KUNTAGIRINAIKA, SINCE DEAD HIS LRS v. DASANAIKA @ DHARMANAIKA

THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE IN JUDGEMENT R.A.NO.200/2009 (RA OLD NO.92/2005) ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT, HUNSUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 23.2.2005 PASSED IN OS.NO.23/1992 ON THE FILE OF CIVIL JUDGE (JR.DN.) AND JMFC, H.D.KOTE.

15.9.2012 PASSED THIS APPEAL, COMING ON FOR DICTATING JUDGMENT, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 4 - NC: 2025:KHC:35335 RSA No. 362 of 2013 HC-KAR CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT This appeal is against concurrent finding in a suit for partition and separate possession. The relationship of the parties is not in dispute. The genealogy reads as under: Dasa Naika (Dead) (Burugamma) dead Kuntigiri Naika (dead) Papanaika Javaranaika Dasa Naika (R-1) (dead) (dead) Urvalamma (Appl No.1) Puttachannamma (Res-2) Kalamma (R-6) Thimmamma (R-7) Dasa Sannappa Thimma Naika Naika Naika (App-2) (App-3) (App-4) Dasanaika (Dead) Chikkamma (R-3) Kalamma (R-4) Shankar (R-5) Girajamma (R-8) - 5 - NC: 2025:KHC:35335 RSA No. 362 of 2013 HC-KAR

2. One Sri.Dasanaika was the propositus, his wife was Smt.Burugamma. The couple had four sons Sri.Kuntigirinaika, Sri.Papanaika, Sri.Javaranaika and Sri.Dasa Naika. The suit is filed by youngest son Sri.Dasa Naika, claiming that all the properties are joint family properties inherited after the demise of Sri.Dasanaika the propositus and claimed 1/4th share.

3. Defendant No.1-Kuntagirinaika i.e., eldest son of the propositus urged that item No.5 is the self acquired property of his mother Burugamma, who purchased the property under the registered sale deed dated 01.07.1963, marked as Ex.P.6. The property was purchased for a consideration of Rs.50/-, which according to defendant No.1 is the self earning of his mother Burugamma, who was a vegetable vendor. He further contended that his mother Burugamma executed a registered Will dated 04.10.1991 bequeathing the said property in his favour. Thus, defendant No.1 would urge that the claim for partition in the said property is not maintainable. - 6 - NC: 2025:KHC:35335 RSA No. 362 of 2013 HC-KAR

4. Defendant No.1 also took a defense of previous oral partition. Thus, he prayed for dismissal of the suit.

5. The Trial Court has concluded that all the properties are joint family properties and granted a decree for partition holding that the plaintiff is entitled having 1/4th share.

6. Aggrieved by the judgment and decree, legal representatives of the deceased Sri.Kuntagirinaika filed First appeal, which is also dismissed confirming the judgment and decree.

7. This appeal was admitted on 25.09.2013 to answer the following substantial question of law. "In a suit for partition, as the plaintiff seeks partition on the assertion that they are members of the joint family and where properties are divisible amongst the heirs, is not the burden on the plaintiff to prove it initially, or when does the burden shift on the defendant properties are self-acquired?" that some of to prove

8. Learned counsel for the appellants would contend that contesting defendant No.1 raised a plea relating to - 7 - NC: 2025:KHC:35335 RSA No. 362 of 2013 HC-KAR execution of Will by his mother, Burugamma. Will is produced and the evidence is led to prove the execution of Will. However, the Trial Court has not recorded any finding on the proof of execution of Will. The Trial Court preceded on the assumption that item No.5 property is the joint family property though purchased in the name of Burugamma, as such there is no need to record any finding relating to execution of the Will. First Appellate Court also committed the same mistake is the submission.

9. It is further urged that the property in the name of Burugamma is presumed to be the self acquired property unless proven otherwise. The presumption is stronger since the property is in the name of a woman. It is also urged that property acquires the characteristic of 'Stree dhana'. Reference is made to Section 14 of the Hindu Succession Act, 1956 and urged that the property in the name of Burugamma is her absolute property and she was capable of disposing of the said property in the manner she liked and defendant No.1 being the differently abled person, was living with the mother and the - 8 - NC: 2025:KHC:35335 RSA No. 362 of 2013 HC-KAR mother executed the Will bequeathing the said property in favour of the defendant No.1. It is urged that the finding of the Trial Court that the property at item No.5, is the joint family property is not supported by any evidence and the finding that there is no need to record a finding on the proof of execution of Will is also erroneous.

10. In the alternative, it is urged that assuming that the property was a joint family property, the testator Burugamma can validly execute the Will to the extent of her share and same is not barred under law.

11. Learned counsel for the respondents/plaintiffs would contend that no evidence is placed on record to show that Burugamma had independent source of income to purchase item No.5 property. Admittedly, remaining properties were standing in the name of Burugamma's husband and from the income derived by those properties; item No.5 property was purchased in the name of Burugamma as she was the head of the family then. Though the property was purchased by using the joint family income and for and on behalf of the family, the - 9 - NC: 2025:KHC:35335 RSA No. 362 of 2013 HC-KAR property is purchased in the name of Burugamma as the children were minors is the submission.

12. It is urged that the plea of previous partition raised by the first defendant is not established.

13. The suspicious circumstances surrounding execution of the Will are also not explained by any cogent evidence and both Courts were justified in decreeing the suit for partition and separate possession is the submission.

14. The Court has considered the contentions.

15. As far as items No.1 to 4 and 6 properties are concerned, there is no dispute that these properties belonged to the propositus Sri.Dasanaika, the husband of Burugamma. The plea of previous partition is not supported by entries in the revenue records. All the item Nos.1 to 4 and 6 properties jointly stood in the name of defendant No.1 after the demise of his father Dasanaika. Thus, both Courts were justified in granting a decree for partition and separate possession in favour of item No.1 to 4 and 6 properties. - 10 - NC: 2025:KHC:35335 RSA No. 362 of 2013 HC-KAR

16. The next question is, whether item No.5 property is the self acquired property of Burugamma and if so, whether she has executed a Will.

17. As can be noticed from the judgment and decree passed by the Trial Court and First Appellate Court, there is no issue relating to proof of execution of Will. Nevertheless, when a Will is produced and the attesting witness is examined to prove the execution of Will. Trial Court and First Appellate Court ought to have recorded a finding as to whether the execution of Will is proved or not.

18. Both Courts have come to the conclusion that the property being the joint family property there is no need to record a finding as to the proof of execution of Will. Said view is wholly incorrect. Even assuming that the property is the joint family property, still the testator can bequeath the undivided share in the property. Thus, the Trial Court and First Appellate Court ought to have recorded the finding as to whether the execution of Will is proved or not. - 11 - NC: 2025:KHC:35335 RSA No. 362 of 2013 HC-KAR

19. Before that, this Court has to consider whether the property in question is the self acquired property of Burugamma or the joint family property. It is well settled principle of law that the property standing in the name of an individual is presumed to be a self acquired property unless proved otherwise. The presumption is stronger in case the property stands in the name of a woman and is characterized as a 'Stree dhana' property.

20. Admittedly, there is a sale deed in the name of Burugamma as she purchased the property in the registered sale deed dated 01.07.1963. The sale consideration amount is Rs.50/-.

21. Though there is a sale deed in the name of Buragumma wherein she claims to have purchased the property for Rs.50/-, independent income is not established in evidence. Learned counsel for the defendant No.1 would submit that it is stated that she was selling vegetables and she had money to purchase the property for Rs.50/- and merely because she was also managing other properties, it cannot be - 12 - NC: 2025:KHC:35335 RSA No. 362 of 2013 HC-KAR said that the property was purchased from the joint family income.

22. It is quite possible that she might have earned Rs.50/- by selling the vegetables as contended by the plaintiff. It is also required to be noticed that in 1963 all the children were minors. In that event, it is quite possible that she has purchased the property for and on behalf of the family. However, in the cross examination the power of attorney holder of defendant No.1 states that the property is given to Burugamma by her mother. However, it is not the case made out in the written statement. In the written statement, it is stated that she has earned money to acquire the property by selling vegetables. This being the position, this Court is of the view that the finding relating to the self acquisition or exclusive ownership of Burugamma over Item No. 5 is not established.

23. Learned counsel the defendants/appellants would submit that Trial Court and First Appellate Court committed an error in holding that the Will is not proved on - 13 - NC: 2025:KHC:35335 RSA No. 362 of 2013 HC-KAR the premise that the property does not belong to Burugamma exclusively.

24. In the normal circumstances, this Court would have remanded the matter to the Trial Court or the Appellate Court to consider whether the execution of the Will is proved. However, it is noticed that the suit is filed in the year 1992. This being the position, it is not proper to drive the parties to the Trial Court to consider their claim relating to execution of the Will. Hence the evidence on the execution of the Will is considered.

25. It is noticed that the Will is dated 04.10.1991 marked at Exhibit-D4. One of the attesting witnesses and the scribe are examined and the Will is duly registered. On appreciation of evidence recorded this Court is of the view that there is nothing in the cross examination to disbelieve the execution of the Will by Burugamma. Moreover the legatee is differently abled. It appears that Burugamma intended to confer additional benefit to the legatee/defendant No.1. Hence, the contention that the Will is not executed by Burugamma - 14 - NC: 2025:KHC:35335 RSA No. 362 of 2013 HC-KAR cannot be accepted. No suspicious circumstances are brought out in the cross examination of scribe and the attesting witnesses.

26. Learned counsel for the appellant would place reliance on the judgment of the Apex Court in Marabasappa (Dead) by LRs. and Others vs. Ningappa (Dead) by LRs. And Others1 to contend that the property acquired by a female Hindu would be considered as self acquired property under Section 14 of the Hindu Succession Act, 1956.

27. As per the ratio laid down in paragraph 24 of the said judgment, it is noticed that property acquired by a female Hindu will be her property and in para 25 it is held that there is no presumption that every joint family has a joint family property.

28. It is settled position of law that under cases falling under Section 14 of the Act, 1956, the property acquired by a Hindu woman as a limited owner would be an absolute 1 (2011) 9 SCC 451 - 15 - NC: 2025:KHC:35335 RSA No. 362 of 2013 HC-KAR property and not as a limited owner thereof. The Section is incorporated to deal with a situation where the property is acquired by a female Hindu as a limited owner and the intention of the Parliament was to confer absolute ownership in favour of a Hindu woman who has possessed the property. The provision would apply in a situation where the property is acquired as a limited owner. In case the property is acquired by a female Hindu without there being any restriction on the ownership, then the female Hindu will acquire absolute ownership dehors Section 14.

29. The sale deed in favour of Burugamma does not indicate that the property is given to Burugamma as a limited owner. She claims to have purchased the property from her own income, then, she would become absolute owner of the property even without reference to Section 14 if the acquisition through her income is established. However, this Court has concluded that defendant No.1 has not established exclusive ownership of Burugamma over the property. - 16 - NC: 2025:KHC:35335 RSA No. 362 of 2013 HC-KAR

30. This Court has recorded a finding that Burugamma has acquired the property for and on behalf of the joint family and the initial presumption in favour of Burugamma is rebutted from the evidence led before the Court. Hence, the ratio in the above said judgment does not apply.

31. Hence, the following; ORDER i) Appeal is allowed-in-part. ii) Judgment and decree in R.A. No.200/2009 dated

15.09.2012 on the file of the Fast Track Court at Hunsur, Mysuru District are modified. iii) Judgment and decree in O.S. No.23/1992 dated

23.02.2005 on the file of Civil Judge (Junior Division) & JMFC at H.D. Kote, Mysuru District are modified. iv) The suit of the plaintiff is decreed in part. v) The plaintiff is entitled to 1/4th share in the suit schedule properties except Item No.5. - 17 - NC: 2025:KHC:35335 RSA No. 362 of 2013 HC-KAR vi) The plaintiff is entitled to 1/5th share in the Item No.5 property. vii) Defendant No.5 is entitled 1/4th share in all the properties, except Item No.5. viii) In Item No.5 defendant No.5 is entitled to 2/5th share. ix) Each of the remaining children of Burugamma is entitled to 1/4th share in all the properties except Item No.5. In item No.5, each of remaining children of Burugamma is entitled to 1/5th share. SD/- (ANANT RAMANATH HEGDE) JUDGE CHS List No.: 1 Sl No.: 13 ...