Karnataka High Court
Sri Dundegowda vs Eregowda on 26 July, 2024
Author: V Srishananda
Bench: V Srishananda
R.S.A.NO.546/2010
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
R.S.A.NO.546/2010(PAR)
BETWEEN
SRI DUNDEGOWDA
AGED ABOUT 60 YEARS
S/O LATE CHIKKAHYDEGOWDA @ HATTI
CHIKKAHYDEGOWDA,
R/O MATADA DODDI VILLAGE,
C A KERE HOBLI,
MADDUR TALUK
...APPELLANT
(BY SRI M.B.CHANDRACHOODA, ADVOCATE)
AND
1. EREGOWDA
S/O LATE CHIKKAHYDEGOWDA @
HATTI CHIKKAHYDEGOWDA
AGED ABOUT 79 YEARS,
R/AT MADDURAMMA ENTERPRISES,
SOWBHAGYA AGENCIES,
OPP CHARASHEKARA COMPLEX,
NEAR KSRTC BUS STAND,
MYSORE-BANGALORE ROAD,
R.S.A.NO.546/2010
2
MADDUR TOWN
2. M E MAHESHA
S/O EREGOWDA
AGED ABOUT 45 YEARS,
R/AT MADDURAMMA ENTERPRISES,
SOWBHAGYA AGENCIES,
OPP CHANDRASEKHARA COMPLEX,
NEAR KSRTC BUS STAND,
MYSORE-BANGALORE ROAD
MADDUR TOWN
3. SMT M E SOWBHAGYA
D/O EREGOWDA
AGED ABOUT 43 YEARS
R/O VOLAGERE DODDI
KASABA HOBLI
MADDUR TALUK
4. M E SURESHA
S/O EREGOWDA
AGED ABOUT 41 YEARS
R/AT MADDURAMMA ENTERPRISES,
SOWBHAGYA ATENCIES,
OPP CHANDRASEKHARA COMPLEX,
NEAR KSRTC BUS STAND,
MYSORE-BANGALORE ROAD,
MADDUR TOWN
5. M E ERESHA
S/O EREGOWDA
R.S.A.NO.546/2010
3
AGED ABOUT 39 YEARS
R/AT MADDURAMMA ENTERPRISES,
SOWBHAGYA AGENCIES,
OPP. CHANDRASEKHARA COMPLEX,
NEAR KSRTC BUS STAND,
MYSORE-BANGALORE ROAD,
MADDUR TOWN
6. CHIKKANNEGOWDA
S/O LATE CHIKKAHYDEGOWDA @ HATTI
CHIKKAHYDEGOWDA
AGED ABOUT 69 YEARS
R/AT MATADA DODDI VILLAGE
C A KERE HOBLI, MADDUR TALUK
7. CHIKKAMOGEGOWDA
SINCE DEAD BY LEGAL REPRESENTATIVES
7(a) SMT.GOWRAMMA
W/O CHIKKAMOGEGOWDA
AGED ABOUT 38 YEARS
7(b) KEERTHANA M.C
D/O CHIKKAMOGEGOWDA
AGED ABOUT 20 YEARS
7(c) PAVAN M.C
S/O CHIKKAMOGEGOWDA
AGED ABOUT 16 YEARS
SINCE MINOR REPRESENTED BY
HER MOTHER AND NATURAL
R.S.A.NO.546/2010
4
GUARDIAN
SMT.GOWRAMMA
ALL ARE
R/O MATADA DODDI VILLAGE
C.A.KERE HOBLI
MADDUR HOBLI-571 422
8. MARADEVAMMA
D/O CHIKKAHYDEGOWDA @ HATTI
CHIKKAHYDEGOWDA
W/O KEMPEGOWDA
AGED ABOUT 76 YEARS
R/O MULLALLAI DODDI VILLAGE
KASABA HOBLI
MADDUR TALUK
9. DUNDAMMA
D/O LATE CHIKKAHYDEGOWDA @ HATTI
CHIKKAHYDEGOWDA AND
AND W/O KULLARIGOWDA
AGED ABOUT 73 YEARS
R/O THURAGANUR VILLAGE
BANNUR HOBLI, T NARASIPURA TALUK,
MYSORE DISTRICT
10 . DEVAMMA @ SAVITHRAMMA
AGED ABOUT 68 YEARS
W/O EREGOWDA
R/AT MADDURAMMA ENTERPRISES
SOWBHAGYA AGENCIES,
R.S.A.NO.546/2010
5
OPP. CHANDRASHEKARA COMPLEX,
NEAR KSRTC BUS STAND,
MYSORE-BANGALORE ROAD
MADDUR TOWN
...RESPONDENTS
(BY SRI H.C.SHIVARAMU, ADVOCATE FOR C/R2 TO R5
AND R10;
SRI MAHESH R. UPPIN, ADVOCATE FOR R1;
SRI L.RAJA, ADVOCATE FOR R8 AND 9;
SRI KIRAN KUMAR.M, ADVOCATE FOR R7(A AND B);
R7(C) IS MINOR REPRESENTED BY R7(A);
R6 -SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED
08.12.2009 PASSED IN R.A.29/2008 ON THE FILE OF
THE ADDL. DISTRICT JUDGE, MANDYA, PARTLY
ALLOWING THE APPEAL FILED AGAINST THE JUDGMENT
AND DECREE DATED 22.12.2007 PASSED IN
O.S.04/2000 ON THE FILE OF THE CIVIL
JUDGE(SR.DN).MADDUR.
THIS APPEAL HAVING BEEN RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS
DAY, THE COURT PRONOUNCED THE FOLLOWING:-
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
R.S.A.NO.546/2010
6
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE V SRISHANANDA)
This present second appeal is filed by the plaintiff,
challenging the validity of the judgment passed in
O.S.No.4/2000, dated 22nd December, 2007, on the file of
Civil Judge (Sr.Dn), Maddur, confirmed in R.A.No.29/2008,
dated 8th December, 2009 on the file of Additional District
Judge at Mandya.
2. Parties are referred to as plaintiff and
defendants as per their original ranking before the Trial
Court.
3. Facts in brief which are utmost necessary for
disposal of the present second appeal are as under:
4. A suit came to be filed by the plaintiff seeking
partition and separate possession of 7/30th share in the
following properties:
"1. (a) RCC house bearing janjar No.66/A
measuring East-West:20 feet and North-South:83
feet, bounded on East-house of Kullegowda S/o
Siddegowda @ Kothegowda, West-shed being suit
item no.1(b), North-Road, South-land of
Madegowda which has been purchased from
Dadigowda S/o Doddahydegowda.
1. (b) Shed bearing janjar No.66/B measuring
East-West 22 feet, North-South 83 feet, bounded
on East-RCC house being suit item no.1(a), West-
house of Siddegowda, s/o kullegowda, North-Road,
South-land of Madegowda which has been
purchased from Dandigowda, S/o
Doddahydegowda.
2. Shed and also vacant space bearing janjar No.178
measuring East-West 50 feet, North-South 54 feet,
which has been constructed in Sy.No.95/1A,
bounded on East-house of Eregowda, S/o
Chikkegowda, West-house of Chikkamarigowda,
S/o Dodda Karigowda, North-garden land of
channegowda, S/o Ningegowda South-Road.
Properties situated at Kyathaghatta village, C.A.
Kere Hobli, Maddur Taluk:
3. Sy.No. 108/7 measuring 0-15 Ares (inclusive of 0-
05 Ares of Kharab), Assessed at Rs. 0-77, bounded
on East-land of Siddegowda, s/o Karisiddana
Gooligowda, West-Channel and Road, North-land of
Eregowda S/o Karigowda, South-land of
Dyavegowda, s/o Hanumaiah.
4. Sy. No. 90 measuring 0-30 Ares, Assessed at
Rs.3/-, bounded on East-by land of sannamma,
w/o Sannegowda, West land of Siddegowda, s/o
Doddahydegowda, North-Road, South-land in Sy.
No. 141/2A, 142/3A2 and 142/4 being suit items-8,
10 and 11 and also the land of Thayamma.
5. Sy.No. 111/5 measuring 0-12 Ares. Assessed at
Rs. 0-92, bounded on East-land of Motegowda, s/o
Ningegowda, West-land of Puttaswamy, s/o
Uragegowda, North-land of Puttegowda and South-
Land of Chikkegowda S/o Kenchegowda.
6. Sy.No. 139/9 measuring 0-12 Ares (inclusive of 0-
04 Ares of Kharab), Assessed At Rs. 0-38, bounded
on East- land of Siddegowda Piddegowda, s/o
Chikka Kullegowda, West-Road, North-land of
Doddasanga Wodeyar (Archaks of Harihareswhara
temple), South- Hebballa.
7. Sy. No. 141/2A measuring 0-61 Ares, Assessed at
Rs. 3-84, bounded on East-land of Motegowda, s/o
Kempegowda, West-Land in Sy.No. 142/4, North-
land in sy.no. 90 being suit item no.4. South-lands
of Ningamma, w/o Siddegowda @ Moganna and
Siddegowda @ Sothegowda and Ningamma w/o
Juttegowda.
8. Sy.No. 142/1 measuring 0-08 Ares, assessed at
Rs.0-54, bounded on East-land in Sy.No. 142/4,
West-land of Swamy, s/o Ningegowda, North-land
in Sy.no. 142/4 and south-land in sy no. 144/9
being suit item no. 12.
9. Sy.No. 142/342, measuring 0-30 Ares, assessed at
Rs. 2-25, bounded on East-Land of Pattalingamma
@ Тhayamma, West-lands of Siddegowda, s/o
Doddahydegowda @Ningegowda and B. Kargowila
S/o Kaidigowda, North-land in No.90 being suit
item no. 4, South- land of Chikkarajegowda, s/o
Ningegowda.
10. Sy. No. 144/1B measuring 020 Ares, Assessed at
Rs 1-50 consisting of I.P. Set and also a open well,
bounded on East-land of Ningamma w/o
Ningegowda @ Moganna and land in Sy. No 141/2A
being suit item No.7 and Channegowda, West-lands
of Channegowda S/o Kullegowda and Siddegowda,
S/o Kallegowda and Ningegowda @ Moogegowda
S/o Kullegowda, North-Land in Sy.No. 142/4 and
South Hebballa.
11. Sy. No. 144/9 measuring 0-21 Ares, Assessed at
Rs 1-87, bounded on East-lands of Channegowda,
Siddegowda and Ningegowda@ Moogegowda, sons
of Kullegowda, West-land of Channegowda S/o
Chikkakallali gowda, North-land in Sy. No. 142/1
being suit item no.8 and South-Hebballa.
B. Schedule
a) One pair cows used for Rs. 10,000/-
ploughing
b) Jersey cross-breed milking Rs. 30,000/-
cows-3 nos
c) One new Tyre Cart Rs. 18,000/-
d) Sona Masoori paddy, 60 Rs. 40,000/-
quintals
e) Utensils of all kinds Rs. 20,000/-
f) Jack fruit wood furnitures
i) 4 chairs
ii) 1table } Rs. 2,000/-
iii) 5 stools
g) Jack fruit wood ready-made Rs. 10,000/-
pieces for furniture
h) 2000 nos. coconuts Rs. 10,000/-
(herein referred to as suit properties)
Genealogy as is found from the plaint averments is
as under:
Chikkahydegowda @ Hatti Chikkahydegowda
(Died during 1977-78)
=Ningamma (Died on 9/12/1999)
Eeregowda Maradevamma Dundamma Chikkanne Chikkamoge
(D1) (D8) (D9) Gowda (D6) Gowda (D7)
Dunde Gowda
(P1f)
=Devamma@
Sathya
Savithramma
M.E. Mahesha M.E. M.E. M.E. Eresha
(D2) Sowbhagya Suresha (D5)
(D3) (D4)
5. Plaint averments further reveal that
Chikkahydegowda @ Hatti Chikkahydegowda died leaving
behind his wife and children, who are defendant Nos.1 and
6 to 9 as his legal representatives. After death of
Chikkahydegowda, the legal representatives of
Chikkahydegowda with the other members of the joint
family, continued in the joint family and item Nos.1 to 3 of
the suit properties are the ancestral properties and suit
properties are all joint family properties.
6. Plaintiff further contended that he being the
member of the joint family, continued in joint possession
and enjoyment of the suit properties and defendant Nos.2
to 5 being the children of first defendant and defendant
No.10 also continued in joint possession of the suit
properties. Plaintiff, defendant Nos.1, 6 and 7 are sons
and defendant Nos.8 and 9 being the daughters of
Chikkahydegowda had a right in the joint family property
in the share of Chikkahydegowda.
7. Plaintiff further contended that in respect of
suit item No.4, though the same is granted in the name of
defendant No.6 and suit item Nos.5 to 11 having been
purchased by defendant No.1, out of the joint family
nucleus, those properties are also joint family properties.
Plaintiff demanded for the share in the suit property which
was denied by the defendants and therefore, filed the suit.
8. First defendant filed written statement denying
the plaint averments in toto except the relationship among
the parties.
9. Defendant Nos.2 to 5 also filed separate
written statement. Defendant Nos.6 and 7 filed separate
written statement demanding their shares in the suit
property. So also 10th defendant filed separate written
statement and set up the plea of previous partition and
sought for dismissal of the suit.
10. Plaintiff filed rejoinder to the written statement
filed by defendant Nos.1 to 5 and 10.
11. Based on the rival contentions, the trial Court
raised following issues:
1) Whether plaintiff proves that himself
and defendant No.1, 6 and 7 constitute
members of Hindu Undivided Joint
Family?
2) Whether plaintiff proves that suit
schedule properties are either ancestral
or joint family properties of himself and
defendant No.1, 6 and 7?
3) Whether Defendant No.1 to 5 prove suit
item No.5 to 11 of A schedule are
absolute and self acquired properties of
defendant No.1?
4) Whether defendant proves that there
was governance in the joint family at
family arrangement and subsequently
reduced into writing 18/8/1999 as
alleged?
proves that suit is not maintainable as
alleged in para 5 and 7 of written
statement?
6) Whether suit is bad for non-joinder of
necessary parties and mis-joinder of
parties?
7) Whether defendant No.1 proves that
plaint B schedule is not in existence and
imaginary one?
8) Whether plaintiff is entitled for mesne
profit?
9) Whether plaintiff is entitled for share? If
so to what extent and in which of the
suit properties?
10) Whether defendant No.6 and 7 are
entitled for share? If so to what extent?
11) What order or decree?
12. In order to prove the case of the plaintiff,
plaintiff got examined himself as P.W.1 and six witnesses
as P.Ws.2 to 7. Plaintiff placed on record 97 documentary
evidence, which were exhibited and marked as Exs.P.1 to
P.97.
13. As against the evidence placed on record by
the plaintiff, first defendant got examined himself as D.W.1
and defendant Nos.2, 4 and 7 were examined as D.Ws.5, 4
and 6 respectively. Independent witnesses namely;
Ningegowda, K.Thimmegowda, Siddegowda and
Puttaswamy were examined as D.W.2, 3, 8 and 9. As
many as 103 documents were placed on record by the
defendants, which were exhibited and marked as Exs.D.1
to D.103.
14. Thereafter, learned Trial Judge heard the
parties in detail and after considering the oral and
documentary evidence placed on record by respective
parties, dismissed the suit of the plaintiff.
15. Thereafter plaintiff filed an appeal before the
District Court, Mandya, which was numbered as
R.A.No.29/2008.
16. Learned Judge in the First Appellate Court after
securing the records, heard the parties in detail and raised
as many as 10 points and answered as under:
"1) What is the effect of the compromise
entered into between defendants 1 and
6 in the trial court?
2) Whether defendants 1 to 5 and 10
have proved that items 1 to 3 have
been divided under an arrangement
amongst the plaintiff and defendants 1,
6 and 7?
3) Whether the said defendants have
further proved that there was a family
arrangement dt:18.8.1999 as per
which items 1(a) and 7 to 11 were
settled amongst defendants 2 to 5 and
10?
4) Whether item no.4 is acquired as a
grant on behalf of the family, as
contended in the written statement of
defendants 6 and 7?
5) Whether the grant in respect of
itemno.4 is cancelled as pleaded by
defendants 2 to 5 in the written
statement?
6) Whether items 5 to 11 are joint family
properties, acquired from out of joint
family income, as contended by the
plaintiff, defendants 7 to 9 or whether
they are self-acquisitions of 1st
defendant as contended by him and
defendants 2 to 5 and 10?
7) Whether the existence of plaint B
schedule properties is established?
8) Whether the plaintiff is entitled to a
decree for partition and if so, in which
properties and what is his share?
9) Whether the judgment and decree
under appeal call for interference?
10) What order?
Point No.1: The compromise has no
effect.
Point No.2: Negative.
Point No.3: Does not arise for
consideration.
Point No.4: Negative.
Point No.5: Does not arise for
consideration.
Point No.6: Suit schedule items 5 to
11 are the self-
acquisitions of the 1st
defendant.
Point No.7: Negative.
Point NO.8: Plaintiff is entitled to
7/30th share only in items
1 to 3 of the plaint A
schedule.
Point No.9: Partial interference is
called for in the judgment
and decree under appeal.
Point No.10: As per orders."
17. By so answering the points as referred to
supra, learned Judge in the First Appellate Court allowed
the appeal partly and judgment and decree of the Trial
Court in respect of suit schedule item Nos.1 to 3 of 'A'
schedule was set aside and confirmed the decree of the
Trial Court in respect of item Nos.4 to 11 of 'B' schedule
movable property.
18. Suit of the plaintiff in respect of item Nos.1 to
3 in 'A' schedule was decreed declaring that plaintiff has
got 7/30th share in the said properties.
19. Being further aggrieved, the plaintiff has
preferred the second appeal with the following grounds:
The judgment and decree passed by the
courts below are illegal and perverse.
Admittedly, the appellate court has granted a
decree for partition in respect of three items of land.
Thereby, the appellate court has disbelieved the
theory of prior partition. In view of this finding, it
ought to have been held that item Nos.4 to 11 also
were joint family properties.
When once joint family status has been
upheld, it goes without saying that properties
acquired by one of the members of the family also
become joint family properties.
The Defendant No.1 does not have gains or
earnings. He has not proved that he has a separate
income as alleged in the written statement. There is
no description of joint family status. Hence the only
inference is that all the joint family members exerted
and acquired properties.
The courts below have been swayed by the
fact that item Nos.1 to 3 are properties which do not
yield any income. What was sought to be made out
was that all brothers worked together and earned
income enough to buy properties.
Even in respect of item No.4, since defendant
No.6 had no separate income, it ought to have been
held that it was a joint family property.
The courts below have been influenced by the
admission in the previous proceedings. It is
submitted that in the previous proceedings,
appellants were resisting the claim for maintenance
by the wife of Defendant No.1. That does not operate
as an estoppel as the said admission has been
sufficiently explained."
20. This Court by order dated 18.08.2010 admitted the
appeal on the following substantial questions of law.
"(i) Whether the courts below committed an error
in holding that item Nos.4 to 11 of the suit
properties are the self acquired properties of
defendant No.1.?
(ii) Whether the courts below erred when
defendant No.1 had no separate income mere
obtaining of sale deed will make the properties
self acquisition of defendant No.1?"
21. Sri M.B. Chandrachood, learned counsel for the
appellant reiterating the grounds urged in the appeal
memorandum contended that the First Appellate Court
committed an error in excluding the item Nos.4 to 11 of
the plaint schedule property by wrongly holding that they
are self acquired properties of Eregowda, ignoring the fact
that Eregowda acquired those properties when he was the
member of joint family and funds utilized for acquiring
those properties is from the joint family.
22. Admittedly, at the time of acquisition, plaintiff
and defendants being the members of joint family and
there is no proof on record that the Eregowda had
independent income to acquire the item Nos.4 to 11 which
has been ignored by learned Judge in the First Appellate
Court, resulting in miscarriage of justice and thus sought
for allowing the appeal.
23. He emphasised that once the joint family
status has been established by placing necessary material
evidence on record, it should be presumed that any
property acquired by any one of the member of the family,
would automatically become the property of the joint
family, unless such members establishes before the Court
that they acquired the said property by gains of learning or
otherwise. He also contended that in the case on hand,
Eregowda did not place such material and established that
he had independent income so as to acquire item Nos.4 to
11 and therefore, sought for allowing the appeal.
24. Per contra, Sri H.C. Shivaramu, Sri Mahesh R
Uppin, L. Raja and Sri Kiran Kumar, learned counsels for
contesting respondents have all supported the impugned
judgment and sought for dismissal of the appeal.
25. They further contended that material on record
would go to show that Eregowda had independent income
to acquire the property as such it is his self acquired
property which has been rightly appreciated by both the
Courts and thus, sought for dismissal of the appeal.
26. In view of the rival contentions of parties, this
Court perused the material on record meticulously. On
such perusal of material on record, it is crystal clear that
defendant Nos.6 and 7 sailed with plaintiff. Defendant
No.6 however did not place any material evidence on
record to advance his plea.
27. When the case was posted for arguments
before the Trial Court, it is noticed that defendant No.1
filed an application under Order XXIII Rule 3 CPC and tried
to compromise the dispute with the plaintiff. In the very
same petition, it is stated by the plaintiff that defendant
No.7 took his left thumb impression stating that first
defendant had deceived them by contending that they
would get the properties from the first defendant.
Accordingly, it is found that only to help the plaintiff, 7th
defendant has affixed his left thumb impression.
28. However, the compromise was not accepted by
the Trial Court, but it was only referred by the learned Trial
Judge while recording the findings on the material issues.
29. Suit being one for partition, the Trial Court
took into consideration all relevant aspects of the matter
including the written statement filed in O.S.No.608/1994,
on the file of Civil Judge (Jr.Dn) at Maddur, vide Ex.D.1.
The learned Trial Judge, as well as the Judge in the First
Appellate Court have considered the pleadings in
O.S.No.608/1994.
30. In the written statement filed in
O.S.No.608/1994, there is a reference to the registered
relinquishment deed dated 31.03.1986, which was
executed by the 6th defendant in the case on hand. But,
the same was suppressed when the suit was adjudicated
on merits.
31. The material on record therefore, did not bring
out the real facts. On the contrary, the pleadings
contained distorted facts only to suit the respective
contentions.
32. Now coming to the question of the contentions
taken by the appellant that whether there was sufficient
income for Eregowda to acquire item Nos.4 to 11 learned
Judge in the First Appellate Court in paragraph No.56 to 69
has held as under:
"56. Whether items 1 to 3 could have
provided sufficient nucleus for purchase of items 5 to
11 may now be seen. There is no evidence to say
that the non- agricultural properties viz., items 1 and
2 were let out to any one and were rents. As far as
item no.3 is concerned, leaving kharab its extent is
only 10 gunts. Therefore, it is inconceivable that
from items 1 to 3 the other items could have been
acquired. In the very beginning of the discussion
relating to this point, I have already referred to the
decision cited by both the Counsel. One of those
decisions reported in I.L.R. 1993 Kar. 1865
(RAMAPPA BASAPPA PALLAD VS SMT. BASAVA) again
needs to be referred to in this context. Para-21 of
the judgment is very relevant for our purpose and
the same reads as follows:
"Therefore, it cannot be said that in the
absence of other circumstances, property
acquired by a person belongs to the joint
family, solely because, the acquirer was
the manager of the family at the relevant
point of time. In the absence of any
evidence that the family had no sufficient
assets or funds and similarly, the evidence
also in insufficient to trace the source of
funds from which the property was
acquired by the then manager of a joint
family, Court shall have to examine other
circumstances such as the way the
undivided members of the family lived and
treated the newly acquired property and
whether there is any indication that the
manager conducted himself in such a
manner as giving an impression that the
acquired property belonged to the family;
the probability of other members
contributing either labour or their earnings
for the acquisition also has to be
examined, for which purpose, Court may
have to find out whether other members
were in fact earning and handing over
their earning or saving to the manager.
57. It has been contended by the plaintiff that
the 1st defendant even during the life time of
Chikkahydegowda assumed managership. There is
no evidence in that regard. Assuming that he
assumed managership and after the death of
Chikkahydegowda he being the eldest son was the
manager, still it does not automatically follow that
from items 1 to 3, he would have acquired the
remaining items.
58. It is also the case of the plaintiff and it is
stated so in the plaint that due to joint exertion of
himself, defendants 1, 6 and 7, items 5 to 11 have
been acquired. The plaintiff in the affidavit filed by
him in lieu of chief-examination has vaguely stated,
just repeating the plaint averments that by joint
efforts those items have been acquired. He has not
stated what were those joint efforts.
59. Plaintiff has examined 6 other witnesses. All
of them have spoken to joint possession and have
stated have that the parties to the suit have
divided the properties. No one of them has stated
that due to their joint efforts items 5 to 11 were
acquired. It is not their evidence that prior to the
acquisition of items 5 to 11, plaintiff, defendants,
1, 6 and 7 were jointly exerting themselves. They
only speak to the position as it stood as on the
date of their deposition. Therefore, their evidence
is not of any help to the plaintiff to show that due
to joint exertions of himself, defendants 1, 6 and 7
items 5 to 11 were acquired.
60. The next question is whether defendant
no.1 alone has acquired these items. Out of the 9
witnesses examined on behalf of the defendants,
D.W.1 is the 1st defendant, D.Ws.2 and 3 are
witnesses examined on his behalf and on behalf of
the defendants 2 to 5 and 10. DW4 is the 4th
defendant and his evidence is not useful as he was
aged about 29 years in the year 2004 when he
gave evidence in the Court. That means, he was
born somewhere in the year 1974-75 and he was a
very young boy when the sale transaction took
place.
61. D.W.5 is the 2nd defendant and the same is
the position with him.
62. D.W.6 is the 7th defendant and D.W.7 is the
9th defendant. They sail with the plaintiff.
63. D.W.8 speaks to joint possession and
purchase of land belonging to his family by
Chikkahydegowda. He has been examined on
behalf of the non-contesting defendants.
64. D.W.9 is the brother-in-law of defendant
no.6 and he also speaks about joint possession.
65. Therefore, it is only the evidence of 1st
defendant D.W.1 and D.Ws.2 and 3 which is of
relevance.
66. D.W.1 in the affidavit filed by him in lieu of
chief- examination has stated that his father did
not have financial capacity and he was not even
capable of performing the marriage of his children.
Then, he has stated that after he attained majority,
he was doing business in cattle, silk and sugarcane
and that he was supplying sugarcane to the sugar
factory.
67. D.Ws.2 and 3 have also stated so. Of them,
D.W.3 is closely related to the plaintiff and the
defendants and he is the cousin of the plaintiff,
defendants 1, 6 and 7. He was aged about 67
years, when he tendered evidence in the trial
Court. D.W.2 was aged 70 years. Both of them
being aged people could have known about the
affairs of the family of the plaintiff and defendants.
The learned Counsel for the appellant drew my
attention to some of the answers elicited in the
cross-examination of these two witnesses. No
doubt, they have pleaded ignorance to a few
questions. Even assuming that they did not know
about the family affairs, since there is no evidence
to say that Chikkahydegowda had enough financial
capacity to acquire any of the properties and there
is no evidence of items 1 to 3 having that
potentiality, enabling acquisition of the other items
and there being also no evidence of joint exertion
and the sale deeds being in the name of the 1st
defendant, the inevitable conclusion is that it is he
who acquired the said properties.
68. At Ex.D. 10 to D.33, the 1st defendant has
produced number of documents which show that
sugarcane was supplied by him to the sugar
factory. At Ex.D.35 to D.46 pronotes executed by
the 1st defendant in favour of various persons
having borrowed money from them for repayment
of other loans, purchase of bullock carts,
agricultural expenses are produced. Of course, it is
suggested to him that they are concocted. It is also
true that they do not bear the discharge shara.
Even if these documents are ignored, in the
absence evidence to the contrary, inevitable
conclusion is that these items are the acquisitions
of the 1st defendant.
69. The learned Counsel for the respondents 2
to 5 and 10 has in this connection again drawn my
attention to the written statement in
OS.No.608/94. It is true that in a different context
in the judgment I have held that some of the
averments made in that written statement do not
amount to an admission of division. But, certain
other averments made in that written statement
would definitely show that the contesting
defendants did admit in that suit that the father
Chikkahydegowda had no sufficient means to
acquire items 5 to 11. I may now refer to the
relevant portion of the written statement in that
suit. Ex.D.1 is a certified copy of the written
statement and at page-13, para-9, it is stated that
since the father of defendants 1 to 4 of that suit,
who are defendants 6, 1, plaintiff and defendant
no.7 respectively herein, died without leaving any
movable or immovable properties of his own, it was
for the 2nd defendant (the 1st defendant herein) to
maintain the family and he started doing contract
work and earn money. Therefore, this admission
made in the written statement of the previous suit
also helps the contesting defendants in this suit to
show that the acquisitions of items 5 to 11 are by
the 1st defendant only. It cannot also be forgotten
that the sale deeds are in the name of the 1st
defendant. As already noticed, the total
consideration paid for acquisition of these items is
a sum of Rs.36,000-00. In view of all these, I
answer point no.6 stating that items 5 to 11 are
not joint family properties but are self-acquisitions
of 1st defendant."
33. On re-appreciation of the material on record in
the light of the substantial questions of law raised above
and on perusal of the material evidence on record, this
Court does not find any infirmity in the findings recorded
by First Appellate Court. As such, there is no merit in any
of the substantial questions of law so as to allow the
appeal.
34. At any rate, the material evidence on record
especially to advance the case of the appellant hardly any
proof is available to establish that there was sufficient
income (joint family nucleus) which has been utilized by
Eregowda to acquire the property Nos.4 to 11.
35. In other words, doctrine of "joint family nucleus
and spill over'' has not been properly established by the
appellant, so as to consider the items 4 to 11 are also joint
family properties. Resultantly, the findings recorded by the
Trial Court that Eregowda had acquired the properties 4 to
11 by his independent income and as such those
properties are self acquired properties of Eregowda
does not require any interference in view of the foregoing
discussions. Hence, the substantial questions of law raised
above are answered in the negative.
Accordingly, following:
ORDER
Appeal is meritless and hereby dismissed.
No order as to costs.
Sd/-
(V.SRISHANANDA)
JUDGE
MR
