit ﬁlsci by the ,«*-'_''2'?

gb'

-;;,, parents in viftw ()f the order passed in M,F.A,No.154'?]1991 durixzg tbs pendency" of the pI"6S€:nt suit ﬁieé by him. P'1aint;iﬁ's patents, who had fled the said Silif, withdmw the samt:--as pm"

EX,P'I"9, alleging that fhare was a seti}.emeim; The, wife had also ﬁled 2: suit against the deihndant Nos. Ex.P3Q ix} c>.s,No,30?2/1991 infer£::Ei(:_ & i3.1j113:1cti(m net" is change the name a the name of Si-tidu Poultry Thgf defendant. Howavei', the: amid -zjflisntziésitfcivljfoagfdefauli. Q11 14,12,19'?9. He also siiiﬁﬁitteai iﬁé'~§ené§§ Naif the suit schedule gmisperty has: :,f§7';s.;~:o.44."3:3/ 1988 against the !'3Q;.:2 $2}? of the sale to the £'215(t€I].'£ of acrﬁ thé said suit was dismissed; agad cenfumﬂd Vvﬁvﬂ! r«:".:;,: 1485 Hz f':1I'1."V}1'{';17T ggprnitted that, G"uz's.11:::ath.a Rica Mill was "9w.r1i1ig_ 2; _1()?f.°1'_';?' £:':E~"€1(3. tbs same was U"£1I1SfCIT€d in fly: 11:33:36 of c;:i1~11i:':a_;~11"P5':;.1:r§{;aé per E;v;.P13'?'. Ex.P1.'3? is :21 lettﬁr aédrcssed V V' 9:0 Incdme ?13x-Qfﬂcer 1:33; the Gumnatha Rice M13, infmming that. " lorry; ',:§'-.::afri11.g NQVMYG 4659 beiengitzg to M[s.Sri Grurunaiiha Rfi'c::_ '§'~J£--ii1 is handed over to M ,1 s,Gumdev P931113' Farm anti % saiuglzt. fer dsletian o:f'cnt1"y of lorry in the assessment mgistexz E .3.

15. He a1${) Iﬁlifﬁii on Ex.P113 and stlbmiticd that the dafenciant N02 had ﬁled objections befem the Land Acqﬁ:iS%T£ion Oiﬁcez' in mgani ta acquisition of 1 acre 28 guntas ef.~$§%'._'?\§§}'_.;"S%*.-j1A ané at 13313-1 of the said 0"h3§ecti011, he had member of the jam? famiiy cansistizrg obf"i1:in:$e§f,-.fé:-it11¢;4;« plaintiff and his mother and has cafﬁgdiéggaﬂy iheugh the land is purchased in fax V' property. Hf? also relied reg Ls§;:ow fh:a 'Aiﬁcome of Rs,-42,DG{},l - cierived by way 16. 3978 as per the assessment r6gii*§§f/_§sr§§:"'3t':%V He alga mﬁed on E-X.PI4(a) ?:s:h:f:t;*--1:_ Jung 1930' gt, furiher relzlezji" ""'a$s'ﬁessment of the second defendant giefenaant has desctrihtszd his assets as 3/ 4*; :%;.¥::_ VagI'i{§L;.1'V;i;;;";é21« 331d 1/411" in 10113; and 1/ 43* in Véﬁurrunagiligavﬁicg }:§_§:___fp.r;1*ther refcrreé to EXPQ4, tim balance Aé}1§:ct;9=.3- 2 611.. :_1983: to__ point cut 13:15 value of the Izmd is shown as Rs.%i:€}.,{§{){3/ V4'; Izslied on EXPI7, a letter written by the to Manager, Sangli Bank regarding 10313 for _ '<:6£1su":;;x:fio1:i'"0f gotiawn.

He furthcr mferregi to the evidense caf DW~2_ and ' 'that, there was a paxiition izxetween the defendant £530.} his uncle 02:1 303* December 1955 and subsequently again there was 21 partitrion cm '.?,2.1.19'?O as per EXF4 betweezx the -13- defenéant No. 1 and his brothers. In the said partiﬁoe, defendant No. 1 got Rice Mill, which was censtxucted is an area meaeélring 100 ft X 100 ft. Thereafter, a mite bearing No.5 at which had fallen it} the share of the ﬁrst defendeei;,:\\ purchase the suit schedule property. F::bih"t11e_ V of the said siie and also ﬁnm the 553;

Gumnathe Rice Mills, the suit in the name of defendant vi'~E--«:)z.2 faef by the defendant N032 in his 1988. The defendant No.2 ancifhe defeii£i'.».e)tV.:i\Ez;t'.. mother of the plaintiﬁ have property is a joint family pmper1y_A"i_t1F in Q.S.Ne.325'?}19QQ wherein against ihe defendant No.2. The paym.eJ:"rt_0Vf Cseﬁeiciemﬁon is clearly shown in the "be1anee,. The eifﬁexzce coupled with the documentary 'admission made by the defendant Fig.2 the suit schedule property, though stand i13 the IVi'E'2lII1t'5.,V eafzsiefendant No.2, was purchased from {slit of jomt " H " f1_.211d.'~ He also submitted that them ie as evidence to shew siefendant No.2 had any independent source of income to nifeurchese the suit property in 19?8. He submitted that the his} " eeﬁtt has eneneouely held that the has failed to prove V' that the suit scheduie property is a joint family property by <;ﬁ5y:, E? * ' «iii-

wr::2ng.1y pzztting the "buxziers of prcof an the p1a_:':3i§ﬁ; despits the admission by the écfeiidaxzt. Fé:::>.2 in O.S.N0,134/ He submitted that $115 judgment azzd deems of the i:xia3;"{7ou f1f£. _~;f:i1.:-:A passtsd in ﬁtter disregaiﬂ {Q the admissicn 3:311_"'%h€'V..:%:arjde1§{;:VV establislzing the €:XiSf€I1{?€ ofjoint '1 * . 'V ' 1?'. Learizcd Cetmsel 21p;3€za,;;*i11gV"§?r)V.3:""t1:;e submitted that. the suit is 130? i:i;4ﬁi;11tai11é¥3£e&_VVAaé Sig; piaéntiff himsslfadmits that, the i%"§§$.i§>'uﬁthase§ the name of the second {iefendant far cE31;15§€i:e§i?%1ti:);ﬁ éf<R'$¢35,{3{)0! ~ out of imtcame .i,e., Gurunatha Rice Mill.

Hf: $t113B}?;ﬁ1.f§d" th.ai.t31e; not a gparstncr of the said ﬁrm and he <:am;Q't"--:;1a:i.t3.ta;E_;:133i'e"s€1it. He also submiiztecé that, before "i'h;=: 31155;'. ;s_¢.i2a:d13.1e was purchased by the seccwnd. éig:fei,£:i'e111$,~.;£ieM zmtered into 311 agreement dateé 22.4.19'??? as peg? gg.g*2¢w& Essa ggiied an E2x,P150 (E1x.D2) szaouwmg that the long? was Izﬁiothgcétéd ms Kesariah Fizganca Csrporaﬁon by dcfengéant vazgd Viéas geld by ﬁefexidant Nag fer Rs,4G,Q(}Of~. The :_Ij¢gi':::ﬁ*fa¥35o11 Ceﬁiﬁcate cf the lorry produced at Ex.i3'49{a} shows _4t§aat--;Vit stands in the name sf Gumzdev Peultry Farm, He fxzrﬁler A félied on E,§x,E?~'§ 1, the <){1I1V€1"Si0I} Gfland. 18, ii: fu.r:E1e1* rebled an EX,P'2 and EXPIB to azhcsrw that the piainﬁﬁ" reiimci from 2:115 firm on 1.'?.19'?8 and a:ﬁ:s::r thé: rsrtizctiment -15- has got diiferent sham in the proﬁt and loss, he1_1ce the partnership cannot become joint family business.

20. Insofar as payment of sale c0nside1'atioI_t:is he relied on only Ex.P.14(c) to show th_~at';' the in the name of Gurunatha Poultry to the Though the sale consideration 'PW-1 i his evidence has stated thatA,_...i: it eonsideration is Rs.60,350/-- and further se'ee:1:ted_ amount is paid from M/s.GurunathaR1'ceeMil1. V '.21. In 'Was severance of joint family, he 1',7Cl.l't',"('!._:(i):1"J;-9 disruption in the family.

22. I11"supporte.Vof'-l.his_i"eoiitention, he relied on a decision reported 1995-e.A_LL It-'IDiI'A 'ration comm" CASES page 861 and that, vvacquisiﬁohiiof property by a member of the joint of his own. He also submitted that.

vExs.P'l..1':oi P3, P14 clearly establish that, there was a disruptioii the and there was no joint family existed. He ' rstlbtliitted that, the partnership was not joint family "Fl 'urther, the plaintiﬂ' has admitted that he has retired' ﬁrm. He also relied on Ex.P14(a) to submit that, the 'balance sheet is dated 30"' June 1980 whereas, the purchase of J "suit schedule property is dated 29.6.1979. The balance sheet I . t ( -17- pex*tain.s to 13* July 19739 to 3015 Jun: 1989 and the 3.m011nt mensrioneci in Ex.P14(a}§ it dates not prove the case of as the balance sheet does not Show paymmat. dt11i13_g§més2é$--s:3;is:;iiA_ year of 1978-39. Insafar as purcthase {sf "'#:crh§cisj}.e' pmpertj; on '29.6.19".?9 is c011z:.~er;md;=__ thfzrré Lié; *r:\}i(iéz3__<:'€:.;_Tc§f payment as the accmznts were Vci-based {Sn ;':;-0*11 :T}21':1;c._19?§? V' L. there is :10 reference in the jibéén fmm Gur11z1atha Rice M111} he also Iﬂicd GI}. Ex.P15{}, at balanff 1979 and pointed. out that, Rice: M3131 for the purchase cm hypothecation of the iomy. daftzndant. N092 i5 shown as oumer {§§ tI;¢ long is tI'aI}Sf€I'I'€2d as per Ex.P13'?,, insofatjééas £§ug$é~3Sm éi1t of the defendant N92 as per .E;x.P15($ot:cCrnﬁ€i;=}1.{§_ further submitted that it is his personal * -::cma'1:.t._ 2,'3 ;VV1n$nfé%"':--.Vr$ 0KS$NOIZ3¢! .1988 filed. by the dcfcnriazat No.2 _ "» _i$"(j0}f:1C¢':rf1~!€'v(;l;;. he submitted than the statemanf mach: in the :iS=t10¥L concinszéve proof 311:} in this regaxtl, ha relied on a _de§i:isi @n of the Slzpreme Court regmrted in AH? 19"?4 SC: 471. Hf? $130 relied 0:; his evidence, to shew the circt11z1st2s11<;~e under which the said suit was filed. In this mgaxdg he rslicd on the written statement ﬁlﬁd by $114: zisfendant No.1 and the plaintiff 1711 :-

.18.

$116 said Suit. to show that, they have admitted that, suit prtxaperty is self--aCq11z'3*ed proptarty of the {§<:":fen.c1am. N052. fiat ftlzrther Silbmittﬁd that, the suit, W85 dismissed as with{§r.;3§5s;:, He sllbmiftgd that the defendant N02 has sh<:>w11 the "._of incams at RsK3Q,0€)0/ ~ by 3.236 of icazzy 53.15153 the of the su.:'.i' schedule ;31"o;>erty is admitted as plaintiif @359; Tha loan was raised on schedule property was p11rchas::(§'[:_e:2. V ' 224$ Learned Cxmnsel far tIf1e ge,;r;f§:i;»1.}<i =r.§f3fe*;:.2, i"r:az1 £Ar¢}:;§::ai. 313311137 on Exs'P1:'i30, D2, 113$ evidézizé;-§"Qf EX.P52, E:.x,P62, Ex.P383 Ex'P14{(*.) tr). sh.-CW... .3551: '*z--3;e.__ :;9£a;;:;":1%5' is 1101 paid by G13n1nath:§, Rictéf in} '

25. '~f}::"e dais-nrclanég fzlrfthttz" s!.1bmit'£.es:i that $31!: szgit is} in View of that fact that, plaintiif §;§f3.Iff1}f§1" of and once he is ratired {mm the firm, he a. Suit for paziiﬁcm or share: in the:

paﬁm/zrﬁhip Without pzfjudicc, ht: also submitted 'mat, 'ms 111e;111'fia>.:;i; atgf 'A' schedule pmprsrty in tha p£a:im, skews that, the ﬂélong to M] s.(}ur11naitha Rice Mﬁis and Gxinldev It is stzianzittcd that, ins-:>far as Gurudsv Peuitry ?iZ1:i'ﬁf:"is contained, admiﬁedly, neither the pkajnﬁff is partxzzer 1301"

has any rciiation with the p<>1"1}z':y:, inclusion of G11r:.1d::v Faulty}; .jQ-

Farm i5; II1iSC(}I}{?€'iVCd, 'B' scheduier ;m:wps1:*ty is a b11i1c§i11g EJ113211 an the property belonging to the second defemiiani, and without. fhare bging right aver the land, '£116 Claim in mspgzgt of a buﬂding is net maintaizzable, » 261 He fairthar submittad than the scheziﬁlgé pur<.*ha.s,scc1 in the? name 9f the se<:ro;1ci"'a?;s:f£:1:§L.é#:;ﬁ_;t" ' j "

deeé, proparty rsgister stand in hi$ admittedly has been paid _4;£}2€ % hypsthecatjng thc larry, vrghish e$;ide.1r.1't"D2, He ﬁxziher submitted $1131.; V ﬁrm is a sepazaitz property and eat,r_"rh--V.-:)f£;"'V $11.: :v,IE:§é.1"s gs': a distjxzct sepaﬂ-{ta iie ".:_h§V of the share, they are holders of scparz:-13:3 pfogggerfy. ' ~11; thé i:';ght'j<if the éfontantians raised by 11:31}: the Sidiiﬁ, {E15 jgitxérglts an §tHfor co1:3.sﬁcrat;i0x1 in this appeal; ' defendarztg preve Ihai aim suit is not T rfmif;1i::'u:'na;I)fe?

"'Whé§'?zer She piainirﬁ" fuzz-s prayed {km the 3212':

" .3:-fzedufe pmperties arej0ii1.zfa171z'!_y prapeiffes and he has share in the s{:i,idproper1.'ie$?

1.28, A: the outset, from the pleadings, it ﬁg clear t};1a:£.,, the h V "";éV§1H22L£3'1€if:" cgaims "that the giefazsdant Ekkxl started Gtznlnatha Rice M2113 in mg year 2957 anﬁ in 1971, glainnlﬁ am thté defendant .,;>g..

?4o:2 wart: i:;::h1cte:€§ as partners, Further in 1975; plaintiﬁ" was substituted 1:35;" 11$ 'wife: as a partnar and in thc yea}: 1984, the-:-. pa:r't;aersh.ip was traxasfecrrﬁd and a new partnersmp was canstimtad. with assets mzd iiabilitigs and piajntiff a33;€gé':3_ t};at; defﬁnéani N0" 3, invested the mane}; in the nam_e'§:)i' i€i'=§ff'§:i<:i'a;:§§1~-- N92' in support. cf his case, had _. S§3Vtt1;2%3".

doctumatzlts.

29. it is not in (iisp1';te'ﬂ:;a,§ Ex:;?1.' is a' ﬁzég'i§zt:a!:ioI1A av? L' partnezship deed, EXWPQ is a 7pa111;§%fs_§:i1:sVV_deeci'.' «Frbm viE:x.P1, it is clear that, the plajxztiif was-..;é1::Vpar¥31e;'Vf§0~m» to 191753 and fmm 1975 tmwaitis, hisjwifxa bAf:C£>3TJQ?x--f: £115 pz»;rtners%1:i;3 dead, €ac;_?a of get a distinct sham: in I113 pmﬁt and. liabi11*;i;s.M% % 'ta piaintiff himself, the sage censizizjraﬁoix Rio._ 1)11I§;*i3$s:€ ;Ehe suit land was paid from the Vézcrcgtiﬁf' 0:3~.T.;\;§,i%'3{{}1:1;Li:i:it}ia Rice: Mills, In this ragarri, 'ms: relied §:§:1__ "EXIPAJ '§hr: piaadingg ané the evidence lad by {Chit it .is73 .c:3:eax that. the p1a:i;11tiﬁ's Case is based on the . '2iVr;.u111is:ii:i<:~n ;:»f psroperty by the ﬁrm' Piainiiﬁ" is not disputing that ._ 13;ré§$"*«;s10t a partner wI:1.€:1 {£113 prsrzaperty was acquired, There is ..__ :io Qispute {hat the property was acquﬂtd in the year 29?') and V V n "at 'that time, the plaintriﬁ' was met a parmar. if {ha piaintiﬁs Caﬁﬁf is basad on acquisition of }_3r01)CI't_fe' out af funds 01" the partnership firm, then the plajzxtiff has to pmvs that, he has got ,2;, share in the fem; when the was not a partner at relevant time of purchase of the suit pmperty, whether plaintiff could claim share in the same?

so. In this case, the wife of the p1ain1:iﬁ' is not a "The plaintiff does not dispute that, his father, the .{3f1:*stv 4_ started Gurunatha Rice Mills in 195'? by ' in Mysore allotted to him in the "V1955 also a partition between. the ii-efcnttient L' 1970 and the ﬁrst defendant Rice Mills and a site in Raja;'iIV1aeegr_.A alleges that the first defendant s<)lVd_»-- Rajajinagar for Rs.25,0(}t)]- _ :5' Suit schedule pxoperty for a considc1'aE'(511_"of Jﬁhowever. he also admits that Rs.10,()C.G,l_-- the joint famiiy business i.e., *Rit':e MiIleV.V"""'ﬁ1ough the allegation is made that the was from the sale of property at accoxding to the plainﬁﬁ himself the sale is 18,2Z~}978, Whereas the suit schedule prept:rt.y is on 29.6.1979. Same does not shew any co-reiatioxx

-.._"iBet\$é§een saie of Rajajinagar property am}. the purchease of suit -32-

33.. In this regard, it is necessary to notice the evidence of the glaintiﬁ'. He categorically admits in his examinaﬁert4tti#et1ief itseif that: ' té V "The suit property was purchased for Rs. Z amount was provided by funds of Guruﬂaiha M2'I£§;,.V ajointfantilypavtrwrship concerrt" ' « '7 V. V' This admiseicm is further suppoi L' plainﬁﬁ' an Ex.P14. Ex.P1{_} is tire teﬁishow that the jpayment of amountvveeis _ Rice Mills.

Ex.P14 is an assessment Rice Mills of the year 1989' 30th June 1980.

Ex.P14(a] is fgaiect tcfrsimw that an amount of Rs.36,88':ft45 e§{é14(c) is paid tn Gurudev Poultry admittedly relates 3:0 21 year commencing 'E?' s 1979 to 3031 June 1980. The Vﬁumhasie irfthe-._s11it property is cm 29.6.1939, i.e., prior 'é.e~e.e3:S1r2E:en:t"_:year of 1979430.. In the cmss~examinaﬁon, ' that as per Ex.P}3, he retired from «.._'G-urunaﬁigtﬁice Mills in 1975 and whatever proﬁt and loss was t<':'r_.his share was transferred to the account of hits Wife. He .___'"a51st:§;admits that, his share is about Rs. 32,600] ~.

32. Learned Senior Counsel for the plaint;i:ﬁ:' had further Ieiied on the hypothecatrion of the lorry belonging to Gurllnatha rgﬁﬁ %"\ -33- Rice Mills as $63' Ex.F1SO in order to show mat the sale consideration was arra11g€:d_by hypothecatjng the said lorry to M] s.Kt:sariah Finance Ccznxporaﬁon for Rs.40,0GG/-. As against this, the defezudant had relied on Ex.Di2, an R.c.boo1<..jo"'_:'s1;ow that the iorry was purchased in the year 1977 by. _ R.C. book stood in the name: ef the defendant .. hypothccatﬁd for a yeriod of 8 L Corporaﬁon and it is entered in the.=;_ RC.' -mes; " , ciaearly Show that the plajntiﬂ' Wa§'§t't':;}':5i, _onl§ 'w§§3'vi30t':;partner of the ﬁrm nor the decumtntéss' pmvtit tite payment of sale consideration at m1evaﬁt_Vp£'§§:t$fbV Guzcunaﬁla Rice Mili. He also tr: an amount was g€ﬂ€T3t€dV:"'b}"' RHGWCVCI, fmm Ex.D2, it is clear that the Eon-if was' the name of defendant No.2 and __. shows, nit Iﬁrpothecatcd by him.

' .. the above. the partnership deed Ex.P2 each partner has got distinct share. F"irs'{ V «gt has got 30% share, defendant No.2 has got 25% of the plainﬁﬁ has got 20°/o share and another _ Qﬁfiﬁérthas got 25% shape. when the: partners have gtzat diﬁemnt Vt tiistiﬁlct share in the yartnarship business, it cannot be held that, D» [it was joint faxnily business and the acquisition of pmperty by the saiai ﬁmil is acguisition by the joint family. if it is joiﬁt family

-34.

bueiziess, the share should have been equal whereas, the shame shown in the deed does not support the case of the plainﬁﬂ". Piaintiﬁ has failed te pmve that, M] sﬂurunatizia Rice Miﬁie joint family business 3302' he is a partner of the same.

34. Further, the acquisition of property as [)2 clearly shows that, the consigiefation is by V' 9 M} sﬁuninatha Rice Miiis, in turn, lorry was hypotheeated an 2015» a}iia.e 1'97'9_' the V L' suit schedule property is j{ai3.rehaiserVi:A"'o_n"':?.,F,3J'*' 19:79, which supports the case of the of the plaintiff that the consideraiiczxi is p'9;id-- iiiiyv 2 iéice Mills is not as per Ex.P14, which is admittedlyefof the

-As re'§a1~e?.$"te tize iedmission of the defendant No.2 in :i'ii_d';:'3.er§:s-; i.3«4f19"8€§, tixgiigh the defendant No.2 ﬂied the said suit the suit schedule propeziy as joint famiiy the suit came to be withdxawn. In this regarti.

-. Coiizisei for defendant No.2 has relied 013.. E: decision of reported in 11,12 1992 Ker 2905 in the matter of ./._"}§.Di§,IP KUMAii' --vs~ s.RAMU inieralia, submitﬁng that, em isleatiiiigs am not admissible in evidence as conclusive proof. He also relied on a decision 01' the Apex Court reported in AIR 1974 f% "J '.

.25.

SC 4?} and in support of the same, be 3.130 relied on the evidence of DW-1. DW--1 in his evidence has expiajned the cixeumsiaqees under which the suit was ﬁled interaﬁa, alleging advised to ﬁle a suit as the piajntiff wanted 1 _ 1:0 him and he had teld the}: it is not péééﬁle fvtd'._:e-giei_7e§*_f.?Q,e"Vé;:a1é deed in his favour as he was not an agﬁeultuzietv é:am:§'"'§:v1e1e'--.V i31aim:iﬁ's Aﬁvcxrate had advised' ﬁle" 3._Vsu.eif= get it compromised .

36. It is settled law am not conclusive pmﬁﬁsg on an earlier occasio;1....:v§§i§§.V. of mjunction has ebserved the admission. alleged to have beeI1 ":;:1ade ﬁefeixdant No.2 in the plaint in ().S.No.134/ 19é'8,,_ 1:;..¢a1in.o£"be said that the plaintiffs case j§1*<i~1':'ed;~. '1'}:1e é3;!;tV1 admission by itself will not be a the defendant will be at libeny to show, ' under 1p§fV11atvr:ii*(:;v"2.;_::&1sta11ces he has made it and even to Show that was The Apex Court in a decision} xeported in AIR 39'?-4 3:14?' the matter of BISWANATH PRASAD AND OTHERS --vs- PRASAD AN D GTHERS has obsewed:

'There is ca cardinal disiindion. between a party who is the author of a prior statement and a witness who is examined and as saught to be discredited by use of his prior staiement. In the fonner case an adrnissien by a pang is substantive evidence if it ﬁxyilb the -35- requirements cf 32}; in the latter case at prior siaiemeni is used to discredit ihe ctredibiliiy of the wiiness and does not bemme substantive evidence. In the former there is rm necessary requirement of the siaterrtcinii containing the admission having to be put is the bemuse it is evidence pmprio vigore; in the latter. gage V "

the Court cannot be invited I0 disbelieve a w_iii:.es$ the strength of a prior mntraciiciory statement "uniess it has' been put to him, as required by Section _-I 45".'''--. . 4'

37. In the light ef the decision statement by iisezlf is not a conciiﬁﬁizzg thgixgh':..;it' be* i cvidtzncc. However, defendant 'i333 in his evidence, as to under what was ﬁled anti it is also clear the j'(§ii1'E"".:'».t'r;1i'.y'i,."Vf't}§it':'11t ﬁled by the piaintiﬁ' and cief.c:11§Iai.;ar;i:i;{i that the suit property of defendant No.2. in View 0f these "it'"c:annot be held that the case 0f the p1ai;m:1fLs:5i:dig 'pi$3vé£i.&'}t;1dmitted1y, the said suit did not and in the judgment of this Cfmﬂf 200? KAR 2394 in the matter of i »,1<.s.V1«:r_¢'i<AT;¥:Si¥:i_ '-i-vs- N.G.LAKS§-iMINARAYAN"A AND OTHERS «xiyiilcreixa ﬂ13'.$AC011I'§L has held that:

"ii" "an admissiorr, is in writing and if an opposite pars}; "._w:12iis to» make use of that statement as an admzssiarz, ihen the whole statement containing the admissgian must 'V ----be taken iogeiher to ascertain what the party has conceded againsr hinzseyf Unless the whole is received the true meaning cf the part which is evidence against him cannot be ascertaineci An admission aontaimad in a pleading is :1 piece of substantive evidence, which can g "in, #1 ._~' -37- be aczied upon even witheuz putting it to the maker of auch statement. . . .' In this case, the defendant No.2 has expiaincd the:

under which he had ﬁled the said suii, apart"

plaintiﬁ, who was defendant in the éuitf '(ha suit schedule pmpcrty Was' 1 nu defendant No.2. Nothing has 1acV:e"11:§1icitec.i by thé' cross--exami11aticm of DWV.,«;;.,.V. ggteﬁisiqn 'of 'the (301114; mported in AIR 195*? so QASANT SiNGI~i .. v$- JANK; s;N<_}H--i ;sz;_ 'Apex Court has observed: " ' I A ' 'Adn'¢iwi§:z_v'..»be §$:éAcZ' ¢..§_m§idenoe against him in other su1"£:.-i, _Sizch,a.:1nti$sio:; oamwi, however, be regarded asL~:;f?zcIu$ii9eT and the pcmy can Shaw it as not _._'{'he {}«i§§;if;iOn this Court in a case Itpoﬁrzci in KCCR = 1éi9}9{ .i;;;*--..1;he matter of SMT.SI~£AK¥;INTALA BAE --~vs- SR§ 1\éA_LL§1§s:A'R;i:;i§;éiéPA JEVARGI has alsa helé that '"*"Adm1s$ior2s made in other procaeedings though reievarti woufd no! he conciusive and it can be shown that ﬂue n VTL_ad25n1'ssion made :3 incorrect or based an _ "misundersianciing and acimission macie in a. previous giroceeding is not oondusizxe proczf tfwugh it may be reievant."

uhese decisions dearly Show that, the admjsﬁion made by the defendant No.2, that itsclf is not a ccnclusive gsroof. £11 case of joint family DI'O3)CI'1Z3I. in thfi absence of evidence to Show the joint 1 .23.

living and combined cultivation, acquisition by joint income, claiming the acquired property as joint family properly eamlot be aecepteé, solely because it is acquired by the Manager of the fasrsily at relevant ooint of time. In the decision of Ieported in 1995 Ame 861 in the matter of RAMAPPg§"EJ§;':f§;g§l5i?%~~. _ PALLED AND OTHERS --vs- SMTBASAVA Cotut has held that, the pmperty shorer. no presumption would srisees 3'oV:i;*1_tl *' is also supported by another 1991 V PATNA 145 in the matter 'ieAs;§ii'i§A?:€1;;V,"'f::xazARik' 5:, omess «- vs~ RAMAKANT' TIWARY AND o-*i¥Hi:'1-2s:"

38. tfia;'3--..«;o13i*t'i;xeiVs founé. that, the plow' ﬁff on one haiidé §:leadsVli;ll};iatV schedule properties are joint family pzopert};;'--oﬁ'vthe in the plaint as well as in the

1..-e:ridenqe;'.:.he_lA siivegestt 't§1s._t_.__lﬁrst defendant invested the money in the ' Vsee.oﬁd__ ciefeneiant out of the income derived from V whereas, the piaintiﬂ" in evidence alleges that, "3; purchased by the second defendant on the V of tlie plamtﬁﬁ himself as per EXPIS7 whereas, the ease " ﬁisinﬁﬂis that, Rs.2S,Of}O/~ is paid by the defendant No.1. T e$§<;'P'l57 is not proved. {Defendant No. 1 at parsfia of his written llhxhlstatement has stated that he paid Rs.25,0{}0f~ out of sale proceeds of sale of site No.5, Rajajinagar. Even the p3.aintiff at -39- pazraré 0f his piaint has stated that the ﬁrst defendant mvestsd the money. Timre is no pleading mat the p1aix1tiﬁ' paid consideration. Ex.P157 is neither supported by M evidence. Though defendaxzt. No.1 has ﬂied tha - supporting the case 9f the p1aintiﬁ' haézg box to prove that Rs,25,CK)O/- of s:a;1;ti".A_ sits No.5, Rajajinagar, no documéiitégarﬁ V court on appreciaiion of ..21as that the suit schedtﬂe proparties are not-j9i1i t

39. Though {he documents, such as Exfgi 1988, EXSP14. P63 ---

the writte1i__ ;:?:1e(1%4.%§;§3g;...x{1;Me _'dV:¥:'fendant Nos.1 and 2 and Ex.P'?4 - by the second defendant in O.S.Na.3f2i"%7_[ }.9u9{).,VAAh<:$5ve\$ér,«..'fht3se dcxruments do not establiah :' 'T;h§é"t:xif;'t»§n{¥e of joint or the acquisition of suit schedule the joint family fund. A suit ﬁled by the é.s.No.3o72/ 1991 is dismissed for default and E3332? is the agreement 0:" sale is in the name of No.2 azxd thereafter, under an ageement by the .___':V1'éfei:;dant No.2. 1 acre was agreed to be sold as per Ex.P156, 'thevﬁe documents estabiish that, the defendant No.2 not only purchased the suit schedule property, but also exercised his right over the same as absolute owner.

.30.

40. From the evtietience led by the partiee, it is clear tlzat the plaintiff was not a partner of M] s.Gu:runatha Rice Millst'.:.ik.*l3.en this property was acquimd. Plaintiff has admitted schedule property was acquired from out of K Gurunatha Rice Mills. The plainﬁﬁ M/s.(}urui1atha Rice Mill is a joint also not prevoﬂ his case that the 'acﬁtiisition of the' name of defendant No.2 is ﬁeee iitiiiclette. In the absence of evidence of the the plaintiff does not get share inf. u eiie of the family members in his " l3i; of of3'oi;tit family and joint famﬁy 1:~*u1:{i",:'fs;;t;it be held as joint. family pmpertiesLV--._lf'tl1e not joint family properties, the suit fer and the trial court on of evidence has rightly come to the if ' the learned Senior Counsel for the plaintiff ielied oi: severe] tiecisions, however, on facts it is fotmd that, the being a partner of M] s.Gm'unatha Rice Mill and also having failed to prove the joint family nucleus to V ilgiiitehase the suit eehedule property and further, the property admittedly being purchased by the defendant No.2, i do not find that, the decisions relied by the leained Senior Counsel for the plaiaﬁﬁ are of any assistance. The trial court on appreciation of the entire evidence with well-founded reasms has held that, suit schedule properties are self»-acquired pmpertim of 3 defendant '

42. In the light of the above d1sac' _nssio§:§;'..1 &o V' merit in the appeal to interfere w1th' the S the tr':a1court.

Acmraingxy, the appeal ~ 
 %%%%    S&/3'

Judg3'

KNM} V-.

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