SRI H.N. EREGOWDA v. SRI H.E. GOPAL

RFA No.477/2012 is filed by defendant Nos.1,3 and 4 and the Cross-objection No.23/2012 is filed by plaintiff in O.S.No.280/2004 challenging the judgment and decree passed by the Additional Senior Civil Judge, Chikmagalur (for short ‘the Trial Court’), in the said suit. By the said judgment and decree the Trial Court has decreed the suit awarding 1/7th share in suit schedule A item Nos.1 to 9 properties to the plaintiff and defendant Nos.1 to 6 and dismissed the suit in respect of suit schedule A item Nos.10 to 13 properties and suit schedule B properties. Further, the suit was decreed for accounts and mesne profits in respect of item Nos.1 to 9 of schedule ‘A’ properties.

2. For the sake of convenience, the parties herein are referred to as per their rank before the Trial Court.

3. The facts leading to the present appeal and cross-objection may be briefly stated as under: - 6 - NC: 2024:KHC:14386-DB RFA No. 477 of 2012 C/W RFA.CROB No. 23 of 2012 i) Plaintiff presented the suit for partition and separate possession of his 1/5th share in the schedule ‘A’ and ‘B’ properties, for accounts and mesne profits under Order XX Rules 12 and 18 of CPC initially against defendant Nos.1 to 4 i.e., the father and brothers of the plaintiff, subsequently, defendant Nos.5 and 6-the sisters of the plaintiff were impleaded in the suit vide Order dated

05.01.2012. ii) Plaintiff contended that defendant No.1-father of the plaintiff, was getting old and as such, defendant No.2 had been managing the joint family properties since 10 years. It is further averred that suit schedule item Nos.1 to 9 of schedule ‘A’ and ‘B’ properties are joint family properties, further item Nos.10 to 13 properties situated in Uggihalli and Anajoor Village purchased in the name of defendant No.2 was out of the nucleus of the joint family properties. The averment of the plaintiff is that, the plaintiff and defendants are members of Undivided Hindu - 7 - NC: 2024:KHC:14386-DB RFA No. 477 of 2012 C/W RFA.CROB No. 23 of 2012 Joint Family and the suit schedule properties are the joint family properties of the plaintiff and defendants.

4. Pursuant to the summons issued by the Trial Court, defendants appeared and filed their written statement.

5. Defendant Nos.1 and 2 filed separate written statement, written statement filed by defendant No.1 was adopted by defendant Nos.3 and 4 by filing a memo.

6. Defendant No.1, 3 and 4 admitted that the plaintiff is having 1/5th share over the suit schedule properties, suit item Nos.10 to 13 were acquired from the joint family income in the name of defendant No.2. However, plea of defendant Nos.1, 3 and 4 was that, the plaintiff has acquired site bearing Sy. No.5/p at Lokavali New Extension and also landed properties in Hyaragadde village in the name of the plaintiff and those properties were acquired out of the income derived from the joint family business which was run by the plaintiff and - 8 - NC: 2024:KHC:14386-DB RFA No. 477 of 2012 C/W RFA.CROB No. 23 of 2012 contended that they have no objection for partition of the suit properties provided that the plaintiff includes the suit property Sy.No.5/p and the house site standing in the name of the plaintiff, as they are also joint family properties.

7. Defendant No.2 separate written statement, inter alia, contending that item Nos.10 to 13 of schedule ‘A’ properties and item No.5 of schedule ‘B’ properties are the self acquired properties, which he acquired out of the income he derived from commission agent work, which was established in the year 1982 and specifically contended that he has not availed any nucleus from the joint family properties.

8. Defendant Nos.5 to 6, who were impleaded as parties to the suit, despite service of notice, failed to appear before the Court and they were placed ex parte.

9. The Trial Court on the basis of the pleadings framed the following: - 9 - NC: 2024:KHC:14386-DB RFA No. 477 of 2012 C/W RFA.CROB No. 23 of 2012 ISSUES “1. Whether second defendant proves that item No.10 to 13 of the “A” schedule property and item No.5 of the “B” schedule property are the self acquired property of him, as contended at para 7 of his written statement?

2. Whether the suit is not maintainable for non- inclusion of Sy.No.5/p of Hyragudde village and house site situated at Lokavalli new extension in Mudigere taluk as contented by defendant No.1 in para 14 and 15 of the written statement of first defendant?

3. Whether the plaintiff proves that he is entitled for partition and separate possession of 1/5th share in the A & B schedule properties?

4. Whether plaintiff is entitled for mesne profits as sought for?”

10. In order to substantiate his contention, the plaintiff examined himself as P.W.1 and got marked documents at Exs.P.1 to P.13. On the other hand, defendant Nos.1, 2 and 4 were examined as D.W.1 to D.W.3 respectively and examined one witness as D.W.4 and got marked documents at Exs.D.1 to D.22. - 10 - NC: 2024:KHC:14386-DB RFA No. 477 of 2012 C/W RFA.CROB No. 23 of 2012

11. The Trial Court on the basis of the pleadings, oral and documentary evidence held that: i. Defendant No.2 proved that item Nos.10 to 13 of schedule ‘A’ properties and item No.5 of schedule ‘B’ properties are his self-acquired properties of defendant No.2. ii. The properties acquired in the name of the plaintiff are not joint family properties and liable for partition between the plaintiff and defendants. iii. The suit is not bad for non-inclusion of the properties which stood in the name of the plaintiff; And by judgment and decree, the Trial Court decreed the suit of the plaintiff for partition and separate possession in part awarding 1/7th share in respect of item Nos.1 to 9 of schedule ‘A’ properties and dismissed the suit in respect of item Nos.10 to 13 of schedule ‘A’ and ‘B’ properties. - 11 - NC: 2024:KHC:14386-DB RFA No. 477 of 2012 C/W RFA.CROB No. 23 of 2012

12. Aggrieved, defendant Nos.1, 3 and 4 are in first appeal and the plaintiff has preferred cross-objection. Before this Court parties filed IA Nos.2/2015, 1/2016 and 1/2023 under Order XLI Rule 27 CPC to adduce additional evidence and the same are opposed by the rival parties.

13. Heard Sri S. Kalyan Basavaraj, learned counsel for the appellants/defendant Nos.1, 3 and 4, Sri Amshith Hegde H.S., learned counsel for the cross-objector/plaintiff and Sri H.N.M. Prasad, learned counsel appearing for respondent Nos.2/defendant No.2.

14. Learned counsel appearing appellants/defendant Nos.1, 3 and 4 would mainly urge the following grounds: i. That the plaintiff and defendants were members of Undivided Hindu Joint Family and there was no severance of Hindu Undivided Family Status. ii. That defendant No.2 was the Kartha of the family since defendant No.1-father of the plaintiff and - 12 - NC: 2024:KHC:14386-DB RFA No. 477 of 2012 C/W RFA.CROB No. 23 of 2012 defendant Nos.2 to 6 was getting old and defendant No.2 was managing the joint family properties and its income iii. That defendant No.2 did not produce any material evidence indicate that he had any extraordinary business and that income derived from such business was sufficient for defendant No.2 to acquire the properties at item Nos.10 to 13 of schedule ‘A’ properties. iv. That members of the Hindu Undivided Family stood as a surety for the loan availed to purchase the properties by defendant No.2 and offered the Hindu Undivided Family Properties as security. v. That defendant No.1 had paid a sum of Rs.2,05,000/- to purchase item Nos.10 to 12 to defendant No.2, making it clear that item Nos.10 to 13 of schedule ‘A’ properties were purchased in the name of defendant No.2 from the nucleus of the joint family properties. vi. The material evidence was not properly considered by the Trial Court to arrive at a conclusion that suit item Nos.10 to 13 are not the joint family properties of the plaintiff and defendants. - 13 - NC: 2024:KHC:14386-DB RFA No. 477 of 2012 C/W RFA.CROB No. 23 of 2012 vii. The Trial Court failed to consider the fact that the properties purchased by the plaintiff were Hindu Undivided Family properties and they were not included in the suit. The plaintiff did not discharge his initial burden by producing convincing documents to show that the plaintiff has purchased those properties out of his self-acquisition. The Trial Court failed to hold that they were acquired out of Hindu Undivided Family fund and the suit was bad for non-inclusion of those properties. vii. The joint family properties at item Nos.1 to 9 were wet land, growing commercial crops and there was sufficient nucleus from the joint family properties to acquire item Nos.10 to 13 of schedule ‘A’ properties and the reasoning of the Trial Court that they are the self- acquired properties of defendant No.2, is without considering the fact that defendant No.2 has not discharged his burden of proving his independent income to acquire item Nos.10 to 13 of schedule ‘A’ properties. - 14 - NC: 2024:KHC:14386-DB RFA No. 477 of 2012 C/W RFA.CROB No. 23 of 2012

15. In support of his contention, learned counsel has placed reliance on the following decisions: i. Randhi Appalaswami vs. Randhi Suryanarayana Murti and others1 (Randhi Appalaswami) ii. Narendrakumar J. Modi vs. Commissioner of Income Tax Gujarat II, Ahmedabad2 (Narendrakumar) iii. Amrita Lal Sen and others vs. Surath Lal Sen and others3 (Amrita Lal Sen) iv. K.V. Narayanaswami Iyer vs. K.V.Ramakrishna Iyer and others4 (K.V. Narayanaswami Iyer) v. Dandappa Rudrappa Hampalli vs. Renukappa @ Revannappa5 (Dandappa Rudrappa Hampalli) vi. D.S. Lakshmaiah another vs. L.Balasubramanyam and another6 (D.S. Lakshmaiah) vii. Mudigowda Gowdappa Sankh and others vs. Ramchandra Revgowda Sankh (dead) ORDER I.A.No.2/2015 I.A.No.1/2016, I.A.No.1/2023, RFA No.477/2012 and cross-objection No.23/2012 are hereby dismissed. Having regard to the relationship between the parties, no order as to costs. Sd/- JUDGE Sd/- JUDGE MBM