Research › Search › Judgment

Karnataka High Court · body

2023 DIGILAW 1172 (KAR)

Gourawwa v. Kadappa

2023-10-05

ANANT RAMANATH HEGDE

body2023
JUDGMENT : Mr. Anant Ramanath Hegde, J. - Preliminary decree for partition and separate possession is granted holding that plaintiffs No.1 to 5 have 1/6th share each in the suit schedule properties and a decree is also passed against defendant No.3 to render the accounts of Item No.13 property from the year 1994. Cost of the suit is also awarded in favour of the plaintiffs. 2. The First appellate Court confirmed the said judgment and decree, by dismissing in R.A.No.66/2009 on the file of Fast Track Court at Jamkhandi filed by defendants No.1 to 13. The cross-appeal No.99/2009 filed by defendants No.15 and 16 the purchasers of Item No.14 property is also dismissed. Hence, there are two regular second appeals before this Court. RSA No.5898/2010 is by the defendants No.1 to 13 and RSA No.5048/2011 is by defendants No.15 and 16. 3. Both these appeals were admitted on 07.06.2016 to consider the following substantial questions of law: "Whether the judgment and decree passed by the lower Appellate Court is in conformity with Order 41, Rule 30 of Code of Civil Procedure?" 4. The genealogy of the parties is admitted which is as under: 5. Brief facts: 5.1 One Shivappa Hoskoti was the propositus. His first wife Basalingawwa died in 1946. Shivappa Hoskoti had four sons from first wife namely, Gangappa, Irappa, Shrimantapp and Chandrashekhar who are defendants No.1 to 4 in the suit. 5.2 After the demise of the first wife the propositus married second wife Bourawwa. Second wife died on 15.12.1994. From the second wife the propositus Shivappa Hoskoti had four sons namely, Balappa, Basavaraj, Ningappa and Ramesh and four daughters namely, Kalawwa, Mahadevi, Suggaladevi and Kasturi. These children from second wife are arrayed as defendants No.5 to 12. The propositus died in 1980. 5.3 The suit is filed by wife and children of elder son from second wife on the premise that all the properties are ancestral properties and there is no partition in the family after the death of the propositus. Thus, the plaintiffs claimed 1/6th share in the suit schedule properties. The suit is resisted by defendants No.2 to 4 by filing one set of written statement. The suit is also resisted by legal representatives of defendant No.1 Additional written statement is also filed pursuant to the amended plaint. Thus, the plaintiffs claimed 1/6th share in the suit schedule properties. The suit is resisted by defendants No.2 to 4 by filing one set of written statement. The suit is also resisted by legal representatives of defendant No.1 Additional written statement is also filed pursuant to the amended plaint. 5.4 Defendant No.5 filed a separate written statement and defendants No.6 to 12 adopted the written statement filed by defendant No.5. Defendants No.15 and 16 contested the suit in respect of Item No.13 property which is a petrol bunk. Defendants No.13 and 14 contested the suit in respect of Sy.No.136 measuring 6 acres of land on the premise that they have purchased the property. 5.5 Defendants No.13 and 14 have not filed any appeal against the aforementioned judgment and decree. Defendants No.1 to 12 have contested the case on the premise that there is already a previous partition in the family. The defendants No.15 and 16 contested the case on the premise that the property purchased by them namely petrol bunk is the self-acquired property of their vendors. 5.6 The trial Court rejected the contention of the defendants and has held that previous partition is not established. In the appeal filed by defendants No.1 to 13 and also in the cross-objection filed by defendants No.15 and 16, the First Appellate Court by dismissing the appeal as well as the cross-objection has accepted the finding of the trial Court and dismissed the appeal and cross-appeal. 6. The learned counsel for the appellants would contend that the petrol bunk i.e. Item No.13 property purchased by defendants No.15 and 16 under registered sale deed of the year 1998 from defendants No.3 and 4 cannot be a subject matter of partition. It is his contention that the said property belonged to the partnership firm. It is urged that defendants No.3 and 4 were the partners of a firm by name B.G.Hosakote and the firm owned the property and the petrol bunk is purchased by defendants No.15 and 16. Hence, the suit for partition in respect of the said property is not maintainable. 7. The learned counsel appearing for defendants No.1 to 5 submits that except Item Nos.1 to 5 of the suit schedule, all the other properties are self acquired properties of defendants 1 to 4 and Item No.1 to 5 are the only joint family properties. 8. Hence, the suit for partition in respect of the said property is not maintainable. 7. The learned counsel appearing for defendants No.1 to 5 submits that except Item Nos.1 to 5 of the suit schedule, all the other properties are self acquired properties of defendants 1 to 4 and Item No.1 to 5 are the only joint family properties. 8. On 07.06.2016, this Court had admitted the appeals to answer to following substantial question of law: "Whether the judgment and decree passed by the Lower Appellate Court is in conformity with Order 41, Rule 30 CPC?" 9. After hearing the learned counsel for the appellants and the respondents, this Court is of the view that one more substantial question of law is to be framed as under: "Whether item No.6 to 13 properties are the self-acquired properties of the appellants?" 10. After framing the additional substantial question of law, the parties addressed the arguments on both substantial questions of law. 11. In this case, the admitted fact is that item Nos.1, to 5 properties are the ancestral properties. Out of those five properties, CTS No.1248/B at item No.1 property also comprises a shop. Rest all residential houses. The suit is filed on the premise that item Nos.6 to 13 properties are acquired from the income of the ancestral properties of Item Nos.1 to 5. 12. This claim is made by the children of Balappa and wife of Balappa. It is relevant to note that Balappa is one of the sons of Bourawwa - the second wife of Shivappa. The claim is made against the children of the first wife of Shivappa. Though Balappa is the son of the second wife, and suit is filed by his wife and sons, the remaining sons of second wife did not support the case of the plaintiffs. On the other hand, they have supported the children from the first wife. It is also interesting to note that Balappa, the son of the second wife and husband of plaintiff No.1 and father of plaintiffs 2 to 5 did not support the plaintiffs. He supported the children from the first wife. Defendants 5 to 12 the children from second wife have taken a defence which is against their own interest. Hence, the defence assumes much importance. 13. Under Hindu Law, the principles relating to self-acquisition and jointly family acquisition are well settled. He supported the children from the first wife. Defendants 5 to 12 the children from second wife have taken a defence which is against their own interest. Hence, the defence assumes much importance. 13. Under Hindu Law, the principles relating to self-acquisition and jointly family acquisition are well settled. Merely because the family is joint, there is no presumption that the joint family owns the joint family properties. However, there is a presumption relating to the jointness of the family. It is also well settled principle that the property standing in the name of the individual member of the family, is initially presumed to be the self-acquired property the said individual. The presumption is of course rebuttable. The burden is on the person who asserts that the property is a joint family property. Thus, the burden is on the plaintiffs to establish that the properties at Sl.Nos.6 to 13 were purchased from the joint family income i.e. income from item Nos.1 to 5 properties. 14. It is also well settled principle of law that mere possession of joint family property is not enough to hold that subsequent purchases in the name of a member of a joint family are the acquisitions from the nucleus of the joint family property. It is necessary to plead and prove that the joint family did possess the joint family property and the income from the said property was surplus enough to acquire new properties. 15. On perusal of the averments made in the plaint and the evidence led before the trial Court, this Court is not in a position to hold that the properties at Sl.Nos.6 to 13 are the properties acquired from the income of the properties at Sl.Nos.1 to 5 and it is also relevant to note that item Nos.2 to 5 properties are only the residential houses and there is nothing on record to hold that those properties yielded income. 16. As far as item No.1 is concerned, it is stated that the property is a residential house with a grocery shop. Nothing is pleaded as to the income from the grocery shop. Nothing is brought on record to show that the income from the grocery shop was surplus after meeting the expenses of the family and said surplus was utilized to purchase the remaining suit schedule properties. 17. Nothing is pleaded as to the income from the grocery shop. Nothing is brought on record to show that the income from the grocery shop was surplus after meeting the expenses of the family and said surplus was utilized to purchase the remaining suit schedule properties. 17. As already noticed, the father of plaintiffs 2 to 5 and husband of plaintiff no.1 viz.,Balappa himself has not supported the case of the plaintiffs and so also the remaining children of second wife. On the other hand, they have supported defendants 1 to 4, which in fact is against their own interest. It is not the case of the plaintiffs that defendants 5 to 12 have colluded with defendants 1 to 4. The sale deeds at Exs.D1 to D5, Ex.D.128 - the lease deed at Ex.D.6 clearly reveal that the properties are the self-acquired properties of defendants 1 to 4. 18. For the aforementioned reasons, this Court is of the view that the appellants have established that item Nos.6 to 13 properties are the self acquired properties and both the Courts erred in holding that the properties are the joint family properties. 19. The item Nos.1 to 5 properties are the joint family properties and plaintiffs are entitled to a share in the said properties in the share allottable to defendant No.5. Defendant No.5 is entitled to 1/12th share in item No.1 to 5 properties and plaintiffs are entitled to share in 1/12th share of 5th defendant. 20. The substantial question of law framed on 07.06.2016 does not arise for consideration and the substantial question of law framed today is answered in favour of the appellants. 21. Hence, the following: ORDER i. Appeals are allowed in part. ii. The impugned judgment and decree dated 19.03.2009 passed by the Principal Civil Judge Senior Civil Judge Jamakhandi in O.S.2/1995 are set-aside and the judgment and decree dated 30.06.2010 in R.A. No.66/2009 and Cross-Appeal No.99/2009 on the file of the Fast Track Court, Jamkhandi are set aside. iii. The suit of the plaintiffs is decreed in part granting 1/60th share in item No 1 to 5 of suit properties in favour of each of the plaintiffs. iv. The suit in respect of all other suit schedule properties is dismissed.