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2022 DIGILAW 183 (KAR)

Bhundappa v. Mallikarjun

2022-02-09

K.S.HEMALEKHA, S.R.KRISHNA KUMAR

body2022
JUDGMENT K.S.HEMALEKHA,J. - Non-granting of share in item No.13, house building on plot No.238 in Sy.No.72 of Badepur, Kalaburagi, bearing G.P.No.13-19 Corporation No.T-2- 910/72-238, by the III Addl. Senior Civil Judge at Gulbarga in O.S.No.139/2014, dtd. 7/8/2018, the plaintiffs have preferred this appeal. 2. The parties herein shall be referred to as per their ranking before the trial Court. 3. The plaintiffs had filed the suit for partition and separate possession in respect of the suit schedule properties contending that the suit schedule properties are the ancestral joint family properties of the plaintiffs and defendant and claiming 1/9th share in the suit schedule properties and that the father of the plaintiff and the defendants by name Sidramappa, son of Shanthappa Maradi died on 9/8/1991 and the mother by name Girijabai died on 16/6/2012. The plaintiffs and defendant Nos.1 to 4, 6 and 8 are the brothers who are the sons of late Siddaramappa, son of Shanthappa Maradi and defendant Nos.5 and 7 are the sisters of the plaintiffs who are the daughters of late Siddaramappa Shanthappa Maradi. It is the contention of the plaintiff that the suit item No.13, plot No.238 in Sy.No.72 of Badepur is acquired by the plaintiffs and the defendants from the income of the joint family funds and from the contribution made by the plaintiffs and defendants purchased in the name of defendant No.2/Shivaputrappa nominally. It is further contended that the purchase in the name of defendant No.2/Shivaputrappa, as he was the elder brother living in Gulbarga City at that time, vide registered document dtd. 27/03/1993. It is further contended that the commencement of construction of the house in the said plot was started in the year 1995, by the plaintiffs and the defendants and the construction was completed in the year 1997 and that the expenses for construction of house was also met by the income of the joint family and the contribution made by all the brothers. It is further contended that the three brothers namely, Shivaputrappa, Hanumantharayappa and Satlingappa were residing together in the house from the year 1997 till the year 2007. Since the year 2008 defendant No.2 is staying in the eastern portion of the house and defendant No.8 is staying in the western portion of the house. It is further contended that the three brothers namely, Shivaputrappa, Hanumantharayappa and Satlingappa were residing together in the house from the year 1997 till the year 2007. Since the year 2008 defendant No.2 is staying in the eastern portion of the house and defendant No.8 is staying in the western portion of the house. It is further contended that in the year 2000, defendant No.8 Satlingappa got permission for installing Doctors Club Soda in the eastern half cellar portion of the house and remaining western half cellar portion area was leased as rent to other distributors and plaintiffs and defendants have deposited the rent in the account of the mother of the plaintiffs and defendants. It is further contended that the plaintiffs are entitled for equal share to the extent of 1/9th share in the suit schedule properties and there is no division in respect of the suit properties between the plaintiffs and the defendants. 4. In pursuance of the notice issued by the trial Court, defendant Nos.1, 3, 4, 6, and 8 filed separate written statements admitting the contents of the plaint and that the suit properties are the ancestral joint family properties of the plaintiffs and the defendants. It is also contended that at the time of death of the father of plaintiffs and the defendants, defendant No.1/Mallikarjun was working as a Government Teacher; defendant No.3/Shivanand was running a kiranashop and also working as superintendent in a private hotel and plaintiff Dundappa was looking after the agricultural operations; defendant No.4/Somanath was employed in BEML at KGF; defendant No.5/Lakshmi Bai was already married; defendant No.7/Anusuya Bai was married after the death of their father; defendant No.6/Hanumantharayappa was working as a teacher in a private aided school and defendant No.2/Shvarudrappa, defendant No.6/ Hanumantharayappa and defendant No.8 Satlingappa were running a tea stall and also started a khanavali in a tin shed hall, opposite to Basaveshwara Hospital, Gulbarga from the year 1987 onwards from the capital amount obtained from Siddaramappa Maradi, the deceased, father of the parties and they continued to run the said business in the year 2000. It is further contended that item No.13, plot No.238 in Sy.No.72, Badepur Gulbarga was purchased by the plaintiffs and the defendants from the ancestral fund and from the contribution of all the brothers in the name of defendant No.2/Shivaputrappa nominally as he being the elder brother living at Gulbarga City and the other contentions of the plaintiffs was admitted by the said defendants. 5. Defendant No.2/Shivaputrappa filed separate written statement denying the plaint averments and specifically contended that item Nos.1 to 12 are the ancestral joint family properties of the plaintiffs and defendants. It is also admitted that at the time of death of the father of defendant Nos.2, 3, 4, 5, 6, and 7 were all having independent source of income. However, the contention insofar as the acquisition from the joint family funds in respect of item No.13, plot No.238 in Sy.No.72 at Badepur, is concerned, it is specifically denied by defendant No.2. It is the specific contention of defendant No.2 that he had purchased the suit schedule property item No.13 out of his individual income and it is his self-acquired property. Defendant No.2 denied the averments that it is purchased out of the joint family income and the purchase in the name of defendant No.2 is just a nominal purchase. It is also specifically contended that defendant No.2 initially started a hotel business at Sedam Road and gradually increased his business with the financial help of Sri Basavaraj Patil Palled, the landlord of the place where defendant No.2 was running the hotel business. It is also contended that defendant No. 2 had helped his brother Mallikarjun by advancing a sum of Rs.38,200.00 from the year 1991 to 2004 and also helped defendant No.3 to the extent of Rs.55,650.00 during the year 2000 to 2003. It is further contended that defendant No.2 was finaicially capable of purchasing plot No.238 in Sy.No.72 of Badepur out of his own income as he was running a hotel business and the income derived from the hotel business was sufficient for him to purchase the said property. Thus, it is specifically contended that the plaintiffs and the other defendants do not have any right, title and interest of the said property. 6. Defendant Nos.5 and 7 filed separate written statement. Thus, it is specifically contended that the plaintiffs and the other defendants do not have any right, title and interest of the said property. 6. Defendant Nos.5 and 7 filed separate written statement. However, adopting the written statement of Defendant Nos.1, 3, 4, 6 and 8 and contended that they are also entitled for separate share in the suit schedule properties by metes and bounds. 7. The trial Court on the basis of the pleadings of the parties, framed the following issues for consideration: ISSUES 1. Whether the plaintiff proves that the suit schedule properties are the joint family properties of plaintiff, defendants and they are in joint possession over the suit schedule properties? 2. Whether the defendant No.2 proves that he has purchased the some suit scheduled properties out of his own income as pleaded in the written statement? 3. Whether the defendant No.2 proves that all the joint family properties are not included in the suit? 4. Whether the defendant No.2 proves that the suit is bad for non-joinder of necessary parties and necessary parties? 5. Whether the plaintiff is entitle for the relief as claimed in the plaint? 8. In order to substantiate their case, the plaintiff examined himself as PW.1 and got marked Exs.P-1 to P-34 and examined three witnesses as PWs.2 to 5. On the other hand, defendant No.2 got examined himself as DW.1 and got marked documents at Exs.D-1 to D-42. 9. The trial Court considering the pleadings and material on record decreed the suit of the plaintiff in part holding that plaintiff and defendant Nos.1 to 4, 6 and 8 are entitled to 10/72 share in the suit schedule properties by metes and bounds, except item No.13 of the properties. The suit filed by the plaintiff against defendants in respect of item No.13 was thereby dismissed. Being aggrieved by the non-grant of share in item No.13 of the suit schedule properties, the plaintiffs are in appeal before this Court. 10. Heard learned counsel for the parties and perused the material on record. 11. The suit filed by the plaintiff against defendants in respect of item No.13 was thereby dismissed. Being aggrieved by the non-grant of share in item No.13 of the suit schedule properties, the plaintiffs are in appeal before this Court. 10. Heard learned counsel for the parties and perused the material on record. 11. Learned counsel for the appellant, Sri Ajaykumar A.K., would submit that the trial Court has fell in error in not granting share in item No.13 of the schedule property, which according to the plaintiffs/appellants was purchased in the name of defendant No.2 nominally, but the consideration amount was paid out of joint family funds and inspite of sufficient material on record and the plaintiffs having established that the joint family possessed sufficient amount to purchase item No.13, the trial Court was not justified in holding that item No.13 is the self-acquired property of defendant No.2. Thus, raising various other contentions, learned counsel for the appellant substantiated his case contending that the plaintiffs are entitled to share in item No.13 of the suit schedule property as it was purchased out of the joint family funds. 12. Per contra, learned counsel Smt. Neeva N.Chimkod appearing for defendant No.2 would contend that item No.13 of the suit schedule property was purchased out of the individual income of defendant No.2 and not out of the joint family funds as contended by the plaintiffs. It is also contended that the defendants had produced sufficient material on record and adduced evidence to show that defendant No.2 had sufficient means to purchase the suit schedule property and the expenses for construction of the building in the suit property was exclusively by defendant Nos.2 and thus, it is contended that the plaintiff has not produced an iota of evidence to show that the family had sufficient means to purchase the said property and would contend that the trial Court, looking into all these aspects, has rightly held that item No.13 of the suit schedule property is the self-acquired property of defendant No.2 and as such, refused to grant share in item No.13 of the suit schedule property. 13. 13. Having given our anxious consideration of the rival contentions raised by the parties, the point that arises for consideration is: "Whether the judgment and decree passed by the trial Court in holding that item No.13 of the suit property is the self-acquired property of defendant No.2 requires any interference and whether the judgment and award warrants any interference? 14. The question that arises before us is, whether item No.13 is the joint family property or self-acquired property of defendant No.2 and this aspect has to be considered in view of the settled principles of law, but there is no presumption of joint family property. It is well settled principle of law that a party agitating that the property is a joint family property and acquired from the joint family fund has to discharge his burden to prove the same and once the initial burden is discharged, the onus shifts on the defendant to dispel and prove that the property is his self-acquired property. This settled principle of law is enumerated in number of decisions of the Hon'ble Apex Court from the time of privy council reported in AIR 1933 PC 85 in the case of Shadi Lal V/s Lal Bahadur and other and their Lordship has held as under: Their Lordships are unable to find any allegation in the written statement that the properties included in the zamanatnama were ancestral. Paragraphs 1, 2, 3, and the first part of paragraph 4 of "further pleas" in the written statement, relate solely to the property mortgaged by the deed of 1905, and issue No. 2, set out above, refers only to that property. The zamanatnama is referred to in the later part of paragraph 4, and the only issue as to that was whether it was "illegal and without consideration." Such being the pleadings and issues, it was not necessary for the trial Judge to inquire whether the properties comprised in the zamanatnama were ancestral. There is no presumption that a family, because it is joint, possesses joint property, and it was for the sons of the mortgagor to allege and prove that those properties were joint family properties. This, their Lordships think, they failed to do. Their Lordships are therefore unable to agree with the High Court that the properties included in the zamanatnama were ancestral. This, their Lordships think, they failed to do. Their Lordships are therefore unable to agree with the High Court that the properties included in the zamanatnama were ancestral. Followed in 1947 AIR privy counsel page 189 in the case of Randhi Appalaswami V/s Randhi Suryanarayanamurti and others, the Apex Court in para 12 reads as under: 12. It has been argued before the Board that the share which the appellant took under exhibit A formed the nucleus from which all his further acquisitions sprang. The learned District Judge found that under Exhibit A the Appellant had got six acres of land, a house and site at Rajahmundry valued then at Rs.2,000, 1.004th of a 6/16th share in the Radhakrishna Rice Mills, outstandings valued at Rule 3,500, gold articles worth Rs.446.00 and some utensils worth Rs.70..00 The whole property was stated to be worth Rs.7,220..00 These findings have not been challenged. The evidence of the Appellant, which was not contradicted upon this point, was that the whole of this property was intact and unencumbered except for a godown on the Rajahmundry site which he had sold for Rs.1,100,.00 which sum he had debited against household expenditure. From the figures which the Appellant gave in evidence, which again were not disputed, it is clear that his family expenses far exceeded the income derived from the joint property which he acquired under exhibit A. Between 1918 and 1934 the Appellant acquired various properties at a total expenditure of some Rs.55,000.00 and it was conceded in the judgment of the High Court that the defendant was a man of enterprise and that it was largely due to his energy and labour that a large fortune had been acquired. The Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property is joint to establish the fact. The Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property is joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property : see Babubhai Girdharlal vs. Ujamlal Hargovandas [1937] Bom. 708, Venkataramayya v. Seshamma [1937] Mad. 1012, Vythianatha vs. Varadaraja I.L.R. [1938] Mad. 696 In the present case their Lordships think that the acquisition by the appellant of the property under exhibit A, which as between him and his sons was joint family property, cast upon the appellant the burden of proving that the property which he possessed at the time of the plaint was his self-acquired property, but they agree with the District Judge in thinking that this burden has been discharged. The evidence establishes that the property acquired by the appellant under exhibit A is substantially intact, and has been kept distinct. The income derived from the property and the small sum derived from the sale of part of it have been properly applied towards the expenses of the family, and there is no evidence from which it can be held that the nucleus of joint family property assisted the appellant in the acquisition of the properties specified in the schedule to the written statement. Consequently there is no force in the suggestion that the appellant improperly claimed as his own property which belonged to the joint family, and that is the only ground now relied upon to show that this suit was filed in the interest of the minors. Emphasis supplied In another judgment the Apex Court in the case of MST.RUKHMABAI V/S LALA LAXMINARAYAN AND OTHERS reported in AIR 1960 SC 335 , the full bench held at para 4 and 5 which reads as under: 4. Emphasis supplied In another judgment the Apex Court in the case of MST.RUKHMABAI V/S LALA LAXMINARAYAN AND OTHERS reported in AIR 1960 SC 335 , the full bench held at para 4 and 5 which reads as under: 4. The main point that arises for consideration is whether the plaint-schedule house is the property of the joint family or whether it was built out of the selfacquisitions of Govindprasad in respect whereof he executed the trust deed. At the outset the relevant and well-settled principles of Hindu Law may be briefly noticed. 5. There is a presumption in Hindu Law that a family is joint. There can be a division in status among the members of a joint Hindu family by refinement of shares which is technically called "division in status", or an actual division among them by allotment of specific property to each one of them which is described as "division by metes and bounds". A member need. not receive any share in the joint estate but may renounce his interest therein, his renunciation merely extinguishes his interest in the estate but does not affect the status of the remaining members vis- a-vis the family property, A division in status can be effected by an unambiguous declaration to become divided from the others and that intention can be expressed by any process. Though primafacie a document clearly expressing the intention to divide brings about a division in status, it is open to a party to prove that the said document was a sham or a nominal one not intended to be acted upon but was conceived and executed for an ulterior purpose. But there is no presumption that any property, whether movable or immovable, held by a member of, a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property. to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint family property. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint family property. The Apex Court in 2006 (5) SCC 558 in the case of Anil Rishi V/s Gurbaksh Singh at para 19 which reads as under: 19. There is another aspect of the matter which should be borne in mind. A distinction exists between a burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways : (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule is Sec. 101 is inflexible. In terms of Sec. 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same. 15. The Hon'ble Apex Court has held that when a party claims that any property or an item of the property is a joint family property, burden of proving rests on the party who is asserting the same, to render a property to be joint family property, the plaintiff must prove that the family possessed some property which formed sufficient nucleus with the income of the family. With that income, the property has been acquired. 16. In light of the series of judgments of the privy council, the pleadings, evidenced and material in the present facts and circumstances of the case needs to be considered. With that income, the property has been acquired. 16. In light of the series of judgments of the privy council, the pleadings, evidenced and material in the present facts and circumstances of the case needs to be considered. It is an undisputed fact that the property bearing plot No.239 in Sy.No.72 was purchased on 27/03/1993 by way of registered sale deed for Rs.20,000.00 in the name of defendant No.2 and on purchase in the name of defendant No.2, the mutation entries were affected. It is also not in dispute that the defendant No.2 had obtained permission for construction of the building. Now as per the contention of the plaintiff, the property purchased in the name of defendant No.2 under the registered document is just a nominal sale deed and the actual consideration is paid out of the joint family funds and not out of the personal income of defendant No.2. It is also contended that the construction of the building was out of the expenses borne by all the brothers and from the joint family funds. 17. In order to substantiate their claim, the plaintiff though tried to contend that the family had means of income to acquire the said property, no documents have been produced or evidence has been adduced by the plaintiff to show that the family possessed sufficient means to acquire the said property. The plaintiff went to the extent of contending that the hotel business which was run by defendant No.2 was started out of the income of the joint family fund. Mere assertion without any material and evidence on record would not be of any help to the plaintiff. The plaintiff having failed to discharge his burden, in the present facts and circumstances of the case, in view of the specific stand taken of defendant No.2 that the said property item No.13 is acquired by defendant No.2 alone out of his hotel business in Gulbarga without the contribution of the joint family income. In support of the contention of defendant No.2, he examined the Director of M/s.Swastik Real Estate Dealers, who has specifically deposed that the purchase of the plot is by the income of defendant No.2. In support of the contention of defendant No.2, he examined the Director of M/s.Swastik Real Estate Dealers, who has specifically deposed that the purchase of the plot is by the income of defendant No.2. Though the evidence of the partner of M/s.Swastik Real Estate Dealers would not be of much consequence, it only corroborates with the evidence of defendant No.2 and the material produced by defendant No.2 in order to substantiate that the property item No.13 is purchased out of the selfacquisition. It is specifically contended that as per the evidence produced by defendant No.2 that defendant No.2 initially started his hotel business at Sedam Road and gradually increased his business with the help of financial aid. It is also not in dispute that defendant No.2 was the elder member of the family and he was helping all his brothers in terms of monetary advance and the business which he had initially started had flourished in the due course and in the year 1993, out of his self-acquisition had purchased item No.13 of the suit schedule property. Defendant No.2 has also produced Ex.D-1 which is the passbook; Ex.D-2 sale deed which stands in the name of defendant No.2; Exs.D-6 to D12 are the tax paid receipts paid by defendant No.2; Ex.D14 is the building valuation report; Exs.D-21 and D22 are the receipts of the Traders Building Construction Map for having purchased cement; Exs.D-22 to D-42 are the receipts which clearly establish the fact that the construction was carried out by defendant No.2 in item No.13 of the suit schedule property out of his own income and the hotel business was also being run in his name and the business had flourished in the due course. Though the defendant tried to put up the contention that the purchase of item No.13 and the construction of building was out of the joint family income, the plaintiff has failed to discharge his initial burden to prove that the joint family had acquired item No.13 out of the joint family funds and defendant No.2 by way oral and documentary evidence has clearly established that item No.13 has been purchased by defendant No.2 out of his individual income. 18. 18. The trial Court, considering all these aspects and considering the fact that the plaintiff has failed to prove the acquisition of item No.13 out of the joint family funds and having held that defendant No.2 purchased the property in his name out of his individual income, has arrived at a conclusion that the plaintiff has miserably failed to establish the acquisition of property out of the joint family fund. Thus, in our considered view and in view of the settled proposition of law stated supra, the point framed for consideration is answered in favour of defendant No.2 holding that the suit property is the self-acquired property of defendant No.2 purchased out of his individual income and against the plaintiff holding that the plaintiff has failed to prove that item No.13 is purchased out of the joint family funds and by the contribution by the plaintiff and all the brothers/defendants. As a result, we pass the following: ORDER (i) Appeal is hereby dismissed. (ii) The judgment and decree dtd. 07/08/2018 in O.S.No.139/2014 on the file of the III Additional Senior Civil Judge, Gulbarga is hereby confirmed. No order as to costs.