Karnataka High Court
Madiwallappa S/O. Gangappa ... vs Ulavavva W/O. Gurupadappa Kamati on 21 August, 2023
Bench: Anant Ramanath Byarhj
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RFA No. 4043 of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 21ST DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 4043 OF 2012
BETWEEN:
1. MADIWALAPPA S/O. GANGAPPA KAMATI
SINCE DECEASED BY HIS LRS
1.A NEELAWWA W/O MADIWALAPPA KAMATI
AGE: 75 YEARS, OCC: HOUSEHOLD,
R/O: KAMATI ONI, KAMALAPUR,
DHARWAD.
1.B BASAVENAPPA S/O MADIWALAPPA KAMATI
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O: KAMATI ONI, KAMALAPUR,
DHARWAD.
1.C MURIGEPPA S/O MADIWALAPPA KAMATI
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: KAMATI ONI, KAMALAPUR,
DHARWAD.
Digitally
1.D SMT. BASAWWA W/O BASAPPA HONGAL
signed by
GIRIJA A
GIRIJA A BYAHATTI
AGE: 68 YEARS, OCC: HOUSEHOLD,
BYAHATTI Date:
2023.08.23
14:43:03 -
R/O: KAMATI ONI, KAMALAPUR,
0700
DHARWAD.
1.E SMT. MAHADEVI W/O NANDEPPA BHAVIKATTI
AGE: 58 YEARS, OCC: HOUSEHOLD,
R/O: MANASINAKAI ONI,
DHARWAD.
1.F SMT. SUMITRA W/O IRAPPA BADAD
AGE: 54 YEARS, OCC: HOUSEHOLD,
R/O: KAMATI ONI, KAMALAPUR,
DHARWAD.
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RFA No. 4043 of 2012
1.G SMT. SHANTAWWA W/O CHANDARAPPA
GANGANNAVAR, AGE: 53 YEARS,
OCC: HOUSEHOLD, R/O: 3RD CROSS,
MALAPUR BUS STOP, MALAPUR,
DHARWAD.
1.H SMT. KASTURI W/O SHIVANAND RAMANNAVAR
AGE: 52 YEARS, OCC: HOUSEHOLD,
R/O: KAMATI ONI, KAMALAPUR,
DHARWAD.
...APPELLANTS
(BY SRI. B.S.KAMATE, ADVOCATE)
AND:
1. ULAVAVVA W/O GURUPADAPPA KAMATI
AGE: MAJOR, OCC: AGRICULTURE,
R/O: KAMATI ONI, KAMALAPUR,
DHARWAD-580001.
2. SMT. SHIVAKKA W/O SHIVAPPA KAMATI
AGE: MAJOR, OCC: AGRICULTURE,
R/O: KAMATI ONI, KAMALAPUR,
DHARWAD-580001.
3. NAGAPPA S/O GURUPADAPPA KAMATI
AGE: MAJOR, OCC: AGRICULTURE,
R/O: KAMATI ONI, KAMALAPUR,
DHARWAD-580001.
...RESPONDENTS
(BY SRI. J.K.PURANIK AND SRI. MAHESH B PATIL, ADVOCATES
FOR R1 TO R3)
THIS RFA IS FILED UNDER SEC.96 R/W. ORDER XLI, RULE 1
OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 27.01.2012 PASSED BY THE HON'BLE ADDL. CIVIL JUDGE
(SR.DN.), BADAMI IN O.S.NO.124/2008 AND ETC., IN THE
INTEREST OF JUSTICE.
THIS APPEAL, COMING ON FOR FURTHER HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RFA No. 4043 of 2012
JUDGMENT
1. This appeal under Section 96 of the Code of Civil
Procedure, is filed challenging the judgment and
decree passed in O.S.No.124/2008, on the file of the I
Addl. Senior Civil Judge, Dharwad.
2. The defendant is in appeal aggrieved by the decree for
partition and separate possession, wherein 1/2 share
is declared in favour of the plaintiffs in respect of suit
'A' to 'D' schedule properties. The trial Court has
rejected the defence of the defendant, who claimed
suit 'A' and 'D' schedule properties are self acquired
properties.
3. The brief facts necessary for adjudication of the case
can be summarized as under:
3.1. One Gangappa Kamati was the propositus, who
died on 11.10.1991, as per the death certificate
produced at Ex.D12. He had two sons namely,
Madiwalappa and Gurupadappa.
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RFA No. 4043 of 2012
3.2. The second son Gurupadappa predeceased his
father Gangappa, as he died on 21.06.1984.
3.3. Gurupadappa, the second son is survived by his
wife Ulavavva and two children by name
Shivakka and Nagappa.
3.4. All the three Class-I heirs of Gurupadappa,
named above, filed a suit for partition against
Gurupadappa's brother Madiwalappa.
3.5. It is the specific contention of the plaintiffs that
all the properties are the joint family properties
and it is further averred that, suit 'A' and 'C'
schedule properties are ancestral properties and
suit 'B' and 'D' schedule properties are the
properties jointly acquired with the aid of the
joint family fund.
3.6. This claim was seriously contested by the
defendant. Defendant admitted that, suit 'A'
and 'C' schedule properties are the ancestral
properties. However, took a specific defence
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that, suit 'B' and 'D' schedule properties are self
acquired properties.
3.7. Defendant in the written statement has taken a
defence that, property bearing survey
No.31/1+2+3+4 was purchased in the name of
defendant Madiwalappa and his father-in-law
Nagappa, by paying a consideration amount of
Rs.30,000/- under the registered sale deed
dated 13.04.1973. It is further stated that, on
26.12.1974, defendant and his father-in-law,
have purchased property bearing survey
No.31/1+2+3+4/B, for a consideration amount
of Rs.48,000/-. It is further pleaded by the
defendant that, on 30.07.1974, he has
purchased suit 'D' schedule property for a
consideration of Rs.3,000/-.
3.8. The defendant further contends that, on
01.07.1980, there was a partition between
himself and his father-in-law in respect of the
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RFA No. 4043 of 2012
properties which they had acquired jointly and
it is his case that, in the said partition, the
property measuring 6 acres 14 guntas in
Survey No.31/1+2+3+4/A was allotted to his
share.
3.9. The defendant has taken a further stand that,
his father-in-law has contributed to purchase
the suit 'B' schedule property and it is also his
case that, he was not taking any income from
the ancestral properties as he was driven out by
his father and he had taken certain property on
lease from DW2, who was the owner of the land
and from the income derived from the said
leased land, he has purchased the property with
the aid of contribution made by his father-in-
law.
4. Heard Sri. B. S. Kamate, learned counsel appearing
for the appellant. None appeared for the respondents.
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RFA No. 4043 of 2012
5. Sri. B. S. Kamate, learned counsel appearing for the
appellants would contend that;
5.1. The trial Court has completely ignored the
material evidence placed before the trial Court
to show that the defendant has purchased suit
'B' and 'D' schedule properties from his income
and contribution from his father-in-law and
there is no contribution from whatsoever from
the joint family.
5.2. The defendant has produced the sale deed as
well as the mutation effecting the division of
properties between himself and his father-in-
law and has also examined the owner of the
land, who had leased the property in favour of
defendant.
5.3. The defendant has also examined other
witnesses to substantiate his contention,
relating to self acquisition and evidence led are
ignored by the trial Court.
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6. This Court has considered the contentions raised at
the bar and also perused the impugned judgment and
decree.
7. The following point arises for consideration:
i. Whether the plaintiffs have established that
suit 'B' and 'D' schedule properties are the
joint family properties?
8. It is well settled principle of law that the property
standing in the name of an individual is presumed to
be the self acquired property. The presumption is of
course rebuttable. The burden is on the person, who
asserts that the property is the joint family property.
Admittedly, suit 'B' and 'D' schedule properties are
standing in the name of the defendant. Burden is on
the plaintiff to establish that these properties are
acquired from the joint family nucleus. The defendant
has produced the evidence to show that the suit 'B'
schedule property was earlier acquired jointly in the
name of his father-in-law and himself and he has also
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produced the documentary evidence to prove the
partition between himself and his father-in-law,
wherein suit 'B' schedule property is allotted to the
share of the defendant. It is also pertinent to note
that the plaintiffs have not adduced any evidence to
show that the there is contribution from the joint
family or the defendant has utilized the joint family
income to acquire the properties.
9. Sri. B. S. Kamate, learned counsel appearing for the
appellant, elaborating his arguments has invited the
attention of this Court to the cross-examination of
PW1 (plaintiff No.1).
10. In the cross-examination, PW1 (plaintiff No.1) has
admitted that her husband has died in the year 1984
and after the death of her husband in the year 1984,
her father-in-law i.e., her husband's father, died. It is
further admitted by PW1 that, her husband and her
husband's father resided together; and it is also
admitted by her that defendant started residing
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separately one year after the marriage of plaintiff
No.1; and it is further stated that suit 'A' schedule
properties were cultivated by the husband of the
plaintiff No.1 and his father-in-law. It is also stated
by PW1 in her cross-examination that, defendant was
cultivating the others' properties as tenant. Though
plaintiff No.1 has also stated that her husband was
also cultivating the properties along with his brother,
this statement is not supported by any evidence.
11. On appreciation of this evidence, it is apparent that
the defendant was residing separately from his father
as well as his brother. It is also forthcoming from the
cross-examination of PW1 that, the husband of
plaintiff No.1 and her father-in-law were living
together and defendant was residing separately.
12. This being the position, this Court is of the view that
the burden, which is cast on the plaintiffs to show that
the properties are acquired from the joint family
nucleus, is not established. On the other hand, sale
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deeds executed in the name of the defendant and his
father-in-law and subsequent partition between the
defendant and his father-in-law would demonstrate
the properties were purchased by the defendant.
13. As far as suit 'D' schedule property is concerned, the
sale deed would again reveal that the property was
exclusively purchased in the name of the defendant.
Both the sale deeds pertaining to suit 'B' and 'D'
schedule properties are marked at Exs.D1 and D2.
Ex.D7 which is the copy of mutation entry No.44
pertaining to the partition would also reveal that the
defendant and his father-in-law effected partition in
the year 1980.
14. Hence, this Court is of the view that the defendant has
established the fact that the properties at suit 'B' and
'D' schedule properties are his self-acquired properties
and the plaintiffs have not rebutted the presumption
of self acquisition in favour of the defendant.
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15. Referring to the age of the defendant and by some
inference, the trial Court has come to the conclusion
that the defendant has purchased the properties when
he was in joint family. However, the trial Court has
completely ignored the crucial evidence of PW1
referred to above and also the registered sale deeds in
favour of the defendant. The inference drawn by the
trial Court to hold that the defendant was residing
with the plaintiffs when the properties were purchased
is not based on credible evidence. It based on the
surmises an conjectures with reference to the age of
the parties.
16. This being the position, this Court is of the view that
the finding of the trial Court that all the properties are
the joint family properties has to be set aside and
accordingly the same is set aside.
17. Hence the following:
ORDER
i. The appeal is allowed in part.
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RFA No. 4043 of 2012
ii. The judgment and decree dated 27.01.2012
passed in O.S.No.124/2008 on the file of the I
Addl. Senior Civil Judge, Dharwad, are set aside.
iii. Suit of the plaintiffs is decreed in part, in respect
of suit 'A' and 'C' schedule properties, granting 1/2
share in favour of the plaintiffs.
iv. Under the peculiar circumstances of this case,
there is no order as to costs.
Sd/-
JUDGE
gab
CT-PA
