Karnataka High Court
S E Sreenivas Rao vs S T Eshwar Rao Since Deceased By Lrs on 31 March, 2010
Bench: N.Kumar, K.Govindarajulu
IN THE HIGH COURT or KARNATAKA AT
Dated this the 31stc1ay of March, 2..;):1Q i '
PRESEN' T _ A V
um I-ION'BLE 1vm,_ = "
THE }ION'BLE £:.iGQvmi)ARA§.JULU
REGULAR 1«'1RsTT_A?P§«§A:; of 2003
BETWEEN:
Srii S E.~'31'€@IIifJaS"R&O
Aged 40 year*s*; . _'
S/0 1ate_S'I_' Eshwar Ra_()*._ "
No.3. 4EhACr0ss " _
Victoria Road Layc._ut~,
Divi.$;iO"n.N0.62» l
Ba1.ig'alQr¢ 560 047'! -------- ...Appe1lant
_ Sri G. Papi Raddy, Advocate)
Aim'
" _ S '1' Eshwar Rao
Since deceased by L.Rs.,
% s L Kasturi Bai
Maj 0;: 1%/"
1(b)
1 [C]
D/0 1a€;e.S"T Eshwar Rao
/_0 'M_ah«ade"v,a
D/0 late S T Eshwar Rao
W/0 Devendar
57, 181 Floor
Annaswamy Mudaliar Road. _
Kodandarama Layout '' '
Bangalore -- 560 042
S L Prema Bai _v
Major * '
D/0 late S T Eshware¥..a.bv-.
W/0 Jayakumare. 'V -4 . "
Residing at " 'M ,
NandanaVanan1VS"tr.eef,_ :.
Ulsoorj ' _ '
s i..AI}5a;§1a Q '
Sincee deceased: "by L.Rs..
" eMa1iatEefiia'Ra§)
* 41 years
_ K Raghupathi
VV " §a{1;uf_n';T.:;'I\FaVaneetha
Vfixgedabout 9 years
/"<5 Mahadeva Rao
I\/iaster M Nidhi Vinayaka
Aged about 7 years
S / 0 Mahadeva Rao
3
* M 'N_G0pa1a Raddy. Advocate Rita) and (b)
C~2 and C-3 are minors
Represented by their father
and natural guardian c- 1, ie,
Mahadeva Rao
A1} are resident of
Jayanthi Nagar, Near Church
Hooiimavu
Bangalore
2 Smt. Indira B31' V
Aged 65 years
W/o late S T Eshwar'-«Rae
3 Sri s E Naga:~ra;.t_Raoit"" * V'
Aged 46 years _ _
S/o late S T EshWar'Rao "
4 Smt.i:N
Aged '45'y_ears'
W / o Sri.._E3 E Nagaraj V
Nos'. 3 and.,{l"are residing at
_ 1\:§_'«3sE_4t1i Cross" ..... .. .
, 'Victoria Road Layout
_ *Di'Visio;"i N"o.,_6'2
" ._Banga1or.e -g'56O O47 ...Respondents
[Bj}""Sri"-C C;Poovaiah, Advocate for R2 to R4;
and R1(c1to 3]
XX
sons': of the first and second defendants. The fourth
This RFA filed under section 96 of CPC against the
judgment and decree dated 24--03--2003 pass.ed_=_OS
N0.10145/ 1993 on the file of the XXV III ACidl...~«Ci.'ty.Civil' :31
Sessions Judge, Mayo Hall Unit, Bangalore (
dismissing the suit for partition and separate _'possession'; ., up
This RFA coming on for
N. KUMAR J ., delivered the following" A' ' "
JUDQMENQ'
This is a plaintit'f7sV:i"appea;i'againsti the judgment and
decree of the trial the suit of
the plaintifild that he has failed to establish
that the stat sehedfifisdpfoperues are the johat fiunfly
properties .
._2.v.._"ForA¢.'the purpose of convenience, the parties are
referred _to'"a_s..ethey are referred to in the original suit.
A. 3; "The plaintiff and the third defendant are the two
ta/
consisting of the first defendant, plaintiff
defendant. The first defendant took
profession and soon he opened the
name and style of S.'I'.Eswar if
Tailors, at Brigade Road, Bangalore-25: shasisr
The two sons were ._fatth..er tailoring
business when they were the two
sons 'basis around 1978-79
and carried at Brigade Road. in
1991 additional shop on rental basis
from Vitta], Street. The piaintiff and the
firstgfdvefendaritgare at present jointly carrying on the
tailoring in the shop since 1991.
T3"'~.__V"*»bearing[:No. 46/ I situated in Tata Lane, Ashoknagar,
A gifffsangalore-25, out of the Joint Hindu Family funds in the
of the third defendant. The plaintiff sold his
6., first defendant purchased the premises
Xx/it
13
partition. The business carried on in Brigadepgflgpggff/diiépiflgt
a joint family business but it is the V'
the third defendant. The if
denied. All the allegations against"
husband, mother-in~law, in sialemdeed
denied as false. It ' the first
defendant expressed the schedule
property in sale proceeds for
himself his wifewthe second
defendant; 1 also knew the first
defenclanfisjpl the property and it was
offeredlto him' but he refused to purchase the same
either hjimpself or along with his brother; Then the
agreed to purchase the same for an
V -V agreed suirrrflof Rs.4~,87',O0O/- which fact the plaintiff also
if vv'"I"he plaintiff also knew that the fourth defendant
' bought the stamp papers and the sale deed being got
X
typed, and the date of registration
25.2.1993. On 25.2.1993 when the matterigWasff'4plac--ed
before the Sub--Registrar for if
defendant, the plaintiff _4ulter'ior'~--n1otitre.
office of the Sub-Registrar and
snatched the papers the 'dn!d--Registrar.
When the Sub-Registrar consequences,
he returned a xerox copy.
In spite of informed the Sub-
freeeived the sale amount of
Rs.4,87,f"()OV_0gl/'-- the fourth defendant and
requested. to register the sale deed. After getting himself
the._.'Sub--Registrar registered the sale. So, it is
who was the absolute owner of the
V V' _ sched--uie--..'property on his own, for his necessity, alienated
"in favour of the fourth defendant only after
4'_'_pep~aCE.tnoWledging the receipt of Rs.4,87,000/--. Added to
{/ .
15
this, the first defendant is a born businessman, the
world and educated, as such playing fraud
not arise. The allegation that the
gave a letter to Sub~Registrar 'I to '4
is also false. Since there is,no_ joint..fa;:nilytl1er:e',
is no joint faunily in eXistencelf*t_l::1e _olain1--of'tl'1eVV}plaintif'f is
unfounded and he isvnot erttitierl "t.o>._any share much less
1/ 4"? share. Th_erefoife~,~si:1e' sot1gh't_ tlismissal of the
suit.
10. the the trial Court
framed 12 issues and an-.ao-giitional issue as unden-
prove that the plaintiff and
-. constituted joint Hindu family and
joint possession of the suit property
as.__'Contefnded in plaint paras 3, 4 and 7?
.' ' _Whether the plaintiff proves that defendant No.1
'' io
V' "started to work as kartha of the joint family /_.
%x/
consisted with plaintiff and as
contended in plaint Para 4? A if it" A
Does the plaintjf probe' tttia't'..g'n.;u','i_ih ' T
each other got the deed
defendant No.1 "respect of _thelsflu,it.. property'
which is null and and 'riotl_f5ind;ir1g on the
plaintiff pvlaint para ?
[Recasted]1.=Whether_'=_the'v_ proves that
aiientefitiicrnlczgf the si_iit_lp'r0pe»rty was not for legal
debts of the family as
" -cointeVnded""in"the piai--rit?
V "I)oes_.further prove that defendants
,c,,,,;4«CU:eVVnot*--e#fi"ected the partition in respect of the
saitpropeyrty wherein he has got 1/431 share in
-jaspite of his demand as contended in para 9 of
plaint?
"' the present suit has cause of action?
Does the defendant No.4 prove that the suit
property is self acquired property of defendant
i/
No.1 and as such plaintiff cannot question
registered sale deed executed in respect""0j'--.,the
suit property as contended in
written statement?
8. Whether the defendan'ty"ith:at .
she has become Vbonafideand at:a'So£tite otgéner
the suit property -registered sale
deed execLt'ted :o'wf by defendant No. 1?
9. Whether is properly
and courtfee proper?
10. W'?_1etherVV;é'aitt.Vi_ri.the:presen.t form maintainable?
1 1. To wuhatta'elief'tne are entitled?
" ~ 2. - decree or'order?
Add:£ic¢,;;m;ss;;et;fyit "
1. plaintiff proves that Schedule~A
property is joint family property and plaintiff
\/
it ' got 1/ 4"! share in the said property?
defendants. The plaintiff has further failed to"
in Collusion with each other got the sale
defendant No.1 in respect of the' "suit is '
null and void and not bindingthe \I'pj;.;;lii3.tiff.fl
plaintiff has failed to prove "the all--er1ationfo_fVVthe'suitV
property was not for legal neoessityiporppto discharge debts
of the family. The plaintiff prove that he is
entitled to 1/ élthl'shareglafterieffeeting..a..l.partition in respect
of the suit T No.4 has proved that
the suit' property theacquired property of defendant
No.1, aslfsujeli 'eannot question the registered
sale__§deed exe'cn_ted in respect of the suit property as
cA'.o'11te1;dedpinf.'para 2 of the Written statement. Further she
'she is the bona fide and absolute owner of
-V the lhfsnitoproperty by virtue of the registered sale deed
lfexeentedl in her favour by defendant No.1. Thus, the
has failed to prove that the suit schedule 'A'
i
period of nearly 16 years out of the joint family business
and, therefore, it is a joint family property. 'B' schedule
property was acquired by the first defendant in
of the third defendant out of the income of tlie"
business and also from the sale
way of a site which was standiiaygllthétfialme it
plaintiff and, therefore, evenv--vi.i»""7'. schezriuiey is
joint family property. VA~..couplel to the date of
the suit, the third defendant obtain a sale
deed [in respect of 'A' schedule
property had no absolute title to
execute the sale At any rate his action do not in any
af_feet--_tiie_ interest of the plaintiff. Under these
circumsltaneesrfthe trial Court committed a serious error
--V in there is no joint family, there is no joint family
ll_fbusi*ness, there is no joint family property and the sale
deedlfexecuted by the first defendant in favour of the
X
schedule property by the first defendant to the.-fourth
defendant, it is under a registered sale deed
consideration of Rs.4.87,000/-, even after
the sale deed nearly after three
was Very much alive. He
have challenged the said sdoner
Under the circumstaneies. the trial
Court is 1ega1__and call for any
interferenefi-H
in the aforesaid facts and the rival
conteI_1tions}~the.poirit_s"tE'iat arise for our consideration in
'f V' "vthis.r._appeaE'~t.are as 'ui'1'der : --
'A' schedule property is the self
aeqtfisition of the first defendant or was it acquired out
if 'fofyythfe joint family business and thus it was a joint
family property'? §\«:\//
in Karnataka Housing Board. It is from that
-V the riew'V.constructions are put up. It is from that income
expenditure is met. It is from that income the
niarriages of the daughters are performed and even if
27
her contest is only in respect of this property
acquired by her under a registered sale
deed and her evidence is of no out V T
whether it is a joint farniiy
acquisition of the first Ithiisf regard»
when we look into the 'oral-.on rflecordfit is clear
that, the members Iived The
business whichiiwas defendant was
carried on in which the plaintiff
and father after they were
grown pffhef clearly shows it is from
the pp income deriirfeyd from the business, the installments
iirzco-meVVsii'_bsec§nentIy the old building was dernoiished and
K/or
28
loans were raised, the loans were discharged from the said
business. The family is residing in the said property. Even
after marriage, after differences arose, in _.th._,ez'_lsame
building they are living separately. Thispwaisi
till the date of death of the first d.efen4dant."lVl'gI53i{r'§;;i."after ' 1.
death, the mother is staying
the daughter«~in--laW -- fourth'--.defend.ant._V the V
plaintiff is living separately btiiidingj
1,7. _ adrnitt.ed evidence on record, it is
clear thatthe under a registered partition
deedhgreceived of Rs.800/-- by way of cash being his
i_ril:Ath.he'joint family properties. He started tailoring
l31_isiness«lVii<1_.afrented premises. I-Iis sons also joined him
V . in svaidlgbusiness. He got the site allotted from the
it Housing Board and therefore he constructed a
It is admitted that the instalments for this loan
29
was paid out of the business income. Apart from taiioring
business which the defendant was carrying on he had no
other source of income. An attempt is made to_4sho:vv~.that
he was also doing cloth business.
also do cloth business in the shop'
tailoring business and it is not
other than the tailoring business.
very clear that it is the only the first
defendant. It is from ltliat --..Qn1y he paid the
§
instalniientsi ltlolthe Housing Board, the evidence
on recordi.,_shovvs=.that :tl1-eibuilding was demolished and a
newggconstructionl'consisting of two floors was put up.
- which was received by him at partition
u'ti'l_ised~.:;'sr at any rate, there is no evidence to that
V . effect; "Clear admission that the construction Which
it it ' up was out of the income of the tailoring business
was carried on jointly by himself and his two sons,
E/e
31
statement, they have flied a memo adopting the written
statement of the fourth defendant. Further that the
plaint was amended and the third defendant has an
additional written statement. All this W11} to
show that the specific ease pleaded by
there exists a joint family; theireh
business and out of theV»Vi.ncorn'eA_:"oi
business, item no.1 of is
acquired clearly '=.Unfortunate1y, the
trial court properly.' appreciated the oral and
documentaryti evidence record. It seems have no
knowiedge of law. It has misread the evidence and
3 observations are contrary to the oral evidence on
recs:-pg it mislead itself in coming to the
V . cor1e'Iiusit$:r.1"that item No.1 of the schedule property is a
it"4':Vs:e1fVia§;qiiisition of the first defendant and oonsequenfly, it
that the saie by the first defendant in favour of
E/.
33
show that the said amount is paid by way of
father who was selling the property to discharge
which he had borrowed for the if
marriage. In fact. the wife -'
discharging the debts, the in her
possession. No money in
the house. If she has it has to
earn interest' a fixed deposit in
a that the remaining
amount is maintaining herself out of
that money: semblance of truth in the said
contention, shew should have produced evidence.
very clear that this sale is stage~managed
IVn:fae_t;~f;;. the widow of the first defendant goes to the
V -V extent ..o'fg'.saS2"ing that she has paid Rs.2,00,000/-- out of
"Ljsaiei--consideration to the plaintiff which was not the case
' pieafded by anyone. All these aspects in the case which are
35
amount was 'deposited in the bank account of
The plaintiff has aiso contributed a sum 9'
for having acquired the same o?.v;1JtmVo'i"' thu\ /3
balance amount was paid by the
and that is how the sale iterhf
no.2 of the property ffherefore.
though the of the third
defendant as family, there is
no partitiongyy share in the said property.
As defendant has not filed any
statementtat on the statement filed by the
wife,;the,fourt'h. who has nothing to do with that
I.nvthe circumstances of the case, it is their case
ifis""_thex.:seIf--acquisition of the third defendant. The
evidence. record shows that because the third
if"4':a:defendant had the problem of stainrnering, he
-- Zdisfcontinued his studies and joined his father in tailoring
1/
36
business until the death of his father. It
carrying on the joint family business
Except the said business, the no if
other business. in other; words, no other :Vsoui;'ce'l of,»
income. It is not his case got from his
father--in--law or from pnrehase this
property. Though the Hindu Law is
confined only fact is joint and it does
not extend a joint family, when
a person thewproperty standing in the
name of family, the initial burden
is on ghiin, who"*a,sserts' that it is a joint family property to
evidence in support of his case. Once,
and once it is shown that the joint family
V . has and the income from the joint family
that is utilised for acquiring the property
in the name of the member of the joint farniiy,
l/
38
prove the source of income from which h.e purch_ase'ti.V_the
property. Absolutely there is no evidence
his contention that it is his seif 'acquisi.tion--..,:'_" the .
circumstances again, the tria,1:2_po;i'1\t 3
appreciating the facts of th'e__case
mind the settled legalfpositiont: erroneously
held that mereiy because. standing in the
name of the ithiitqp dftfendiaiizt; self acquisition,
forgetting joint family and
the produced evidence on record
as to hotw-.thie for the acquisition has flown
frornjpthe. joint" fanitiiyvifunds. Therefore, the said finding
in be interfered vm'th and it is accordingly set
aside it
20," No.3: When the defendant no.1 has soid
Jt1ie,,_.ite1n':no.1 of the property in favour of the fourth
tdefeiidant, though the said property is now held to be a
39
joint family property at a notional partition;':'he:'--V:W'as
entitled to a share, a Hindu can convey
property. Though a Case of fra"t'1d--.« '
coercion is sought to be made 'of:
deed, the first defendant chooseito the
sale deed. Even if it stands, ttheiriterest of
the plaintiff and other of who have a
share in the said: p'ro:pe_i-'ty.§.__:TTherefore, the sale
deed would'not""heeome"'%ioid;~. the interests of the
first devfend2inti'v.w.h_o'.phaseggecuted a sale deed. To that
extent the vvspsle
Tftifiilt 110.4: The evidence on record shows that
thesohedti'ie__pifoperties are the joint family properties and
i/
not the co--parcenary properties.
pendency of this appeal, the Hindu
amended by Amendment Act is 3
daughter of co~pareenaIyV,~s_tatufs"--=3.
equal rights of that of a that
right she has got o11;iy':«.in property. The
properties whichyare joint family
properties. a'"'share in the said
property favour of the fourth
respondent if I time and therefore the
in the suit property. Insofar
as ite7.jn'11.o.2 is"'coneerned, it is a joint family property and
entitled to equai share in the share of the
father the sons. In that View of the matter, we
34/_.
if _ pass"'the"--fo1Zoyving:-
ORDER
The appeal is aliowed. The judgme11t"v:'*a-r1Vd:.T_d'eeIeTe' T the trial court is set aside. is. ' granting him one--third shaV1,'re_<_in "the :se1'fi;eeIu1:ej properties. The parties to beef' ovsffi-r:;uc:)Tst:s.
' e 3UDGE mi;
EEFEQE hm /nv