Research › Search › Judgment

Karnataka High Court · body

2025 DIGILAW 954 (KAR)

Gangimalavva, W/o. Gundappa Gonded @ Hebbal v. Devakka, W/o. Parasappa Mundawad

2025-11-04

B.MURALIDHARA PAI, R.DEVDAS

body2025
JUDGMENT : R.DEVDAS, J. 1. This regular first appeal is filed under Section 96 of the Code of Civil Procedure by the plaintiff whose suit for partition and separate possession was dismissed by the trial Court. 2. For the sake of convenience, the parties shall be referred to in terms of their ranking before the trial Court. 3. The plaintiff Smt. Gangi Mallavva contended that the prepositus of the joint family were Sri Bhimappa and his wife Hanumavva. They had six children. However since the first daughter Smt.Savantravva and her husband Sri Adiveppa died issueless and the first son Sri Tippanna was given on adoption during his childhood and went out to the family, the dispute remains between four of the children and their family members. It is enough to say that claim remains with four branches of the family, namely, Gangavva, Ningappa, Neelavva and Gundappa. The plaintiff is the wife of Gundappa. It is another matter that the plaintiff is also a daughter of Gangavva. The suit schedule property is agricultural land measuring 10 acres 14 guntas in Sy. No. 57/2/1 situated at Siranahalli village, Mundaragi Taluka, Gadag District. After the demise of Sri Bhimappa, the prepositus, his widow Smt. Hanumavva purchased the suit schedule property in the name of one of her sons Ningappa, under registered sale deed dated 05.03.1968, for a sum of Rs.7,000/-. Smt. Hanumavva died on 03.08.1979 and Sri Ningappa, in whose name the suit schedule property was purchased, also died on 16.01.1987. After his demise, his sons Koteppa (defendant No.4) and Sri Goneppa (defendant No.5) got the khata mutated in their name under Mutation Order bearing M.R. No. 20/2010-11. The suit was filed in the year 2019 seeking partition and separate possession of 1/4 th share on the ground that the suit schedule property belongs to the joint family and there being four branches, the suit schedule property has to be divided into four shares. It was contended by the plaintiff that when admittedly Sri Ningappa was only 12 years old when the property was purchased in his name, the children of Ningappa cannot contend that the suit schedule property is the self acquired property of Sri Ningappa. It was contended that Smt. Hanumavva who was the head of the family after the demise of her husband, purchased the suit schedule property from out of the funds belonging to the joint family. It was contended that Smt. Hanumavva who was the head of the family after the demise of her husband, purchased the suit schedule property from out of the funds belonging to the joint family. It was contended that Smt. Hanumavva had no separate source of income. 4. On the contrary, the suit was contested by defendants No.3 to 5, namely, the wife and two sons of Sri Ningappa. The daughter of Sri Ningappa, namely, Gangavva, defendant No.6 did not contest the matter. Similarly, defendants No.1 and 2, the other children of Gangavva (also sister and brother of the plaintiff) did not contest the suit. Similarly, Smt. Neelavva, defendant No.7, one of the daughters of Bhimappa and Hanumavva, did not contest the suit. Written Statement was filed at the hands of defendants No.3 to 5 contending that although the suit schedule property was purchased in the name of Sri Ningappa, when he was a minor, nevertheless since Hanumavva did not seek such declaration that she is the owner of the property and since the other children of Hanumavva also did not claim any share in the suit schedule property, and since Ningappa, during his lifetime enjoyed the suit schedule property to the exclusion of all the other members of the family and since the revenue entries always stood in the name of Sri Ningappa and thereafter transferred the khatha in the name of his two sons, the suit schedule property is the self acquired property of Sri Ningappa and therefore the same is not available for partition. 5. Based on the pleadings of the parties, the following issues were framed by the trial Court. ISSUES 1. Whether the plaintiff proves that, she is the member of Hindu Undivided family and the suit schedule property is their ancestral and joint family property and available for partition? uit schedule property is the self acquired property of husband of defendant No.3 and father of defendants No.4 to 6? 3. Whether the plaintiff is entitled for the share as claimed in plaint? 4. What order or decree? 6. The trial Court came to the conclusion that the plaintiff failed to prove that the suit schedule property was ancestral property or joint family property purchased out of the income of the joint family. 3. Whether the plaintiff is entitled for the share as claimed in plaint? 4. What order or decree? 6. The trial Court came to the conclusion that the plaintiff failed to prove that the suit schedule property was ancestral property or joint family property purchased out of the income of the joint family. The plaintiff failed to prove that there was financial contribution by the other sons and daughters when Smt. Hanumavva purchased the suit schedule property in the name of Ningappa. The trial Court opined that on the basis of the material available on record, the defendants have proved that Hanumavva purchased the suit property with her own earnings, in the name of Ningappa. The suit was accordingly dismissed. 7. Learned counsel for the plaintiff, while placing reliance on Surendra Kumar Vs. Phoolchand & Another (1996) 2 SCC 491 , submitted that the Apex Court has held that, although no presumption lies that a family, because it is joint, possessed joint family property and therefore the person alleging the property to be joint has to establish that the family was possessed of some property with the income of which the property could have been acquired, nevertheless such a presumption is a presumption of fact which can be rebutted. The Apex Court has further held that, where it is established or admitted that the family which possessed joint property, which from its nature and relative value may have formed sufficient nucleus from which the property in question may have been acquired, the presumption arises that it was a joint family property and the burden shifts to the party alleging self acquisition to establish affirmatively that the property was acquired without the aid of the joint family. Attention of this Court was also drawn to Vinod Kumar Dhall Vs. Attention of this Court was also drawn to Vinod Kumar Dhall Vs. Dharmpal Dhall ( AIR 2018 SC 3470 ) where it was held that, “where it is not possible to obtain evidence which conclusively establishes or rebuts the allegation, the case must be dealt with on reasonable probabilities and legal inferences arising from proved or admitted facts.” In that view of the matter, it is submitted that when it is admitted that the suit schedule property was purchased by Hanumavva in the name of one of her minor children, it has to be presumed that the property was purchased from out of the joint family funds and on the other hand since the contesting defendants contended that Smt. Hanumavva purchased the property from her self acquisitions, then the burden shifts on them to prove that the property was purchased from out of the separate funds of Smt.Hanumavva. The contesting defendants having failed to prove that Smt. Hanumavva had separate funds to purchase the property, the trial Court should have accepted the contentions of the plaintiff. 8. Per contra, learned counsel for defendants No. 3 to 6 sought to support the impugned judgment and decree. It was contended that the Hon’ble Apex Court in the case of Neelam Gupta & Ors. Vs. Rajendra Kumar Gupta 2024 INSC 769 , has held that once the plaintiff proves his title over the suit schedule property, it is for the defendant resisting the same to prove to the contrary. Learned counsel therefore submitted that the trial court has rightly held that the plaintiff has failed to prove that there was ancestral property or joint family property and from out of the nucleus of the joint property income was generated and the property was purchased out of the income generated from the nucleus of the joint family. The trial Court was right in holding that Hanumavva purchased the suit property with her own earnings, in the name of Ningappa and therefore the suit property became the self acquired property of Ningappa. 9. Heard learned counsel Sri C.S. Shettar for the appellant-plaintiff and Sri Madanmohan M. Khannur for defendants No.3 to 6/respondents No. 3 to 6 and perused the appeal memo and the original records. 10. 9. Heard learned counsel Sri C.S. Shettar for the appellant-plaintiff and Sri Madanmohan M. Khannur for defendants No.3 to 6/respondents No. 3 to 6 and perused the appeal memo and the original records. 10. It is necessary to notice that the Hon’ble Supreme Court, in the case of Vinod Kumar Dhall (supra) held that “when the property was purchased by manager of the joint family in the name of the Appellant, who was then minor in the absence of material to establish that consideration of money was paid out of separate funds, it was opined that the property was rightly held to be the joint property by the Courts below”. Further, having regard to many such cases coming up before the Courts where admittedly a property is purchased by the Manager of the joint family in the name of a minor child and no conclusive evidence could be produced by the parties, it was held: “where it is not possible to obtain evidence which conclusively establishes or rebuts the allegation, the case must be dealt with on reasonable probabilities and legal inferences arising from proved or admitted facts.” 11. It was further held at paragraph No. 16 as under: “16. The burden of proof is, however not static, and may shift during the course of the evidence. Thus while the burden initially rests on the party who would fail if no evidence is led at all after the evidence is recorded, it rests upon the party against whom judgment would be given if no further evidence were adduced by either side i.e. on the evidence on record. As has been held by this Court in Kalwa Devadattam and Ors. V. The Union of India and Ors. MANU/SC/0106/1963: [1964] 3 SCR 191 that where evidence has been led by the contesting parties on the question in issue, abstract considerations of onus and out of place, and the truth of otherwise; of the case must always be adjudged on the evidence led by the parties. This will be so if the court finds that there is no difficulty in arriving at a definite conclusion. This will be so if the court finds that there is no difficulty in arriving at a definite conclusion. It is therefore necessary to weigh the evidence in this case and to decide whether, even if it was assumed that there was no conclusive evidence to establish or rebut the “benami” allegation, what would, on a careful assessment of the evidence, be a reasonable probability and a legal inference from relevant and admissible evidence.” 12. The Apex Court further considered the issue regarding benami transactions and noticed the express provision contained in Clause-A of Sub Sec. (3) of Sec. 4 of the Benami Transaction (Prohibition) Act, 1988 which reads as follows: Sec. 4 – Prohibition of the right to recover property held benemi- (1) ---- (2) ---- (3) Nothing in this Section shall apply: (a) Where the person in whose name the property is held is a coparcener in a Hindu Undivided Family and the property is held for the benefit of the coparceners in the family; or (b) Where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity. 13. It was noticed that the provisions contained in Sec.4 prohibiting the right to recover property held benami did not apply to a transaction as contained in Clause (a) and (b) of Sub Sec. (3). It was therefore held that the provisions of the Benami Transaction (Prohibition) Act, 1988 were applicable in such cases. The Apex Court also noticed the earlier judgment in the case of Vatsala Manickavasagam & Ors. Vs. N. Ganeshan & Anr. (2013) 9 SCC 152 , where it was held that where there was a tacit admission that the suit property was purchased by his father in his name for which he was not responsible, the property should be considered as joint family property. It was also held that the tax paid receipts, electricity and water bills and other documents were issued in the name of the recorded owner and therefore no benefit could have been derived from such documents. 14. It was also held that the tax paid receipts, electricity and water bills and other documents were issued in the name of the recorded owner and therefore no benefit could have been derived from such documents. 14. It should also be noticed that in the case of Surendra Kumar (supra) which was relied upon by the learned counsel for the plaintiff, it was held that where it is established or admitted that the family possessed joint property, which from its nature and relative value may have formed sufficient nucleus from which the property in question may have been acquired, the presumption arises that it was a joint property and the burden shifts to the party alleging self acquisition to establish affirmatively that the property was acquired without the aid of the joint family. 15. Having regard to the established position of law, this Court finds that there is no denial from the defendants that Smt. Hanumavva, after the demise of her husband, purchased the suit property in the year 1968, in the name of one of her sons, Ningappa, who was aged about 12 years, at that point of time. None of the parties are able to place any material regarding the joint income of the family or the self acquisitions of Smt. Hanumavva. It is noticeable that issue No.2 castes burden on defendants No.3 to 6 to prove that the suit schedule property is the self acquired property of Ningappa. The said defendants have failed to prove that Smt. Hanumavva had separate source of income other than that of the joint family. It is therefore a right case which should be dealt on reasonable probabilities and legal inferences arising from the material available on record. No information is available regarding any other property belonging to the joint family. Bhimappa and Hanumavva had six children. However, the first daughter Savantravva having died issueless and first son Tippanna having been given on adoption, the claim is restricted to four branches. This Court is therefore of the considered opinion that the suit property cannot be limited to one branch of the family, on the ground that it is a self acquisition of Smt. Hanumavva and one minor son in whose name the property was purchased should be treated as absolute owner. If that view is taken, it would deprive the other three branches of any share in the suit schedule property. 16. If that view is taken, it would deprive the other three branches of any share in the suit schedule property. 16. Consequently, this Court proceeds to pass the following order: ORDER (1) The appeal is allowed; (2) The suit filed by the plaintiff is decreed, while declaring that the plaintiff, the widow of late Sri Gundappa Gonded is entitled for 1/4 th share in the suit schedule property. (3) The legal heirs of Smt. Gangavva, Sri Ningappa, Smt.Neelavva are also entitled for 1/4 th share each in the suit schedule property. (4) Preliminary decree shall accordingly be drawn, subject to the defendants paying the requisite Court fee. Ordered accordingly.