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2014 DIGILAW 279 (KAR)

Vasantha P. Suvarna v. Vasanthi Suvarana

2014-03-01

RAM MOHAN REDDY

body2014
JUDGMENT 1. This is plaintiff’s second appeal calling in question concurrent findings of fact of the trial Court and that of the lower Appellate Court to dismiss the suit. 2. Plaintiff instituted O.S. 61 of 2005 on the file of the Prl. Civil Judge (Sr. Dn), Udupi on 1.6.2005 for declaration, partition and separate possession of the RSA 995/09 suit schedule ‘A’ and ‘B’ properties, being agricultural lands with tiled house, fruit bearing trees and a well, arraigning respondents as defendants. According to the plaintiff, his mother by name Ummakka and his father by name Pijina Poojary had two sons, the plaintiff and the husband of first defendant, since deceased. The suit schedule ‘A’ property is said to have been purchased in the name of the mother who was in actual possession and enjoyment, while the plaintiff being her younger son looked after her and being in possession and enjoyment made improvements over the said property. The mother is said to have died on 11.07.1990, intestate, leaving behind the two siblings, while the deceased brother had left to Mumbai during his younger days. Plaintiff being younger of the siblings stayed back and tended to the immovable property. It is alleged that the defendants being none other than the widow and children of the deceased borther Leeladhar P. Suvarna came to plaintiff’s residence during second week of November 2004 and asked him to vacate the premises and on enquiry it revealed that plaintiff’s brother had his name recorded in the RTC pahanis in respect of ‘A’ schedule properties on the basis of the a registered settlement deed dated 13.01.1969 executed by the mother. On the said information, plaintiff got issued a lawyer’s notice to his brother on 01.12.2004 which was responded to by a reply denying the assertions. Thereafter wards, it is claimed that the plaintiff’s brother sold a portion of ‘A’ schedule property to 5th defendant on 26.06.2002 alleging that the gift/settlement deed executed by the mother in favour of plaintiff’s mother was illegal, fabricated and not binding on the plaintiff, as he was entitled to one half share, instituted the suit. 3. The suit was not resisted by filing written statement of the defendants, who despite service of summons, remained absent and placed ex-parte. 4. Plaintiff was examined as P.W.1 and marked Exs.P.1 to P.22. 3. The suit was not resisted by filing written statement of the defendants, who despite service of summons, remained absent and placed ex-parte. 4. Plaintiff was examined as P.W.1 and marked Exs.P.1 to P.22. The trial court framed points for RSA 995/09 consideration and having regard to the material on record, more appropriately the fact that there was neither pleadings nor proof of purchase of ‘A’ schedule property in the name of Ummakka out of joint family income, nor a challenge to the settlement deed dated 13.01.1969 executed by his mother in favour of his brother nor material to establish the allegations of fabrication and forgery of documents, declined to accept the contentions of the plaintiff. In addition the contention that the continuation of the name of the plaintiff’s mother in the revenue records till the year 2001 hence the settlement deed dated 13.01.1969, was not binding on the plaintiff, was not accepted to return findings in the negative over the points for consideration. The suit was accordingly dismissed by judgment and decree dated 19.04.2008. 5. R.A. No. 32 of 2008 filed by the plaintiff before the District Judge, Udupi was dismissed by judgment and decree dated 20.03.2009 on a re-appreciation of the material on record to concur with the reasons, findings and conclusion arrived at by the trial court. 6. Having heard the learned counsel for appellant, the submission, that, since defendants were placed ex-parte, the plaint averments having remained unchallenged, the plaintiff was not required to prove that the suit schedule property was the joint family property. This submission in the fact, circumstance and evidence on record, cannot be countenanced. 7. The principles of law relating to Hindu joint family and joint family property may be summarized thus: (i) The legal position is that the joint and undivided family is the normal condition of Hindu Society. An undivided family is not only joint in estate but also in food and worship. The existence of joint estate is not essential requisite to constitute a joint family and a family which does not own any property may nevertheless be joint. The presumption of union is the greatest, in the care of father and sons. The strength of presumption necessarily varies in every case. But the presumption is strong in the case of brothers. The existence of joint estate is not essential requisite to constitute a joint family and a family which does not own any property may nevertheless be joint. The presumption of union is the greatest, in the care of father and sons. The strength of presumption necessarily varies in every case. But the presumption is strong in the case of brothers. (ii) It is settled law that the proof of existence of a joint family does not lead to the presumption that it possess joint property. The property held by a member of a joint family cannot also be presumed to be the joint family property. In a suit for partition, a party who claims that any item of suit property is joint family property, the burden of proving that it is so, rests on the party who asserts it. However, in a case where it is established that the joint family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property claimed to be joint family property may have been acquired, the presumption arises that it was joint family property and the burden shifts to the party alleging self acquisition to establish affirmatively that the property was acquired without the aid of joint family. It is also well settled that when at the date of acquisition of a particular property, the joint family had sufficient nucleus for acquiring it, the property in the name of any member of the joint family should be presumed to be acquired from out of the family funds and was to form part of the joint family property unless the contrary is shown. (iii) Where there was no partition in the family, the fact that any one of the members of the family enjoyed these properties would not be construed as adverse to other members of the family there being no overt act of ousting the other members and enjoyment of the properties to the exclusion of the other family members.” (Emphasis supplied) 8. In the light of the well settled principles of law in the matter of joint Hindu family, the submission of the learned counsel being without merit is rejected. 9. In the circumstances, no substantial question of law arises for decision making. Appeal devoid of merit is dismissed.