Karnataka High Court
Nagendar S/O Alte Narayan Kolvekar vs Dattaram S/O Alte Narayan Kolvekar on 23 September, 2022
Author: H.P. Sandesh
Bench: H.P. Sandesh
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.F.A.No.1518/2005 (PAR)
BETWEEN:
NAGENDAR S/O LATE NARAYAN KOLVEKAR
AGED ABOUT 43 YEARS, OCC:GOLD SMITH,
R/O SUNKERI, KATINKON,
KARWAR. ...APPELLANT
(BY SHRI.B.S.KAMATE, ADV.)
AND:
1. SHRI DATTARAM S/O LATE NARAYAN KOLVEKAR
AGED ABOUT 35 YEARS, OCC:GOLDSMITH
R/AT PADMANABHANAGAR, BAAD,
NANDANGADDA POST, KARWAR.
2. SHRI GANAPATHI
S/O LATE NARAYAN KOLVEKAR
Digitally AGE:41 YEARS, OCC:GOLDSMITH,
signed by J
MAMATHA R/AT PADMANABHANAGAR, BAAD,
J Location:
MAMATHA Dharwad
Date:
NANDANGADDA POST, KARWAR
2022.09.27
12:36:19
+0530
3. SHRI MANJUNATH
S/O LATE NARAYAN KOLVEKAR
AGE:35 YEARS, OCC:GOLDSMITH,
R/AT PADMANABHANAGAR, BAAD,
NANDANGADDA POST, KARWAR.
2
4. SMT.MEERABAI W/O LATE NARAYAN KOLVEKAR
SINCE DECEASED BY HER LRs
APPELLANTS 1 TO 3 AND RESPONDENTS 5 AND 6
5. SMT.GIRIJA W/O GANGADHAR RAIKAR
AGE;67 YEARS, OCC:HOUSEHOLD WORK,
R/O SUNAINA APARTMENT, SANKRIWADA,
1ST CROSS, KAJUBATH, KARWAR,
DIST:UTTAR KANNADA.
6. SHASHIKALA D/O LATE NARAYAN KOLVEKAR
AGE:44 YEARS, OCC:HOUSEHOLD WORK,
R/O PADMANABHANAGAR, BAAD,
NANDANGADDA POST, KARWAR,
DIST:UTTAR KANNADA. ...RESPONDENTS
(BY SHRI.SOURABH SONDUR, FOR
SHRI K.L.PATIL AND
SHRI S.S.BETURMATH, ADV. FOR R1 TO R3,
SHRI RAVIRAJ C.PATIL, ADV. FOR R6,
R5 SERVED,
R4-DECEASED (R1 TO R3, R5 AND R6 ARE HIS LRs)
THIS RFA IS FILED U/S.96 R/W O 41 R 1 OF CPC
AGAINST THE JUDGMENT AND DECREE DT.15.7.2005 PASSED
IN O.S.NO.25/98 ON THE FILE OF THE PRL. CIVIL JUDGE
(SR.DN), KARWAR, DECREEING THE SUIT FOR PARTITION.
THIS APPEAL COMING ON FOR FINAL HEARING ON
13.09.2022 AND THE SAME HAVING BEEN HEARD AND
RESERVED FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
This appeal is filed against the judgment and award dated 15.07.2005 passed by the Prl. Civil Judge (Sr.Dn.), Karwar, in O.S.No.25/1998 questioning the decree declaring that the plaintiff and defendant Nos.1 to 3 are entitled for 1/4th shares each in the suit schedule properties with metes and bounds, wherein the original plaintiff who happens to be the father of defendants 1 to 4 and husband of defendant No.5 had sought for a decree for partition and separate possession of 1/5th share in the suit schedule properties.
2. The case of the original plaintiff before the trial Court is that the suit schedule properties are the joint family properties of plaintiff and defendants. The plaint properties originally belong to joint family and propositus of the family is plaintiff/Narayan Uttam Kolvekar who was the Kartha and Manager of the joint family properties of plaintiff and defendants. The original plaintiff passed away during the pendency of the suit and hence, the 4th defendant who is one of the sons of the plaintiff was transposed as plaintiff. 4
3. The defendant No.1 made the claim that Sy.Nos.272/4B and 202/2 and a suit residential house schedule 'C' of the plaint are his self-acquired properties. The transposed plaintiff also has claimed that his father had executed a Will in his favour and hence he is entitled to 2/5th share over the suit schedule properties and he has claimed 1/5th additional share and in view of transposing the plaintiff, additional issues were also framed as to i)whether plaintiff has got any locus standi to proceed with the suit and without seeking for declaratory relief regarding genuineness and due execution of alleged Will executed by late plaintiff and whether he can continue the proceedings.
4. The transposed plaintiff in order to substantiate his claim, he himself examined as P.W.-1 and also examined one witness as P.W.-2 and on the other hand, defendant No.1 examined himself as DW-1. The plaintiff got marked the document Ex.P.1 to Ex.P.43. On the other hand, the defendants got marked the documents Ex.D.1 to Ex.D.5. The trial court after considering both oral and documentary evidence available on record held that the claim of defendant 5 No.1 that the properties in Sy.Nos.272/4B, 202/2 and suit house and schedule 'C' of the plaint are his self-acquired properties answered in negative and also claim of the proposed transposed plaintiff claiming 1/5th share based on the Will was negatived by the trial Court. However, the trial Court granted the relief of partition in favour of the parties granting 1/4th share to the plaintiff and defendants 1 to 3 in all the suit schedule properties. Hence, being aggrieved by the judgment and decree declaring that 1st defendant is not the owner of the self-acquired properties as claimed by him, has filed the present appeal before this Court.
5. The main contention of the learned counsel for the appellant/defendant No.1 is that the trial Court committed an error in granting decree of 1/5th share over the suit schedule properties in favour of the plaintiff even though he failed to prove that the suit schedule properties are joint family properties. The evidence on record goes to show that the original plaintiff was not possessing any properties at the time he came to Karwar and there was no documentary evidence to show that defendant No.1 all along stayed with the plaintiff till 6 the date of filing of the suit. In spite of that, trial Court has committed an error in accepting the oral evidence and failed to consider the documents produced by defendant No.1 to show that properties in question are purchased by him out of his own earnings. Defendant No.1 has produced the documents like income tax returns and other documents. Learned counsel would also vehemently contend that according to the plaint allegation, the plaintiff was doing goldsmith business and in order to show that he was doing goldsmith business, he did not produce documents such as KST, GST or sales tax returns etc., which are required to be furnished in law and mere oral allegation is not sufficient to hold that there was income to the original plaintiff to acquire these properties. The learned counsel would also vehemently contend that the trial Court has failed to take note that other properties were standing in the name of family and that there was no other income to the family and the contradictions in the evidence of witnesses has not been considered. The very finding that defendant No.1 has not proved that the properties are self-acquired properties is 7 not correct and hence, the judgment and decree of the trial Court requires modification.
6. Per contra, learned counsel appearing for the respondents 1 to 3 would vehemently contend that their father came back to Karwar in the year 1981 and started goldsmith business along with sons and in the year 1987 they purchased 11 guntas of land and in terms of Ex.P.6 properties was purchased in the name of defendant No.1. It is contended that the transposed plaintiff has taken care of the father and hence he has executed the Will and Ex.P.18 to Ex.P.26 are filed by their father with regard to tax paid receipts in respect of the properties acquired out of joint family nucleus. Hence, the trial Court has rightly come to the conclusion that DW-1 has not produced any documents to show that he had source of income and that the properties which have been claimed by him are his self-acquired properties and that the property belongs to the family and with regard to the ouster of defendant No.1, no material is placed before the Court.
8
7. In reply to the arguments of the learned counsel for the respondents, learned counsel for the appellant would submit that in the cross-examination of P.W.-1 he has admitted that no material are produced to show the existence of joint family and also with regard to the contribution by the family members while acquiring the property. The licence and permission taken to do the business and also converting of the property for NA purpose is not disputed and when such being the case, the judgment and decree of the trial Court is erroneous.
8. Learned counsel for respondent No.6 would submit that respondent No.6 is not made as a party in the suit and hence, she has been brought on record in the appeal and her share has to be allotted. Hence, prayed this Court to modify the judgment and decree of the trial Court.
9. Learned counsel for the appellant in support of his arguments relied upon the judgment of the Hon'ble Apex Court in MUDI GOWDA GOWDAPPA SANKH VS. RAM CHANDRA RAVAGOWDA SANKH (AIR 1969 SC 1076) wherein it has 9 been held that there is no presumption that Hindu family merely because it is joint, possesses any joint property. The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as coparcenery property. But, if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact.
10. Learned counsel for the appellant would also rely upon the judgment in RAIKUNTHA NATH PARAMANIK VS. 10 SASHI BHUSAN PRAMANIK (AIR 1972 SC 2531) wherein the Hon'ble Apex Court has held that when a joint family in possession of nucleus sufficient to make the impugned acquisitions, presumption arises that the acquisitions standing in the names of the persons, who were in the management of the family properties, are family acquisitions.
11. Learned counsel would also rely on the judgment in D.S.LAKSHMAIAH AND ANOTHER VS.
L.BALASUBRAMANYAM AND ANOTHER (AIR 2003 SC 3800) wherein also the Hon'ble Apex Court held that when there is no presumption outright, the burden primarily to establish that the Karta was in possession of nucleus of joint Hindu family property capable of purchasing the property in question, is upon the person who claims Joint Hindu Family property. Once such nucleus in the hands of Karta is proved- burden shifts upon the Karta (the person who claims the property to be self acquired) that the property was acquired without the aid of Joint Hindu Family nucleus but out of his independent source of income.
11
12. Learned counsel also relied on the judgment in APPASAHEB PEERAPPA CHANDGADE VS. DEVENDRA PEERAPPA CHANDGADE AND OTHERS (AIR 2007 SC 218) wherein also the Hon'ble Apex Court has held that the real dispute between the parties is whether the properties for which a decree was passed by the trial court was joint Hindu Family property or those were self-acquired property of the defendants and their children.
13. The learned counsel also relied on the judgment in MARABASAPPA VS. NINGAPPA (2011) 9 SCC 451) wherein at paragraph 25 the Hon'ble Apex Court has held that time and again this Court has held that there is no presumption of joint family property, and there must be some strong evidence in favour of the same and in the absence of any strong evidence, there cannot be any presumption.
14. Per contra, learned counsel appearing for respondents 1 to 4 in support of his argument relied upon the judgment in JAYDAYAL PODDAR VS. MST. BIBI HAZRA AND OTHERS (AIR 1974 SC 171) wherein at paragraph 6 it 12 has been held that burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so.
15. Learned counsel also relied upon the judgment in SATYA GUPTA ALIAS MADHU GUPTA VS. BRIJESH KUMAR (AIR ONLINE 1998 SC 13) and brought to the notice of the Court paragraphs 4, 9 to 11 wherein the Apex Court also discussed with regard to the discharge of the initial burden to show that the sale deed in the joint name of the plaintiff was only a Benami transaction and also in paragraph 9 discussed with regard to the principle governing the determination of the question whether a transfer is a benami transaction or not.
16. The learned counsel also relied on the decision in APPASAHEB PEERAPPA CHANDGADE VS. DEVENDRA PEERAPPA CHANDGADE AND OTHERS (AIR 2007 SC 218) and brought to the notice of this Court paragraphs 9, 12 and 13 wherein it has been held that initial burden is on the plaintiff to show that the entire property was joint family property and after initial discharge of the burden, it shifts on the defendants 13 to show that the property claimed by them was not purchased out of the joint family nucleus and it was purchased independent of them.
17. Having heard the learned counsel appearing for the appellant and also the learned counsel appearing for respondents 1 to 4 and also considering oral and documentary evidence and grounds urged in the appeal memo, the points that arise for consideration of this Court are:
i) Whether the trial Court has committed an error in not accepting the contention of defendant No.1 that the properties bearing No. 272/4B and 202/2 and a suit house schedule 'C' of the plaint are self-
acquired properties?
ii) What order? Reg:Point No.1:
18. Having heard the learned counsel for respective parties and also having regard to the fact that this appeal being the first appeal and this Court having jurisdiction to re- appreciate both oral and documentary evidence and can give a 14 finding on fact and also this Court can give finding on question of law and can re-appreciate entire material on record and re- analyze the material on record.
19. In the light of the grounds urged in the appeal memo and in view of the main contention that the trial Court erroneously has come to the conclusion that the defendant No.1 has not proved that the properties are not his self- acquired properties, this Court has to consider the material on record. The defendant No.1/appellant mainly relied upon 5 documents before the trial Court i.e., Ex.D.1 to Ex.D.5. On the other hand, the plaintiffs have relied upon record of rights, sale deed, Will, NA agreement, building permission, mutation entries, septic tank purchase receipt, receipt given by carpenter, building estimate given by the Engineer, hand book, letter received by income tax department, letter received from KEB department and also relied upon photographs Ex.P.42 and Ex.P.43 to show that all of them were living together while constructing the suit schedule house.
15
20. On the other hand, defendant No.1 mainly relies on the order of Assistant Commissioner Ex.D.1, KEB bill Ex.D.2, document of UTI marked as Ex.D.3 and Ex.D.4 and sale deed Ex.P.5.
21. The transposed plaintiff has been examined as P.W.-1 and he has reiterated the contention that he has been transposed as plaintiff in his evidence. In the cross- examination, he admits that his father had given instructions to the counsel to prepare the plaint and he does not know about the contents of the plaint. He also admits that in terms of the Will, he has not claimed any relief. He also admits that in Ex.P.4, no averment is made for having purchased the property from out of the family nucleus and he also admits that in terms of Ex.P.5, schedule 'A' item No.2 property was purchased by the 2nd plaintiff. In respect of schedule 'B' property, i.e., two acres 6 guntas, in terms of Ex.P.6 he admits that the same was purchased by the 1st defendant but he categorically states that the same was purchased by his father as per his say but there is no documentary proof and item No.3 of 'A' schedule property in terms of Ex.P.7 stands in the name of the 1st defendant. It is 16 suggested that the 1st defendant was ousted from the family when he was studying in 9th standard and the said suggestion was denied. He admits that in the year 1981 when his father came back to Karwar from Hubballi he was staying in a rented house. He admits that his father went to Belgaum and Davanagere to do the goldsmith job and he claims that in the year 1981 he was 12 to 13 years old and he was also doing the gold smith work. He also admits that his father suffered loss from his business and he came and stayed in the house of 1st defendant.
22. On the other hand, defendant No.1 who has examined himself as DW-1 in his evidence has reiterated his contention in his affidavit. He was also subjected to cross- examination. In the cross-examination, he denies that his father is originally the native of Sunkeri of Karwar but he admits that his father was having family properties and also he admits that after his marriage in 1989, he started to reside along with his father and also he admits that all of them were born and brought up by his father. He also admits that in the year 1979-80 his father came to Karwar to permanently reside 17 there. In the year 1975, he was aged about 13 to 14 years. He admits that his father was a good businessman of silver and gold. He also admits that one year prior to filing of this suit all of them were living along with their father but he claims that his father has not discharged the duties as Kartha but he admits that to show that they were doing separate business, they have not produced any document. He also admits that his sisters marriage was performed by his father but he claims that he was doing goldsmith job from the year 1981.
23. DW-1 also admits that his marriage was performed in the year 1989 and that after his marriage he was living along with his father. But he claims that he is having licence to show that he is doing goldsmith job from 1981. But, he claims that they were doing business separately and paying income tax but he admits that no documents are produced to show the same. He also admits that while doing goldsmith job, they were having separate compartment and also having separate keys. Therefore, he admits that either his father or he himself were not having separate own house. He claims that one Tulasa Badkar has collected once an amount of Rs.10,000/- and 18 Rs.2,000/- once again but there are no documents to prove the same and also he admits that without having taken any document no transaction will be done.
24. It is suggested that Schedule 1 item No.2 properties was purchased out of the joint family income by his father in the name of defendant No.2 and the same was denied and he admits that they were not having ration card till 1980 and ration card was taken in the name of his father and they were having common kitchen. But he claims that while purchasing the property he has taken loan from his maternal uncle but he is not having any document to prove the same. He also admits that after his marriage he was staying along with his father for a period of 5 years but he claims that when he constructed the house and gave an invitation for house warming ceremony, the difference arose between him and his father. He also admits that for having purchased the materials to construct the house he is not having any bills and when he purchased the property which was agricultural land. 19
25. It is suggested that alienation was made by his father only and same was denied. He admits the photograph for having laid the foundation by his parents but he claims that he got the pooja done through his parents and other photo is also confronted which are marked as Ex.D.42 and Ex.D.43 and he admits in the said photographs his other brothers were also present. He admits that for having constructed the house, he has spent an amount of Rs.3 lakhs but no documents are produced as to how he spent an amount of Rs.3 lakhs. He also claims that documents are stolen by the plaintiff by removing the almirah but he has not given any complaint. He claims that he is paying income tax from 1984 and also admits that he has not produced any documents but income tax paid receipts are there in the office. He admits that after the dispute arose between him and his father, he went and stayed in his wife's house at Sunkeri and he also admits that his father was having knowledge to read and write Kannada. He also admits that other defendants and plaintiff are still residing in the suit schedule properties and he admits that he is staying in Kursawada of Karwar after constructing a new house. 20
26. Having taken note of both oral and documentary evidence, it is seen that the claim of defendant No.1 is that he acquired the suit schedule properties which have been specifically mentioned i.e., Sy.Nos.272/4B and 202/2 and 211/2 and house property is acquired by him. But, in the cross-examination of DW-1 categorically admits that though his father is not the resident of Sunkeri village but he categorically admits that his father was having family properties and also admits that he has grown up along with his father and also admits that his father came to Karwar from Hubballi in the year 1979-80 and the same is also admitted by PW-1. He admits that in the year 1975 his age was 13 to 14 years and also admits that his marriage was solemnized in the year 1989. When his claim is that he had purchased the property from his own income but he categorically admits that after his marriage he stayed along with his father and he admits that his father performed the marriage of his sisters and he categorically admits that till one year prior to filing of the suit, they were residing together but in order to show that all of them were 21 doing separate business he is not having any documents and also not produced the same.
27. When his claim is that all of them were doing separate business and paying separate tax, no documents are produced and the same is admitted in the cross-examination and also he admits that while doing goldsmith job they were having separate compartment and also having separate keys and though he claims that he has taken loan from his maternal uncle, he has not produced any documentary proof in respect of purchase of the property and even not examined his material uncle to prove the same. He also admits that they were having common kitchen and also he claims that he had availed the loan to the extent of Rs.50,000/- but he categorically admits that to show the same, no documents are produced and though he claims that he himself constructed the house but there are no documents or bills for having purchased the materials to construct the house.
28. He also admits the photographs which are marked as Ex.P.42 and Ex.P.43 wherein his father and mother have laid 22 the foundation and other brothers were seen along with them. Thus, it is clear that all of them were living together while constructing the house. Though he claims that documents are stolen by the plaintiff, but he has not given any complaint. Though he claims that he is paying the income tax from the year 1984, but no document is produced. But he claims that he has got documents in his office but in the cross-examination he categorically admits that when the dispute started between them, he went and stayed in his in-laws' house. All this evidence shows that all of them were living together and when the difference arose between them, he went and stayed in his in-laws' house and it is also clear that even one year prior to the filing of the suit, all were living together. When such material was available before the Court and though he claims that he has purchased the property out of his own income, he has not produced any material to show that he was having any independent source of income.
29. When all these materials are considered by the trial Court while coming to the conclusion that defendant No.1 has not proved his independent income and his source of income 23 and that he claims he borrowed loan, no documents are produced and when he claims that he has taken the help from his maternal uncle, in order to substantiate the same also he has either produced any documents nor even examined his maternal uncle. When such being the case, I do not find any merit in the appeal to come to other conclusion. The admission given by defendant No.1 in his cross-examination takes out the case of defendant No.1.
30. No doubt, the principles laid down in the judgments referred to supra, there is no presumption with regard to the existence of joint family as contended by defendant's counsel and admissions given by defendant No.1 shows that they were the joint family properties and that all of them were living together till one year prior to filing of the suit and he only left the house when difference arose between them. Apart from that, father himself had filed the suit against the defendants and also his wife and subsequently he passed away and the defendant No.4 was transposed as plaintiff and though he has suffered the decree and his claim in respect of the Will was not proved, no appeal is filed by the transposed plaintiff. When 24 such being the case, I do not find any force in the contention of the learned counsel for the appellant that he was having independent source of income and that he had purchased the property out of his own income and the same has not been substantiated by producing any document and the trial Court has not committed any error in coming to such conclusion.
31. While filing the suit, the original plaintiff had not arrayed his daughters as party to the suit and hence, his daughters have been brought on record on an application filed before this Court and they have been arrayed as respondent Nos.5 and 6 in the appeal. When the properties are joint family properties, the daughters are also entitled for a share in the suit schedule properties. When such being the case, respondent Nos.5 and 6 are also entitled for a share in the suit schedule properties and hence, the judgment and decree requires to be modified to the extent that the plaintiff, all the defendants and respondent Nos.5 and 6 in the appeal are entitled to 1/6th share each instead of 1/4th with metes and bounds in respect of the suit schedule properties. 25
32. In view of the above discussion, I pass the following:
ORDER
i) The appeal is allowed in part. No costs.
ii) The judgment and decree passed by the Prl. Civil Judge (Sr.Dn.) at Karwar, dated 15.07.2005 in O.S.No.25/1998 is modified to the extent that the appellant and all the respondents including respondents 5 and 6 who have been made as parties in this appeal are entitled to 1/6th share each in suit schedule properties by metes and bounds.
iii) Registry is directed to draw the decree accordingly.
[Sd/-] JUDGE Jm/-