Karnataka High Court
Sri Ramachandraiah V C vs The Manager on 11 July, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
REGULAR SECOND APPEAL NO.955/2021 (PAR)
BETWEEN:
1. SRI. RAMACHANDRAIAH V.C.,
AGED ABOUT 70 YEARS
S/O LATE SRI. CHELUVE GOWDA
R/O ADAKAMARANAHALLI VILLGE
BACHANAHATTI POST
KASABA HOBLI, MAGADI TALUK
RAMANAGARA DISTRICT-562 120.
ALSO AT
NO.286/20, 5TH MAIN
OPPOSITE P.V.P. SCHOOL
GNANABHARATHI POST
BENGLAURU-560 056.
2. SMT. VIJAYALAKSHMI
AGED ABOUT 66 YEARS
W/O SRI. ASHWATHANARAYANA
D/O LATE SRI. CHELUVE GOWDA
R/AT 11TH CROSS, 1ST MAIN ROAD
NANDAGOKUL SCHOOL ROAD
CAUVERYPURAM
KAMAKSHIPALAYAM
BENGLAURU-560 079.
3. SRI. SRINIVASA
AGED ABOUT 62 YEARS
S/O LATE CHELUVE GOWDA
2
R/O VEERAPURA VILLAGE
KASABA HOBLI
MAGADI TALUK
RAMANAGARA DISTRICT-562 120.
4. SMT. MANJULA
AGED ABOUT 60 YEARS
W/O SRI. LAKSHMANA
D/O LATE SRI. CHELUVE GOWDA
R/O KENCHANALLI VILALGE
NEAR RAJARAJESHWARI TEMPLE
RAJARAJESHWARI
BENGALURU-560 098.
5. SRI. RAMESH
AGED ABOUT 58 YEARS
S/IO LATE SRI. CHELUVE GOWDA
R/AT MOODALAPALYA
VIJAYANAGAR
BENGALURU-560 040.
6. SRI. APPAJI GOWDA
AGED ABOUT 56 YEARS
S/O LATE SRI. CHELUVE GOWDA
R/O. ADAKAMARANAHALLI VIALALE
KASABA HOBLI, MAGADI TALUK
RAMANAGARA DISTRICT-562 120. ... APPELLANTS
(BY SRI. G.PAPI REDDY, SENIOR ADVOCATE FOR
SRI. VARUN PAPIREDDY, ADVOCATE)
AND:
1. THE MANAGER
PREVIOUSLY STATE BANK OF MYSORE
PRESENTLY STATE BANK OF INDIA
MAGADI BRANCH, MAGADI
RAMANAGARA DISTRICT-562 120.
3
2. SMT. SOWBHAGYAMMA
AGED ABOUT 69 YEARS
W/O LATE SRI. THATTAPPA @ THATTAIAH
R/AT NO.113,
ADAKAMARANAHALLI VILLAGE
BACHANAHATTI POST,
KASABA HOBLI
MAGADI TALUK
RAMANAGARA DISTRICT-562 120.
3. SRI. LAKSHMAMMA
AGED ABOUT 43 YEARS
S/O LATE SRI. THATTAPPA @THATTAIAH
R/AT NO.113
ADAKAMARANAHALLI VILLAGE
BACHANAHATTI POST
KASABA HOBLI
MAGADI TALUK
RAMANAGARA DISTRICT-562 120.
4. SRI. SHASHIDHAR @ BABU
AGED ABOUT 41 YEARS
S/O LATE SRI. THATTAPPA @ THATTAIAH
R/AT NO.113
ADAKAMARANAHALLI VILLAGE
BACHANAHATTI POST
KASABA HOBLI
MAGADI TALUK
RAMANAGARA DISTRICT-562 120.
5. SMT. JAYAMMA
AGED ABOUT 54 YEARS
W/O LATE SRI. NARAYANAPPA
R/AT NO.113
ADAKAMARANAHALLI VILLGE
BACHANAHATTI POST
KASABA HOBLI
MAGADI TALUK
RAMANAGARA DISTRICT-562 120.
4
6. SRI. KANTHARAJ
AGED ABOUT 34 YEARS
S/O LATE SRI. NARAYANAPAPA
R/AT NO.113
ADAKAMARANAHALLI VILLAGE
BACHANAHATTI POST
KASABA HOBLI
MAGADI TALUK
RAMANAGARA DISTRICT-562 120.
7. SMT. ROOPA
AGED ABOUT 37 YEARS
W/O SRI. KEMPE GOWDA
R/AT BI.21, BLOCK NO.2
CLASS-3 QUARTERS, KIMS
HUBLI-580 032. ... RESPONDENTS
(BY SRI. M.G.RAVISHA, ADVOCATE FOR R2 AND R4;
SRI. B.K.CHANDRASHEKAR, ADVOCATE FOR C/R7;
R1, R3, R5 AND R6 - SERVED)
THIS R.S.A. IS FILED UNDER SECTION 100 R/W ORDER 41
RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED
15.07.2021 PASSED IN R.A.NO.36/2019 ON THE FILE OF THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA,
DISMISSING THE APPEAL AND FILED AGAINST THE JUDGMENT
AND DECREE DATED 09.04.2019 PASSED IN O.S.NO.310/2014
ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, MAGADI.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 08.07.2025 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
5
CAV JUDGMENT
Heard learned Senior counsel for the appellants and learned counsel for respondent No.2 and 4 and learned counsel for caveator-respondent No.7.
2. This second appeal is filed against concurrent finding of dismissal of the suit for the relief of partition and separate possession and confirmation of the same by First Appellate Court.
3. The factual matrix of the case of the plaintiffs before the Trial Court while seeking the relief of 1/8th share in the suit schedule properties and also while seeking the relief of permanent injunction sought to restrain defendant No.1 from releasing schedule item No.4 in favour of defendant Nos.2 to 6. It is contended that plaintiff Nos.1 to 6 are the children of late Chaluvegowda. The defendant No.2 is the wife of Thattaiah @ Thathappa. The defendant Nos.3 and 4 are the children of Thattaiah @ Thathappa. The said Thattaiah @ Thathappa is the brother of the plaintiffs. The defendant Nos.5 and 6 are the wife and son of Narayanappa, the son of late Chaluvegowda and 6 brother of the plaintiffs. The plaintiffs and defendant Nos.2 to 6 are members of the Hindu Undivided joint family and the suit schedule properties are their ancestral properties. Thattaiah @ Thathappa being the elder son of late Chaluvegowda was looking after the affairs of family business and growing crops, coconut trees, areca nut trees and earning income about Rs.2,00,000/-. Hence, all the documents of the suit schedule properties were standing in his name.
4. It is also contented that father had opened a fixed deposit in the first defendant's bank for a sum of Rs.10,00,000/- for a period of one year. The said amount was derived from the joint family properties and the plaintiffs have also got a legitimate share in the fixed deposit amount. It is contented that Thattaiah @ Thathappa expired on 10.10.2010 leaving behind the plaintiffs and defendant Nos.2 to 6 to succeed to his estates. But, the defendant Nos.2 to 6 are illegally trying to get the fixed deposit amount from the first defendant without the consent of the plaintiffs and also in order to knock off the share of the plaintiffs. The defendants are trying to alienate the suit schedule 7 properties to third parties. Inspite of their demand on the properties and also the fixed deposit, the same was refused. Hence, the plaintiffs have approached the first defendant and requested him not to release the fixed deposit amount in favour of defendant No.2 to 6, for which the defendant No.1 has directed the plaintiffs to obtain the order from the Civil Court. Hence, the plaintiffs were constrained to file the suit.
5. In pursuance of the suit summons, the defendants appeared before the Court. The defendant Nos.4 to 6 have filed their written statement admitting relationship, but denied rest of the plaint averments. It is contented that first plaintiff is a retired Head Constable and resident of Bangalore, second plaintiff was married about 40 years back and third plaintiff was married about 30 years and all of them are residing at Bangalore. The fourth and fifth plaintiffs are married and residing at Bangalore. Thattaiah @ Thathappa was working as a Contractor and from his earnings, he has purchased lands and sites at Bangalore, Machohalli, Manchanabele colony, Kadabagere, Mudalapalya and also constructed houses and 8 deposited the amount at SBM, Magadi by nominating defendant No.2 as his nominee. It is contended that about 25 years back, a partition has been effected in the family. Hence, the question of again effecting partition does not arise. It is contended that plaintiffs had received their shares in the Panchayath Parikath taken place 25 years back and they are cultivating the lands taken by them at Veerapura Village and Adakamaranahalli Village. Thattaiah @ Thathappa himself had cultivated the suit schedule properties as he had involved in politics and was a Contractor in Taluk Panchayath and Zilla Panchayath. He has planted coconut and areca nut plants by investing huge amount and has also dug a bore well and having poultry and high breed cows from which he is getting income and the said amount was kept in fixed deposit. The plaintiffs, only in order to knock off the properties and fixed deposit amount filed the false suit.
6. The defendant No.7 has also filed a written statement on the similar terms and contend that item No.14 of the suit schedule properties is a self-acquired property of Thattaiah @ Thathappa which he has gifted to defendant No.7. 9 Even, item No.15 is a self-acquired property of Narayanappa which he was enjoying, since the date of purchase and after his death, his legal heirs are in possession of item No.15 of the suit schedule properties. It is contended that the suit is bad for non- joinder of necessary parties.
7. The Trial Court having considered the averments made in the plaint, framed the following issues:
"1. zÁªÁ ¸ÀévÀÄÛUÀ¼ÀÄ MlÄÖ PÀÄlÄA§zÀ C«¨sÁfvÀ ¸ÀévÀÄÛUÀ¼ÀÄ JAzÀÄ ªÁzÀ ¥ÀvÀæzÀ°è w½¹gÀĪÀAvÉ ªÁ¢AiÀÄgÀÄ gÀÄdĪÁvÀÄ¥Àr¸ÀĪÀgÉÃ?
2. ¥ÀæwªÁzÀ ¥ÀvÀæzÀ PÀArPÉ 12 gÀ°è w½¹gÀĪÀAvÉ FUÁUÀ¯Éà 25 ªÀµÀðzÀ »AzÉAiÉÄà ªÁ¢ 1, 3, 5, 6 ªÀÄvÀÄÛ vÀlÖ¥Àà£ÀªÀgÀ £ÀqÀÄªÉ «¨sÁUÀ DVzÉ JAzÀÄ ¥ÀæwªÁ¢ 4 jAzÀ 6 gÀªÀgÀÄ gÀÄdĪÁvÀÄ¥Àr¸ÀĪÀgÉÃ?
3. zÁªÁ ¸ÀéwÛ£À°è ªÁ¢AiÀÄgÀÄ »¸Éì ªÀÄvÀÄÛ «¨sÁUÀ ¥ÀqÉAiÀÄ®Ä CºÀðgÉÃ? ºËzÁzÀgÉ JµÀÄÖ?
4. zÁªÉAiÀÄ°è PÉÆÃjgÀĪÀ ±Á±ÀévÀ ¥Àæw§AzsÀ¯ÁYÉÕ ¥ÀqÉAiÀÄ®Ä ªÁ¢AiÀÄgÀÄ CºÀðgÀÄ JAzÀÄ ªÁ¢AiÀÄgÀÄ gÀÄdĪÁvÀÄ¥Àr¸ÀĪÀgÉÃ?
5. zÁªÉAiÀÄ°è PÉÆÃjgÀĪÀ ¥ÀjºÁgÀ ¥ÀqÉAiÀÄ®Ä ªÁ¢AiÀÄgÀÄ CºÀðgÉÃ?
6. AiÀiÁªÀ DzÉñÀ CxÀªÁ rQæ?"10
8. The plaintiffs, in order to prove their case, examined first plaintiff as P.W.1 and got marked the documents as Exs.P1 to 23. The defendants, in order to prove their case, examined defendant Nos.4 and 7 as D.W.1 and D.W.2 and got marked the documents as Exs.D1 to D35.
9. The Trial Court having considered the material on record comes to the conclusion that plaintiffs have failed to prove that suit schedule properties belong to the joint family and the same are ancestral properties and accepted the contention of the defendants that already there was an oral partition and answered issue Nos.1 to 5 as 'negative' that they are not entitled for any share.
10. Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed before the First Appellate Court in R.A.No.36/2019. The First Appellate Court having considered the grounds which have been urged in the appeal memo and on hearing the respective counsels, formulated the following points:
"1) Did the appellants/plaintiffs adduced sufficient material before the trial Court to prove the fact 11 that all the plaint schedule immovable land properties are nothing but joint family properties and the said properties have got sufficient annual yield enabling Late Thattaiah @ Thathappa to keep the Fixed Deposit as per Item No.4 of the plaint schedule?
2) Did the plaintiffs adduced sufficient materials before the trial court to prove the fact that the site properties at Item No.13 and 14 were granted by the appropriate authority in lieu of lands which were acquired for the public purpose?
3) Do the defendant witnesses i.e., DW-1 and 2 admitted the fact that there was no oral partition among the children of Late Chaluvegowda?
4) Does the trial court committed an error in arriving at a conclusion that the appellant/plaintiffs have not included all the properties while seeking the relief of partition and separate possession?
5) Is there any scope to interfere with the impugned judgment?
6) What order?"12
11. The First Appellate Court having considered the material available on record comes to the conclusion that plaintiffs have not placed sufficient material to show that plaint schedule immovable properties are joint family properties which have got sufficient annual yield enabling late Thattaiah @ Thathappa to keep the fixed deposit as per item No.4 of the suit schedule properties and also comes to the conclusion that the plaintiffs failed to produce sufficient material to prove the fact that properties at item Nos.13 and 14 were granted by the appropriate authority in lieu of the lands which were acquired for the public purpose and also taken note the contention that D.Ws.1 and 2 have admitted that there was no oral partition among the children of late Chaluvegowda and so also whether the Trial Court committed an error in coming to the conclusion that plaintiffs have not included all the properties while seeking the relief of partition and separate possession. The First Appellate Court having reassessed the material on record, answered point Nos.1 to 5 as 'negative' and dismissed the appeal and confirmed the judgment of the Trial Court. Being 13 aggrieved by the concurrent finding, the present second appeal is filed before this Court.
12. This Court having considered the grounds which have been urged in the second appeal, vide order dated 11.07.2024 and also considering the document of Exs.D1 to D3 which stands in the name of the plaintiffs which does not disclose that all the properties are joint family properties and also considering the observation made by the Trial Court and the First Appellate Court, admitted the second appeal and framed the following substantial questions of law:
"(1) Whether the Trial Court and the First Appellate Court committed an error in coming to the conclusion that already there was oral partition, in the absence of any documentary evidence to prove the factum of oral partition and the parties have acted upon the same?
(2) Whether the Trial Court and the First Appellate Court committed an error in not considering the material available on record and the finding of both the Courts that already there was a partition is against the material on 14 record and it amounts to perversity in coming to such a conclusion?"
13. Learned Senior counsel, who appears for appellants would vehemently contend that one Chaluvegowda is the propositus of the family and suit is filed for the relief of partition and separate proposition in respect of the suit schedule properties, including the agricultural land, house property and the fixed deposit amount which is kept in the State Bank of India. The counsel would vehemently contend that both the Courts have committed an error in dismissing the suit and confirming the same. The counsel appearing for the appellants brought to notice of this Court Ex.P8-mutation register extract which came into existence in the year 1995-1996 and contend that including the wife of Chaluvegowda and all the five sons have given consent for transfer of property in favour of the elder son i.e., Thattaiah @ Thathappa. The counsel also brought to notice of this Court the details mentioned in Ex.P8. The counsel also would vehemently contend that defence was taken in the suit that there was an oral partition and the same is not supported by any document. Though issue was framed regarding 15 the contention that whether there was an oral partition and the Trial Court, while answering issue No.2 committed an error and given perverse finding without any documentary proof evidencing the fact of oral partition. The counsel would vehemently contend that Exs.P12 to 16 are the RTC extracts and the same pertains to four survey numbers. The counsel would vehemently contend that Sy.No.61 measures 7 acres, 31 guntas, Sy.No.3/1 measures 2 acres, 22 guntas and Sy.No.21 measures 17 acres, 34 guntas and contend that all the suit schedule properties are included as item Nos.1 to 16.
14. The counsel also vehemently contend that Sy.No.21 measuring 17 acres was acquired for the purpose of construction of dam. The very observation made by the Trial Court that suit for partial partition is not maintainable is erroneous and committed an error in dismissing the suit. The counsel would vehemently contend that no such plea was taken in the written statement that the plaintiffs' property is also a joint family property and even no such plea was taken that suit for partial partition is not maintainable in the written statement and also no 16 issue was framed. The counsel would vehemently contend that properties are purchased in the name of Thattaiah @ Thathappa and the same is also out of joint nucleus and there was no other income, except the joint family property. The counsel would contend that with regard to relationship is concerned, there is no dispute and categorically brought to notice of this Court admission given by D.W.1 and D.W.2 and contend that there is a fair admission that after the death of Chaluvegowda, elder son Thattaiah @ Thathappa was looking after the properties of the family. The counsel also would vehemently contend that Thattaiah @ Thathappa died on 10.10.2010 and fixed deposit receipt is also produced as Ex.P6 and the fact that in terms of Ex.P8, all the family members gave consent to transfer the property in the year 1997 evidence the fact that there was no partition and all of them were in the joint family. The counsel would vehemently contend that total 42 acres, 38 guntas of land belongs to the family and out of which, 17 acres were acquired and the contention of the defendants is that there was a partition and the same was an earlier partition which had taken place 25 years ago. But, counsel contend that all the properties 17 were acquired in the name of Kartha i.e., Thattaiah @ Thathappa. The very observation made by the Trial Court in paragraph Nos.22 and 23 that there was an oral partition and also the plaintiffs' properties are not included and suit for partial partition is not maintainable is an erroneous observation. In order to prove the oral petition, nothing is placed on record and none of the documents placed on record by the defendants reflect that there was an oral partition. The property stands in the name of the plaintiffs presume that there was an oral partition and those properties are not the joint family properties and the same are self-acquired properties of the plaintiffs, since all of them have been settled in Bangalore.
15. The counsel also vehemently contend that the First Appellate Court also committed an error in making similar observations in paragraph Nos.32 and 33 and the said finding is also erroneous and confirmation of the judgment of the Trial Court is erroneous and finding is perverse. It is contented that the properties which have not been included are the self- acquired properties of the plaintiffs and hence, the same was not 18 included in the suit. But observation is that those properties are not included and hence there was a partition is an erroneous approach. Therefore, the counsel would contend that judgment and decree passed by the Trial Court and the First Appellate Court requires to be set aside.
16. Learned counsel appearing for respondent Nos.2 and 4 in his argument would vehemently contend that documents Exs.D2, D3, D8, D9, D10, D11, D13 and D14 clearly disclose that there was a partition and properties stand in the name of plaintiff Nos.3 and 6. The counsel would vehemently contend that Ex.D1 is very clear that property No.299 was sold by one of the plaintiffs and Ex.D13 is also very clear that there was an oral petition. The counsel would contend that item Nos.14 and 18 are granted properties in favour of Thattaiah @ Thathappa and contend that said grant was made on 20.03.1976. The counsel would vehemently contend that Ex.D22 is very clear that property belongs to Thattaiah @ Thathappa and bequeathed the property by way of Will in favour of the daughter. The counsel would contend that Ex.D11 is very clear that property was 19 granted in favour of plaintiff No.6 in the year 1989 and so also Ex.D11 in favour of plaintiff No.3 and when these grants are made in favour of plaintiff Nos.3 and 6 and they have not been included in the suit schedule properties. The counsel would vehemently contend that P.W.1 categorically admitted that he is enjoying those properties and not included all those properties in the suit. It is contended that nothing is whispered in respect of item Nos.5 to 16 and contend that when the plaintiffs sold the property in terms of Ex.D1 and the same is admitted and Exs.D2 and D3 stands in the name of plaintiff No.6, it is very clear that there was an oral partition. The counsel also contend that Exs.D4, D5, D6, D7, D8 stands in the name of Appajigowda and both the Courts have not committed any error as contended by learned senior counsel for the appellants. The counsel vehemently contend that when there are sufficient materials regarding acquiring of properties by the plaintiffs after the partition, question of interference by this Court does not arise in this second appeal.
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17. Learned counsel for caveator-respondent No.7 adopts the arguments of learned counsel for respondent Nos.2 and 4 and contend that gift deed was executed in favour of defendant No.7 on 26.05.2010 in terms of Ex.D23 and the same was not challenged by the plaintiffs and when there was no such challenge to the said gift deed, question of considering the same does not arise.
18. In reply to this argument of learned counsel for respondent Nos.2 and 4 and learned counsel for caveator- respondent No.7, learned senior counsel for the appellants would vehemently contend that question of challenging the gift deed i.e., Ex.D23 does not arise, since this suit is filed for the relief of partition and separate possession and contend that all the properties belong to joint family and even if any document is executed, the same would not convey any right. The counsel would vehemently contend that though properties of the plaintiffs are not included, at no point of time, they contend that those properties are joint family properties. The counsel would vehemently contend that Ex.D1 is only an assessment extract in 21 respect of site measuring 30 x 40 and the same was purchased and sold by plaintiff No.1 and the fact that he was in Government Service working in the Police Department and purchased the property is not in dispute. The counsel would contend that Ex.D2-sale deed is dated 09.03.2012 and subsequent to filing of the suit, the property was purchased by plaintiff No.6. The counsel also would contend that Ex.D3-sale deed is dated 16.01.2013 and the same is purchased subsequent to filing of the suit and the fact that Kartha died in the year 2010 is not in dispute. It is contented that 30 guntas of land was granted to plaintiff No.6 and the same was his separate property and hence, question of inclusion of those properties does not arise. The counsel would contend that the very contention that property was given in favour of defendant No.7 cannot be accepted, since the property was acquired out of joint family nucleus and the fact that property measuring to an extent of 17 acres was acquired for the purpose of dam is also not in dispute and no compensation was paid to the plaintiffs out of the compensation amount received. If there was any such partition, property would have stood in the name of the plaintiffs in terms 22 of the oral partition and no such documents are produced. Hence, the very contention of learned counsel for respondent Nos.2 and 4 and learned counsel for caveator-respondent No.7 cannot be accepted.
19. Having heard respective counsel and also on perusal of the material available on record and also the substantial questions of law framed by this Court which have been referred supra, this Court has to analyze the material on record whether such a finding of oral partition and parties have acted upon in terms of the oral partition, in the absence of such material on record evidencing the fact of oral partition and any documentary evidence and whether it proves the factum of oral partition has to be considered by this Court and analyze whether the finding given by the Trial Court as well as the First Appellate Court that in the absence of the material on record that there was a partition is against the material on record and it amounts to perversity, in coming to such a conclusion.
23Substantial question of law Nos.(1) and (2)
20. Both these substantial questions of law are considered together, since both are interconnected to each other to prove the factum whether there was an oral partition and whether any documentary evidence supports the contention of the defendants regarding oral partition and there is any perversity in the findings of the Trial Court and the First Appellate Court.
21. Having considered the material on record, this Court has to look into the averments of plaint. This Court has already mentioned averments of the plaint in brief and it is relevant to note that 16 items of properties are included in the suit. It is also the specific case of the plaintiffs that properties belong to one Chaluvegowda, who is the propositus of the family and some of the properties are acquired out of the joint family nucleus in the name of elder son Thattaiah @ Thathappa. Before analyzing the material on record, this Court would like to make it clear that there is no dispute with regard to the relationship between the parties that one propositus Chaluvegowda was in the family and 24 plaintiffs are the children of said Chaluvegowda. The relationship is not disputed and existence of the properties to the family is also not disputed. But, only contention was taken that there was already an oral partition which had taken place 25 years ago. This suit was filed in the year 2014 and if, 25 years is taken, it goes back to 1989. The Trial Court comes to the conclusion that documents produced shows that there was a severance of the joint family status about 25 years back. While coming to such a conclusion, none of the documents are relied upon by the Trial Court that the properties which belongs to the family was transferred to the plaintiffs in view of oral petition.
22. In paragraph No.18, the Trial Court discussed that the plaintiffs have not included all the properties belonging to the family in the suit and also an observation is made that admittedly, in a suit for partition, the parties to the suit are bound to include all the properties belonging to the family members and seek for partition. But the Trial Court relies upon the evidence of D.W.1 and D.W.2, who have relied upon document Ex.D1 i.e., in respect of Site bearing No.299 of 25 Mallathahalli Village situated in Bangalore pertaining to site measuring 30 x 40 which stands in the name of plaintiff No.1 Sri V.C. Ramachandraiah. The P.W.1 also admitted that the same was sold by him and defendants also relied upon documents Exs.D2 and D3, the sale deeds dated 09.03.2012 and 16.01.2013 which shows that the properties mentioned in Exs.D2 and D3 have been purchased by plaintiff No.6 Appajjigowda and comes to the conclusion that these three properties shown in Exs.D1 to D3 have not been included in the plaint schedule by the plaintiffs and P.W.1 also admitted the same. But, the fact is that Exs.D2 and D3 which came into existence subsequent to death of Thattaiah @ Thathappa i.e., Kartha of the family, but suit was filed in the year 2014 and as on the date of purchase of these properties by plaintiff No.6, Thattaiah @ Thathappa, who is the Kartha of the family was no more. The Trial Court also made an observation that Exs.D10 and D11 are 'Hakku Patras' standing in the name of plaintiff No.3 and late Narayana, the husband of defendant No.5 which have not been included in the schedule and those properties were granted in the year 1989. But, the plaintiffs though have claimed 26 that there has been no partition of the suit schedule properties, no explanation is forthcoming, as to why the properties were granted separately in favour of plaintiff No.3 and Narayana and why those properties have not been included. But, the Trial Court comes to such a conclusion that those two properties are granted in year 1989 and hence, arrived at a conclusion that there was a partition effected among the children of Chaluvegowda can be believed to be true on perusal of Exs.D10 and D11 itself.
23. The Trial Court in paragraph No.19 also discussed with regard to admission on the part of P.W.1 in respect of Ex.D1 and also admission on the part of P.W.1 that defendant Nos.3 to 6 are cultivating the properties at Veerapura Village by growing ragi crops in the said properties and also taken note of Exs.D13 and D14 i.e., RTCs pertaining to Sy.No.22 measuring 30 guntas and Sy.No.32 measuring 1 acre which is standing in the name of plaintiff No.6 and Ex.D16 pertaining to Sy.No.60/1 measuring 38 guntas standing in the name of defendant No.2- Sowbhagyamma, wife of Thattaiah @ Thathappa. The RTCs 27 shows that those properties are not included in the suit schedule properties. The defendants have also relied upon documents Exs.D19 to D21 issued by B.B.M.P. that plaintiff No.1-Y.C. Ramachandraiah has got sites at Bangalore for which he is paying taxes, but those properties are not included in the suit schedule. Even Exs.D24 to D26 tax paid receipts goes to show that the properties in the name of defendant No.7 which was gifted by Thattaiah @ Thathappa in favour of defendant No.7 as per gift deed dated 26.05.2010 i.e., Ex.D23 is also not included in the suit schedule. Even the house shown in the photographs Exs.D27 to D30 and the building shown in Exs.D31 and 32 belonging to the plaintiffs are not included in the schedule and having discussed the same, the Trial Court comes to the conclusion that those properties are not included in the suit schedule.
24. It is also an observation in paragraph No.21 of the judgment of the Trial Court in respect of contention of defendant No.7 that item No.14 of the suit schedule property shown in Ex.D23 was a self-acquired property of Thattaiah @ Thathappa 28 which was granted to him by the Government and which was gifted by him in favour of defendant No.7. The gift deed dated 26.05.2010 Ex.D23 executed by defendants in favour of defendant No.6 has not been challenged by the plaintiffs till date and no prayer has been sought by the plaintiffs seeking for any relief either cancellation or that the said gift deed is not binding on the plaintiffs. Inspite of the contention taken up by defendant No.7 in her written statement, the plaintiffs have chosen to file the suit against selected items of the properties which are standing in the name of the defendants only. Having considered these materials on record, the Trial Court comes to the conclusion that suit for partial partition is not maintainable and also comes to the conclusion that there is a substance in the contention of the defendants that there was a partition about 25 years back and it can be seen from the documents produced by both the sides.
25. Having analyzed these reasons, this Court has to examine the material on record and it is admitted in the evidence that Chaluvegowda passed away in the year 1984 and 29 it is also important to note that, P.W.1 in his cross-examination admitted that he had sold the property in terms of the document Ex.D1 and when the said document was confronted to him, he admits that he sold the property on his own. But, he claims that the same was his self-acquired property and he has not included the same and admits that property which is purchased by plaintiff No.6 in terms of Exs.D2 and D3 are not included in the suit schedule properties. But the fact is that those properties are purchased by plaintiff No.6 is not in dispute and also admits that even plaintiff No.5 is also residing at Bangalore. It is also important to note that he categorically admits that item Nos.1, 2 and 9 to 11 belongs to his father Chaluvegowda and admits that item Nos.13 and 14 are granted to his grand-father and his brother and the same was given in view of acquisition of the properties and he categorically says that Sy.Nos.5, 7 and 8 were acquired in the year 1978-1980 and admits that item Nos.13 and 14 was granted in the year 1999 and those properties were in the separate possession of Thattaiah @ Thathappa and Narayanappa. But, again he says that it was in the joint family possession, but denied all the suggestions with regard to he was 30 doing Contractor work and was also supplying milk. He also admits that some portions of the properties are in possession of some of the defendants and they are growring crops and also admits that Thattaiah @ Thathappa was residing at Adakamaranahalli and they are cultivating the land and also admits that item Nos.5 and 6 were purchased by Thattaiah @ Thathappa and denies purchase of item No.7 and admits that in the fixed deposit made, the name of his wife was given as nominee.
26. This Court also has to take note of evidence of D.Ws.1 and 2, since substantial questions of law is framed by this Court with regard to perversity is concerned. Hence, this Court has to look into both the evidence of plaintiffs as well as the documents. The defendant No.4, who has been examined as D.W.1 reiterated the averments of written statement in his evidence and got marked the documents. In the cross- examination, he admits that when Chaluvegowda was alive, he was the Kartha of family. Though he denies that after the death of Chaluvegowda, his father became Kartha, but categorically 31 admits that after the death of Chaluvegowda, his father was looking after affairs of the joint family and also categorically admits that after the death of father, all the properties were transferred in the name of his father. Hence, it is clear that after the death of propositus, the property was transferred in the name of his father i.e. Thattaiah @ Thathappa and he was looking after the affairs of the family. But, he claims that Sy.Nos.60, 3/1, 24/6 and Site No.8 are the self-acquired property of his father and also admits that he cannot tell how many acres of land are the ancestral properties and cannot tell the extent of his father's self-acquired property and also description of the property. He also admits that plaintiff No.1 was working in the Police Department and denies that the plaintiff No.1 was also taking care of the family affairs and claims that plaintiff No.5 was working in Axis Bank and he does not have any document to that effect, but he can produce the same. It is suggested that Thattaiah @ Thathappa was not doing any Contractor work and real estate business and the same was denied. But, he admits that, in order to prove that he was doing Contractor work, there was no licence and also says that he was 32 doing real estate business from the last ten years in the name of 'Ganesh Developers'.
27. It is elicited in the cross-examination of DW1 that his father was doing real estate and out of the income from the real estate, he used to purchase the property and he also deposed that to prove the fact, he is not having any documents. As he deposed in the chief evidence that no division was taken place and plaintiff No.6 is not residing along with them, the same was admitted by him when a suggestion was made to him. It is also elicited that he has not produced any documents to show that his father was earning money from real estate business. However, he admits that family was having the property at Veerapura village and Adakamaranahalli. A suggestion was made that all of them are jointly cultivating the land and they are in possession of the property, the said suggestion was denied. But volunteers that Veerapura land was cultivated by plaintiff Nos.1, 3 and 6. When suggestion was made that plaintiff No.6 was not residing along with them from last ten years, he says that from last two years, he is not residing with them and now, plaintiff 33 No.6 is residing at Bengaluru. But he volunteers that plaintiff No.6 is residing at Bengaluru from long time and also cultivating the land at village. He also admits that his father was doing contract work and dealing with one Debbaguli Shivanna but he has not produced any documents in this regard. But he contends that in order to show that they were having high-breed cows and supplying 100 liters of milk to the dairy, there is no documents to prove the same. But a suggestion was made that his father was doing dairy farming from the last ten to fifteen years and supplying the milk to the dairy, the said suggestion was admitted. A suggestion was made that plaintiff Nos.3 and 6 were taking care of the family affairs after the death of his father, the witness volunteers that they were looking after from the beginning and also admits that Ex.D1 is the property of plaintiff No.1. It is suggested that plaintiff No.6 had purchased the property under Ex.D2 and D3 doing a business in Bengaluru and the witness says that he does not have knowledge above the same. It is suggested that Ex.P8 came into existence with the consent of the family members and the said suggestion was denied.
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28. The other witness is DW2. In her evidence she reiterated the written statement averments and got marked the documents at Ex.D22 to 26 and also photographs, Ex.D27 to 35. This witness was subjected to cross-examination. In the cross- examination, she admits that she cannot tell the site number and house number of photos at Ex.D27 to D34. It is suggested that her uncle constructed the building from his self earning since he is working in the police department and not made use of joint family fund and the said suggestion was denied. However, after cross-examining this witness in part, adopted the cross-examination of DW1 as the same is in respect of DW2 wherein clear admission in terms of the admission given by DW1. DW1 also admits that while purchasing the property by her father in the year 2000 and she cannot tell how her father got the money to purchase the said property.
29. The very substantive questions of law framed by this Court is with regard to the finding of both the Courts whether the same amounts to perversity. In the cross-examination of PW1, the material answer was elicited confronting of document 35 of Ex.D1 and the same is admitted. But he categorically admitted that he himself sold the said property and so also Ex.D2 and D3 also confronted to him and got marked through him. He also admits that plaintiff No.6 is residing in Hegganahalli, Bengaluru and also admits that plaintiff No.6 is having house at Adakamaranahalli and the same is not included in the suit. Plaintiff No.5 is also residing in Bengaluru and also there is an admission with regard to the fact that the defendants are cultivating the land and growing ragi and also there is a clear admission that family was having item Nos.1, 2, 9 to 11 in the name of Cheluvegowda and other properties are purchased in the name of Thattaiah. Except this admission, nothing is elicited with regard to the earlier partition as contended by the defendants.
30. It is the case of the defendants that partition was taken place 25 years ago and suit was filed in 2014, hence, it goes back to in between 1985 to 1990, if such partition was taken place. This evidence the fact that there was a partition and parties have acted upon in terms of the said partition but no 36 document is placed on record in this regard. Though the counsel appearing for the respondent would vehemently contend that Ex.D1, D2, D3, D8 to 11, D13 discloses that there was a partition and these properties are having purchased after the death of Thattaiah that is Ex.D2 and D3 and Ex.D10 and D11 are the properties which were allotted in favour of V Narayana and Srinivasa and these documents do not disclose anything about the fact that there was already a partition.
31. The main contention of the appellants' counsel also that Ex.P8 is the document of mutation extract which came into existence in the year 1996-97. If partition was taken place as contended by the defendants about 25 years ago, the question of document at Ex.P8 came into existence that too with the consent of all the family members including the mother, in the name of eldest son i.e., Thattaiah does not arise. This document was not taken note of by the Trial Court as well as First Appellate Court while considering the material on record regarding earlier partition. Having perused Ex.P8, it is very clear that wife and other children of Cheluvegowda have given consent to transfer 37 the property in the name of Thattaiah eldest son i.e., in respect of Sy.No.3/1 and 61 to the extent of 2 acres 22 guntas as well as 7 acres 31 guntas respectively and the same is an ancestral and joint family property which was standing in the name of Cheluvegowda.
32. It is also important to note that Sy.No.21 measuring 17 acres was also acquired for the purpose of construction of the dam and the same is also not disputed. When such being the case, even if such property was acquired, no material is placed before the Court for having paid the compensation to any of the plaintiffs. It is also important to note that the Trial Court while coming to the conclusion that there was a partition, in paragraph 18 discussed with regard to Ex.D1 is concerned and the same was purchased by plaintiff No.1 and sold the same. No doubt, the said property was not included. But mere admission is that not included the said property, same cannot be contended that the same is part of partition. But the fact that he was working in the police department is not denied by any of the parties. Apart from that other documents relied upon at Ex.D2 and D3 are the 38 sale deeds which show that plaintiff No.6 had purchased the same. It is also important to note that these properties are purchased even after the death of kartha of the family i.e., Thattaiah who passed away in 2010 itself as per the document produced before the Court i.e., death certificate and nothing is placed on record to show that those properties are purchased out of joint nucleus and any amount was given. Though Trial Court in detail discussed the documents of Ex.D1 to D3. When PW1 admitted that defendant Nos.3 to 6 are cultivating the properties at Veerapura village by growing ragi crops, the same cannot be a ground to come to a conclusion that already there was a partition.
33. It is important to note that the Trial Court relies upon the documents at Ex.D13 and D14 RTCs pertaining to Sy.No.22 measuring 30 guntas and Sy.No.32 measuring one acre which are standing in the name of plaintiff No.6 and Ex.D16 pertaining to Sy.No.60/1 measuring 38 guntas standing in the name of defendant No.2 - Sowbhagyamma. Merely these documents are standing in the name of plaintiff No.6 and 39 defendant No.2, those properties are not the ancestral and joint family properties which were gone to their share. In order to prove the factum of oral partition about 25 years ago and none of the properties are under the cultivation either by the plaintiffs or by defendant No.2, no documents are placed. When such being the case, the Trial Court ought not to have comes to the conclusion that there was a partition. If really there was a partition in respect of ancestral and joint family property, there would have been an entry in the documents that there was a partition and parties have acted upon. But no such document is placed on record evidencing the said fact. The Trial Court mainly relies upon the document of Ex.D22, D23, D27 to D30 and those photographs were marked through DW2. But in order to prove that there was a partition and out of the said joint family nucleus only, these properties are purchased, no material is placed on record. Thus, the Trial Court committed an error in relying upon these documents of subsequent purchase made by the defendants wherein some of the properties are purchased subsequent to the death of kartha who passed away in the year 2010 itself.
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34. It is important to note that when specific defence was taken in the cross-examination that already there was a partition, but categorical admission given by DW1 that there was no partition in the family. Even it is the evidence of DW1 that plaintiff No.6 was also residing along with them in the house but he categorically deposed that from last two years, he left the house of DW1. Hence, his evidence is very clear that after the death of Cheluvegowda, his father was looking after the affairs of the family. According to him, he passed away in the year 1984 and also he categorically admits that after the death of Cheluvegowda, all the properties are transferred in the name of his father. Hence, there is a clear admission and same is also evident from the document of Ex.P8. It is also important to note that though he claims that his father was doing real estate business and contract work, but categorically admitted that no documents are placed on record in this regard. But categorically admitted in the cross-examination when a suggestion was made that as he contend in chief evidence that there was a oral partition but he admits that there is no any personal partition. It is also categorically admits that at present plaintiff No.6 is not 41 residing along with them. These admissions clearly show that there is no any partition. These admissions also not taken note of by the Trial Court as well as the First Appellate Court. When there is a clear admission that the family was having property at Veerapura village and Adakamaranahalli, a suggestion was made that all of them are cultivating the property and enjoying the same but DW1 volunteers that plaintiff Nos.1, 3 and 6 are cultivating the said property, but no document is placed on record to show that his uncles i.e., plaintiff Nos.1, 3 and 6 are cultivating the land at Veerapura village after the partition.
35. I have already pointed out that clear admission was given by DW1 that when a suggestion was made to him that plaintiff No.6 is not residing along with them from last ten years but he says that two years prior to the death of his father, he is not residing with them. If there is already a partition, what made plaintiff No.6 to reside along with them till 2 years before the death of his father. If his evidence is that plaintiff Nos.1, 3 and 6 are cultivating the property separately at Veerapura village, he categorically admits that plaintiff Nos.5 and 6 are 42 residing in Bengaluru but admission was given that plaintiff No.6 is also residing in Bengaluru as well as cultivating the land in the village. This admission clearly goes to show that plaintiff No.6 was along with his father and he also assisting the family for the cultivation of the property. These are the admissions which were not taken note of by both the Courts.
36. The evidence of DW2 is clear that document at Ex.D22 is a original grant certificate in favour of his father and he had executed a gift deed in terms of Ex.D23. No doubt, having perused the document at Ex.D22 it is clear that the said property was granted under the Ashraya scheme in memory of anniversary of independence. When property was given under the Ashraya Schme, that becomes the independent property of her father and her father had executed a gift deed and thus, same cannot be termed as an ancestral and joint family property. Hence, there is a force in the contention of the counsel for respondent No.7/defendant No.7 that same cannot be a property of the joint family.
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37. It is also the contention of the respondent counsel that Ex.D10 and D11 are very clear that the properties which were allotted in favour of Srinivasa as well as Narayana, same were not included in the partition suit. Having perused documents at Ex.D10 and P11, it is very clear that Hakku Patras were issued as per the Government order of the year 1972 which was issued in the years 1989 and 1976 respectively in favour of Srinivasa and V Narayana and same has not been included in the plaint and site also allotted in favour of defendant No.7's father similarly and likewise two properties are allotted in favour of Srinivasa and Narayana and nothing is placed on record to show that these two Hakku Patras are given on behalf of the family. It is not the pleading of the defendants in the written statement that these properties are also the joint family properties and same ought to have been included in the suit and also no defence of partial partition was attributed by taking specific defence in the written statement. But both the Courts committed an error in coming to the conclusion that suit for partial partition is not maintainable. In the absence of any pleading to that effect, both the Courts cannot comes to the conclusion that 44 partial partition suit is not maintainable unless the same was pleaded and made as part of written statement contending that those properties are ancestral and joint family properties. Admittedly these properties are granted in favour of the father of defendant No.7 as well as other two family members and also purchased in the name of the plaintiffs and plaintiff No.6 and no material is placed on record to show that the said grant was also made in favour of the family as well as purchase with joint nucleus. Unless the grant is in favour of the family, the question of inclusion of the said properties to the family does not arise. Both the Courts have carried away in coming to the conclusion that the properties which are standing in the name of plaintiffs and defendant No.2 which they have acquired is a proof to comes to a conclusion that already there was partition and the said reasoning is nothing but an assumption and no material on record to show that there was a partition. The document of Ex.P8, which came into existence in the year 1996-97, is very clear that there is no partition and also there is a categorical admission that after the death of Cheluvegowda, the properties are transferred in the name of the eldest son i.e., Thattaiah and 45 other family members including the plaintiffs as well as their mother have given consent for transfer of property. The main document of Ex.P8 discloses that family was continued and there was no any partition. Even it is accepted that partition was taken place 25 years ago, the same goes in between 1985 to 1989 and document of 1996-97 clearly evidences that there was no any partition. Hence, the Trial Court as well as the First Appellate Court committed an error to consider both oral and documentary evidence placed on record in a proper perspective. Hence, I answer both substantive questions of law as affirmative holding that findings of both the Courts suffer from perversity in ignoring both oral and documentary evidence placed on record particularly, the admission on the part of DW1 with regard to family property is concerned.
38. It is also important to note that PW1 categorically admitted that the defendants are cultivating the property at Veerapura village by growing ragi. The suggestion was made to DW1 that the father had high-breed cows and doing dairy farming and supplying the milk to the dairy. Though, the same 46 was denied but the very suggestion made to DW1 is very clear that father was supplying the milk to the dairy from last 10 to 15 years. Though DW1 admits that no such document to prove the said fact, the very suggestion is clear that they were milking having 10 to 15 high-breed cows and father had maintaining the same from last 10- to 15 years and supplying the milk to the dairy and the said admission was got elicited from the mouth of DW1 while cross-examining him by the plaintiffs' counsel themselves. The specific case of the defendants also that father was doing business independently, but document is not produced in this regard and supplying of milk to the dairy was not disputed. Thus, answer was elicited from the mouth of DW1 making the suggestion during the course of cross-examination regarding supply of milk. Hence, it is clear that they were cultivating the property at Veerapura village as well as getting the income to the family by supplying the milk. Thus, the Court has to take note of the fact that keeping the amount in FD, Thattaiah appointed his wife as nominee, if such income is from the joint nucleus, he would have nominated any one of the plaintiffs as nominee. Hence, it is clear that said amount is out 47 of income of the family of the defendants that is Thattaiah i.e., out of milking maintaining high-breed 10 to 15 cows and supplying the milk to dairy as suggested and no material is placed before the Court to show that Rs.10 lakh was out of the joint family income having such amount and particularly having that much of amount out of the joint family nucleus, nothing is placed on record and there cannot be any hypothetical assumption that out of joint family income, FD was kept. Hence, the plaintiffs are not entitled for any share in the FD amount unless any cogent evidence.
39. In view of the discussions made above, I pass the following:
ORDER The second appeal is allowed in part.
The judgment and decree dated 09.04.2019 passed in O.S.No.310/2014 by the Trial Court and the judgment and decree dated 15.07.2021 passed in R.A.No.36/2019 by the First Appellate Court are set aside. Consequently, the suit of the plaintiffs is 48 allowed in part granting the share as sought excluding the property which was gifted in favour of defendant No.7 by her father that is the granted property and so also FD amount of Rs.10 lakh.
Sd/-
(H.P. SANDESH) JUDGE ST/SN