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2020 DIGILAW 607 (KAR)

K. N. Narayanaswamy v. K. Nanjegowda And Others

2020-03-02

NATARAJ RANGASWAMY

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JUDGMENT Nataraj Rangaswamy, J. - This Regular Second Appeal is filed by the defendant No. 2 in OS No. 47/1990 on the file of the Principal Civil Judge (Jr. Dn.) and JMFC., Doddaballapur challenging the Judgment and Decree dated 26.07.2010 passed by the First Appellate Court (Additional District and Sessions Judge, FTC-VII, Doddaballapur) in RA No. 52/2006. 2. The parties shall henceforth be referred to as they were arrayed before the Trial Court. 3. The facts as stated that led to the filing of OS No. 47/1990 are that; the plaintiff and the defendant Nos. 2 to 6 were the children of the defendant No. 1. It is stated that the family of the plaintiff and the defendants were joint and that the suit properties were ancestral properties that were possessed by the defendant No. 1, he having derived it at a partition between he and his brother. Item No. 11 of the suit properties is stated to have been purchased in the name of the defendant No. 2 and out of the joint family funds. Thus, it was contended that the plaintiff is entitled to 1/7th share in the suit schedule properties, which he demanded from the defendants, but not complied. Thus, the plaintiff sought for declaration of his share. 4. The defendant No. 1 filed his written statement and admitted that the suit properties were joint family ancestral properties and the suit item No. 11 was purchased out of the joint family funds in the name of the defendant No. 2 as he was managing the affairs of the family. He also claimed that the loan raised on the security of item No. 11 in the name of the defendant No. 2 was discharged from out of the joint family funds. The defendant No. 1 thus, sought for a decree declaring that the plaintiff and the defendants are entitled to 1/7th share in the suit properties. 5. The defendant Nos. 3, 4 and 6 adopted the written statement filed by the defendant No. 1. 6. The defendant No. 2 filed his written statement and admitted the relationship and also the fact that the suit item Nos. 1 to 10 and 12 were the joint family ancestral properties. 5. The defendant Nos. 3, 4 and 6 adopted the written statement filed by the defendant No. 1. 6. The defendant No. 2 filed his written statement and admitted the relationship and also the fact that the suit item Nos. 1 to 10 and 12 were the joint family ancestral properties. He contended that he had studied upto II PUC and out of his own hard work, had purchased the suit item No. 11 from Smt. Subbalakshmamma in terms of a sale deed dated 04.11.1981. He also contended that he had a separate source of income and that the joint family never assisted him in purchasing the suit item No. 11. He also contended that he had raised a loan from Raitha Seva Sahakara Sangha in year 1976 and availed a loan from PLD Bank by hypothecating the suit item No. 11 in the year 1980 and that he had income from selling milk that he used to collect from the villagers and was supplying the same to hotels and private persons in Doddaballapura. He also contended that he had availed loan from the Corporation Bank under the self employment loan scheme. He also claimed that he was doing business in 'Chandrike' since the year 1975 and therefore, he contended that he had purchased the suit item No. 11 out of his self earnings. He specifically conceded that he had no objection for partition of the suit item Nos. 1 to 10 and 12. 7. The defendant No. 5 adopted the written statement filed by the defendant No. 2 based upon which the Trial Court framed the following issues: 1. Whether the plaintiff proves that all the suit properties including item No. 11 are the ancestral and joint family properties of the parties in the suit? 2. Whether the plaintiff proves that he is entitled for 1/7th share in all the suit properties? 3. Whether the 2nd defendant proves that item No. 11 of the suit property is his self-acquired property? 4. Whether the 2nd defendant proves that suit is bad for non joinder of all joint family properties? 5. Whether the plaintiff is entitled for relief of partition and possession? 6. What order and what decree? 8. 3. Whether the 2nd defendant proves that item No. 11 of the suit property is his self-acquired property? 4. Whether the 2nd defendant proves that suit is bad for non joinder of all joint family properties? 5. Whether the plaintiff is entitled for relief of partition and possession? 6. What order and what decree? 8. Plaintiff was examined as PW1 and the defendant No. 1 was examined as PW2 and the vendor of the defendant No. 2 in respect of the suit item No. 11 as PW3 and they marked Exs. P1 to P52. 9. The defendant No. 2 was examined as DW1, the defendant No. 5 was examined as DW8, the defendant No. 3 was examined as DW7 and other witnesses as DWs. 2 to 6 and marked Exs. D1 to D79. 10. The Trial Court considered the evidence on record and decreed the suit in part and declared that the plaintiff was entitled to 1/7 share in the suit schedule properties excluding the suit item No. 11. 11. The plaintiff thereafter filed a first appeal in RA No. 52/2006 before First Appellate Court. The First Appellate Court noticed that the defendant No. 2 had failed to prove that the suit item No. 11 was purchased out of his self acquisition and therefore, decreed the suit in its entirety including the suit item No. 11. 12. The defendant No. 2 has therefore, filed the present Regular Second Appeal challenging the Judgment and Decree of the First Appellate Court. 13. I have heard the counsel for the defendant No. 2/appellant and the plaintiff, the defendant Nos. 1, 3, 4 and 6. I have perused the records of the Trial Court and the First Appellate Court, the Judgments and Decrees of the Trial Court and the First Appellate Court and also the grounds of appeal urged in the appeal memorandum. 14. It is not in dispute that the suit item Nos. 1 to 10 and 12 were the joint family ancestral properties. It is also not in dispute that the Propositus - defendant No. 1 was a teacher. It is seen from the evidence of DW1 that his date of birth was 30.09.1951. Exs. P17 and P18 disclose that the defendant No. 1 performed the marriage of the defendant No. 2 and on which day the defendant No. 1 had also performed the marriage of his younger daughter. It is seen from the evidence of DW1 that his date of birth was 30.09.1951. Exs. P17 and P18 disclose that the defendant No. 1 performed the marriage of the defendant No. 2 and on which day the defendant No. 1 had also performed the marriage of his younger daughter. In terms of Exs. P19 to P52, the family of the plaintiff and the defendants had cleared off certain loan that was raised by Smt. Subbalakshmamma, the vendor of the defendant No. 2 in respect of suit item No. 1 and also the loan that was raised by the defendant No. 2. It is seen from some of these receipts that the person who paid the loan was the defendant No. 1. Insofar as Ex. P49 is concerned, this was a loan raised by Smt. Subbalakshmamma, the vendor of the defendant No. 2 and the same was cleared by the Propositus - defendant No. 1 on 29.06.1983. 15. Though, the defendant No. 2 claimed that he had earnings of his own, except examining DWs. 2, 3, 4 and 5, he had not produced any documentary evidence to show that he had income of his own which was sufficient enough to purchase the suit item No. 11. It is seen from the evidence of the defendant No. 2 and as per the assertion of the defendant No. 2 that the family remained joint till the year 1993. In the face of this, it is hard to accept that the defendant No. 2 had any source of income which was sufficient enough to purchase the suit item No. 11. On the contrary, the fact that the defendant No. 1 was still holding siege over the properties of the family and the joint family is evident from Ex. P7 which was the marriage invitation card of the wedding of the defendant No. 1 which shows that when the suit item No. 11 was purchased, the defendant No. 2 was still a bachelor and being the eldest male member of the family, he was managing the affairs of the family since, the defendant No. 1 was employed as a teacher. 16. Likewise, the defendant No. 2 had placed on record Exs. D63 to P77 which indicated that the loan raised from the Corporation Bank was cleared by the defendant No. 1. Ex. 16. Likewise, the defendant No. 2 had placed on record Exs. D63 to P77 which indicated that the loan raised from the Corporation Bank was cleared by the defendant No. 1. Ex. P78 is yet another document which indicates that the defendant No. 1 had cleared the loan with Smt. Subbalakshmamma (Vendor of the defendant No. 2) which was raised in respect of the suit item No. 11. Therefore, there is voluminous evidence on record which makes it probable that the suit property was purchased out of the funds of the joint family. It is also probable that the defendant No. 2 had permitted the loan raised by him to be cleared by the defendant No. 1 out of the funds of the joint family. Except the self serving statement that the defendant No. 2 had an independent source of income, the defendant No. 2 has failed to establish the same by cogent and acceptable evidence. 17. It is well settled that there is a presumption in favour of the jointness of the family, but there is no presumption that the properties possessed by the members are joint. However, if there is sufficient nucleus in the family, the burden is upon the person who claims one of the items of the suit properties was his self acquisition. In the case on hand, the defendant No. 1 was working as a teacher and the suit items Nos. 1 to 10 and 12 are quite expansive and makes it probable that the income from these suit properties were pooled in by the defendant No. 1 to purchase the suit item No. 11 in the name of the defendant No. 2. 18. In the circumstances, I do not find any irregularity or illegality in the appreciation of the evidence by the First Appellate Court and in decreeing the suit for partition in so far as the suit item No. 11 is concerned. As no substantial question of law arises for consideration in this appeal, this appeal is bereft of merit and the same is dismissed. 19. During the course of this appeal, the defendant No. 2 filed an application numbered as I.A. No. 2/2013 for amendment of the plaint to include the properties that were possessed by his mother does not survive for consideration and therefore, the same is rejected. 19. During the course of this appeal, the defendant No. 2 filed an application numbered as I.A. No. 2/2013 for amendment of the plaint to include the properties that were possessed by his mother does not survive for consideration and therefore, the same is rejected. However, it is open to the defendant No. 2 to seek for inclusion of the properties that were owned and possessed by his mother Smt. Narayanamma in the final decree proceedings if she is not alive. If such a claim is made in the final decree proceedings, the defendants are entitled to take such defences, which are available to them in law. All pending applications therefore shall stand rejected.