Karnataka High Court
Sri Ranganatham vs Sri Subramaniam on 15 December, 2023
1
RFA NO. 1507/2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR. JUSTICE C.M.JOSHI
RFA NO. 1507/2013 (PAR)
BETWEEN:
SRI RANGANATHAM,
AGED ABOUT 53 YEARS,
S/O SRI RAMAIAH,
R/AT MARUTHI NAGAR,
YELAHANKA OLD TOWN,
BANGALORE-560 064.
...APPELLANT
(BY SRI C SHANKAR REDDY, ADVOCATE [PH])
AND:
1. SRI SUBRAMANIAM,
S/O SRI RAMAIAH,
AGED ABOUT 47 YEARS.
2. SMT. PADMAVATHY,
W/O LATE RAMACHANDRA,
AGED ABOUT 38 YEARS.
3. KUM. VARNALATHA,
D/O LATE SRI RAMACHANDRA,
AGED ABOUT 18 YEARS.
4. KUM. NITREJA,
D/O LATE RAMACHANDRA,
2
RFA NO. 1507/2013
AGED ABOUT 18 YEARS.
5. MASTER GIRISH,
S/O LATE SRI RAMACHANDRA,
AGED ABOUT 16 YEARS.
THE RESPONDENT NO. 5 BEING A MINOR
IS REP. BY HIS MOTHER AND NATURAL
GUARDIAN, THE RESPONDENT NO.3 HEREIN
RESPONDENTS 2 TO 5 ARE R/AT:
MARUTHI NAGAR, YELAHANKA TOWN,
BANGALORE NORTH, BANGALORE-64.
6. SRI RAMAKRISHNAPPA,
S/O SRI VENKATASWAMY,
AGED ABOUT 70 YEARS.
DEAD BY LEGAL
REPRESENTATIVES R7 TO 9, WHO ARE
ALREADY ON RECORD.
CAUSE TITLE CORRECTED V/O DATED
29.06.2015.
7. SMT. SIDDAMMA,
W/O SRI RAMAKRISHNAPPA,
AGED ABOUT 64 YEARS.
8. SRI MADAN MOHAN,
S/O SRI RAMAKRISHNAPPA,
AGED ABOUT 52 YEARS.
9. SRI SHIVA SHANKAR,
S/O SRI RAMAKRISHNAPPA,
AGED ABOUT 45 YEARS.
RESPONDENTS 6 TO 9 ARE
R/AT:NO 1695,
KAMAKSHAMMA LAYOUT,
YELAHANKA, BANGALORE-560 064.
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RFA NO. 1507/2013
10 . SRI SREERAMULU,
S/O SRI VENKATASWAMY
AGED ABOUT 62 YEARS.
11 . SMT. ALUVELAMMA,
W/O SREERAMULU,
AGED ABOUT 48 YEARS.
12 . SRI NANDA KUMAR,
S/O SRIRAMULU,
AGED ABOUT 30 YEARS.
RESPONDENTS 10 TO 12 ARE
R/AT: VANI VIDYA KENDRA,
KAMMAKSHAMMA LAYOUT,
YELAHANKA, BANGALORE-560 064.
13 . SMT. RAJAMMA,
W/O SRI SHANAKRAIAH,
AGED ABOUT 60 YEARS,
R/AT NO II 250-A31-16,
RAJA NAGAR,
NEERUGUTTA VARIPALLI,
MADANAPALLI TALUK,
CHITTOOR DISTRICT.
ANDHRA PRADESH.
14 . SMT. SAMPOORNA,
W/O SRI MURTHY,
AGED ABOUT 51 YEARS,
R/AT 8TH MAIN, 2ND CROSS,
VINAYAKA NAGAR,
BAGALUR ROAD,
YELAHANKA, BANGALORE.
15 . SMT. VENKATAMMA,
W/O SRI LAKSHMAIAH AND,
D/O CHOWDAIAH,
C/O SRI SATHYANARAYANA,
AGED ABOUT 90 YEARS,
NO.1757, CHOWDESHWARI LAYOUT,
4
RFA NO. 1507/2013
YELAHANKA,
BANGALORE-64.
...RESPONDENTS
(SRI S GANGADHARA AITHAL, ADVOCATE FOR C/R8 [PH];
R1 TO R4, R5, R7, R9 TO R12 SERVED;
V/O DATED 02.01.2015 NOTICE TO R13 IS HELD
SUFFICIENT;
R14 & R15 ARE SERVED;
V/O DATED 29.06.2015 R7 TO R9 ARE TREATED AS
LRS OF DECEASED R6;
SRI N.S. VISWANATHA, ADVOCATE FOR PROPSED R16 TO
R20)
THIS RFA IS FILED UNDER SECTION 96, R/W, ORDER XLI,
RULE-1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED
26.07.2013 PASSED IN O.S.25036/2007 ON THE FILE OF THE
XXVIII-ADDL. CITY CIVIL JUDGE, MAYO HALL, BENGALURU,
DISMISSING THE SUIT FOR PARTITION AND SEPARATE
POSSESSION.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND
RESERVED ON 14.09.2023, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, C.M.JOSHI J., DELIVERED THE
FOLLOWING:
JUDGMENT
Being aggrieved by the judgment and decree dated
26.07.2013 passed in O.S.25036/2007 by the learned
XXVIII- Additional City Civil Judge, Mayo Hall, Bangalore,
dismissing the suit of the plaintiffs for partition and
separate possession of the suit schedule properties, the
plaintiff No.1 has filed this appeal.
2. For the sake of convenience, the parties would be
referred to with their rankings as held by them before the
trial Court.
3. The brief facts are as below:
The plaintiffs contended that propositus of the family
of plaintiffs and defendants, Gumpu Chowdaiah, had three
sons and two daughters. Among them, plaintiffs represent
the branch of second son Ramaiah and defendants
represent the branch of first son Venkataswamy. The other
son of Chowdaiah, i.e., Subbanna died intestate and his
wife predeceased him. The daughters of Chowdaiah, got
married prior to 1956 and one among them i.e.,
Papulamma died without any issues in the year 1954. The
said Chowdaiah died in the year 1960, at Balepalli, Andhra
Pradesh. Ramaiah died in or about the year 2000 and his
wife predeceased him in the year 1978; and Venkataswamy
died in the year 1994 with his wife predeceased in the year
1978.
4. The plaintiffs contended that the defendants along
with the plaintiffs constituted a Hindu Undivided Family and
they had certain properties at Andhra Pradesh and the
family was engaged in the business/profession of weaving.
They used to sell the cloth weaved at their village by
visiting Yelahanka, Bangalore. Later some of the members
of the family migrated to Bangalore and settled there and
continued to sell the cloth. The family acquired moveable
and immoveable properties in Bangalore as well as in
Andhra Pradesh in the names of the family members for the
benefit and use of all the joint family members. However,
the properties at Andhra Pradesh were acquired, stood in
common. The plaintiffs also averred that so far as the
properties situated at Andhra Pradesh are concerned, they
have filed OS No.215/2006 in the Court of Senior Civil
Judge, Madanapalli, for partition and separate possession.
The plaint also avers that Schedule -1,3,5 and 22 to the
plaint were purchased in the name of the defendant No.1
out of the joint family funds; Schedule- 2, 25 and 27 were
acquired in the name of the wife of the defendant No.1 i.e.
the defendant No.2-Siddamma; Schedule- 9, to 13, 17 and
19 were purchased in the name of defendant No.4 who is
the second son of defendant No.1; Schedule- 4,14,15, 16,
18, 20, 23,24 and 26 were also purchased in the name of
defendant No.3, who is the first son of defendant No.1 out
of the joint family funds; Schedule-7 property was
purchased out of the joint family funds in the name of
defendant No.7, who is the son of Sreeramulu;
Schedule-6,8 and 21 were purchased in the name of
defendant No.6-Alivelamma, who is the wife of Sreeramulu
and Schedule -27 were acquired in the name of the
defendant No.2 out of the joint family funds. It is contended
that the movables mentioned in Schedule 28 and 29 were
the joint family properties. The plaint also averred that after
the death of Venkataswamy and Ramaiah, there were
misunderstanding between the plaintiffs and defendants
and the defendants started to exclude the plaintiffs to enjoy
their legitimate rights by usurping the income of the joint
family properties by themselves and also to alienate some
of the joint family properties. Therefore, the plaintiffs made
several persuasive efforts to effect a partition, which went
in vain and thereafter, the plaintiffs issued legal notice
which was not heeded to.
5. Plaintiffs also contended that the defendants have
set up a palupatti dated 02-06-1975 between Gumpu
Ramaiah and Gumpu Venkataswamy, which is a false and
fabricated document, whereby the properties at Bangalore
were allotted to Venkataswamy and properties in
Andhra Pradesh were allotted to Ramaiah. It was contended
that the said document of Palupatti is inoperative,
unenforceable against the plaintiffs and is hit by the
provisions of Registration Act as well as Karnataka Stamp
Act. Therefore, the said document is not binding on the
plaintiffs. It was alleged that the alleged partition deed
dated 25-4-1988 among the defendants was without the
consent of the plaintiffs and therefore, it is a ploy to defeat
the rights of the plaintiffs. Hence, they have sought for
partition in all the suit schedule properties.
6. On being summoned by the trial Court, the
defendants appeared and filed their written statement.
Though they admitted the relationship between the parties,
the other allegations made in the plaint were denied. They
contended that there is no such joint family or the joint
family property. It was stated that after the death of
Gumpu Chowdaiah, there was a partition and division was
effected between the sons of Chowdaiah. They contended
that after such partition, the members of the family have
acquired their individual properties out of their self
earnings. All the suit schedule properties are the self
acquired properties of these defendants and they were not
the joint family properties. They contended that some of
the properties were purchased and sold by the defendants.
They have narrated the transactions they have entered into
in respect of the schedule- 10,11,19, 20, 24, 25, 26 and 27
in detail. They also contended that there were no such
immoveable properties which were acquired out of the joint
family funds.
7. They put forth a contention that on 02-06-1975
there was a palupatti between Ramaiah and
Venkataswamy. In view of the said partition, the joint
family came to an end. Thereafter, the defendant No.1-
Ramakrishnappa and defendant No.5-Sreeramulu, entered
into a registered partition deed dated 25-4-1988. They also
contended that by palupatti dated 02-06-1975, the
properties at Andhra Pradesh were allotted to the share of
Gumpu Ramaiah as 'B' schedule properties and the
properties at Yelahanka, Bangalore were allotted to
Venkataswamy as 'A' schedule properties. They contended
that the properties allotted to the share of Ramaiah were
sold and the plaintiff No.1 was a witness for such sale deed.
Therefore, it is contended that there existed no such joint
family, much less any joint family property. On these
grounds, they sought for dismissal of the suit.
8. By way of additional written statement, they
contended that the document dated 2-6-1975 is only a
palupatti, but not a deed of partition and hence the
provisions of law regarding Registration Act and Karnataka
Stamp Act are not applicable.
9. On the basis of the above pleadings of both the
parties, the trial Court framed the following issues:
1. Whether the plaintiff proves that the suit
properties are the joint family properties liable for
partition?
2. Whether the plaintiffs are entitled for ½ share in
the suit properties?
3. Whether the defendants are liable to account for
rents and mesne profits?
4. Whether the plaintiffs prove that the palupatti
dated 2.6.75 and partition deed dated 25.4.88
are not binding on the plaintiff?
5. Whether the defendants prove that the suit
properties are their self acquired properties?
6. Whether the defendants prove that a partition was
effected between late Ramaiah and his brothers
as per palupatti dt. 2.6.75 since then there is no
joint family exists between them. Subsequently,
D1 & 5 Ramakrishnappa and Sreeramulu
partitioned the properties through partition deed
dt. 25.4.88 as enumerated in para 18 of W.S.?
7. What order or decree?
10. The trial Court after hearing both the sides and
considering the oral evidence of PW.1 to PW.3 and DW.1 to
DW.3 and documentary evidence of Exs.P1 to P19 and
Exs.D1 to 9 answered issue Nos. 1 to 4 in the negative and
issue Nos. 5 and 6 in the affirmative and finally dismissed
the suit of the plaintiffs.
11. Being aggrieved by the said judgment, plaintiff
No.1 has approached this Court in appeal.
12. On being issued with the notice by this Court,
respondent No.8/contesting respondent appeared through
his counsel; notice to respondent Nos. 1 to 5,7,9 to 12, 14
and 15 served; notice to respondent No.13 is held
sufficient.
13. During the pendency of the appeal, respondent
No.6 died and respondent Nos. 7 to 9 are treated as LRs of
deceased respondent No.6.
14. During the pendency, IA No.1/2021 is filed by the
appellant/plaintiff No.1 for impleading respondent Nos. 16
to 20, who were the purchasers of some of the suit
schedule properties from the defendants; and IA No.1/2020
for Appointment of a Receiver in order to receive the rents
from the tenants who are in possession of the suit schedule
No.2,3,5,6 and 8 properties.
15. On issuance of notice, the proposed respondent
Nos. 16 to 20 have also appeared through their counsel.
16. We have heard the arguments by both the sides.
Arguments
17. The learned counsel appearing for the
appellant/plaintiff No.1 contended that originally, the
members of family of propositus i.e., Gumpu Chowdaiah,
were the residents of Andhra Pradesh and they used to
come to Bangalore to sell the cloths weaved by them.
Therefore, Venkataswamy migrated to Bangalore and
settled at Bangalore. It is submitted that all the earnings of
the joint family business were put into common pool and
various properties were purchased out of the joint family
funds in Bangalore as well as in Andhra Pradesh. Such
purchases were made in the name of the members of the
joint family. It is submitted that the defendants started
asserting their rights in respect of the properties standing in
their name and therefore, the plaintiffs were constrained to
file the suit.
18. The learned counsel for the appellant further
submits that the alleged 'Palupatti' contended by the
defendants produced at Ex.D6 dated 02-06-1975 is an
unregistered document and therefore, it is inadmissible in
evidence. It is submitted that the said document could not
have been relied by the trial Court as it is unregistered and
sufficient stamp duty was not paid upon it. It is submitted
that it is an instrument of partition, but not a memorandum
of partition and therefore, the trial Court erred in holding
that Ex.D6 evidences an earlier partition. It is submitted
that the trial Court also erred in holding that Ex.D6 shows
the severance of the joint family status between the
plaintiffs and the defendants in the year 1975. He submits
that Exs.P1 to P5 show that plaintiffs have instituted the
suit at Madanapalli in respect of the properties situated in
Andhra Pradesh. He submits that one of the property
situated in Andhra Pradesh as mentioned in Ex.P7-
Encumbrance Certificate was sold by Venkataswamy in the
year 1985 and if at all there was a partition in the year
1975, the property was belonging to Ramaiah and there
was no reason for Venkataswamy to execute the sale deed
as if it is his own property.
19. Learned counsel for appellant also submits that
Ex.P10 which is the certified copy of sale deed shows that
defendant No.1-Ramakrishnappa has sold one of the
property which he had purchased in the year 1980 as if it is
his self acquired property. In fact, it was not a self acquired
property, but it was purchased out of the joint family funds.
It is submitted that the trial Court also erred in accepting
the evidence of DW.1, who had no personal knowledge of
the affairs of the joint family. In fact, he admits that his
mother knows better than him in respect of the joint family
and therefore, the mother of DW1 ought to have been
examined. He also submits that the trial Court has not
considered the contentions of the appellant/plaintiff No.1
that Ex.D6, the unregistered partition memo could not have
been admitted in evidence. Therefore, when the
admissibility of Ex.D6 itself is disputed, it totally erred in
relying on the same.
20. The next argument of the learned counsel for the
appellant would be that, DW.2 and DW.3, who are the
alleged witnesses to Ex.D6, have been cross-examined at
length and their evidence is not reliable. Even if their
evidence is accepted, Ex.D6 could not have been accepted
by the trial Court as it is an inadmissible document.
21. The third submission of the learned counsel for
the appellant is that, even though Ex.D6 is considered, it
was not acted upon in view of the parties possessing the
documents. He submits that one of the property situated at
Andhra Pradesh was sold by Venkataswamy though he had
no rights in the same as per his own document Ex.D6.
Therefore, he submits that the trial Court totally erred in
appreciating the evidence on record. In support his case,
learned counsel for the appellant has relied on the following
decisions;
1. Yellapu Uma Maheswari and another Vs.
Buddha Jagadheeswararao and others1;
2. Man Kaur (Dead) by LRs Vs. Hartar
Singh Sangha2;
3. Thulasidhara and another Vs
Narayanappa and others3;
4. Prataprai N. Kothari Vs. John Braganza4;
5. Iswar Bhai C. Patel alias Bachu Bhai Patel
Vs. Harihar Behera and another5;
(2015) 16 Supreme Court Cases 787;
(2010) 10 Supreme Court Cases 512;
(2019) 6 Supreme Court Cases 409;
(1999) 4 Supreme Court Cases 403;
6. Gopal Krishnaji Ketkar Vs. Mohamed Haji
Latif and others6;
7. Gangaiah and another Vs. oslaiah and
another7;
8. Mallappa Girimallappa Betgeri and
others Vs. R. Yellappagouda Patil and others8;
9. Mallesappa Bandeppa Desai and
another Vs. Desai Mallappa alias Mallesappa and
another9;
10. Baikuntha Nath Paramanik (dead) by
his LRs. and heirs Vs. Sashi Bhusan Paramanik
(dead) by his LRs and others10;
11. The State Bank of Travancore
Vs.Arvindan Kunju Panicker and others11;
12. M. Venkataramana Hebbar (Dead) by
LRs Vs. M. Rajagopal Hebbar and others12;
13. Indranarayan Vs. Roop Narayan and
another13;
14. Govindappa Vs. Anjinappa14;
AIR 1999 Supreme Court 1341;
AIR 1968 Supreme Court 1413;
1990 SCC Online Karnataka 248;
AIR 1959 Supreme Court 906;
AIR 1961 Supreme Court 1268;
AIR 1972 Supreme Court 2531;
AIR 1971 Supreme Court 996;
(2007) 6 Supreme Court Cases 401;
AIR 1971 Supreme Court 1962;
Laws (KAR) 2014 6 112 (RSA No.5239/2011 and connected matters;
15. Sita Ram Bhama Vs. Ramvatar
Bham15;
16. Smt. Lokamani and others Vs. Smt.
Mahadevamma and others16;
22. Per contra, the learned counsel appearing for the
contesting defendant/respondent No.8 submits that the suit
filed by the plaintiffs at Madanapalli in O.S.No.215/2006
has been dismissed for non-prosecution. He submits that
the Schedule- 18, 19 and 20 are to be excluded as those
properties were the properties situated at Madanapalli. He
points out Prayer No.3 in the plaint, wherein the plaintiffs
have excluded those properties from the purview of the
suit. Now the suit filed in Madanappali having been
dismissed, the present suit is not maintainable.
23. The next prong of the argument of the learned
counsel for the respondent No.8 would be that the
cross-examination of PW1 shows that after 1975, there was
severance of the joint family. He points out that the
(2018) 15 Supreme Court Cases 130;
ILR 2015 Karnataka 5095;
admissions of PW.1 are clear, cogent and elaborate.
Therefore, the severance of the status of the joint family
has been admitted by PW.1 in his cross-examination, which
corroborates with the documents produced by the
defendants at Ex.D6. He further submits that Ex.D6-
Palupatti is only an agreement and it cannot be considered
to be an 'instrument of partition'. Therefore, there was
severance of joint family status in the year 1975 and any
acquisitions made by the parties thereafter are not
amenable for partition. He points out that in the
cross-examination of PW.1 there is a categorical admission
that all the suit schedule properties, except
schedule Nos.18,19,20 which have been excluded by the
plaintiffs are acquired by the defendants after 1975.
Therefore, he submits that judgment of the trial Court is
proper and correct and there is no need for interference.
24. Therefore, the only point that arises is, whether
there was partition in the joint family in and around the
year 1975 and Ex.D6 is admissible as proof of partition?
Analysis and Conclusions:
25. It is trite law that the burden of proving that the
properties are the joint family properties is on the person
who asserts the same. Simply because there was a joint
family, it cannot be said that properties held by members
of the joint family are the joint family properties. It is also
a settled proposition of law that the severance of the status
of the joint family has to be inferred from the intention
expressed by any member of the joint family. The status of
the joint family severs when such an intention is expressed.
The acquisitions made subsequent to such severance of the
joint family cannot be subject matter of the partition unless
it is established that the usufructs of joint family properties
were used for acquisition of such properties. Therefore,
keeping in mind these cardinal principles, the evidence on
record needs to be analysed.
26. The defendants contend that there was a partition
in the year 1975. The fact that prior to 1975, plaintiffs and
defendants constituted the joint family is not in dispute.
Therefore, the severance of the status of joint family in the
year 1975 having been contended by defendants, the
burden of proving the same is on them. Therefore, it is
necessary to consider the contentions of the defendants
that there was severance of joint family status.
27. The first document relied by defendants in this
regard is Ex.D6 dated 02-06-1975. A perusal of Ex.D6
shows that it is an unregistered document and it is styled as
'Palupatti' or 'An Agreement.' The averment in Ex.D6 shows
that even though it is in Telugu, the word 'agreement' is
used in Telugu script. Therefore, evidently, the document is
titled as 'an agreement.' A perusal of contents of the said
document show that parties continued to be the members
of an Hindu Undivided Family since the time of their
ancestors and properties were enjoyed by them jointly. It
is also stated that since about six months, the members of
the joint family were not cordial for various reasons and
therefore, said Gumpu Ramaiah and Gumpu Venkataswamy
have agreed to partition the properties. It is also stated
that the elders had gathered and the properties were
divided as 'A' schedule and 'B' schedule. It was stated that
'A' schedule was allotted to Venkataswamy and 'B' schedule
was allotted to Ramaiah. The said document also mentions
that, children of Venkataswamy i.e., Ramakrishnaiah and
Sreeramulu had left Veeramreddyvaripalli about 15 years
back and they have settled at Yelahanka, Bangalore.
Therefore, properties acquired by said Ramakrishnaiah and
Sreeramulu, who are children of Venkataswamy were
allotted to the share of Venkataswamy. It was also stated
that 'B' schedule property was allotted to the share of
Gumpu Ramaiah. The properties in schedule 'B' included the
properties situated at Chittore District, Madanapalli Taluk
and Vengamvaripalli village and Punganoor Taluk,
Chavidepalli Samithi, Kanduru village. The said document
also mentions that said Venkataswamy has to pay
Rs.1,000/- towards marriage of son of Ramaiah i.e.
Ranganna (plaintiff No.1). It is stated that both the parties
agreed for the decision of the panchayatdars and they have
agreed for said agreement. It is also stated that, if
necessary, parties may get the documents registered and
have agreed for the same.
28. Obviously, the said document is an unregistered
document and it does not mention that by virtue of the said
document there was a partition. However, it categorically
mentions that it is an agreement. Moreover, payment of
Rs.1000/- was deferred to a future event. Therefore, at no
stretch of imagination it can be held that it is an instrument
of partition and through Ex.D6, there was division of the
property and there was relinquishment of the shares. The
tenor of the document does not show that by virtue of this
document, the partition was effected. The division of the
property between the parties was agreed between them. It
is also pertinent to note that details of all the properties are
not mentioned in it. It simply mentions that the properties
situated at Yelahanka, Bangalore belongs to Venkataswamy
and the properties situated at Andhra Pradesh belong to
Gumpu Ramaiah. Therefore, utmost, it can only be said that
there was severance of the joint family status. Even if we
hold that Ex.D6 is a compulsorily registerable document, it
can very well be looked onto for collateral purpose of
severance of the joint family status.
29. Further, DW.2 and DW.3 are the witnesses to
Ex.D6 dated 02-06-1975. DW2-D.Rangaiah Chetty, states
that he was present at the time of the execution of Ex.D6
and he has signed it as per Ex.D6(a). Cross-examination of
DW2 states that ever after 1975 both the brothers are
living cordially. He states that Gumpu Ramaiah was doing
cultivation of the lands, weaving and renting the bullock
cart and he states that Ramakrishnappa was doing small
tailoring job. The tenor of the cross-examination does not
show that after 1975 there was no such joint family of the
plaintiffs and the defendants, which was joint in food,
worship and business.
30. A perusal of cross-examination of DW3-
B.V.Nagaraj, who is another witness to Ex.D6 shows that an
effort was made to tarnish his testimony but he has
withstood the same. Therefore, there is nothing on record
to show that the testimony of DW.2 and DW.3 could be of
any doubt. In categorical terms, they have stated that
Ex.D6 is an agreement for partition.
31. The next aspect to be noted is regarding the
testimony of PW1-Ranganatham. A perusal of the
cross-examination of PW1 shows that since 1978 he is
working on the looms. He states that he has purchased
certain properties out of his own income. He also admits
that defendants have also purchased certain properties in
their name. He admits that they have spent their own
money to purchase the same. He also admits that he has
sold one property to Venkataswamy and Kempanna and
also to his brother. He admits that some of the suit
schedule properties have been sold and he does not know
which of them have been sold. He categorically admits that
in the year 1975 suit schedule item Nos. 1 to 7 were not in
the family. He also admits that he has sold three of the
properties and those properties are not included in the suit.
In his cross-examination dated 08-08-2011, he admits that
he had written certain letters to the defendants. He also
admits that 03 cents out of Sy.No.5/2 of Kanduru village of
Ponganur was sold by Gumpu Ramaiah on 8-3-1983 and
PW1 is also a witness to it. The said document was
confronted to him as per Ex.D2. Further, 02 guntas of land
and a house was also sold on 07-03-1985 and PW1 was a
witness to it. Another property in Sy.No.6/5 was purchased
in the year 1983 and sold in the year 1985. Those
documents are marked as Exs.D3 and D4. He also admits
that defendant Nos.3 and 4 had purchased properties at
Madanapalli and in respect of those properties, he had filed
the suit at Madanapalli Civil Judges Court. He also admits
the signatures of Venkataswamy and Gumpu Ramaiah in
Ex.D5, which is the copy of Ex.D6.
32. The above admissions of PW.1 disclose that after
1975, the plaintiffs as well as the defendants have entered
into various transactions of purchasing the property and
selling the property at Madanapalli as well as at Yelahanka
Bangalore. The acquisitions are also not in the name of the
eldest member of the family but they are in the name of the
children of Venkataswamy and the children of Gumpu
Ramaiah. Obviously, the transactions were not in the name
of Gumpu Ramaiah or Venkataswamy after the year 1975.
It is also evident that PW1 has also sold certain properties
at Madanapalli, at Andhra Pradesh and he was also a
witness to certain sale transactions made by his father
Gumpu Ramaiah. Under these circumstances, the
categorical admission of PW1 in the cross-examination and
the documentary evidence which is available show that the
parties have transacted independently, according to their
own wish and will, after the year 1975. There is absolutely
no material on record to show that the joint family of the
plaintiffs and defendants continued in food, worship and
estate. The separation also depicted as per the agreement
at Ex.D6. Under these circumstances, even if we hold that
Ex.D6 is not admissible in evidence, it can very well serve
the purpose of proof of severance of the joint family status.
The testimony of DW.2 and DW.3 would also show that the
status of the joint family severed on 02-06-1975 or prior to
it. Therefore, at no stretch of imagination it can be held
that the joint family continued after 02-06-1975.
33. There is categorical admission by plaintiff
No.1/PW1 that all the suit schedule properties were
acquired after 1975. If they were acquired after 1975,
obviously, the burden is on plaintiffs to show that
consideration amount was paid out of the joint family
nucleus. There is absolutely no material to show that the
nucleus of income derived from joint family business of
looms and the agricultural properties at Chittoor District
was applied for the purchase of the properties by the
parties. Under these circumstances, there cannot be any
doubt that the status of the joint family had severed in the
year 1975.
34. The learned counsel appearing for the appellants
placed reliance on the decision in the case of Yellapu Uma
Maheswari and another Vs. Buddha Jagadheeswararao and
others referred supra, wherein it was held that;
"Unregistered and unstamped partition deed
and a deed of relinquishment of rights in respect of
the immoveable property is not admissible in
evidence".
In the case on hand, Ex.D6 is not an instrument of
partition. But it is titled as 'agreement' and averments also
show that it is an 'agreement'. Ex.D6 does not narrate what
are all the properties in which the plaintiffs and defendants
have relinquished their respective shares. It simply
mentions that the properties at Madanappali in Andhra
Pradesh belong to the share of Gumpu Ramaiah and the
properties at Yalahanka belong to the defendants.
Therefore, this decision does not help to the plaintiff No.1.
35. The decision in the case of Man Kaur (Dead) by
LRs Vs. Hartar Singh Sangha referred supra, deals with
the proposition that "where a party to the suit does not
appear in witness box and state his own case on oath and
does not offer himself to be cross-examined by the other
side, a presumption would arise that case set up by him is
not correct".
In the case on hand, DW.1 has appeared and deposed
before the Court. Though he states that some of the facts
are better known to his mother, that admission alone
cannot be a ground to discard his testimony when the
documentary evidence like ex.D6 has been established with
the testimony of DW. 2 and DW.3. Moreover, the decision
pertains to the suit for specific performance of contract and
therefore, the facts can be very well be distinguished.
36. The learned counsel for the appellant has also
placed reliance on the decision in the case of Thulasidhara
and another Vs Narayanappa and others, referred supra,
wherein, it was held that "even unregistered document of
family settlement would operate as estoppel against parties
to such settlement and it can be used as corroborative
evidence as explaining the arrangements made
thereunder". In fact, this decision is more helpful to the
defendants than the plaintiff No.1. In the case on hand
also, the Ex.D6 acts as an estoppel against the parties.
37. Learned counsel for the appellant also relied on
the decision in the case of Iswar Bhai C. Patel alias Bachu
Bhai Patel Vs. Harihar Behera and another referred supra.
In this Judgment it was held that "when the defendant has
not entered into the witness box an adverse inference can
be drawn".
38. In the case of Gopal Krishnaji Ketkar Vs. Mohamed
Haji Latif and others referred supra, it was held that "a
party in possession of best evidence which would throw
light on the issue in controversy withholding it, the Court
ought to draw an adverse inference against him".
39. In the case of Mallappa Girimallappa Betgeri and
others Vs. R. Yellappagouda Patil and others referred
supra, it was held that, "new acquisition by Manager in his
own name and when he has no independent source of
income, the presumption arises that the acquisition was
joint family property".
In the case on hand, it is an admitted fact by the
plaintiffs that the defendants had moved to Yelahanka
Bangalore and there is absolutely no material on record
that they had used the income from the nucleus of the
family. It is also an admitted fact by the plaintiffs that
defendants have started their own business at Yelahanka.
Therefore, the decision is not of any relevance.
40. The decision in the case of Mallesappa Bandeppa
Desai and another Vs. Desai Mallappa alias Mallesappa and
another referred supra, lays down that "self acquisition of
coparcener blending the same with the joint family property
for the acquisition of the property by the Manager, such
acquirer has to prove that it was his self acquired property".
Obviously, the above decision is also not of much relevance
to the case of the appellant as it is not his case that
Venkataswamy was the manager of the family.
Similar proposition is also laid down in the case of
Baikuntha Nath Paramanik (dead) by his LRs. and heirs Vs.
Sashi Bhusan Paramanik (dead) by his LRs and others
referred supra.
41. In the decision in the case of The State Bank of
Travancore Vs. Arvindan Kunju Panicker and others
referred supra, it was held that, "a Hindu family will be
presumed to be joint unless contrary is proved". In the case
on hand, the defendants have proved that there was severance
of the status of joint family.
42. We have also gone through the decision reported
in the case of M. Venkataramana Hebbar (Dead) by LRs Vs.
M. Rajagopal Hebbar and others referred supra, wherein, it
was held that "when the parties had arrived at a family
settlement and a part of it had been acted upon, the
plaintiffs were estopped from filing the suit". It was held
that "before the Court rejects a claim for partition of the
joint family property at the instance of all the co-owners, it
must be established that there had been a partition by
metes and bounds". In the said case, the contentions were
that the property was joint despite separation in the joint
status. It is held that "the parties may continue to possess
the property jointly despite the separation, unless the
partition of joint family takes place by metes and bounds".
In the case on hand, no such instances are shown to
establish that despite the separation, there was no such
partition by metes and bounds and the enjoyment
continued to be joint.
43. The decision in the case of Indranarayan Vs.
Roopnarayan and also the decision in the case of
Govindappa Vs. Anjinappa referred supra, lay down that
"there is a strong presumption that the members of the
Hindu Joint Family are joint in case of a father and his sons
and the burden is on that member who pleads that he had
separated himself from the family. There cannot be any
qualms about the law laid down in this regard". Admittedly,
Gumpu Chowdaiah had died much prior to 1975. Therefore,
such strong presumption cannot be drawn in the present
case.
44. The decision in the case of Sita Ram Bhama Vs.
Ramvatar Bhama (supra) lays down that "registration of a
family settlement is necessary only if the terms of the
family arrangements/settlement are reduced into writing
and the document itself creates or extinguishes any rights
in the immoveable property i.e. the terms and recitals of
the family arrangement are made under the document
itself, however, a mere memorandum prepared after the
family arrangement already being made either for the
purpose of record or for information is not compulsorily
registerable". It was also held that "though unregistered
and unstamped family settlement is not admissible in
evidence, it can be used for collateral purpose".
In the case on hand, we have held that the Ex.D6 is
an agreement between the parties and it does not create a
right but it refers to the confirmation of the rights which the
parties had acquired earlier and ratifies such earlier rights
accrued on the parties. Even if Ex.D6 is held to be a
document creating the rights, it can be relied to show that
the joint family had severed in the year 1975 and therefore,
the acquisitions by the parties thereafter would not be
available for partition.
45. The decision in the case of Smt. Lokamani and
others Vs. Smt. Mahadevamma and others supra is
concerning the applicability of provisions of Hindu
Succession Act, after the 2005 amendment. It was held that
"unregistered partition deed is excluded from the purview of
the applicability of amended provisions of Section 6 of the
Hindu Succession Act".
In the case on hand, the claim for partition is not by
the daughters of the propositus. Therefore, the said
decision is not applicable to the case on hand.
46. For the aforesaid reasons, we are of the view that
the trial Court has rightly considered the issues raised
before it. The joint family of the plaintiffs and defendants
had severed in 1975 which is evidenced by the 'palupatti'
dated 02-6-1975. All the suit properties were acquired
subsequent to 02-6-1975 and therefore, it cannot be said
that they were the joint family properties. Therefore, the
appeal is bereft of merits.
47. In view of our findings above, the appeal is liable
to be dismissed. Therefore, I.A.No.1/2021 filed by the
appellant for impleading the proposed respondent Nos. 16
to 20, who are the purchasers of the suit schedule
properties acquired by the defendants is devoid of merits
and it does not survive for consideration. Hence, the same
is dismissed.
48. So also IA No.1/2020 filed by the appellant for
Appointment of Receiver to receive the rents from the
tenants who are in possession of the suit schedule
No.2,3,5,6 and 8 properties which were acquired by the
defendants also does not survive for consideration. As such,
it is dismissed.
49. Hence, the following:
ORDER
(i) The appeal is dismissed.
(ii) The judgment and decree passed by the Trial
Court in OS No.25036/2007 dated 26-7-2013 is
hereby confirmed.
(iii) In view of the dismissal of the appeal, all the
pending IAs does not survive for consideration. Hence,
they are dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
tsn*
