Karnataka High Court
Kristnappa S/O. Rangappa Goudanavar @ ... vs Shankar S/O. Rangappa Goudanavar on 2 July, 2024
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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NC: 2024:KHC-D:14676
RFA No. 4107 of 2013
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
REGULAR FIRST APPEAL NO. 4107 OF 2013 (PAR)
BETWEEN:
1. KRISTNAPPA
S/O. RANGAPPA GOUDANAVAR @ PATIL
AGED ABOUT 43 YEARS,
OCC: AGRICULTURE AND BUSINESS
R/O. SORAGAON, TQ: MUDHOL,
NOW R/AT: BASAVANAGAR,
MUDHOL, DIST: BAGALKOT.
2. SMT. SUREKHA
W/O. KRISHNAPPA GOUDANAVAR @ PATIL
AGED ABOUT 37 YEARS,
OCC: HOUSEHOLD WORK,
R/O. SORAGAON, TQ: MUDHOL,
NOW R/AT: BASAVANAGAR,
MUDHOL, DIST: BAGALKOT
Digitally signed by B ...APPELLANTS
K
MAHENDRAKUMAR (BY SRI. GIRISH A YADAWAD, ADVOCATE FOR A1)
Location: HIGH
COURT OF
KARNATAKA
AND:
1. SHANKAR S/O. RANGAPPA GOUDANAVAR
AGED ABOUT 38 YEARS,
OCC: AGRICULTURE
R/O. SORAGAON, TQ: MUDHOL,
DIST: BAGALKOT
SINCE DEAD REP. BY LRS
1(A) SMT. SUMA W/O SHANKAR GOUDANAVAR
AGED ABOUT 35, OCC: HOUSEWIFE,
R/O SORAGAON
TQ:MUDHOL, DIS:BAGALKOT.
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NC: 2024:KHC-D:14676
RFA No. 4107 of 2013
1(B) PARVATI D/O SHANKAR GOUDANAVAR
AGED ABOUT 13 YEARS, OCC STUDENT
R/O SORAGAON
TQ MUDHOL, DIST BAGALKOT.
1(C) SANJANA D/O SHANKAR GOUDANAVAR
AGED ABOUT 11 YEARS, OCC STUDENT
R/O SORAGAON
TQ MUDHOL, DIST BAGALKOT.
(SINCE NO. 2 & 3 ARE MONRS, THEY ARE REP. BY NEXT
FRIEDN AND NATURAL GUARDIAN MOTHER SMT. SUMA
SHANKAR GOUDANAVAR)
(AMENDMENT C/O AS PER COURT ORDER DT.10.3.2014)
2. HANUMANT S/O. RANGAPPA GOUDANAVAR @ PATIL
AGED ABOUT 45 YEARS,
OCC: AGRICULTURE
R/O. SORAGAON,
NOW R/AT: MUDHOL, NEAR TRIVENI TOWERS
YADWAD ROAD, MUDHOL, DIST: BAGALKOT
3. RENUKA W/O. RANGAPPA DANDENNAVAR
AGED ABOUT 41 YEARS,
OCC: HOUSEHOLD WORK,
R/O. KAGALAGOMB, TQ: BADAMI,
DIST: BAGALKOT
4. BASAPPA S/O BHIMAPPA
GUDI, AGED ABOUT 38 YEARS
OCC: AGRICULTURE, R/O KULALI
TAL: MUDHOL, DIST. BAGALKOTE-587 113.
(R4 AMENDED V/O DT.01.06.2023)
...RESPONDENTS
(BY SRI. RAVI S BALIKAI, ADVOCATE FOR R2 & PROP. R4;
SRI. RAHUL. S KUNTOJI, ADVOCATE FOR R3;
SRI. MRUTYUNJAY TATA BANGI, ADVOCATE FOR R1(A);
R1(B&C) ARE MONORS REPRESENTED BY R1(A))
THIS RFA IS FILED UNDER SEC. 96 OF CPC, AGAINST
THE JUDGMENT AND DECREE DTD:19.03.2013 PASSED IN
O.S.NO.15/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE,
MUDHOL, PARTLY DECREEING THE SUIT FILED FOR
PARTITION AND SEPARATE POSSESSION.
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NC: 2024:KHC-D:14676
RFA No. 4107 of 2013
THIS APPEAL, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
ORAL JUDGMENT
Defendants Nos. 3 and 4 are currently in appeal challenging the judgment and decree of the Trial Court in O.S. No. 15/2009, dated 19.03.2013. The appeal was filed on 13.06.2013. The Trial Court had granted the respondent-plaintiff a 1/4th share in the suit schedule A and B properties, thereby effecting partition by metes and bounds. The brief facts of the case, as stated in the plaint, are as follows:
2. Defendant No. 1 is the deceased father of the plaintiff and defendants Nos. 2, 3, and 5. Defendant No. 4 is the wife of defendant No. 3. The plaintiff and defendants Nos. 1 to 4 are members of an undivided joint Hindu family, and no partition has taken place within the joint family.
3. The family, consisting of the plaintiff and defendants Nos. 1 to 4, owns the suit lands as described in suit schedule A and B properties. The plaintiff contends that no partition has ever occurred within the joint family. Some properties listed in schedule A and B were purchased in the names of different individuals, but these acquisitions were allegedly made using the joint family nucleus, while the remaining properties are ancestral properties of the joint family. Defendant Nos. 2 and 3 allegedly took advantage of Defendant No. 1's old age and began purchasing properties in their names using joint family funds. Defendant No. 3 is alleged to -4- NC: 2024:KHC-D:14676 RFA No. 4107 of 2013 have purchased land bearing Sy. No. 66/1A in his wife's name (d No. 4) and land bearing Sy. Nos. 66/1B and 67/1B of Hebbal Village in his own name, all using joint family funds in collusion with defendant No. 1. Defendant No. 2 is alleged to have purchased plot No. 8 from NARS No. 530 in Mudhol using joint family funds.
Similarly, defendant No. 1 is said to have purchased a house situated on plot No. 92 from NARS No. 542 using joint family funds. Defendant Nos. 1 to 3 are also accused of misusing the joint family funds to purchase these properties in their own names, taking undue advantage of the plaintiff's illiteracy.
4. Defendant No. 2, while serving in the military, was granted land bearing Sy. No. 50/1B (suit schedule A(7) property) by the government on behalf of the joint family. When the plaintiff's request for partition was not acceded to by the defendants, the plaintiff filed the present suit. Defendant No. 2 also filed a counterclaim seeking a declaration that he is the absolute owner of suit schedule A(7) property, arguing that this property was granted exclusively to him by the government in recognition of his military service.
5. Defendant No. 2, in his written statement, admitted that suit schedule Nos. A(1 to 6) and A(8 to 11), and suit schedule Nos. B(1 to 3), are joint family properties. However, he asserted that suit schedule A(7) is his self-acquired property, granted to him exclusively by the government for his military service. Defendants Nos. 3 and 4, in their common written statement, contended that a partition had already taken place in 2005, as reflected in Ex. D11.
-5-NC: 2024:KHC-D:14676 RFA No. 4107 of 2013 They further contended that suit schedule A(8) and (9) properties were purchased exclusively in the name of defendant No. 3, and are his absolute properties. Similarly, suit schedule A(11) was purchased by defendant No. 4 and is her absolute property.
6. After reviewing the pleadings, the Trial Court below had framed the following issues:
1. Whether the plaintiff proves that the suit schedule properties are ancestral and joint family properties of the plaintiff and defendants Nos. 1 to 4, and whether schedule A and B properties were purchased in the names of different persons out of the joint family nucleus?
2. Whether the plaintiff further proves that he is in joint possession of the same?
3. Whether defendants Nos. 3 and 4 prove that a partition was effected in the joint family as contended in paragraph No. 12 of their written statement?
4. Whether defendant No. 3 proves that out of his self-earnings, he purchased the suit land shown in paragraph No. 14 of his written statement?
5. Whether defendant No. 4 proves that R.S. No. 66/1A is her self-acquired property?
6. Whether defendant No. 2 proves that R.S. No. 50/1B was granted to him exclusively by the government for his military service?
7. Whether the plaintiff is entitled to the relief of partition and separate possession as prayed for?-6-
NC: 2024:KHC-D:14676 RFA No. 4107 of 2013 Additional Issues
8. Whether defendant No. 2 proves that he is the exclusive owner and possessor of the suit land bearing R.S. No. 50/1B of Kulali Village, Tq: Mudhol?
9. Whether defendant No. 2 is entitled to a 1/4th share in suit schedule A and B properties?
10. Whether defendant No. 2 is entitled to the counterclaim as claimed?
11. What order or decree should be passed?
7. The plaintiff examined himself as PW1 and produced four witnesses as PWs 2 to 5, marking documents at Exs. P1 to P20. Defendants Nos. 1 to 3 examined themselves as DWs 1 to 3 and produced three other witnesses as DWs 4 to 6, marking documents at Exs. D1 to D25. After evaluating the evidence, the Trial Court recorded a finding that the suit schedule properties, except schedule A(7) property, are joint family properties of the plaintiff and defendants Nos. 1 to 4. Consequently, the Trial Court decreed the suit, granting the plaintiff a 1/4th share in all the suit schedule properties, except land schedule A(7) property.
8. The learned counsel for defendants Nos. 3 and 4 made the following submissions:
8.1. Firstly, the plaintiff, during cross-examination, admitted the execution of the partition deed (Ex. D11). He also admitted that items Nos. 8, 9, and 11 in schedule A were purchased in the individual capacity of defendants Nos. 3 and 4, using the income -7- NC: 2024:KHC-D:14676 RFA No. 4107 of 2013 earned by defendant No. 3 from his pharmacy business, as well as from bank loans.
8.2. Secondly, since the plaintiff admitted to the partition during cross-examination, the present suit for partition is not maintainable.
In support of this contention, reliance was placed on Rabindra Pratap Sharma v. Rajesh Kumar Sharma & Ors. (AIR 2012 Patna
163), K. Panchapagesa Ayyar & Anr. v. K. Kalyanasundaram Ayyar & Ors. (AIR 1957 Madras 472), and Shiba Prasad Mukherjee v. Pradip Kumar Mukherjee & Anr. (AIR 1991 Calcutta 149).
8.3. Thirdly, the plaintiff, as well as defendants Nos. 2 and 3, categorically admitted in their cross-examinations that there was a partition effected among the family members in 2005, as evidenced by Ex. D11. Therefore, the present suit for partition is not maintainable.
9. Per contra, learned counsel for the Respondents submitted that, even if it is accepted that the partition deed was executed, it was never acted upon, as evidenced by the revenue records, which continued to reflect joint ownership of the properties in the names of the plaintiff and defendants Nos. 1 to 4. They also argued that defendant No. 3 had filed a suit (O.S. No. 55/2007) for a permanent injunction against a third party, in which he claimed ownership of the suit property, despite the partition deed allotting this property to another family member.
-8-NC: 2024:KHC-D:14676 RFA No. 4107 of 2013 Additionally, the counsel for the respondents further contended, since there were no pleadings regarding the loans allegedly taken to purchase suit schedule A(8, 9, and 11), the contention of defendants Nos. 3 and 4 that these properties were purchased using loan funds is untenable.
10. After considering the submissions made by the learned counsels and reviewing the Trial Court records, the issues that arise for consideration are as follows:
10.1. Whether the appellants (defendants Nos. 3 and 4) have proven that a partition occurred in the joint family in 2005?
10.2. Whether defendants Nos. 3 and 4 have proven that suit schedule items Nos. 8 (66/1B), 9 (67/1B), and 11 (66/1A) are their self-acquired properties?
11. For convenience and to avoid repetition, all the issues will be addressed together.
12. Before addressing the merits of the case, it is necessary to identify certain suit schedule properties that, while not standing in the name of the deceased propositus, are alleged to be partible. The identification of these properties is significant for the resolution of this appeal.-9-
NC: 2024:KHC-D:14676 RFA No. 4107 of 2013 Schedule A Properties Sr. No. 1 to 6 - lands standing in the name of deceased propositus, and undisputedly constituting a coparcenary estate.
Sr. No. 7 - 50/1B - property standing in the name of defendant No.2, in pursuance of a government grant for service rendered by the defendant No. 2 in the Army .
Sr. No. 8, - 66/1B - standing in the name of defendant No. 3.
Sr. No. 9 - 67/1B - standing in the name of defendant No. 3 Sr.No.10 - 16/1D - standing in the name of defendant No. 3, but the partition deed as produced by defendant No. 3 records the allotment of the said property in favour defendant No. 2 Sr.No.11 - 66/1A - standing in the name of -
defendant No. 4, i.e., wife of defendant No. 3.
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NC: 2024:KHC-D:14676 RFA No. 4107 of 2013 Schedule B Properties Sr. No. 1- House bearing VPC No. 193 situate at village Soragaon, Mudhol taluk, standing in the name of defendant No.1.
Sr. No. 2 - Plot No. 8, NARS No. 530, measuring 40'x72' = 2880 sq.ft., situate at Mudhol; the said Plot, standing in the name of defendant No. 2.
- Shop situate on the southern part and middle portion of the above plot, measuring 11'x15' = 165 sq.feet, has fallen to the share of the respondent-plaintiff.
- Shop situate on the southern part and eastern portion of the above plot, measuring 15'x'15' = 225 sq.ft, has fallen to the share of the respondent-defendant No. 2.
- Medical shop viz. Shri Ram Medical and General Store, purportedly established in 1995 by the defendant No. 3, is situated on the southern part and western side of the above plot, measuring 11'x15' = 165 sq.ft.
Sr. No. 3 - House bearing N.A.R.S No. 542, out of it, plot No. 92, measuring 40'x25', situate at Mudhol.
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NC: 2024:KHC-D:14676 RFA No. 4107 of 2013
13. The appellant-defendants' case revolves around Ex. D.11, an unregistered and purportedly ineffective Deed of Partition dated 16.06.2005 (hereinafter referred to as "the said Deed"), which allegedly distributed the joint family properties among the coparceners. However, the respondent-plaintiff, having reneged from the said Deed, instituted a suit for partition. Respondent- Defendant No. 2 also filed a counterclaim concerning undisputed coparcenary properties and certain other acquisitions made in favor of the appellant-defendants [coparcener (defendant No. 3) and his wife (defendant No. 4)]. The Trial Court disbelieved the said Deed, partly decreed the suit, and granted the respondent-plaintiff and respondent-defendant No. 2 each a 1/4th share in all suit schedule properties. Additionally, the Trial Court conclusively held that suit schedule property A(7) was exclusively granted to respondent- defendant No. 2 by the government for his service in the Army. Aggrieved by this decision, defendants No. 3 and 4 have filed this appeal.
14. To support the presumption that all properties, excluding suit schedule property A(7), are in fact joint family properties, both the respondent-plaintiff and respondent-defendant No. 2 have consistently denied signing the said Deed. The appellants, in their memorandum of appeal, contend that they not only cultivated the coparcenary lands alongside the deceased propositus and the respondents, but also independently operated a pharmaceutical business since 1995. Further, they assert that, coupled with the stridhan of defendant No. 4, they possessed sufficient means to acquire suit schedule properties A(8), A(9), and A(11), which stand
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NC: 2024:KHC-D:14676 RFA No. 4107 of 2013 in the names of defendants No. 3 and 4, respectively. The appellants argue that the remainder of the properties are the only partible coparcenary estates, which have already been apportioned among the coparceners in accordance with the said Deed.
15. Regarding suit schedule property A(10), the said Deed of 2005 allotted this property to respondent-defendant No. 2. However, the Trial Court noted that in a separate suit filed by defendant No. 3 against a third party in 2007, defendant No. 3 claimed ownership of the said property. The Trial Court rejected the defense of defendant No. 3, who argued that the 2007 suit was filed on behalf of defendant No. 2, as this claim was not reflected in the pleadings.
16. As to suit schedule properties A(8), A(9), and A(11), the appellants argue that a medical shop, "Shri Ram Medical and General Store," located at Shivaji Circle, Mudhol, was established by defendant No. 3 in 1995 through independent earnings, crop loan borrowings, and stridhan. It is well established that the burden of proof regarding the nature of the property rests upon the party asserting it to be joint and partible.
17. The Supreme Court in D.S. Lakshmaiah & Ors. v. L. Balasubramanyam & Ors. (2003) 10 SCC 310 observed that there is no presumption in law that a property is joint family property merely due to the existence of a joint Hindu family. The burden of proof lies with the party asserting the property to be joint. However, if sufficient ancestral or coparcenary nucleus is demonstrated to have enabled the acquisition of the property, the
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NC: 2024:KHC-D:14676 RFA No. 4107 of 2013 presumption of it being joint arises, shifting the burden to the party asserting it to be self-acquired to prove that it was purchased with independent funds.
18. The Trial Court found that the scheduled agricultural lands were irrigated and used for growing crops such as sugarcane, leading to the inference that a sufficient joint family nucleus existed, enabling the acquisition of new properties. However, the evidence produced by defendants No. 3 and 4-- primarily, certificates and receipts from the bank--was deemed insufficient to conclusively prove that suit schedule properties A(8) and A(9) were purchased with borrowings. The exhibits did not specify the survey numbers of the lands against which the crop loans were obtained or the crops intended to be cultivated. Additionally, defendant No. 3 claimed that suit schedule properties A(8) and A(9) were purchased from the earnings of the medical shop established in 1995. However, the evidence submitted in support of this claim pertained to certificates issued by the Pharmacy Council of Karnataka, which were irrelevant to establishing the origin of the funds for the shop.
19. It is noteworthy to observe that the medical shop established in 1995 is located on the southern-part and western- side of suit schedule property B(2). In fact, the 2005 Deed also allocated the middle portion of the southern part of the shop, located on suit schedule property B(2), to the respondent-plaintiff. Both portions of the shop are part of a single plot, measuring 40 x 72 sq.ft., which stands in the name of respondent-defendant No. 2.
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NC: 2024:KHC-D:14676 RFA No. 4107 of 2013 Furthermore, the two portions of the shop do not have separate Khata or property identification numbers distinct from suit schedule property B(2).
20. The Hon'ble Supreme Court, in the case of V.D. Dhanwatey v. CIT, AIR 1968 SC 683, observed as follows:
"4. The general doctrine of Hindu law is that property acquired by a karta or coparcener with the aid or assistance of joint family assets is impressed with the character of joint family property. To put it differently, it is an essential feature of self-acquired property that it should have been acquired without assistance or aid from the joint family property. The test of self-acquisition by the karta or coparcener is that it should be made without detriment to the ancestral estate. Therefore, before an acquisition can be claimed as separate property, it must be shown that it was made without any aid or assistance from the ancestral or joint family property."
21. Thus, it is clear that appellant-defendant No. 3 commenced the operation of his pharmacy shop with the aid and assistance of joint family properties. Any acquisitions made by defendant No. 3 from the earnings of the pharmacy cannot be considered his exclusive possessions. Furthermore, it has been observed that defendant No. 3 was in charge of family affairs, and
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NC: 2024:KHC-D:14676 RFA No. 4107 of 2013 therefore, any properties acquired by him were in his fiduciary capacity as the 'karta' of the joint family.
22. Additionally, at the time of instituting the suit, approximately four years had passed since the execution of the said Deed. However, two portions of a single shop were still being used by more than one coparcener, without separate property identification numbers for the two portions. These portions were situated on a plot in the name of respondent-defendant No. 2, which further indicates that no partition had been effected in the family.
23. Thus, what existed was merely a family arrangement incidental to any joint family in possession of multiple joint properties, arrived at solely for the harmonious individual enjoyment of the joint properties by the coparceners.
24. Regarding suit schedule A(11) property, standing in the name of appellant-defendant No. 4 (the wife of coparcener appellant-defendant No. 3), the defendants contend that the property was purchased out of the stridhan amount received by defendant No. 3 in his bank account. The defendants draw the attention of this Court to the decision of the High Court of Patna in Rabindra Pratap Sharma v. Rajesh Kumar Sharma, AIR 2012 Patna 163, where the Court opined that even if a property is purchased by the joint family in the name of the wife of a coparcener, it would be presumed in law that such purchase was for the benefit of the wife, who is a stranger to the coparcenary estate. The Court further noted that proof of a sufficient joint family
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NC: 2024:KHC-D:14676 RFA No. 4107 of 2013 nucleus does not automatically imply that the purchase was made out of joint family property, thereby making the acquisition the woman's property.
25. A careful reading of the judgment indicates that the Court has opined that when natural succession was challenged by a defendant-coparcener on the grounds that the deceased propositus was, in fact, the 'benamidar' of part of the joint family property, which was actually self-acquired by the defendant, the burden of proof fell on the person claiming to be the real owner to provide strict proof of the passing of consideration.
26. Thus, when the defendant-coparcener, who was a government servant at the time of the purchase, failed to produce any documentary evidence regarding income, expenditure, and savings, and there was no legal prohibition on the purchase, the Court held that mere mutation of records, coupled with the plaintiff's plea of possession and management of the alleged 'benami' estate, was not enough to establish real ownership.
27. However, when the wife of a coparcener (who has no interest in the joint family property) is alleged to be the 'benamidar' of joint family property, it is the responsibility of the joint family to prove the 'benami' nature of the purchase and to dispel the presumption that the property was purchased for the benefit of the wife. The High Court also noted that merely pleading that there existed a sufficient income in the joint family nucleus, without detailing the joint family income and savings, or seeking a declaration that the property standing in the name of the wife is part
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NC: 2024:KHC-D:14676 RFA No. 4107 of 2013 of the coparcenary estate, will not defeat the wife's ownership of the suit property, especially when she had provided cogent evidence of inheritance, gift, or 'stridhan' as means of acquisition.
28. The above case law, however, is distinguishable on facts and inapplicable to the instant case. Defendant No. 4 stated that the suit schedule A(11) property was purchased with stridhan money deposited in her husband's account. However, in her cross- examination (DW 6), she admitted that her parents never deposited any money in her name. Additionally, defendant No. 3, in his cross- examination (DW 3), stated that there was no stridhan in his wife's name. There is no documentary evidence corroborating the claim that INR 6,00,000/- was given by defendant No. 4's parents and deposited in defendant No. 3's account. The only support is a bare statement from defendant No. 4's brother, who claimed that their deceased father had made the payment. No other evidence was presented to establish a connection between any patrimonial funds from defendant No. 4 and the acquisition of the suit schedule A(11) property.
29. Therefore, where properties were purchased in the name of defendant No. 4 or her husband, it is presumed that the acquisitions were made from the joint family nucleus, particularly in the presence of sufficient joint family income and the absence of evidence showing contributions from defendant No. 4 or her patrimonial means. Furthermore, the respondents have made specific pleadings that suit schedule A(11) property is part of the
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NC: 2024:KHC-D:14676 RFA No. 4107 of 2013 partible joint family property, and have sought declaration and partition of the same.
30. Moreover, it is relevant to note that defendant No. 4 pleaded ignorance in her cross-examination regarding the execution of the purported Deed between her husband (defendant No. 3) and the respondents.
31. In K. Panchapagesa Ayyar & Anr. v. K. Kalyanasundaram Ayyar & Ors., AIR 1957 Mad 472, the Madras High Court held that an arbitrator presiding over a general family partition merely suggests the best way of allotting shares. Once partition is effected and the parties take possession of their respective shares, the partition can only be reopened in cases of fraud, mistake, or subsequent discovery of family property. The allotments in favour of the coparceners would not be invalidated by revocation of the reference to the arbitrator.
32. Furthermore, the High Court clarified that partition cannot be reopened on the grounds that the partition lists allotting properties are inadmissible in evidence or that no evidence of partition can be given due to the revocation of the reference to the arbitrator.
33. In the instant case, the Trial Court disbelieved the Deed, noting that respondent-plaintiff and respondent-defendant No. 2, purported signatories to the Deed, had refused to acknowledge its validity. Additionally, DW 2, the attesting witness to the unregistered Deed, stated in his cross-examination that he did not recall any partition in the family. Defendant No. 4 (the wife
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NC: 2024:KHC-D:14676 RFA No. 4107 of 2013 of coparcener-defendant No. 3) also pleaded ignorance of the Deed.
34. In Shiba Prasad Mukherjee v. Pradip Kumar Mukherjee, AIR 1991 Cal 149, the Division Bench of the Calcutta High Court held that when a partition is effected, it is immaterial whether the allottee-coparceners are in possession of their allotted shares. They can always take possession by evicting any coparceners who remain in possession after partition, as they cease to have any right, interest, or title therein.
35. This case is distinguishable on facts from the present case, where the respondent-plaintiff and respondent-defendant No. 2 have specifically denied being signatories to the Deed and have contested the existence of any partition.
36. Furthermore, a careful review of the joint written statement and evidence on record reveals that the appellant- defendants have made vague and inexact pleadings. Their written statement does not provide specific details of the purchase price paid toward the acquisition of suit schedule A(8, 9, 10, and 11) properties, nor does it delineate the extent of borrowings, self- earnings, or stridhan from defendant No. 4. No evidence was presented regarding the lands against which crop loans were taken or their repayment.
37. Rule 2 of Order VIII of the Civil Procedure Code, 1908, mandates that defendants must specifically plead new facts to show that a suit is not maintainable. Rules 3 and 4 stipulate that denials must be specific and must address the point of substance,
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NC: 2024:KHC-D:14676 RFA No. 4107 of 2013 while written statements must provide necessary particulars of any circumstances or transactions upon which relief is claimed.
38. In the case of Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira (2012) 5 SCC 370, the Hon'ble Supreme Court has emphasised that courts must carefully examine pleadings and documents before framing issues in civil suits. If the pleadings lack sufficient detail, they will not raise an issue, and the court may reject the claim or pass a decree on admission. Vague pleadings do not raise issues.
39. Furthermore, in Union of India v. Ibrahim Uddin (2012) 8 SCC 148, the Supreme Court held that relief not founded on the pleadings cannot be granted.
40. The principles in these cases emphasise that courts cannot suo motu frame an issue not defined in the pleadings. Procedural fairness requires that judgments arise from the pleadings of the parties.
41. In conclusion, the contentions of the appellant- defendants cannot be sustained for the reasons recorded below:
i. The unregistered and disputed Deed of Partition, purportedly executed in June 2005, was admittedly not acted upon and had not been brought to light until its production in the Trial Court.
ii. The said Deed was not submitted to the revenue authorities, and the record of rights for certain properties of the coparcenary estate remained in the name of the
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NC: 2024:KHC-D:14676 RFA No. 4107 of 2013 deceased propositus as of the date of the institution of the suit, i.e., 03.06.2009.
iii. Respondent-defendant No. 2, along with the plaintiff, has refused to acknowledge the said Deed, despite being a purported signatory to it. Furthermore, the attesting witness to the Deed categorically stated in his cross- examination that he did not recall any incident of partition within the family of coparceners.
iv. Contrary to the contentions of appellant-defendant No. 3, who claimed that Schedule A(10) property was allotted to respondent-defendant No. 2 via the 2005 Deed, defendant No. 3 had alleged in a separate suit for permanent injunction, instituted against a stranger in 2007, that he was the sole owner of the said property. A perusal of the plaint in that suit does not disclose any plea suggesting that it was filed in a representative capacity.
v. The coparcenary estate includes irrigated lands that generate sufficient income to facilitate the acquisition of other properties. New acquisitions were made from the joint family nucleus in favor of defendant No. 3, who was managing the family affairs in the fiduciary capacity of karta.
vi. No cogent or convincing evidence has been produced to support the contention that the acquisitions made in favor of the appellant-defendants were from self-acquired
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NC: 2024:KHC-D:14676 RFA No. 4107 of 2013 funds or any stridhan or other patrimonial means received from defendant No. 4.
vii. Interestingly, defendant No. 4, the wife of defendant No. 3, claims ignorance regarding the execution of the 2005 Deed, contrary to the substance of their joint written statement.
viii. It is settled law that any acquisition of property with the aid and assistance of the joint family nucleus becomes part of the partible coparcenary estate. Earnings from an individually run business, when operated from premises belonging to the coparcenary estate, are not considered separate or independent earnings.
ix. Defendants No. 3 and 4 have not provided specific averments in their joint written statement detailing the terms and timelines of borrowings, self-earnings, or stridhan used in the acquisition of properties in their names.
42. In view of the above, it can be reasonably concluded that no partition has been effected, and all suit schedule properties, except for Schedule A(7), constitute a partible coparcenary estate. Therefore, contrary to the appellants' contentions, the parties were not in possession of a partitioned estate but continued to remain jointly in possession of an undivided partible estate.
43. The findings of the learned Single Judge of the Trial Court, as recorded in the impugned order dated 19.03.2013 in O.S.
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NC: 2024:KHC-D:14676 RFA No. 4107 of 2013 No.15/2009, are logically consistent with the evidence on record and do not warrant disturbance. Accordingly, the instant appeal is dismissed.
Sd/-
(HEMANT CHANDANGOUDAR) JUDGE bkm