Karnataka High Court

Sri P Subbaratnaiah Shetty vs Sri P Suryaprakash on 7 November, 2023

Bench: P.S.Dinesh Kumar, T G Gowda

                                          R.F.A No.424/2011

                               1

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 7TH DAY OF NOVEMBER, 2023

                           PRESENT

         THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR

                              AND

     THE HON'BLE MR. JUSTICE T.G. SHIVASHANKARE GOWDA

                R.F.A NO. 424 OF 2011 (PAR)

BETWEEN:

1.     SRI. P. SUBBARATNAIAH SHETTY
       S/O SRI. P. NANJAIAH SHETTY
       AGED ABOUT 81 YEARS
       (SINCE DEAD BY HIS LRS)

1(A)   SMT. P. LAKSHMIKANTHAMMA
       W/O LATE P. SUBBARATNAIAH SHETTY
       AGED ABOUT 74 YEARS
       (SINCE EXPIRED ON 14.07.2010
       REP. BY HER LRS).

1(B)   SMT. SUNANDA LAKSHMAMMA
       W/O SRI. D.A. SHETTY
       D/O LATE P. SUBBARATNAIAH SHETTY
       AGED ABOUT 58 YEARS.

1(C)   SRI. P. KODANDA RAMA SHETTY
       S/O LATE P. SUBBARATNAIAH SHETTY
       AGED ABOUT 52 YEARS

1(D)   SMT. RAMALAKSHMAMMA
       W/O SRI. SRINIVASA MURTHY
       D/O LATE P. SUBBARATNAIAH SHETTY
       AGED ABOUT 45 YEARS
                                             R.F.A No.424/2011

                               2

1(E)   SMT. VIJAYALAKSHMI
       W/O SRI. VENKATESH BABU
       D/O LATE P. SUBBARATNAIAH SHETTY
       AGED ABOUT 42 YEARS

1(F)   SMT. SHARADA
       W/O SRI. NARASARAJ
       D/O LATE P. SUBBARATNAIAH SHETTY
       AGED ABOUT 40 YEARS

1(G)   SMT. ANNAPURNA
       D/O LATE P. SUBBARATNAIAH SHETTY
       AGED ABOUT 33 YEARS
       RESIDING AT NO. 516 E
       1ST 'C' MAIN ROAD, II BLOCK
       RPC LAYOUT, VIJAYANAGAR
       BANGALORE-560 040.

2.     SRI. P. SREERAMULA GUPTHA
       S/O LATE P. SUBBARATNAIAH SHETTY
       AGED ABOUT 56 YEARS
       RESIDING AT NO. 516 'E'
       1ST 'C' MAIN ROAD, II BLOCK
       RPC LAYOUT, VIJAYANAGAR
       BANGALORE-560 040.                       ...APPELLANTS

(BY SHRI. N. JAGADISH BALIGA, ADVOCATE)

AND:

SRI. P. SURYAPRAKASH
S/O LATE P. SUBBARATNAIAH SHETTY
AGED ABOUT 54 YEARS
RESIDING AT NO. 1014
E/A, 3RD A MAIN, II STAGE
RPC LAYOUT, VIJAYANAGAR
BANGALORE-560 040.                              ...RESPONDENT

(BY SHRI. G.V. CHANDRASHEKAR, SENIOR ADVOCATE FOR
    SHRI. SANDEEP LAHIRI, ADVOCATE)

     THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 04.12.2010 PASSED IN O.S.6404/1999
ON THE FILE OF THE I ADDL. CITY CIVIL AND SESSIONS JUDGE,
                                                               R.F.A No.424/2011

                                       3

BANGALORE, DISMISSING           THE    SUIT      FOR    THE    PARTITION    AND
SEPARATE POSSESSION.

      THIS RFA, HAVING BEEN HEARD AND RESERVED FOR JUDGMENT
ON 26.10.2023 COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS
DAY, P.S. DINESH KUMAR, J., PRONOUNCED THE FOLLOWING:-

                                JUDGMENT

This appeal by the plaintiffs is directed against the

judgment and decree dated 04.12.2010 in O.S. No.6404/1999

on the file of I Additional City Civil & Sessions Judge,

Bengaluru City, dismissing the suit.

2. Heard Shri. N. Jagadish Baliga, learned Advocate

for the appellants and Shri. G.V. Chandrashekar, learned

Senior Advocate for respondents.

3. For the sake of convenience, parties shall be

referred as per their ranking in the Trial Court.

4. Brief facts of the case are, plaintiffs

Shri. Subbaratnaiah Shetty and one of his sons,

Shri. P. Sreeramula Gupta have brought the instant suit

against Subbaratnaiah's another son Shri. P. Suryaprakash,

praying inter alia for a declaration that plaintiffs are entitled R.F.A No.424/2011

for 1/3rd share each and separate possession in the suit

schedule property. During the pendency of suit,

Subbaratnaiah Shetty passed away. His wife, five daughters

and another son Shri. Kondandarama Shetty have been

substituted as plaintiffs. After trial, the suit has been

dismissed. Hence, this appeal.

5. Shri. Baliga, learned Advocate for the plaintiffs

submitted that Subbaratnaiah had purchased the suit property

in the name of his son Suryaprakash, the defendant herein.

The property was purchased from out of the income earned

from M/s. Sree Rama Traders. Therefore, Subbaratnaiah and

his son Sreeramula are entitled for 1/3rd share. According to

him, the learned Trial Judge has failed to consider the

evidence on record and erroneously dismissed the suit.

6. Shri. Chandrashekar, learned Senior Advocate

argued opposing the appeal contending inter alia that

plaintiffs have failed to aver and prove their case. They have

not arrayed all the coparceners as parties to the suit; and not R.F.A No.424/2011

included all the properties belonging to the family. Therefore,

the suit was not maintainable. The learned Trial Judge, after

proper evaluation of the evidence on record has rightly

dismissed the suit.

7. We have carefully considered rival contentions and

perused the records.

8. It is averred in the plaint that Sreeramula and

Suryaprakash are Subbaratnaiah's sons. They were living

together and doing business in the name and style of

M/s. 'Sree Rama Traders', Bengaluru. It was started as a

Proprietary concern in 1978 by the second appellant. In 1984,

the firm was converted into Partnership. Plaintiffs and

defendant were working together since then. Subbaratnaiah

was the Kartha of the family. From out of the profits earned in

the business, Subbaratnaiah purchased the suit property in

Suryaprakash's name. About a year prior to filing the suit,

Suryaprakash quarrelled with the plaintiffs and started living

separately. Though the property stands in the name of R.F.A No.424/2011

Suryaprakash, it was purchased out of the profits earned by

the joint family business 'Sree Rama Traders'. Therefore, it is

an HUF property.

9. It is further averred in the plaint that since the

plaintiffs and defendant have contributed the funds out of the

profits of joint family business, each member of the joint

family has equal right in the HUF property. It was managed

by Subbaratnaiah right from the date of purchase as the

Kartha of the family. Plaintiffs are the co-owners along with

the defendant and entitled for use and enjoyment of the

property. The cause of action for the suit is mentioned as

December 1996 when Suryaprakash tried to dispossess the

plaintiffs when they demanded partition of the suit property.

10. Defendant has resisted the suit by filing the written

statement contending inter alia that the suit property is his

self-acquired property. He had purchased the same from out

of his earnings and raising loan; and he was discharging the

loan raised by him. The khatha of the property is in his R.F.A No.424/2011

name. After obtaining sanction to the plan, he has constructed

a building in the suit land. Plaintiffs have not contributed any

money either for purchase of the site or construction of the

building. Neither the plaintiffs nor anyone else have any right

in the suit property.

11. He has denied the allegation that M/s. Sree Rama

Traders was jointly started and that it was started as a

Proprietary concern of second plaintiff. Defendant has also

denied other plaint averments.

12. Based on the pleadings, the Trial Court has framed

following issues;

"1. Whether the plaintiffs prove that suit property is the joint family?

2. Whether the defendant proves that suit property is his self-acquired property?

3. Whether the plaintiffs 1/3rd share in the suit property?

4. Is he entitled for the reliefs of partition and separate possession?

5. Whether the plaintiffs prove that attempts were made by the defendant No.1 to sell the suit property?

R.F.A No.424/2011

6. Are they entitled for the relief of permanent injunction?

7. What decree or Order? "

13. On behalf of the plaintiffs, plaintiff No.2 was

examined as P.W.1 and plaintiff No.1(c) as P.W.2; and Exs.P1

to P42 were marked. Defendant got himself examined as

D.W.1 along with two other witnesses as D.Ws. 2 and 3. He

got marked Exs.D1 to D23.

14. Answering issue No.1 & 3 to 6 in the negative; and

issue No.2 in the affirmative, learned Trial Judge has

dismissed the suit.

15. In the light of the pleadings, evidence on record

and the contentions urged by the learned Advocates on both

sides, following points arise for our consideration:

(i) Whether the suit property is a joint family property?

(ii) Whether the suit is bad in law for non-joinder of necessary parties and other properties?

(iii) Whether the impugned judgment and decree calls for any interference?

R.F.A No.424/2011

Re. Point No.(i)

16. Plaintiffs' case is that suit property was purchased

from out of the income earned from M/s. Sree Rama Traders,

which was started as a Proprietary concern in 1978 and later

converted into a Partnership Firm in 1984 between the

plaintiffs and the defendant. Plaintiffs have produced a carbon

copy of a partnership deed dated 20.04.1982, which is

marked as Ex.P13. It shows that the Firm was constituted

among three brothers namely, Sreeramula Gupta,

Kodandarama Shetty and Suryaprakash. Thus, the document

runs contrary to the pleading in the plaint that Partnership

Firm was constituted in 1984 and it was between the father

and two sons. The Original Partnership Firm and the Firm

Registration Certificate are not produced. Therefore, plaintiffs'

claim that father, Subbaratnaiah Shetty is entitled for 1/3rd

share on the premise that the property was purchased from

out of the earnings of M/s. Sree Rama Traders fails because,

as per Ex.P13, the Partnership Deed, father was not a partner

of the Partnership Firm.

R.F.A No.424/2011

17. The Sale deed in respect of the suit property has

been produced at Ex.P9 in O.S. No.3127/2011 filed by

Suryaprakash against his two brothers, Sreeramula Gupta and

Kodandarama Shetty seeking possession of the property. The

said suit has been decreed. The defendants therein have

challenged the decree in R.F.A. No.1038/2019 which has been

heard simultaneously with this appeal. The Sale deed shows

the consideration amount as Rs.70,000/- having been paid by

a Demand Draft bearing No.560871 dated 05.12.1984 by

Suryaprakash. There is no other recital in the document which

may suggest that the consideration amount was paid either

by the Firm, M/s. Sree Rama Traders or any other person.

Defendant has contended in the written statement that he has

purchased the property from out of his personal earnings and

raising loan.

18. Shri. Chandrashekar, learned Senior Advocate

strongly urged that there is absolutely no material on record

to show that property was purchased either by the Firm or by R.F.A No.424/2011

the father. He adverted to the cross-examination of P.W.1 in

support of this contention. P.W.1 is the second plaintiff

Sreeramula Gupta. He has admitted in his cross-examination

that:

 he had not produced the Certificate from the

concerned Department to show that the Firm was

registered;

 he had not produced any document before the Court

to show as to what was the business of the

Partnership Firm;

 he had not produced the account pertaining to the

Partnership Firm;

 the house in Vijayanagar is the own house of

defendant Suryaprakash;

 it is true that, for the construction of house,

defendant had raised loan in the Malleshwaram Co-

operative Society, Bengaluru;

 it is true that defendant had also raised loan in

Canara Bank for his business;

R.F.A No.424/2011

 it is true that the suit property was brought to

auction pursuant to proceeding before the Debt

Recovery Tribunal as defendant had raised loan in

Vysya Bank by mortgaging the suit property;

 it is true that defendant had repaid the loan in the

proceedings before the Debt Recovery Tribunal.

19. P.W.2 is another brother Kodandarama Shetty. He

has also admitted in his cross-examination that:

 he did not know who was the vendor of the suit

property;

 how much consideration was paid to purchase the

suit property;

 it is true that defendant had raised loans from

Malleshwaram Co-operative Society for the

construction of house in the suit property;

 it is true that defendant had also raised loan from

Vysya Bank for his business;

R.F.A No.424/2011

 Vysya Bank had initiated recovery proceedings. It

is true that defendant had repaid the loan amount

by selling his separate property; and

 that he did not know if there were records to

show that suit property is a joint family property.

20. Plaintiffs have produced the statement of Tax

turnover only for the year 1996 as Exs.P31 to 36. They are

the tax returns filed before the Sales Tax Authorities. They

show a turnover between Rs.45,450/- and Rs.53,000/- per

month for the months of January and June to October.

21. The other exhibits are Lease Agreement, Invitation

Card, Telephone Bill etc., and have no evidentiary value to

advance plaintiffs' case that suit property is a joint family

property. Shri. Baliga strongly placed reliance upon D.W.1's

cross-examination, contending that defendant has admitted

that the suit property was purchased by his father. It is

settled that plaintiff has to aver and prove his case and

cannot depend on any lacuna in defendant's case. The said R.F.A No.424/2011

admission reads as "it is true to suggest that on 05.12.1984

the suit schedule property has been purchased by the first

plaintiff from Dr.V.K.Ramanna in the name of myself". The

corresponding suggestion put in the cross-examination would

have been that the property was purchased by the father.

That suggestion is contrary to plaintiffs' pleading that the

property was purchased out of the firm's income. At best it

can be treated as stray admission and the decision in the case

cannot depend on such an admission.

22. Thus, plaintiffs' pleading that suit property was

purchased from out of the income earned from M/s. Sree

Rama Traders is not substantiated with cogent evidence. On

the other hand, both P.Ws. 1 & 2 have admitted in their cross-

examination that defendant had raised loan to construct the

house and for his business by mortgaging the suit property;

and he had repaid the same when recovery proceedings were

initiated.

R.F.A No.424/2011

23. It is settled that proof of existence of Hindu Joint

Family does not lead to a presumption that the property held

by a member of family is joint and the burden rests on any

one asserting that suit item is joint family property to

establish the same. (See Shrinivas Krishnarao Kango Vs.

Narayan Devji Kango and Others1). In this case, plaintiffs

have not discharged their burden with cogent evidence.

24. Therefore, point No.(i) is answered in negative.

Re Point No.(ii)

25. The family tree of Subbaratnaiah Shetty is as

follows:

FAMILY TREE DETAILS

P.Lakshmikanthamma Subbratnaiah Shetty Wife - LR of P1 - P1(a) Plaintiff No.1 - FATHER (Deceased)

Sunanda Lakshmamma Kodandaramashetty Ramalakshmamma Vijaylakshmi Sharada Annapurna P.Sreeramul Gupta P. Suryaprakash Daughter-LR of P1 - Son-LR of P1 - Daughter - LR of Daughter- Daughter Daughter- Plaintiff No. 2 Defendant P1(b) P1(c) P1 - P1(d) LR of P1- LR of P1- LR of P1-

                      Original not made                        P1(e)       P1(f)     P1(g)
                      a party





                 AIR 1954 SC 379
                                                      R.F.A No.424/2011

26. Plaintiffs have brought the instant suit with a

specific averment that the suit property is a Joint family

property. The suit is of the year 1999. One of Subbaratnaiah

Shetty's son, Kodandarama Shetty is not made a party in the

suit. Suit has been decreed. Section 6 of Hindu Succession

Act, 19562 has been amended with effect from 09.09.2005.

The judgment has been pronounced by the Trial Court on

04.12.2010. Yet, Subbaratnaiah Shetty's five daughters have

not been impleaded after the amendment of Section 6 of the

Act. The other joint family properties have also not been

included. Therefore, the suit is bad for non-joinder of

necessary parties and non-inclusion of all the joint family