B N NETHRAVATHI @ P S NETHRAVATHI v. B N LALITHA

(BY SRI. S.K. VENKATAREDDY, ADVOCATE FOR R3 R1, R2, R5 & R6 ARE SERVED V/O DATED 22.08.2023 NOTICE IS H/S IN R/O R4) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 21.09.2021 - 3 - NC: 2024:KHC:46613 RSA No. 964 of 2021 PASSED IN RA.No.16/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, K.R.NAGAR, PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED

19.03.2019 PASSED IN OS.No.79/2013 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, K.R.NAGARA. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This regular second appeal is filed challenging the judgment and decree dated 21.09.2021 passed R.A.No.16/2019 by the learned Senior Civil Judge and JMFC, Krishnarajanagara and judgment and preliminary decree dated 19.03.2019 passed O.S.No.79/2013 by the Principal Civil Judge and JMFC, K.R. Nagara.

For convenience, parties are referred to, based on their ranking before the trial Court. The appellant was the plaintiff and the respondents were the defendants. - 4 - NC: 2024:KHC:46613 RSA No. 964 of 2021

The brief facts leading rise to the filing of this appeal are as follows: The plaintiff filed a suit for partition and separate possession with respect to the suit schedule property against the defendants. It is the case of the plaintiff that defendants No. 2, 3 and 6 are the daughters, and defendants No.4 and 5 are the sons of defendant No.1. All the children of defendant No.1 and the plaintiff are belong to a Hindu undivided family. There is no partition affected among them. It is contended that the plaintiff requested the defendants for partition of joint family property. Her request for partition was not considered by defendant No.1 and other family members. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession. Accordingly prays to decree the suit.

The defendants filed a written statement admitting the relationship between the parties. Defendant No.7, being purchaser, filed a separate written statement. The defendants No. 3 and 6 were placed ex-parte. The - 5 - NC: 2024:KHC:46613 RSA No. 964 of 2021 defendants No.1, 2, 4 and 5 filed written statement admitting the relationship of the parties and admitting that the title of the suit schedule property came to defendant No.1 through his father Bheemrao under a partition dated

15.10.1950. It is contended that, after partition, defendant No.1 started a Tailoring shop in the portion of item No.9 of the suit property.

Under the partition between defendant No.1 and his siblings, item No.9 of the suit schedule property fell to the share of defendant No.1. The defendant No.1 became the absolute owner of item No.9 of the suit schedule property. The plaintiff has contributed nothing to the business of defendant No.1. The defendant No.1 spent a huge amount for performing a marriage of the plaintiff and defendants No.2, 3 and 6. The plaintiff and defendants No.2, 3 and 6 have not contributed anything to the business of defendant No.1, 4 and 5.

It is contended that defendant No.1 purchased item No.1 of the suit schedule property under a registered - 6 - NC: 2024:KHC:46613 RSA No. 964 of 2021 sale deed dated 14.02.1979. Item No. 4 of the suit property was purchased by defendant No.1 under a registered sale deed dated 24.02.1983 and 29.10.1983. Defendant No.1 bequeathed items No.2 and 4 of the suit schedule property in favour of defendants No.4 and 5 under a registered gift deed dated 05.01.2013. Item No.3 of the suit schedule property is the self-acquired property of defendant No.5. He had purchased the same under a registered sale deed dated 18.07.1992 after the plaintiff's and other defendants' marriage.

The defendant No.1 purchased the site measuring 20x60 ft. at K.R. Nagara in the name of the plaintiff under a registered sale deed dated 17.05.1983. Defendant No.1 purchased land bearing Sy.No.301 measuring 1.10 acre under a registered sale deed dated

11.10.1994. The plaintiff had sold the site under a registered sale deed dated 03.10.2008 and sold the landed property under a registered sale deed dated 11.03.1998. - 7 - NC: 2024:KHC:46613 RSA No. 964 of 2021

The defendant No.1 filed an additional written statement contending that item No.5 of the suit property was purchased by the father of defendant No.1 under a registered sale deed dated 09.01.1943. Defendant No.1 sold the same for the benefit of the family in favour of defendant No.7 under a registered sale deed dated

04.12.2012. Items No.6 and 7 were purchased by defendant No.4 under a registered sale deed dated

21.12.1990. Item No.8 was acquired by the mother of the plaintiff through Hakkupatra and accordingly, prays to dismiss the suit.

Defendant No.4 filed written statement contending that items No.1, 4, 6, 8 and 10 to 12 properties were purchased by defendants No.1, 4 and 5 out of their earning and they are the self acquired properties of defendants No.1, 4 and 5, hence, prays to dismiss the suit with cost. Defendant No.7 filed a written statement contending that he is the bonafide purchaser of item No.5 of the suit schedule property. Item No.5 of the - 8 - NC: 2024:KHC:46613 RSA No. 964 of 2021 suit schedule property was owned and possessed by defendant No.1. Hence, pray to dismiss the suit.

Trial Court based on the aforesaid pleadings framed the following issues.

Whether plaintiff proves that the suit schedule properties are the joint family properties of plaintiff and defendants?

2. Whether the plaintiffs prove that they in the suit are having 1/7th share schedule property?

3. Whether the defendant No.1, 2, 4 and 5 proves that the suit schedule properties are the self acquired properties of defendant No.1, 4 and 5?

4. Whether plaintiff is entitled for the relief claimed?

5. What order or decree?

The plaintiff to substantiate her case, has examined herself as PW-1 and marked 36 documents. In rebuttal, DW-1 got marked 27 documents. Defendant No.7 was examined as DW-2 and got marked documents as Ex.D.28 to D.36. Defendant No.1 died during the - 9 - NC: 2024:KHC:46613 RSA No. 964 of 2021 pendency of the suit. The plaintiff and defendant No.2 to 6 are the legal representatives of defendant No.1.

The trial Court on assessment of oral and documentary evidence answered issue Nos. 1 and 4, partly in the affirmative, issue No.5 as per the final order. The suit of the plaintiff was decreed in part with cost. It is ordered and declared that the plaintiff is entitled to a 1/6th share over item Nos. 1, 5 and 8 of the suit schedule properties. It is further ordered and decreed that the defendants No.2 to 6 each are entitled to 1/6th share in item Nos. 1, 5 and 8 of the suit schedule properties and suit in respect of items No.2 to 4, 6, 7, 9 to 12 was dismissed. The plaintiff, aggrieved by the dismissal of the suit in respect of item Nos. 2 to 4, 6, 7, 9 to 12, filed an appeal in R.A.No.16/2009. The appellate Court, partially allowed the appeal to the extent of allocation of shares. It is ordered that the plaintiff and defendants No.4 and 5 are entitled to 1/3rd share each in items No.1, 5 and 8. The relief regarding items No.2 to 4, 6, 7, 9 to 12 was - 10 - NC: 2024:KHC:46613 RSA No. 964 of 2021 dismissed, and the judgment and decree passed by the trial Court is modified. The plaintiff, aggrieved by the impugned judgments, filed this regular second appeal.

This appeal is admitted to consider the following substantial question of law: justified "Whether the trial Court and first appellate Court were in denying relief of partition in all suit schedule properties ignoring admission of defendant No.4 that item No.9 of suit schedule property was acquired by him under partition deed dated 15.10.1950 (Ex.D8) and that except income from said property, he had no other source of income, giving rise to presumption that acquisition of other suit properties was from joint family income?"

Learned counsel for the plaintiff submits that item No.9 of the suit schedule property was fallen to the share of defendant No.1. Hence, item No.9 is the ancestral property of the plaintiff and defendants No.1 to 4. He submits that the plaintiff is entitled to an equal share in the property. He also submits that out of income earned from item No.9, other properties were acquired by defendant No.1. Hence, they had constituted joint family property. It is contended that defendant No.1 and his - 11 - NC: 2024:KHC:46613 RSA No. 964 of 2021 father were carrying on a business in item No.9 of the suit schedule property and defendants No.1, 4 and 5 had no independent source of income. All the suit schedule properties are the joint family properties of the plaintiff and defendants No.1 to 4. Both the Courts below have committed an error in denying to grant partition regarding items No.2, 4, 6, 7, 9 to 12. Hence, on these grounds, he prays to allow the appeal.

Per contra, learned counsel for the defendants supported the impugned judgments and contends that the plaintiff has failed to establish that the suit schedule properties, except items No.1, 5 and 8 are the joint family properties of the plaintiff and defendants No.1 to 4 and he submits that the plaintiff has failed to establish that the suit properties are acquired out of the joint family nucleus. Both the Courts below have concurrently recorded finding the fact against plaintiff. Hence, on these grounds he pray to dismiss the appeal. - 12 - NC: 2024:KHC:46613 RSA No. 964 of 2021

The plaintiff to prove her case examined herself as PW-1, and she reiterated the plaint averments in the examination-in-chief. The suit schedule properties are the joint family properties of the plaintiff and defendants No.1 to 4. In order to demonstrate that the suit schedule properties are the joint family properties of the plaintiff and defendants, produced records marked as Exs.P.1 to P.36.

During the cross-examination of PW-1, she admitted that item No.9 of the suit property was acquired by defendant No.1 under a registered partition deed dated

15.10.1950, and Bheema Rao died in 1956. The plaintiff born in the year 1963 (aged 88-89). On the other hand, defendant No.4 was examined as DW-1. He reiterated the written statement averments in the examination-in-chief and to prove that the suit schedule properties are not the joint family properties of plaintiff and defendants No.1 to 4 produced documents marked as Ex.D.1 to D.27. During - 13 - NC: 2024:KHC:46613 RSA No. 964 of 2021 the cross-examination DW-1 has admitted, which is extracted as under: "£À£Àß vÀAzÉUÉ zÁªÁ LlA £ÀA.9 gÀ°è ªÀiÁqÀÄwÛgÀĪÀ ªÁå¥ÁgÀ¢AzÀ §AzÀ DzÁAiÀÄ ©lÄÖ ¨ÉÃgÉ DzÁAiÀÄ EgÀ°®è JAzÀgÉ ¤d." During the cross-examination, DW-1 admitted the suggestion that item No.9 of the suit schedule property was inherited by defendant No.1 and he had no other source of income. The defendants examined one witness as DW-2 Muddukumar C.B., who had deposed in the same lines as DW-1.

From the perusal of the entire records, it is clear that item No.9 of the suit schedule properties was inherited by defendant No.1 in a partition effected between defendant No.1 and his siblings. The other items of the suit schedule properties were purchased. It is the case of the plaintiff that out of the income derived from item No.9 of the suit schedule properties, the defendants No.1, 4 and 5 have purchased the other items of the suit schedule properties, and the said suit schedule properties - 14 - NC: 2024:KHC:46613 RSA No. 964 of 2021 are the joint family properties of the plaintiff and defendants No.1, 4 and 5. In a suit for partition and separate possession, the plaintiff is required to prove the nature of the suit schedule properties and relationship. Though the plaintiff has pleaded that the suit schedule properties are the joint family properties of the plaintiff and defendants, the plaintiff has not produced any records to establish that the other suit schedule properties were purchased out of the income derived from item No.9 of the suit schedule property. The plaintiff has neither pleaded nor proved, what the income was getting from item No.9 of the suit schedule property and how much is the amount saved by defendant No.1 for purchasing the suit schedule properties. Admittedly, defendants No.1 to 5 have purchased some of the items under the registered sale deeds.

It is a well established principle of law that, there is a presumption with regard to the joint family, but there is no presumption with regard to the joint family - 15 - NC: 2024:KHC:46613 RSA No. 964 of 2021 properties. Said view is supported by the judgment of Hon’ble Apex Court in the case of D.S. Lakshmaiah and another Vs. L. Balasubramanyan reported in 2003(10) SCC 310.

Plaintiff failed to establish a nucleus purchasing other items of the suit schedule properties. Both the Courts below have considered each and every documents produced by the parties and also placed reliance on the judgment of the Hon’ble Apex Court. Admittedly defendant No.1 acquired item No.9 of the suit schedule property. The said property becomes his separate property in view of the law laid down by the Hon’ble Apex Court in the case of Uttam vs. Saubhag Singh reported in AIR 2016 SC 1169.

The appellate Court considered the said judgment and held that item No.9 is the self-acquired property of defendant No.1. Hence, the plaintiff has failed to establish that the suit schedule properties are the joint family properties of the plaintiff and defendants No.1 to 5 - 16 - NC: 2024:KHC:46613 RSA No. 964 of 2021 and failed to prove that she has right, as a share in the suit schedule properties. Both the Courts below have concurrently recorded the finding of facts that the plaintiff has failed to establish that the suit items No.2 to 4, 6, 7, 9 to 12 are the joint family properties of the plaintiff and defendants No.1 to 5 and rightly declined to grant a share in items No.2 to 4, 6, 7, 9 to 12. I do not find any error in the impugned judgments.

The plaintiff was present before the Court. The defendants offered to pay Rs.5,00,000/- and accordingly, defendants brought the demand draft. When a specific query was put to the plaintiff, whether she was willing to accept the Demand Draft, she declined to accept the demand draft. In view of the above I answer the substantial question of law in the affirmative.