Karnataka High Court
Smt.Laxmawwa W/O Gangappa Mudhol vs Shri.Gulappa S/O Siddappa ... on 14 July, 2023
Bench: Ashok S. Kinagi, Venkatesh Naik
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RFA.CROB No. 100005 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 14TH DAY OF JULY, 2023
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
RFA CROSS OBJ NO. 100005 OF 2020
IN RFA NO.100429 OF 2017
BETWEEN:
1. SMT. LAXMAWWA W/O. GANGAPPA MUDHOL,
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O: BELAGALI VILLAGE-587113,
TQ: MUDHOL, DIST: BAGALKOT.
2. SMT. GOURAWWA W/O. MALLAPPA MUDHOL,
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: BELAGALI VILLAGE-587113,
TQ: MUDHOL, DIST: BAGALKOT.
3. SMT. RUKAMAWWA W/O. BASAPPA ULLAGADDI,
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O: RADERATTI-591227, TQ: GOKAK, DIST: BELAGAVI.
...CROSS OBJECTORS
(BY SRI.K.S.PATIL, ADVOCATE)
Digitally signed
by
MOHANKUMAR
B SHELAR
Location: HIGH AND:
COURT OF
KARNATAKA
Date: 2023.07.19
16:06:04 +0530 SHRI. GULAPPA S/O. SIDDAPPA BISAGUPPI,
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O: KALLIGUDDI VILLAGE-591227,
TQ: GOKAK, DIST: BELAGAVI.
...RESPONDENT
(BY SRI.S.H.MITTALKOD, ADVOCATE FOR
SRI.VINAY S.KOUJALAGI, ADVOCATE)
THIS RFA.CROB IN RFA NO.100429/2017 IS FILED UNDER
SECTION 96(1) READ WITH ORDER 41 RULE 22 OF CPC, 1908,
AGAINST THE JUDGMENT AND DECREE DATED 06.10.2017 PASSED
IN O.S.NO.94/2010 ON THE FILE OF THE I ADDITIONAL SENIOR
CIVIL JUDGE, GOKAK, PARTLY DECREEING THE SUIT FILED FOR
PARTITION AND SEPARATE POSSESSION.
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RFA.CROB No. 100005 of 2020
THIS RFA COMING ON FOR ORDERS THIS DAY, ASHOK S.
KINAGI J., DELIVERED THE FOLLOWING:
JUDGMENT
This RFA Crob is filed by the cross objectors
challenging the judgment and decree dated 06.10.2017
passed in O.S.No.94/2010 by the I Additional Senior Civil
Judge, Gokak insofar as dismissing the suit in respect of
property bearing R.S.No.32/3B.
2. For the sake of convenience, the parties are
referred to as per their ranking before the trial court.
3. Cross objectors are plaintiffs and respondents
are the defendants. Plaintiffs filed a suit for partition and
separate possession in respect of property bearing
R.S.No.32/3A and 32/3B of Kalliguddi village and
properties bearing R.S.No.45/1E and 45/1F situated at
Raderatti village. It is the case of the plaintiffs that
defendant No.2 was the father of plaintiffs, defendant No.1
and husband of defendant No.3. It is the case of the
plaintiffs that defendant No.1 in collusion with revenue
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authorities and taking undue advantage of old age of
defendant Nos.2 and 3 behind the back got created
documents and mutated his name in the revenue records.
Plaintiffs are in joint possession of the suit properties.
Plaintiffs being the members of Hindu undivided family and
the suit schedule properties are the ancestral properties of
the plaintiffs and defendants. Plaintiffs requested the
defendants to effect partition but the defendants refused
to effect partition. Hence, cause of action arose for the
plaintiffs to file the suit for partition and separate
possession.
4. Defendant No.1 filed written statement and
admitted the relationship with the plaintiffs with them. It is
denied that defendant No.1 got mutated his name in the
revenue records taking advantage of illiteracy of the
plaintiffs. It is further denied that suit schedule properties
are ancestral joint family properties and contended that
plaintiffs are not in possession. It is contended that
plaintiffs marriage was solemnized about 25 years back
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and since then they are residing in their husband's house.
The marriage of the plaintiff was performed by incurring
huge expenses and gave gold ornaments. It is contended
that partition was taken place between his father Siddappa
with his brothers by name Gurupadappa, Laxmappa,
Maharudrappa, Parappa in their ancestral joint family
properties in which Sy.No.45/1E measuring 1 acre 15
guntas was allotted to his father Siddappa and as per
M.E.No.983, the name of Siddappa and brothers were
mutated in respect of the properties bearing Sy.Nos.45/1E
and 45/1F. Since then Siddappa is in possession and
enjoyment of 1 acre 15 guntas of Sy.No.45/1E and hence
the said property is only joint family property of plaintiffs
and defendants. It is contended that Siddappa was doing
mason work and out of the income from the said work, he
purchased Sy.No.32/3A on 02.08.1980 for valid
consideration and the said property was self-acquired
property of deceased Siddappa. Further, deceased
Siddappa had purchased Sy.No.28/1A measuring 1 acre 5
guntas in the name of defendant No.1 when he was minor.
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The said property was got exchanged by Siddappa with his
brother Basappa and as per the said exchange,
Sy.No.28/1A was give to Basappa and Sy.No.45/1F was
taken by deceased Siddappa. Hence, Sy.No.45/1E is self-
acquired property of deceased Siddappa. It is contended
that defendant No.1 is a government job holder and
purchased Sy.No.32/3B on 10.05.1995 for valid
consideration. Since from the date of purchase, defendant
No.1 became absolute owner of the suit property bearing
Sy.No.32/3B. Hence, he prayed to dismiss the suit.
5. The trial court on the basis of the pleadings of
the parties framed following issues:
1) Whether the plaintiffs prove that suit schedule
properties are ancestral and joint family properties
of them and defendants?
2) Whether the defendants prove prior partition as
contended in paragraph No.11 of the written
statement?
3) Whether the defendants further prove that some of
the suit schedule properties are their self acquired
properties?
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4) Whether the defendants prove that court fee paid
by the plaintiffs is incorrect?
5) Whether the defendants prove that this court has
no jurisdiction to entertain the suit?
6) Whether the plaintiffs are entitled for the relief
claimed in the suit? If so, to what extent?
7) What order or decree?
Additional issue:
1) Whether the plaintiffs prove that is defendant No.1
have created some illegal document?
6. In order to prove their case, plaintiff No.3
examined as P.W.1 and got marked documents at Exs.P1
to P14. Defendant No.1 examined as D.W.1 and one
witness was examined as D.W.2 and got marked at Exs.D1
to D51. The trial court after recording the evidence and
considering the oral and documentary evidence answered
issue Nos.1, 3 and 6 partly in the affirmative, issue No.2
in the affirmative and issue Nos.4, 5 and additional issue
No.1 in the negative and consequently decreed the suit of
the plaintiffs in part. It is ordered and decreed declaring
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that plaintiffs and defendant No.1 are entitled for 1/4th
share each in the suit schedule properties and the suit of
the plaintiffs in respect of property bearing R.S.No.32/3B
is dismissed. The defendants aggrieved by the judgment
and preliminary decree preferred appeal in RFA
No.100429/2017 and the said appeal was withdrawn.
Plaintiffs aggrieved by the dismissal of the suit in respect
of R.S.No.32/3B filed this cross objection.
7. Heard the learned counsel for the plaintiffs and
learned counsel for defendant Nos.1 to 3.
8. Learned counsel for the plaintiffs submits that
property bearing R.S.No.32/3B is purchased in the name
of defendant No.1 out of the joint family nucleus. He
submits that though trial court has recorded the finding
that defendant No.1 was a government servant and was
getting meager salary, could have held that said property
was purchased out of his salary. Hence, the trial court
committed an error in dismissing the suit in respect of
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property bearing R.S.No.32/3B. Hence, he prays to allow
the cross objection.
9. Per contra, learned counsel for defendant Nos.1
to 3 submits that initial burden is on the plaintiffs to
establish that family was possessing surplus fund and out
of the surplus fund, defendant No.1 had purchased the
said property. He submits that plaintiffs have failed to
establish that family was possessing surplus fund. He
submits that defendant No.1 was government servant and
he was getting salary and out of the income from the
salary he has purchased the said property. Hence, the said
property is the self-acquired property of defendant No.1.
He submits that trial court was justified in dismissing the
suit in respect of property bearing R.S.No.32/3B. Hence,
he prays to dismiss the cross objection.
10. Heard and perused the records and considered
the submissions of the learned counsels for the parties.
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11. The points that would arise for our
consideration are as under:
i. Whether the plaintiffs prove that
R.S.No.32/3B was purchased out of the joint
family nucleus?
ii. Whether the plaintiffs prove that trial court
has committed an error in dismissing the suit
of the plaintiffs in respect of R.S.No.32/3B?
iii. What order or decree ?
Point No.1:
12. It is the case of the plaintiffs that plaintiffs and
defendants are the members of the joint family and suit
schedule properties are the ancestral joint family
properties of plaintiffs and defendants. Further, it is the
case of the plaintiffs that R.S.No.32/3B was purchased out
of surplus fund and it is the joint family property of
plaintiffs and defendants. In order to substantiate the
case, plaintiff No.3 examined herself as P.W.1 and she has
reiterated the plaint averments in her examination-in-
chief. She got marked Exs.P1 to P14. Ex.P1 is the property
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register extract issued by Gram Panchayat in respect of
VPC No.118 standing in the name of defendant No.1,
Ex.P2 is the RTC extract in respect of R.S.No.32/3A
standing in the name of defendant No.1, Ex.P3 is the RTC
extract in respect of R.S.No.32/3B standing in the name of
defendant No.1, Ex.P4 is the RTC extract in respect of
R.S.No.45/1E standing in the name of defendant No.1,
Ex.P5 is the RTC extract in respect of R.S.No.45/1F
standing in the name of defendant No.1, Ex.P6 is
M.R.No.1245 in respect of land in R.S.No.32/3A and 32/3B
wherein defendant No.1 had purchased the said land
under registered sale deeds and the name of defendant
No.1 was mutated as per Ex.P6. Ex.P7 is the extract of
registered sale deed executed in favour of defendant No.1.
Ex.P8 is the letter addressed by defendant No.2 to
Tahasildar, Exs.P9 and 10 are the tax paid receipts,
Ex.P11 is the extract of registered sale deed and Ex.P12 is
the RTC extract in respect of land bearing R.S.No.32/3B
standing in the name of defendant No.1, Ex.P13 is the RTC
extract in respect of the land bearing R.S.No.45 standing
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in the name of defendant No.1 and Ex.P14 is the RTC
extract in respect of the land bearing R.S.No.32/3A
standing in the name of defendant No.1.
13. From perusal of the said records, plaintiffs have
produced the records to show that except the land bearing
R.S.No.32/3B rest of the properties are the ancestral
properties of plaintiffs and defendants. Insofar as
R.S.No.32/3B is concerned, though plaintiffs have pleaded
in the plaint that said property was purchased out of the
joint family nucleus. In order to establish that said
property was purchased out of the joint family nucleus,
the plaintiffs except pleading have not produced any
records. Mere proof of existence of joint family nucleus
itself would be suffice for the plaintiffs to succeed. Our
answer is an emphatic no. It is too well settled that the
burden is upon the plaintiffs to prove that the joint family
nucleus had income, which was surplus and from out of
the said surplus income, it could be presumed that the suit
property would have been purchased. For this proposition,
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we would like to place reliance on the judgment of the
Hon'ble Apex Court in the case of Rukhmabai vs
Laxminarayan reported in AIR 1960 SC 335 wherein it
is held that, there is no presumption that any property
whether moveable or immovable, held by a member of a
joint Hindu family, is joint family property. The burden lies
upon the person who asserts that a particular property is
joint family property to establish that fact. But if he proves
that there was sufficient joint family nucleus from and out
of which the said property could have been acquired, the
burden shifts to the member of the family setting up claim
that it is his personal property to establish that the said
property has been acquired without any assistance from
the joint family property.
14. As observed, plaintiffs have not produced any
records to show that family was possessing joint family
nucleus. Further, on the contrary, defendant No.1 was
examined as D.W.1 and he reiterated the averments made
in the written statement in his examination-in-chief. He
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has also produced original sale deeds marked at Exs.D1 &
D2, which discloses that defendant No.1 had purchased
the said property out of the income derived from his
salary. Further, the Hon'ble Apex Court in another
judgment in the case of Achuthan Nair vs. Chinnammu
Amma and Others reported in AIR 1966 SC 411 held
that, under Hindu Law, when a property stands in the
name of a member of a joint family, it is incumbent upon
those asserting that it is a joint family property to
establish it. When it is proved or admitted that a family
possessed sufficient nucleus with the aid of which the
member might have made the acquisition, the law raises a
presumption that it is a joint family property and the onus
is shifted to the individual member to establish that the
property was acquired by him without the aid of the said
nucleus. The Hon'ble Apex Court in the case of
Mudigowda vs. Ramachandra reported in AIR 1969 SC
1076 held that There is no presumption that a Hindu
family merely because it is joint, possesses any joint
property. The burden of proving that any particular
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property is joint family property, is, therefore, in the first
instance upon the person who claims it as coparcenary
property. But if the possession of a nucleus of the joint
family is presumed to be joint family property. This is
however subject to the limitation that the joint family
property must be such as with its aid the property in
question could have been acquired.
15. In the case of Baikuntha Nath Pramanik vs.
Sashi Bhusan Pramanik reported in (1972) II
S.C.W.R. 406, a similar view has been expressed by the
Hon'ble Apex Court and it is held that, when a joint family
is found to be in possession of nucleus sufficient to make
the impugned acquisitions, then a presumption arises that
the acquisition standing in the name of the persons who
were in the management of the family properties are
family acquisitions.
16. From these judgments, it can be culled out that
the Hon'ble Apex Court has been taking a consistent view
that, for raising a presumption that a property standing in
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the name of a member of the family would have been
purchased out of the joint family nucleus, two conditions
have to be satisfied. In other words, the burden of one,
who asserts that it is the joint family property, to prove
that first of all there was a joint family nucleus and
secondly, the joint family nucleus has surplus income,
from out of which, one can reasonably presume that the
property in question has been purchased.
17. In the instant case, the plaintiffs have not
produced any record to establish that, prior to purchase of
the land bearing R.S.No.32/3B, the family was possessing
joint family nucleus. The trial Court was justified in
recording a finding that the plaintiffs have failed to
establish that there was joint family nucleus and out of the
nucleus, defendant No.1 had purchased the land bearing
R.S.No.32/3B. The trial Court was justified in dismissing
the suit in respect of land bearing R.S.No.32/3B.
18. In view of the above discussion, we answer
point No.1 in the negative.
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Point No.2:
19. The trial Court placing reliance on Exs.D1 and
D2 and Ex.D36 was justified in holding that the said land
was purchased by defendant No.1 out of his income and
was justified in holding that it is his self-acquired property.
We do not find any grounds to interfere with the impugned
judgment. Accordingly, we answer point No.2 in the
negative.
Point No.3:
20. In view answering points No.1 and 2 in the
negative, we proceed to pass the following.
ORDER
The Cross-objection is dismissed.
No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
MBS para 1 to 14
gab para 15 to end
