Sri. Kempegowda vs Smt. Bhagyamma
2023 Latest Caselaw 1456 Kant

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                                                         RSA No. 595 of 2017




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 21ST DAY OF FEBRUARY, 2023

                                            BEFORE

                              THE HON'BLE MR JUSTICE H.P.SANDESH

                         REGULAR SECOND APPEAL NO.595 OF 2017 (PAR)

                   BETWEEN:

                   1.   SRI KEMPEGOWDA,
                        AGED ABOUT 72 YEARS,
                        S/O LATE DODEGOWDA.

                   2.   SRI CHIKKAMMA,
                        AGED ABOUT 70 YEARS,
                        W/O SRI KEMPEGOWDA.

                   3.   SRI BASAVARAJU,
                        AGED ABOUT 54 YEARS,
                        S/O SRI KEMPEGOWDA,
                        EMME KOPPALU VILLAGE,
                        KASABA HOBLI,
                        HUNSUR TALUK-571105,
                        MYSURU DISTRICT.
Digitally signed
by SHARANYA T
Location: HIGH     4.   SRI REVANNA,
COURT OF
KARNATAKA               AGED ABOUT 50 YEARS,
                        S/O SRI KEMPEGOWDA.

                   5.   SRI SWAMY
                        AGED ABOUT 44 YEARS,
                        S/O SRI KEMPEGOWDA.

                        APPELLANT NOS.1, 2, 4 AND 5
                        ARE RESIDING AT MALLUR VILLAGE
                        (LAKKANAKOPPALU),
                        GAVADAGERE HOBLI,
                        HUNSUR TALUK-571105.
                                                              ...APPELLANTS

                                (BY SRI B.S. NAGARAJ, ADVOCATE)
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                                          RSA No. 595 of 2017




AND:

SMT. BHAGYAMMA,
AGED ABOUT 39 YEARS,
D/O KEMPEGOWDA,
W/O SWAMYGOWDA,
MOOKANAHALLI VILLAGE,
KASABA HOBLI, HUNSUR TALUK,
MYSURU DISTRICT - 570 001.
                                                ...RESPONDENT

                 (BY SRI T.H. AVIN, ADVOCATE)

     THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 05.08.2016
PASSED IN RA NO.455/2014 ON THE FILE OF THE VIII ADJ,
MYSURU, ALLOWING THE APPEAL AND MODIFYING THE
JUDGMENT AND DECREE DATED 07.04.2014 PASSED IN OS
NO.65/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE,
HUNSUR.

     THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

Heard the learned counsel for the appellants and

the learned counsel for the respondent.

2. This appeal is filed challenging the judgment

and decree dated 05.08.2016, passed in

R.A.No.455/2014, on the file of the VIII Additional

District and Sessions Judge, Mysuru.

3. The factual matrix of the case of the plaintiff

before the Trial Court while seeking the relief of partition

RSA No. 595 of 2017

and separate possession is that the suit schedule

properties are the ancestral and joint family properties of

the plaintiff and the defendants. In pursuance of the suit

summons, defendant No.1 appeared and filed the written

statement contending that item Nos.5, 6, 8, 9 and 10 are

the self-acquired properties and also contended that the

plaintiff has taken her share as stated in paragraph

No.16 of the written statement. Based on the pleadings

of the parties, the Trial Court framed the issues with

regard to whether the suit schedule properties are the

ancestral and joint family properties and whether

defendant No.1 proves that item Nos.5, 6, 8, 9 and 10

are the self-acquired properties of defendant No.1. It is

also the contention of defendant No.1 that the plaintiff

has already taken her share and hence the Trial Court

framed an issue whether the plaintiff is entitled for 1/6th

share as contended in the suit. Additional issue is also

framed with regard to non-joinder of necessary parties

that whether the suit is bad for non-inclusion of all joint

family properties. The plaintiff in support of her claim

RSA No. 595 of 2017

examined herself as P.W.1 and got marked the

documents at Exs.P.1 to 25. The defendant No.1

examined himself as D.W.1 and examined two witnesses

as D.W.2 and D.W.3 and got marked the document of

Ex.D.1. The Trial Court after considering the material on

record, answered issue Nos.1 and 2 in partly affirmative

in coming to the conclusion that some of the properties

are ancestral and some of the properties are self-

acquired properties of defendant No.1. Regarding the

plaintiff has taken her share, answered issue as negative

and the Trial Court comes to the conclusion that the

plaintiff is entitled for 1/5th share in respect of item Nos.1

to 4, 11 and 12 of suit schedule properties and not

entitled for share in respect of item Nos.5 to 10.

4. Being aggrieved by the judgment and decree

of the Trial Court, the plaintiff has filed an appeal in

R.A.No.455/2014. Having considered the grounds urged

by the plaintiff in the appeal, the First Appellate Court

formulated the point with regard to whether the

judgment and decree of the Trial Court is erroneous,

RSA No. 595 of 2017

illegal, perverse and not sustainable in the eye of law.

The First Appellate Court on re-appreciation of the

material available on record, allowed the appeal and

modified the judgment and decree of the Trial Court and

decreed the suit as sought in respect of all items of suit

schedule properties and declared that the plaintiff is

entitled for 1/5th share in all the suit schedule properties.

Hence, the present appeal is filed by the defendants

before this Court.

5. This Court having heard the learned counsel

for the appellants, admitted the matter and framed the

substantial question of law as below:

"Under the facts and circumstances of the case and in the light of admission of P.W.1, whether the findings of the First Appellate Court that plaint schedule item Nos.1 to 5 were acquired out of joint family nucleus is perverse"

6. The learned counsel for the

appellants/appellants would vehemently contend that the

plaintiff in the cross-examination categorically admitted

that defendant No.3 left the house when he was aged

RSA No. 595 of 2017

about 18 years and also brought to the notice of this

Court the cross-examination of P.W.1, wherein she has

stated that the family was facing difficulty and hence he

went to Bangalore and was working in Bangalore and

managing the family affairs. It is also brought to the

notice of this Court the admission that when defendant

No.3 went to Bangalore, at that time, the family was

consisting of children and properties were dry lands. A

suggestion was made that defendant No.1 was getting

the income and the same was sufficient only to manage

the family and the same was denied. The learned

counsel would contend that the admission is clear that

defendant No.3 is the elder son of the family and he had

been to Bangalore when he was aged about 18 years and

when P.W.1 was aged about 5-6 years and family was

having difficulties and this admission is very clear that

item Nos.5 to 10 of the properties are self-acquired

properties and the same are purchased out of funds sent

by defendant No.3. Hence, the First Appellate Court

RSA No. 595 of 2017

committed an error in granting the relief in respect of

item Nos.5 to 10 also.

7. Per contra, the learned counsel for the

respondent/plaintiff submits that D.W.1 in the cross-

examination categorically admitted that after meeting the

expenditure he used to get of Rs.25,000/- to Rs.50,000/-

per annum, but when there was no rain they were not

getting even Rs.1,000/- also. The learned counsel

brought to the notice of this Court that D.W.1

categorically admitted in the cross-examination that in

order to show that item Nos.5 to 8 and 12 are purchased

as his self-acquired properties, he has not produced any

documents. The learned counsel would contend that

even for item Nos.1 and 2 also he has categorically

admitted that he has not produced any documents. The

learned counsel submits that D.W.1 categorically

admitted that except agricultural income, he was not

having any independent income and not doing any job

other than agriculture. The learned counsel submits that

defendant No.1 also not denied that the family was

RSA No. 595 of 2017

having agricultural properties and his only contention is

that item Nos.5 to 10 are the self-acquired properties,

but he has not produced any documentary proof with

regard to the said properties are purchased out of his

self-income. The learned counsel submits that it is the

case of defendant No.1 that he had purchased item Nos.5

to 10 out of the money sent by defendant No.3 and he

had sent an amount of Rs.1,000/- by working in

garments, but defendant No.3 has not been examined

before the Court to prove the same. The learned counsel

submits that when the family is having joint family

properties, the Court has to presume that all the

properties are joint family properties. When defendant

No.1 took the defence that it is the self-acquired

properties, burden is on defendant No.1 to prove that out

of the said income he had purchased the item Nos.5 to

10 of the suit schedule properties and no such material is

placed before the Court to substantiate his contention.

8. Having heard the learned counsel for the

appellants and the learned counsel for the respondent

RSA No. 595 of 2017

and also taking note of the answers elicited from the

mouth of P.W.1 and D.W.1, this Court has to consider the

substantial question of law framed by this Court while

admitting the appeal.

9. The learned counsel for the appellants contend

that there is a clear admission on the part of P.W.1 that

the family was not having any income when defendant

No.3 went to Bangalore and hence the First Appellate

Court has committed an error in granting the relief of

partition in respect of all the items of the suit schedule

properties.

10. Having taken note of the material available on

record, no doubt, the Trial Court while answering issue

No.2 comes to the conclusion that defendant No.1 has

proved that the property was purchased out of the

amount which he had received from defendant No.3 and

also taken note of the admission elicited from the mouth

of D.W.1 in the cross-examination that it is the specific

contention of defendant No.1 that he has received

Rs.1,000/- from defendant No.3 and hence, he was able

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RSA No. 595 of 2017

to purchase the suit properties. But an observation is

made that however the plaintiff has admitted that it is

the self-acquired property of her father, but no such

admission is found in the cross-examination of P.W.1.

He only admitted the fact that when defendant No.3 went

to Bangalore, the plaintiff was aged about 5-6 years and

also when the family was facing difficulty, at that time,

defendant No.3 had been to Bangalore. It is admitted

that the family properties are dry land. A suggestion was

made that the income was sufficient only to maintain the

family and the same was denied by P.W.1. There is no

admission on the part of P.W.1 that item Nos.5 to 10 of

the suit schedule properties are purchased out of the

self-income of defendant No.1. The very reasoning given

by the Trial Court in paragraph No.25 of the judgment

that the plaintiff has admitted that it is the self-acquired

property of her father is erroneous. It is stated that

funds were given by the grandmother of the plaintiff to

the father of the plaintiff and the property has been

purchased by defendant No.1 along with Chennegowda.

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RSA No. 595 of 2017

In order to prove the fact that amount was given by the

grandmother of the plaintiff, no material is found.

11. The First Appellate Court while reversing the

judgment of the Trial Court taken note of the evidence

available on record and in paragraph No.21 comes to the

conclusion that on going through the oral evidence of

P.W.1 and D.W.1, there is no dispute about the

relationship between the parties. Admittedly, defendant

Nos.1 and 2 are the parents of the plaintiff and

defendant Nos.3 to 5. The plaintiff pleaded that the suit

schedule properties are the ancestral and joint family

properties. But the defendants denied the entire

pleadings and contended that the suit item Nos.5 to 10

are self-acquired properties. It is observed that the

parties to the suit are Hindus and governed by

Mithakshara law. Normal condition of Hindu Society is

joint and undivided family. Undivided Hindu joint family

is ordinarily joint not only in estate but also in food and

worship. The existence of joint estate is not an essential

requisite to constitute a joint family and a joint family

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RSA No. 595 of 2017

which does not own any property may exist. In other

words, a joint family may exist with or without

possessing joint family properties. The First Appellate

Court taking note of the evidence on record, in paragraph

No.22 comes to the conclusion that the family is having

joint family properties of the plaintiff and the defendants

and defendant No.1 being the kartha of the joint family is

managing the joint family and joint family properties and

also taken note of RTC extracts in respect of item Nos.1

to 4 that they are inherited by defendant No.1 from his

ancestors. Even the defendants have denied this aspect

in their pleadings and D.W.1 in his evidence has not

stated anything about this aspect. But taken note of the

admission given by him in his evidence that the suit item

Nos.3, 9 and 11 are the ancestral properties. Though

defendant No.1 has contended that item No.9 is the self-

acquired property, but in the cross-examination he

admits that it is also an ancestral property and the same

is brought to the notice of this Court by the learned

counsel for the plaintiff. The First Appellate Court taken

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RSA No. 595 of 2017

note of the documents of Exs.P.1 to 6 and 14 to 16 and

those documents are contrary to the evidence of D.W.1.

12. The main contention of the learned counsel for

the appellants is that P.W.1 categorically admitted in the

cross-examination and I have already pointed out that

admission is only in respect of defendant No.3 went to

Bangalore when he was aged about 18 years and at that

time the plaintiff was aged about 5-6 years. The learned

counsel for the respondent also brought to the notice of

this Court that when a suggestion was made that out of

joint family income, they were getting income of

Rs.1,50,000/- and D.W.1 admitted that income would be

Rs.25,000/- to Rs.50,000/- per annum and if no rain,

they would get less than Rs.1,000/-. When defendant

No.1 claims that he had purchased the property out of

funds sent by defendant No.3, it is rightly pointed out by

the learned counsel for the respondent that ought to

have examined defendant No.3 before the Court for

having sent the money. Apart from that, D.W.1

categorically admitted that in order to show that these

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RSA No. 595 of 2017

properties are self-acquired properties, he has not

produced any documents. Admittedly, he was not having

any other avocation other than agriculture and he was

the kartha of the family and he was cultivating the joint

family properties. When defendant No.1 took the specific

defence that he had acquired those properties and those

properties are self-acquired properties, burden lies on

him and the person who asserts before the Court that

those are the self-acquired properties, he has to prove

the same. Admittedly, the family was having other

properties also other than item Nos.5 to 10 and no

grievance with regard to the granting of share in respect

of other properties and only grievance is with regard to

item Nos.5 to 10. When the Trial Court granted the relief

in respect of other items of properties, no appeal was

filed and only the plaintiff has filed the appeal in respect

of item Nos.5 to 10.

13. The Appellate Court on re-appreciation of both

oral and documentary evidence placed on record, in

paragraph Nos.21, 22 and 23 comes to the conclusion

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RSA No. 595 of 2017

that when the joint family exists with joint family

properties and once the family is having joint family

properties, any subsequent acquisitions made in the

name of any member of the family, it assumes the

character of joint family property. Though it is

contended by defendant No.1 that the plaintiff has taken

the share, the same was negatived by the Trial Court and

the same is also not questioned before the First Appellate

Court. When such being the material available on

record, I do not find any error committed by the First

Appellate Court in reversing the finding of the Trial Court

in granting the relief of partition in respect of all the

items of suit schedule properties. The substantial

question of law framed by this Court is with regard to

admission of P.W.1 and the said admission not pertains

to item Nos.5 to 10 and only admission is given with

regard to defendant No.3 went to Bangalore when he

was aged about 18 years and at that time, the plaintiff

was aged about 5-6 years. When such material is

available before the Court and when there is no

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RSA No. 595 of 2017

admission with regard to acquisition of item Nos.5 to 10

are self-acquired properties as contended by the

appellants, I do not find any force in the contention of

the learned counsel for the appellants. The First

Appellate Court has not committed any error in coming

to the conclusion that the plaint schedule item Nos.5 to

10 were also acquired out of the joint family nucleus and

the same is not perverse as contended by the learned

counsel for the appellants. This Court can reverse the

finding only if the finding of the First Appellate Court is

perverse and the same is not against the material

available on record. The First Appellate Court on re-

appreciation of the evidence considering the question of

facts and question of law, allowed the appeal and

granted share in respect of all items of suit schedule

properties in favour of the plaintiff. Hence, the

substantial question of law framed by this Court is

answered in the negative.

14. In view of the discussions made above, I pass

the following:

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RSA No. 595 of 2017

ORDER

The appeal is dismissed.

Sd/-

JUDGE

MD