Karnataka High Court
Hanumantharayappa S/O Channabyrappa vs C Muniraju on 16 December, 2025
Author: V Srishananda
Bench: V Srishananda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF DECEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
R.F.A.No.2076/2006
C/W RFA CROSS OBJECTION NO.17/2012
IN R.F.A.NO.2076/2006
BETWEEN
1. HANUMANTHARAYAPPA
AGED ABOUT 64 YEARS
S/O CHANNABYRAPPA
R/O DHARAMAPURA VILLAGE,
CHANNARAYAPATNA POST
VIJAYAPURA HOBLI,
DEVANAHALLI TALUK
BANGALORE DISTRICT-562 135.
2. MUNIYAMMA
AGED ABOUT 54 YEARS
W/O MUNIBHACHAPPA
R/O NADAPINAYAKANAHALLI
JANGANAMAKOTE POST,
SIDLAGHATTA TALUK,
KOLAR DISTRICT-562 105.
3. MUNITHAYAMMA
AGED ABOUT 49 YEARS
W/O G HOSAHALLI VILLAGE
NADI EDIGANAHALLI POST
DEVANAHALLI TALUK
BANGALORE DISTRICT-562 135
2
4. C LAKSHMANA
AGED ABOUT 48 YEARS
S/O CHANNABYRAPPA
R/O DHARAMAPURA VILLAGE
VIJAYAPURA HOBLI,
DEVANAHALLI TALUK
BANGALORE DISTRICT-562 135
...APPELLANTS
(BY SRI MANJUNATH G. KANDEKAR, ADVOCATE FOR
A1 AND A4)
AND
1. C MUNIRAJU
AGED ABOUT 46 YEARS
2. C KRISHNAPPA
AGED ABOUT 56 YEARS
RESPONDENTS 1 AND 2 ARE
RESIDENTS OF
R/O DHARAMAPURA VILLAGE,
CHANNARAYAPATNA POST
VIJAYAPURA HOBLI,
DEVANAHALLI TALUK
BANGALORE DISTRICT.
3. P A CHOWDAPPA
AGED ABOUT 68 YEARS
S/O CHANNABYRAPPA
R/O DHARAMAPURA VILLAGE
CHANNARAPATNA POST,
VIJAYAPURA HOBLI
DEVANAHALLI TALUK
3
BANGALORE DISTRICT
4. KEMPAMMA
AGED ABOUT 70 YEARS
W/O CHANNABYRAPPA
R/O ANGARAKANAHALLI
MARELAGUNTE POST
SIDHLAGHATTA,
KOLAR DISTRICT- 562 105
5. MUNIKEMPAMMA
AGED ABOUT 52 YEARS
R/O KOLAVANAHALLI,
D. HOSUR POST
CHIKKABALLAPURA TALUK
KOLAR DISTRICT-562 135
6. HANUMAKKA
SINCE DEAD NOT MADE PARTY
7. SMT.NAGARATHNAMMA
D/O C.HANUMANTHARAYAPPA
AGED ABOUT 55 YEARS
R/O DHARMAPURA VILLAGE
MANDIBELE POST
VIJAYAPURA HOBLI
DEVANAHALLI TALUK
BANGALORE RURAL DISTRICT
...RESPONDENTS
THIS RFA IS FILED UNDER SECTION 96 R/W
ORDER 41 RULE 1 OF CIVIL PROCEDURE CODE
AGAINST THE JUDGMENT AND DECREE DATED
12.9.2006 PASSED IN O.S.NO.86/2006 ON THE FILE
OF THE CIVIL JUDGE (SR.DN) AND JMFC,
4
DEVANAHALLI, DECREEING THE SUIT FOR PARTITION
AND SEPARATE POSSESSION.
IN R.F.A.CROB.NO.17/2012
BETWEEN :
1. CHOWDAPPA
AGED ABOUT 70 YEARS
S/O CHANNABYRAPPA
R/AT DHARMAPURA VILLAGE,
MANDIBELE HOBLI, VIJAYAPURA HOBLI,
DEVANAHALLI TALUK,
BANGALORE RURAL DISTRICT.
...CROSS OBJECTOR
(BY SRI N NAGARAJA, ADVOCATE)
AND :
1. HANUMANTHARAYAPPA
AGED ABOUT 67 YEARS
2. KEMPAMMA
AGED ABOUT 70 YEARS
D/O CHANNARAYAPPA
R/AT ANGEREKANAHALLI,
SIDLAGHATTA TALUK
CHIKKABALLAPUR DISTRICT.
3. MUNIKEMPAMMA
AGED ABOUT 60 YEARS
W/O CHANNAKRISHNAPPA
R/AT KOLAVANAHALLI
CHIKKABALLAPUR TALUK/DISTRICT
5
4. MUNIYAMMA
DEAD BY LRS.,
4(a) NARAYANASWAMY
AGED ABOUT 55 YEARS
4(b) CHANNEGOWDA
AGED ABOUT 53 YEARS
4(c) DEVARAJU
AGED ABOUT 52 YEARS
4(d) VENKATESH
AGED ABOUT 49 YEARS
ALL ARE CHILDREN OF LATE MUNIYAMMA
AND MUNIBHACHAPPA
ALL ARE R/AT NADUPINAYAKANAHALLI
JANGAMAKOTEI POST
SIDDLAGHATTA TALUK
CHIKKABALLAPURA DIST.
5. MUNITHAYAMMA
AGED ABOUT 52 YEARS
W/O GOVINDAPPA
R/AT HOSAHALLI VILLAGE,
NANDIBIDEGANAHALLI POST,
DEVANAHALLI TALUK,
BANGALORE DISTRICT.
6. C. LAKSHMANA
AGED ABOUT 58 YEARS
7. SRI KRISHNAPPA
AGED ABOUT 64 YEARS
8. SRI. MUNIRAJU
AGED ABOUT 54 YEARS
6
HANUMAKKA DEAD LRS ON RECORD
R1, R6 TO R8 ARE RESIDING AT
DHARMAPURA VILLAGE
VIJIAYAPURA HOBLI,
DEVANAHALLI TALUK,
BANGALORE RURAL DISTRICT.
...RESPONDENTS
(BY SRI T.N.VISHWANATHA, ADVOCATE FOR R8;
R1, R6, R7 ARE SERVED AND UNREPRESENTED;
VIDE ORDER R(J) CIRCULAR NO.126/2021 DATED
25.11.2021, R2, R3 AND R5 ARE SERVED;
R4(A) TO R4(D) AND R5 ARE SERVED AND
UNREPRESENTED)
THIS RFA.CROB IS FILED UNDER ORDER 41, RULE
22 OF CODE OF CIVIL PROCEDURE AGAINST THE
JUDGMENT AND DECREE DATED 12.09.2006 PASSED IN
O.S.86/2006 ON THE FILE OF THE CIVIL JUDGE, (SR.
DN.), AND JMFC, DEVANAHALLI, DECREEING THE SUIT
FILED FOR PARTITION AND SEPARATE POSSESSION.
THIS RFA AND RFA.CROB HAVING BEEN RESERVED
FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS
DAY, THE COURT PRONOUNCED THE FOLLOWING:-
7
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE V SRISHANANDA) Heard Sri.Manjunath G. Kandekar, learned counsel for the appellant Nos.1 and 4, Sri.T.N.Vishwanatha, learned counsel for caveator/respondent Nos.1 and 2, Sri.N.Nagaraja, learned counsel for respondent No.3, Sri.Byregowda N., learned counsel for Nos.4 and 5 and Sri.M.Murali Babu, learned counsel for respondent No.7.
2. Defendant Nos.2, 4, 6 and 8 are the appellants challenging the validity of the judgment and decree passed in O.S.No.86/2006 dated 12.09.2006 on the file of Civil Judge (Senior Division) and JMFC, Devanahalli in this appeal.
3. Parties are referred to as plaintiffs and defendants for the sake of convenience as per their original ranking in the Court below.
8
4. Facts in the nutshell, which are utmost necessary for disposal of the appeal is as under:
4.1. A suit came to be filed by the plaintiffs for the relief of declaration that plaintiffs have got 11/60th share in the following properties (hereinafter referred to as suit properties) and for the relief of partition and separate possession for the aforesaid share and restraining the defendants from alienating the suit properties:
SCHEDULE 'A' PROPERTIES "1) Part and parcel of land bearing Sy.No.6 measuring 5 Acres, situated at Shantha Kuntana Halli Village and bounded on the East by : Government Road West by: Dodda Kempamma and Muni Maddurappa's Land North by : Chinnappa and Narayanappa's Land South by : Cart Tract
2) Part and parcel of land bearing Sy. No. 89/1 measuring 1 Acre 22/2 Guntas, bounded on the 9 East by: Lands of Hanumарра West by :Lands of Dodda Kempamma North by: Lands of Anjanappa South by: Land bearing Sy. No. 9/2
3) Part and parcel of land bearing Sy No.89/2 measuring 2 Acres 35 Guntas, bounded on the East by : Lands of Hanumaрра West by : Lands of Muni Akkayyamma North by: Land bearing Sy. No. 89/1 South by : Lands of Pilla Kenchappa
4) Part and parcel of land bearing Sy. No.9/2 measuring 0-24 Guntas Bounded on the East by : Land bearing Sy.No.89/1 and 89/2 West by : Canal North by : Lands of Anjanappa South by : Land bearing Sy No. 9/3.
5) Part and parcel of land bearing Sy. No. 9/3 measuring 0-21 Guntas bounded on the :
East by : Land bearing Sy. No. 89/1 & 89/2 West by :Canal North by : Sy. No. 9/2 South by : Lands of Muni Akkayyamma 10 6) Part and parcel of land bearing Sy. No. 98 measuring 2 Acres, bounded on the East by :Gomal Sites /Lands West by : Forest Land North by : Land bearing No.97 South by : Road 7) Part and parcel of land bearing Sy No. 97 measuring 2 Acres, bounded on the East by :Gomal Sites /Lands West by : Forest Land North by : Land bearing No.107 South by : Land bearing Sy.No.28
8) Part and parcel of land bearing Sy. No.107 measuring 2 Acres, 08 guntas bounded on the East by :Gomal Sites /Lands West by : Forest Land North by : Land bearing No.108 South by : Land bearing Sy.No.97 9) Part and parcel of land bearing Sy. No. 108 measuring 2 Acres 04 Guntas, bonded on the :
East by :Gomal Sites /Lands West by : Forest Land 11 North by : Lands of Muniswamappa South by : Land bearing Sy.No.107
10) Part and parcel of land bearing Sy. No.1/3 measuring 2 Acres, bonded on the :
East by :Gomal Sites /Lands West by : Forest Land North by : Lands bearing Sy.No.108 South by : Lands of Muniswamappa
11) Part and parcel of land bearing Sy. No.52/5 measuring 27 and ½ Guntas, bonded on the :
East by :Canal West by : Lands of venkataswamappa North by : Lands of Anjanappa South by : Road
12) Part and parcel of land bearing Sy.No.77/1 measuring 0.30 Guntas, bonded on the :
East by :Canal West by : Road North by : Lands bearing Sy.No.81/2 South by : Lands of Dodda Motappa 12
13) Part and parcel of land bearing Sy No.81/2 measuring 1 Acre 26 Guntas, bounded on the:
East by :Canal West by : Road North by : Lands of Hanumanthappa South by : Land bearing Sy.No.77/1
14) Part and parcel of land bearing Sy. No. 59/2 measuring 0-08 Guntas, bounded on the:
East by :Lands of Hanumanthappa West by : Kaluve North by : Lands of Anjanappa South by : Lands of Hanumappa
15) Part and parcel of land bearing Sy. No. 59/1 measuring 0-27 Guntas, bounded on the:
East by :Lands of Chikka Kempanna West by : Lands of Anjanappa North by : Lands of Muni Venkatappa South by : Lands of Hanumappa
16) Part and parcel of land bearing Sy. No. 57/1 measuring 8 & ½ Guntas bounded on the:
East by :Land bearing Sy.No.57/3 West by : Lands of Hanumanthappa 13 North by : Lands of Hanumanthappa South by : Lands of Hanumappa
17) Part and parcel of land bearing Sy No.57/5 measuring 0-06 & 1/2 Guntas, bounded on the East by :Land bearing Sy.No.57/3 West by : Kaluve North by : Lands of Hanumanthappa South by : Lands of Hanumappa
18) Part and parcel of land bearing Sy No.57/3 measuring 0.13 & ½ Guntas bounded on the East by : Kaluve and Lands of Hanumanthappa West by : Land bearing Sy.No.57/1 North by : Lands of Hanumanthappa South by : Lands of Hanumappa
19) Part and parcel of land bearing Sy No.38/3 measuring 0-04 & 1/2 Guntas bounded on the East by : Kaluve West by : Kaluve North by : Lands of Hanumanthappa South by : Lands of Andeppa Sl. No.14 to 19 are situated at Gejjukuppe village. 14
SCHEDULE 'B' PROPERTIES
1) Part and parcel of site bearing Janjar No.119, measuring 28 X 28 ft bounded on the East by : Remaining Property West by : Road North by : Road South by : House of Putta Muniyappa
2) Part and parcel of site (palya) bearing property No.83 measuring 88 X 28 ft. and bounded on the :
East by : Property of Hanumakka West by : Remaining property North by : Road South by : Dhari
3) Property bearing Janjar No.120 (Malige Mane) measuring 60 X 31 ft. bounded on the East by :Road West by :Vacant Site North by : Road South by : Dhari
4) Property No. 84 (palya) measuring 32 X 31 ft.
bounded on the East by : House 15 West by : Hanumantharayappa North by: Road South by: Dhari
5) Vacant site bearing property No. 193, measuring 40 X 90 ft bounded on the East by: Road West by: Vacant site North by : Site. No. 62 South by :Site No.58 All the above properties are situated at Dharmapura Village, Vijayapura Hobli, Devanahalli Taluk, Bangalore District.
6) Part and parcel of Malige Mane bearing Janjar No.109, measuring 9 X 13 ft bounded on the East by: Road West by: Property of Krishnappa North by :Property of Muniswamappa South by :Dhari
7) Part and parcel of Malige Mane bearing Janjar No.110, measuring 25 X 21 ft. and bounded on the:
East by: Property of Hanumakka
West by: Road
16
North by : Dhari
South by :Property of Chowdappa
8) Part and parcel of site (Palya) bearing property No.73, measuring 15 X 21 ft. bounded on the:
East by: Property of Muniswamappa West by: Property of Hanumappa North by : Dhari South by :Property of Chowdappa Above properties are sitauted at Dharmapura Village, Vijayapura Hobli, Devanahalli Taluk, Bangalore District.
9) Part and parcel of House (Stone House) measuring 42 X 40 ft. situated at Dharmapura Village, Vijayapura Hobli, Devanahalli Taluk, Bangalore District, bearing Janjar No.199, Property No.194 and bounded on the East by: Dhari West by: Saguvali Land North by : Saguvali Land South by : Saguvali Land 17 SCHEDULE 'C' PROPERTIES MOVABLES:
1. Stone slabs 10 x 3 ft. 100 Rs.40,000/-
Nos.
2. Angles (Sheets) Rs.50,000/-
3. Cement Sheets 10 x3 & ½ ft. Rs.16,000/-
4. Width Stone 10 X 1 & ½ ft Rs.30,000/-
5. Tyre Gadi -
6. Cows 5 Nos. -
7. Tractor FURGUSON - CAW- -
2941, 1989 model, Trailer No. CAW -2942
8. Generator with pump Rs.15,000/-
9. Bore-well 4 Nos. i.e., land -
bearing Sy.Nos.89/1, 89/2, 98 & 97 GOLD ORNAMENTS:
1)3 pairs chain-3 Nos. each measuring 65 gms.
2)Ear stud and Jumki - 3 pairs in all measuring 50gms."18
4.2. It is contended that Channabyrappa is the father of the plaintiffs and defendants and defendant No.7 is his wife. Channabyrappa said to have died on 30.07.1995, leaving behind plaintiffs and defendants as his legal representatives.
4.3. Among the defendants, defendant Nos.3 to 6 are the sisters, who have been married long ago and they are residing with their respective husbands.
4.4. Suit properties are the ancestral properties and were under the management of defendant No.2 who is an educated person in the family. Defendant No.1 is the eldest son of Channabyrappa and property described in suit item Nos.14 to 19 under 'A' schedule are situated at Dharmapura Village and are originally ancestral properties. Remaining properties mentioned in the schedule are acquired by the plaintiffs' father out of the income derived from the ancestral property in his name as well as in the name of defendant No.2. Plaintiff further contended that 19 thus the 'B' schedule properties are also to be treated as joint family properties.
4.5. It is further contented that defendant No.2 being better educated in the family, having worldly knowledge, was managing the affairs of the suit properties of Channabyrappa even though defendant No.1 was the eldest male member after the death of Channabyrappa. After the death of Channabyrappa, katha of 'A' schedule properties were transferred in the name of defendant No.2 for convenience and differences arose among the family members.
4.6. Plaintiffs demanded partition and separate possession of their shares which was agreed to be given by the defendant Nos.1 and 2 and later on, postponing the same on one pretext or the other.
4.7. As such, there was a panchayat convened during May, 1998 and panchayat advised defendant Nos.1 and 2 to accord legitimate share of the plaintiffs. In the panchayat, defendant Nos.1 and 2 agreed to accord the 20 shares but defendant No.2 who acted as kartha, wanted a larger share in the suit properties which was not accepted by the plaintiffs.
4.8. It is also the contention of the plaintiffs that taking advantage of the ignorance and the implicit confidence reposed by the plaintiffs, defendant No.2 created some documents with regard to the suit properties and attempted to alienate the same for his wrongful gain.
4.9. In the guise of managing the suit properties, defendant No.2 also borrowed huge loans and when the plaintiffs repeatedly demanded for partition, his sons threatened the plaintiffs and therefore, suit for partition came to be filed.
5. Pursuant to the suit summons, defendant No.2 filed a written statement which was adopted by defendant Nos.1, 3 to 7 by filing a memo on 14.07.2000. 21
6. In the written statement, entire plaint averments were denied and there was a specific denial that the suit properties are the ancestral properties held by Channabyrappa.
7. It is also denied that defendant No.2 was managing the property. They contended that the properties acquired by Channabyrappa are his individual properties and there was no joint family income utilized for purchase of the properties by Channabyrappa.
8. Defendant No.2 further maintained that the properties mentioned in 'B' schedule are the individual properties of Channabyrappa and himself.
9. Defendant No.2 admitted that Channabyrappa died about five years ago and marriage of defendant No.2 took place in the year 1968 and his wife hails from a rich family and with the aid of his father-in-law and brother-in- law, defendant No.2 acquired item Nos.2 to 5 of the suit properties and ever since their acquisition, defendant No.2 enjoyed those properties exclusively. 22
10. It is also contended that suit item Nos.8 and 9 of 'C' schedule properties are the joint family properties and are open for partition. But gold ornaments and other things are not in existence and sought for decreeing of the suit in part only in respect of item Nos.8 and 9 of the 'C' schedule properties.
11. Based on the rival contentions of the parties, learned Trial Judge has raised following issues:
1. Whether the plaintiffs prove that suit schedule properties are all the joint family properties consisting of themselves and defendants and they are in joint possession as alleged?
2. Whether the 2nd defendant proves that suit item Nos.2 to 5 of A schedule properties are the self acquired properties of himself under the circumstances pleaded in paragraph 19 to 21 of the written statement?
3. Whether the 2nd defendant further proves that suit item No.1 of A schedule is a granted land to 1st defendant and it is his self acquired property as alleged in paragraph 22 of the written statement? 23
4. Whether the 2nd defendant further proves that C schedule properties are not in existence as alleged in paragraph 23 of the written statement?
5. Whether the plaintiffs are entitled for partition and separate possession of 11/60th share in all schedule properties on the future mesne profits as prayed?
6. To what relief, if any, the parties are entitled?
12. In order to prove the case of the plaintiffs, plaintiff No.1 got examined as PW.1 and two witnesses namely Chikkamotappa and H. Muniyappa as PW.2 and PW.3.
13. On behalf of plaintiffs, as many as 50 documentary evidence were placed on record which were exhibited and marked as Ex.P.1 to Ex.P.50 comprising of genealogy, mutation register extract, certified copy of the order of tahsildar, certified copy of mahazar, notice issued by village accountant, mutation, copy of the order of Tahsildar, copy of mahazar, notice issued by village accountant, copy of Form No.19, certified copy of vote list, 24 sworn affidavit, notice issued by VSSN Mandible, certified issued by PLD Bank, notice issued by Vysya Bank, police acknowledgments, sale deed, Xerox copy of the letter written to Tahsildar, pahanies, home and land tax assessment list.
14. As against the evidence placed on record, defendant No.2 got examined as DW.1 and on his behalf, 12 documents were placed on record as Ex.D.1 to D.12, comprising of ration card, sale deed, RTC extracts, bank notice, society notice, endorsement issued by Tahsildar, kandayam and tax paid receipts and society notice.
15. On conclusion of recording of the evidence, learned Trial Judge heard the arguments of the parties in detail and by impugned judgment, decreed the suit of the plaintiffs by granting 11/60th share and ordered enquiry into mesne profits.
16. Suit was dismissed insofar as gold ornaments are concerned as they were not available for partition. 25
17. Likewise, defendant No.1 have filed cross- objection to the appeal which would be dealt in detail infra.
18. Being aggrieved by the same, it is defendant Nos.2, 4, 6 and 8 have filed the present appeal on the following grounds:
"That the Judgment and Decree passed by the Trial Court is contrary to the facts, materials and the law. Hence, it is liable to be set aside. That the Trial Court has totally ignored the unequivocal and clear admission made by the Plaintiffs to the effect that only items from 14 to
19 of 'A' schedule Properties are joint family properties. The reasons given by the Trial Court in this regard are perverse and on this ground alone the impugned Judgment and Decree is liable to be set-aside.
That the PW-1 in his evidence affidavit at para 2 has clearly admitted that after the death of their father though the Defendant No.1 was eldest brother, the Defendant No.2 was looking after the properties. How can a younger brother can become a kartha of the family and this aspect has not been properly considered by the Trial Court while passing the impugned Judgment and Decree. 26 That the Plaintiffs have clearly admitted that the 11 properties claimed by the Defendants are the self acquired properties. And further PW-1 has admitted that he has not produced any record to show that there was money with his father to acquire properties. He also admitted that he has not seen the sale deeds and agreements of Survey No.89/1, 89/2 and 89/3 and further admitted that the annual income of the 2nd Defendant is Rs.50,000/- per annum and this itself was sufficient income for acquisition of properties by the 2nd Defendant independently. But the Trial Court has brushed aside the said clear various admissions made by the Plaintiffs. Hence, the impugned Judgment and Decree is perverse, one sided, unjust and illegal.
That the trial court has not appreciated the ratio of the judgment cited by the Defendant No.2 in proper perspective and thereby wrongly held that it is not sufficient to show that joint family have some assets.
That the Plaintiffs have miserably failed to prove that the assets of the joint family have formed the nucleus from which disputed assets have been acquired. In the absence of the same the Trial Court has decreed the suit erroneously and further wrongly held that the ratio of the Supreme Court 27 Judgment is not at all applicable to the case on hand on the ground that the above judgments are related to establishment of business and not acquisition of agricultural land.
That the trial court has wrongly answered the issue Nos.1 and 5 in the affirmative and issue Nos.2, 3 and 4 in the negative without there being proper application of mind to the facts pleaded and material produced by both the parties herein. That the trial Court has heavily relied upon the written statement filed by the 2nd Defendant and thereby erroneously come to the conclusion that he has taken inconsistent pleas. It is a well settled law that the Defendants can take up inconsistent and alternative pleas as de and the Plaintiffs have to succeed on their own strength and merits and not on the inconsistency of defence taken by the Defendants. This principle has not been followed by the Trial Court while passing the impugned Judgment and Decree.
That the Trial Court has wrongly calculated the shares in respect of the suit schedule properties without following method of calculation while fixing the quantum of shares and it is obligatory and incumbent on the part of the Trial Court to fix the quantum of shares in accordance with law. In 28 not doing so has occasioned miscarriage of justice to the Defendants.
That the conclusions arrived at and the inferences drawn by the Trial Court is contrary to the law, facts and material on record warranting immediate interference of this Hon'ble Court."
19. Learned counsel for the appellants reiterating the grounds urged in the appeal memorandum contented that learned Trial Judge failed to note the overwhelming evidence placed on record by defendant No.2 who is examined as D.W.1 and wrongly decreed the suit of the plaintiffs resulting in miscarriage of justice and sought for allowing the appeal.
20. He would further invite the attention of this Court by contending that Trial Court has wrongly calculated the share in respect to the suit properties without following the established procedure while fixing the quantum of shares resulting in miscarriage of justice. 29
21. He also contended that plaintiffs failed to establish the assets of the joint family so as to prove that there was surplus in the joint family which was spilled over to purchase the suit properties and the reasons assigned by the learned Trial Judge in treating the suit 'B' schedule properties are earned out of the joint family income has resulted in grave miscarriage of justice besides opposed to the settled principles of law on the point and sought for allowing the appeal.
22. Learned counsel for the appellants further contented that plaintiff No.1 who is examined as PW.1 clearly admitted that defendant No.1 is the eldest male member, but defendant No.2 was made as karta and he failed to prove that defendant No.2 acted as karta and was managing the affairs of the joint family which has been ignored by the learned Trial Judge while decreeing the suit.
23. It is also his contention that plaintiffs admitted that among the suit properties; 11 properties claimed by the defendants are the self-acquired properties of 30 defendant No.2 and therefore, decreeing of the suit is improper.
24. Learned counsel for cross-objector adopting the above arguments sought for allowing the cross- objection and dismissal of the suit.
25. He also contended that PW.1 clearly admitted that he has not seen the sale deeds or agreements of the lands bearing Sy.No.89/1, 89/2, 89/3 of Dharmapura village and clearly admitted that annual income of defendant No.2 was Rs.50,000/- per annum which was sufficient enough for the acquisition of 'B' schedule properties by defendant No.2 out of his independent income which has been totally ignored by the learned Trial Judge while decreeing the suit of the plaintiffs and sought for allowing the appeal.
26. Per contra, learned counsel for the contesting respondents/plaintiffs supports the impugned judgment. 31
27. He would contend that defendant No.2 who is examined as D.W.1, specifically contended in the written statement that his wife hails from the rich family and father-in-law and brother-in-law have supported financially for acquisition of the suit properties which are standing in the exclusive name of defendant No.2 but to establish the same, except the self-serving testimony of DW.1, there is no other evidence placed on record whereby it should be presumed that defendant No.2 being the worldly wise person, was managing the suit properties as karta and has purchased the suit 'B' schedule properties from out of the nucleus from the joint family and thus, decreeing of the suit as prayed for is just and proper and sought for dismissal of the appeal.
28. Having heard the arguments of both sides, this Court perused the material on record meticulously.
29. On such perusal of the material on record, following points would arise for consideration: 32
1. Whether the plaintiffs have successfully established that all the suit properties are the joint family properties except the gold ornaments for which the suit is dismissed?
2. Whether the grant of share in the suit properties in the impugned judgment is just and proper?
3. Whether the cross-objector makes out a case that impugned judgment passed in O.S.No.86/2006 to be set aside and counter claim filed by the cross-objector before the Court below needs to be allowed?
4. Whether the impugned judgment is suffering from legal infirmity and perversity and thus, calls for interference?
5. What order?
REGARDING POINT Nos.1 TO 4:
30. In order to prove the case of the plaintiffs, plaintiff No.1 is examined as P.W.1. In the case on hand, there is no dispute as to the relationship. Further, the material document placed on record namely Form No.19 33 vide Ex.P.15, wherein succession and survival are inheritance certificate is issued by competent authority is not in dispute.
31. Exs.P.18 to Ex.P.25 are the letters from the bank pertaining to the loans availed in respect of the suit properties. Exs.P.30 to Ex.P.48 are the RTC Extracts wherein at an undisputed point of time, name of the father
- Channabyrappa was standing. Mutation register extract would go to show that after the death of Channabyrappa, name of defendant No.2 came to be mutated in the revenue records.
32. P.W.2 to P.W.3 are the witnesses who have supported the case of the plaintiffs.
33. In the cross-examination of P.W.2, it has been alleged that he is aged about 65 years. He has answered that he cannot say total items of the suit properties in the plaint and he cannot also reveal the survey numbers of the properties and when it was purchased.
34
34. However, he has specifically answered that defendant No.2 was acting as karta after the death of Channabyrappa. He admits that before the criminal case came to be filed between the parties, parties were leaving in the joint family and after the criminal case and the incident involved in the criminal case, plaintiffs are leaving separately and they are earning their livelihood by doing coolie work.
35. He has also specifically answered that before the incident involved in the criminal case happened, there was a panchayat. But parties did not agree for the decision of the panchayat. He has stated that he has also signed the said decision of the Panchayath and parties have also signed, but they are available with their respective parties.
36. In the cross-examination of PW.3, he has stated that he cannot specifically say which are the items of the suit properties which were ancestral properties at the inception and when other properties were purchased. 35
37. He has stated that during the lifetime of Channabyrappa, one Chowdappa was the eldest member of the family and they were leaving together. He has also answered that the lands were cultivated jointly and members of the family had the separate kitchen. He has also stated that the income from the agricultural lands are exclusively enjoyed by defendant No.2 and for last five to six years, plaintiffs and defendant No.2 are leaving separately.
38. Material evidence placed on record on behalf of the plaintiffs thus would establish that at an undisputed point of time, Channabyrappa possessed the ancestral properties and according to the plaintiffs, other properties are acquired from out of the joint family income.
39. In order to establish that 'B' schedule properties are the self-acquisition of defendant No.2, as referred to supra, defendant No.2 is examined as DW.1 and there is no other material evidence placed on record. 36
40. In his cross-examination, D.W.1 has admitted that that he is an agriculturist. He has stated that his father had nine children. Among them, five were sons and four were daughters namely Chowdappa, Hanumantharayappa, Krishnappa, Lakshmana, Muniraju, Kempamma, Muniyamma, Munikempakka and Munithayamma.
41. He admits that during the pendency of the suit, mother of the parties died. He pleaded ignorance that all the children of Channabyrappa are the parties to the suit. He admits that he has studied up to 10th standard and denied that he is the only educated person in the family.
42. He denied that he was looking after the joint family properties for a period of 30 years. He denied that suit properties are the ancestral properties. He denied that there is no partition in respect of the suit properties. He has answered that his wife is from Nandi village and his father-in-law has three daughters and two sons. He denied that what is the property possessed by his father-in-law 37 and survey numbers of the lands possessed by his father- in-law. He admits that his brother-in-law has been married and they are leaving jointly.
43. He admitted that to establish that his father- in-law was rich enough to contribute for the purchase of the joint family; he has not placed any records. He has specifically denied that Sy.No.89/1 of Dharmapura village is a joint family property. He further denied that his father had three brothers namely Hanumappa, Appayappa and Maniswamappa. He pleads ignorance about the partition that has taken place in respect of the land in Sy.No.89/1 of Dharmapura village between his father and his uncles. He denies that in such partition, his father has got 31¼ of the land in Sy.No.89/1 Dharmapura village. He denies that his father had purchased 31¼ guntas of the land from Appayappa i.e. the uncle of DW.1.
44. He has answered that he has purchased Sy.No.89/1 of Dharmapura village through a sale deed but he has not produced any such sale deed. He admits that 38 in respect of land in Sy.No.89/1 of Dharmapura village, there is no mutation entry and an endorsement has been issued by Tahsildar vide Ex.D.10. He admits that ragi crop has been grown in the said land and there are coconut trees. He denied the assertion that for the sake of convenience and he being educated, katha was agreed to be transferred in his name.
45. He admits that land in Sy.No.6 of Shantha Kuntana Halli village is not belonging to him in his individual capacity and it has been granted in favour of defendant No.1. In respect of land in Sy.No.89/2 of Dharmapura village, he admits that the same measures 2 acres 31 guntas and he has purchased the same from Venkateshappa and Chowdappa.
46. He further admits that he does not know how Venkateshappa and Chowdappa got the title to the said property. He also admits that grapes and ragi are grown in the said land. He admits that he does not remember when he purchased the said property. He has stated that 39 he has sold the jewels belonging to his wife for arranging the sale consideration for purchase of the land in Sy.No.89/2. But he admits that there is no document to establish the same.
47. He pleaded ignorance that in respect of item No.1 of the suit property, there was a replacement from Sy.Nos.6 to 31. He denied that in the said survey number, land was granted in favour of defendant No.2 to the extent of 4 acres. He denied that he has sold 2 acres of the land but the witness volunteered that as per the order of the Tahsildar, 2 acres of the land was granted in his favour in his individual capacity.
48. He further stated that he does not remember the date, year or the day of the previous partition. He admits that plaintiffs have produced the said partition and he has not produced the same. He pleaded ignorance that there was an order of injunction not to alienate the properties. He admits that he has not attended the Court 40 on all dates of hearing but his Advocate has intimated him the proceedings that took place on every dates of hearing.
49. D.W.1 has stated that he does not remember the area of the land covered under Sy.No.9/2 of Dhamapura village. He denies that the land in Sy.No.9/2 had fallen to the share of his uncles. He has answered that he does not remember the vendor of the land in Sy.No.9/3 of Dharmapura village. He has denied that said land is purchased by him from Venteshappa and Chowdappa on for and on behalf of the joint family.
50. However, he maintained that himself and his wife used to earn the money by doing labour work and from out of the said income, they have purchased all the four items of the suit properties. He has also stated that he does not remember what the labour charges were in the year 1979. He further answered that he does not know who is the owner of the land in Sy.No.43/1 and 43/3. He denied that himself, his father and other legal representatives of his father have sold the property in 41 favour of Munishamappa on 28.11.1979 in respect of the land in Sy.No.43/1. He further denied having sold the land in Sy.No.43/3 to Munishammappa.
51. He has stated that land in Sy.No.37/3 of Gejjeguppe village is in the name of his father, but it is not in the possession of either plaintiffs or defendants. He pleaded ignorance that said land was also sold in favour of son of Munishamappa by name Hanumappa and again he pleaded ignorance about the land in Sy.No.38/3 of Gejjeguppe village being the property of the joint family.
52. He denied that other properties of the suit are purchased from the sale consideration of the land sold in Sy.Nos.37/3, 38/3, 43/1 and 43/3. He pleaded ignorance about situation of the land in Sy.No.98 of Dharmapura village which is one of the items of the suit property, the area covered under the said land and who is the owner of the said property.
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53. Likewise, he pleaded ignorance about the details of the land in Sy.Nos.97, 107, 108 and 1/3 (suit properties) of Dharmapura village. He denied that all those properties are the joint family properties. He specifically maintained that land in Sy.No.52/5 of Dharmapura village is his individual property as he has purchased the same from his vendor whose name he does not remember and so also the date of sale, consideration paid etc.
54. He further denied that land in Sy.No.52/5 of Dharmapura village is purchased for and on behalf of the joint family. He admits that he has no documents to show that he had sold the jewels belonging to his wife and he has no documents to establish what were the labour charges earned by himself and his wife in the year 1979.
55. He answers that land in Sy.No.77/1 of Dharmapura village is in the name of Chowdappa, but he does not know the details thereof. Likewise, he pleaded ignorance about the land in Sy.No.81/2A of Dharmapura 43 village and land in Sy.No.59/2 of Gejjukuppe village. He further pleaded ignorance that what are the number of the properties that were purchased in the name of Chowdappa for and on behalf of the joint family. He further pleaded ignorance about the land in Sy.No.59/2 of Gejjukuppe village being mortgaged to P.L.D. Bank. He pleaded ignorance about the land in Sy.No.59/1 of Gejjukuppe village being the ancestral property.
56. Further, he pleaded ignorance about the lands in Sy.No.57/5, 57/3, 38/3 of Gejjukuppe village being the joint family properties. He further answered that nine houses and sites mentioned in the 'B' schedule are the joint family properties. However, he maintained that whatever the houses or the sites which are standing in his name are his self acquired properties and he also have a share in the house which was purchased from Hanumakka which is in the name of his father mentioned in the 'B' schedule. He further pleaded that he does not know when 44 he purchased the house site and the houses and its consideration and other details.
57. In his further cross-examination, he admits that he has not instructed his Advocate to prepare the details with regard to the Palupatti and his Advocate prepared the same and he has only subscribed his signature on to it.
58. He further answered that he cannot furnish the details of the area of the land in Sy.Nos.97, 98, 107, 108 situated in Dharmapura village. He denied that 100 stone slabs are installed to protect the said property as compound by spending Rs.40,000/- but he maintained that he got it installed to protect the property in order to have a cow shed. But he cannot furnish the details for the installation of stone slabs namely on what date the same was installed, what is the amount spent etc.
59. Further, he denied having installed the iron angles and cement sheets for protection and storage of the properties of the joint family and purchasing a Tractor and 45 Trailer for the benefit of the joint family. But he has stated that the Tractor and Trailer unit bearing No.CAW-2941 and 2942 are his self-acquired property. He denied that the loan amount borrowed for the purchase of the Tractor and Trailer unit was repaid by the contribution of all the members of the joint family.
60. He admits that tube wells are dug in Sy.No.97 and 98 of Dharmapura village by his father and all the members have got possession over the tube wells. However, he denies that tube wells being in existence in land in Sy.Nos.89/1 and 9/2 of Dharmapura village. He denied that plaintiff Nos.1 and 2 and defendant No.7 obtained the loan for diary and he was a guarantor for the said loan. He denied having objected for transfer of katha in the name of plaintiff No.1 and defendant No.7. However, on confrontation of Ex.P.28, he admits the same and so also Ex.P.29 wherein his signatures were found.
61. The above evidence on record is sought to be reappreicated by defendant Nos.2, 4, 6 and 8. 46
62. On re-appreciation of the above evidence on record, it is crystal clear that there is no dispute as to the relationship of the parties.
63. It is the case of the plaintiffs that the suit properties are the joint family properties and therefore, they have sought for sharing the suit properties. Relationship is not in dispute inasmuch as Ex.P.1 is admitted by the defendants. Admittedly, it is defendants who have taken the plea that there was an earlier partition and there is a Palupatti.
64. D.W.1 has specifically admitted in his cross- examination that he has not produced any Palupatti, but plaintiffs have produced the same. He also pleaded ignorance as to the date, year and the month of the Palupatti whereas plaintiffs have maintained in the suit that there is no partition and after the death of common prepositus, plaintiffs are also entitled for the share. 47
65. The documents that are placed on record are the mutation register extract in form of Ex.P.2 to P7. Exs.P.2 to P.7 would make it clear that the mutation has taken place after death of the common prepositus and the sales that have taken place in respect of the joint family properties. Certified copy of the order passed by the Tashildar is at Ex.P.8. Contents of Ex.P.8 which is the order of the Tahsildar wherein it is stated that after the death of the common prepositus, the change of katha was accepted and Hanumakka being the wife of Channabyrappa has affixed her left thumb impression. Chowdappa, Hanumanthappa, Lakshmana and Muniraju have signed whereas Krishnappa has affixed his left thumb impression.
66. As could be seen from the written statement and the examination-in-chief of D.W.1, defendant has stated that properties which are standing in the name of defendant are all his self acquired property. 48
67. He has also stated that his wife hails from affluent family hailing from Nandi village. It is his case that he has purchased suit Nos.2 to 5 which are standing in his name from his income and from the contribution made by his father-in-law and brothers-in-law.
68. To establish the said aspect of the matter, except the self-serving testimony of D.W.1, there is no other material documents placed on record. Father-in-law or brother-in-law or anybody from the family of the wife of D.W.1 has been examined to establish the fact of contribution for purchase of the properties.
69. On the contrary, a specific answer is elicited in the cross-examination that out of the savings from the labour work, in the year 1979, he saved the money and from the labour charges earned by himself and his wife, he purchased the four items of the suit properties as is contended in the written statement.
70. If the wife of D.W.1 is hailing from the affluent family, then what was the necessity for the wife of D.W1 49 and D.W.1, to do the coolie work. The answer elicited in the cross-examination contradicts the stand taken in the written statement.
71. Crowning all these aspects of the matter, D.W.1 in his cross-examination, categorically admits that he did not instruct to prepare the written statement or the examination-in-chief of it and he does not know the contents with regard to the alleged Palupatti and other details.
72. Further, he would admit that he has only subscribed his signature to the written statement and the examination-in-chief prepared by his Advocate. What is the evidentiary value that should be attached to such a statement is a question that remains unanswered on behalf of the appellants.
73. It is elicited in the evidence that it is D.W.1 who has been educated in the family having studied up to 10th standard and all others have not studied at all. Therefore, in order to facilitate the transactions with 50 regard to the suit properties; some of the properties were purchased in the name of D.W.1 and katha of the properties were also made in the name of D.W.1.
74. It is an acceptable explanation on behalf of the plaintiffs to further their case that even though properties are standing in the name of D.W.1; those properties are the joint family properties.
75. Specific suggestions are made that some of the properties belonging to the joint family were sold to Munishamappa and his son Hanumappa. Though D.W.1 pleaded ignorance, from the material document that is placed on record, the properties were sold to Muniushamappa and Hanumappa through a registered sale deed and that amount must have been utilized for the purpose of purchase of the remaining properties.
76. In other words, plaintiffs were successful in establishing that there existed a joint family nucleus for the purchase of all the items of the suit properties. 51 Presumption thus, comes into operation in favour of the plaintiffs.
77. It is settled principles of law and requires no emphasis that if the D.W.1 have taken the plea that it is his self acquired after the plaintiffs placed material evidence on record to discharge the initial burden, it is for the defendants to prove and establish that some of the items of the suit properties as is contended in the written statement are his individual properties.
78. In other words, D.W.1 has to place such cogent material on record which would be sufficient for the Court to arrive at a conclusion that D.W.1 had independent income apart from the joint family income and for the purchase of the properties, pleaded in the written statement, he utilised his individual income and did not derive any financial assistance from the joint family funds.
79. In the case on hand, as discussed supra, as could be seen from the cross-examination of D.W.1, D.W.1 is unable to place any cogent material on record as he 52 pleaded ignorance about the consideration amount in the sale deeds which are admittedly standing in his name.
80. Further, he pleaded ignorance about the date, month and year of the sale in respect of the properties which are standing in his name. If at all, if D.W.1 has spent his own money in respect of such of the properties which are standing in his name and utilised his own funds, being the most educated person in the family of the plaintiffs and defendants, he should be in a position to say that how much money he had spent for purchase of each of the properties and source thereof.
81. In that regard, D.W.1 has not placed any material evidence on record nor his theory of contribution from his wife's family is not established as discussed supra by examining any one of the members of his wife's family or at least his wife.
82. Likewise, the theory put forward by him that he sold the jewels of his wife and then purchased the properties which are standing in his name is also not 53 proved as he is unable to say what is the amount that he derived from the sale of the jewels and with whom he sold the jewels or any receipt thereof has been placed on record.
83. Now adverting to the cross-objection, in the cross-objection, following is the prayer:
"Wherefore the judgment and decree dated 12.09.2006 passed in O.S.No.86/2006 on the file of Civil Judge (Sr. Div.) and JMFC, Devanahalli be set aside and this cross objections be allowed with costs in the interest of justice and equity."
84. To substantiate the same, there are no grounds at all raised in the cross-objection and only facts have been stated in paragraph No.11 which reads as under:
"The cross objector/respondent No.3 family consisting of four sons and two daughters are eking out their life by cultivating the item No.1 and 13 of the suit schedule property. The children of cross objector/respondent No.3 filed suit for partition and separate possession of their share in respondent exclusive property i.e., item 54 No.1 of the suit schedule properties, by filing O.S.No.169/2011 on the file of the Sr. Civil Judge, Devanahalli by making all respondents and appellants as parties to the suit. The appellant herein who filed written statement that the property is liable to be partitioned among all members of the family by taking inconsistent plea with that of original suit under which the present appeal is filed. The appellant No.1 is now in collusion with respondents No.1 and 2 is obstructing the enjoyment of the suit item No.1 and 13 of the suit schedule property. The copies of the plaint and written statement are herewith produced for kind reference."
85. Material on record would not warrant allowing the cross-objection in dismissing the suit. Therefore, cross-objection needs to be rejected.
86. Thus, learned Trial Judge rejecting the theory of the earning of the items mentioned in the written statement by spending the individual income of D.W.1 is just and proper.
87. Consequently, when the plaintiff has discharged the initial burden to establish that suit properties are the joint family properties by placing 55 necessary evidence on record including the documentary evidence, this Court is of the considered opinion that point No.1 is to be answered in the affirmative and consequently, allotting the granting of share in the impugned judgment is just and proper. Accordingly, point No.2 is answered affirmative and point No.3 in negative.
88. Though the impugned judgment is not happily worded and proper reasons are not assigned in arriving at the final decision, in view of the discussions made in this appeal, especially noting that D.W.1 failed to establish with cogent evidence the written statement contents, impugned judgment cannot be termed as perverse or suffering from legal infirmities.
89. As such, invariably point No.4 is answered in the negative.
REG. POINT No.5:
90. In view of the findings of this Court on point Nos.1 to 4 as above, following:
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ORDER i. Appeal and cross-objection are meritless and hereby dismissed.
ii. No order as to costs.
Sd/-
(V. SRISHANANDA) JUDGE KAV