Karnataka High Court
Shridhar S/O. Narayan Hege vs Devaru Narayan Hegde on 23 May, 2022
Bench: Ravi V.Hosmanipresided Byrvhj
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 23 R D DAY OF MAY, 2022
BEFORE
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
R.F.A.NO.4008/2012 (PAR)
BETWEEN
1 . SHRIDHAR S/O. NARAYAN HEGE,
AGE: 42 YEARS,
R/O. HIREHADDA,
SHIVALMANE GRAM,
TQ: SIDDAPUR, DI ST: KARWAR.
2 . RAVISH NARAYAN HEGDE,
AGE: 36 YEARS,
OCC: RYOT ,
R/O. HIREHADDA,
SHIVALMANE GRAM,
TQ: SIDDAPUR, DI ST: KARWAR.
3 . JANAKI KOM PARAMESHWAR BHAT ,
AGE: 60 YEARS,
OCC: HOUSEHOLD WORK,
R/O. HOST OR,TQ: SIDDAPUR,
DIST: KARWAR.
4 . VIMALA KOM BHASKAR HEGDE,
AGE: 55 YEARS,
OCC: HOUSEHOLD WORK,
R/O. MUTTALLI URATOT,
TQ: SIDDAPUR, DI ST: KARWAR.
5 . NETRAVATI NARAYAN HEGDE
AGE: 49 YEARS,
R/O. NESAR S.N. NAGAR,
SAGAR, DIST: SHI MOGGA.
6 . YAMUNA KOM INDUDHAR GOUDAR
AGE: 47 YEARS,
2
OCC: TEACHER,
R/O. NEAR MALLIK AUTO CENTRE,
SAGAR, DIST:SHI MOGGA.
7 . LALITA SUBRAY HEGDE,
AGE: 44 YEARS,
OCC: TEACHER,
R/O. SHREE RAKSHA,
VIJAYANAGAR,
I BADAVANE, SAGAR, SHIMOGGA.
8 . SHARADA KRISHNA HEGDE,
AGE: 39 YEARS,
OCC: HOUSEHOLD WORK,
R/O. MELINA ONIK ERI,
JADIMANE, TQ:JADIMANE,
SIRSI, UTTAR KANNADA.
...APPELLANTS
(BY SRI. SHRIKANT T PATIL AND
SRI .VENKATESH M KHARVI , ADVS.)
AND
1 . DEVARU NARAYAN HEGDE
AGE: 57 YEARS,
OCC: AGRICULT URE,
R/O. HIREHADDE,
SHIVALMANE,
SIDDAPUR,
DIST: KARWAR.
2 . THE STATE BANK OF INDIA
REPTED. BY ITS SENIOR MANAGER,
SIRSI BRANCH, SI RSI.
...RESPONDENTS
(BY SRI SACHIN C KULKARNI , ADV. FOR R1;
SRI V.A.BYAT NAL AND SRI SATI SH U JOG, ADVOCATES
FOR R2)
THIS RFA IS FILED U/O 41 RULE 1 R/W SEC.96 OF
CPC., AGAINST THE JUDGMENT AND DECREE DTD
26.10.2011 PASSED IN O.S.NO.26/2009 ON THE FI LE OF
THE SENIOR CIVI L JUDGE SIRSI, PARTLY DECREEING THE
3
SUIT FILED FOR DECLARATION, PARTITION AND
POSSESSI ON.
THIS RFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 05.04.2022, THI S DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
Challenging judgment and decree dated
26.10.2011 passed by Senior Civil Judge, Sirsi (for
short, "trial court") in O.S. no. 26/2009 , partly
decreeing suit filed for declaration, partition and
possession, this Regular First Appeal is filed by
plaintiffs.
2. Though this appeal is listed for admission,
with consent of learned counsel for parties, it is taken
up for final disposal.
3. Appellants herein were plaintiffs no.1 to 8
in suit, while respondents no.1 and 2 herein were
defendants no.1 and 2. For sake of convenience,
parties to this appeal are referred to as per their
ranks in suit.
4. O.S.No.26/2009 was filed by plaintiffs
seeking for declaration that item no.10 of suit
properties was joint family property of plaintiffs and
defendants and raising of loan on security of said
property by defendant no.2 as illegal, void and not
binding on plaintiffs and also for relief of partition
and separate possession of plaintiffs' 8/9 t h share by
metes and bounds in following properties:
zÁªÁ¹Û U À ¼ À ªÀ t ð£É : ¹zÁÝ¥À Ä gÀ vÁ®Æè P À ²ªÀ ¼ À ª À Ä £É UÁæ ª À Ä zÀ D¹Û U À ¼ À Ä
D.£À A . ¸À . £À A . PÉ ë à vÀ æ DPÁgÀ ZÀ v À Ä ðUÀ r
1. 27 0-5-0 2.70 ªÉ Ê ªÁn UÀ r
2. 29/1.7 0-39-0 26.09 ¸À ª É ð UÀ r
3. 31 1-8-0 27.71 ¸À ª É ð UÀ r
0-1-6
4. 34/1 R 0-0-8 ¸ÁªÀ Ä ÈPÀ 0.44 ªÉ Ê ªÁn UÀ r
0-0-14
0-1-6
5. 34/2 R 0-0-8 ¸ÁªÀ Ä ÈPÀ 0.44 ªÉ Ê ªÁn UÀ r
0-0-14
0-2-10
6. 34/3 R 0-1-0 0.82 ªÉ Ê ªÁn UÀ r
¥É Ê Q 0-2-3
7. 61/2 1-30-0 7.88 ªÉ Ê ªÁn UÀ r
8. 98 0-24-0 8.22 ¸À ª É ð UÀ r
9. C®è z É Ã ¤®PÀ Ä AzÀ UÁæ ª À Ä ¥À A ZÁAiÀ Ä vÀ ªÀ Ä £É £À A .15PÉ Ì M¦à z À
ªÁ¸À Û ª À å zÀ ªÀ Ä £É .
10. ²gÀ ¹ vÁ®Æè P À ²gÀ ¹ UÁæ ª À Ä zÀ ¸À . £À A .289gÀ PÉ ë à vÀ æ 2-0-12.25
¥É Ê Q 0-40- ªÀ Ä vÀ Ä Û CzÀ g À ° è g À Ä ªÀ ªÀ Ä £É F ¥À æ P ÁgÀ EgÀ Ä vÀ Û z É .
(hereinafter referred to as 'suit properties' for
short)
5. In plaint, it was stated that plaintiffs and
defendant no.1 were brothers and sisters. As there
was no prior partition between them, they constituted
undivided Hindu joint family. It was further stated
that item no.1 to 9 of suit properties were ancestral
joint family properties; whereas item no.10 was
purchased in 1982, out of income derived from joint
family properties. Though, it was purchased in name
of defendant no.1, it belonged to entire joint family.
6. It was further stated that until two years
prior to his death in 2002, father of plaintiffs and
defendant no.1 (Narayan Hegde) was Manager. Due to
his old age, eldest son - defendant no.1 began
managing family affairs thereafter. During that time,
item no.9 of suit properties was purchased on
08.05.1982, out of joint family income, in the name
of defendant no.1. Their mother Bhagirathi died in
2008. Marriage of plaintiffs no.3 to 8 was celebrated
during lifetime of their father and thereafter they
were happily residing with their husbands. Plaintiff
no.2 was cultivating suit properties no.1 to 9 along
with defendant no.1, while plaintiff no.1 was residing
in Sirsi and doing business in item no.10 of suit
properties. But, they continued to be part of joint
family.
7. Such being the case, notice issued by
defendant no.2 - Bank to defendant no. 1 came into
hands of plaintiff no.1. Upon enquiry with defendant
no.2 - Bank, he found that defendant no.1 had acted
as surety for loan taken by one Sri. Madhukar
Narayan Bhat of M/s. Mahalakshmi Crown Caps by
mortgaging item no.10 of suit properties. Upon
inquiry, he found that defendant no.1 had lent a sum
of Rs.13,00,000/- out of joint family funds to said
Madhukar Narayan Bhat for his own profit. Upon
demanding accounts of joint family, defendant no.1
was unable to give satisfactory reply. Being left with
no alternative, plaintiffs demanded partition of their
8/9 t h share. However, defendant did not respond to
same.
8. It was further stated in plaint that item
no.10 of suit properties was purchased during lifetime
of their father out of joint family funds in name of
defendant no.1 and that defendant no.1 did not have
any independent income. Only on ground that
property stood in his individual name and despite
having only undivided 1/9 t h share in said property
without having any absolute right to alienate same,
defendant no.1 had mortgaged said property in
furtherance of his self interest, acting contrary to
interests of joint family. Loan was not taken to meet
family necessity and therefore, it would not be
binding on shares of plaintiffs. Cause of action to file
suit was stated to be receipt of notice from defendant
no.2 - bank, and failure of defendant no.1 to give
joint family accounts.
9. Upon service of suit summons, defendant
no.1 did not file written statement. But defendant no.2
filed written statement denying plaint averments and
stating that suit was filed by plaintiffs and defendant
no.1 was collusive. Plaintiff cannot claim right over
item no.10 of suit property. It was further stated that
neither prima facie case nor balance of convenience lie
in favour of plaintiffs. It specifically denied that suit
properties were ancestral joint family properties and
item no.10 was purchased out of joint family income in
the name of defendant no.1. It was asserted that said
property was purchased by defendant no.1 out of his
own income and was his self-acquired property. It
however admitted that Madhukar Narayan Bhat
proprietor of M/s. Mahalakshmi Crown Caps had raised
loan from defendant no.2 - bank and that defendant
no.1 had given item no.10 of suit property as security
for said loan. All remaining plaint averments were
denied.
10. Based on pleadings, trial Court framed
following issues:
"1. Whether plaintiffs prove that suit schedule
properties including suit item no.10 are joint
family properties, 1st defendant had no
inde pendent right to mortgage the same in
favour of defendant no.2?
2. Whether plaintiffs prove that they are having
8/9 t h share in suit schedule properties?
3. Whether 2 n d defendant proves that suit item
no.10 is self-acquired property of 1 s t defendant
but he has stood as guarantor to loan of
Mahalaxmi Crown Caps?
4. Whether plaintiffs are entitled for relief
prayed?
5. What order or decree?"
11. In order to establish their case, plaintiffs
examined plaintiff no.1 as PW-1. Exhibits P.1 to P.14
were marked. On behalf of defendant no.2, one witness
was examined as DW-1 and Exhibit D.1 was marked. On
consideration, trial Court answered issues no.1, 2 and 4
partly in affirmative, issue no.3 in affirmative and issue
no.5 by decreeing suit in respect of item no.1 to 9 of
suit properties granting 1/4 t h + 1/36 t h share to
plaintiffs no.1 and 2 and granting 1/36 t h share to
plaintiffs no. 3 to 8; insofar as item no.10 of suit
property, suit was dismissed. Aggrieved thereby,
plaintiffs are in appeal.
12. Sri. Srikanth T. Patil, learned counsel for
appellants submitted that impugned judgment and
decree passed by trial Court was contrary to law,
facts of case and evidence on record. It was
contended that entire approach of trial Court was
based on an assumption that plaintiffs in collusion
with defendant no.1 were trying to dupe defendant
no.2 of public money. Therefore, there was no proper
consideration by trial Court. It was further contended
that normally there was presumption in favour of
joint family property and burden to establish self-
acquired property would lie on propounder, who in
this case had not filed written statement nor entered
witness box. Merely on assertion and evidence of
defendant no.2, it could not be held that item no.10
of suit properties was self-acquired property of
defendant no.1. Without adequate evidence to
establish that it was self-acquired property, dismissal
of suit insofar was item no.10 was not justified.
13. In support of contention that item no.10
was joint family property. It was contended that
recital in Ex.P.10-partition deed, dated 11.11.1982
effected between plaintiffs' father and his brother,
that said property was acquired by Narayan Hegde in
the name of defendant no.1 out of joint family funds.
It was submitted that ignoring said evidence, trial
Court passed impugned decree which called for
interference. A feeble submission was also made that
allotment of shares was contrary to recent
amendment to Section 6 of Hindu Succession Act.
14. On the other hand, Sri. V.A. Byatnal, and
Sri. Satish V. Jog, learned counsel for respondent
no.2, opposed appeal and supported impugned
judgment and decree. Sri. Sachin C. Kulkarni, learned
counsel for respondent no.1, however, supported
appellants.
15. Heard learned counsel, perused impugned
judgment and record.
16. From above submissions, relationship of
plaintiffs and defendant no.1 as brothers and sisters
is not in dispute. Though nature of suit properties as
joint family properties was disputed, trial Court has
held item no.1 to 9 of suit properties as joint family
properties and decreed suit insofar as said properties.
Though suit is dismissed in respect of item no.10 and
plaintiffs are in appeal challenging said finding,
defendants have not questioned decree insofar as
item no.1 to 9 of suit properties. In view of decree
attaining finality against defendants insofar as item
no.1 to 9 of suit properties, there is no dispute about
they being ancestral joint family properties and
subject matter of this appeal is confined to item
no.10 only. While plaintiffs contend that it is
purchased from out of joint family funds in the name
of defendant no.1, as he did not have any
independent income, defendant no.2 contends that it
was self-acquired property of defendant no.1 and
records stand testimony to same.
17. From above the only point that arises for
consideration is "whether dismissal of plaintiffs suit
for partition insofar as item no.10 of suit properties is
justified?"
18. Issues no.1 to 3 framed by trial Court were
pertaining to said issue. While giving its finding on
said issues, trial Court took note of contention of
plaintiffs that defendant no.1 acting contrary to
interest of joint family mortgaged item no.10 of suit
property without knowledge or permission of
plaintiffs, though it was joint family property. It also
took note of contention that as share of defendant
no.1 in item no.10 of suit property was only 1/9 t h , he
had no authority to mortgage said property in favour
of defendant no.2 and defendant no.2 had no right to
proceed against said property as it was joint family
property.
19. Trial Court also took note of contention of
defendant no.2 that suit was collusive in nature with
defendant no.1, which stood vindicated by conduct of
defendant no.1 in not even filing written statement.
It also took note of cross-examination of DW-1, by
defendant no.1 (with permission of Court) to
substantiate its observation that defendant no.1 was
colluding with plaintiffs. Referring to such conduct, it
observed that instant suit was sponsored by
defendant no.1 to avoid sale proceedings against item
no.10 of suit properties.
20. Referring to deposition of PW-1 wherein he
stated about defendant no.1 lending a sum of
Rs.13,00,000/- out of joint family friends to
Madhukar Narayan Bhat, trial Court observes that
absolutely no material was placed before trial Court
to substantiate said assertion. It observed that recital
in Ex.P.9 disclosed mortgage in favour of defendant
no.2 as security for loan of Rs.24,65,000/-.
21. Though it refers to admission by DW-1 that
item no.10 was standing in name of defendant no.1
on behalf of joint family, it observed that it was a
stray admission and as there was failure of plaintiffs
to produce relevant documents to establish that it
was joint family property, defendant no.2 was
justified in proceeding against said property for
recovery of loan granted to defendants on basis of
hypothecation of said property. Trial Court
substantiated its finding by referring to admission of
PW-1 that suit property was standing in name of
defendant no.1 after its purchase in 1982. It also
observed that partition was effected in 1982 between
Narayan Hegde and his brothers. In said partition
marked as Ex.P.10, item no.1 to 9 of suit properties
were allotted to share of Narayan Hegde. Thereafter
item no.10 of suit property was purchased on
08.05.1982 from Nandas Jayaram Shanbhag under
Ex.P.13 - registered sale deed. In Ex.P.13 there was
no recital that it was purchased in name of defendant
no.1 on behalf of joint family. Trial Court also
observed that for nearly 27 years there was no
objection by plaintiffs about it standing in name of
defendant no.1 only. Trial Court further observed that
as none of revenue records or sale deed reflected
that item no.10 was joint family property and
defendant no.2 had lent loan against security of said
property. Thereafter on the ground that defendant
no.2 had lent public money, it proceeded to hold that
item no.10 was self-acquired property of defendant
no.1 and plaintiffs were not entitled for relief insofar
as said property.
22. In the instant case, plaintiffs sought relief
of partition and separate possession of their share in
suit schedule properties on the ground that they were
joint family properties. As noted above, there is no
dispute about relationship and also nature of
properties as joint family properties insofar as item
nos.1 to 9 of suit properties. There is also no dispute
that item no.10 was purchased when Narayan Hegde -
father of plaintiffs and defendant no.1 was 'Karta'.
Admittedly, it was purchased in name of defendant
no.1. A specific plea in plaint that item no.10 was
purchased in name of defendant no.1 out of joint
family income, has not been controverted by
defendant no.1 by filing written statement. He also
did not enter witness box.
23. On the other hand, defendant no.2 - Bank
has sought to contend that item no.10 was self-
acquired property of defendant no.1. It is settled law
that there is presumption in favour of joint family
property and burden lies on person asserting it to be
self-acquired property to establish same. In the
instant case, though defendant no.2 - bank has
specifically contended that item no.10 was self-
acquired property, it has mainly relied upon
deposition of PW-1 and Ex.P.13, wherein, it is stated
that said property was purchased in individual name
of defendant no.1. No evidence is placed on record to
establish that defendant no.1 had separate income to
purchase said property. Merely on the ground that
property was allowed to be purchased in the name of
an individual and lack of protest against revenue
entries standing in individual name would not be
sufficient to upset burden.
24. Entire approach of Trial Court in casting
burden upon plaintiffs to establish that item no.10
was joint family property is contrary to law. Plaintiffs
cannot be denied their share in all joint family
properties.
25. Learned counsel for defendant no.2 has
heavily relied upon Ex.P.10 and Ex.P.13. Ex.P.10,
contains specific recital that item no.10 of suit
property was purchased by Narayan Hegde out of
joint family income in the name of his eldest son
defendant no.1 and therefore, it was assigned to
share of Narayan Hegde. Ex.P.13 is registered sale
deed dated 08.05.1982 by which item no.10 of suit
properties was purchased. Even in Ex.P.13, there is a
specific recital that when vendor intended to sell item
no.10 of suit properties, Narayan Hegde offered best
value on behalf of joint family and purchased same.
Above recitals establish that item no.10 of suit
properties were purchased out of joint family funds in
name of defendant no.1. Without addressing said
evidence, trial Court proceeded to conclude that it
was self- acquired property of defendant no.1. Same
cannot be justified especially when there is no
attempt by defendant no.1 to deny or dispute same
and in absence of effort by defendant no.2 to lead
evidence to contrary.
26. Hon'ble Supreme Court in case of Shrinivas
Krishnarao Kango v. Narayan Devji Kango,
reported in AIR 1954 SC 379, has held that where
initial burden of existence of joint family corpus was
established, burden to establish that acquisition of
any property as self-acquired property would be on
person claiming so. Ratio of said decision has been
reiterated in recent decision in case of Bhagwat
Sharan v. Purushottam, reported in (2020) 6 SCC
387. Admittedly, there is no evidence led by
defendants to establish existence of individual income
for acquisition of item no.10 of suit property. Recital
in Ex.P.13 - sale deed itself would aid plaintiffs' case
and dislodge defendants contention.
27. In instant case, apart from specific
pleading, there is specific evidence in form of recitals
in Ex.P.10 and Ex.P.13 to establish that joint family
possessed several items of joint family properties
prior to acquisition of item no.10 suit property. They
would also go to establish that it was acquired by
Narayan Hegde in name of defendant no.1 by utilizing
joint family funds. Therefore, it has to be held that
plaintiffs had discharged initial burden of establishing
existence of joint family corpus. In absence of any
evidence regarding source and quantum of income of
defendant no.1 and in light of ratio of decisions of
Hon'ble Supreme Court (supra), it has to be held that
there is no proper appreciation of evidence by trial
Court. Conclusions drawn being contrary to evidence
on record and law applicable, findings cannot be
sustained. Point for consideration is answered in
favour of appellant by holding that plaintiffs and
defendant no.1 are entitled for equal share in item
no.10 of suit property.
28. In the result, I pass following:
ORDER
Appeal is allowed. Impugned judgment and
decree dated 26.10.2011 passed by Senior Civil
Judge, Sirsi, in O.S. no. 26/2009 , dismissing suit
insofar as item no.10 of suit properties is set aside.
It is held that plaintiffs and defendant no.1 are
entitled for 1/9 t h share each in item no.10 of suit
properties.
No order as to costs.
Sd/-
JUDGE
Bv k
