Karnataka High Court
Bhimappa S/O. Yallappa Sheregar vs Krishnavva W/O. Ganagappa Kalal, on 15 February, 2017
Author: S.Sujatha
Bench: S.Sujatha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF FEBRUARY, 2017
BEFORE
THE HON'BLE MRS.JUSTICE S.SUJATHA
R.F.A.No.3125/2011 c/w R.F.A.No.3130/2011
IN R.F.A.No.3125/2011:
BETWEEN :
1. BHIMAPPA
S/O YALLAPPA SHEREGAR
AGE: 66 YEARS, OCC: AGRICULTURE
R/O SALAPUR, TALUK RAMDURG
DIST: BELAGUM.
2. YENKAPPA @ VENKAPPA
S/O BHIMAPPA SHEREGAR
AGE: 41 YEARS,
OCC: AGRICULTURE
R/O SALAPUR, TALUK RAMDURG
DIST: BELAGUM.
3. SOMAPPA
S/O BHIMAPPA SHEREGAR
AGE: 39 YEARS, OCC: AGRICULTURE
R/O SALAPUR, TALUK RAMDURG
DIST: BELAGUM.
4. HANAMANTAPPA
S/O BHIMAPPA SHEREGAR
AGE: 37 YEARS, OCC: AGRICULTURE
R/O SALAPUR, TALUK RAMDURG
DIST: BELAGUM.
5. SADASHIVA
S/O SANGAPPA MATANAVARA
AGE: 39 YEARS,
OCC: AGRICULTURE
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R/O SALAPUR,
TALUK RAMDURG
DIST: BELAGUM. ...APPELLANTS
(BY SRI ARUN L. NEELAPANT, ADV.)
AND :
1. SMT.KRISHNAVVA
W/O GANGAPPA KALAL
AGE: 71 YEARS, OCC: HOUSEHOLD WORKS
R/O KERUR-587206
TALUK BADAMI, DIST: BAGALKOT
2. KARIYAPPA
S/O RAMAPPA SHEREGAR
AGE: 41 YEARS, OCC: AGRICULTURE
R/O SALAPUR-591174
TQ: RAMDURG, DIST: BELGAUM.
3. SIDDAPPA
S/O RAMAPPA SHEREGAR
AGE: 36 YEARS, OCC: AGRICULTURE
R/O SALAPUR-591174
R/O RAMDURG, DIST: BELGAUM
4. TULAJARAM
S/O RAJAPPA SHEREGAR
AGE: 51 YEARS, OCC: AGRICULTURE
R/O HALEPETH, KERUR-587206
TQ: BADAMI, DIST: BAGALKOT.
5. GANAPATI
S/O RAJAPPA SHEREGAR
AGE: 37 YEARS, OCC: AGRICULTURE
R/O HALEPETH, KERUR-587206
TQ: BADAMI, DIST: BAGALKOT.
6. ARJUN
S/O RAJAPPA SHEREGAR
AGE: 35 YEARS, OCC: AGRICULTURE
R/O HALEPETH, KERUR-587206
TQ: BADAMI, DIST: BAGALKOT.
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7. CHANDRASHEKHAR
S/O RAJAPPA SHEREGAR
AGE: 33 YEARS, OCC: AGRICULTURE
R/O HALEPETH, KERUR-587206
TQ: BADAMI, DIST: BAGALKOT.
8. NARAYAN
S/O RAJAPPA SHEREGAR
AGE: 31 YEARS, OCC: AGRICULTURE
R/O HALEPETH, KERUR-587206
TQ: BADAMI, DIST: BAGALKOT.
9. VEERANNA
S/O RAMAPPA SHEREGAR
AGE: 51 YEARS, OCC: AGRICULTURE
R/O SALAPUR-591174
R/O RAMDURG, DIST: BELGAUM ...RESPONDENTS
(BY SRI SUBHASH Y. KITTALI, ADV. FOR R-1, 2, 4 & 5;
SRI NAVEEN MELINAMANI, ADV. FOR SRI JAGADISH PATIL,
ADV. FOR R-9;
R-3, 6, 7 & 8 ARE SERVED.)
THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 30.08.2011
PASSED IN O.S.NO.22/2010 ON THE FILE OF THE SENIOR CIVIL
JUDGE, RAMDURG, PARTLY DECREEING THE SUIT FILED FOR
DECLARATION AND INJUNCTION.
IN R.F.A.No.3130/2011:
BETWEEN :
1. SMT.KRISHNAVVA
W/O GANGAPPA KALAL
AGE: 71 YEARS, OCC: HOUSEHOLD WORKS
R/O KERUR, TALUK BADAMI,
DIST: BAGALKOT
2. SRI KARIYAPPA
S/O RAMAPPA SHEREGAR
AGE: 41 YEARS, OCC: AGRICULTURE
R/O SALAPUR, TQ: RAMDURG,
DIST: BELGAUM.
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3. SRI SIDDAPPA
S/O RAMAPPA SHEREGAR
AGE: 36 YEARS, OCC: AGRICULTURE
4. SRI TULAJARAM
S/O RAJAPPA SHEREGAR
AGE: 51 YEARS, OCC: AGRICULTURE
5. SRI GANAPATI
S/O RAJAPPA SHEREGAR
AGE: 37 YEARS, OCC: AGRICULTURE
6. SRI ARJUN
S/O RAJAPPA SHEREGAR
AGE: 35 YEARS, OCC: AGRICULTURE
7. SRI CHANDRASHEKHAR
S/O RAJAPPA SHEREGAR
AGE: 33 YEARS, OCC: AGRICULTURE
8. SRI NARAYAN
S/O RAJAPPA SHEREGAR
AGE: 31 YEARS, OCC: AGRICULTURE
APPELLANTS 3 TO 8 ARE
R/O SALAPUR, TQ: RAMDURG,
DIST: BELGAUM. ...APPELLANTS
(BY SRI SUBHASH Y. KITTALI, ADV.)
AND :
1. SRI BHIMAPPA
S/O YALLAPPA SHEREGAR
AGE: 66 YEARS, OCC: AGRICULTURE
R/O SALAPUR, TALUK RAMDURG
DIST: BELAGUM.
2. SRI YENKAPPA @ VENKAPPA
S/O BHIMAPPA SHEREGAR
AGE: 41 YEARS,
OCC: AGRICULTURE
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3. SRI SOMAPPA
S/O BHIMAPPA SHEREGAR
AGE: 39 YEARS, OCC: AGRICULTURE
4. SRI HANAMANTAPPA
S/O BHIMAPPA SHEREGAR
AGE: 37 YEARS, OCC: AGRICULTURE
5. SRI SADASHIV
S/O SANGAPPA MATANAVARA
AGE: 39 YEARS, OCC: AGRICULTURE
6. SRI VEERANNA
S/O RAMAPPA SHEREGAR
AGE: 51 YEARS, OCC: AGRICULTURE
RESPONDENTS 2 TO 6 ARE
R/O SALAPUR, TALUK RAMDURG
DIST: BELAGUM. ...RESPONDENTS
(BY SRI ARUN L. NEELOPANT, ADV. FOR R-1 TO 4;
R-5 & 6 ARE SERVED.)
THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 30.08.2011
PASSED IN O.S.NO.22/2010 ON THE FILE OF THE SENIOR CIVIL
JUDGE, RAMDURG, PARTLY DECREEING THE SUIT FILED FOR
DECLARATION AND INJUNCTION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 11.01.2017, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
MADE THE FOLLOWING:
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JUDGMENT
The plaintiffs as well as defendants are in appeal challenging the Judgment and decree passed by the Prl. Senior Civil Judge, Ramdurg in O.S.No.22/2010 ('trial court' for short).
2. For the sake of convenience, the parties are referred to as per their ranking in the trial court.
3. Facts in brief are, the plaintiffs filed a suit O.S.22/2010 seeking declaration that the sale deed executed by defendant No.1 in favour of defendant No.5 in respect of land in R.S. 350 of D.Salapur village measuring 29 acres 30 guntas and another sale deed executed by the defendant No.4 in favour of 6th defendant in R.Sy.No.360 measuring 11 acres are null and void and not binding on them. The plaintiff further sought for partition and separate possession of their alleged 3/4th share in the said properties by metes and bounds.
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4. The plaint averments are, land in R.Sy.No.350 of D.Salapur Village measuring 29 acres 30 guntas and land in R.Sy.No.360 measuring 14 acres 4 guntas are the ancestral properties of plaintiffs and defendants No.1 to 4. One Bhimappa was the propositus of both plaintiffs and defendants No.1 to 4 and he died long back leaving behind one daughter namely Balavva and 4 sons namely Yallappa, Narasappa, Ramappa and Rajappa. Yallappa and Narasappa died in the year 1977. Ramappa died in the year 1991. Rajappa died in the year 1995. Balavva died around 50 years back. Smt.Balavva and her husband Govindappa remained in the joint family of her brothers. During the life time of Balavva with the help of her brother Bhimappa got 14 acres 10 guntas of land in R.Sy.No.360 of D.Salapur Village from the government. That granted land was cultivated by Yallappa and his brothers jointly along with Balavva. Yallappa died leaving behind 1st defendant -8- Bhimappa. 1st defendant has 3 sons i.e., defendants No.2 to 4. Narasappa died leaving behind only daughter Krishnavva (plaintiff No.1). Ramappa died leaving behind 2 sons (plaintiff No.2 & 3). Rajappa died leaving behind 5 sons (plaintiff No.4 to 8.) During the lifetime of 4 sons, Bhimappa purchased land in R.Sy.No.360 from Smt.Balavva for consideration of Rs.1000/- and the sale deed was registered in the name of 1st defendant and that land was purchased out of joint family funds. After purchasing that land, plaintiffs and defendants No.1 to 4 are in joint possession and enjoyment of the same. On 17.07.1993 1st defendant behind the back of plaintiffs in collusion with revenue authorities partitioned the land in favour of defendants No.2 to 4 and the said partition is not valid and not binding on plaintiffs. Without the knowledge and consent of plaintiffs, 1st defendant has executed sale deed in favour of 5th defendant in respect of 29 acres 30 guntas of land situated in R.Sy.No.350 of Salahalli village under -9- registered sale deed. The said sale deed is not binding on the plaintiffs. In fact, plaintiffs and defendants are cultivating the land in R.Sy.No.350 of D.Salapur Village by making 4 private strips and cultivating the same independently. The sale deed executed by 4th defendant in favour of 6th defendant in respect of land in R.Sy.No.360 and sale deed executed by 1st defendant in favour of 5th defendant in respect of land in R.Sy.No.350 of D.Salapur village are not valid and not binding on plaintiffs 3/4th share. Hence, sought for a declaration that, the sale deed executed by 1st defendant in favour of 5th defendant in respect of land in R.Sy.No.350 and sale deed executed by 4th defendant in favour 6th defendant in respect of 11 guntas of land in R.Sy.No.360 of D.Salapur Village are not valid and binding on plaintiffs 3/4th share and also for partition and separate possession of their 3/4th share in the suit schedule properties by metes and bounds.
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5. The defendants No.1 to 4 filed written statement denying the plaint averments and contended that the original propositus Bhimappa had no properties and the father of the defendant viz., Yallappa purchased 29 acres 30 guntas in R.Sy.No.350 of D.Salapur out of his own earnings in the year 1941 and the same was inherited by the 1st defendant after the death of Yallappa and as such, mutation entry came to be effected in the name of the 1st defendant for which the plaintiffs never objected. Hence, the sale deed executed by the 1st defendant in favour of defendant NO.5 in respect of R.S. No.350 is valid and legal. It was contended that R.Sy.No.360 of D.Salapur Village measuring 14 acres 4 guntas exclusively belonged to Balavva, 1st defendant purchased the same from Smt.Balavva, under registered sale deed dated 12.06.1972 out of his own earnings. It is the self acquired property of defendant No.1 and the plaintiffs have no right over the said property. Defendants name
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was entered in the mutation entry, M.E.No.1494 dated 01.08.1972. In the family partition land was divided into three equal parts and allotted to the shares of defendants No.2 to 4, as per M.E.No.3146 dated 17.07.1993. Defendants No.2 to 4 were in possession of respective shares. Defendant No.4 has sold 11 guntas of land in R.Sy.No.360 in favour of 6th defendant under registered sale deed dated 14.02.2008 and the 6th defendant is in possession of the said 11 guntas of land. Defendant No.5 has filed written statement denying the plaint averments and contended that in the month of June 2009, 5th defendant purchased the land in R.Sy.No.350 of D.Salapur village. At that time land in R.Sy.No.350 measuring 29 acres 30 guntas was barren land and there was no irrigation facility. 5th defendant has purchased the same for the highest market price and obtained registered sale deed on 29.6.2009. After the sale deed, this defendant is in possession and enjoyment of the same. Land in R.Sy.No.350 measuring
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29 acres 30 guntas was purchased out of the self earnings of 1st defendant's father Yallappa. After the death of Yallappa, 1st defendant being the only son has inherited that property. After purchase, he had invested Rs.23,00,000/- for leveling lands, removing stones, construction of bunds and laying water pipe lines by using JCB, Bulldozer, tractors, labourers etc., this defendant developed that land by raising loan to the tune of Rs.20,00,000/- in the Bank of Baroda. Plaintiffs never raised objection to the same. It was further contended that 5th defendant is a bonafide purchaser of land in R.Sy.No.350 of D.Salapur village. Plaintiffs are estopped from claiming any rights over the land in R.Sy.No.350 of D.Salapur village.
6. Based on the pleadings, the trial court framed the following issues:
"1. Whether the plaintiffs proves that, suit schedule properties are joint Hindu family
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properties of plaintiffs and defendants No.1 to 4 and they are in joint possession and enjoyment of the same ?
2. Whether the plaintiffs further proves that, the alienation of suit schedule properties by 1st & 4th defendants in favour of 5th & 6th defendants are not valid and not binding on the plaintiffs ?
3. Whether 1st defendant proves that, land in R.Sy.No.350 of D.Salapur village is the self acquired property of his father Yallappa and after the death of his father, he became absolute owner of land in R.Sy.No.350 of D.Salapur village ?
4. Whether the 1st defendant further proves that, he had purchased land in R.Sy.No.360 of D.Salapur village from one Smt.Balavva w/o Govindappa for valid consideration under registered sale deed dated 12-06-1972 ?
5. Whether the plaintiffs proves that, they are entitled for partition and separate possession of 3/4th share in the suit schedule properties ?
6. What order or decree ?
ADDITIONAL ISSUE:
Whether the 5th defendant proves that he is the bonafide purchaser of land in
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R.Sy.No.350 of D.Salapur village for valid consideration ?"
7. Plaintiff No.4 was examined as PW-1 and got marked Exhibits P1 to P7. Plaintiff No.1(PW-2) filed an affidavit under Order 18 Rule 4 of CPC as her examination - in - chief but failed to tender herself for cross - examination. Two other witnesses PW-3 & PW-4 were examined on behalf of plaintiffs. On behalf of defendants, 1st defendant was examined as DW-1 and one independent witness was examined as DW-2, defendant No.3 was examined as DW-3, scribe of the sale deed dated 29.06.2009 was examined as DW-4 and 16 documents have got marked as per Exs.D.1 to D.16.
8. The trial Court after appreciating the evidence on record decreed the suit partly holding that the registered sale deed executed by 1st defendant in favour of 5th defendant is not valid and not binding on the shares of the plaintiffs and further held that the
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plaintiffs are entitled for partition and separate possession of 3/4th share in the lands in Sy.No.350 of D.Salapur village. Aggrieved by the same, the defendants are in appeal. Plaintiffs are in appeal against the judgment and decree in much as denying the share in R.Sy.No.360 of D.Salapur village is concerned.
9. Sri Subhas Y.Kittali, learned counsel for plaintiffs would contend that the trial Court grossly erred in not properly appreciating the evidence insofar as recording a finding that R.Sy.No.360 is exclusive property of defendant No.1, the said property was purchased in the name of defendant No.1 not out of the joint family nucleus. The defendants have failed to prove that their father Yallappa had sufficient nucleus to purchase the property having independent source of income. There was no evidence to show that the joint family was severed. It was further contended that
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R.Sy.No.350 was also the joint family property purchased by Bhimappa. In order to deny the share of the plaintiffs, 1st defendant executed the registered sale deed in favour of the 5th defendant in respect of land in R.Sy.No.350 without having exclusive title or interest in the said property. The trial Court was justified in holding that the plaintiffs are entitled for partition and separate possession of 3/4th share in the land in R.Sy.No.350 of D.Salapur village and the registered sale deed executed by 1st defendant in respect of 5th defendant in respect of land in R.Sy.No.350 is not binding on the plaintiffs.
10. The learned counsel for the plaintiffs have placed reliance on the following Judgments:
i) Ramappa Basappa Palled -v- Smt. Basava reported in ILR 1993 KAR 1865;
ii) Balwant Singh and Another -v- Daulat Singh (Dead) by Lrs and Others reported in ILR 1998 KAR 707.
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11. Per contra, the learned counsel for the defendants 1 to 4 would contended that Land in R.Sy.No.360 of D.Salapur village was granted to Smt.Balavva in the year 1965, by the then Government of Bombay. After the grant, Smt. Balavva became the absolute owner of the land. The said lands were sold by Smt.Balavva in favour of the 1st defendant under the sale deed 12.6.1972 (Ex.D13) and the same got partitioned amongst the sons of 1st defendant on 17.7.1993. Accordingly, mutation entries were made out in their names. After partition amongst defendant No.2 to 4, 4th defendant had sold 11 guntas of land out of his share in R.Sy.No.360 of D.Salapur village in favor of the 6th defendant under registered sale deed dated 14.2.2008. Considering these factual aspects the trial court held that R.S. NO.360 of D.Salapur village is not joint family properties of the parties but it is the exclusive property of defendant No.1 which is justifiable.
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12. It was further contended that the trial court gravely erred in not considering the fact that the father of the 1st defendant Yallappa purchased the property bearing R.Sy.No.350 in the year 1941 from one Bhimappa Hanumanthappa Auradi, as such mutation entry came to be effected in respect of the said property. Hence, it is manifestly clear that the property bearing R.Sy.No.350 is the self acquired property of Yallappa, father of the defendant, consequential sale deed by 1st defendant in favour of 5th defendant is valid and legal. The trial court ignoring this material evidence, passed the Judgment and decree which is untenable. The learned counsel would further contend that in order to show that the property purchased is a joint family property, it is necessary to show sufficient nucleus and surplus income after meeting daily necessities of the joint family. In the present case, the plaintiffs neither proved sufficient nucleus nor surplus income to establish that the property in question was purchased
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out of joint family funds and for the purpose of joint family. Thus, the learned counsel seeks to set-aside the impugned Judgment and decree allowing the appeal. In support of his arguments, learned counsel placed reliance on the following Judgments:
i) C.N.Ramappa Gowda -v-
C.C.Chandregowda (Dead) by Lrs and
another reported in HCR 2012 S.C.563;
ii) Smt.Revamma and another -v- Basha Saab reported in 2008(4) Kar.L.J.42;
iii) Thimma and Others -v- Smt.Doddamma and another reported in ILR 2014 KAR 4491.
13. Heard the learned counsel appearing for the parties and perused the material on record.
14. In This appeal two questions arise for consideration:
1. Whether the suit properties belong to the undivided Hindu family of the
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plaintiffs and defendants 1 to 4 or they are the self-acquired properties of the defendant No.1 (R.Sy.No.360) and father of the defendant No.1 (R.Sy.No.350) ?
2. Whether the plaintiffs are entitled to partition of the suit schedule properties?
15. Ex.P1 to P3 are RTC extracts relating to the suit schedule property relating to year 2009-10; Ex.P4 and P5 are the copies of the mutation register wherein, the purchasers' name is mutated; Ex.P6 is the sale deed relating the R.Sy.No.350, D.Salapur Village, executed by defendant No.1 in favour of defendant No.5. Certified copy of the mutation register is relied upon by the defendants to contend that the suit properties stood exclusively in the name of the father of defendant No.1 i.e. Yallappa and it is his exclusive property. Ex.D1 to D6 are the certified copies of mutation entries of the suit properties; Exs. D7 to D9 are the katha extracts; Ex.D13 is the sale deed relating to R.Sy.No.360 of
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D.Salapur Village executed by Smt.Balavva in favour of defendant No.1.
16. Pleadings coupled with the evidence oral and documentary, discloses that Sy.No.360 of D.Salapur village was granted to Smt.Balavva in the year 1965 by the then Govt. of Bombay. Balavva became the absolute owner of the said property. She alienated the said property in favour of the 1st defendant under the sale deed dated 12.6.1972, which is marked as Ex.D13. Subsequent to acquiring the title, right and interest over the property as an absolute owner by virtue of sale deed at Ex.D13, the property got partitioned among the sons of defendant No.1 on 17.7.1993. Accordingly, mutation entries were made and the kathas were issued, as could be evidenced from Ex.D7 to D9. After the said partition among the defendants No.2 to 4, defendant No.4 alienated 11 guntas of land out of his share in Sy.No.360 of D.Salapur village in favour of the 6th
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defendant under the registered sale deed 14.2.2008. Hence, the sale deed in respect of R.Sy.No.360 of D.Salapur village is held to be valid by the trial court. The evidence available on record as discussed above, clearly shows that defendant No.1 acquired the property No.360 of D.Salapur village from Smt.Balavva through the registered sale deed in his individual capacity in the year 1972 which cannot be construed as the joint family property.
17. At this juncture, it is beneficial to refer to the Judgment of this Court in the case of Revamma (supra), wherein it is observed thus:
"12. Indeed there is always a presumption that the Joint Family continues to be Joint. The normal state of every Hindu Family is Joint. Presumably, every Hindu family is joint in food, worship and estate. In the absence of proof of division of a Joint Hindu Family the presumption is. until the contrary is proved, the family continues to be
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joint But however, it is also to be noticed that there is no presumption that a family, because it is joint, possesses joint property or any property. When in a suit for partition, the one who claims that any particular item of the properly is joint family property, and would assert that the property is joint family property, the burden would rest on him to prove that it is. a Joint Family. To render the property joint, the plaintiff must prove that the Family was possessed of some property with the income from which, the property could have been acquired or from which the presumption could he drawn that all the property possessed by the family is Joint Family property. Where it is established or admitted that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the presumption arises that it was joint property and the burden shifts to the party alleging self acquisition to establish affirmative that the property was acquired without the aid of the joint family. However,
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no such presumption would arise if the nucleus is such that with its help the property claimed to be joint could not have been acquired. In order to give rise to the presumption the nucleus must be such that with its help the property claimed to be joint could have been acquired. Whether the evidence adduced by a party is sufficient to shift the burden, which initially rested on him to establish that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and extent of the nucleus. An important element for consideration is the income, which the nucleus yielded. A family house in the occupation of the members and yielding no income could not be a nucleus out of which acquisitions could be made, even though it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small might conceivably produce substantial income, which may There are no abstract question of law but question of fact to be determined on the evidence in the case. The wide proposition
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that once the ancestral nucleus is proved or admitted, the onus on the member to prove that fee properly acquired was his self- acquisition cannot be accepted as correct. The existence of some nucleus is not the sole criterion to impress the subsequent acquisitions with family character. What is required to be shown is that the family had as a result of the nucleus sufficient surplus income from which the subsequent acquisitions could be made."
18. The Division Bench of this Court in the case of Ramappa Basappa Palled (supra) has observed thus:
" 21. Therefore, it cannot be said that in the absence of other circumstances, property acquired by a person belongs to the joint family, solely because, the acquirer was the manager of the family at the relevant point of time. In the absence of any evidence that the family had no sufficient assets or funds and similarly, the evidence also is insufficient to trace the source of funds from which the property was acquired by the then manager
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of a joint family, Court shall have to examine other circumstances such as the way the undivided members of the family lived and treated the newly acquired property and whether there is any indication that the manager conducted himself in such a manner as giving an impression that the acquired property belonged to the family; the probability of other members contributing either labour or their earnings for the acquisition also has to be examined, for which purpose, Court may have to find out whether other members were in fact earning and handing over their earnings or savings to the manager."
19. The Hon'ble Apex Court in the case of Ramappa Gowda's case (supra), has held thus:
"13. In the light of the ratio decidendi of the cases cited hereinabove, when we examined the judgement and order of the trial court granting a decree of partition in favour of the plaintiff-appellant, we could notice that the plaintiff-appellant has sought to prove his case that the suit property was a joint family
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property only on the strength of affidavit which he had filed and has failed to lead any oral or documentary evidence to establish that the property was joint in nature. Even if the case of the plaintiff-appellant was correct, it was of vital importance for the trial court to scrutinize the plaintiff;s case by directing him to lead some documentary evidence worthy of credence that the property sought to be partitioned was joint in nature. But the trial court seems to have relied upon the case of the plaintiff merely placing reliance on the affidavit filed by the plaintiff which was fit to be tested on at least a shred of some documentary evidence even if it were by way of an ex-parte assertion. Reliance placed on the affidavit in a blindfold manner by the trial court merely on the ground that the defendant had failed to file written statement would amount to punitive treatment of the suit and the resultant decree would amount to decree which would be nothing short of a decree which is penal in nature.
15. When we examined the instant matter on the anvil of what has been stated
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above, we have noticed that the trial court has decreed the suit without assigning any reason how the plaintiff is entitled for half share in the property. The same is absolutely cryptic in nature wherein the trial court has not critically examined as to how the affidavit filed by the plaintiff in support of his plea of jointness of the family was proved on relying upon Ex.P-1 to P-10 without even discussing the nature of the document indicating that the suit property was a joint property. Ex.P- 1 to P-10 are the preliminary records viz. Atlas, Tipni Book, R.R. Pakka Book, Settlement Akarband, sale deeds etc. The trial court although relied upon these documents, it has not elaborated critically as to why these documents have been believed without indicating as to how it proves the plea that the property always remained joint in nature and had never been partitioned between the parties. Even if the trial court relied upon these documents to infer that the property was joint in nature, it failed to record any reason as to whether the property was never partitioned among the coparceners. It is a
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well acknowledged legal dictum that assertion is no proof and hence, the burden lay on the plaintiff to prove that the property had not been partitioned in the past even if there was no written statement to the contrary or any evidence of rebuttal. The trial court in our view clearly adopted an erroneous approach by inferring that merely because there was no evidence of denial or rebuttal, the plaintiff;s case could be held to have been proved. The trial court, therefore, while accepting the plea of the plaintiff- appellant ought to have recorded reasons even if it were based on ex-parte evidence that the plaintiff had succeeded in proving the jointness of the suit property on the basis of which a decree of partition could be passed in his favour."
20. Keeping in mind the judgments aforesaid, the factual matrix of the case is examined. As regards R.Sy.No.360 of D.Salapur village, it is clear that the defendant No.1 purchased property from Smt.Balavva for a sale consideration under registered sale deed
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Ex.D13 and there is no evidence on record to suggest that the plaintiffs contributed either labour or their earnings for the acquisition of the said property, neither the pleadings nor oral evidence of the plaintiffs suggests that the plaintiffs were earning and handing over their earnings or savings to defendant No.1 to purchase the property at R.Sy.No.360 D.Salapur village in the name of the 1st defendant. The plaintiffs have miserably failed to establish that the said property was joint family property.
21. As regards R.Sy.No.350 is concerned, it is significant to note that Ex.D1 indicates the name of the father of defendant No.1 being mutated in the mutation register in the wake of the sale deed registered in his name on 17.4.1941. The onus lies on the plaintiffs to prove that the suit properties are the joint family properties of plaintiffs and defendants, and are in joint possession and enjoyment of the same. It is relevant to
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refer to Para 11 of the plaint averments which runs thus:
"11. Apart from this the one suit land bearing R.S.No.350 was belonged to one deceased Bhimappa who was a grandfather of the plaintiffs. After the death of deceased Bhimappa, the name of deceased Yallappa entered in the revenue records and he was the eldest son. After the death of deceased Yallappa the name of the defendant No.1 is entered in the revenue records as he is a son of him, without knowledge of the plaintiffs. Taking the disadvantage of innocence of the plaintiffs and name in the revenue records, raised the loans from Banks without knowledge of the plaintiffs. The defendant No.1 never made any financial help to the plaintiffs in agricultural operations."
22. In paragraph 32 of the impugned Judgment the trial Court has held that plaintiffs all along pleaded that, land in R.S. No.350 measuring 29 acres 30 guntas is joint family property acquired out of joint family
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nucleus during the lifetime of their grandfather Bhimappa which is contrary to the pleadings as set out above. In the absence of any evidence, property acquired by a person belonging to the joint family, solely because he was the manager of the family at the relevant point of time, cannot be construed as the joint family property. There is no pleading nor evidence to show that the plaintiffs' father contributed either labour or their earnings for the acquisition of R.Sy.No.350. No concrete evidence is placed by the plaintiffs to prove that the family possessed some joint property which from its nature and relative value would have formed the nucleus from which the property in question might have been acquired, unless the pleadings of the plaintiff discloses the basic facts of acquiring the property from the nucleus of the joint family, it is improper for the court to give relief to the plaintiff on the basis of different facts averred by the plaintiff. There is no pleading to the effect that grandfather of the plaintiffs
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viz., the original propositus Basappa held properties, the suit properties were purchased in the name of the father of the 1st defendant out of the income and savings made during the lifetime of Basappa. Hence, the assertion of the plaintiff that these lands were the joint family property even during the lifetime of Basappa is not worthy of acceptance. PW-1 in his cross- examination has admitted that he was oblivious in much as Bhimappa's income and expenditure is concerned. There is variance in the evidence and the pleadings. The evidence of PW-1 discloses that he was not knowing the details of the purchase of the lands in R.Sy.No.350. It was stated that R.Sy.No.350 was purchased by his father and his brothers (uncles of plaintiff), however, he admits that it was not pleaded so in the plaint. After the demise of Bhimappa, father of the plaintiff and the defendants' father got separated and started residing separately. This deposition of PW-1 would not indicate the joint family cultivating together
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the property in question and the said R.Sy.No.350 purchased in the name of the father of 1st defendant on behalf of the joint family. PW-2 is the plaintiff No.1 in the suit. Para No.9 of the affidavit filed as examination- in-chief by PW-2 discloses that apart from R.Sy.No.360, one suit land bearing R.Sy.No.350 belonged to Bhimappa, who was the grand father of the plaintiffs. After the demise of deceased Bhimappa, the name of deceased Yallappa was entered in the record as he was the eldest son of the family. After the death of Yallappa, 1st defendant's name was entered as he was the son of Yallappa without of the knowledge of plaintiffs. It was submitted that taking advantage of 1st defendant's name being entered in the records, he raised loans from the Bank without the knowledge of the plaintiffs. Defendants never made any help to the plaintiffs in agricultural operations. However, this witness PW-2 has not tendered herself for cross - examination. PW-3 and PW-4 are the owners of neighbouring lands,
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nothing positive is forthcoming in the chief examination nor any relevant material is elicited in the cross- examination in much as the nucleus of the joint family to acquire the property, R.Sy.No.350. The trial court assumes that the lands were acquired of the joint family nucleus during the lifetime of propositus Bhimappa. It is only on the presumption that Yallappa and his brothers lived together, the trial court arrived at the conclusion that R.Sy.No.350 of D.Salapur village was the joint family property since there was no family partition after 1941 or earlier. The trial court proceeded to hold so on the ground that the 1st defendant was 67 years as shown in his affidavit, he was not born at the time of purchase by defendant No.1 in the year 1941, as such, he cannot depose who contributed to purchase that land.
23. In view of the Division Bench Judgment of this Court cited in Ramappa Basappa Palled (supra), it
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is very well established that in the absence of any evidence that the family had no sufficient assets or funds and similarly, the evidence also is insufficient to trace the source of funds from which the property was acquired by the then manager of a joint family, Court shall have to examine other circumstances such as the way the undivided members of the family lived and treated the newly acquired property and whether there is any indication that the manager conducted himself in such a manner which gives an impression that the acquired property belonged to the family. In such circumstances, it is incumbent upon the courts to find out whether other members were in fact earning and handing over their earnings or savings to the Manager. It was further observed that while appreciating the evidence necessarily the Court has to look into the pleadings of the parties, because, the basic facts have to be pleaded by the parties. When a definite case is pleaded by the plaintiff, normally, the Court will be
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disinclined to give relief to the plaintiff on the basis of a different set of facts not pleaded by the plaintiff, unless the plaintiff is entitled to any relief even on the basis of the case pleaded or proved by the defendant. It is thus clear that the presumption is the joint status in food, worship and estate of a joint Hindu family. However, such a presumption do not contemplate that every joint family possesses joint family properties. In other words, property acquired by a person as a Manager of the family cannot be considered to be joint family properties at all times unless the joint family status relating to the sufficient assets or funds of such joint family is established, so that the nucleus of income to acquire the property belonged to the joint family either by the members of the joint family contributed labour or their earnings constituted nucleus for the acquisition of the joint family property. In the case on hand except the deposition of PW-1, no material is available on record to establish the factum of nucleus of the joint family to
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acquire the property R.Sy.No.350 in the year 1941 though PW-2 appeared and filed the affidavit in lieu of evidence-in-chief but failed to tender herself for the cross-examination as aforesaid. It is only when the plaintiff establishes that the family possessed some joint property or the joint labour of the family members which from its nature and relative value forms the nucleus to acquire the property in question, then the burden shifts to the party alleging self acquisition of the said property, acquired without the aid of the joint family.
24. In the present case, however, without there being such nucleus of the joint family to acquire property in R.Sy.No.350 being established, the trial court mainly shifted the burden on the defendants to hold that the defendants have not proved that the property in question was acquired by the father of defendant No.1 in his exclusive capacity without the aid
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of the joint family. The circumstances such that after the demise of 1st defendant's father, mutation entries were recorded in the name of defendant No.1, loan was raised on the said property from the Bank, thereafter, it was alienated to defendant No.5 shows that no objection was raised by the plaintiffs at the relevant point of time. It is true that mutation of a property in the revenue records does not create title nor any presumptive value on title. These mutation entries were entered in the mutation register as long back as 26.11.1953. Mutation register being a public document, the inaction on the part of the plaintiffs to challenge the same at the appropriate time indicates that the property in question purchased by the 1st defendant's father in the year 1941 was the self acquired property. None of the parties have produced the sale deed of the year 1941. In such circumstances, it can not be totally ignored to ascertain the surrounding circumstances. The evidence on record in no way advances the case of the plaintiffs. At one
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stage PW-1 in the pleadings contends that the property R.S.350 belonged to the original propositus Bhimappa and in the evidence, he contends that the father of the plaintiffs and father of 1st defendant collectively purchased the said land. No other independent witness is examined to substantiate the joint family nature of R.Sy.No.350, indeed the evidence of PW-3 and PW-4 is also of no assistance to the plaintiffs. Witnesses on behalf of the defendants have pleaded and deposed that the property in R.Sy.No.350 was the self acquired property of the father of the defendant No.1. The trial Court assumes that R.Sy.350 was a joint family property only for the reason that there was no partition in the joint family since 1941. The predominant factor of the property acquired by the joint family, not being proved with sufficient nucleus of the family, the presumption of the trial court is not fit to be sustained. It is only after the property R.S.350 was alienated to defendant No.5 and the same being improved by
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investing huge money, the plaintiffs have approached the court, seeking for partition. The conduct of the plaintiffs prima-facie indicates that they have no claim over the suit properties.
25. In these circumstances, this court disagrees with the view taken by the trial court in much as R.Sy. No.350 is concerned. Accordingly, the finding given by the trial court that the plaintiffs are entitled to 3/4th share in R.Sy. No.350 of D. Salapur Village is unsustainable and requires to be reversed.
26. For the reasons aforesaid, RFA No.3125/2011 filed by the defendants stands allowed and RFA No.3130/2011 filed by the plaintiffs stands dismissed.
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The Judgment and decree passed by the trial Court in much as decreeing the suit partly, is set aside. Plaintiffs' suit is dismissed.
Sd/-
JUDGE ln.