Dyavanna vs Puttamadamma
2022 Latest Caselaw 3836 Kant

                           1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 7TH DAY OF MARCH, 2022

                          BEFORE

           THE HON'BLE MR.JUSTICE R. NATARAJ

             R.S.A. NO.728 OF 2016 (PAR)

BETWEEN:

DYAVANNA
S/O LATE DYAVAIAH,
AGED ABOUT 65 YEARS,
HINDU, AGRICULTURIST,
R/AT BALLEKERE VILLAGE,
ARAKERE HOBLI,
SRIRANGAPATNA TALUK,
MANDYA DISTRICT-571438
                                           ...APPELLANT
(BY SRI. HARISH H.V., ADVOCATE)

AND:

1.     PUTTAMADAMMA
       W/O LATE DYAVARASAIAH,
       AGED ABOUT 53 YEARS,

2.     UMESHA
       S/O LATE DYAVARASAIAH,
       AGED ABOUT 28 YEARS,

       BOTH ARE RESIDING AT
       SIDDALINGAPURA VILLAGE,
       MYSORE TALUK-570001.

3.     PUTTEERAMMA
       W/O LATE DYAVAIAH,
       AGED ABOUT 75 YEARS,
                          2




4.   KRISHNAPPA
     S/O LATE DYAVAIAH,
     AGED ABOUT 55 YEARS,

5.   DEVARAJU
     S/O LATE DYAVAIAH,
     AGED ABOUT 41 YEARS,

6.   NAGARAJU
     S/O LATE DYAVAIAH,
     AGED ABOUT 37 YEARS,

     R-3 TO R-6 ARE R/AT
     BAILEKERE VILLAGE,
     ARAKERE HOBLI,
     SRIRANGAPATNA TALUK
     MANDYA DISTRICT-571438.

7.   SANNAMMA
     D/O LATE DYAVAIAH AND
     W/O RAMANNA,
     AGED ABOUT 55 YEARS,

8.   SAVITHRAMMA
     D/O LATE DYAVAIAH AND
     W/O RAMANNA,
     AGED ABOUT 53 YEARS,

     R-7 AND R-8 ARE RESIDING AT
     MAHADEVAPURA VILLAGE,
     KASABA HOBLI,
     SRIRANGAPATNA TALUK,
     MANDYA DISTRICT-571438.

9.   SAKAMMA
     D/O LATE DYAVAIAH AND
     W/O JAVARAIAH,
     AGED ABOUT 40 YEARS,
     R/AT ANKANAHALLI VILLAGE,
     BANNUR HOBLI,
     T.NARASIPURA TALUK,
     MYSORE DISTRICT-571124.
                                   ...RESPONDENTS
                                3




(BY SRI. P. MAHESHA, ADVOCATE FOR RESPONDENT NO.1
(THROUGH VC);
NOTICE SERVED ON RESPONDENT NOs.7 AND 8 AND
UNREPRESENTED;
VIDE ORDER DATED 17.01.2022 SERVICE OF NOTICE TO
RESPONDENT NOs.2 TO 6 AND 9 ARE HELD SUFFICIENT)

      THIS R.S.A. IS FILED UNDER SECTION 100 OF CODE OF
CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND
DECREE DATED 13.01.2016 PASSED IN RA NO.31/2011 ON THE
FILE OF THE PRL. SENIOR CIVIL JUDGE AND JMFC,
SRIRANGAPATNA, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 11.4.2011 PASSED IN OS
NO.98/2009 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN)
SRIRANGAPATNA.

     THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

This Regular Second Appeal is filed by defendant

No.2 in O.S. No.98/2009 challenging the judgment and

decree dated 11.04.2011 passed by Prl. Civil Judge

(Jr.Dn.) Srirangapatna (henceforth referred to as 'Trial

Court') partitioning the suit properties which was

confirmed by Prl. Senior Civil Judge and JMFC,

Srirangapatna (henceforth referred to as 'First Appellate

Court') in R.A. No.31/2011 in terms of the judgment and

decree dated 13.01.2016. Both the Courts held that the

plaintiffs were entitled to 11/180th share in the suit

schedule properties.

2. The parties shall henceforth be referred as

they were arrayed before the Trial Court.

3. It was claimed by the plaintiffs that

Giddayyana Dyavaiah was the propositus of a joint family

comprised of Dyavarasaiah, the husband of plaintiff No.1

and father of plaintiff No.2 as well as defendants No.2 to 9.

The plaintiffs claim that the suit schedule properties were

the ancestral and joint family properties. They contended

that Dyavarasaiah died on 27.06.1996 leaving behind the

plaintiffs and defendant No.1 as his Class-I heirs. The

request of the plaintiffs to partition joint family estate was

turned down by the defendants which compelled them to

file a suit for partition and separate possession of their

undivided share.

4. The suit was contested by defendant No.2, who

admitted the relationship. He, however, contended that he

and his parents were living separately prior to 27.06.1996,

in view of certain mis-understanding in the family. He

claimed that he was doing independent business and was

earning his livelihood without the assistance of the joint

family properties. He claimed that he had purchased the

suit property bearing Items No.3, 16 to 18, 20 and 22 out

of his own earnings by borrowing money and from financial

aid from his parents-in-law. He, therefore, claimed that

the suit in respect of the aforesaid properties be dismissed.

He also claimed his share in the joint family ancestral

properties excluding Items No.3, 16 to 18, 20 and 22.

5. Based on the above contentions, the Trial

Court framed the following issues :

i. Whether the plaintiffs prove that the suit schedule properties are ancestral and joint family properties themselves and the defendants? ii. Whether the defendant No.2 proves that the suit schedule properties i.e. item Nos.3, 16, 17, 18, 20 and 22 are the self acquired and independent properties of himself?

iii. Whether the plaintiff is entitled for the relief as sought for?

iv. What order or decree?

6. The plaintiff No.1 was examined as P.W.1, who

marked documents as Exs.P1 to P25, while the defendant

No.2 examined himself as D.W.1 and marked documents

as Exs.D1 to D17. He also examined two witnesses as

D.Ws.2 and 3.

7. Based on the oral and documentary evidence,

the Trial Court held that except the oral testimony of

D.Ws.2 and 3, the defendant No.2 did not place on record

any material to establish that he had a separate income

without the aid and assistance from the joint family

property. It also held that since the defendant No.2 had

admitted his relationship with the plaintiffs, in the absence

of any material to establish that the suit Items No.3, 16 to

18, 20 and 22 were the absolute properties of the

defendant No.2, the plaintiffs were entitled to undivided

share, and therefore, decreed the suit and declared that

the plaintiffs were entitled to 11/180th share in the suit

schedule properties.

8. Being aggrieved by the aforesaid judgment and

decree, the defendant No.2 filed an appeal insofar as it

related to the properties bearing Items No.3, 16 to 18, 20

and 22.

9. The First Appellate Court secured the records

of the Trial Court, heard the counsel for the parties and

after considering the material on record, framed points for

consideration and in terms of its judgment and decree

dated 13.01.2016 dismissed the appeal. While doing so,

the First Appellate Court rejected an application filed by

defendant No.2 under Order XLI Rule 27 of CPC.

10. Being aggrieved by the aforesaid, the present

Regular Second Appeal is filed.

11. The learned counsel for appellant / defendant

No.2 submitted that the evidence of D.Ws.2 and 3

indicated two facts, namely that the parties were residing

separately prior to 1996 and that the Items No.3, 16 to

18, 20 and 22 were purchased by the defendant No.2 out

of his own funds. He also invited the attention of the

Court to the sale deeds marked at Exs.D-1, D-2 and D-17

which indicated one of the boundaries of the property as

the property in the name of Giddayyana Dyavaiah. The

learned counsel contended that this indicated that the

defendant No.2 had treated the properties purchased by

him as his independent properties, else he would have

referred the boundaries as the properties of his father.

12. The learned counsel further submitted that the

plaintiffs had failed to establish that the properties

purchased by defendant No.2 were from the nucleus of the

joint family.

13. I have considered the contentions urged by the

learned counsel and I have perused the records of the Trial

Court and the First Appellate Court.

14. It is well settled that the properties purchased

by a Kartha in his name is deemed to be out of the joint

family nucleus, if the joint family possessed of adequate

properties that were capable to generate enough income.

15. In the case on hand, except the oral testimony

of D.Ws.2 and 3, there is no material to establish that the

defendant No.2 was doing any business and or that he had

any known source of income. The defendant No.2 did not

make any effort to establish that the members of the

family were residing separately prior to the year 1996.

Even if that is accepted, that does not dispel the

presumption that the properties purchased by defendant

No.2 were impressed with the seal of the joint family since

the joint family possessed of adequate properties. It was

not the case of defendant No.2 that the ancestral

properties were not capable of generating any income. It

is also not in dispute that the defendant No.2 was the

kartha of the joint family and Items No.3, 16 to 18, 20 and

22 were purchased in his name.

16. Further the attempt made by the defendant

No.2 before the First Appellate Court to furnish additional

documentary evidence were not relevant for the purpose

of deciding the case since those documents did not

establish the independent income of the defendant No.2 to

purchase suit Items No.3, 16 to 18, 20 and 22.

17. In that view of the matter, the Trial Court and

the First Appellate Court have recorded a finding of fact

that the defendant No.2 was unable to establish his

independent income to purchase the properties that stood

in his name. This being the pure question of fact recorded

by the Courts based on oral and documentary evidence

this Court does not consider it appropriate to interfere with

such findings. Hence, this appeal lacks merit and the

same is dismissed.

Pending I.A., if any, does not survive for

consideration.

Sd/-

JUDGE

hnm