The High Court
Case Details
- 1 - NC: 2025:KHC:13593 RSA No. 2252 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 2252 OF 2016 (PAR) BETWEEN: 1. SAVITHRAMMA W/O LATE G.S. BASAVARAJU AGED ABOUT 67 YEARS, R/AT 6TH CROSS, SUBHASHNAGAR, MANDYA CITY - 571 401 2. G.B.USHA D/O G.S. BASAVARAJU W/O B.S. PRASAD, AGED ABOUT 47 YEARS, R/AT DEVOJI RAO, 1ST FLOOR, K.R.ROAD, MANDYA CITY, (NEAR OLD ABHINAVA BHARATHI SCHOOL) PIN - 571 401 3. DR. G.B. MAMATHA D/O G.S. BASAVARAJU, W/O DR. MANJUNATH.C.C., AGED ABOUT 45 YEARS, R/AT NO.C3, SWATHI APARTMENTS, NEW B STAGE, RMV EXTENSION, BANGALORE - 560 094 (BY SRI. S.M. CHANDRASHEKAR, SENIOR COUNSEL FOR …APPELLANTS Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:13593 RSA No. 2252 of 2016 SRI. CHANDRASHEKAR H.B., ADVOCATE) AND: 1. DR. SHASHIDHAR BASAVARAJU S/O G.S. BASAVARAJU, AGED ABOUT 46 YEARS, R/AT NO.2303 ASHISHU, 1ST FLOOR, 2ND CROSS, GANDHINAGAR, MANDYA CITY - 571 401 (BY SRI. MAHENDRA, ADVOCATE) …RESPONDENT THIS RSA IS FILED UNDER SEC. 100 OF CPC, 1908 AGAINST THE JUDGMENT AND DECREE DATED 19.08.2016 PASSED IN RA NO.45/2014 ON THE FILE OF THE PRL. SR. CIVIL JUDGE, MANDYA, PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 3.4.2014 PASSED IN OS NO.6/2008 ON THE FILE OF THE ADDL. CIVIL JUDGE AND JMFC, MANDYA AND ETC. 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 by the appellants challenging the judgment and decree dated 19.08.2016 passed in R.A.No.45/2014 by the learned Principal Senior Civil Judge, Mandya, confirming the judgment and - 3 - NC: 2025:KHC:13593 RSA No. 2252 of 2016 preliminary decree dated 03.04.2014 passed in O.S.No.6/2008 by the Additional Civil Judge and JMFC, Mandya. 2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellants were the defendants and the respondent was the plaintiff. 3. Brief facts leading rise to the filing of this appeal are as follows:
Facts
The plaintiff filed a suit against the defendants for partition and separate possession. It is the case of the plaintiff that defendant No.1 is the father of the plantiff and defendants No.2 to 3 and the suit schedule properties are the ancestral and joint family properties of the plaintiff and defendants No.1 to 3. It is contended that a family arrangement was made between the plaintiff's father, Defendant No.1 and his siblings, Bommegowda and Puttaswamy. Later on the plaintiff's father was given the suit properties towards his share and thereby the plaintiff - 4 - NC: 2025:KHC:13593 RSA No. 2252 of 2016 and defendant Nos.1 to 3 became the joint family members. The suit schedule properties are the ancestral and joint family properties of the plaintiff and defendants No.1 to 3. Defendant No.1 is the Karta of the family and had acquired some properties from the joint family funds. Since the plaintiff and defendants No.1 to 3 are in joint possession, they are entitled to an equal share. It is contended that there is no partition effected between the plaintiff and defendants No.1 to 3. The plaintiff demanded partition and separate possession. Defendants No.1 to 3 did not effect partition. Hence, a cause of action arose for the plaintiff to file suit for partition and separate possession. Accordingly, prays to decree the suit. 4. The defendants No.1 to 3 filed a written statement admitting the relationship with the plaintiff and denied the averments of the plaint. It is stated that defendant No.1 was suffering from ill-health including heart disease and paralytic stroke, and even during the said condition plaintiff has not at all look after defendant - 5 - NC: 2025:KHC:13593 RSA No. 2252 of 2016 No.1 and the plaintiff has never shown any kind of concern towards defendant No.1 and his wife. Defendants No.3 has supported defendant No.1 financially and spent huge amount towards medical expenses of Defendant No.1. Hence, defendant No.1 executed a settlement deed on 14.03.2006 in favour of defendant No.3, regarding the lands bearing Sy.No.408/P1 measuring 0.37 guntas, Sy.No.409/A measuring 2.13 guntas and Sy.No.410 measuring 3.18 guntas. In pursuance of the said settlement deed, she became the absolute owner and in possession of the said suit schedule properties. 5. On the strength of the settlement deed, the khata was transferred in her name. Further, he also executed a registered gift deed dated 16.02.2006 in favour of defendant No.3 and in pursuance of the said gift deed defendant No.3 was in possession and is the owner of the suit property bearing khata No.D3/500/1855 situated at 6th Cross, Subhashnagar, Mandya. The said property was the exclusive property of defendant No.1(a) - 6 - NC: 2025:KHC:13593 RSA No. 2252 of 2016 i.e., Savithramma. She got the absolute right over item No.4 of the suit properties. The plaintiff had borrowed loans from the private banks, Jayaramegowda and others. The loan was discharged by defendant No.3 by issuing a cheque and other modes. Hence, it is contended that the suit in its present form is not maintainable, and the suit is bad for non-joinder of the necessary parties. Hence, prays to dismiss the suit against defendants No.1 to 3. 6. Defendant No.4 filed a written statement denying the averments made in the plaint, and he has stated that the siblings of the defendants i.e., H.M. Puttaswamy and Chandra, had purchased 1 acre each in Sy.No.408 from the plaintiff, defendant No.1 and his wife Savithramma on 03.03.1994. In pursuant to the said sale deed, name of defendant No.4 is entered in the revenue records. Hence, on these grounds, prays to dismiss the suit against defendants No.4 and 5. - 7 - NC: 2025:KHC:13593 RSA No. 2252 of 2016 7. The trial Court, based on the pleading of the parties, framed the following issues and additional issues: ISSUES 1. Whether the plaintiff proves that, the suit schedule properties are the joint family properties? 2. Whether the plaintiff proves that, he is entitled for partition and separate possession of 1/4th legitimate share in the suit schedule properties? 3. Whether the plaintiff is entitled for the mesne profits as prayed for? 4. Whether the plaintiff is entitled for the reliefs as sought for in the plaint? 5. What order or decree? ADDITIONAL ISSUES 1. Whether the suit is bad for non joinder of necessary parties? 2. Whether the defendant Nos.4 and 5 prove that, the plaintiff and defendant Nos.1 and his wife have alienated the properties, which referred in their written statement? - 8 - NC: 2025:KHC:13593 RSA No. 2252 of 2016 8. The plaintiff, to substantiate the case, has examined himself as PW-1 and marked 34 documents as Ex.P.1 to Ex.P.34. On the other hand, the legal representatives of defendant No.1 i.e., defendant No.1(a) was examined as DW-1, defendant No.2 was examined as DW-2 and examined one witness as DW-3. Defendant No.3 was examined as DW-4 and marked 24 documents as Ex.D.1 to Ex.D.24. 9. The trial Court, after recording the evidence, hearing both sides and assessing the oral and documentary evidence, answered issues No.1 and 2 and additional issue No.2 in the affirmative, issue No.3 and additional issue No.1 in the negative. Issue No.4 partly in the affirmative and issue No.5 as per the final order. The suit of the plaintiff was partly decreed with cost of Rs.200/- and directed the defendants to effect partition of plaintiff’s 1/4th share in all the suit schedule properties except in item Nos.3A1, 3C, 3D and 5 of the suit schedule properties by metes and bounds and defendant No.1 G.S. - 9 - NC: 2025:KHC:13593 RSA No. 2252 of 2016 Basavaraju’s 1/4th share, the plaintiff and defendant 1(a), defendants No.2 and 3 have got 1/4th share. The plaintiff's suit against items No.3A1, 3C, 3D and 5 was dismissed. Defendants 1(a), 2 and 3, aggrieved by the judgment and preliminary decree passed in O.S.No.6/2008, preferred an appeal in R.A.No.45/2014 on the file of learned Principal Senior Civil Judge, Mandya. 10. The First Appellate Court, after hearing learned counsel for the parties, framed the following points for consideration. POINTS 1. Whether the learned trial Judge has erred in coming to the conclusion that the item No.1 to 3, 3(a) to (g) and item No.4 are the ancestral and joint family properties of the plaintiff and deceased defendant No.1, defendants No.2 and 3? 2. If so, whether the Judgment and decree passed by the learned trial Judge suffers from illegality which is liable to be interfered with? 3. What order? - 10 - NC: 2025:KHC:13593 RSA No. 2252 of 2016 11. The First Appellate Court, upon reassessing the entire evidence on record, answered points No.1 and 2 partly in the affirmative and point No.3 as per the final order. 12. The First Appellate Court allowed the appeal in part and modified the judgment and decree passed by the trial Court in O.S.No.6/2008. It is declared that the suit of the plaintiff is liable to be decreed for the relief of partition and separate possession only regarding the properties in items No.1 to 3, 3A, 3B and 3G. Accordingly, the said properties are liable to be divided into four shares among the plaintiff and defendants No.1 to 3 thereby the plaintiff is entitled to 1/4th share over the same in ignorance of settlement deed dated 14.03.2006 as per Ex.D.8 and in ignorance of gift deed dated 16.05.2009 as per Ex.D.9. Since defendant No.1 is no more, the notional share has further divided into four shares among the plaintiff, defendant No.1(a), defendants No.2 and 3, thus, the plaintiff is entitled for 1/4th share over the same. The suit - 11 - NC: 2025:KHC:13593 RSA No. 2252 of 2016 of the plaintiff for relief of partition and separate possession over item Nos.3E and 3F and item No.4 of the suit schedule properties was dismissed. The defendants No.1(a), 2 and 3, aggrieved by the judgment and decree passed by the First Appellate Court, insofar as the properties purchased under Ex.D.7 i.e., items No.1 to 3, 3A, 3B and 3G, have filed this regular second appeal.
Legal Reasoning
the judgment of the coordinate Bench of this Court in the case of Dastayya S/o. Khatalayya Guttedar Vs. Veerayya S/o. Khatalayya Guttedar and others in
Arguments
13. Heard Sri. S.M. Chandrashekar, the learned Senior Counsel for defendants No.1(a), 2 and 3 and learned counsel Sri. Mahendra appearing for plaintiff. 14. Learned Senior Counsel for the defendants No.1(a), 2 and 3 submits that in a suit for partition and separate possession, initially the burden is always on the plaintiff to establish the nature of the suit schedule property and the relationship between the parties. He submits that items No.1 to 3, 3A, 3A-1, 3B, 3C and 3G are purchased by defendant No.1 under a registered sale deed. He submits that the said properties were purchased by defendant No.1 out of his own income and the said - 12 - NC: 2025:KHC:13593 RSA No. 2252 of 2016 properties are the self acquired properties of defendant No.1. He submits that it is well settled principles of law that there is a presumption regarding the joint family but, there is no presumption regarding the joint family properties. He submits that the plaintiff has not pleaded and proved that the aforesaid suit schedule properties were purchased out of joint family nucleus. 15. He also submits that the plaintiff had amended the plaint after filing the written statement. The amended portion of the plaint is only an afterthought. Further, he submits that the plaintiff has not produced any materials to show that the family was possessing sufficient nucleus to purchase the aforesaid items of suit schedule properties. 16. To buttress his arguments, he has placed reliance on the judgment of the Hon’ble Apex Court in the case of Appasaheb Peerappa Chandgade vs. Devendra Peerappa Chandgade And Ors. reported in - 13 - NC: 2025:KHC:13593 RSA No. 2252 of 2016 AIR 2007 SC 218, and further, he also placed reliance on
Decision
RSA No.7170/2010 disposed of on 05.02.2015. 17. Hence, on these grounds he submits that the First Appellate Court has committed an error in granting share to the plaintiff in items No.1, 3A, 3B and 3G, as the said properties are the self acquired properties of defendant No.1. The plaintiff has no right to claim the share in the aforesaid properties during the life time of defendant No.1. He also submits that there is a recital in Ex.D.7 that defendant No.1 had paid the consideration amount and those are his self acquired properties. He submits that defendant No.1 has supplied sugarcane to the factories, and the Sugarcane factories, in lieu of payment have executed a registered sale deed in favour of defendant No.1 regarding the aforesaid properties. Hence, the said properties are the self acquired properties of - 14 - NC: 2025:KHC:13593 RSA No. 2252 of 2016 defendant No.1. Therefore, on these grounds, he prays to allow the appeal. 18. Per contra, learned counsel for the plaintiff submits that admittedly, the plaintiff and defendants No.1 to 3 are the members of a Hindu joint family and the properties acquired under Ex.D.7 by defendant No.1 are out of joint family nucleus. Properties acquired under Ex.D.7 are the joint family properties of the plaintiff and defendants No.1 to 3. The plaintiff is entitled to a share in the properties mentioned in Ex.D.7. He also submits that the First Appellate Court was justified in granting a share to the plaintiff in properties mentioned in Ex.D.7, as the said properties were acquired out of the joint family nucleus. He further submits that the plaintiff has pleaded in the plaint that the suit schedule properties were acquired out of the joint family nucleus. Hence, on these grounds he prays to dismiss the appeal. - 15 - NC: 2025:KHC:13593 RSA No. 2252 of 2016 19. This Court admitted the appeal on 18.12.2019 to consider the following substantial questions of law: (a) Whether the appellate Court is justified in granting shares to the respondent/plaintiff in the immovable properties transferred in favour of the appellant No.3 by her parents despite the respondent/plaintiff having failed to discharge the burden of establishing joint family nucleus and utilization thereof for the purchase of the aforesaid properties, and (b) Whether the appellate Court’s finding as regards the respondent/plaintiff’s rights in such properties would be justified in the light of the admission by the respondent/plaintiff that the father was engaged in business with independent source of income. Re-Substantial Question of Law No.1 and 2. 20. The substantial question of law Nos.1 and 2 are interlinked and hence, are taken up together for common discussion. - 16 - NC: 2025:KHC:13593 RSA No. 2252 of 2016 21. The plaintiff, to substantiate his case, examined himself as PW-1, and he has reiterated the plaint averments in the examination-in-chief, and further, to prove that the suit schedule properties are the ancestral and joint family properties of the plaintiff and defendants No.1 to 3, he has produced documents, Ex.P.1 is the Genealogical Tree which discloses that the original propositus had two wives. Ex.P.2 is the RTC extract of the land bearing Sy.No.408/P1, stands in the name of G. B. Mamatha, defendant No.3. Ex.P.3 is the RTC extract of land bearing Sy.No.409/A, stands in the name of defendant No.3. Ex.P.4 is the RTC extract of land in Sy.No.410, stands in the name of defendant No.3. Ex.P5 is the assessment extract of item No.4 of the suit schedule properties which discloses that the said property stands in the name of G.B.Mamatha. - 17 - NC: 2025:KHC:13593 RSA No. 2252 of 2016 Ex.P6 is the assessment register extract of the property bearing no.668, stands in the name of Defendant No.1(a). Ex.P7 is the Patta book Ex.P8 to Ex.P10 are the record of rights. Ex.P11 is the fruits land detail and boundary documents Ex.P12 to Ex.P16 are the index of lands Ex.P17 to Ex.P21 are the RTC extracts. Ex.P22 to Ex.P24 are the certified copies of the sale deeds. Ex.P25 is the Andolana daily newspaper Ex.P25(a) is the relevant portion of the article. Ex.P26 is the mutation register Ex.P27 is the death ceremony card of defendant No.1. - 18 - NC: 2025:KHC:13593 RSA No. 2252 of 2016 Ex.P28 is the copy of the Vijaya Karnataka Daily News paper Ex.P29 and Ex.P30 are the photographs Ex.P31 and Ex.P33 are the Encumbrance certificate Ex.P32 and Ex.P34 are the certified copies of the registered sale deed. 22. During the cross examination, It is suggested to PW1 that the properties purchased under Ex.D7 is the self acquired property of defendant No.1. The said suggestion was denied by PW1. PW1 has deposed that the properties purchased under Ex.D7 is out of the joint family nucleus. 23. On the other hand, the defendants No.1(a) was examined as DW.1. She reiterated the written statement averments in the examination in chief and the defendants produced the documents and she has deposed that the settlement deed was executed on 14.03.2006 by defendant No.1 in favour of defendant No.3 regarding items No.1 to 3 of the suit schedule properties and the - 19 - NC: 2025:KHC:13593 RSA No. 2252 of 2016 said settlement deed is marked as Ex.D8 and Ex.D9 is the registered gift deed dated 16.05.2009, executed by defendant No.1 in favour of defendant No.3 regarding survey No.404/P2. Ex.D10 is the certified copy of the registered gift deed dated 16.02.2006 executed by defendant No.1(a) i.e, Savithramma in favour of defendant No.3 with respect of item No.4 of the suit schedule properties. 24. During the cross examination, it was suggested to DW1 that the properties purchased under Ex.D7 is out of the joint family nucleus, the said suggestion was denied by DW1. Defendant No.2 was examined herself as DW2. She has reiterated the written statement averments in the examination-in-chief. The defendants also examined one K.S.Raju as DW3 who has deposed about the status and income of defendant No.1 and about the transfer of properties to the name of defendant No.3 by defendant No.1. - 20 - NC: 2025:KHC:13593 RSA No. 2252 of 2016 25. From the entire perusal of the records, the dispute between the plaintiff and the defendants is regarding the properties acquired under Ex.D7. In sofar as other properties are concerned there is no dispute. It is the case of the plaintiff that the properties purchased under Ex.D7 are out of the joint family nucleus. From the perusal of the records except pleading that defendant No.1 has acquired the said properties out of the joint family nucleus, the plaintiff has not produced any records to establish what was the income the family was getting and how much amount was saved after spending the amount for family. Further, in a suit for partition and separate possession, the initial burden is always on the plaintiff to establish that the family was possessing an ancestral and joint family properties and nucleus . 26. Once, if the plaintiff establishes that some of the properties are the ancestral and joint family properties of the plaintiff and there was a nucleus for purchasing other items of the suit schedule properties, the burden - 21 - NC: 2025:KHC:13593 RSA No. 2252 of 2016 shifts on the defendant to establish that the property purchased by the defendant is the self acquired property of the defendant. Admittedly, in the instant case, the plaintiff has produced the records to establish that some of the properties are the ancestral properties of the plaintiff and defendant No.1. No records are produced to establish that the family was getting yield from the said properties. 27. However, as observed above, the plaintiff has not produced any records to show that the properties purchased under Ex.D7 are acquired out of the joint family nucleus and further the plaintiff has also not examined the vendor of Ex.D7 to show that the sale consideration amount was paid out of the joint family nucleus. It is well established law that the mere marking of the documents does not dispense its proof. 28. The plaintiff has not specifically pleaded in the plaint regarding how much the income was derived out of the ancestral family properties. In rebuttal, the defendants have produced Ex.D7 which discloses that sugar factory - 22 - NC: 2025:KHC:13593 RSA No. 2252 of 2016 executed the registered sale deed as Ex.D7 in lieu of payment, towards the sale of sugar case, by defendant No.1. It is not the case of the plaintiff that defendant No.1 was growing the sugarcane in the ancestral properties and out the income of the sugarcane, properties were purchased under Ex.D7. It is settled law that, burden is upon the plaintiff to prove that the joint family had a nucleus, which was surplus and from out of such surplus income, it could be presumed that the properties would have been purchased. For this proposition, I would like to place the reliance on the judgment of the Hon’ble Apex Court in case of Rukhmabai V/s Lala Lakshminarayan and others reported in AIR 1960 SC 335 wherein it is held that, "There is no presumption that any property, whether movable or immovable, held by a member of, a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property. to establish that fact. But if he proves that there was sufficient joint family nucleus from - 23 - NC: 2025:KHC:13593 RSA No. 2252 of 2016 and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint family property." 29. Hon’ble Apex Court in another judgment in case of Achuthan Nair V/s Chinnamu amma and others reported in AIR 1966 SC 411 held that; "Under Hindu law, when a property stands in the name of a member of a joint family, it is incumbent upon those asserting that it is a joint family property to establish it. When it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition, the law raises a presumption that it is a joint family property and the onus is shifted to the individual member to establish that the property was acquired by him without the aid of the said nucleus." 30. The Hon’ble Apex Court in another judgment in case of Mudi gowda Gowdappa Sankh V/s Ram - 24 - NC: 2025:KHC:13593 RSA No. 2252 of 2016 Chandra Ravagowda Sankh reported in AIR 1969 SC 1076 held that; "There is no presumption that a Hindu family merely because it is joint, possesses any joint property. The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as coparcenary property. But if the possession of a nucleus of the joint family property is either 'admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is however, subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired." 31. The Hon’ble Apex Court in the case of Baikuntha Nath Paramanik (dead) by his LRs. and heirs V/s Shashi bhusan Paramanik (dead) by his LRs. and others reported in (1973) 2 SCC 334, similar view had been expressed by the Hon’ble Apex Court and it is held that; - 25 - NC: 2025:KHC:13593 RSA No. 2252 of 2016 "When a joint family is found to be in a possession of nucleus sufficient to make the impugned acquisition then a presumption arises that the acquisitions standing in the name of the persons who were in the management of the family properties are family acquisitions". 32. From aforesaid judgments of the Hon'ble Apex Court, it can be pulled out that to raise a presumption that the property standing in the name of a member of Hindu Joint Family could have been purchased out of joint family nucleus, two essential conditions are to be satisfied. In other words, it is the burden of one who assert that it is the joint family property, to prove that first of all there was a joint family nucleus and secondly, the joint family nucleus had a surplus income, out of which one can reasonably presume that the property in question could have been purchased. Admittedly, in the instant case, the plaintiff has failed to establish that the properties purchased under Ex.D7 is the joint family properties and further there was a joint family nucleus and the joint family nucleus had a surplus funds for purchasing said - 26 - NC: 2025:KHC:13593 RSA No. 2252 of 2016 properties. The First Appellate Court, without considering the said aspect, has proceeded to grant a share in the properties acquired under Ex.D7. The plaintiff, except oral testimony, has not examined any other witnesses to establish that the family was possessing the sufficient nucleus for purchasing the properties and the plaintiff has failed to prove that defendant No.1 had purchased the properties under Ex.D7 out of joint family nucleus. The plaintiff has not discharged the burden cast upon him. 33. In view of the above discussions, I answer substantial question Nos.1 and 2 in the negative. Accordingly, I proceed to pass the following order. ORDER i) The Appeal is allowed. ii) The judgment and decree passed by the first appellate Court in R.A.No.45/2014 dated 19.08.2016 passed by the learned Principal Senior Civil Judge, Mandya and the judgment and preliminary decree dated - 27 - NC: 2025:KHC:13593 RSA No. 2252 of 2016 03.04.2014 passed in O.S.No.6/2007 by the Additional Civil Judge and JMFC, Mandya are set aside only to an extent of items No.1 to 3, 3A, 3A-1, 3(B), 3(C) and (G) of the suit schedule properties. iii) Suit of the plaintiff is dismissed insofar as item Nos.1 to 3, 3A, 3A-1, 3(B), 3(C) and (G) of the Suit schedule properties. iv) The rest of the judgment passed by the First Appellate Court is maintained. Sd/- (ASHOK S.KINAGI) JUDGE BVK,RCK List No.: 1 Sl No.: 9