Karnataka High Court
Smt.Munithayamma vs Sri.L.Devaraju on 19 December, 2023
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A NO.1312 OF 2022
BETWEEN:
SMT.MUNITHAYAMMA
W/O LATE LAKSHMAIAH
AGED ABOUT 72 YEARS
DEAD BY LRS ALREADY ON RECORDS
SRI B L SRINIVAS
S/O LATE LAKSHMAIAH
AGED ABOUT 40 YEARS
BOTH ARE R/AT BOMMANAHLLI VILLAGE
SRIRAMPURA POST, NANDI HOBLI
SRIRAMPURA POST, CHICKBALLAPURA - 562101
ALSO AT NO.013, GROUND FLOOR
SREE PALACE APARTMENT, 4TH MAIN
SUMANGALI SEVASHRAM ROAD, HEBBAL
BANGALORE - 560024
...APPELLANT
(BY SRI.K.N.NITISH, ADVOCATE FOR
SRI.K.V.NARASIMHAN, ADVOCATE)
AND:
1. SRI.L.DEVARAJU
S/O LATE LAKSHMAIAH
AGED ABOUT 50 YEARS
2
SMT B L VINODAMMA
D/O LATE LAKSHMAIAH
W/O KANTARAJU
R/AT 23RD CROSS, CHAMRAJPET JAHEEN KHAN
BUILDING, CHIKKABALLAPURA DISTRICT
DEAD BY HER LRS
2. SRI KANTHARAJU
S/O MUNIKOOLAPPA
AGED ABOUT 55 YEARS
3. SMT MYTHRA
D/O KANTHARAJU
AGED ABOUT 29 YEARS
4. MRS MILANA
D/O KANTHARAJU
AGED ABOUT 25 YEARS
ALL ARE R/O MYLANAHALLI VILLAGE
JALA HOBLI, BENGALURU NORTH TALUK-562149
5. SMT RAMAMANI
D/O LATE LAKSHMAIAH
W/O RAJU
AGED ABOUT 45 YEARS
R/AT HEMARANAHALI POST
SHIDDLAGATTA TALUK
6. SRI B L MUNI VENKATASWAMY
S/O LATE LAKSHMAIAH
AGED ABOUT 43 YEARS
DEFENDANT NO.1 AND 4 ARE
R/AT BOOMANAHALLI POST, SRIRAMAPURA POST
NANDI HOBLI, CHICKBALLAPURA TALUK
3
7. SRI A SATHYANARAYANASWAMY
S/O LATE CHIKKAPPAIAH
AGED ABOUT 60 YEARS
R/AT THANISANDRA VILLAGE
BANGALORE EAST TALUK
BANGALORE - 560045
8. SRI R NARASIMHAIAH
S/O R REDDAPPA
AGED ABOUT 65 YEARS
R/AT 1388, 1ST MAIN, GANDHINAGARA
YELAHANKA TOWN, BENGALURU
9. SRI AVISH KUMAR VILAS KUMAR
S/O VILAS KUMAR NEMICHAND
AGED ABOUT 40 YEARS
R/AT NO 16, KUMARAKRUPA ROAD
BANGALORE - 560001
10 . SRI.C.NARAYAN SWAMY
S/O LATE SRI.CHIKKAPAPANNA,
AGED ABOUT 57 YEARS,
R/AT NO.151, 17TH CROSS, 30TH MAIN ROAD,
J.P.NAGAR, 6TH BLOCK,
BENGALURU - 560078.
...RESPONDENTS
(BY SRI.S.R.DESHPANDE, ADVOCATE FOR R1 & R2;
R3, R4 & R5 NOTICE SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 16.07.2022
PASSED IN RA.NO.115/2016 ON THE FILE OF THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE,
CHIKKABALLAPURA, DISMISSING THE APPEAL AND
4
CONFIRMING JUDGMENT AND DECREE DATED 20.10.2016
PASSED IN OS.NO.475/2007 ON THE FILE OF THE
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC,
CHICKBALLAPUR.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 18.12.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is by the
unsuccessful plaintiffs assailing the concurrent
judgments of the Courts below wherein the plaintiffs'
suit seeking relief of partition and separate possession
is dismissed by both the Courts.
2. For the sake of convenience the parties
are referred to as per their rank before the trial Court.
3. The family tree of plaintiffs and defendants
1 to 4 is as under:
Lakshmaiah (Died)
|
Munithayamma (62 Years) P1
|
------------------------------------------------------------
| | | | |
L.Devaraj B.L.Vinod Ramamani B.L.Venkataswamy B.L.Srinivas
Indra Thanu (29 Years) Veena
(35 Years) (25 Years)
4. The facts of the case are as under:
Plaintiff No.2 and defendants 1 to 4 are the
children of plaintiff No.1-Munithayamma and one
Lakshmaiah. The plaintiffs have filed the present suit
contending that they constitute a joint undivided
family along with defendants 1 to 4 and first
defendant is the Kartha of the family after the demise
of Lakshmaiah. The plaintiffs have also claimed that
the suit schedule properties are in joint possession
and enjoyment of plaintiffs and defendants 1 to 4.
Plaintiffs have alleged that defendants 1 and 4
colluding with each other are acting adverse to the
interest of plaintiffs and that defendant No.1 has sold
item No.3 in favour of defendant No.5. Hence, the
present suit for partition.
5. Defendant No.1 tendered appearance and
filed written statement and stoutly denied the
plaintiffs' claim insofar as item Nos.1, 2, 4, 5 and 8
are concerned. Defendant No.1 has set up a plea of
prior partition by contending that there was a partition
in 1998 and in the said partition, defendant No.1 was
allotted item No.3 towards his share and pursuant to
it, he has sold item No.3 to defendant No.5 under
registered sale deed dated 15.12.2005. Defendant
No.1 further claimed that item Nos.1,2,4,5 and 8 are
his self acquired properties and the same are not
available for partition.
6. Defendant No.4 by way of counter claim
claimed that plaintiffs have not included several
ancestral properties and therefore, claimed share in
the schedule annexed to the written statement.
7. Defendant No.5 claimed to be the bonafide
purchaser of item No.3 from defendant No.1.
Defendant No.7 claimed that defendant No.6 has
purchased suit item No.5 from defendant No.1, who in
turn has sold the same in his favour under registered
sale deed dated 11.3.2009.
8. Plaintiffs and defendants to substantiate
their claims have let in oral and documentary
evidence.
9. Trial Court having examined the pleadings
and oral and documentary evidence answered
additional issue Nos.1 and 2 in the affirmative and has
held that defendant No.1 has succeeded in
establishing that item No.8 is his self acquired
property and that defendant No.1 has succeeded in
establishing that there was a partition in the family in
1988 and he separated from the family by taking one
land i.e. suit item No.3.
10. Trial Court while answering issue Nos.1 to
3 partly in the affirmative declined to accept the
contention of the plaintiffs that items No.1 to 7 are
the joint family ancestral properties. Trial Court while
answering issue No.1 partly in the affirmative held
that suit items 1, 2, 4, 5 and 8 are the self acquired
properties of defendant No.1. The suit was partly
decreed granting 1/5th share to plaintiffs in item
Nos.6 and 7.
11. The appellate Court as a final fact finding
authority having reassessed the entire material on
record was not inclined to accept the contention of the
plaintiffs that items 1, 2, 4, 5 and 8 are joint family
ancestral properties. Appellate Court having taken
cognizance of the rebuttal evidence let in by
defendant No.1 held that item Nos.1,2,4,5 and 8 are
the self acquired properties of defendant No.1. While
taking cognizance of Ex.P4 which is the sale deed
dated 28.01.1975, appellate Court concurred with the
findings recorded by the trial Court on plea of prior
partition set up by defendant No.1. The appellate
Court also took note of the evidence let in by first
plaintiff in the earlier suit bearing O.S.85/2008
wherein first plaintiff claimed that she is acting as the
Kartha of the family after the demise of her husband.
Consequently, appellate Court proceeded to dismiss
the appeal.
12. This Court has admitted the appeal on
22.12.2022 on following substantial questions of law:
"1. The judgment and Decree of the lower
Appellate Court is erroneous as it has mis-
directed itself in appreciating the question of
law and onus is places on the Appellant
without enquiring into that onus is on the
Respondents.
2. The Judgment and Decree of the
lower Appellant Court is vitiated as non-
consideration of relevant evidence and its
judgment and decree has been influenced by
non-consequential matter."
13. Heard the learned counsel for the plaintiffs
and the learned Senior Counsel appearing for
defendant No.8 and learned counsel appearing for
defendant No.1. Perused the concurrent findings of
the Courts below.
14. Plaintiffs 1 and 2 have instituted suit by
contending that the suit schedule properties are the
joint family ancestral properties while defendant No.1
is resisting the suit and has set up a plea of prior
partition. Defendant No.1 has contended that there
was partition in the family on 6.6.1988 and in the said
partition defendant No.1 separated from the family by
taking one ancestral property namely item No.3.
15. Defendant No.1 to substantiate his defence
that there was severance in the family insofar as
defendant No.1 is concerned has produced mutation
at Ex.D20. On perusal, it indicates that there is oral
partition in the family and item No.3 bearing Survey
No.73 is allotted to the share of defendant No.1. The
next crucial document which strengthens the plea of
partition and allotment of item No.3 to defendant No.1
is the deposition of first plaintiff in earlier suit bearing
O.S.No.85/2008 which is marked as Ex.P1 and
confronted to P.W.2. On examining the deposition, it
is clearly evident that plaintiff No.1, who is the mother
of defendant No.1 has admitted the family partition
and allotment of item No.3 to defendant No.1.
Plaintiff No.1 has further admitted that she gave
consent by submitting a Waradhi to mutate the name
of defendant No.1 insofar as item No.3 is concerned.
16. Admissions, if true and clear are by far the
best proof of facts admitted. Therefore, it is a trite
law that the admissions in pleadings or judicial
admissions, admissible under Section 58 of the
Evidence Act, made by the parties before the hearing
of the case, stand on a higher footing than evidentiary
admissions. The pleadings or judicial admissions are
fully binding on the party which makes such an
admission. The admissions in the pleadings constitute
waiver of proof thereof. Pleadings signed by a party
under oath or accompanied by an affidavit offer the
strongest evidence of veracity. The Apex Court in the
case of Nagindas Ramdas .vs. Dalpatram
Ichharam alias Brijram & Others1 held that
judicial admissions can be a basis in themselves while
deciding the dispute between the parties.
(1974) 1 SCC 242
17. The next clinching rebuttal evidence is
Ex.D2 which is the sale deed dated 15.12.2005
executed by defendant No.1 in favour of defendant
No.5. The recitals in Ex.D2 would clinch the entire
controversy relating to severance in the family insofar
as defendant No.1 is concerned. Defendant No.1
while selling item No.3 in favour of defendant No.5
has traced his right based on a family partition in
1988. The same is indicated at unnumbered
paragraph (3) of sale deed vide Ex.D2. Interestingly,
plaintiff No.2 and defendant No.4, who are his
brothers have signed this sale deed as witnesses.
Therefore, it can be inferred that it was well within the
knowledge of plaintiff No.2 and defendant No.4
regarding 1988 partition. There is no cross-
examination by plaintiff No.2 insofar as recitals
relating to family partition indicated in Ex.D2-sale
deed.
18. The other significant details which would
further probabalize the plea of prior partition set up by
defendant No.1 are admissions elicited in the cross-
examination of P.W.2. Plaintiff No.2, who is examined
as P.W.2 has admitted that first plaintiff's mother was
infact managing the family affairs and that she had no
independent earning. Ex.D22 is the application filed
by first plaintiff-mother seeking grant of land bearing
Survey No.109 wherein she has disclosed the holdings
of the family and the first plaintiff in the said
declaration has stated that her family owns only two
properties namely Survey No.61 measuring 2 acres 8
guntas and Sy.No.62 measuring 34.05 guntas. There
are other significant details which are elicited by
defendant No.1 which also gives an indication that
plaintiffs have not approached the Court with clean
hands. Plaintiff No.1, who tendered examination-in-
chief and got the documents marked did not offer for
cross-examination. Plaintiff No.2 in his cross-
examination has admitted that he has constructed a
house in item No.6 bearing Survey No.61 and the said
house is not the subject-matter of partition suit.
While examining additional issue No.4, both the
Courts have found that plaintiff No.1 has gifted one
property to daughter who is defendant No.2. Plaintiff
No.2 admits that this property is also not included.
Defendant No.1 has placed on record properties
purchased by plaintiff No.1 which are marked as
Exs.D5 and D6. These properties are also not
included. Vide Ex.D5, plaintiff No.1 has purchased the
property bearing No.239/1A measuring 1 acre 28
guntas on 17.5.2001 and another property under the
sale deed dated 25.07.2021. When a question is
posed to plaintiff No.2 in the cross-examination, he
has deposed that these properties are the self
acquired properties of his mother. This statement
runs contrary to the admission elicited in the cross-
examination of P.W.2, who has admitted that his
mother had no independent earning.
19. If these significant details are looked into,
this Court is of the view that defendant No.1 has
succeeded in not only substantiating that there is
severance in the family but has also succeeded in
proving item Nos. 1,2,4,5 and 8 are his self acquired
properties. The plaintiffs' narrative that defendant
No.1 was acting as a Kartha of the family and the
above said properties are purchased with the aid of
joint family funds is not substantiated by plaintiffs.
On the contrary, defendant No.1 has succeeded in
leading rebuttal evidence and also by eliciting in the
cross-examination of plaintiff No.2 that it is plaintiff
No.1-mother, who was managing the ancestral
properties. The material on record clearly reveals that
defendant No.1 separated from the family in the year
1988 and therefore, had no access to the joint family
income.
20. So far the legal proposition is concerned,
there is no gain saying that whenever a suit for
partition is filed, the initial burden is on the plaintiffs
to show that all the properties are the joint family
properties. Unless initial burden is discharged, the
onus will never shift on the defendants to demonstrate
that properties purchased were not out of the joint
family nucleus. Since severance is proved, the theory
set up by the plaintiffs that item Nos.1,2,4,5 and 8 are
acquired out of joint family funds stands falsified.
21. Both the Courts referring to the rebuttal
evidence let in by defendant No.1 coupled with several
admissions elicited in the cross-examination of P.W.2
were justified in dismissing the suit insofar as item
Nos.1,2,4, 5 and 8.
22. In the light of the discussions made supra
the substantial questions of law formulated by this
Court are answered in the affirmative and against the
plaintiffs.
23. Hence, I proceed to pass the following:
ORDER
The second appeal is dismissed.
Sd/-
JUDGE
*alb/-
