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2022 DIGILAW 1247 (KAR)

Madhu G. v. G. prakash

2022-09-21

R.NATARAJ

body2022
JUDGMENT 1. The plaintiff in O.S. No.8523/2002 on the file of the XLIV Additional City Civil and Sessions Judge, Bengaluru, has filed this writ petition challenging an Order dtd. 1/9/2022 passed therein by which the Trial Court rejected an application (I.A. No.21) filed by him under Order XIV Rule 5 of the Code of Civil Procedure, 1908 (for short, 'the CPC') seeking to recast issue No.3 and to frame an additional issue. 2. The suit in O.S. No.8523/2002 was filed inter alia for the following reliefs, in respect of the property bearing No.43/37, 2nd cross, Promnade Road, Frazer Town, Bengaluru, measuring 40 feet x 60 feet. "(a) Partition and Possession of 1/8th share in the schedule properties by metes and bounds; (a-1) To set aside the alleged family partition dtd. 5/8/1987 and the alleged registered deed dtd.:22/3/1989 which is registered as document No.4394/1988-89, Book No.1, volume No.2830, Pages 1 to 10 registered in the office of the Sub Registrar, Shivajinagar, Bangalore registered on 4/5/1989 and re-open the same and direct 4/5/1989 and re-open the same and direct fresh petition in accordance with law as per clause (a) above." Initially, the suit in O.S. No.8523/2002 was filed by the plaintiff for partition and separate possession of item Nos.1 to 4 properties. The defendant No.2 filed an application in I.A. No.12 for deleting item Nos.1 to 3 properties and the same was rejected by the Trial Court in terms of the Order dtd. 14/3/2019 against which defendant No.2 preferred W.P. No.13289/2019 before this Court, which was allowed by this Court in terms of the Order dtd. 5/10/2021 and consequently, the application of the plaintiff for deletion of suit schedule item Nos.1 to 3 properties was allowed. Thus, the suit was only in respect of suit item No.4 (referred supra) which shall henceforth be referred to as 'suit property'. 3. The plaintiff claimed that the suit property was purchased by the defendant No.2 from out of the funds generated from the joint family properties which was the subject matter of the suit in O.S. Nos.5240/1988 and 154/1989. The plaintiff claimed that after preliminary decree was passed in the said two suits, defendant No.2 had utilized the funds of the joint family and had purchased the suit property in his name and therefore, they were entitled for an undivided share in the suit property. 4. The plaintiff claimed that after preliminary decree was passed in the said two suits, defendant No.2 had utilized the funds of the joint family and had purchased the suit property in his name and therefore, they were entitled for an undivided share in the suit property. 4. The defendant No.2 contested the suit by claiming that the suit property was his self acquisition and that he had not utilized the funds of the joint family to purchase the same. 5. Based on these rival contentions, the Trial Court framed the following issues: "1. Whether the plaintiff proves that the suit properties are the joint family properties as pleaded? 2. Whether the contesting defendant proves the family partition referred to in the para 4 of the Written Statement? 3. Whether the contesting defendant proves that the suit item No.4 property is the self acquired property as contended ? 4. Whether the plaintiff is entitled for the 1/8th share in the suit schedule property ? 5. To what relief?" Additional Issues: "1. Whether the suit is not maintainable for the reasons stated in para 3 of the written statement? 2. Whether the suit is barred by principles of res judicata?" Amongst the issues so framed, on an application in I.A. No.18 filed by the defendant No.2, issue Nos.1 and 2 and additional issues were struck off by the Trial Court in terms of the Order dtd. 21/7/2022 and issue No.3 was modified as follows: "Whether the Plaintiff proves that the 2nd defendant purchased the suit schedule property by utilizing the joint family funds ?" 6. Based on these issues, the plaintiff adduced his evidence and was cross-examined. Later, when the case was listed for evidence of the defendants, the plaintiff filed an application under Order XIV Rule 5 of the CPC., to recast the issue No.3 and frame an additional issue as follows: Issues as they currently stand Amendment sought 3. Whether the Plaintiff proves that the 2nd Defendant purchased the suit schedule property by utilizing the joint family funds? 3. Whether the Plaintiff proves that there was sufficient joint family nucleus for the 2nd Defendant to have purchased suit item No.4 property? Additional Issue: Whether the 2nd Defendant proves that the suit item No.4 property is self-acquired property as contended 7. This application was opposed by the defendant No.2. 8. 3. Whether the Plaintiff proves that there was sufficient joint family nucleus for the 2nd Defendant to have purchased suit item No.4 property? Additional Issue: Whether the 2nd Defendant proves that the suit item No.4 property is self-acquired property as contended 7. This application was opposed by the defendant No.2. 8. The Trial Court after considering the contentions urged in the application as well as in the objections, rejected the same on the ground that the family of the plaintiff and the defendants was severed in view of the partition decree dtd. 27/7/1988 in O.S. No.154/1989 and therefore, there was no joint family that existed and hence, the plaintiff who had approached the Court contending that the suit property was acquired out of the joint family nucleus had to prove his case. It also held that issue No.3 that was framed earlier was modified in terms of the Order dtd. 21/7/2022 passed on I.A. No.18 filed by the defendant No.2 and the same was not questioned by the plaintiff and hence, he is barred from raising the same issue. 9. Being aggrieved by the said Order, the present petition is filed. 10. The learned senior counsel representing the plaintiff / petitioner submitted that there is an initial presumption that when a family is possessed of sufficient nucleus, any acquisition made in the name of any member of the family is out of the funds of the joint family and it is for the person claiming self acquisition to prove the same. In this regard, he relied upon the judgment of the Hon'ble Supreme Court of India in the case of D.S. Lakshmaiah and another v. L. Balasubramanyam and another [Civil Appeal No.2089/2000 decided on 27/8/2003] as well as the judgment of a coordinate Bench of this Court in K.G. Narasimha Murthy v. Smt.Venkatalakshmamma and others [RFA No.1300/2008 c/w RFA No.963/2008 decided on 31/5/2013]. He, therefore, submitted that it is for the defendant No.2 to prove that the suit property was his self acquisition and hence, an issue arose whether the defendant No.2 proved that the suit property was purchased out of his own funds. He submitted that the rules of res judicata are not applicable to an application filed under Order XIV Rule 5 of the CPC as the Trial Court is at liberty to frame an issue after considering the evidence on record. 11. He submitted that the rules of res judicata are not applicable to an application filed under Order XIV Rule 5 of the CPC as the Trial Court is at liberty to frame an issue after considering the evidence on record. 11. The learned counsel for the defendant No.2 / respondent No.1 on the other hand contended that the principles of res judicata are applicable since the issue that was framed earlier was modified in terms of the Order dtd. 21/7/2022 passed on I.A. No.18 filed by the defendant No.2 which was not challenged by the plaintiff. In this regard, he relied upon the judgment of a coordinate Bench of this Court in Abdul Sattar and Others v. Gurlingayya and Another [ILR 2002 KAR 2675]. He further contended that upon a preliminary decree passed in O.S. No.154/1989, there was a severance of status of the joint family and therefore, the suit property purchased by the defendant No.2 had to be construed as his own independent property. 12. I have considered the submissions made by the learned senior counsel for the petitioner and learned counsel for the respondent No.1. 13. It is well settled that if a family is affluent and has enough properties in its hands, it is presumed that any property purchased in the name of any of the members of the family is out of funds of the joint family and it is for the person claiming that it is his/her self acquisition, to establish the same in accordance with law. There cannot be any doubt regarding this settled principle of law. In the case on hand, a preliminary decree for partition was passed in O.S. No.154/1989 not in respect of the suit property, but in respect of the other properties which belonged to the joint family. The suit property was purchased by the defendant No.2 admittedly after the preliminary decree was passed in O.S. No.154/1989. Therefore the initial presumption that the suit property was purchased out of the joint family funds can be drawn in respect of the suit property. The onus of proving to the contrary would be on the defendant No.2 and therefore, there is no need to frame a separate issue as to whether the defendant No.2 proves that the suit property was purchased out of his own funds. The onus of proving to the contrary would be on the defendant No.2 and therefore, there is no need to frame a separate issue as to whether the defendant No.2 proves that the suit property was purchased out of his own funds. Once the evidence is complete, it is for the Trial Court to decide whether the defendant No.2 has discharged onus upon him, failing which, the presumption available to the plaintiff would be extended. Therefore, the impugned order passed by the Trial Court refusing to recast issue No.3 and frame an additional issue does not warrant interference. However, the Trial Court while rejecting the application in I.A.No.21 of the plaintiff could not have concluded that the preliminary decree results in severance of status. [See Vineeta Sharma v. Rakesh Sharma [ (2020) 9 SCC 1 ]. The Trial Court has lost sight of the fact that mere filing of a suit for partition would not result in severance of status. Consequently, a mere preliminary decree for partition would not result in severance, but such severance would be effected only after final decree is passed dividing the properties amongst members of the family. Therefore, the observations of the Trial Court that the preliminary decree in O.S. No.154/1989 has resulted in severance of the joint family deserves to be diluted. In view of the above, the impugned Order does not warrant interference. Hence, the Writ Petition is dismissed but is subject to the observations made above. It is open for the Trial Court to frame an additional issue as suggested by the plaintiff, if need arises after considering the evidence on record. All contentions of the parties are left open.