Karnataka High Court

Vishweshwar @ Vishwanath S/O Shiva Bhat ... vs Tammanna S/O Ramanath @ Ram Shiva Bhat on 7 March, 2024

     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

         DATED THIS THE 07TH DAY OF MARCH, 2024

                           BEFORE

          THE HON'BLE MR JUSTICE C. M. POONACHA

       REGULAR SECOND APPEAL NO. 351 OF 2006 (PAR)

BETWEEN

1.    VISHWESHWAR @ VISHWANATH
      S/O SHIVA BHAT JOSHI
      SINCE DECEASED BY HIS LRS

1(A) MANJUNATH VISHWANATH BHAT
     AGED: 43 YEARS, HONNEGADDE
     TQ: YELLAPUR,
     DIST: NORTH KANARA-581359.

2.    GANAPATI S/O SHIVA BHAT JOSHI
      SINCE DECEASED BY HIS LRS

2a. DATTATREYA S/O. GANAPATI BHAT
    AGED 53, OCC: AGRICULTURE
    R/O: GIDGARI, POST: VAJRALLI
    TQ: YELLAPUR,
    DIST: NORTH KANARA-581359.

2b. GOPALKRISHNA S/O. GANAPATI BHAT
    AGED 44, OCC: AGRICULTURE
    R/O: GIDGARI, POST: VAJRALLI
    TQ: YELLAPUR, DIST: NORTH KANARA-581359.

2c. BHAGIRATHI W/O. GANAPATI BHAT
    SINCE DECEASED

2d. SHARADA W/O. GANPATI BHAT
    AGED 49, OCC: AGRICULTURE
    R/O: KIRGARIMANE, POST: VAJRALLI
                                2


      TQ: YELLAPUR, DIST: NORTH KANARA-581359.

3.    NARASIMHA S/O SHIVA BHAT JOSHI,
      SINCE DECEASED BY HIS LRS

3a. LAKSHMI W/O. NARASIMHA BHAT
    AGED 80, OCC: HOUSEHOLD
    R/O: KALLAREMANE, TATAGAR VILLAGE,
    TQ: YELLAPUR, DIST: UTTARA KANNADA-581359.

3b. KRISHNA S/O. NARASIMHA BHAT
    AGED 57, OCC: AGRICULTURE
    R/O: KALLAREMANE, TATAGAR VILLAGE,
    TQ: YELLAPUR, DIST: UTTARA KANNADA-581359.

3c. SEETA W/O. GANAPATI GAONKAR
    AGED 60 YEARS, OCC: HOUSEHOLD
    R/O: KIREGARIMANE, TQ: YELLAPUR,
    DIST: UTTARA KANNADA-581359.

4.   NAGI S/O RAMACHANDRA GAONKAR
     AGED 72 YEARS, OCC: HOUSEHOLD AND AGRICULTURIST,
     R/AT: VAJRALLI TQ: YELLAPUR,
     DIST: NORTH KANARA-581359.
                                                  ...APPELLANTS
(BY SRI. A.P. HEGDE, ADV. FOR A1(a) A2(b);
SRI. VISHWANATH HEGDE, ADV. FOR A2(a), A2(d) AND A3(a) to (c);
SRI. JEEVAN J. NEERALAGI, ADV. FOR A4)


AND

1 . TAMMANNA
    S/O RAMANATH @ RAM SHIVA BHAT JOSHI
    SINCE DECEASED REPRESENTED BY HIS LRS

1a. SAROJA
    W/O. TAMMANNA BHAT @ JOYIS
    AGED ABOUT 69 YEARS,
    OCC: HOUSEWIFE
    R/O. HONNEGADDE, TQ: YELLAPUR,
    DIST: UTTARA KANNADA-581359.
                              3


1b. RAMAKRISHNA
    S/O. TAMMANNA BHAT @ JOYIS
    AGED ABOUT 50 YEARS,
    OCC: AGRICULTURE
    R/O. HONNEGADDE, TQ: YELLAPUR,
    DIST: UTTARA KANNADA-581359.

1c. KAMESHWAR
    S/O. TAMMANNA BHAT @ JOYIS
    AGED ABOUT 48 YEARS,
    OCC: AGRICULTURE
    R/O. HONNEGADDE, TQ: YELLAPUR,
    DIST: UTTARA KANNADA-581359.

1d. VIGNESHWAR
    S/O. TAMMANNA BHAT @JOYIS
    AGED ABOUT 46 YEARS,
    OCC: AGRICULTURE
    R/O. HONNEGADDE, TQ: YELLAPUR,
    DIST: UTTARA KANNADA-581359.

1e. BHAVANI
    D/O. TAMMANNA BHAT @ JOYIS
    AGED MAJOR, OCC: HOUSEHOLD
    R/O. HONNEGADDE, TQ: YELLAPUR,
    DIST: UTTARA KANNADA-581359.

1f. SHANTA
    W/O. SHANKAR HEGDE
    AGED MAJOR, OCC: HOUSEHOLD
    R/O. TELANGAR, TQ: YELLAPUR,
    DIST: UTTARA KANNADA-581359.

1g. JAYALAXMI
    W/O. MAHABALESHWAR HEGDE
    AGED MAJOR, OCC: HOUSEHOLD
    R/O. TAMMANAGI,
    PO: GUND, TQ: JOIDA,
    DIST: UTTARA KANNADA-581187.

1h. SHAILAJA
    W/O. NAGARAJ BHAT
    AGED MAJOR, OCC: HOUSEHOLD
                               4


   R/O. I.G. 174, INDIRA,
   UDYAGIRI, SATTUR
   TQ AND DIST:DHARWAD-580009.

2 . SUBRAY
    S/O NARASIMHA BHAT
    AGED ABOUT 54 YEARS,
    OCC: AGRICULTURIST,
    R/AT: IDAGUNDI TQ: YELLAPUR
    DIST: NORTH KANARA-581359.

3 . GANESH
    S/O NARASIHMA BHAT
    SINCE DECEASED BY LRS

3a. GAYATRI
    W/O. GANESH BHAT
    AGED ABOUT 63 YEARS,
    OCC: HOUSEWIFE
    R/O: IDAGUNDI, TQ: YELLAPUR,
    DIST: UTTARA KANNADA-581359.

3b. NARASIHMA
    S/O. GANESH BHAT
    AGED ABOUT 44 YEARS,
    OCC: AGRICUTLURE
    R/O: IDAGUNDI, TQ: YELLAPUR,
    DIST: UTTARA KANNADA-581359.

3c. MAHABALESHWAR
    S/O. GANESH BHAT
    AGED ABOUT 41 YEARS,
    OCC: AGRICULTURE
    R/O: IDAGUNDI, TQ: YELLAPUR,
    DIST: UTTARA KANNADA-581359.

3d. SHARADA
    D/O. GANESH BHAT
    AGED ABOUT 37 YEARS,
    OCC: HOUSE HOLD
    R/O: IDAGUNDI, TQ: YELLAPUR,
    DIST: UTTARA KANNADA-581359.
                                5


4 . RAMANATH @ RAMA SHIVA BHAT JOSHI
    SINCE DECEASED BY LRS

a.   SMT. GOURI
     W/O VISHWESHWAR BHAT
     AGED: 65 YEARS,
     R/AT: TELANGAR,
     TQ: YELLAPUR
     DIST: NORTH KANARA-581359.

b.   SMT. BHAGIRATHI
     W/O SUBRAY BHAT
     AGED: 63 YEARS
     R/AT: IDAGUNDI,
     TQ: YELLAPUR
     DIST: NORTH KANARA-581359.

c.   SMT. NAGAVENI
     W/O GANAPATI BHAT
     AGED: 61 YEARS
     R/AT: IDAGUNDI, TQ: YELLAPUR
     DIST: NORTH KANARA-581359.

d.   GANGA
     W/O. MAHABALESHWAR BHAT
     AGED: 59 YEARS
     R/AT: HITTINABAIL,
     TQ: YELLAPUR
     DIST: NORTH KANARA-581359.

e.   YAMUNA W/O PARAMESHWAR BHAT
     AGED 57, R/AT IRAPURA KALACHE,
     TQ: YELLAPUR
     DIST: NORTH KANARA 581359

f.   SHIVARAM S/O RAMANATH BHAT
     AGED: 55 YEARS,
     R/AT: VAJRALLI, TQ: YELLAPUR
     DIST: NORTH KANARA-581359.
                                                     ...RESPONDENTS
(BY SRI. VIJAYKUMAR B. HORATTI, ADV. FOR R1 (a TO h);
    SRI. V. G. BHAT, ADV. FOR R2;
    NOTICE TO R3 (A TO D) AND R4 TO R9 SERVED BUT REMAIN
    UNREPRESENTED)
                                                      6

      THIS REGULAR SECOND APPEAL IS FILED U/S. 100 OF CPC
AGAINST THE JUDGEMENT & DECREE DT.6.12.2005 PASSED IN
R.A.NO.2/90 ON THE FILE OF THE CIVIL JUDGE (SR.DN), SIRSI, PARTLY
ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE
DT.13.11.89 PASSED IN O.S.NO.29/80 ON THE FILE OF THE MUNSIFF,
YELLAPUR.

     THIS REGULAR SECOND APPEAL HAVING BEEN HEARD AND
RESERVED ON 10.01.2024, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, THIS COURT DELIVERED THE FOLLOWING:

                                             JUDGMENT

This second appeal is filed by the plaintiff and

defendant Nos.2, 3 and 5, challenging the Judgment and

decree dated 06.12.2005 passed in R.A.No.2/1990 by the

Court of Civil Judge (Sr. Dn.,) Sirsi1 and the Judgment and

decree dated 13.11.1989 passed in O.S.No.29/1980 by the

Court of Munsiff at Yallapur2.

2. The parties will be referred to as per their ranking

before the trial Court for the sake of convenience.

3. The plaintiff and defendant Nos.1 to 3 are

brothers and the 5th defendant is their sister. The 4th

defendant is their mother. The plaintiff, defendant Nos.1 to 3

Hereinafter referred to as the 'first appellate Court'

Hereinafter referred to as the 'Trial Court'

and 5 are the children of the 4th defendant and late Shiva

Bhat. The defendant No.6 is the son of 1st defendant. The

defendant No.7 is the co-owner of item No.12 in the suit

schedule A property and he is impleded as formal defendant.

Defendant Nos.8 and 9 are the purchasers of item No.14 of

the suit Schedule A property being the purchasers from

defendant No.6. The genealogical tree of the plaintiff and

defendants 1 to 6 as is forthcoming from the records is as

follows:

ShivaBhat = Gange (4th Deft)

________________________|_______________________________ | | | | | Ramanath Ganapathi Vishweshwar Narashim Nagi @Rama (Deft. No.2) @ Vishwanath (Deft. No.3) (Deft. No.5) (1st Deft) (Plaintiff)

_|___ Tammanna (Deft. No.6)

4. It is the case of the plaintiff that, the suit

properties are the joint family properties and the family of

the plaintiff and defendant Nos.1 to 6, during the life time of

their father Shiva Bhat had owned and possessed the suit

properties. That, on 09.07.1977, their father died and

thereafter, plaintiff and defendant Nos.1 to 6 continued the

said joint family and defendant No.1 being the elder son of

the deceased Shiva Bhat, became the Karta of the said joint

family. The suit lands at Sl.No.1 to 6 being the ancestral

properties, from the income of the same, the defendant No.1

purchased the suit lands at Sl.Nos.7 to 10 and 14 in the suit

schedule A property in the name of his son i.e. defendant

No.6. Thus, all the lands which are the subject matter of the

suit are joint family properties. When the plaintiff demanded

a share and the same was refused by the defendant No.1,

the suit for partition was filed.

5. The defendants entered appearance in the suit

and contested the case of the plaintiff. The defendant Nos.1

to 6 have filed separate written statements. Defendant No.8

to 9 filed another written statement. Defendant Nos.2, 3, 4

and 5 have admitted the case of the plaintiff and sought for

their separate share and paid Court fee accordingly.

Defendant Nos.1 and 6 in their separate written statements

have admitted the case of the plaintiff in respect of the suit

item Nos.1 to 6 of the suit schedule A property are

concerned, that they are joint family properties. The case of

the plaintiff is contested by the said defendants Nos.1 and 6

insofar as suit item Nos.7 to 10 and 14 of the suit schedule A

properties are concerned, wherein, it is contended that, they

are the self acquired properties.

6. The defendant No.1 in his written statement has

admitted the relationship and the fact that their father Shiva

Bhat was the manager of the joint family. It is his specific

contention that, during the life time of Shiva Bhat, there was

a family arrangement and since the plaintiff and defendant

Nos.2 and 3 were residing at Telangar and were cultivating

their land separately and the defendant No.1 was residing at

Honnegadde and he was managing the said lands, they were

taking the income from the lands which were being cultivated

by each of them respectively. It is further contended that,

during the life time of their father Shiva Bhat, the marriages

of the sons and daughters were performed and there were no

surplus joint family funds and even when the defendant No.1

became the Karta of the joint family after the death of his

father there was no surplus funds and the plaintiff did not

give income accruing from the lands that they were

cultivating to the defendant No.1. That the defendant No.1

did not purchase the lands at Sl.No.7 to 10 and 14 in the suit

schedule A property out of the joint family funds in the name

of his son. That the joint family has got disciples in

neighboring villages and the plaintiff and defendant Nos.1 to

3 have been attending various religious ceremonies and the

lands were not being cultivated by them personally, but were

cultivated through hired laborers and hence, they used to

spend heavy amounts towards agricultural operations. It is

further contended that the lands in Honnegadde are situated

on a hill-top and there was very less yield from the said

lands and the expenditure was very high. The defendant

No.6 was well versed in prayogas and from his self earnings

he purchased the lands at Sl.No.7 to 10 and 14.

7. The defendant No.4 who is the mother, in her

separate written statement, while admitting the relationship

and all the averments made in the plaint, further contended

that, her husband taught Vaidhiki to the plaintiff and

defendant Nos.1 to 3 since his family was Vaidhiki family and

out of the Vaidhiki and also out of the family land, large

amount of income use to accrue to the joint family. But later

on the number of disciples became less. So plaintiff and

defendants use to cultivate their lands personally since

defendant No.6 who is the son of the defendant No.1, was

unable to learn Vaidhiki and Prayoga. Hence, it is contended

that, the plaintiff and defendant Nos.1 to 3 used to attend

the houses of their disciples and they use to utilize the

offering for themselves. Though plaintiff and defendants used

to cultivate the suit lands separately, it is the defendant No.1

who use to sell the agricultural produce of all the suit lands

and derived the income from them. Thus, after the death of

her husband, the defendant No.1 got large amount from his

deceased father and thereafter defendant No.1 continued to

get huge income out of the joint family lands and thereafter,

after the death of her husband, the lands at Sl.No.7 to 10

and 14 were purchased by the defendant No.1 in the name

of his son i.e. defendant No.6. Hence, all the suit properties

are joint family properties.

8. The defendant No.6 in his written statement

specifically contended that, he had trained in Prayogas and

Jyothish and thereby he was well-versed and thereby he

started working as Purohit and Priest at the age of 14 itself

and he kept good relation with his disciples. So he has

earned a good name and goodwill. Thus, he became a very

busy man in performing the religious functions and thereby

he acquired huge wealth out of these religious gift known as

Gurudakshina. That out of the said income, he purchased

land in RS No.27/1 for Rs.300/- and sold it for Rs.1500/-;

that he purchased land in Survey No.52/1 for Rs.4,000/- and

survey No.17 for Rs.12,000/- and out of the income of the

said lands as also his separate income purchased the land in

R.S.No.42/1B and 52/2A and 97/1 for Rs.14,000/- as there

was an agreement of sale in the year 1979 in respect of

which a suit in O.S.No.53/1979 was filed in the Court of Civil

Judge, Sirsi, and a compromise decree was passed on

17.09.1979. Thus, the lands at Sl.Nos.7 to 10 and 14 are his

self acquired properties.

9. The defendant Nos.8 and 9 who are the

purchasers from defendant No.6 have also filed a separate

written statement contending that, they have purchased the

suit item No.14 for valuable consideration and the said land

purchased by them belongs exclusively to defendant No.6.

10. Consequent to the pleadings of the parties, the

trial Court framed eight issues and one additional issue,

which are extracted herein below for ready reference:

(i) Does the plaintiff prove that suit 'A' schedule properties are the joint family properties of plaintiff and defendants ?

(ii) Does defendant No.6 prove that the lands at Sl.Nos.7 to 10 and 14 of suit schedule A are of his self-acquired ?

(iii) Do defendants 1 and 6 prove that this court has no pecuniary jurisdiction to try the present suit ?

(iv) Whether the Court fee paid is proper ?

(v) Whether the suit is bad in law for non-joinder of parties ?

(vi) Does defendant No.6 prove that the present suit in respect of Sl.No.42/1, 52/2A, 19/1 cannot be prosecuted till the disposal of O.S.no.63/1979 of the Civil Judge Court, Sirsi ?

(vii) What is due to the plaintiff ?

(viii) What Decree or Order ?

Additional Issue :

(i) Is plaintiff not entitled for partition in Sl.No.19 of Telangar of his 7/30th share as contended by defendant Nos.8 & 9 ?

11. The plaintiff examined himself as PW.1 and 2

witnesses as PWs.2 and 3. Exs.P1 to P23 were marked in

evidence. The defendant No.1 examined himself as DW.1,

defendant No.6 was examined as DW.2 and 3 witnesses were

examined as DWs.3 to 5. Exs.D1 to D21 were marked in

evidence. The Trial Court by its judgment and decree dated

13.11.1989 decreed the suit of the plaintiff and passed the

following order:

"The suit is hereby decreed as under:

It is hereby ordered and decreed that the plaintiff is having 7/36th share in the entire suit schedule A and B properties, so also defendants 1 to 4 each are having 7/36th share in the entire suit schedule A and B properties. Defendant no.5 is having 1/36th share in the entire suit schedule A and B properties. Accordingly the plaintiff and defendants 1 to 5 are entitled for partition and separate possession is the entire suit schedule A lands and suit schedule B house properties. The Deputy Commissioner Karwar or his gazetted subordinates shall affect partition in the suit schedule A

14 lands by considering the question of feasibilities and then shall allot the separate shares in lieu of their above defined shares, uls 54 C.P.C.

A court commissioner shall be appointed to suggest the feasibilities of effecting partition in the sit schedule B houses, who shall suggest the feasibility of effecting partition and allotment of shares to the plaintiff and defendants 1 to 5 in lieu of their above defined shares.

The prayer of defendant no.6 for partition and separate possession in this suit is hereby rejected.

Plaintiff and defendants 1 to 5 are entitled for future mesne profits in lieu of their shares from defendant no.6 in respect of the lands at serial No.7 to 10 from the date of this suit till the actual delivery of the possession. Further the plaintiff and defendants 1 to 5 are entitled for future mesne profits from defendants 8 and 9 in lie, of their shares in respect of the land Rs No.19 from the date of the suit till the possession of the land is delivered to them.

Under the circumstances all the parties to the suit are directed to bear their costs incurred in this suit in view of their near relationship with each other."

preferred RA No.2/1990. The plaintiff and other defendants

entered appearance before the first appellate Court and

contested the said appeal. The first appellate Court framed

the following points for consideration:

"1. Whether the Appellants prove that the trial court erred in answering issue No.1 in the affirmative and issue No.2 in the negative?

2. Whether the appellant No.1/defendant No.6 proves that the suit properties at Sl. No.7 to 10 and 14 of A schedule are his self acquired properties?

3. Whether the impugned judgment and decree of the lower court needs intereference of this court?

4. Whether the appellant No.1 has shown the grounds to allow the application I.A. No.IV?

5. What Order?"

13. Upon considering the submissions of the learned

counsel for the parties and upon re-appreciation of the

material available on record the first appellate Court passed

the following order:

"The IA. No. IV which has filed by the appellant No.1/defendant No.6 under O. VI Rule 17 of C.P.C. is hereby rejected.

The appeal is partly allowed. Consequently impugned judgment and decree of the lower court is modified to the extent that the suit properties at serial Nos. 7 to 10 and 14 of A schedule properties are not the joint family properties. But they are the self acquired properties of defendant no.6. Hence they are not available for partition.

No order as to costs so far as this appeal is concerned."

14. Being aggrieved, the plaintiff and defendant Nos.3

to 6 have filed the present second appeal. This Court by

order dated 22.2.2008 has framed the following substantial

questions of law:

"Whether the lower appellate Court is justified in holding that the properties claimed by the sixth defendant are all his self-acquired properties in the light of the evidence on record thereby reversing the findings recorded by the trial Court on the basis of the oral evidence?"

15. Learned Counsel for the appellants assailing the

judgment and decree passed by the first appellate Court

contends that the Trial Court had in detail appreciated the

oral and documentary evidence available on record and had

recorded a finding that the suit 'A' schedule item Nos.7 to 10

and 14 properties are the joint family properties and were

purchased by defendant No.1 out of the joint family funds in

the name of defendant No.6. That the findings of the Trial

Court ought not to have been interfered with by the first

appellate Court. It is further contended that there were

several contradictions in the evidence of DW.6 with regard to

the his acquisition and the income and the testimony of

DW.2 ought not to have been relied by the first appellate

Court. That the finding of the first appellate Court that the

calculation of income of the joint family is not proper and

that there is no direct material to presume the joint family

funds is erroneous and liable to be interfered with. Hence,

he seeks for allowing of the present appeal and setting aside

the judgment of the first appellate Court and for affirming

the judgment and decree passed by the Trial Court. In

support of his contentions, he relied on the following

judgments:

1) Srinivas Krishnarao Kango v. Narayan Devji Kango and others3;

AIR 1954 Supreme Court 379(1)

2) Appasaheb Peerappa Chandgade v. Devendra Peerappa Chandgade and Ors.4;

3) Fakirappa Bailappa Kambar v. Kristappa Bailappa Kambar5.

16. Per contra, learned counsel for the respondent

Nos.1(a) to (h) justifying the judgment passed by the first

appellate Court submits that in the cross-examination of

PW.1 he has specifically admitted that the plaintiff and

defendant Nos.2 and 3 were residing at Telagar village and

defendant was residing at Honagadde and further admitted

that he never gave any income to the family. It is further

submitted that having regard to the specific admissions

made by PW.1 in the cross-examination there is no basis for

the Trial Court to have recorded a finding that the suit 'A'

schedule item Nos.7 to 10 and 14 properties are the joint

family properties. It is further submitted that in the evidence

of defendant No.6 (DW.2) it is specifically demonstrated that

he had sufficient income from Purohitya and other

AIR 2007 Supreme Court 218

ILR 1985 KAR 3062

agricultural income to acquire the said properties. Hence, he

sought to justify the judgment of the first appellate Court

and seeks for dismissal of the appeal. In support of his

contentions, he relies on the following decision:

1) T.S. Subbaraju v. T.A. Shivarama Setty and

Ors. .

17. The submissions made by the leaned counsel for

the parties have been considered and the material on record

has been perused. Before considering the contentions put

forth by both the learned counsel, it is relevant to notice the

findings recorded by the Trial Court and the first Appellate

Court.

18. The Trial Court by its judgment and decree dated

13.11.1989 had recorded the following findings while

answering issue Nos.1 and 2:

RFA No.197/2002 DD. 01.04.2004 (High Court of Karnataka)

18.1 The plaintiff in his evidence has given

particulars and extent of the land and also the crops

grown, its quantity and price;

18.2 PWs.2 and 3 who are the agriculturists

having similar lands in the village have stated about the

quantity of the crops raised in their land and the

probable earnings;

18.3 DW.2 has also stated about the quantity of

crops, price, cost of agriculture and net income;

18.4 Lands in Sy.Nos.1 to 6 situated at

Honnagadde are all bagayat lands wherein areca,

coconut and pepper, etc., are being grown whereas, the

lands in Sy.Nos.11 to 13 situated at Talangeri are

entirely tari lands wherein paddy and sugarcane were

grown; the extent of this land is about 6 acres 25

guntas and DW.1 admitted that he used to grow about

5 to 6 quintals per annum in one yield. Further, a total

quantity of areca grown in the bagayat land is about 30

quintals. Further DW.1 admits that about 70 to 80

coconut trees are standing in the bagayat lands and he

used to pluck coconut in 4 times in a year and about

100 coconuts he used to get from one tree and that the

total number of coconuts derived in a year are 7000;

18.5 The total extent of tari land situated at

Telangar is 11 acres 27 guntas. DW.1 has admitted

that about 5 to 6 bags of paddy used to be grown in 1

acre of tari land. Hence, as per the admission of DW.1

the quantity of paddy grown is 66 quintals per year.

18.6 As per the admission of DW.1, he used to

grow 30 quintals of areca, 7000 coconuts and 66

guntals of paddy;

18.7 The plaintiff referred to Exs.P22 and 23

which are price list for the year 1978-79 and 1980-81

in respect of areca, coconut and paddy issued by the

Secretary, APMC, Yellapur. Hence, if the value of the

crop is taken, the total gross income derived in the year

1978-79 by the joint family is `49,020/- .

18.8 DW.1 has admitted in his evidence that the

cost of agriculture for areca per year was `3000/- and

for paddy is `1,200/- per acre. Hence, the net income

in the year 1977-78 was `40,500/-;

18.9 In all, defendant No.6 had purchased lands

for 30,000/- from 6.6.1978. So on 6.6.1978 the joint

family had more than `20,000/- surplus income and

thereby it had sufficient nucleus to purchase the lands

in the name of defendant No.6;

18.10 That from the evidence on record I hold that

the plaintiff has initially proved that there was sufficient

joint family nucleus on the date of purchasing the land

and there are circumstances to show that the joint

family funds were utilized to purchase the lands in the

name of defendant No.6 and thus all the lands standing

in the name of defendant No.6 are the joint family

lands;

18.11 The plaintiff has entirely discharged his

burden cast upon him and thereby the onus has shifted

to defendant No.6 to prove that the properties in

question are his self acquisition;

18.12 Shiv Bhat had died on 9.7.1977 and

immediately defendant No.1 being his eldest son

became the kartha of the family and on 6.6.1978 that

is within the period of one year from the date of death

of Shiv Bhat, defendant No.6 purchased the land RS

No.52/1 for Rs.4,000/-;

18.13 The documentary evidence does not support

the contention of defendant No.6 that he had money by

virtue of selling the property at a higher value than

what he had purchased ;

18.14 Defendant No.6 has stated that he studied

pourohitya from one Agnihotri Ramakrishna Bhat and

Balagar Ramakrishna and it appears the said persons

are no more;

18.15 There is absolutely no documentary evidence

regarding acquisition of knowledge in pourohitya and

regarding acquisition of properties out of his earnings

from pourohitya. So defendant No.6 is entirely

depending upon oral evidence to prove his case;

18.16 There is no evidence to show that defendant

No.6 has really learnt pourohitya and he was well

versed in that field;

18.17 The mother of plaintiff and defendant Nos.1

to 3 i.e., defendant No.4 in her written statement has

stated that defendant No.6 has become incapable of

doing pourohitya but he used to work in the field

whereas only plaintiff and defendant Nos.1 to 3 and her

husband used to work as purohits;

18.18 To prove his income from pourohitya,

defendant No.6 has not examined any independent

persons who have paid gurudakshina for his pourohitya.

The testimony of DWs.3 and 4 cannot be believed as

they are related to defendant No.6;

18.19 Defendant No.6 and defendant No.1 have

failed to prove that on the relevant date defendant No.6

had sufficient income to purchase the lands.

19. The first appellate Court while allowing the appeal

has recorded the following findings:

19.1 The Trial Court while answering issue No.1

gave mere importance with regard to the oral evidence

of PW.1 i.e., the plaintiff and DW.1 ie., defendant No.1

and on calculation to came to the conclusion that the

joint family had the net income of `40,500/- in the year

1978 excluding the expenses relating to cultivation.

But on careful perusal of the discussion made by the

Trial Court it shows that on the basis of assumption and

presumption it assessed the income of the joint family

since the plaintiff has simply stated the income was

huge but has not furnished the particulars. Hence, the

pleading with regard to income and saving is vague.

19.2 PW.1 in his evidence has deposed that he

does not know at the time of death of Shiv Bhat

whether any surplus fund of family income left by him.

He has further deposed that he had no document to

show how much amount was in their family at the time

of death of his father. Under the circumstances, in the

absence of proper material, only on the basis of

calculation, the Trial Court assessed the income of the

joint family in the year 1977-78 as `40,500/- which is

not proper.

19.3 While answering issue No.2 the Trial Court

has come to the conclusion that defendant No.6 has

failed to show sufficient means to purchase the

properties in question and he has not produced proper

documentary evidence to show the exact income or the

means, but that itself is not sufficient to come to the

conclusion that the plaintiff has succeeded in proving

issue No.1.

19.4 Defendant No.6 is not the joint family

Manager. Such being the case, mere stating that his

father i.e., Defendant No.1 was the Manager of the joint

family itself is not sufficient to presume that he derived

the income of the joint family to purchase the

properties in question in the name of defendant No.6.

19.5 The material discloses that defendant No.6

purchased the property because he relied on Exs.D2 to

D13 which includes sale deed executed in favour of

defendant No.6. Further the said documents are silent

with regard to utilization of joint family funds;

19.6 In the absence of proper direct material, it is

not proper to presume that defendant No.1 derived the

joint family fund to purchase the properties in question

in the name of defendant No.6.

20. It is forthcoming that the plaintiff was examined

as PW.1, defendant No.1 has been examined as DW.1 and

defendant No.6 as DW.2. It is the categorical case of the

plaintiff that the joint family was in existence and it owned

sufficient properties and income which formed a nucleus,

from which the properties in question i.e., suit properties

No.7 to 10 and 14 in A Schedule have been purchased in the

name of defendant No.6. It is the contention of defendant

Nos.1 and 6 that the said properties acquired by defendant

No.6 have been purchased from his income as he was a

qualified Purohit.

21. The Trial Court while considering the aspect of

income of the joint family has in detail appreciated the oral

evidence of PWs.2 and 3 who are the agriculturists having

Bagayat and Tari lands in the same village as to the quality

of crops raised in their lands and probable earnings. It has

also appreciated the evidence of defendant No.1(DW.1) with

regard to the quantity of the crops raised and its price and

cost of agriculture. The testimony of DW.2 (defendant No.6)

has also been noticed in this regard. The Trial Court has in

detail noticed the extent of land and the nature of crops as

also the price for the same and has recorded a categorical

finding that the total gross income derived in the year 1977-

78 was `49,020/-; the net income for the year 1977-78 was

`40,500/-.

22. The Trial Court has further recorded a finding that

the testimony of defendant Nos.1 and 6 who are father and

son are inconsistent. After consideration of the material on

record, it has been recorded that the net agricultural income

of the joint family for the year 1977-78 was `40,500/-.

Further, it has held that the plaintiff having proved that there

was sufficient joint family nucleus as on the date of

purchasing the lands in the name of defendant No.6, it is

clear that the joint family fund was utilized for purchase of

land in the name of defendant No.6 and hence, the lands

standing in the name of defendant No.6 are joint family

properties/lands.

23. The Trial Court while considering issue Nos.1 and

2 has noticed that within one year from the date of death of

Shiv Bhat, defendant No.6 purchased RS No.52/1 for

Rs.4,000/-. It considered the contention of defendant No.6

who examined himself as DW.2 that he had purchased the

lands of his mother for Rs.300/- and sold it for Rs.3,000/- in

2006 and he had sufficient income from Pourohitya and

purchased the properties in his name and thereby it was his

self acquisition. The Trial Court has appreciated the evidence

on record and has recorded a categorical finding that there is

no documentary evidence with regard to acquisition of

knowledge by defendant No.6 in Pourohitya as also the

acquisition of his funds out of Pourohitya and hence, there is

only the oral evidence of defendant No.6 in this regard. It

has also been noticed by the Trial Court that the mother of

plaintiff defendant Nos.1 to 3 i.e, defendant No.4 in her

written statement has stated that defendant No.6 has

become incapable of doing Pourohitya so he used to do work

in the field whereas only plaintiff and defendant Nos.1 and 3

and her husband used to work as purohits.

24. The Trial Court has also noticed that defendant

No.6 has not examined any independent person to

demonstrate that they have paid gurudakshina for his

Pourohitya. The testimony of DW.3 has been disbelieved

since he is the brother of the mother of defendant No.6. The

testimony of DW.4 has also been disbelieved as he is a

relative of defendant No.6. The Trial Court has further

noticed that in the Sale Deed dated 18.6.1980 (Ex.D14)

executed by defendant No.6 in favour of defendant Nos.8

and 9 for Rs.12,000/- the reason for sale is mentioned as

necessity of the amount. The Trial Court upon an extensive

appreciation of the oral and documentary evident has

recorded a categorical finding that defendant No.6 has failed

to prove on the relevant date that he had sufficient income of

his own to purchase the lands in his name.

25. The first appellate Court has recorded a finding

that the pleading of the plaintiff with regard to income and

saving is vague. However, it is relevant to note that the

plaintiff has specifically contended that the joint family had

huge income and properties at item Nos.7 to 10 and 14 of A

Schedule are purchased from the income of the joint family.

It is forthcoming from the judgment of the Trial Court that

the evidence on record, both oral and documentary, has been

appreciated and upon examination of the evidence given by

the Manager of the family,DW.1 and by placing reliance on

the price list maintained by the APMC, the Trial Court has in

detail considered every aspect of the matter including the

nature of the crops, yield from the suit properties and the

prices for the said yield while recording a finding that there

was sufficient surplus income with the joint family. The

evidence in that regard has been adequately appreciated by

the Trial Court by considering the oral and documentary

evidence on record. The detailed finding of fact recorded by

the Trial Court has been interfered with by the first appellate

Court without adequately re-appreciating the material on

record on the basis of which the findings have been recorded

by the Trial Court.

26. It is further relevant to note that the first

appellate Court has recorded a finding that defendant No.6

has failed to show sufficient means to purchase the

properties in question and has not produced any

documentary evidence to show his income. Further, on the

ground that the finding regarding joint family income of the

Trial Court is erroneous, the appeal has been allowed by the

first appellate Court. Interference with the finding of the

Trial Court by the first appellate Court is ex facie erroneous

and liable to be set aside.

27. The respondents have vehemently contended that

PW.1 in the cross-examination has stated that he is residing

in Telangeri and defendant No.1 is residing at Honagadde

and he never gave any income from the Honagadde property

to the Manager of the family. It is relevant to note that the

consistent case of the plaintiff is that defendant No.1 was the

Manager of the joint family properties and all the income of

the properties were being managed by him. There is

sufficient material on record, as noticed by the Trial Court as

well as the first appellate Court with regard to the said

aspect of the matter. Hence, a mere stray sentence in the

cross-examination of PW.1 cannot be relied upon to

disbelieve the consistent case of the plaintiff.

28. The plaintiff has contended that there were

sufficient documents to demonstrate that defendant No.1

was the Manager of the joint family properties and there was

sufficient properties in the joint family which were possessed

with adequate income which formed the nucleus, from which

the properties in question have been acquired by defendant

No.1 in the name of defendant No.6 and in view of such

position, the burden shifts on the person who alleges self-

acquisition to prove the same. In the aforesaid context it is

relevant to notice the judgment of the Hon'ble Supreme

Court in the case of Srinivas Krishnarao Kango v.

Narayan Devji Kango & ors.,7 relied upon by the learned

AIR 1954 SC 379(1)

counsel for the appellants, wherein it has been held as

under:

9. .............. The lower courts came to the conclusion that having regard to the smallness of the income from the ancestral lands and the magnitude of the acquisitions made, the former could not be held to be the foundation for the latter, and on the authority of the decision of the Privy Council in Randhi Appalaswami v. Randhi Suryanarayanamurti [Randhi Appalaswami v. Randhi Suryanarayanamurti, 1947 SCC OnLine PC 42 : (1947) 60 LW 412 : ILR 1948 Mad 440 at pp. 447-48] held that the initial burden which lay on the plaintiff of establishing that the properties of which a division was claimed were joint family properties had not been discharged.

The law was thus stated in that case : (LW p. 416)

"... The Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property is joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property. (See Babubhai Girdharlal v. Ujamlal Hargovandas [Babubhai Girdharlal v. Ujamlal Hargovandas, 1937 SCC OnLine Bom 2 : ILR 1937 Bom 708] , Kotikelapudi Venkataramayya v. Digavalli Seshamma [Kotikelapudi Venkataramayya v. Digavalli Seshamma, 1937 SCC OnLine Mad 6 :

ILR 1937 Mad 1012] and C.V. Vythianatha v. C.V. Varadaraja [C.V. Vythianatha v. C.V. Varadaraja, 1937 SCC OnLine Mad 218 : ILR 1938 Mad 696] .)"

(emphasis supplied)

29. The Hon'ble Supreme Court in the case of

Appasaheb Peerappa Chandgade v. Devendra Peerappa

Chandgade & ors.,8 relied upon by the learned counsel for

the appellants, has held as follows:

"12. So far as the legal proposition is concerned, there is no gainsaying that whenever a suit for partition and determination of share and possession thereof is filed, then the initial burden is on the plaintiff to show that the entire property was a joint Hindu family property and after initial discharge of the burden, it shifts on the defendants to show that the property claimed by them was not purchased out of the joint family nucleus and it was purchased independent of them. This settled proposition emerges from various decisions of this Court right from 1954 onwards."

(emphasis supplied)

30. A Division Bench of this Court in the case of

Fakirappa Bailappa Kambar v. Krishtappa Bailappa

Kabar9 relied upon by the learned counsel for the appellants

has held as under:

"17. .............. The law in this regard is as follows:

"Where it is established or admitted that the family possessed some joint property which from its nature and relative value may have formed the nucleus from

AIR 2007 SC 218

ILR 1985 KAR 3062

which the property in question may have been acquired, the presumption arises that it was joint property and the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family. But, no such presumption would arise if the nucleus is such that with its help the property claimed to be joint could not have been acquired. ...."

(emphasis supplied)

31. The judgment of the Division Bench of this court

in the case of T.S.Subbaraju v. T.A.Shivarama Setty &

Ors.,10 relied upon by the learned counsel for the

respondents will not aid the case of the respondents having

regard to the fact that a finding has been recorded that the

joint family possessed sufficient income which formed the

nucleus for acquisition of the properties in favour of

defendant No.6.

32. Having regard to the settled position of law, as

noticed above and the detailed finding recorded by the Trial

Court, the findings of the first appellate Court are required to