Karnataka High Court
Shashi Kumar C.J vs Channamara Gowda on 15 December, 2023
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RFA No.1879/2012 C/W
RFA No. 1880/2012,
RFA CROB. No.4/2014
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
REGULAR FIRST APPEAL No.1879/2012 (PAR)
C/W
REGULAR FIRST APPEAL No.1880/2012 (PAR),
R.F.A. Crob. No.4/2014 (PAR)
R.F.A.NO. 1879/2012
BETWEEN:
CHANNAMARAGOWDA
S/O BASAVAGOWDA
AGED ABOUT 56 YEARS
R/O NO.165, SESHADRI NILAYA
5TH CROSS, MUTHURAYASWAMY EXTENSION
SUNKADAKATTE, BANGALORE - 91
PRESENTLY R/AT NO.521, 12TH CROSS
RHCS LAYOUT, ANNAPOORNESHWARI NAGAR
BANGALORE - 91 ...APPELLANT
(BY SRI KISHAN G S, ADVOCATE)
AND:
1. SHASHIKUMAR
AGED ABOUT 17 YEARS,
REP. BY HIS NATURAL GUARDIAN
HIS MOTHER JAYALAKSHMI.
R/O NO.165, SESHADRI NILAYA
5TH CROSS, MUTHURAYASWAMY EXTENSION
SUNKADAKATTE, BANGALORE-560 091
PRESENTLY R/AT BYRAVESHWARA NILAYA,
2ND CROSS, HOYSALANAGAR,
UDUPI CONDIMENTS & BAKERY ROAD,
VISHVANEEDAM POST, SUNKADAKATTE,
BANGALORE - 560 091
2. SHIVALINGEGOWDA
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RFA No. 1880/2012,
RFA CROB. No.4/2014
S/O BASAVAGOWDA
AGED ABOUT 47 YEARS,
R/AT NO. 533/A, 12TH CROSS,
2ND D MAIN, BEV LAYOUT, ANJANANAGAR,
BANGALORE - 560 091
O/AT GANGADHARESHWARA TIMBERS,
GLASS & PLYWOOD, SUNKADAKATTE,
MAGADI MAIN ROAD, VISHWANEEDAM POST,
BANGALORE-91
3. SUNANDA W/O CHANNAMARAGOWDA
AGED ABOUT 46 YEARS
R/O NO.165, SESHADRI NILAYA,
5TH CROSS, MUTHURAYASWAMY EXTENSION,
SUNKADAKATTE, BANGALORE-560 091.
PRESENTLY R/AT NO.521, 12TH CROSS,
RHCS LAYOUT, ANNAPOORNESHWARI NAGAR
BANGALORE - 560 091 ...RESPONDENTS
(BY SRI.G BALAKRISHNA SHASTRY, ADVOCATE FOR R1;
SRI.K.P.THRIMURTHY, ADVOCATE FOR R2;
R-3 SERVED AND UNREPRESENTED)
THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC, AGAINST
THE JUDGEMENT AND DECREE DT 23.07.2012 PASSED IN
O.S.NO.3915/2003 ON THE FILE OF XLIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BANGALORE, PARTLY DECREEING AND
PARTLY DISMISSING THE SUIT FOR PARTITION AND SEPARATE
POSSESSION.
R.F.A.NO. 1880/2012
BETWEEN:
SUNANDA W/O CHANNAMARAGOWDA
AGED ABOUT 38 YEARS
R/O NO.165, SESHADRI NILAYA,
5TH CROSS, MUTHURAYASWAMY EXTENSION,
SUNKADAKATTE, BANGALORE-560 091.
PRESENTLY R/AT NO.521, 12TH CROSS,
RHCS LAYOUT, ANNAPOORNESHWARI NAGAR
BANGALORE - 560 091 ...APPELLANT
(BY SRI KISHAN G S, ADVOCATE)
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RFA No.1879/2012 C/W
RFA No. 1880/2012,
RFA CROB. No.4/2014
AND:
1. SHASHIKUMAR
AGED ABOUT 17 YEARS,
REP. BY HIS NATURAL GUARDIAN
HIS MOTHER JAYALAKSHMI.
R/O NO.165, SESHADRI NILAYA
5TH CROSS, MUTHURAYASWAMY EXTENSION
SUNKADAKATTE, BANGALORE-560 091
PRESENTLY R/AT BYRAVESHWARA NILAYA,
2ND CROSS, HOYSALANAGAR,
UDUPI CONDIMENTS & BAKERY ROAD,
VISHVANEEDAM POST, SUNKADAKATTE,
BANGALORE - 560 091
2. SHIVALINGEGOWDA
S/O BASAVAGOWDA
AGED ABOUT 44 YEARS,
R/AT NO. 533/A, 12TH CROSS,
2ND D MAIN, BEV LAYOUT, ANJANANAGAR,
BANGALORE - 560 091
O/AT GANGADHARESHWARA TIMBERS,
GLASS & PLYWOOD, SUNKADAKATTE,
MAGADI MAIN ROAD, VISHWANEEDAM POST,
BANGALORE-91
3. CHANNAMARAGOWDA
S/O BASAVAGOWDA
AGED ABOUT 48 YEARS
R/O NO.165, SESHADRI NILAYA
5TH CROSS, MUTHURAYASWAMY EXTENSION
SUNKADAKATTE, BANGALORE - 91
PRESENTLY R/AT NO.521, 12TH CROSS
RHCS LAYOUT
ANNAPOORNESHWARI NAGAR
BANGALORE - 560 091 ...RESPONDENTS
(BY SRI.G BALAKRISHNA SHASTRY, ADVOCATE FOR R1;
R2 AND R-3 ARE SERVED AND UNREPRESENTED)
THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC, AGAINST
THE JUDGEMENT AND DECREE DATED 23.07.2012 PASSED IN
O.S.NO.3915/2003 ON THE FILE OF XLIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BANGALORE, PARTLY DECREEING AND
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RFA No. 1880/2012,
RFA CROB. No.4/2014
PARTLY DISMISSING THE SUIT FOR PARTITION AND SEPARATE
POSSESSION.
R.F.A. CROB. No.4/2014
BETWEEN:
SHASHI KUMAR C.J.
S/O CHANNAMARA GOWDA,
AGED ABOUT 18 YEARS,
R/O, 3RD CROSS,
BYRAVESHWARA EXTENSION,
SUNKADAKATTE,
BANGALORE - 560 091
NOW BY GPA HOLDER JAYASHANKAR ... CROSS OBJECTOR
(BY SRI.G BALAKRISHNA SHASTRY, ADV. FOR CROSS OBJECTOR)
AND:
1. CHANNAMARA GOWDA
S/O BASAVA GOWDA,
AGED ABOUT 57 YEARS
NO.165, SHESHADRI NILAYA,
5TH CROSS, MUTTURAYASWAMY
EXTENSION, SUNKADAKATTE
BANGALORE-560 091.
2. SHIVALINGE GOWDA
S/O BASAVA GOWDA,
AGED ABOUT 48 YEARS,
R/O NO.533/A,
12TH CROSS, 2ND D MAIN,
BEV LAYOUT, ANJANA NAGAR,
BANGALORE-560 091.
3. SUNANDA
W/O CHANNAMARA GOWDA,
AGED ABOUT 47 YEARS,
R/O NO.165, SHESHADRI NILAYA,
5TH CROSS, MUTHURAYASWAMY
EXTENSION, SUNKADAKATTE
BANGALORE - 560 091 ... RESPONDENTS
(BY SRI.K.P.THRIMURTHY, ADVOCATE FOR R2;
SRI.KISHAN G.S, ADVOCATE FOR R1 & R3)
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RFA No. 1880/2012,
RFA CROB. No.4/2014
RFA.CROB IS FILED UNDER ORDER XLI, RULE-22 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 23.07.2012 PASSED
IN O.S.3915/2003 ON THE FILE OF THE XLIII-ADDL. CITY CIVIL AND
SESSIONS JUDGE, CCH-44, BENGALURU, PARTLY DECREEING AND
PARTLY DISMISSING THE SUIT FOR PARTITION AND SEPARATE
POSSESSION.
THESE REGULAR FIRST APPEALS AND R.F.A. CROSS.
OBJECTION HAVING BEEN HEARD AND RESERVED ON 04.10.2023,
COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
JUDGMENT & ORDER ON I.A.NO.1/2021
The above appeals, cross-objection in RFA No.1879/2012
are filed challenging the judgment and decree dated
23.07.2012 in O.S.No.3915/2003 passed by XLIII Additional
City Civil and Sessions Judge, Bengaluru(CCH-44). By the said
judgment and decree, the trial Court has partly decreed the
suit filed by the plaintiff for partition and separate possession of
his share in the suit schedule properties.
2. The appellant in RFA No.1879/2012 is defendant
No.1, Cross-Objector in No.04/2014 (in
RFA No.1879/2012) is the plaintiff in O.S.No.3915/2003.
RFA No.1880/2012 is filed by defendant No.3 in
O.S.No.3915/2003. For the purpose of convenience, the parties
will be referred to henceforth according to their ranks before
the trial Court.
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3. Shashikumar/the minor plaintiff was represented
through his mother Jayalakshmi (PW.1). Defendant No.1 is the
father of the plaintiff. Defendant No.2 is the younger brother of
defendant No.1. Defendant No.3 is the second wife of
defendant No.1. Jayalakshmi/mother of the plaintiff is the first
wife of defendant No.1.The relationship of the parties is not in
dispute.
4. The subject matter of the suit schedule A to J
properties are as follows:
SCHEDULE-A
All that piece and parcel of immovable property
bearing Sy.No.120/1 and 120/8 situated at
Chakrabhavi village, Madabala Hobli, Magadi Taluk,
Bangalore Rural District, measuring 1 acre 5 guntas.
SCHEDULE-B
All that piece and parcel of immovable property
bearing Sy.No.122 situated at Chakrabhavi village,
Madabala Hobli, Magadi Taluk, Bangalore Rural
District, measuring 27.5 guntas.
SCHEDULE-C
All that piece and parcel of immovable property
bearing Sy.No.1/3 situated at Chakrabhavi village,
Madabala Hobli, Magadi Taluk, Bangalore Rural
District, measuring 5 guntas.
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SCHEDULE-D
All that piece and parcel of immovable property
bearing Sy.No. 93/1 situated at Chakrabhavi village,
Madabala Hobli, Magadi Taluk, Bangalore Rural
District, measuring 13.5 guntas.
SCHEDULE-E
All that piece and parcel of the immovable
property bearing khata No.62 and Khaneshmari No.36,
situated at Hegganahalli, Yeshwanthpura Hobli,
Bangalore North Taluk measuring East to West-50
feet, North to South-80 feet, total area 4,000 Sq.ft.
SCHEDULE-F
All that piece and parcel of immovable property
bearing Khaneshmari No.169, situated at Chakrabhavi
village, Madabala Hobli, Magadi Taluk, Bangalore Rural
District, measuring 1.5 guntas.
SCHEDULE-G
All that piece and parcel of the site formed in
Sy.No.9/5, situated at Harohalli village,
Yeshwanthpura Hobli, Bangalore North Taluk bearing
northern half portion of property No.9, measuring 62
feet x 16 feet.
SCHEDULE-H
All that piece and parcel of property bearing
Sy.No. 53/1, 53/2, 54, 56/2, 57 to 62/6 and 80/3,
80/4, 82/1, 82/2, 82/3, 175, 187, 189 to 193 layout
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formed by the Bharth Electronic Employees Co-
operative Housing Building Society Ltd., by layout plan
approved by the BDA out of which site bearing
No.F186, measuring East 12.20 meters, West 12.20
meters, North 18.30 meters, South 18.30 meters
situated at Herohalli village, Yeshwanthpura Hobli,
Bangalore north Taluk, Bangalore District.
SCHEDULE-J
All that piece and parcel of the site bearing khata
No.80/1, assessment No.80/1, measuring East to West
northern side 28 feet, Southern side 54 feet and North
to South eastern side 107 feet, Western side 93 feet in
all 4100 Sq. feet, situated at Herohalli village,
Yeshwanthpura Hobli, Bangalore North Taluk,
Bangalore District.
5. The case of the plaintiff in brief is as follows:
(i) The plaintiff and defendant Nos.1 and 2 constitute
Hindu joint family. The Plaintiff and defendant Nos.1 and 2
were all residing together at the address of defendant No.1
shown in the plaint. Defendant No.1 had illicit relationship with
another woman. Therefore, he drove the plaintiff and his
mother out of the matrimonial home. Matrimonial disputes are
pending between the parties before the High Court in MFA
No.2654/2001. The suit schedule properties were joint family
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properties and they were all acquired out of nucleus of joint
family properties. The plaintiff is entitled to 1/3rd share in those
properties.
(ii). Defendant No.1 hostile to the interest of the
plaintiff has created partition deed dated 04.10.2001. In the
said partition, schedule B to E properties are allegedly allotted
to the share of defendant No.1 and schedule A, F and G
properties are allotted to the share of defendant No.2.
Defendant No.1 has purchased schedule H and J properties out
of the joint family nucleus in the name of defendant No.3 to
deprive the plaintiff of his legitimate share in those properties.
Thus plaintiff is entitled to 1/3rd share in all the properties. He
sought decree for declaration that he has 1/3rd share in the suit
schedule property for partition, separate possession and mesne
profit.
6. Defendant Nos.1 and 3 though filed separate
written statements, additional written statement, their defence
was one and the same. Suit schedule H and J properties were
included by way of amendment to the plaint and that's why the
additional statement is filed.
[
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7. Gist of their written statements is as follows:
(i) It was not denied that suit schedule properties were
the joint family properties. It was further denied that defendant
No.1 had illicit relationship with another woman, therefore he
drove the plaintiff and his mother from the family house. The
plaintiff's mother has deserted defendant No.1 without valid
reason. Defendant No.1 on filing missing complaint with
jurisdictional police, later filed divorce petition in MC
No.998/1996 before the II-Additional Family Court, Bengaluru.
The petition came to be allowed and divorce decree was
granted in his favour. She has challenged the said judgment
and decree before the High Court in
MFA No.2654/2001.
(ii) Defendant No.1 is discharging his duties towards
the plaintiff as he is paying maintenance to him. The allegation
that, he neglected the plaintiff was denied. Though initially
plaintiff, defendant Nos.1 and 2 were living together, plaintiff's
mother developed illicit relationship with defendant No.2. When
that was exposed, she absconded from the matrimonial home
without intimation to defendant No.1.
(iii) Defendant Nos.1 and 2 hailed from Chakrabhavi
village of Magadi Taluk. The joint family of defendant Nos.1
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and 2 owned only plaint schedule A to D and F properties. The
income of the said property was not sufficient to meet the
requirements of the family. Therefore defendant No.1 migrated
to Bengaluru with bare hands. He started working under one
Shamasundar at Bengaluru. After gaining experience in timber
business, he started his own timber business in the year 1989.
Defendant No.2 was wandering as a rowdy without any
avocation in the village. Because of his concern for defendant
No.2, he brought him to Bengaluru in 1993 to settle him in life
at Bengaluru. Defendant No.1 out of his hard earned money
acquired plaint suit schedule E and G properties. Therefore they
are his self-acquired properties. Defendant No.2 became hostile
to defendant No.1. He filed suit against defendant No.1 before
City Civil Court, Bengaluru.
(iv) Plaintiff's mother and defendant No.2 are sailing
together. Defendant Nos.1 and 2 partitioned the properties
under the partition deed dated 04.10.2001. In that partition, A,
F and G schedule properties were allotted to the share of the
defendant No.2 and Schedule B, C, D and E properties were
allotted to defendant No.1 and that is within the knowledge of
plaintiff's mother Jayalakshmi. Jayalakshmi and defendant No.2
in collusion with each other with malafide intention have set up
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the minor son to file the suit. Defendant No.1 sold E schedule
property on 16.04.2003 to repay the debts borrowed by him for
establishment of his business.
(v) Defendant No.3 has purchased suit schedule H and
J properties out of the funds provided by her maternal family
and they are her streedhan properties. It is denied that those
properties were acquired by defendant No.1 in the name of
defendant No.3. Defendant No.3 sold H schedule properties and
out of the said funds purchased J schedule property. The suit is
bad for misjoinder of suit schedule E and H properties as they
were already sold. Thus they sought the dismissal of the suit.
8. Gist of the written statement of defendant No.2 is
as follows:
The contention of the plaintiff that himself and defendant
No.1 constituted the joint Hindu family was admitted, but there
was a partition between himself and defendant No.1 on
04.10.2001. In that partition, suit schedule A, F and G
properties were allotted to him and they have become his
absolute properties. Therefore, plaintiff is not entitled to any
share in those properties. The plaintiff's share, if any, should be
in the properties of his father alone. In that partition, the
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plaintiff's share is already settled. Therefore, the plaintiff is not
entitled to any further share. Thus suit is liable to be dismissed.
9. The trial Court on the basis of the pleading of the
parties framed the following issues and additional issues:
1. Whether plaintiff proves the suit properties are
joint family properties of himself and
defendants?
2. Whether defendant No.1 proves that suit E and
G schedule properties are his self acquired
properties?
3. Whether defendant No.1 proves that already
the partition is held in between himself,
defendant No.2 and plaintiff, G-schedule
property is given to the share of plaintiff as
alleged in para 6 and 7 of written statement
filed by defendant No.1?
4. Whether plaintiff is entitled for partition and
separate possession of his share in suit
property? If yes, at what share?
5. Whether plaintiff is entitled for mesne profits?
6. What order or decree?
ADDITIONAL ISSUES:
1. Whether plaintiff proves that H and J schedule
properties are joint family properties,
purchased by defendant No.1 in the name of
defendant No.3 by using the joint family funds?
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2. Whether defendant No.3 proves that schedule
H and J properties are her self acquired
properties?
10. In support of the plaintiff's case, his
mother/guardian was examined as PW.1 and Exs.P1 to P21
were marked. Defendant No.1 was examined as DW.1,
defendant No.2 was examined as DW.2 and two more
witnesses were examined as DWs.3 & 4. On their behalf Exs.D1
to D19 were marked.
11. The trial Court on hearing the parties by the
impugned judgment and decree, partly decreed the suit
granting half share to the plaintiff in the plaint schedule
B,C,D,E and J properties. It was further directed that E
schedule property shall be allotted to the share of defendant
No.1 and plaintiff's share shall be calculated in other properties.
The suit in respect of plaint schedule A, F, G and H was
dismissed.
12. The trial Court rejected the contention of defendant
No.1 that plaint schedule E and G were his self-acquired
properties. Partition between defendant Nos.1 and 2 was held
to be proved. However, the contention regarding allotment of
the share to the plaintiff in that partition was rejected. The
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claim of defendant Nos.1 and 3 that H and J schedule
properties are the Streedhan property of defendant No.3 and
not the joint family properties was rejected.
13. Challenging the said judgment and decree, as
already stated defendant Nos.1 and 3 have preferred the above
appeals and the plaintiff has preferred the cross objection in
RFA No.1879/2012.
14. In RFA No.1879/2012 appellant/defendant No.1 has
filed I.A.No.1/2021 seeking leave to adduce additional evidence
by way of production of following documents:
(i) Certified copy of the plaint in
O.S.No.7021/2001.
(ii) Certified copy of the compromise petition under
Order XXIII Rule 3 filed in O.S.No.7021/2001.
(iii) Certified copy of the decree passed in
O.S.No.7021/2001.
(iv) Certified copy of the sale deed dated
06.04.1998 with respect to 23 ½ guntas in
Sy.No.120/1 and 120/8 of Chakrabhavi Village.
(v) Original registration certificate dated
30.03.1992 issued by Commissioner for
Industrial Development and Director of
Industries and Commerce, Government of
Karnataka.
(vi) Original Pass book of Syndicate Bank pertaining
to Sri Gangadareshwara Timbers bearing
Account No.CA297.
15. The said application is opposed by respondent
No.1/plaintiff.
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16. Submissions of Sri Kishan G.S, learned Counsel for
the appellants/defendant No.1 and 3:
(i) When the plaintiff came to the Court alleging that
the suit schedule properties are the ancestral/joint family
properties, the burden was on him to prove the same. Plaintiff
has to prove that there were joint family properties and such
joint family properties were generating the nucleus and
defendant No.1 utilizing such nucleus acquired the other suit
schedule properties. Though plaint schedule A,D and F were
ancestral properties, they hardly measure 68 guntas. Exs.P16
to 20 produced by the plaintiffs themselves show that there
were no crops cultivated in the said lands. Therefore, the trial
Court should have rejected the claim of the plaintiff that the
said properties were generating nucleus and defendant No.1
purchased other properties out of such income.
(ii) The trial Court committed error in placing undue
reliance on Ex.D.1/the partition deed between defendant Nos.1
and 2, to hold that suit schedule properties were the joint
family properties. Since ancestral properties were not yielding
any income, defendant No.1 migrated to Bengaluru to eke out
his livelihood. In course of time from his employment in timber
wood shop, he acquired expertise and set up his own timber
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business. Out of such income, plaint schedule E property was
acquired. Plaint schedule H and J properties were acquired by
defendant No.3 from the funds given by her parents as
Streedhan. Therefore they were her exclusive properties.
(iii) The trial Court was not justified in disbelieving the
evidence adduced by defendant Nos.1 and 3 regarding
acquisition of the properties by them. Defendant No.2 though
had no interest in the timber business of defendant No.1, in
collusion with plaintiff, implicated him in litigation. Only to get
rid of such litigation, defendant No.1 entered into compromise
with him. That itself does not lead to the conclusion that the
properties under partition/compromise were the joint family
properties. Defendant No.2 himself in the compromise petition
filed in O.S.No.7021/2001, admitted that the timber business
was the exclusive business of defendant No.1 and he was only
assisting defendant No.1 in that business. In the compromise
petition he also admitted that K.S.T and C.S.T registration of
the said business was standing in the name of defendant No.2
herein for namesake and defendant No.1 was Proprietor of the
said business. However, the said compromise petition was not
produced before the trial Court i.e., material document. The
documents produced in I.A.No.1/2021 are necessary for fair
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and complete adjudication of the matter. Therefore, those
documents have to be taken on record.
(iv) On partition, the properties in the hands of
defendant No.1 become his absolute properties and Section 8
of the Hindu Succession Act, 1956 ('the Act' for short) applies.
Therefore, plaintiff during the lifetime of defendant No.1 cannot
claim partition in them. Plaintiff is set up by his mother to settle
the scores against defendant Nos.1 and 3. There were material
admissions in the evidence of PW.1 regarding the ancestral
properties not being capable of yielding any income. Schedule E
property was sold prior to the suit, therefore purchasers of
those properties were necessary parties to the suit. Similarly
schedule G property was sold by defendant No.2. Therefore the
suit was not maintainable for misjoinder of the properties and
non-joinder of the purchasers of those properties.
(v) Admittedly, defendant No.1 married defendant No.3
pending the matrimonial proceedings. Out of that marriage,
they have two children. By virtue of Section 16 of the Act, the
children of defendant No.3 are also entitled to the shares in the
properties. Therefore they should have been impleaded in the
suit as defendants. The suit is bad for non-joinder of those
children as parties. Though defendant No.1 specifically
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contended that the timber business was his exclusive business,
the trial Court erroneously treated that as the joint family
business.
(vi) Having regard to the rival pleadings, the trial Court
ought to have framed specific issue as to whether the timber
business was Hindu undivided family business. For non-framing
of specific issue in that regard, the adjudication was
misdirected leading to erroneous judgment. The trial Court has
held that, under the partition deed, defendant No.1 blended his
properties with joint family properties. In the partition between
himself and defendant No.2, plaint schedule G property was
allotted to the share of plaintiff. Therefore he cannot claim any
partition. Those properties are not liable for partition.
Reiterating the other grounds of the appeal, the judgment and
decree of the trial Court was sought to be set aside.
17. In support of his submissions, he relied on the
following judgments:
(i) Mudigowda Gowdappa Sankh & Ors. Vs. Ramchandra
Revgowda Sankh(dead) by his Legal Representatives
& Anr.1
(ii) Smt.Radhamma and Ors. Etc. Vs. H.N.Muddukrishna
and Ors. Etc.2
1
AIR 1969 SC 1076
2
AIR 2006 Kar. 68
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(iii) D.S.Lakshmaiah & Anr. Vs. L. Balasubramanyam &
Anr.3
(iv) V.D.Dhanwatey Vs. The Commissioner of Income-tax,
Madhya Pradesh, Nagpur and Bhandara4
(v) M.N.Aryamurthy and Anr. Vs. M.D.Subbaraya Setty
(dead) through LR. And Ors.5
(vi) Baikuntha Nath Paramanik (dead) by his LRs. And
heirs Vs. Sashi Bhusan Paramanik (dead) by his LRs.
And Ors.6
(vii) Revanasiddappa and Anr. Vs. Mallikarjun and Ors.7
(viii) Revanasiddappa and Anr. Vs. Mallikarjun and Ors.8
18. Submissions of Sri. Balakrishna Shastri, learned Counsel
for the plaintiff/respondent No.1 in both appeals and cross
objector in cross objection:
(i) Defendant Nos.1 and 2 themselves admit that plaint
schedule A to D properties are their joint family properties. Out
of nucleus of the said properties, defendant No.1 had started
the business and that was a family business. If that was not a
family business, defendant No.1 had no reason to pay
Rs.1,45,000/- to defendant No.2 to retain that business for
himself.
(ii) In Ex.D1 there is unequivocal admission of
defendant No.1 that suit schedule properties are joint family
3
(2003) 10 SCC 310
4
AIR 1968 SC 683
5
(1972) 4 SCC 1
6
AIR 1972 SC 2531
7
(2011) 11 SCC1
8
2023 SCC Online SC 1087
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RFA No.1879/2012 C/W
RFA No. 1880/2012,
RFA CROB. No.4/2014
properties. Defendant Nos.1 & 2 admitted Ex.D1. Therefore,
they are bound by the contents of the same.
(iii) The evidence of DW.1 itself shows that he himself
purchased schedule J property. If he had not purchased that
property there was no reason for him to construct
Choultry/Kalyana Mantap on the same. Though defendant
Nos.1 and 3 claimed that suit schedule H and J properties were
properties of defendant No.3, she did not enter the witness
box. Therefore, adverse inference has to be drawn against her.
The evidence of her father/DW.3 shows that he had the
responsibility of big family. His evidence regarding his business
and his earning from that was unacceptable.
(iv) The evidence of DWs.1 to 3 regarding the
investment of defendant No.1 in timber business was vague.
Since defendant Nos.1 and 3 were married even prior to
divorce decree, the children born out of such marriage are not
entitled to share in the ancestral properties. Defendant No.2
also admitted that all suit schedule properties were joint family
properties. If they are not joint family properties, there was no
need for defendant No.1 to subject schedule A to G properties
to partition and allot plaint schedule A,F and G properties to
defendant No.2. The document produced by defendant No.1 by
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RFA No. 1880/2012,
RFA CROB. No.4/2014
way of additional evidence does not serve any purpose to
advance his case.
19. The issue whether the suit schedule properties were
the joint family properties which covered the timber business
also. Therefore, separate issue regarding timber business is not
required. Defendant Nos.1 and 3 during adjudication before the
trial Court neither sought framing of such issue nor amendment
of issue. At this stage it is not open to them to claim that the
proper issue was not framed. Even otherwise the parties
understanding the claim of each other led evidence on that
aspect also and the trial Court appreciated the same. Therefore
there is no merit in the contention that proper issue was not
framed and mistrial etc,. The appeals are liable to be dismissed
and the cross-objection deserve to be allowed.
20. In support of his submission he relied on the
following judgments:
(i) Mallesappa bandeppa Desai and Anr. Vs.
Desai Mallappa alias Mallesappa and Anr.9
(ii) Krishnamurthy Vs. Deepak10
(iii) Adiveppa & Ors. Vs. Bhimappa and Anr.11
9
AIR 1961 SC 1268
10
ILR (KAR)-2005-0-1202
11
AIR(SC)-2017-0-4465
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RFA No. 1880/2012,
RFA CROB. No.4/2014
21. Plaint schedule A to G properties were joint family
properties and the timber business was a joint family business.
Admitting the same, defendant No.1 entered into partition
under Ex.D1 in which plaint schedule A,F and G properties were
allotted to the share of defendant No.2. Plaintiff is not entitled
to any share in that.
22. On careful consideration of the submissions of both
side and material on record, the points that arise for
determination of this Court are:
(i) Whether plaint schedule A to J properties were
ancestral and joint family properties of plaintiff and defendant
Nos.1 and 2?
(ii) Whether a specific issue regarding to timber
business being Hindu undivided family's business was required?
(iii) Whether purchasers of E & H schedule properties
are necessary parties to the suit?
(iv) Whether the children of defendant Nos.1 and 3 are
necessary parties to the suit?
(v) Whether I.A.No.1/2021 for production of additional
evidence deserves to be allowed?
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RFA No. 1880/2012,
RFA CROB. No.4/2014
Analysis:
Point Nos.1, 2 & 5 :Nature of properties
23. The relationship between the parties is not in
dispute. Defendant Nos.1 and 2 both did not dispute that plaint
schedule A to D & F properties were their joint family
properties. Defendant No.1 claims that he acquired plaint
schedule E and G properties out of timber business income
which was his exclusive business. He states that he had not
utilized any family income for the said business.
24. Learned Counsel for defendant No.1 relies on hosts
of judgments to contend that the plaintiff is required to prove
that the suit schedule properties were joint family properties.
The ratio of the judgments in Mudigowda Gowdappa Sankh's,
Smt.Radhamma & Ors.'s, D.S.Lakshmaiah's, V.D.Dhanwatey's,
M.N.Aryamurthy's, Baikunta Nath Paramanik's cases referred
to supra is that when a person asserts that certain properties
are joint family properties, the initial burden of proving the said
fact is on him. It was further held that there was no
presumption that the properties standing in the name of a
member of the family are joint family properties. It was held
that the plaintiff has to show that to acquire such properties,
joint family owned certain properties which generated nucleus
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RFA No. 1880/2012,
RFA CROB. No.4/2014
to acquire such properties. It was further held that regarding
properties standing in the name of female member of the
family, there is no presumption that such properties are joint
family properties. Absolutely there is no dispute with regard to
such legal principles.
25. It is settled principle of law that the initial burden of
proving the said fact that the suit schedule properties are joint
family properties is on the plaintiff. If some properties stand in
the individual names of the members of the joint family, the
plaintiff has to prove that there were joint family assets which
were yielding nucleus or there was some nucleus of the joint
family, out of which the said properties could be acquired. Then
the burden shifts to the defendants to prove that the properties
in question were their self acquired properties. It is also settled
law that, if it is shown that there were joint family properties
yielding some nucleus and the senior male member/kartha
purchases the properties, then it can be presumed that they
are joint family properties.
26. In Mallesappa Bandeppa Desai's case referred to
supra relied on by learned Counsel for the plaintiff it was held
that where a manager claims that he has acquired the
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RFA No. 1880/2012,
RFA CROB. No.4/2014
immovable property by separate funds, he has to prove by
clear and satisfactory evidence his plea of self acquisition.
27. In para 16 of the judgment in Krishna Murthy's
case relied on by learned Counsel for the plaintiff it was held
that if it was shown that the properties were acquired by the
members of the joint family with the assistance of joint funds
they become joint family properties.
28. So far as plaint schedule H and J properties, it was
contended that they were Streedhan properties of defendant
No.3. PW.1 in her evidence deposed that in schedule A to D
properties there were Mango trees and they were growing Ragi
and Toor crops in those lands. She also stated that her mother-
in-law sold certain properties and gave proceeds to defendant
No.1 to do timber business. She also deposed that schedule A
to D properties were yielding income of Rs.7 to 7.5 lakhs. It is
no doubt true that there is no documentary evidence regarding
the lands yielding such income or her mother-in-law selling
properties and giving that proceeds to defendant No.1.
Admittedly, the marriage of defendant No.1 and mother/next
friend of plaintiff was solemnized on 23.04.1994.
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RFA No. 1880/2012,
RFA CROB. No.4/2014
29. As per the birth certificate in Ex.P2, the plaintiff was
born on 31.03.1995. Defendant No.1 filed MC.No.998/1996
against PW.1 before the II-Additional Principal Judge, Family
Court, Bengaluru alleging desertion and cruelty. Ex.D2 the
certified copy of the order in MFA No.2654/2001(FC) dated
07.10.2005 shows that, in the said MFA the parties entered into
settlement. The said order shows that the mother of the
plaintiff withdrew the appeal receiving permanent alimony of
Rs.4,80,000/- and she further undertook to withdraw CC
No.1534/2002, initiated on her complaint of bigamy against
defendant No.1. That goes to show that since 1996 itself the
plaintiff's mother and defendant No.1 are living separately.
Therefore, it would be difficult for her to collect concrete
evidence about the cultivation of the land, crops grown therein
and actual income of the said properties.
30. However, defendant No.2 who is the brother of
defendant No.1 also claimed that the suit schedule properties
were the ancestral properties and even the timber business was
of the Hindu undivided family.
31. The RTCs of schedule A to D properties relate to the
year 2009 and 2010. The total extent of those lands come to
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RFA No. 1880/2012,
RFA CROB. No.4/2014
91 guntas not 68 guntas as contended by learned Counsel for
the appellant. In those RTCs in column meant for crops, it is
recorded as "No Crop Info", that means no crop information. It
is well known that unless the holders of the land furnish
information regarding the crop cultivated, the concerned
authorities generally do not make entries regarding crops on
their own.
32. Apart from that according to defendant No.1
himself, he started timber business in the year 1989. According
to the plaintiff, that business is started with the joint family
funds which were generated out of plaint schedule A to D
properties. Therefore, he should have produced RTCs of those
years to show that during that time no crop was cultivated in
those lands.
33. Having regard to the strained relationship between
plaintiff's mother and defendant No.1 and she is living
separately from defendant No.1 since 1996, it would be hard
for her to get that information. As against that Ex.D1 the
partition deed voluntarily effected between Defendant Nos.1
and 2 shows that in the said document defendant No.1 himself
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RFA No. 1880/2012,
RFA CROB. No.4/2014
admitted that plaint schedule A to G properties were joint
family properties.
34. The prime contention of defendant No.1 is that he
migrated to Bengaluru, after working with one Shyam Sunder
in timber business he gained experience and earned money and
with such money he started the timber business. Therefore,
according to him, the timber business and the income from the
timber business was his self acquired income. He claimed that
out of such income he purchased part of schedule A, E and G
properties. Whereas the plaintiff claimed that defendant No.1
started the timber business utilizing the income from the
ancestral properties.
35. PW.1 in her chief examination as well as the cross
examination dated 01.04.2011 deposed that her mother-in-law
sold the house and invested the said amount to purchase the
suit properties. It is also the claim of the plaintiff that suit
schedule A to D properties are landed properties and out of
that income, suit schedule E and G properties were purchased
in the name of defendant No.1. It is their further contention
that defendant No.1 purchased suit schedule H and J properties
in the name of defendant No.3 his second wife out of the joint
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RFA No. 1880/2012,
RFA CROB. No.4/2014
family nucleus. PW.1 states that the family house and sites
were sold in 1992-93. So far as E schedule property, she
stated in her cross examination dated 01.04.2011 that
defendant No.1 purchased E schedule property out of the
amount from the shop put up by her mother in law. She has
denied the suggestion that timber business was the
independent business of defendant No.1. Contrary to his own
contention that part of A schedule property was his self
acquired property, in the cross examination of PW.1, defendant
No.1 himself suggests that schedule A, B,C & D are the
ancestral properties of defendant No.1. That was contrary to
his contention that 22½ guntas in A schedule property is his
self acquired property.
36. Though DW.1 in his evidence stated that he started
his own business in 1989, there was no proof of such
commencement of business in 1989. DW.1 in his chief
examination itself stated that he purchased 22 ½ guntas of A
schedule property during the year 1999, at that time
admittedly himself and defendant No.2 were living in the joint
family. In the cross examination dated 17.08.2011 he admits
that in his native place Chakrabhavi, their family owned, apart
from the lands, a residential house and according to the
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RFA No. 1880/2012,
RFA CROB. No.4/2014
plaintiff there were two sites, but, he states that it was only 1
½ guntas site. He admits that his mother sold the residential
house in Chakrabhavi in 1996. He also admits that in the lands
in Chakrabhavi there were fruit yielding mango trees.
Defendant No.1 himself in the cross examination of defendant
No.2 suggests that plaint schedule A property was a mango
orchard. That demolishes his contention that since mango crop
is not shown in the RTCs produced by the plaintiff, such income
shall be disbelieved.
37. In his cross examination, DW.1 unequivocally
admits that himself and defendant No.2 effected partition in
family properties under Ex.D1 and till then they were living in
joint family. Under Ex.D1 partition was effected between
defendant Nos.1 and 2 on 04.10.2001 i.e., much before the
filing of the suit. At an undisputed point of time under Ex.D1
defendant No.1 admitted that plaint schedule A to G were the
ancestral joint family properties. Section 91 of the Evidence
Act bars him from leading any oral evidence contrary to the
terms of Ex.D1. Moreover under the said document he
conceded that A to G properties being the ancestral properties,
plaint schedule A,F and G properties were allotted to the share
of defendant No.2 and plaint schedule B to E properties were
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RFA No. 1880/2012,
RFA CROB. No.4/2014
retained to his share. In Ex.D1 defendant Nos.1 and 2 have
clearly admitted that timber business was commenced by both
of them and continued till that date. It is also stated that
regarding the said business defendant No.2 had filed
O.S.No.6631/2001 and O.S.No.7021/2001 and defendant No.2
has relinquished his right in the business by receiving
Rs.1,45,000/- from defendant No.1. Thereby there is an
admission on behalf of defendant No.1 that defendant No.2 also
had interest in that business.
38. Defendant No.1 in this appeal filed IA No.1/2021
seeking leave to produce the copies of the plaint, compromise
petition and decree in O.S.No.7021/2001, the copy of the sale
deed dated 06.04.1998 in respect of plaint schedule A
property, the registration certificate dated 30.03.1992 and
original passbook of Syndicate Bank in respect of Sri
Gangadareshwara timbers, Sunkadakatte. Defendant No.1
contends that in the said compromise petition defendant No.2
has admitted that timber business was the absolute property of
defendant No.1, therefore the statement in Ex.D1 that schedule
A to G properties and timber business were the ancestral/joint
family properties cannot be accepted.
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RFA No. 1880/2012,
RFA CROB. No.4/2014
39. Production of additional evidence under Order XLI
Rule 27 of CPC is not an unqualified right of the party to the
appeal. To produce such document, the applicant has to satisfy
that despite due diligence such evidence was not available with
him or could not be produced before the trial Court or that such
evidence is a subsequent event or the Court requires the same
to adjudicate the matter. The compromise in
O.S.No.7021/2001 was entered into much before the filing of
the present suit in question. It is not the case of defendant
No.1 that those documents were not available with him.
Absolutely no reasons are assigned for non-production of the
said documents before the trial Court. Even before this Court,
the said document is produced after 9 years of the filing of the
appeal. Further, though in para 2 of the compromise petition
defendant No.1 allegedly stated that he is the proprietor of the
said timber business, both the parties have said that the
registration of the said business was in the name of defendant
No.2 and rent agreement of the business premises was also in
the name of defendant No.2, he was also paying the rents to
the landlord. Apart from that in para 4 of the said compromise
petition the parties have stated as follows:
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RFA No. 1880/2012,
RFA CROB. No.4/2014
"In view of the compromise, the plaintiff is paying
Rs.1,45,000/- to the defendant and the defendant
has received Rs.1,45,000/- in cash from the plaintiff
before the Court today and disclaim all his right, title
and interest whatsoever over the business carried out
by the plaintiff under the name and style M/s.
Vinayaka Timber Glass and Plywoods. The plaintiff
and defendant have agreed to divide the landed
property in a course known to law in which event the
defendant has agreed and undertake that he will not
claim any interest in the business carried out by the
plaintiff herein as stated above."
40. The above recitals show that defendant No.2 by
receiving Rs.1,45,000/- disclaimed his right, title and interest
over the business. The word 'disclaim' itself presupposes a
claim in the property. If defendant No.2 had no interest,
defendant No.1 had no reason to pay Rs.1,45,000/- to retain
the property for himself. Therefore, the said document in no
way advances the case of defendant No.1. Even the
registration certificate produced as additional evidence shows
that business was registered on 30.03.1992 in the name of
defendant No.1. He claimed that he started the business in
1989. That also does not help defendant No.1 in any way.
Therefore the said documents do not meet any of the
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RFA No. 1880/2012,
RFA CROB. No.4/2014
requirements of Order XLI Rule 27 of CPC. They do not
advance the case of defendant No.1 in any way. Therefore, the
said application (IA No.1/2021) is liable to be dismissed.
41. From the above discussed facts and circumstances,
it can be deduced that defendant Nos.1 and 2 inherited certain
ancestral properties which were generating the nucleus and
their mother also funded them to start the timber business,
therefore, that amounts to joint family business and defendant
No.1 being the elder member of the family acquired plaint
schedule E and G properties out of the joint family nucleus.
When the partition between defendant Nos.1 and 2 took place,
defendant No.1 had plaintiff as surviving descendant.
Therefore he becomes the coparcener with defendant No.1.
Thus he is entitled to a share in the said properties by virtue of
Section 6 of the Act.
42. The pleadings and evidence of the parties clearly
show that they went for trial with the full knowledge that
plaintiff claimed timber business as the joint family business
and defendant Nos.1 and 3 denied the same. They led
evidence on that aspect. Defendant Nos.1 and 3 did not claim
before the trial Court to raise an issue on that point. Though
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RFA No. 1880/2012,
RFA CROB. No.4/2014
no specific issue was framed regarding timber business being
the joint family business, parties led evidence on that aspect
with the full understanding that the same is in issue. Having
regard to such position and the facts and circumstances
discussed above, there is no merit in the contention that the
impugned judgment suffers illegality for non-framing of the
issue regarding timber business being the joint family business.
43. Then the next question is whether the plaint
schedule H and J properties were the joint family properties of
plaintiff and defendant No.1 or they are the self acquired
properties of defendant No.3 as claimed by defendant Nos.1
and 3. Admittedly, defendant No.1 married defendant No.3
during the subsistence of his marriage with the mother of
plaintiff/PW.1. Defendant No.1 and 3 claimed that defendant
No.3 purchased schedule H property out of the funds given by
her father, therefore that is her stridhan property. They further
claimed that disposing schedule H property, out of the proceeds
of the same, she purchased schedule J property, therefore,
that is her absolute stridhan property. It is no doubt true that
there is no presumption that the property standing in the name
of the female member of the family is the joint family property.
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RFA No. 1880/2012,
RFA CROB. No.4/2014
However, if the said property is standing in the name of the
wife of the senior male member of the family and if it is shown
that such member had control over joint family funds and his
wife did not have any income or funds to acquire the property,
the burden shifts to the defendants to establish that the
property was the absolute property of such female member.
44. In the present case, admittedly, defendant No.3
had no gainful employment. According to her only, the funds
were given by her father. Therefore, the burden of proving the
fact that she received such funds and her father had financial
capacity to pay such funds lies on defendant Nos.1 and 3. To
prove that, defendant No.3 did not enter the witness box at all.
Learned counsel for defendant No.1 says that defendant No.1
had given evidence on behalf of defendant No.3 also. But he
himself admits in his cross examination that defendant No.3
had not given him any power of attorney to him to conduct the
case. He further admits that defendant No.3 is hale and
healthy. When a party asserts something, a duty is cast upon
such party to enter the witness box and to face the test of
cross examination. There was no ground for defendant No.3 to
shy and shun to face the test of cross examination. Under such
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RFA No. 1880/2012,
RFA CROB. No.4/2014
circumstances, as per Section 114 Illustration (g) and (h) an
adverse inference has to be drawn against defendant No.3.
45. It is the contention of the plaintiff that the father of
defendant No.3 is not a man of source, therefore, he got
defendant No.3 married to defendant No.1 even during the
subsistence of marriage of defendant No.1 with PW.1. It was
also contended that it was defendant No.1 who performed the
marriage of brother of defendant No.3 and is taking care of her
younger sister. Defendant No.1 in his cross examination
admits that in the wedding invitation of the brother of
defendant No.3 the names of himself and defendant No.3 were
shown as hosts of the ceremony. He further admits that
Ramya the younger sister of defendant No.3 stays along with
defendant Nos.1 and 3. Defendant No.1/DW.1 in his cross
examination admits that on schedule J property he has
constructed community centre/Kalyana mantapa and the said
building is named after his parents. He further admits that he
inaugurated the said building. If it was the absolute property
of defendant No.3 there was no reason for defendant No.1 to
construct the building, name the same after his parents and
inaugurate that. That also substantiates the contention that
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RFA No. 1880/2012,
RFA CROB. No.4/2014
defendant No.1 is the true owner of the said property and
defendant No.3 is only a name lender.
46. Withholding defendant No.3 who would have been
the best witness to speak about receipt of money by her from
her father, defendant Nos.1 and 3 selectively examined her
father as DW.3. Even that evidence of DW.3 was not helpful to
defendant Nos.1 and 3 to establish their case that schedule H
and J properties were acquired by her Stridhan. DW.3 states
that he is running Steel furniture and fabrication shop under
the name and style M/s.Mahalaxmi Engineering works in
Magadi town since 1984 and he has landed properties of about
2 acres 22 guntas. He himself admits that he has 3 daughters
and one son. He claims that during the marriage of defendant
No.3 he did not give anything to her, therefore, out of love and
affection he purchased schedule H property in the name of
defendant No.3. The RTCs do not indicate that there was any
crop in those lands. Secondly they related to the period 2011-
12. But, schedule H and J properties were purchased on
29.01.2001 and 25.02.2004 respectively. No records were
produced by DW.3 or defendant No.3 to show that her father
owned the lands during relevant period and the alleged lands
were yielding income to him to fund defendant No.3 to
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RFA No.1879/2012 C/W
RFA No. 1880/2012,
RFA CROB. No.4/2014
purchase the properties. DW.3 claimed that he paid the money
personally to the vendor, but the sale deeds Ex.P11 and 12
show that the purchaser had paid the money. DW.3 in his
cross examination states himself and his brother are in joint
family and there is no partition between them in the joint
family properties. In his own documents Ex.D7 to 11 holder's
name is shown as Maregowda. Whereas DW.3's name is
Mahadevaiah S/o Manchaiah. Therefore, there was no material
to hold that the property shown in Ex.D7 to 9 are his
properties. If the properties were still joint with his brothers
how he could give the money absolutely is also not explained
nor the uncles of defendant No.3 were examined to support the
said contention.
47. DW.3 claims that he is running shop since 1984. In
the cross examination he admits that he did not obtain licence
to run the said shop and he has not produced any record in
proof of running of such shop. He states that he is the income
tax assessee and he holds CST and KST licence to run the
business. But the same were not produced to show that he was
earning income from the same or he had paid money to his
daughter. He claims that he used to earn Rs.6,000/- to
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RFA No. 1880/2012,
RFA CROB. No.4/2014
7,000/- net income and had maintained the accounts for the
same but such accounts were not produced. He admits that he
had performed the marriage of defendant No.3 in a temple but
he does not remember the name of the said temple. To the
suggestion that the marriage of his second daughter and son
were performed by defendant No.1, he says that he himself
funded the expenses of the marriage and defendant No.1
performed the marriages of his second daughter and son. He
admits that his third daughter is in the house of defendant
No.1. Such admissions of DW.3 supports the contention of the
plaintiff that DW.3 had poor financial background, therefore, he
had performed the marriage defendant No.3 with defendant
No.1 and defendant No.1 is taking care of his family.
48. DW.4 is attestor to the sale deed Ex.P11. He was
examined to state that DW.3 funded the purchasing of the said
property by defendant No.3. He claims to be the long time
friend of DW.3. But in the cross examination he states that, he
was not aware of the marriage of defendant No.1 with PW.1.
He admits that defendant No.1 is the attestor to Ex.P11. If
DW.3 funded the purchase, he should have been at least the
attestor to the document and there would have been a recital in
the sale deed that he has paid the sale consideration. DW.4
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RFA No. 1880/2012,
RFA CROB. No.4/2014
himself in his cross examination states that the statement in
his affidavit that he was acquainted with DW.3 since 30 to 40
years is false. Considering the aforesaid facts and
circumstances the trial Court rightly held that defendant No.3
has failed to prove that she purchased the said properties out
of the funds provided by her father and she purchased schedule
J property out of the sale proceeds of plaint schedule H
property. The Trial Court was justified in holding that plaint
schedule H and J properties were joint family properties of
plaintiff and defendant No.1.
49. Plaint schedule A to G properties were the joint
family properties of defendant Nos.1 and 2. On partition
between defendant Nos.1 and 2 as schedule A, F and G
properties were allotted to the share of defendant No.2.
Therefore, they become his absolute properties. Plaintiff can
claim the share only in the properties fallen to the share of his
father i.e., defendant No.1 and the properties acquired by
defendant No.1 out of the income of B to E schedule properties
and the timber business. Since the plaintiff succeeded in
proving that plaint schedule H and J properties were acquired
out of the joint family funds, plaint schedule B to E, H and J
properties become the joint family properties in the hands of
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RFA No. 1880/2012,
RFA CROB. No.4/2014
plaintiff and defendant No.1. The trial Court rightly held that
the plaintiff has to claim through his father and he gets only
the share in his father's share and he cannot claim the share in
plaint schedule A,F and G properties which were allotted to the
share of defendant No.2.
Point No.3:
50. It was contended that purchasers of E and H
properties are necessary parties and in their absence the suit is
bad for non-joinder of necessary parties. Admittedly schedule
H property was sold pending the suit. A party can be called a
necessary party to the suit if his interest is going to be affected
if the case is decided in his absence. In the present case no
share is allotted to the share of the plaintiff in schedule H
property. Thereby the interest of the purchaser of the said
property is not affected. Though half share is given to the
plaintiff in E schedule property, the impugned decree has
further directed to allot the said property to the share of
defendant No.1 and to adjust the plaintiff's share in the other
properties. Thereby the interest of the purchaser of E property
is not affected by the impugned judgment and decree.
Therefore, there is no merit in the contention that the
purchasers of those properties are necessary parties.
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RFA No.1879/2012 C/W
RFA No. 1880/2012,
RFA CROB. No.4/2014
Point No.4: Share of the plaintiff
51. Admittedly defendant No.3 sold plaint schedule H
property and defendant No.1 has sold plaint schedule E
property. Though defendant No.1 claims that he sold plaint
schedule E property for the family necessity, he failed to prove
the alleged family necessity. As rightly observed by the trial
Court. When he sold plaint schedule E property, he was not
residing with the plaintiff and his mother. Therefore, the
contention that he sold the said property for family necessity
deserves no merit. Admittedly, plaint schedule H property was
also sold pending the suit and then schedule J property was
acquired in the name of defendant No.3. Therefore, there was
no reason to disbelieve the contention that the sale proceeds of
H schedule property was utilized in acquiring plaint schedule J
property. Therefore, such sale cannot be said to be for any
immoral purpose. Therefore, plaintiff cannot claim share in H
schedule property.
52. So far as schedule E property, the said property
was not sold for legal necessity. The trial Court rightly held
that the plaintiff was entitled to share in the property, since
defendant No.1 deprived the plaintiff's share in that property by
selling that', that shall be allotted to his share and the share of
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RFA No.1879/2012 C/W
RFA No. 1880/2012,
RFA CROB. No.4/2014
the plaintiff in that property shall be adjusted in plaint schedule
B C D and J properties.
53. Relying on the judgment of the larger bench of the
Hon'ble Supreme Court in Revanasiddappa's case defendant
Nos.1 and 3 contended that defendant Nos.1 and 3 out of their
marriage have two children and they are also entitled to share
in the joint family properties, in their absence, the suit is bad
for non joinder of necessary parties.
54. Admittedly the marriage of defendant Nos.1 and 3
was during the subsistence of his marriage with PW.1.
Therefore, the children born out of such marriage do not
become the legitimate children. In para 74(iii) of the judgment
in Revanasiddappa's case referred to supra relied on by
learned counsel for the appellant himself, on reference it was
held that by virtue of Section 16(3) of the Act child born out of
void marriages gets rights only in the property of his parents
and not in the property of any other person that means in other
coparcener's property. In 74(x) of the said judgment it was
held that though Section 16(3) of the Hindu marriage Act
confers legitimacy under sub-sections 1 and 2 of Section 16,
such child will not be entitled to any or to the property of any
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RFA No.1879/2012 C/W
RFA No. 1880/2012,
RFA CROB. No.4/2014
person other than the parents. Thus it becomes clear that the
said children of defendant Nos.1 and 3 may get right under
Section 8 of the Hindu Succession Act in the share of defendant
No.1 and not in the share of plaintiff. Therefore, they are not
necessary parties to the suit. Similarly plaintiff is not entitled to
the share in the plaint schedule A, F and G properties. The
appeals and cross objection deserve no merit. Hence the
following order:
ORDER
RFA No.1879/2012, 1880/20012, RFA Crob.No.4/2014
and IA No.1/2021 are dismissed.
Having regard to the relationship between the parties, no
order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
PKN,AKC
