Karnataka High Court
Basavva vs Lingabasappa on 15 December, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 15TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE H.P.SANDESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO.100030 OF 2015
C/W
REGULAR FIRST APPEAL NO.100075 OF 2015
IN RFA NO.100030 OF 2015:
BETWEEN:
MALLIKARJUN
54 YEARS
S/O MALLAPPA HANDI
PLOT NO.25/2, VIDYAGIRI
BAGALAKOTE DISTRICT - 587 101
.... APPELLANT
(BY SRI C S SHETTER, ADVOCATE)
AND
1. BASAVVA
W/O DYAMANAGOUDA MENASAGI
SINCE DECEASED BY HER LRS.,
1(A) SUVARNA
62 YEARS
W/O ISHWARGOUDA PATIL
SHARNABASAVESHWAR NAGAR
GADAG - BETAGERI
GADAG TALUK & DISTRICT - 581 108
1(B) BASANAGOUDA
60 YEARS
S/O DYAMANAGOUDA MENASAGI
TAGORE ROAD
GADAG TALUK & DISTRICT - 581 107
2
2. LINGABASAPPA
S/O. RUDRAPPA NEELAGUND
SINCE DECEASED BY HIS LRS
MALLIKARJUN HANDI
3. PREMAVVA
65 YEARS
W/O. LINGABASAPPA NEELAGUND
MENASAGI-582507
TALUK RON,
GADAG DISTRICT
4. SHIVAKUMAR
38 YEARS
S/O. LINGABASAPPA NEELAGUND
MENASAGI-582507
TALUK RON,
GADAG DISTRICT
5. DEEPA
33 YEARS
W/O. JAGADISH PATIL
ASUTI - 582 507
TALUK RON, GADAG DISTRICT
6. ROOPA
31 YEARS
W/O. LINGARAJ BELAVATAGI
KITTALI - 587 155
TALUK BADAMI, GADAG DISTRICT
SHIVAPPA
S/O CHANNAPPA NEELAGUND
SINCE DECEASED BY HIS LRS.,
7. SANGAPPA
59 YEARS
S/O. SHIVAPPA NEELAGUND
MENASAGI-582507
TALUK RON, GADAG DISTRICT
8. PRABHU
52 YEARS
S/O. SHIVAPPA NEELAGUND
3
MENASAGI-582507
TALUK RON,
GADAG DISTRICT
9. MALLIKARJUN
48 YEARS
S/O. SHIVAPPA NEELAGUND
MENASAGI-582507
TALUK RON,
GADAG DISTRICT
10. SUSHILAVVA
62 YEARS
W/O. VEERUPAXGOUDA KHANDAPPAGOUDAR,
JAGALUR - 582 209
RON TALUK, GADAG DISTRICT
11. RATNAVVA
53 YEARS
W/O. HULLAPPA CHANDANNAVAR
KARKIKATTI - 582 507
RON TALUK, GADAG DISTRICT
12. SHIVAVVA
47 YEARS
W/O. SHIVAPUTRAPPA NEELAGUND
C/O: RAMANNA YALLAPPA TOTAR (ASUTI)
SAVADI - 582 209, RON TALUK,
GADAG DISTRICT
13. IRAPPA
S/O. CHINNAPPA NEELAGUND
SINCE DECEASED BY HIS LRS.,
13(A). GOURAVVA
58 YEARS
W/O IRAPPA NEELAGUND
MENASAGI-582507
TALUK RON,
GADAG DISTRICT
13(B). BASAVARAJ
39 YEARS
S/O. IRAPPA NEELAGUND
4
MENASAGI-582507
TALUK RON,
GADAG DISTRICT
13(C). CHINNAPPA
33 YEARS
S/O. IRAPPA NEELAGUND
MENASAGI-582507
TALUK RON,
GADAG DISTRICT
...RESPONDENTS
(BY SRI PRASHANT S.HOSAMANI, ADV. FOR R1(A) & R1(B);
SRI S.N.BANAKAR, ADV. FOR R3 TO R6;
NOTICE TO R7 TO R12 ARE SERVED;
NOTICE TO R13(A), (B) AND (C) ARE SERVED;
R2-ABATED;
R3 IS TREATED AS LR OF DECEASED R1)
THIS RFA IS FILED UNDER SECTION 96 OF C.P.C., AGAINST THE
JUDGMENT AND DECREE DATED 20.11.2014 PASSED IN
O.S.NO.64/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC., RON AND ETC.
IN RFA NO.100075 OF 2015:
BETWEEN:
1. BASAVVA
W/O. DYAMANAGOUDA
MENASAGI, SINCE DECEASED BY HER LRS.,
1(A). PREEMA
W/O. LINGABASAPPA NEELAGUND,
AGE: 63 YEARS,
OCC: HOUSEHOLD,
R/O: MENASAGI, TQ: RON,
DIST: GADAG-582507.
5
1(B). SUVARNA
W/O. ISHWARGOUDA PATIL
AGE: 60 YEARS, OCC: HOUSEHOLD,
R/O: SHARANABASAVESHWAR NAGAR,
BETAGERI-GADAG, TQ AND DIST: GADAG.
1(C). BASANAOUDA
S/O. DYAMANAGOUDA
MENASAGI NEELAGUND,
AGE: 63 YEARS, OCC: AGRICULTURE,
TAGORE ROAD, TQ AND DIST: GADAG.
...APPELLANTS
(BY SRI PRASHANT S HOSAMANI, ADV. FOR A1(A) TO (C))
AND:
1. LINGABASAPPA
S/O. RUDRAPPA NEELAGUND
SINCE DECEASED BY HIS LRS., RESPONDENT
NO.2 TO 5.
2. SMT. PREMAVVA
W/O. LINGABASAPPA NEELAGUND,
AGE: 65 YEARS,
OCC: HOUSEHOLD,
R/O: MENASAGI, TQ: RON,
DIST: GADAG-582507.
3. SHIVAKUMAR
S/O. LINGABASAPPA NEELAGUND,
AGE: 38 YEARS,
OCC: AGRICULTURE,
R/O: MENASAGI, TQ: RON,
DIST: GADAG-582507.
4. DEEPA
W/O. JAGADISH PATIL
AGE: 33 YEARS, OCC: HOUSEHOLD,
R/O: ASUTI, TQ: RON,
DIST: GADAG-582507.
6
5. ROOPA
W/O. LINGARAJ BELAVATAGI
AGE: 31 YEARS, OCC: HOUSEHOLD,
R/O: BADAMI, DIST: BAGALKOT-587155.
6. SHIVAPPA
S/O CHANNAPPA NEELAGUND
SINCE DECEASED BY HIS LRS.,
6(A). SANGAPPA
S/O. SHIVAPPA NEELAGUND
AGE: 59 YEARS, OCC: AGRICULTURE,
R/O: MENASAGI, TQ: RON,
DIST: GADAG-582507.
6(B). PRABHU
S/O. SHIVAPPA NEELAGUND
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O: MENASAGI, TQ: RON,
DIST: GADAG-582507.
6(D). MALLIKARJUN
S/O. SHIVAPPA NEELAGUND
AGE: 48 YEARS,
OCC: AGRICULTURE,
R/O: MENASAGI, TQ: RON,
DIST: GADAG-582507.
6(E). SUSHILAVVA
W/O. VEERUPAXGOUDA
KHANDAPPAGOUDA,
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O: JIGALUR, TQ: RON,
DIST: GADAG-582209.
6(F). RATNAVVA
W/O. HULLAPPA CHANDANNAVAR
AGE: 53 YEARS, OCC: HOUSEHOLD,
R/O: KARIKATTI, TQ: RON,
DIST: GADAG-582507.
7. SHIVAVVA
W/O. SHIVAPUTRAPPA NEELAGUND
AGE: 47 YEARS,
7
OCC: HOUSEHOLD,
R/O: MENASAGI, TQ: RON,
C/O: RAMANNA YALLAPPA TOTAR
(ASUTI) OF SAVADI,
TQ: RON, DIST: GADAG-582209.
8. IRAPPA
S/O. CHINNAPPA NEELAGUND
SINCE DECEASED BY HIS LRS.,
8(A). GOURAVVA
W/O. IRAPPA NEELAGUND
AGE: 55 YEARS,
OCC: HOUSEHOLD AND AGRICULTURE,
R/O: MENASAGI,
TQ: RON, DIST: GADAG-582507.
8(B). BASAVARAJ
S/O. IRAPPA NEELAGUND
AGE: 36 YEARS,
OCC: AGRICULTURE,
R/O: MENASAGI, TQ: RON,
DIST: GADAG-582507.
8(C). CHINNAPPA
S/O. IRAPPA NEELAGUND
AGE: 30 YEARS,
OCC: AGRICULTURE,
R/O: MENASAGI, TQ: RON,
DIST: GADAG-582507.
9. MALLIKARJUN
S/O. MALLAPPA HANDI
AGE: 54 YEARS, OCC: ADVOCATE,
R/O: PLOT NO.25/2, VIDYAGIRI,
BAGALKOT,
TQ AND DIST: BAGALKOT-587101.
10. RAVINDRA
S/O ANNAPPA HUNSHYAL
AGE: 53 YEARS
OCC: AGRICULTURE
R/O GADDANAKERI CROSS
TQ: AND DIST: BAGALKOT
8
11. VIRAKTANANDA
S/O SHIDLINGAPPA GULED
AGE: 35 YEARS
OCC: BUSINESS
R/O: KADLIMATTI
TQ: AND DIST: BAGALKOT
...RESPONDENTS
(BY SRI S.N.BANAKAR, ADV. FOR R2 TO R5;
[R2 TO R5 ARE LRS OF DECEASED R1;]
R6 (A TO E) AND R7, R8 (A TO C) ARE SERVED
SRI C S SHETTER FOR SRI HARSH DESAI, ADVOCATE FOR R9;
SRI SRINIVAS B NAIK, ADVOCATE FOR R10;
R11 HELD SUFFICIENT)
THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1
OF C.P.C., 1908, AGAINST THE JUDGMENT AND DECREE DATED
20.11.2014 PASSED IN O.S.NO.64/2007 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC., RON AND ETC.
THESE APPEALS HAVING BEEN HEARD AND RESERVED ON
05.12.2023 COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS
DAY, H.P.SANDESH, J., DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals are filed by the plaintiff and also defendant
No.9 questioning the judgment and decree dated 20.11.2014 passed
by the Trial Court in O.S. No.64/2007 rejecting the claim of the
plaintiff in respect of item No.9 and rejecting the claim of defendant
No.9 in respect of item No.9, plot No.25 of the property which has
been purchased by him.
2. For convenience, parties to these appeals are referred to
as per their ranks before the Trial Court.
3. The factual matrix of the case of the plaintiff before the
Trial court that one Basalingappa is the propositus of the family and he
had two sons by name Rudrappa and Chinnappa. The plaintiff and
Shivavva are the daughters of Rudrappa. Shivavva died issueless.
Rudrappa had no male heir and therefore, he has adopted
Lingabasappa who is the natural son of Chinnappa, Lingabasappa is
defendant No.1, defendant No.2 is the wife of defendant No.1 and
defendant Nos.3 to 5 are the sons and daughters of defendant Nos.1
and 2. The plaintiff also pleaded that defendant Nos.6, 8 and
Shivaputrappa are the sons of Chinnappa and Shivaputrappa died
leaving behind his wife Shivavva who has been arrayed as defendant
No.7.
4. The case of the plaintiff is that the properties at item Nos.1
to 7 shown in the schedule were the properties of Rudrappa. The
properties in item Nos.8 and 9 have been purchased in the name of
defendant No.1 by using the joint family income derived from the
properties at item Nos.1 to 7. Therefore, the plaintiff and defendant
Nos.1 to 5 have got legitimate share in item Nos.1 to 9 properties. It
is also the case of the plaintiff that item Nos.10 to 12 properties are
situated at Menasagi village and those properties are the ancestral
properties of Rudrappa and Chinnappa. No partition has been effected
in those properties and therefore, Rudrappa has got half share in those
properties. The plaintiff also contended that in item Nos.1 to 9
properties, she has got half share and in item Nos.10 to 12 properties,
she has got 1/4th share. It is also her case that she is in joint
possession of the properties along with the defendants. Inspite of the
demand made to allot her share, the defendants refused to give any
share to the plaintiff and hence, she was constrained to file a suit for
partition.
5. In response to the suit summons, defendant Nos.1 to 8
and 9 appeared through their counsel, defendant No.6 died during the
pendency of the suit and his legal representatives have been brought
on record. But inspite of service of summons, the said legal
representatives have not appeared and hence, they have been placed
exparte. Defendant Nos.1, 3, 7 and 9 filed their written statement
separately. Defendant Nos.2, 4 to 6 have adopted the written
statement of defendant No.3.
6. Defendant No.1 has admitted the genealogy furnished by
the plaintiff in the plaint but denied the shares of the plaintiff in all the
schedule properties. On 14.11.1973, himself and Chinnappa got
divided the family properties and in that partition, the share of
Rudrappa was fallen to the share of defendant No.1 and it is as good
as self acquired properties of defendant No.1 which has been came to
him by way of gift from his adoptive father. It is also contended that
properties in item Nos.8 and 9 are his self-acquired properties and in
those properties, the plaintiff has no share. It is further case of the
defendant No.1 that item Nos.10 to 12 properties are the ancestral
properties of himself and Chinnappa but the plaintiff has no share in
those properties. It is his case that the land in Sy.No.2.2/2A, 205/1A
and 206/2A of Menasagi village are the tenanted lands. The right of
tenancy has been granted in his name on 15.09.1971. When those
lands have been granted in the name of defendant No.1, the plaintiff
cannot ask for adjudication of her right in those properties as the
doctrine of res-judicata applies. It is also contended that already he
had filed a suit in O.S.No.25/2005 before the Principal Civil Judge (Sr.
Dn.), Bagalkot and the plaintiff would have impleaded herself in that
suit. He further contended that this Court has no jurisdiction to try the
suit and prayed the Court to dismiss the suit.
7. Defendant Nos.3 and 7 have admitted the case of the
plaintiff and according to defendant No.7, the plaintiff is having half
share in item Nos.1 to 5 properties, 1/4the share in item Nos.6 and 7
properties and the defendant Nos.6 to 8 are having half share in item
Nos.6 and 7 properties. Defendant No.7 has only disputed quantum of
share and not denied the right of the plaintiff in the schedule
properties.
8. Defendant No.9 is the purchaser of the property bearing
plot No.25/2 situated in Sy.No.131/1 at Murnal Vidyagiri Bagalkot. He
contended that defendant No.1 was the absolute owner of plot No.25/2
and from him, defendant No.9 purchased the property for valuable
consideration and therefore, he is the bonafide purchaser. It is also his
contention that, already defendant No.1 has filed a suit in
O.S.No.25/2005 and that suit came to be dismissed on 17.09.2009.
After dismissal of the suit, he purchased the property from defendant
No.1. Thus, he is in possession of purchased property and running cool
drink shop in that plot. Hence, he claims that he is the absolute owner
of the purchased property and the plaintiff or other defendants have
no share over the same.
9. The Trial Court having considered the pleadings of the
parties framed the following Issues:
1. Whether the plaintiff proves that, the suit properties are
the Hindu undivided family properties of the plaintiff and
defendants?
2. Whether the first defendant proves that the Court fee paid
by the plaintiff is not proper?
3. Whether the plaintiff is entitled to get share in the suit
properties by way of partition and separate possession? If
so, to what extent?
4. What order or decree?
ADDITIONAL ISSUE
1. Whether defendant No.9 proves that, he is bonafide
purchaser for suit house situated in Murnal R.S.No.131/1
plot No.25/2 of Vidyagiri, Bagalkoti for valuable
consideration?
10. The plaintiff, in order to prove her case, herself examined
as PW1 and got marked the documents at Ex.P1 to P17. On the side
of defendants, defendant No.1 and 9 examined themselves as DW1
and DW2 and got marked the documents at Ex.D1 to D5. The Trial
Court having considered the material on record decreed the suit in part
and granted 1/4th share in item Nos.1 to 8 properties and 1/8th share
in item Nos.10 to 12 properties and rejected the claim of the plaintiff
in respect of item No.9 property and answered Additional Issue as
negative in coming to the conclusion that sale deed executed by
defendant No.1 in favour of defendant no.9 is not binding on the share
of the plaintiff and defendant Nos.2 to 5.
11. Being aggrieved by the judgment and decree of the Trial
Court, RFA No.100075/2015 is filed by the plaintiff contending that the
very approach of the Trial Court is erroneous in dismissing the suit in
respect of item No.9 of the suit properties in coming to the conclusion
that no material is placed to substantiate the claim in respect of item
No.9 which resulted in miscarriage of justice.
12. It is the contention of the counsel for the appellant/plaintiff
that in the first instance, there is no evidence to show that defendant
No.1 had the sufficient earnings at the time when item No.9 property
came to be acquired. Admittedly, there was sufficient income in the
joint family that is adequate nucleus was there at the time of
acquisition of suit item No.9 property. Hence, it was legal, proper and
correct to opine that with the help of the income of joint family
property, suit item No.9 property was acquired and built. It is also the
contention that there was naturally a presumption that it is a joint
family property. Thus, the burden of proving that it was a self acquired
property of defendant No.1 was squarely on him. The Trial court
committed an error in coming to the conclusion that defendant No.1
was running tea stall and soda business, then the Trial Court has
illegally jumped to the conclusion that he must have then sufficient
income not only to eke his livelihood but also so as to acquire item
No.9 property. This was basically illegal and without any basis. The
arrival of conclusion by the Trial Court that plaintiff is not entitled for
any share in item no.9 of the property is erroneous. Hence, prayed
this Court to grant the decree of half share in respect of item No.9
property also and be awarded separate possession of half share in
favaour of plaintiff by way of partitioning by metes and bounds.
13. The appellant/defendant No.9 in RFA No.100030/2015
prayed the Court to set aside the judgment 20.11.2014 insofar as
awarding share in the property bearing plot No.25/2 out of land
R.S.No.130/1 of Murnal, Bagalkot holding that sale deed was executed
by defendant No.1 in favour of the appellant is not binding on
respondent Nos.1, 3 to 6 is concerned and allow the appeal.
14. This appeal is filed by defendant No.9 and the grounds
urged in the appeal memo is that the suit is filed for the relief of
partition and separate possession and while seeking the relief
particularly at Sl. Nos.8 and 9 of the schedule, the plaintiff has to give
full description of the properties including the property number,
measurement, boundaries, lane in which they are situated, etc., as
required under Order VII Rule 3 of CPC. It is also contended that
Lingabasappa initially was serving in tea powder depot and slowly, he
started selling tea powder and he started cool drinks house at Bagalkot
and he earned money from out of the same. From out of his earnings,
he purchased plot No.25/2 in land R.S.No.130/1 measuring 58 feet
east to west and 40 feet north to south from Maliksab Murtujasab
Dangi under a registered sale deed dated 02.11.1976 for a sale
consideration of Rs.1,500/-. He had also obtained the building
permission from the City Municipal Council, Bagalkot on 19.06.1999
and constructed building in plot No.25/2. Hence, the said property
was the self-acquired property of said Lingabasappa. Consequently,
the plaintiff and other defendants have no right, title or interest over
the said property. But the Trial Court fails to consider this aspect.
Hence, the Trial Court should have rejected the claim of partition. No
foundation was laid to show that the family had not only nucleus but
the same was sufficient to purchase the plot and construct the building
in plot No.25/2 so as to characterise it as family property. The
appellant after making necessary enquiry with regard to the title and
possession of the defendant, purchased the same for valuable
consideration vide sale deed dated 22.09.2009 for a sale consideration
of Rs.21,42,000/-. The Trial Court has not considered the admission
of PW1 to the effect that respondent No.2 is a hard worker and had
independent source of income and out of which, he had purchased the
property more particularly the property purchased by the appellant
hence, the over all approach of the Trial Court is erroneous.
15. The learned counsel appearing for defendant Nos.3 to 6
also would vehemently contend that there is no proper pleadings of
separate property of defendant No.1 and sale deed executed by
defendant No.1 is not binding on the plaintiff or other defendants. No
issue is framed regarding self-acquired property and Trail Court failed
to consider the material on record and committed an error. The
counsel also would vehemently contend that the properties are
purchased out of joint family nucleus and finding that not entitle for
share in item No.9 is erroneous.
16. The learned counsel appearing for respondent No.11, in
respect of item No.9 is concerned, would vehemently contend that the
said property was purchased out of the self income of defendant No.1
and he had sold the same for valuable consideration and two sale
deeds were exchanged in the year 2012 and 2018. The counsel also
brought to notice of this Court that in the cross-examination of PW1,
she categorically admitted in paragraph 3 that defendant No.1 was
residing at Bagalkot and he was doing business and rightly dismissed
the claim made by the plaintiff in respect of item No.9 thus, the
question of interfering with the findings of the Trial Court does not
arise.
17. In reply to the arguments, the counsel appearing for the
appellant would vehemently contend that the initial burden is on the
plaintiff to prove her case and the Trial Court committed an error in
granting the relief in respect of item No.8 also hence, the very
approach of the Trial Court is erroneous since the plaintiff has not
proved that out of the joint family nucleus, plot No.25/2 has been
purchased.
18. The counsel in support of his arguments, relied upon the
judgment reported in (2011) 9 SCC 451 in the case of
MARABASAPPA (DEAD) BY LRS. AND OTHERS vs NINGAPPA
(DEAD) BY LRS. AND OTHERS and brought to notice of this Court
paragraphs 13 and 25 wherein the Apex Court held that there is no
presumption of joint family property, and there must be some strong
evidence in favour of the same. Merely the parties are belongs to the
joint family, the Court cannot presume the same.
19. Having heard the learned counsel appearing for the
respective parties, the points that would arise for the consideration of
this Court are:
(1) Whether the Trial Court committed an error in
dismissing the suit in respect of item No.9 of the
property and whether the plaintiff is also entitled for
the relief of judgment and decree in respect of item
No.9 as sought in RFA No.100075/2015?
(2) Whether the appellant/defendant No.9 in RFA
No.100030/2015 made out the grounds to set aside
the judgment and decree dated 20.11.2014 insofar
as awarding share in the property bearing plot
No.25/2 in land R.S.No.130/1 of Murnal, Bagalkot
holding that the sale deed executed by the defendant
No.1 in favour of the appellant is not binding on the
parties?
(3) What order?
Point Nos.1 and 2:
20. Having considered the pleadings of the parties, it discloses
that the plaintiff claims that the suit schedule properties are the joint
family properties. One Basalingappa had two sons i.e., Rudrappa and
Chinnappa. The said Rudrappa died in the year 1971 leaving behind
his legal heirs Shivavva, Basavva and Lingabasappa. The suit is filed
by one of the daughter of Rudrappa that is Basavva. It is stated that
her sister Shivavva died without legal issues. Defendant No.1 is the
brother of the said Basavva and children of said Lingabasappa and his
wife Premavva were made as defendant Nos.2 to 5. It is also their
case that Chinnappa had three sons i.e., Shivappa, Shivaputrappa and
Erappa. Shivappa is arrayed as defendant No.6, Shivaputrappa died
and hence, his wife is arrayed as defendant No.7 and Erappa is
arrayed as defendant No.8. It is the claim that the suit schedule
properties at item Nos.1 to 7 are the properties of deceased Rudrappa.
After the amendment to Section 6 of the Hindu Succession Act in the
year 2005, the plaintiff and defendant No.1 is entitled for half share
each in these properties. The properties in Sl.Nos.8 and 9 are
purchased from the Hindu Joint Family income in the name of
defendant No.1. As such, the plaintiff is also entitled for half share in
these properties. Sl.Nos.10 to 12 are situated at Menasagi village and
the same are also the ancestral properties of Rudrappa and Chinappa
and in these properties also the plaintiff is entitled for the share. It is
also contended that the said properties are also owned by Rudrappa
and Chinappa and there is no partition in these properties wherein the
plaintiff has got 1/4th share whereas defendant Nos.6 to 8 were also
included in the suit.
21. Defendant No.1 in the written statement contended that
the very claim of the plaintiff that all the properties are joint family
properties and the same are acquired out of the joint nucleus is not
correct. It is his claim that he left the house in the year 1958 itself and
he started to work at Bagalkot by joining a shop and thereafter he
started doing his own business and out of his income, he had
purchased item Nos.8 and 9 of the suit schedule properties. The other
defendant No.3 supported the claim of the plaintiff. Defendant No.7
also almost supported the claim of the plaintiff. Defendant No.9 who
had purchased the property subsequently had filed the written
statement contending that he is the bonafide purchaser of item No.9 of
the suit schedule property.
22. The Trial Court having considered the pleadings of the
parties comes to the conclusion that the suit schedule properties are
the Hindu Undivided family properties of the plaintiff and the
defendants. Item Nos.1 to 7 and 10 to 12 are the ancestral properties
and item No.8 property is the joint family property of plaintiff and
defendant Nos.1 to 5 and the same is purchased out of joint family
nucleus. With regard to item No.9 is concerned, the Trial Court comes
to the conclusion that the same is self-acquired property of defendant
No.1. The additional Issue is answered as negative in coming to the
conclusion that defendant No.9 is not the bonafide purchaser of suit
house situated at Murnal, R.S.No.131/1, plot No.25/2 of Vidyagiri,
Bagalkot. The Trial court while considering the material on record
taken note of the pleadings of the parties and also while answering
Issue No.1 taken note of the admission given by PW1 that defendant
No.1 previously working in the Kirana shop and thereafter he had
started his business of soda and tea powder. Hence, the admission of
PW1 is sufficient to hold that defendant No.1 was having business at
Bagalkot. PW1 denied the fact that defendant No.1 purchased item
No.8 property by using his fund. But the Trial Court declined to accept
the contention that defendant No.1 is having sufficient financial
capacity to purchase the same out of his business income since he has
not produced any documentary proof like passbook or registers of his
business to show that he had purchased the same out of his own
savings.
23. The Trial Court also taken note of the fact that business
admitted by PW1 might be sufficient for the livelihood and from such
admission it cannot be inferred that the defendant No.1 is receiving
surplus income from the business so as to acquire the property. The
Trial Court comes to the conclusion that the evidence of DW1 and DW2
and material placed on record are not sufficient to establish that item
No.8 property is the self-acquired property of defendant No.1. The
fact that family is having large extent of property is not in dispute.
The said property is inherited from Rudrappa. The admission is also
clear that DW1 is not having any document to show that he was
having surplus income. In the cross-examination of DW1 categorically
admits that he was taken in adoption in the year 1967, at that time his
adoptive father was also alive and he died in the year 1973. He also
categorically admits that when Rudrappa passed away, at that time,
he himself and his natural father Chinappa were together but he claims
that after the death of Rudrappa, he got partitioned the property. He
categorically admits that item Nos.10 to 12 are retained by himself
and the children of Chinappa jointly and the very properties are still
are in the joint name. But he claims that daughter of Rudrappa that is
Shivavva was cultivating half of the property. But he admits that in
respect of Sy.Nos.202, 205, 206, there is an entry and he also admits
that Shivavva married prior to his marriage. He also admits that item
Nos.1 to 3 belongs to the family and the same are tenanted
properties. Rudrappa was cultivating the same and he derived those
properties as tenanted properties and his name has been entered after
the death of Rudrappa. It is the claim of DW1 that he worked for a
longer period and then he started his business.
24. Considered admission and also the evidence of PW1
wherein it is stated that all the properties were belongs to the family of
original propositus. There is no dispute with regard to the relationship
between the parties. Hence, we do not find any error committed by
the Trial Court in coming to the conclusion that defendant No.1 has not
proved the fact that he was having surplus income from his business
to acquire the property as contended. The finding given by the Trial
Court in respect of item No.8 is concerned based on admission of DW1
and specific admission of continuing with the family and no partition in
respect of item No.10 to 12 also and the same is also a joint family
property, hence, we do not find any error in the order of the Trial
Court after reanalysing the evidence of PW1, DW1 and DW2 and
purchased the same during the pendency of the suit.
25. The other contention is in respect of item No.9 of the
property. On perusal of item No.9 it discloses that there are two
houses and those houses are situated at Navanagar, Bagalkot. The
title deed of the properties also marked as Ex.P11. It is also not in
dispute that the property has been granted by the Government in the
name of defendant No.1. It is also important to note that PW1
categorically admitted in the cross-examination that defendant No.1
was residing at Bagalkot and also there is an admission that the
Government has granted the site at Navanagar for the residents of
Bagalkot. But the fact that Menasagi village is far away from Bagalkot.
It is pertinent to note that PW1 in her cross-examination categorically
admitted that the Government has allotted the site in the name of
defendant No.1 and also the categorical admission is given in the
cross-examination that defendant No.1 alone has paid the amount of
the site but a claim is made that the said amount is also paid out of
the joint nucleus of the family properties. In order to prove the
factum that the payment is made out of the joint nucleus, no material
is placed on record to show that he had used agricultural income to
acquire the site. But the fact that the Government has collected the
nominal price for the site is also not in dispute. DW1 categorically
admitted before the Court that site was allotted to him and he had
purchased the same from his self earned income.
26. In the cross-examination of PW1 it is admitted that
defendant No.1 started the soda shop in the year 1978 and also
categorically admitted that in Menasagi village, Shivavva only
cultivating the agricultural property. The other admission is also very
clear that Rudrappa adopted defendant No.1. PW1 also categorically
admits that defendant No.1 is running both tea shop as well as soda
shop and out of these two business, defendant No.1 getting the
income. In order to substantiate the claim of PW1 that the
consideration of site instalment was paid out of the agricultural
income, no documents are produced except voluntarily making self
styled statement.
27. Having considering the material admissions on the part of
PW1, the Trial Court comes to the conclusion that item No.9 of the suit
schedule property is a self acquired property of defendant No.1. The
Trial Court discussed the same in paragraph 23 of the judgment and
rightly comes to the conclusion that in item No.1 to 7 properties as
well as in item Nos.8 to 10, the plaintiff and defendant are entitled to
the extent of half share excluding item No.9. This Court comes to the
conclusion that cogent evidence have not been ignored by the Trial
Court while considering the material on record and hence, we do not
find any error committed by the Trial Court in granting the decree in
respect of those properties excluding the item No.9 of the suit
property.
28. The very claim of other appellant is that the Trial Court
committed an error in granting the relief in respect of item No.8 and
such finding is against the material and this Court has to consider the
material on record. Admittedly, the family is having the properties is
not in dispute. No doubt, the counsel would vehemently contend that
the Trial Court committed an error in including item No.8 property as
the joint family property and we have given anxious consideration on
this point considering the material available on record and also re-
analysed the material on record.
29. It is also important to note that defendant No.9 had
purchased the property during the pendency of the suit that is in the
year 2009 and the fact that the suit was filed in the year 2007 and the
same is not in dispute. Defendant No.9 would vehemently contend
that he is the bonafide purchaser and he has made his efforts before
purchasing the property. The Trial Court ought not to have granted
the decree in respect of the property bearing plot No.25/2 out of the
land in R.S.No.131/1. No doubt, it is the contention of the counsel
that Trial Court committed an error in including the said property while
granting the relief and the very approach that sale executed by
defendant No.1 in favour of the appellant is not binding is erroneous.
No doubt, he had purchased the property on 22.09.2009 for
Rs.21,42,000/- and also it is the claim of the plaintiff that they have
taken paper notification in terms of Ex.P16 and P17. The said fact has
been taken note of by the Trial Court while answering Additional Issue
No.1. Defendant No.1 was also aware of the fact that already the suit
was pending and he appeared in the said suit and also filed the written
statement and inspite of it the sale deed has been executed in the
name of defendant No.9. No doubt, it is the claim of defendant No.9
that he was not having any knowledge about the pendency of the suit.
It is the duty cast upon the purchaser before purchasing the property
to make an enquiry but defendant No.9 has not made any such
enquiry to know that defendant No.1 is having absolute right to sell
the property or not and also not examined whether the properties are
standing in the name of defendant No.1 exclusively. It is also
admitted fact that defendant No.9 is a practicing advocate. When, suit
was also pending before the Court, being an advocate, he was
expected to ascertain the title of the defendant No.1. If defendant
No.9 made such effort in enquiring the title as well as any dispute in
respect of the suit schedule properties is concerned, would have come
to know about the truth but nothing is placed on record to show that
before purchasing the property he made an enquiry and thereafter
only he had purchased the same. But the fact that the property was
purchased during the pendency of the suit is not in dispute hence, it is
hit by principles of lis-pendence. The Trial Court also taken note of the
principles laid down in the judgment reported in KCCR 2014 (3)
2382. Having analysed the material available on record, Trial Court
comes to the conclusion that defendant No.9 is not the bonafide
purchaser and answered additional issue as negative. Having
reassessed the evidence by us giving anxious consideration to the
material on record, we do not find any error committed by the Trial
Court in rejecting the claim of defendant No.9 contending that he is a
bonafide purchaser and not committed any error in coming to the
conclusion that sale deed executed by defendant No.1 in favour of
defendant No.9 is not binding on the share of the plaintiff and
defendant No.2 to 5 since the purchase was made during the
pendency of the suit and not discharged his burden before purchasing
the property by verifying the title as well as whether vendor is having
absolute right in executing the sale deed. No doubt the counsel for the
appellant brought to notice of this Court the principles laid down in the
judgment of MARABASAPPA case, but the admission given by the
witnesses that not made prior enquiries and the fact that suit property
was purchased during the pendency of the case, the said judgment will
not come in the way to aid of the appellant that as no presumption
cannot be accepted. Hence, we do not find any error committed by
the Trial Court in allowing the suit in part and declining the claim of
defendant No.9. Unless the material evidence has not been considered
by the Trail Court, the question of reversing the finding does not arise.
Hence, we answer both the points as negative.
Point No.3:
30. In view of the discussions made above, this Court passes
the following:
ORDER
Both the appeals are dismissed.
No Cost.
Sd/-
JUDGE
Sd/-
JUDGE
SN
