Karnataka High Court
Subraya S/O. Mukund Prabhu vs Timmappa S/O.Mukund Prabhu on 25 February, 2020
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
RFA.NO.4200/2013
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25th DAY OF FEBRUARY, 2020
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MS.JUSTICE JYOTI MULIMANI
REGULAR FIRST APPEAL NO.4200 OF 2013
(PAR AND SEPT. POSSN)
BETWEEN
1. SUBRAYA S/O. MUKUND PRABHU
SINCE DECEASED BY HIS LRS
1A. SURESH S/O. SUBRAYA PRABHU BALLAL
AGE: 65 YEARS, OCC: BUSINESS
R/O: NELLIKERI-581343, TQ:KUMTA
DIST:UTTAR KANNADA
1B. SHRI. UDAY S/O. SUBRAYA PRABHU BALLAL
AGE: 56 YEARS, OCC: BUSINESS
R/O: NELLIKERI-581343, TQ:KUMTA
DIST:UTTAR KANNADA
1C. PRAKASH S/O. SUBRAYA PRABHU BALLAL
AGE: 63 YEARS, OCC: BUSINESS
R/O. VAKNALLI-581343, TQ:KUMTA
DIST:UTTAR KANNADA
1D. RAMESH S/O. SUBRAYA PRABHU BALLAL
AGE: 54 YEARS, OCC: BUSINESS
R/O. VAKNALLI-581343, TQ:KUMTA
DIST:UTTAR KANNADA
RFA.NO.4200/2013
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1E. VASANT S/O. SUBRAYA PRABHU BALLAL
AGE: 61 YEARS, OCC: BUSINESS
R/O. N H 17, RAMNAGAR-581453
TQ:KUMTA, DIST: UTTAR KANNADA
1F. SUNEETA W/O. YESHWANT PRABHU
AGE: 67 YEARS, R/O: A-13, FLAT NO.47,
MAYUR CO-OPERTIVE, YASHODHAM,
FILM CITY ROAD, GOREGAON (EAST)
MUMBAI-400063
1G. SNEHAL W/O. PRADEEP SHENVI
AGE: 59 YEARS, R/O: N H 17, NEAR MAVINHOLLE
POST: GAONGERI, MAJALI-581345
KARWAR, TQ: KARWAR
DIST: UTTAR KANNADA
1E. GEETA W/O. SHRINIVAS KAMAT
AGE: 52 YEARS, R/O. 9th BLOCK, JAYANAGAR
H.NO. 201, SHANTI PARK, BANGALORE
... APPELLANTS
(BY SRI. S G KADADAKATTI, ADV.)
AND
1. TIMMAPPA S/O.MUKUND PRABHU
AGE: 85 YEARS, OCC: BUSINESS
R/O: HERWATTA, TQ: KUMTA
DIST: UTTAR KANNADA
R/BY GPA HOLDER
SHRI HARISH S/O. TIMMAPPA PRABHU
AGE 48 YEARS, R/O: HERWATTA-581332,
TQ:KUMTA, DIST: UTTAR KANNADA
2. GOPAL S/O.MUKUND PRABHU
AGE: 88 YEARS, R/O:NELLIKERI-581343,
TQ:KUMTA, DIST: UTTAR KANNADA
SINCE DEAD ON 5/9/2014 BY HIS LRS.
RFA.NO.4200/2013
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2A. SMT. RAMABAI
W/O. LATE OF GOPAL MUKUND PRABHU,
AGED ABOUT 80 YEARS,
OCC: HOUSEHOLD WORK,
R/O: VAKNALLI,
TQ: KUMATA, DIST: UTTAR KANNADA.
2B. SMT. LALITA W/O. SURESH KAMAT,
AGE ABOUT 59 YERS, OCC: HOUSEHOLD WORK,
R/O. BLOCK NO.27, D.NO.2, SDM COLONY,
2ND STAGE SRIRAMPURA, MYSORE.
2C. SRIKANTA S/O. LATE GOPAL PRABHU,
AGED ABOUT 57 YEARS, OCC: AGRICULTURE,
R/O: VAKNALLI, TQ: KUMATA, DIST: UTTAR
KANNADA.
2D. RAMAKANTA S/O. LATE GOPAL PRABHU,
AGED ABOUT 54 YEARS, OCC: BUSINESS,
R/O: VKNALLI, TQ: KUMATA, DIST: UTTAR KANNADA.
3. RAMANATH S/O. MUKUND PRABHU ,
AGE: 82 YEARS, R/O:COTTON MARKET,
NILIGIN ROAD, HUBLI-5800020,
DIST: DHARWAD.
SINCE DEAD BY HIS LRS.
3A. KRISHNAKANT
S/O LATE RAMANATH MUKUND PRABHU,
AGE: 54 YEARS, OCC: BUSINESS,
R/O. H.NO.22, NANDAGOKUL,
NEAR STEAM 1ST CROSS,
ADARSHA NAGAR, HUBBALI.
3B. SMT. JYOTI W/O S.PRABHU,
AGE: 49 YEARS, OCC: HOUSE HOLD WORK,
R/O: C/O: V.S. PRABHU 303, ANZOL PARADISE,
JBM ROAD, RAMESH NAGAR, AMBOLI,
ANDERI WEST, MUMBAI-400058
RFA.NO.4200/2013
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3C. ERIJESH
S/O LATE RAMANATH MUKUND PRABHU
AGE 39 YEARS, OCC: BUSINESS,
R/O: H.NO.22, NANDAGOKUL,
NEAR STEAM 1ST CROSS,
ADARSHA NAGAR, HUBBALI.
4. GANGA D/O. MUKUND PRABHU @
SEETABAI W/O. RAMACHANDRA SHENVI
SINCE DECEASED BY HES LRS
4A. VENKATESH S/O. RAMACHANDRA SHENVI,
AGE: 59 YEARS, R/O: NANDANGADDA,
NEAR CANARA BANK, KARWAR,
DIST: UTTAR KANNADA.
4B. RAVALANATH
S/O. RAMACHANDRA SHENVI,
AGE: 55 YEARS, R/O. NANDANGADDA-581304,
NEAR CANARA BANK, KARWAR
DIST: UTTAR KANNADA
R.NO.4(B) SINCE DEAD. HIS LRS. ARE
R.NOs.4(A) C,D,F,J ALL READY ON RECORD.
AMENDED AS PER THE ORDER DATED 3.2.2016.
(SINCE DEAD DELETED)
4C. ANAND S/O. RAMACHANDRA SHENVI,
AGE: 53 YEARS, R/O: NANDANGADDA-581304,
NEAR CANARA BANK, KARWAR,
DIST: UTTAR KANNADA.
4D. VIDYADHAR S/O. RAMACHANDRA SHENVI,
AGE: 52 YEARS, R/O: NANDANGADDA-581304,
NEAR CANARA BANK, KARWAR,
DIST: UTTAR KANNADA.
4E. DEENANATH S/O. RAMACHANDRA SHENVI,
AGE: 49 YEARS, R/O: NANDANGADDA-581304,
NEAR CANARA BANK, KARWAR,
RFA.NO.4200/2013
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DIST: UTTAR KANNADA.
R.NO.4(E) SINCE DEAD HIS LRS. ARE
R.NOs.4(E) A,C,D,F TO J ALL READY ON RECORD.
AS PER THE COURT ORDER DATED 3.2.2016.
4F. SARITA W/O. NARAYAN TENDULKAR,
AGE: 70 YEARS, R/O: NANDANGADDA-581304,
NEAR CANARA BANK, KARWAR,
DIST: UTTAR KANNADA.
4G PREMABAI W/O. RATNAKAR KAMAT,
AGE: 73 YEARS,
R/O: SHRI ANANT NAGAR SOCIETY,
NO. 433, 15TH MAIN, 26TH CROSS
POST: ELECTRONIC CITY,
HOSUR MAIN ROAD,
BANGALORE-561229.
4H SUPHALA W/O. SUBHAS PHALDESAI,
AGE: 63 YEARS, R/O: PAIAGINIM,
NEAR PANCHAYAT OFFICE,
KANKON-403001, GOA.
4I SMITA W/O. SEETAKANT BHOBE,
AGE: 71 YEARS, R/O: MAPSUA,
NEAR ICE FACTORY, BASTHODA-403001,
GOA .
4J VRINDA W/O.MADHUKAR KAMAT ,
AGE: 67 YEARS,
R/O: C/O. MADHUKAR R KAMAT,
GENERAL MERCHANT, BALALE,
MADANGERI-581344, ANKOLA,
DIST:UTTAR KANNADA.
5. VATSALA D/O. MUKUND PRABHU
@ VIJAYA W/O. MALAPPA KAMAT
AGE: 77 YEARS, R/O: VAISHNAVI NEERKERE,
HERWATTA-581332, TQ: KUMTA
DIST: UTTAR KANNADA.
RFA.NO.4200/2013
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6. MOHINI D/O. MUKUND PRABHU
@ MOHINI W/O.NAGESH KAMAT
AGE: 72 YEARS, R/O: KOPPALKARWADI,
KUMTA-581343, TQ:KUMTA,
DIST: UTTAR KANNADA.
... RESPONDENTS
(BY SRI. R M KULKARNI, ADV. FOR R1;
SRI. M.H.PATIL, ADV. FOR R2A-R2D;
SRI. MAHESH WADEYAR, ADV FOR R3A-R3C;
SRI. ARUN L NEELOPANT, ADV FOR R4A,
R4C,R4D, R4F, R5,R 6;
NOTICE TO R4G TO R4J SERVED)
THIS APPEAL IS FILED UNDER SECTION 96 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED
31.01.2012 PASSED IN OS.NO.60/2006 ON THE FILE OF
THE SENIOR CIVIL JUDGE, KUMTA, PARTLY DECREEING
THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION.
THIS APPEAL COMING ON FOR FURTHER HEARING
THIS DAY, K.S.MUDAGAL J., DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal of the legal representatives of deceased defendant No.1 arises out of the judgment and decree dated 31.01.2012 in O.S.No.60/2006 passed by the Senior Civil Judge, Kumta. By impugned RFA.NO.4200/2013 -7- judgment and decree the trial Court has decreed the suit of the plaintiff for partition and separate possession of his 1/7th share in plaint schedule A, B and C properties and item Nos. 1 and 2 of D Schedule properties and dismissed the suit in respect of item No.3 of plaint schedule D properties.
2. Respondent No.1 was the plaintiff. Appellants' father Subraya Mukund Prabhu was the first defendant. Respondent Nos.2 to 6 were defendant Nos.2 to 6 before the trial Court. Since defendant No.4 died pending the proceedings before the trial Court, her legal representatives were brought on record as defendant Nos. 4(A to J). Defendant Nos.2,3,4(B),4(E) died and therefore, their legal representatives were brought on record.
3. For the purpose of convenience the parties will be referred to henceforth with their ranks before the trial Court.
RFA.NO.4200/2013-8-
4. The subject matter of the suit were shown in schedule A to D of the plaint. Initially only plaint schedule A to C properties were included in the plaint. One of the defendants contended that the suit schedule D item Nos.1 to 3 properties were also joint family properties and the suit was bad for non inclusion of those properties. Therefore plaintiff included item Nos. 1 to 3 of D schedule properties in the case.
5. Plaintiff and defendant Nos.1 to 6 were children of Mukund Prabhu and his wife Shanteri Mukund Prabhu. Mukund Prabhu died on 23.10.1978, Shanteri Mukund Prabhu died during the year 1983-84. Mukund Subbayya Prabhu was trading in Groceries and Areca nuts. He acquired plaint schedule A properties which are as follows:
Sl.No. Survey No. Particulars Place 1 134/1 1-21-6, Kha, 0-2-0 Kumta village 2 457A1A2/14 0-6-12 Kumta village 3 457A2 0-5-0 Kumta village 4 552 Hissa K 0-4-5.25 Kumta village 5 411 1-5-0 Kumta village RFA.NO.4200/2013 -9- 6 196A1 15-31-1 Murooru village 1-19-0 7 196A2 0.15-0 Binskethri village
6. During the life time of Mukund Prabhu some buildings were constructed in some of the A schedule properties. They were shown separately as plaint C schedule properties. Plaint C schedule item No.7 consisted of a building and cashew processing unit, plants and machineries.
7. Plaintiffs case in brief is as follows:
That himself and his father Mukund Prabhu and defendant Nos.1 to 3 formed Hindu Joint Family and plaint schedule B to D properties were acquired out of the joint family income. Mukund Prabhu was trading in groceries, Areca nuts and Pepper. He extended the business to cashew processing. Defendant No.3 shifted to Hubballi and out of his own exertion established his independent industry shown in plaint schedule D item No.3. Therefore, that was his absolute property. Defendant. No.2 is trying to alter the nature of the RFA.NO.4200/2013 -10- properties without giving his 1/7th share in all the suit schedule properties.
8. All the defendants in their written statement admitted that plaint schedule A properties were acquired by the father out of his business income. Defendants also admitted that there was no partition by metes and bounds in joint family properties.
9. However, defendant No.1 contended that plaint schedule C item Nos. 2 and 7, plaint schedule D item Nos.1 and 2 were the self acquired properties of himself and his children. Defendant No.2 contended that plaint schedule C item No.2 was his self acquired property. Defendant No.3 contended that plaint schedule D item No.3 property was his self acquired property.
10. Defendant Nos. 5 and 6 contended that all the suit schedule properties were the properties acquired from the nucleus of Hindu Undivided Family RFA.NO.4200/2013 -11- properties. They contended that defendant No.1 acquired Sy.No.2A1/1F in the name of his son out of the joint family nucleus. They claimed that defendant No.3 acquired the properties in the name of his son Krishnakanth Ramanath Prabhu and Brajesh Ramanath Prabhu out of the joint family nucleus and they have share in all those properties.
11. On the basis of the pleadings, the trial Court initially framed 8 issues and 4 additional issues. However, the trial Court re-casted the issues on 31.01.2012 and framed the following 12 re-casted issues.
RECASTED ISSUES
1) Whether the plaintiff and defendant No.5 and 6 prove that the item No.2 and 7 properties of the plaint C Schedule are the joint family properties ?
RFA.NO.4200/2013-12-
2) Whether the defendant No.1 proves that the item Nos. 2 and 7 of the plaint C schedule are his self acquired properties ?
3) Whether defendant No.2 proves that the building bearing door No.1206 described in item No.2 of the plaint C schedule is his self acquired property?
4) Whether the defendant No.1 proves that the item No. 1 and 2 properties of the plaint D schedule are his self acquired properties?
5) Whether the plaintiff and the defendant No.5 and 6 prove that the item No.1 and 2 properties of plaint D schedule are the joint family properties ?
6) Whether the defendant No.3 proves that the item No.3 property of the plaint D schedule is his self acquired property ?
7) Whether the plaintiff and the defendant No.5 and 6 prove that the item No.3 property of the plaint D schedule is the joint family property ?
RFA.NO.4200/2013-13-
8) Whether the grocery business carried on by the plaintiff and the defendant No.2 and the areca business and the cashew factory run by the defendant No.1 are the joint family businesses ?
9) Whether the business carried on by the defendant No.3 at Hubli is the joint family business ?
10) Whether the parties are entitled for the share in the suit properties ? If yes, what is the share of the parties ?
11) Whether the parties are entitled for mesne profits ? If yes, at what rate and from whom?
12) What order or decree ?
12. The suit itself was filed through the Power of Attorney holder of plaintiff. He was examined as PW1 and got marked Exs.P1 to P46. Defendant No.1(a) was examined as DW1 and defendant No.1(e) was examined as DW.2. Defendant No.3 was examined as DW3. Son of RFA.NO.4200/2013 -14- defendant No.3 was examined as DW4 and daughter of defendant No.4 was examined as DW5. On behalf of the defendants Exs.D1 to D49 were marked.
13. The trial Court on hearing the parties, decreed the suit granting 1/7th share to plaintiff and defendants No.1 to 6 each, in plaint A, B and C schedule properties and item Nos.1 and 2 of plaint D schedule properties, dismissed the suit in respect of item No.3 of D schedule and awarded mesne profits since three years prior to the suit on the following grounds:
i) The plaintiff has proved that the plaint schedule A to C properties and item Nos.1 and 2 of plaint D schedule properties were the joint family properties;
ii) Defendant No.1 has failed to prove that item Nos.2 and 7 of plaint C schedule properties and item Nos.1 and 2 of plaint D schedule properties were his self acquired properties;RFA.NO.4200/2013
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iii) By the pleadings and evidence of the parties, it is proved that item No.3 of plaint D schedule property is the self acquired property of defendant No.4;
14. Though defendant No.2 claimed that item No.2 of C schedule property and defendant Nos.4 to 6 claimed that all the properties were the joint family properties, they did not file any appeal challenging dismissal of their claim with regard to those properties. Therefore the trial Court's findings in respect of those properties have attained finality against those defendants.
15. The legal representatives of defendant No.1 have challenged the judgment and decree of the trial Court only with regard to item Nos.2 and 7 of plaint C schedule properties and item Nos.1 and 2 of plaint D schedule properties. Even the prayer in the appeal memorandum is confined to that. Therefore the point to RFA.NO.4200/2013 -16- be decided in this appeal is confined to those properties.
16. Sri.S.G.Kadadakatti, learned counsel for appellants/defendant Nos.1(A) to 1(H) seek to assail the impugned judgment and decree of the trial Court on the following grounds:
i) Defendant No.1 was admittedly
employed in Customs Department in
Mumbai and on his return, he joined
business of his father for some time.
However, later he established his own
business. Therefore, the trial Court erred in holding that defendant No.1 and his dependants failed to prove their source of income to establish business in plaint C schedule item No.7 property.
ii) If schedule C item No.7 property was their family property, there was no reason RFA.NO.4200/2013 -17- for Mukund Prabhu to execute the lease deed in favour of the Firm Ballal Cashew nut Processors.
iii) Ex.D15 the lease deed shows that Mukund Prabhu as the Karta of the Joint Hindu Family executed the lease deed in favour of defendant No.1(a) Suresh Prabhu as the Managing Partner of Cashew nut Processors. It goes to show that the business run, was an independent business.
iv) Ex.D16, the partnership deed dated 01.04.1992 shows that defendant No.1 and his sons were the exclusive partners of the said Firm and not other defendants and Mukund Prabhu. The trial Court failed to appreciate the evidence in proper perspective.
RFA.NO.4200/2013-18-
v) Though there is presumption regarding the jointness of Hindu Family, there is no presumption that properties standing in the names of its members are joint family properties, more so when the properties are in the names of the junior members of the joint family.
17. Per contra learned counsel for respondents/ plaintiff and co-defendants seek to support the impugned judgment and decree of the trial Court on the following grounds:
i) Admittedly father was running grocery, pepper and areca nuts business since 1949 and out of the said income, he acquired the schedule A property.
ii) Initially all the sons joined the said business. Though for some time, defendant No.1 joined Government Employment again RFA.NO.4200/2013 -19- he joined family business. Defendant No.3 shifted to Hubli in 1972. Therefore there was sufficient evidence to show that the family owned the properties which were capable of generating nucleus to acquire other properties.
iii) Mukund Prabhu got converted his agricultural lands in A schedule at Muroor for non agricultural use out of which item Nos.1 and 2 of D schedule and all the C schedule properties were developed. If they were the properties of defendant No.1, there was no need for him to get them converted.
18. After arguments were addressed by learned counsel for the appellants on I.A.No.1/2020 was filed by the appellants to adduce additional evidence. The appellants by way of additional evidence sought to produce 17 documents.
RFA.NO.4200/2013-20-
19. In the affidavit filed in support of I.A.No.1/2020, they contend that only defendant No.1 their father was aware of those documents and due to medical condition, he was not able to produce them or disclose to them about those documents. The appellants further contended that those documents are necessary for complete adjudication of the appeal.
20. The application was vehemently opposed by the respondents/defendants on the ground that those documents are false, irrelevant, inadmissible and filed to protract the proceedings.
21. Having regard to the rival contentions, the following points arise for consideration of the Court:
"i). Whether the trial Court was justified in holding that plaint schedule C item Nos.2 and 7 and plaint schedule D item Nos.1 and 2 properties were joint family properties?
ii) Whether appellants have made out the grounds for additional evidence?" RFA.NO.4200/2013 -21-
22. As already pointed out, there was no dispute that Mukund Prabhu, father of the plaintiff and defendant Nos.1 to 6 started dealing in grocery and areca nut business as long back in the year 1949. It was not disputed that out of the income of the business, he acquired plaint schedule A property, which were 7 in number and substantial in value and potentiality. It was also not disputed that plaintiff and defendant No.2 carried on business of their father. Father died in the year 1978. Earlier to that, plaintiff and defendant No.2 were running the family business and carried on the same.
23. Defendant No.1 for a short span of his life worked in the Bank and Customs Department and after his return, joined the business of his father in grocery. It was not in dispute that defendant No.3 shifted to Hubli to carry on his own Trade, acquired plaint schedule D item No.3 property.
RFA.NO.4200/2013-22-
24. There was no dispute that on the death of father in 1978, there was no partition by metes and bounds in the properties left behind by him. Schedule A item Nos.1 to 7 were substantial properties. There is evidence to show that the father, who was carrying on the business was capable of generating nucleus from them to acquire other properties.
25. Ex.P37, Registration Certificate dated 05.11.1962 was issued up to the period 1967 to run grocery and areca nut business, which was renewed under Ex.P38. In Ex.P38, Mukund Prabhu and his sons were shown as partners of the firm M/s.Subraya Mukund Prablu Ballal. That shows that the family was carrying grocery business and areca nut business in the name of the Partnership Firm. The evidence on record was sufficient to prove that the family was capable of generating nucleus to acquire plaint schedule B to D properties. Therefore, the burden shifted to defendant RFA.NO.4200/2013 -23- No.1 to show that himself and his children had independent income to acquire those properties. But no evidence was placed to show such source.
26. Defendant No.1 and his heirs failed to prove that defendant No.1 had independent source of income to acquire the properties. Except for the contention that defendant No.1 was employed and carrying on his own business in grocery, no material was placed on record to show whether he got any benefits from his employment, if so how much he got and whether that was appropriated in acquiring any of the properties.
27. The major dispute was with regard to Cashew Processing Industry, which is shown in plaint schedule C as item No.7. So far as the building on plaint schedule C item Nos.2 and 7 properties are concerned, it was contended that those buildings were constructed by defendant No.1 out of his own income. But admittedly father got the land converted for non RFA.NO.4200/2013 -24- agricultural use and the buildings were constructed during his life time. Even plaint D item Nos.1 and 2 properties were also constructed during the life time of their father and those buildings were constructed on the plaint schedule A item Nos.1 to 7 properties during his life time. Nothing like building licence etc. were produced to show that defendant No.1 got constructed those properties.
28. Relying on Ex.D15 the lease deed, Exhs.D16 and D17 partnership deeds, defendant No.1 contended that plaint schedule C item No.7 was his absolute property. But Ex.P25 shows that Mukund Prabhu filed application for conversion of the land on 22.01.1975 to start Cashew Factory. Though the industry was started in the year 1975-76, Mukund Prabhu executed Ex.D16 lease deed dated 12.04.1976 as Karta of Hindu Joint Family in favour of Suresh Prabhu, defendant No.1(a) as the Managing Partner of Ballal Cashew Processors. RFA.NO.4200/2013 -25-
29. It was incumbent on defendant No.1 and his heirs to show who were the partners of Ballal Cashew Processors in the year 1975-76 to claim that defendant No.1 and his children alone were the owners of the said properties. They produced Exhs.D16 and D17 Partnership Deeds dated 01.04.1992 and 01.04.1994, which came into existence after the death of father. As rightly pointed out by the trial Court, Exhs.D16 and D17 were the documents regarding reconstitution of the firm. They show that the firm commenced initially under the partnership deed dated 13.02.1975 in the name and style of Ballal Cashew Industries, Muroor. If the partnership deed dated 13.02.1975 was produced, it would have shown who were the partners as on 13.02.1975, whether it was defendant No.1 and his sons or Mukund Prabhu and his sons. Therefore, the trial Court rightly drew adverse inference regarding suppression of the said document.
RFA.NO.4200/2013-26-
30. Even though the heirs of respondent No.1 produced 17 documents along with I.A.No.1/2020, in those documents, partnership deed of Ballal Cashew processors, Muroor, referred to in Exs.D16 and 17 is conspicuously absent. The documents produced are only alleged income tax assessment orders etc. They are not even primary evidence and do not throw any light on the issue in the suit. The reasons assigned for belated production are totally un-acceptable. Though it was contended that on medical grounds their father could not produce substantial evidence, except the self serving statement of the deponent, nothing is produced to substantiate that ground. Therefore this Court does not find any ground to receive those documents on record.
31. DW1 in his cross examination admitted that the grandfather Mukund Prabhu was doing large scale business in areca nut and grocery items. He pleads his RFA.NO.4200/2013 -27- ignorance about the income of his grandfather from the grocery shop and areca nut business. Ex.P25 shows that Mukund Prabhu got converted the land on 22.01.1975, for non agricultural use which was the period of commencement of Cashew Factory.
32. Though DW1 demonstrated his ignorance about conversion of the said land for the purpose of starting the shop, but he admitted that his grandfather got constructed the shop for starting grocery business. His evidence regarding the capital for the partnership firm to commence Cashew Industry and income from the firm is very bald.
33. The evidence on record coupled with the fact that Mukund Prabhu acquired plaint schedule A properties which were substantial in nature shows that he had a flourishing business which enabled him to acquire those properties. In the light of that, the trial Court rightly reached the conclusion that the family of RFA.NO.4200/2013 -28- Mukund Prabhu and his sons owned the properties generating nucleus to acquire plaint schedule B to D properties except item No.3 of plaint D schedule property.
34. Admittedly defendant No.3 shifted to Hubballi and started his independent business and acquired plaint item No.3 of D schedule property out of his own income.
35. Further, defendant No.1 and his heirs did not adduce acceptable evidence of their independent income to acquire plaint schedule B, C and item Nos.1 and 2 of plaint D schedule properties. Therefore, the trial Court rightly arrived at the conclusion that the said properties were joint family properties.
36. According to the parties, A schedule properties were self acquired properties of Mukund Prabhu and the other properties were acquired out of nucleus generated from his absolute properties. As per RFA.NO.4200/2013 -29- the terms if Ex.D.15 property let out by Mukund Prabhu was to revert to him along with the structure, if any, put up by the members of the firm/tenant. Therefore, he becomes the absolute owner of those properties. Therefore the trial Court was right in granting equal shares to all the children in the suit schedule properties. The judgment and decree of the trial Court in that regard is based on the sound appreciation of the evidence and legal position.
37. So far as the mesne profits, the trial Court has awarded mesne profits, proportionate to the share of the plaintiff and defendants No.1 to 6 in suit schedule properties and business carried out by plaintiff and defendants No.1 and 2 since 3 years prior to the filing of the suit, till they are put into separate possession and enjoyment of the share in the suit schedule properties. Whether that was justified, is the question to be looked into.
RFA.NO.4200/2013-30-
38. Admittedly father died in the year 1978. The suit was brought in the year 2006 i.e., after 28 years of the death of father. At the most, father carried on the Cashew Industry only for a period of 3 years that is till his death in 1978. It was not in dispute that the daughters did not contribute to the business. They were only the partners in the business of their father and the sons only contributed their labour and resources to the business till his death in the year 1978.
39. Having regard to the delay of 28 years in filing the suit the trial Court was not justified in awarding mesne profits in the business since three years prior to filing of the suit. Admittedly partition was demanded soon before the filing of the suit. Therefore, the parties would be entitled for the mesne profits from the date of filing of the suit. For the aforesaid reasons, I.A.No.1/2020 is dismissed and the appeal is partly allowed.
RFA.NO.4200/2013-31-
40. The judgment and decree of the trial Court granting 1/7th share to plaintiff and defendants No.1 to 6 in plaint schedule A, B and C and item Nos.1 and 2 in D schedule properties and dismissal of the suit in respect of item No.3 of plaint schedule D is confirmed. The decree with regard to mesne profits is modified as follows:
i) The parties are entitled for mesne profits, proportionate to their shares in the suit schedule properties except item No.3 of Plaint D schedule from the date of the suit, till they are put into separate possession and enjoyment of their shares in those properties.
Having regard to the relationship between the parties, they shall bear their own costs.
Sd/-
JUDGE Sd/-
JUDGE Vb/kgk