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2020 DIGILAW 1455 (KAR)

R. Ganesh Prasad v. G. Raviprasad Major

2020-07-22

ARAVIND KUMAR, E.S.INDIRESH

body2020
JUDGMENT E.S.Indiresh, J. - Defendants 1 to 5 being aggrieved by judgment and decree dated 06.01.2011 passed by the III Additional Civil Judge, Senior Division, Mysore in O.S.No.354/2000 have filed this appeal whereunder, plaintiffs suit for partition and separate possession in respect of the suit schedule property has been decreed. 2. For the sake of convenience, parties in this appeal shall be referred to in terms of their status before the trial Court. 3. The factual matrix of the plaint averments are that late H. Ramaprasad had three sons namely Sriyuths Gopal Prasad, Nagaraj R. Ganesh Prasad (defendant No.1) and one daughter Smt.Subhadra. Defendants No.1 and 2 have four children namely Sri Ravi Prasad (plaintiff No.1), Sri Rajesh (Defendant No.3), Smt. Rajeshwari (defendant No.4) and Sri Ramakrishna (defendant No.5). The genealogical tree of Late H.Ramaprasad is as under: 4. The plaint averments indicate that Late Sri H. Ramaprasad had acquired various immovable properties and on his demise, 'A' schedule property devolved on first defendant. It is further contended that properties described in Schedule 'B' was earned out of the income derived from schedule 'A' property; first defendant succeeded to schedule 'A' properties under Hindu partition and succession/survivorship right; defendant Nos. 3 and 5 are younger brothers of plaintiff No.1; first defendant is the proprietor of the business of retail Wine Merchants at Mysore run under the name and style of 'M/s. Ganesh Agencies' and same had been established by investing a sum of Rs.6,500/- which was given to him by his father Sri H. Ramaprasad in the year 1963. First defendant was also running another business as "M/s. Ganeshprasad Whole Sale Wine Merchant" at Mysore and this business was the business of the joint family of plaintiffs and defendants. During the year 1998, defendant No.1 had sold this business to one Sri. Potharaj for a sum of Rs.7,00,000/- and entire sale consideration is also the income of joint family and accountable to the plaintiff's share. Defendant No.3 is also dealing with wine business. Defendant No.5 is a doctor by profession running a clinic at Mysore in the property which is included in the 'B' schedule property of the plaint. Defendants 3 to 5 are all married and defendant No.4 is the daughter of defendants 1 and 2 and they are looking after the families of defendants 3 to 5. Defendant No.5 is a doctor by profession running a clinic at Mysore in the property which is included in the 'B' schedule property of the plaint. Defendants 3 to 5 are all married and defendant No.4 is the daughter of defendants 1 and 2 and they are looking after the families of defendants 3 to 5. The plaint averments further states that fourth defendant's marriage was before 30th July, 1994 and as such, she is not entitled for any share in the joint family of the plaintiffs and second defendant is the wife of first defendant and as such second defendant is also not entitled for any share in the plaint schedule properties. 5. The plaint averments further states that plaintiff No.1 is the patient suffering from various diseases, particularly epilepsy and as such, incurred huge amount for medical purpose. The plaintiffs further state that defendants No.1 and 2 being the parents of the plaintiff No.1 have not taken care of plaintiff No.1 and they have also not settled the life of plaintiff No.1 in a proper manner as they have settled defendants 3 to 5. The grievance of plaintiff No.1 is that defendants 1 and 2 have not discharged their moral and legal liability towards health and prosperity of plaintiff No.1 and as such, they had discriminated the children. It is further stated in the plaint that defendants have also constructed a choultry in 'A' schedule property and defendants No.1 and 2 have assured the plaintiff No.1 that income derived from 'A' schedule property would be given to them, as the plaintiff No.1 is not having any avocation for maintenance of his family and as such, plaintiff No.1 had requested the defendants 1 and 2 to allot 'A' schedule property for which defendants No.1 and 2 have denied the legitimate share of plaintiff No.1. Defendants No.1 and 2 have refused the share of joint family properties to plaintiff No.1. It is further stated in the plaint that plaintiff No.1 being grand son of Late H. Ramaprasad and as such, properties mentioned in the schedule are ancestral properties and plaintiff No.1 is having a legitimate share over these properties. Plaintiffs have further contended that plaintiff No.1 is residing separately and defendants have conveniently taken LIC Policy standing in the name of plaintiff No.1 by forging plaintiff's signature in the year 1992. Plaintiffs have further contended that plaintiff No.1 is residing separately and defendants have conveniently taken LIC Policy standing in the name of plaintiff No.1 by forging plaintiff's signature in the year 1992. The plaintiff No.1 has complained that first defendant has misused the LIC Policy of plaintiff No.1 of which the sum-assured Rs.1,00,000/- and had availed loan of Rs.66,890/- in the plaintiff's name during March to April 2002 by forging the signature of first plaintiff. In that view of the matter, defendant No.1 has colluded with other defendants in denying the legitimate share of plaintiff No.1 in respect of suit schedule properties, and accordingly, plaintiffs have filed suit for partition and separate possession in O.S.No.354/2000. 6. On service of suit summons, defendant No.1 has appeared and filed his written statement denying plaint averments. However, admitted the relationship between plaintiffs and defendants. Defendant No.1 states that first item of plaint 'A' schedule property is his absolute property and second item of plaint 'B' schedule property is the absolute property of his wife - second defendant. These two items are not joint family property of plaintiffs and defendants. Defendant No.1 further states that business in M/s. Ganesh Agencies i.e., item No.1 of Schedule 'B' property is a partnership firm and therefore, said business has nothing to do with joint family and as such the defendant No.1 stated that plaintiffs can have no claim insofar as seeking share in the said property. Defendant No.1 further submitted that property bearing 4638 situated at Shivajinagar Main Road, N.R. Mohalla measuring 70 x 100 feet having a small dilapidated building i.e., item No.2 of 'A' schedule property came to his share in the partition amongst his brothers as joint Hindu family property and this was the only property in existence as joint family property. Defendant No.1 further states that by taking consent of joint family and to do service to the public, he has constructed a community hall (choultry) by raising huge loan including loan from KSFC and said loan has been repaid not only from the income derived from the community hall but also from personal income of the defendants and therefore, first defendant contended that question of claiming share in the income derived from said Community Hall by the plaintiffs, is without any basis and same is not the joint family property of plaintiffs and defendants. The defendant No.1 further states that plaintiff is entitled to 1/18th share in the value of the site only and it is not divisible. Plaintiff No.1 who has relinquished his share by receiving consideration from this defendant and therefore, defendant No.1 states that plaintiffs have filed the suit on the illadvice of close relatives with malafide intention, and accordingly, sought for dismissal of the suit. 7. Defendant No.1 has filed additional written statement contending that plaintiffs are not entitled for share in the properties mentioned in the schedule. Plaintiffs 2 and 3 have filed rejoinder to the additional statement contending that plaintiff No.3 is the wife of defendant No.5 and plaintiff No.2 is the daughter of defendant No.5 and plaintiff No.3. Plaintiffs 2 and 3 have stated that pursuant to the judgment and decree passed in M.C.No.183/2001 on the file of Family Court, Mysore dated 04.03.2008, the marriage between 3rd plaintiff and 5th defendant came to be dissolved and Family Court, Mysore has directed the fifth defendant to pay maintenance of Rs.4.000/- to the third plaintiff. It is further stated that second plaintiff is under care and custody of third plaintiff and they are residing together after being separated from defendant No.5. It is the case of plaintiffs- 2 and 3 that suit schedule properties are ancestral and joint family properties and as such second plaintiff being the daughter of fifth defendant has got undivided right, title and interest in the suit schedule properties and therefore, plaintiffs 2 and 3 are also entitled for share in the suit schedule property. 8. On the basis of pleadings of the parties, trial Court framed following issues including additional issue for its consideration: (1) Whether defendant No.1 proves that the plaint 'A' Schedule property is his absolute property and plaint 'B' Schedule property is the absolute property of the second defendant? (2) Whether the plaintiff has got share in the plaint schedule property? (3) Whether the plaintiff proves the existence of moveable property described in the schedule of the plaint? (4) Whether the plaintiff is entitled for any enquiry as prayed? (5) Whether the plaintiff is entitled for a decree for partition and separate possession? (6) To what order decree? Additional Issue: Whether the second plaintiff proves that she being the daughter of the fifth defendant is also entitled for definite share in the suit schedule properties? 9. (4) Whether the plaintiff is entitled for any enquiry as prayed? (5) Whether the plaintiff is entitled for a decree for partition and separate possession? (6) To what order decree? Additional Issue: Whether the second plaintiff proves that she being the daughter of the fifth defendant is also entitled for definite share in the suit schedule properties? 9. In order to establish their case, plaintiffs got examined plaintiffs No.1 and 2 as PW1 and PW2 respectively and got marked exhibits P1 to P36. The defendants -1 and 2 got themselves examined as DW1 and DW2 and got marked Exhibits D1 to D14 before trial Court. 10. Trial Court after appreciation of documentary and oral evidence, has decreed the suit in part holding that first plaintiff is entitled to 1/5th share in item Nos.1 and 2 of both 'A' and 'B' schedule properties and second plaintiff is entitled to 1/8th share in item Nos.1 and 2 of both 'A' and 'B' schedule properties and they should be put in possession of their respective shares by metes and bounds. Hence, this appeal by defendants-1 to 5. 11. We have heard Sri Prakash, learned Advocate appearing for the appellants and Shri Amshith Hegde, learned Advocate appearing for respondents No.1 to 3. 12. Sri Prakash, learned Advocate appearing for appellants would submit that plaintiffs have failed to prove the existence of joint family nucleus for acquisition of suit schedule 'B' property and item No.2 of schedule 'A' property; he would contend that plaintiffs have claimed these properties as joint family properties despite the fact that these properties stands in the name of the first defendant herein and they are not the properties of the father of defendant No.1- Sri H Ramaprasad; therefore, finding recorded by the trial Court with regard to issue No.1 requires to be set aside by this Court. He further submits that since plaintiffs have claimed the suit schedule property as joint family property or ancestral property, duty is cast on the plaintiffs to prove that suit schedule properties are the joint family properties or ancestral properties and in this regard trial Court has not framed any issue. He further submits that since plaintiffs have claimed the suit schedule property as joint family property or ancestral property, duty is cast on the plaintiffs to prove that suit schedule properties are the joint family properties or ancestral properties and in this regard trial Court has not framed any issue. He would submit that it is also the case of the defendants that plaintiffs have not produced any acceptable evidence to show that there is sufficient joint family nucleus or income generated out of ancestral or joint family property for acquisition of suit schedule 'B' property either in the name of the first defendant or in the name of the second defendant and therefore the finding recorded by the Trial Court that suit schedule 'B' property stands in the name of the defendants are joint family properties is contrary to records, which require to be interfered by this Court. Further, he has brought to the notice of the Court that on the basis of averments made in the written statement filed by the defendant No.1, whereunder it has been contended that plaintiff was not participating in the business and as such there was no joint family business in which first plaintiff had any share at the time of acquisition of the property by defendants No.1 and 2; learned counsel for the appellant further submits that there was no contribution made by the plaintiff No.1 either for generating income for the family or any contribution for the purpose of acquiring property from the income derived from the joint family property and in that view of the matter, learned trial Judge has not considered the entire case materials in its right perspective. Hence, judgment and decree passed by the trial Court requires to be set aside by this Court. Hence, judgment and decree passed by the trial Court requires to be set aside by this Court. The learned Advocate appearing for the appellant further submits that learned trial judge failed to notice the fact that under the partition deed between first defendant and his father-H Ramaprasad, the defendant No.1 got only one property with old structure which was not generating any income and as such there was no joint family nucleus or income to acquire other properties out of the same and thereby the property which were purchased by the first defendant and defendant No.2 are from his or her own income and also by raising loan from various persons including Karnataka State Financial Corporation and they have not utilized the income of the joint family for purchase of said properties and as such, the properties in question, particularly schedule 'B' property is to be held as self-acquired properties of defendants No.1 and 2. He would further submit that trial Court ought to have taken judicial notice of the fact that plaintiff No.1 himself has stated in the plaint and deposed in his evidence that he was suffering from ailments and was not in a position to contribute for generating income for running the business, and as such, trial Court ought to have held that suit schedule property are self-acquired properties of the defendants. In order to establish the fact that suit schedule properties are the self-acquired property, the defendants have produced records like audited balancesheets relating to their income, payment of taxes and these records have not been properly appreciated by the trial Court and therefore learned trial Judge failed to consider that there is no bona fide on the part of the plaintiffs to sue the defendants and seek partition in respect of suit schedule properties. Therefore, he prays for allowing the appeal by dismissing the suit. 13. He further submits that item No1. of Schedule 'A' property was bequeathed to the defendant No.1 under the Will by his father-H Ramaprasad and as such, the said property is not joint family property and it is the selfacquired property of the first defendant. Therefore, he prays for allowing the appeal by dismissing the suit. 13. He further submits that item No1. of Schedule 'A' property was bequeathed to the defendant No.1 under the Will by his father-H Ramaprasad and as such, the said property is not joint family property and it is the selfacquired property of the first defendant. He has further contended that learned Trial Judge failed to take note of the fact that business of M/s. Ganeshprasad Wines was carried on by first defendant himself and said business is a separate business of defendant No.1 and not joint family business, and conclusion arrived at by the trial Judge with regard to the same has caused miscarriage of justice and therefore the impugned judgment and decree passed by the Trial Court requires to be set aside by this Court. Having made the aforesaid submissions, the learned Advocate for the appellant places reliance on the following judgments: 1. D.S. LAKSHMAIAH AND ANOTHER v. L. BALASUBRAMANYAM AND ANOTHER, (2003) AIR SC 3800; 2. MAKHAN SINGH (SINCE DEAD) BY LRS v. KULWANT SINGH, (2007) AIR SC 1808; and 3. T.S. SUBBARAJU v. T.A. SHIVARAMA SHETTY AND OTHERS, (2004) AIR Karnataka 479 . 14. Per contra, Shri Amshith Hegde, the learned Advocate appearing for the respondents submits that item No.2 of 'A' schedule property was purchased by late H.Ramaprasad-father of D.W.1 in the year 1958 for a sale consideration of Rs.60,000/- and said property has been allotted to the share of defendant No.1 in the family partition and defendant No.1 has admitted the same in his evidence and as such, item No.2 of 'A' schedule property is the ancestral property of plaintiffs. Learned Advocate for the respondent further submits that appellant No.1 has also admitted in his evidence that as said property was acquired by him under partition deed dated 17th December 1996 and therefore item No.2 of 'A' Schedule property is ancestral property of plaintiffs. He would further submit that contentions raised by the appellants that defendant No.1 had constructed a Community Hall in item No.2 of 'A' schedule property by availing loan from Karnataka State Financial Corporation by selling two sites, is not correct. He would further submit that contentions raised by the appellants that defendant No.1 had constructed a Community Hall in item No.2 of 'A' schedule property by availing loan from Karnataka State Financial Corporation by selling two sites, is not correct. In fact defendant No.1 had constructed the community hall by selling two sites which are located in Jayalakshmipuram near Premiere Studio and another at Banni Mantap, which has been purchased from out of the profits received from wine shop business and therefore, learned Advocate for the respondents submits that contentions raised by the appellants in this regard is devoid of merits. He further submits that plaintiff No.1 and defendants No.1, 3 and 5 were jointly owning the licence of wholesale wine shop and income-tax also was being paid in the names of all the defendants and plaintiffs and same was admitted by defendant No.1 in his crossexamination and as such item No.1 of schedule 'B' property is also not self-acquired property of defendant No.1 and said wine business is a joint family business of the plaintiffs and defendants herein and therefore the finding recorded by the Trial Court with regard to the same does not call for any interference by this Court. He further submits that though item No.2 of 'B' schedule property was purchased in the name of defendant No.2 in the year 1979, defendants have failed to produce any document to the said effect and they have also failed to prove defendant No.2 was having any separate income out of her own. In fact, defendant No.2 has admitted in the evidence that she was completely depending on the income of her husbanddefendant No.1 and a such, item No.2 of 'B' schedule property is admittedly a joint family property as defendant No.2 did not posses any alternative source of income to acquire the same on her own. Hence, learned Advocate appearing for respondents would submit that plaintiffs are entitled for share in item No.2 of 'B' schedule property. He further submits that though defendant No.1 has claimed that item No.1 of 'A' schedule property was transferred to his name as per the Will dated 5th October, 1971. Hence, learned Advocate appearing for respondents would submit that plaintiffs are entitled for share in item No.2 of 'B' schedule property. He further submits that though defendant No.1 has claimed that item No.1 of 'A' schedule property was transferred to his name as per the Will dated 5th October, 1971. He submits that defendants have admitted in their pleadings and in the written statement that they did not have any dispute over item No.1 of 'A' schedule property to be considered as a joint family property and therefore he submits that plaintiffs herein are entitled to separate share in the schedule properties and in this regard he supports the finding recorded by the trial Court. 15. Having heard the learned Advocates appearing for the parties and on perusal of records secured from the trial Court, we are of the considered view that following points would arise for our consideration: (i) Whether the judgment and decree passed by the trial Court decreeing the suit in part by arriving at a conclusion that plaintiff No.1 and plaintiff No.2 are entitled to 1/5th and 1/8th share in item Nos.1 and 2 of both 'A' and 'B' schedule properties, is to be affirmed, modified or set aside? OR Whether trial Court was correct in arriving at a conclusion that item Nos.1 and 2 of both 'A' and 'B' schedule properties are the joint family properties? (ii) Whether trial Judge has appreciated the available evidence on record in proper perspective or there has been erroneous and improper appreciation of evidence for decreeing the suit in part? (iii) What order? Discussion and findings on point Nos.(i) and (ii) formulated herein above would overlap and as such, they are taken up together for our consideration. RE: Point Nos.(i) and (ii): 16. At the outset, it requires to be noticed that there is no dispute with regard to relationship between the parties. First defendant is the father and second defendant is wife of first defendant. Defendant Nos.3, 5 and first plaintiff are the sons of defendant Nos.1 and 2. Defendant No.4 is the daughter of defendant Nos.1 and 2. Whereas, plaintiff No.3 is the wife of defendant No.5 and daughterin- law of defendant Nos.1 and 2. Plaintiff No.2 is the daughter of third plaintiff and fifth defendant. Plaintiffs have asserted that suit schedule properties are joint family properties and they have a share in the said properties. Defendant No.4 is the daughter of defendant Nos.1 and 2. Whereas, plaintiff No.3 is the wife of defendant No.5 and daughterin- law of defendant Nos.1 and 2. Plaintiff No.2 is the daughter of third plaintiff and fifth defendant. Plaintiffs have asserted that suit schedule properties are joint family properties and they have a share in the said properties. Demand for partition and separate possession made by them to first defendant was denied and as such, they sought for partition of the suit schedule properties and separate possession. 17. In the background of the pleadings, learned trial Judge as noticed herein above, has framed issues and in the light of specific assertion by the first defendant that item No.1 of 'A' schedule property and item No.2 of 'B' schedule property is the self acquired property of defendant Nos.1 and 2, burden was rightly cast on the respective defendants to prove the same. 18. It has been the assertion of defendant No.1 through out, that he acquired title to item No.1 of suit schedule property under a registered Will dated 5th October, 1971 marked as Ex.D-1 which was said to have been executed by his father (late Sri H Ramaprasad). Since defendant No.1 propounded the Will - Ex.D-1 to set up claim with regard to Item No.1 of 'A' schedule property, onus was upon him to prove the contents of Ex.D-1. 19. Section 68 of the Evidence Act mandates that if a document is required by law to be attested, it would not be used as evidence until one attesting witness has been called for the purpose of proving its execution, if there being an attesting witness alive and capable of giving evidence. However, proviso to Section 68(1) would indicate that it shall not be necessary to call attesting witness in proof of execution of any document, other than a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908. One of the requirements of due execution of a Will is its attestation by two or more witnesses as per the mandate of Section 63 of the Indian Succession Act. Section 68 of the Evidence Act speaks as to how a document required by law to be attested can be proved. One of the requirements of due execution of a Will is its attestation by two or more witnesses as per the mandate of Section 63 of the Indian Succession Act. Section 68 of the Evidence Act speaks as to how a document required by law to be attested can be proved. It flows from Section 68 of Evidence Act that if there be an attesting witness alive and capable of giving evidence and subject to the process of the Court, he has to be necessarily examined before the document required by law to be attested can be used in an evidence. In the instant case, first defendant relied upon Ex.D-1 to claim right over item No.1 of 'A' schedule property and as such, the learned trial Judge has rightly cast the burden on first defendant. Perusal of first defendant's evidence would clearly indicate that he has not examined the attesting witnesses to Ex.D-1. No explanation whatsoever is forthcoming from first defendant as to why attesting witnesses to the Will - Ex.D-1 have not been examined. The compliance of Section 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act is mandatory before accepting the contents of the Will -Ex. D-1. In this context, the law declared by the Hon'ble Supreme Court in the case of H. VENKATACHALA IYENGAR v. B.N. THIMMAJAMMA AND OTHERS, (1959) AIR SC 443 can be noticed with benefit. The Hon'ble Supreme Court has laid down the guidelines for validating testamentary disposition. It has been held: "22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that it there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties." 20. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties." 20. In the light of the above authoritative pronouncement by the Hon'ble Apex Court, when facts on hand are examined, it would clearly indicate that first defendant relied upon the Will -Ex.D-1 purported to have been executed by his father bequeathing item No.1 of schedule 'A' property. In his cross examination dated 29.03.2020 D.W.1 has clearly admitted that his father had three sons and his father was a businessman and out of the business income, he had acquired several immovable properties. D.W.1 has also admitted that item No.1 of 'A' suit schedule property was acquired by his father from out of the business income. His admission reads to the following effect: D.W.1 has also admitted that under Ex.D-1 only item No.1 of schedule 'A' property has been bequeathed in his favour and he also admits other properties owned and possessed by his father has not been reflected in the Will - Ex.D-1. He further admits that in the first page of page No.1 and page No.3 the signature of the executant is not found. In fact, a suggestion was made in the cross examination of D.W.1 to the effect that certain interpolations are found in Ex.D-1, which of course has been denied by the witness. The admission and denial of D.W.1 with regard to Ex.D-1 reads: 21. The fact remains that plaintiffs have disputed the Will - Ex.D-1. As such, burden was cast on the first defendant to remove all such suspicions surrounding the Will - Ex.D-1 and burden was also on the first defendant to prove valid execution of the Will. Only after removal of such suspicion surrounding the Will, then, only the testamentary disposition can be accepted, as otherwise, not. It is in this background, learned trial Judge has rightly arrived at a conclusion that Ex.D1 is not free from suspicion and no effort was made by the first defendant to prove the said document. Hence, it came to be held by trial court that item No.1 of 'A' suit schedule property is a joint family property and it was not the absolute and exclusive property of first defendant. 22. Hence, it came to be held by trial court that item No.1 of 'A' suit schedule property is a joint family property and it was not the absolute and exclusive property of first defendant. 22. First defendant in his written statement at paragraph No.18 has admitted that 2nd item of plaint 'A' schedule property fell to his share in the partition amongst his brothers under the partition deed dated 17.12.1986- Ex.D-3. It is clearly admitted by first defendant that it is ancestral property and was the only property in existence as joint hindu family property. The admission of D.W.1 in the pleading namely, written statement reads as under: "18. The property bearing No. 4638 situated at Shivaji main Road, N.R. Mohalla, Mysore having a site measuring east to West: 70 feet and north to south: 100ft. having a small dilapilated building came to the share of the Ist defendant in the Partition among his brothers, as joint hindu family property. This was the only property in existence as joint hindu family property in existence as joint hindu property. By consent this xxx consideration from this defendant. Further it was the only joint family property of the Plaintiff and defendants and 2 children of the plaintiff. Without prejudice to xxx It is a lucurious suit." As noticed herein above, first defendant has clearly admitted in his written statement that item No.2 of 'A' schedule property is a joint family property. However, first defendant has contended that plaintiff was entitled for 1/8th share in the value of the site only and on account of said property not being divisible, plaintiff had relinquished his right by receiving consideration from the defendant. He further admits that it was the only joint family property of the plaintiff and defendants and two children of the plaintiffs. 23. It is not in dispute that in the said property i.e., item No.2 of 'A' schedule property, a Community Hall has been constructed known and called as "Meenakshi Ganesh Prasad Community Hall". When first defendant has admitted in his written statement that item No.2 of schedule 'A' property is the ancestral property and only joint family property, further scrutiny or examination would not arise. When first defendant has admitted in his written statement that item No.2 of schedule 'A' property is the ancestral property and only joint family property, further scrutiny or examination would not arise. However, first defendant has contended that said Community Hall was constructed from out of his personal funds and also by raising loan from financial institutions like Karnataka State Financial Corporation - KSFC and said loans have been repaid from his own earnings. At one breath, first defendant contends that plaintiff had given up his claim or right over the said property by receiving consideration and as rightly observed by the trial Court, D.W.1 has taken a U-turn contending in the second week of July, 1997 when plaintiff No.1 and his wife Smt.Ratna left the house of first defendant, they were given some amount and again he says that P.W.1 had approached him and sought for financial assistance and as such, D.W.1 had given a sum of Rs.1 lakh. Yet another version of D.W.1 is, prior to construction of Community hall, P.W.1 and his wife had received the value of the said property to the extent of their share and have relinquished their right, title and interest over the said property, for which no document has been produced. It is trite law that any right, title and interest in an immovable property, the value of which is Rs.100 and upwards, can only by a registered deed. There being no such documentary proof being placed by first defendant or for that matter, by any other defendants with regard to relinquishment of right, title and interest by P.W.1 over item No.2 of 'A' schedule property, the contention of D.W.1 about the said property having vested with D.W.1 absolutely was not rightly accepted by the trial Judge and we do not find any good ground to interfere with the well reasoned findings recorded by the trial court in that regard. 24. Item No1 of 'B' schedule property is a business establishment namely, M/s.Ganesh Agencies wherein business of sale of wine is being carried on by first defendant. It is a retail wine business. As per Ex.D-11 issued on 04.01.2010, said business establishment stands in the name of 'Ganesh Prasad' - D.W.1. Undisputedly, D.W.1 did not have any other business except said wine business. It is a retail wine business. As per Ex.D-11 issued on 04.01.2010, said business establishment stands in the name of 'Ganesh Prasad' - D.W.1. Undisputedly, D.W.1 did not have any other business except said wine business. As to when the said business was commenced, what was the capital invested, the source of capital to run the business is not forthcoming from either the pleadings or the evidence placed on record. In fact, in the written statement filed by first defendant on 03.01.2003 there is no averment made in that regard and it is silent. At paragraph 17 of the written statement, D.W.1 has contended that it was obtained by first defendant on lease and at present, it is a partnership firm which has got nothing to do with joint family. The right of the plaintiffs have been denied in toto. The plaintiff amended the plaint and incorporated paragraph 12(a) contending interalia that D.W.1 had commenced the business, described as item No.1 of 'B' schedule property by investing a sum of Rs.6,500/- given by the grand father namely, father of first defendant. In reply, by way of additional written statement filed on 14.08.2000 by first defendant, this fact has been denied and it is asserted by first defendant that it is his independent business. Further, in the additional written statement filed on 15.03.2010, first defendant has specifically asserted that it is his own business. D.W.1 has been cross examined by the plaintiff with regard to source of income of D.W.1 to commence the business in wine shop. In his cross examination dated 17.06.2010, D.W.1 has admitted that he has studied up to 10th standard and even before commencement of wine business, he was earning money by carrying on business in paddy and rice. However, no proof of such income was produced. This fact is admitted. He has denied the suggestion that he did not have any income prior to commencing the business in Ganesh Wines and has also denied the suggestion that seed money of Rs.6,500/- was given by his father. Thus, burden was on D.W.1 to prove that business in Ganesh Wines was commenced by him from out of his own income or in other words, the capital invested in the business was from out of his own income. Thus, burden was on D.W.1 to prove that business in Ganesh Wines was commenced by him from out of his own income or in other words, the capital invested in the business was from out of his own income. In fact, D.W.1 has admitted in his cross examination dated 17.06.2010 to the effect that first plaintiff was removed from the partnership of Ganesh Wines. The admission of D.W.1 in this regard reads: Above admission would clearly indicate that wine business was run by D.W.1 in partnership of which P.W.1 was also a partner. D.W.1 has also contended that item No.1 of 'B' schedule property is his self acquired property. Ex.P-21 which is the Income tax records of the firm M/s.Ganesh Agency for the assessment years 1997-98 to 2003-04 came to be produced by the Income Tax Department and it has been collectively marked as Ex.P-21. The statement of accounts for the assessment year 1997-98 would indicate that along with the returns, several documents were produced which included a partnership deed and in the balance sheet, the net loss transferred to the partner's capital account is reflected which included the name of first plaintiff i.e., P.W.1. Even in the cross examination dated 17.06.2010, D.W.1 has admitted about existence of the partnership firm which is carrying on the business in wines namely, item No.1 of 'B' schedule property. 25. P.W.1 being partner of the firm and no notice having been issued to P.W.1 before his removal would only indicate that first plaintiff and defendants-1,2,4 & 5 were partners of the firm. Overwhelming documentary evidence - Ex.P-21(a), P-21(b) to P-21(h) would indicate first defendant was a partner of the firm - M/s. Ganesh Agency both in his individual capacity and in the capacity of Karta - HUF. The official copy of the partnership deed dated 01.04.1996 which was submitted by D.W.1 along with Income tax returns for the assessment year 1997-98 has been marked and D.W.1 has admitted his signatures found in the said deed which came to be marked as Ex.P-21(a) to P-21(k) vide cross examination dated 08.07.2010. His admission reads: Above admission of D.W.1 would clearly indicate Wine business namely, item No.1 of Schedule 'B' property is a partnership firm of which, HUF is a partner and as such, it is partiable. Hence, finding recorded by the trial court would not call for any further elaboration. 26. His admission reads: Above admission of D.W.1 would clearly indicate Wine business namely, item No.1 of Schedule 'B' property is a partnership firm of which, HUF is a partner and as such, it is partiable. Hence, finding recorded by the trial court would not call for any further elaboration. 26. Yet another fact to be considered in this appeal is whether item No.2 of 'B' schedule property is selfacquired property of defendant No.2 or not? In fact, D.W.1 admits that she is a housewife and had no independent source of income to purchase item No.2 of 'B' schedule property (Ex.D-14). However, it was canvassed before this Court that second defendant had purchased item No.2 of suit schedule property from streedhana, which she had received from her parents. However, she had failed to prove the theory of streedhana. In fact, she has not even raised a plea in her written statement. In her crossexamination dated 06.08.2010 she has admitted that she does not have any independent source of income and is necessarily dependent upon the income of her husband for all her necessities. In view of the same, we are of the opinion that Item No.2 of 'B' schedule property is the joint family property purchased by D.W.1 in the name of his wife. Though defendant No.1 has pleaded in his written statement that said property is the self-acquired property of defendant No.2 and also the learned Advocate for the appellants has made a feeble attempt to contend that said property is the self-acquired property of defendant No.2 and she has acquired the same through streedhan from her parents. However, said submission do not have leg to stand. This view gets substantiated from the fact that defendant No.1 being the Karta of the family has purchased various properties out of the income derived from the joint family nucleus and Item No.2 of schedule 'B' was purchased in the name of his wife-defendant No.2. Though defendant No.1 has contended he had borrowed money from various financial institutions including Karnataka State Financial Corporation to purchase the property in question, however, there is no proof for having raised loan by the defendant No.1 with regard to purchase of item No.2 of 'B' schedule property. Though defendant No.1 has contended he had borrowed money from various financial institutions including Karnataka State Financial Corporation to purchase the property in question, however, there is no proof for having raised loan by the defendant No.1 with regard to purchase of item No.2 of 'B' schedule property. Hence, contention of second defendant that she purchased item No.2 of suit schedule property from out of streedhana or her own income cannot be accepted and finding recorded by trial Court that it is a joint family property deserves to be accepted. For the reasons aforestated, we proceed to pass the following: JUDGMENT (1) Appeal is dismissed. (2) Judgment and decree dated 06.01.2011 passed by the III Additional Civil Judge (Senior Division) Mysore in O.S.No.354/2000 is affirmed. (3) No order as to costs.