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2014 DIGILAW 814 (KAR)

Mallanna v. Lakshmamma

2014-09-15

A.S.PACHHAPURE

body2014
JUDGMENT A.S. Pachhapure, J. 1. The appellant has challenged the judgment and decree for partition granted by the Trial Court and affirmed by the First Appellate Court. The facts relevant for the purpose of this appeal are as under: "The appellant and respondents 2 and 3 are the legal representatives of deceased Mallanna and the first respondent initially instituted the suit for declaration and injunction, later for the relief of partition of the suit properties which are item Nos. 1 to 5. The matter has come before this Court in the second round of litigation, wherein the suit instituted by the first respondent for the relief of declaration and injunction in respect of item Nos. 1 to 4 was dismissed and later in the appeal it was affirmed and in the second appeal, this Court had permitted the first defendant to seek the relief of partition and in the circumstances, item No. 5 was added as a suit property. The first respondent pleaded for her share in the suit property which was denied by the defendants on the ground that there was a sale in the year 1950 and that the suit properties were acquired by Mallanna, the defendant and they are his self acquired properties. The Trial Court framed the issues and permitted the parties to produce their evidence. Accordingly, plaintiff examined as PWs. 1 and 4 witnesses as PWs. 2 to 5 and in their evidence, Exs. P1 to P 24 were marked. On behalf of the defendants, D.Ws. 1 to 7 were examined and Exs. D1 to D 49 were marked in their evidence. The Trial Court decreed the suit for partition granting half share in the suit schedule properties. Aggrieved by the judgment and decree, the appellant approached the First Appellate Court in RA No. 11/2011. The decree of partition was affirmed by the First Appellate Court. Aggrieved by the concurrent findings of the Courts below, the present appeal is filed." 2. Heard the learned counsel for appellant Sri. Padmanabha V Mahale, Senior Counsel. 3. Aggrieved by the judgment and decree, the appellant approached the First Appellate Court in RA No. 11/2011. The decree of partition was affirmed by the First Appellate Court. Aggrieved by the concurrent findings of the Courts below, the present appeal is filed." 2. Heard the learned counsel for appellant Sri. Padmanabha V Mahale, Senior Counsel. 3. It is the contention of learned counsel for the appellant that the first respondent had pleaded that there was a partition in the year 1980 and as the suit properties were purchased by the defendant Mallanna, the father of appellant herein in the year 1950, he contends that the Courts below over looked the material placed on record and granted a share in the suit properties. He submits that when the first respondent took up a defence that there was a partition earlier, she cannot now put forth the plea that they are the joint family properties. On these grounds, he has sought for admission of this appeal on the aforesaid contentions. 4. As could be seen from the written statement that has been filed and the plea taken by the appellant in the Trial Court, the suit item No. 1 was purchased under the registered sale deed dated 24.11.1950. Item Nos. 2 to 4 were purchased under the registered sale deed dated 10.11.1952. Item No. 5 was also purchased under the registered sale deed dated 08.12.1958. The defendant had taken up a contention that there was no partition in the year 1980 and this partition was not proved as held by the Courts below. 5. The Trial Court has relied upon the admissions of D.Ws.5 and 7, wherein there is a clear admission of the aforesaid witnesses that Mallanna was the Manager of joint family and family members had only the avocation of agriculture and properties have been acquired from the income of joint family. 6. It is relevant to note that all the aforesaid properties were purchased by Mallanna in his name as he was the Manager of joint family. Though specific plea has been raised that they are self acquired properties, there is no evidence placed on record by the defendants to prove that there was separate income other than the joint family income. It is relevant to note that all the aforesaid properties were purchased by Mallanna in his name as he was the Manager of joint family. Though specific plea has been raised that they are self acquired properties, there is no evidence placed on record by the defendants to prove that there was separate income other than the joint family income. In the absence of any such evidence to support the income of a person to purchase those properties, law raises a presumption that all the properties are the joint family properties. It is in the aforesaid facts and circumstances that the Courts below have held that item Nos. 1 to 5 which were purchased much prior to 1958 when there was no partition and when there was no separate income of Mallanna to acquire these properties in his name, the suit properties are the joint family properties. The first respondent is the member of one branch, whereas the appellant and other respondents are the members of other branch. The Trial Court and the First Appellate Court have granted half share in the suit properties. In the aforesaid circumstances and on consideration of the submissions made by the learned Counsel for appellant and other material placed on record, I do not find any substantial question of law for consideration in this appeal. Consequently, the appeal fails and it is accordingly dismissed. I.A. 2/2013 for stay does not survive for consideration and hence, it is disposed of.