Dhundappa vs Mallikarjun And Ors
2022 Latest Caselaw 2077 Kant

                             1



          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 09TH DAY OF FEBRUARY 2022
                         PRESENT

     THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
                            AND
      THE HON'BLE MRS.JUSTICE K.S.HEMALEKHA

                 RFA NO.200133/2018

BETWEEN:

Dhundappa S/o Sidramappa Mardi,
Age: 56 years, Occ: Agriculture,
R/o Jewargi (B), Post: Jewargi,
Tq: Afzalpur, Dist: Kalaburagi-585301.
                                                 ... Appellant
(By Sri.Ajay Kumar Ashok Kumar, Advocate)

AND:
1.     Mallikarjun S/o Sidramappa Mardi,
       Age: 64 years, Occ: Govt. Teacher,
       R/o Jewargi (B), Post: Jewargi,
       Tq: Afzalpur, Dist: Kalaburagi.

2.     Shivaputrappa S/o Sidramappa Mardi,
       Age: 60 years, Occ: Running Tea Stall,
       R/o Plot No.238 in Sy.No.72 of Badepur,
       "Girija Dham", Banashankari Colony,
       Jayanagar, Opposite Nijalaingappa
       Dental College, Kalaburagi-585103.

3.     Shivanand S/o Sidramappa Mardi,
       Age: 58 years, Occ: Private Service,
                            2



     R/o Jewargi (B), Post: Jewargi,
     Tq: Afzalpur, Dist: Kalaburagi-585301.

4.   Somanath S/o Sidramappa Mardi,
     Age: 54 years, Occ: Employee in Bharat
     Earth Movers Ltd. Kolar Gold fields
     2nd type, BEML Nagar Post
     Near Railway gate, Kolar gold fields,
     Kolar-517247.

5.   Laxmibai W/o Mallinath Yergunte
     Age: 54 years, Occ: Household
     R/o: H.No.2-907/32-c
     C/o: Shantayya Swami Sandimath
     Manasa Nilaya, Pragati Colony
     Near M.B.Nagar, Kalaburagi-585103.

6.   Hanmanthraya S/o Sidramappa Mardi
     Age:50 years, Occ: Private Teacher in
     Hr. Primary School in Kharge School
     Tarfile, Kalaburagi
     R/o:Pt.No.47, Sri. Siddharth Nilaya,
     Pooja colony near NGO Colony
     Sedam Road, Kalaburagi-585103.

7.   Ansuyabi W/o Neelkanth Dhanshetty
     Age: 48 years, Occ: Household
     R/o: Nagansur, Post: Nagansur
     Tq: Akkalkot, Dist: Solapur-413216
     (Maharashtra State).

8.   Satlingappa S/o: Sidramappa Mardi
     Age: 46 years, Occ: Nandini Milk Parlour
     R/o: Pt.No.238 in Sy.No.72 of Badepur
     "Girija Dham", Banashankari Colony
     Jayanagar, Opposite Nijalingappa Dental
     College, Kalaburagi-585103.

                                          ... Respondents
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(By Smt. Neeva.M.Chimkod, Advocate for R2;
R1, R3 to R8 are served)

      This Regular First Appeal is filed under Section 96 of
the Code of Civil Procedure, praying to allowed by setting
aside the judgment and decree dated 07.08.2018 passed
in O.S.No.139/2014 by the III Addl. Senior Civil Judge
Kalaburagi, dismissing suit in respect of Item No.13 is
concerned and decree the suit even in respect of Item
No.13, in the interest of justice.

      This appeal coming on for hearing              this   day,
K.S. Hemalekha J., delivered the following:

                       JUDGMENT

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, dated 07.08.2018, 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 09.08.1991 and the

mother by name Girijabai died on 16.06.2012. 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 dated 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 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/- from the year 1991

to 2004 and also helped defendant No.3 to the extent

of Rs.55,650/- 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. 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. 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. 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.

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, 1/4th of a 6/16th share in the Radhakrishna Rice Mills, outstandings valued at Rule 3,500, gold articles worth Rs. 446 and some utensils worth Rs. 70. The whole property was stated to be worth Rs. 7,220. 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, 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 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. 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 v. Ujamlal Hargovandas [1937] Bom. 708, Venkataramayya v. Seshamma [1937] Mad. 1012, Vythianatha v. 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. 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 self-

acquisitions 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.

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 Section 101 is inflexible. In terms of Section 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. 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/- 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. 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 self-

acquisition. 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. 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 dated

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.

Sd/-

JUDGE

Sd/-

JUDGE

S*