Karnataka High Court
Gopala Devadiga vs Smt Sabitha D/O Late Madhava Devadiga on 20 March, 2012
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
family properties, when denied, led to the o.s.3oo/07 before the Prl. J7-edgel'ip'l3e:sf.oin.),--;A Mangalore, for declaration, -.
possession of their resplectlive shares_ in 'suit ' V schedule properties being, pA(.a)lll:Sy;No.1ti--"2A_measuring 25 cents; (b) cents; and (c) Sy.No.96-2P1 measurj.ngv»h].:3 cen't,s.l 1 "
2. The _l2"__dl"'defend'ant-onappearance resisted the suit fiilingijipwriffienll's.tatemle'r1tlinteralia admitting the relatiolnshipp but denied that Smt. Laxmi Hengsu. was'._thel5'moolgeni tenant and that the occupancy rilghtconferred on Madhava Devadiga, was e not on behalf of all the members of the thv-e--:'premise of pleadings of parties, the trial court 6 issues. The plaintiffs filed a memo dt. A16/8"/'2_AGO7 to defer the decision in respect of item Nos. 3 properties since the matter of tenancy is pending before the courts below. Thereafterwards M re-appreciation of the evidence and materiall on Arecoidf 4_ the Lower Appellate Court haVir1g»..frarn.edl4ll if consideration, reversed the finding 'thell'trvi'al:
hold that suit item No.1 --'a_grjculturaJ which Madhava Devadiga had made_:an..:ap.plication:to the Land Tribunal for confennent _of_fi rights, was his self acquisition and not. fainily property and accordin_glf:l0§{ dt. 5/4/2010 allowed tlieiudgment and decree of the trivalllllvcoufrt ldlsniissedlvthe suit. Hence this second appeal fthler» This appeal, when admitted on 20/10/2010, question of law was framed:
" 'fW.hefher_}~ the Lower Appellate Court was '- A justified; in reversing the judgment and decree of ' __ the trial court without addressing the findings and the reasoning adopted by the trial court in pp p arriving at those findings namely, that the deceased Mahadeua Madiga had declared in his Form No.7 before the Land Tribunal that he was holding the subject property as ycyaman of the family and there being no dispute that tm evidence, when considered by the trial couiét, the claim of the plaintiffs that_the__suitMsfchedulelitemif No.1 property was joint family property acquisition of Madhava D:§v3_;diga:'~t_Very Lower Appellate Court this llmaterialvyevidence to jump to a conclusgioi? that nolreference in Ex.P5 that Madhava_ property on behalf of the~'brot}1ersA__org family and that the ordeirfl Ex.P6, conferred 'Ma'dl1aya Devadiga and that plaintiffs" documents to show that they were as members of the joint family, to fromnfthe findings recorded by the trial court. the certified copy of the moolgeni deed lO/7/ 1933 by Frezina Rozina Desabai in favoursfof Laxmi Hengasu granting permanent lease of the"'g_«suit schedule item No.1 immovable property being agricultural lands, which when introduced in evidefi -10- claimed to be the joint family property may have been acquired, the presumption arises that it was joirJ;.tvlfar'nily property and the burden shifts to the party . acquisition to establish affirrnatiyely that"'th:e "' if was acquired without the aid also well established tha_t"'--.yvher'e at acquisition of a particular family had sufficient nucleus --..property in the name of any should be Presumed the family funds and was---to fainily property unless the more so in the case of a kartha ofllajoinpt fanivilypossessing sufficient nucleus at aclquisifilon of the property in his name to pl 'acquired it in his name to prove that he acquired.liltlljildependent of, and without the aid of the joint family funds.
if H (C) Where there was no partition in the family, the fact that any one of the members of the family enjoyed UK