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Karnataka High Court

Chowdappa vs Hanumantharayappa on 16 December, 2025

Author: V Srishananda

Bench: V Srishananda

                          1

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU
      DATED THIS THE 16TH DAY OF DECEMBER, 2025
                       BEFORE
        THE HON'BLE MR. JUSTICE V. SRISHANANDA
                 R.F.A.No.2076/2006
       C/W RFA CROSS OBJECTION NO.17/2012
IN R.F.A.NO.2076/2006

BETWEEN

1.     HANUMANTHARAYAPPA
       AGED ABOUT 64 YEARS
       S/O CHANNABYRAPPA
       R/O DHARAMAPURA VILLAGE,
       CHANNARAYAPATNA POST
       VIJAYAPURA HOBLI,
       DEVANAHALLI TALUK
       BANGALORE DISTRICT-562 135.

2.     MUNIYAMMA
       AGED ABOUT 54 YEARS
       W/O MUNIBHACHAPPA
       R/O NADAPINAYAKANAHALLI
       JANGANAMAKOTE POST,
       SIDLAGHATTA TALUK,
       KOLAR DISTRICT-562 105.

3.     MUNITHAYAMMA
       AGED ABOUT 49 YEARS
       W/O G HOSAHALLI VILLAGE
       NADI EDIGANAHALLI POST
       DEVANAHALLI TALUK
       BANGALORE DISTRICT-562 135
                        2



4.    C LAKSHMANA
      AGED ABOUT 48 YEARS
      S/O CHANNABYRAPPA
      R/O DHARAMAPURA VILLAGE
      VIJAYAPURA HOBLI,
      DEVANAHALLI TALUK
      BANGALORE DISTRICT-562 135
                                 ...APPELLANTS
(BY SRI MANJUNATH G. KANDEKAR, ADVOCATE FOR
A1 AND A4)

AND

1.    C MUNIRAJU
      AGED ABOUT 46 YEARS

2.    C KRISHNAPPA
      AGED ABOUT 56 YEARS

      RESPONDENTS 1 AND 2 ARE
      RESIDENTS OF
      R/O DHARAMAPURA VILLAGE,
      CHANNARAYAPATNA POST
      VIJAYAPURA HOBLI,
      DEVANAHALLI TALUK
      BANGALORE DISTRICT.

3.    P A CHOWDAPPA
      AGED ABOUT 68 YEARS
      S/O CHANNABYRAPPA
      R/O DHARAMAPURA VILLAGE
      CHANNARAPATNA POST,
      VIJAYAPURA HOBLI
      DEVANAHALLI TALUK
                       3

     BANGALORE DISTRICT

4.   KEMPAMMA
     AGED ABOUT 70 YEARS
     W/O CHANNABYRAPPA
     R/O ANGARAKANAHALLI
     MARELAGUNTE POST
     SIDHLAGHATTA,
     KOLAR DISTRICT- 562 105

5.   MUNIKEMPAMMA
     AGED ABOUT 52 YEARS
     R/O KOLAVANAHALLI,
     D. HOSUR POST
     CHIKKABALLAPURA TALUK
     KOLAR DISTRICT-562 135

6.   HANUMAKKA
     SINCE DEAD NOT MADE PARTY

7.   SMT.NAGARATHNAMMA
     D/O C.HANUMANTHARAYAPPA
     AGED ABOUT 55 YEARS
     R/O DHARMAPURA VILLAGE
     MANDIBELE POST
     VIJAYAPURA HOBLI
     DEVANAHALLI TALUK
     BANGALORE RURAL DISTRICT
                                 ...RESPONDENTS

     THIS RFA IS FILED UNDER SECTION 96 R/W
ORDER 41 RULE 1 OF CIVIL PROCEDURE CODE
AGAINST THE JUDGMENT AND DECREE DATED
12.9.2006 PASSED IN O.S.NO.86/2006 ON THE FILE
OF THE CIVIL JUDGE (SR.DN) AND JMFC,
                            4

DEVANAHALLI, DECREEING THE SUIT FOR PARTITION
AND SEPARATE POSSESSION.

IN R.F.A.CROB.NO.17/2012

BETWEEN :

1.   CHOWDAPPA
     AGED ABOUT 70 YEARS
     S/O CHANNABYRAPPA
     R/AT DHARMAPURA VILLAGE,
     MANDIBELE HOBLI, VIJAYAPURA HOBLI,
     DEVANAHALLI TALUK,
     BANGALORE RURAL DISTRICT.
                                ...CROSS OBJECTOR
(BY SRI N NAGARAJA, ADVOCATE)

AND :

1.   HANUMANTHARAYAPPA
     AGED ABOUT 67 YEARS

2.   KEMPAMMA
     AGED ABOUT 70 YEARS
     D/O CHANNARAYAPPA
     R/AT ANGEREKANAHALLI,
     SIDLAGHATTA TALUK
     CHIKKABALLAPUR DISTRICT.

3.   MUNIKEMPAMMA
     AGED ABOUT 60 YEARS
     W/O CHANNAKRISHNAPPA
     R/AT KOLAVANAHALLI
     CHIKKABALLAPUR TALUK/DISTRICT
                            5

4.   MUNIYAMMA
     DEAD BY LRS.,

4(a) NARAYANASWAMY
     AGED ABOUT 55 YEARS
4(b) CHANNEGOWDA
     AGED ABOUT 53 YEARS

4(c) DEVARAJU
     AGED ABOUT 52 YEARS

4(d) VENKATESH
     AGED ABOUT 49 YEARS

     ALL ARE CHILDREN OF LATE MUNIYAMMA
     AND MUNIBHACHAPPA
     ALL ARE R/AT NADUPINAYAKANAHALLI
     JANGAMAKOTEI POST
     SIDDLAGHATTA TALUK
     CHIKKABALLAPURA DIST.

5.   MUNITHAYAMMA
     AGED ABOUT 52 YEARS
     W/O GOVINDAPPA
     R/AT HOSAHALLI VILLAGE,
     NANDIBIDEGANAHALLI POST,
     DEVANAHALLI TALUK,
     BANGALORE DISTRICT.

6.   C. LAKSHMANA
     AGED ABOUT 58 YEARS

7.   SRI KRISHNAPPA
     AGED ABOUT 64 YEARS

8.   SRI. MUNIRAJU
     AGED ABOUT 54 YEARS
                               6

     HANUMAKKA DEAD LRS ON RECORD

     R1, R6 TO R8 ARE RESIDING AT
     DHARMAPURA VILLAGE
     VIJIAYAPURA HOBLI,
     DEVANAHALLI TALUK,
     BANGALORE RURAL DISTRICT.
                                          ...RESPONDENTS

(BY SRI T.N.VISHWANATHA, ADVOCATE FOR R8;
R1, R6, R7 ARE SERVED AND UNREPRESENTED;
VIDE ORDER R(J) CIRCULAR NO.126/2021 DATED
25.11.2021, R2, R3 AND R5 ARE SERVED;
R4(A) TO R4(D) AND R5 ARE SERVED AND
UNREPRESENTED)

     THIS RFA.CROB IS FILED UNDER ORDER 41, RULE

22   OF   CODE   OF   CIVIL   PROCEDURE    AGAINST   THE

JUDGMENT AND DECREE DATED 12.09.2006 PASSED IN

O.S.86/2006 ON THE FILE OF THE CIVIL JUDGE, (SR.

DN.), AND JMFC, DEVANAHALLI, DECREEING THE SUIT

FILED FOR PARTITION AND SEPARATE POSSESSION.


     THIS RFA AND RFA.CROB HAVING BEEN RESERVED

FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS

DAY, THE COURT PRONOUNCED THE FOLLOWING:-
                                 7


CORAM:      HON'BLE MR JUSTICE V SRISHANANDA

                        CAV JUDGMENT

(PER: HON'BLE MR JUSTICE V SRISHANANDA)

Heard Sri.Manjunath G. Kandekar, learned counsel

for the appellant Nos.1 and 4, Sri.T.N.Vishwanatha,

learned counsel for caveator/respondent Nos.1 and 2,

Sri.N.Nagaraja, learned counsel for respondent No.3,

Sri.Byregowda N., learned counsel for Nos.4 and 5 and

Sri.M.Murali Babu, learned counsel for respondent No.7.

2. Defendant Nos.2, 4, 6 and 8 are the appellants

challenging the validity of the judgment and decree passed

in O.S.No.86/2006 dated 12.09.2006 on the file of Civil

Judge (Senior Division) and JMFC, Devanahalli in this

appeal.

3. Parties are referred to as plaintiffs and

defendants for the sake of convenience as per their

original ranking in the Court below.

4. Facts in the nutshell, which are utmost

necessary for disposal of the appeal is as under:

4.1. A suit came to be filed by the plaintiffs for the

relief of declaration that plaintiffs have got 11/60th share in

the following properties (hereinafter referred to as suit

properties) and for the relief of partition and separate

possession for the aforesaid share and restraining the

defendants from alienating the suit properties:

SCHEDULE 'A' PROPERTIES

"1) Part and parcel of land bearing Sy.No.6 measuring 5 Acres, situated at Shantha Kuntana Halli Village and bounded on the

East by : Government Road West by: Dodda Kempamma and Muni Maddurappa's Land North by : Chinnappa and Narayanappa's Land South by : Cart Tract

2) Part and parcel of land bearing Sy. No. 89/1 measuring 1 Acre 22/2 Guntas, bounded on the

East by: Lands of Hanumарра

West by :Lands of Dodda Kempamma

North by: Lands of Anjanappa

South by: Land bearing Sy. No. 9/2

3) Part and parcel of land bearing Sy No.89/2 measuring 2 Acres 35 Guntas, bounded on the

East by : Lands of Hanumaрра

West by : Lands of Muni Akkayyamma

North by: Land bearing Sy. No. 89/1

South by : Lands of Pilla Kenchappa

4) Part and parcel of land bearing Sy. No.9/2 measuring 0-24 Guntas Bounded on the

East by : Land bearing Sy.No.89/1 and 89/2

West by : Canal

North by : Lands of Anjanappa

South by : Land bearing Sy No. 9/3.

5) Part and parcel of land bearing Sy. No. 9/3 measuring 0-21 Guntas bounded on the :

East by : Land bearing Sy. No. 89/1 & 89/2

West by :Canal

South by : Lands of Muni Akkayyamma

measuring 2 Acres, bounded on the

East by :Gomal Sites /Lands

West by : Forest Land

North by : Land bearing No.97

South by : Road

measuring 2 Acres, bounded on the

East by :Gomal Sites /Lands

West by : Forest Land

North by : Land bearing No.107

South by : Land bearing Sy.No.28

8) Part and parcel of land bearing Sy. No.107 measuring 2 Acres, 08 guntas bounded on the

East by :Gomal Sites /Lands

West by : Forest Land

North by : Land bearing No.108

South by : Land bearing Sy.No.97

measuring 2 Acres 04 Guntas, bonded on the :

East by :Gomal Sites /Lands

West by : Forest Land

North by : Lands of Muniswamappa

South by : Land bearing Sy.No.107

10) Part and parcel of land bearing Sy. No.1/3 measuring 2 Acres, bonded on the :

East by :Gomal Sites /Lands

West by : Forest Land

North by : Lands bearing Sy.No.108

South by : Lands of Muniswamappa

11) Part and parcel of land bearing Sy. No.52/5 measuring 27 and ½ Guntas, bonded on the :

East by :Canal

West by : Lands of venkataswamappa

North by : Lands of Anjanappa

South by : Road

12) Part and parcel of land bearing Sy.No.77/1 measuring 0.30 Guntas, bonded on the :

East by :Canal

West by : Road

North by : Lands bearing Sy.No.81/2

South by : Lands of Dodda Motappa

13) Part and parcel of land bearing Sy No.81/2 measuring 1 Acre 26 Guntas, bounded on the:

East by :Canal

West by : Road

North by : Lands of Hanumanthappa

South by : Land bearing Sy.No.77/1

14) Part and parcel of land bearing Sy. No. 59/2 measuring 0-08 Guntas, bounded on the:

East by :Lands of Hanumanthappa

West by : Kaluve

North by : Lands of Anjanappa

South by : Lands of Hanumappa

15) Part and parcel of land bearing Sy. No. 59/1 measuring 0-27 Guntas, bounded on the:

East by :Lands of Chikka Kempanna

West by : Lands of Anjanappa

North by : Lands of Muni Venkatappa

South by : Lands of Hanumappa

16) Part and parcel of land bearing Sy. No. 57/1 measuring 8 & ½ Guntas bounded on the:

East by :Land bearing Sy.No.57/3

West by : Lands of Hanumanthappa

North by : Lands of Hanumanthappa

South by : Lands of Hanumappa

17) Part and parcel of land bearing Sy No.57/5 measuring 0-06 & 1/2 Guntas, bounded on the

East by :Land bearing Sy.No.57/3

West by : Kaluve

North by : Lands of Hanumanthappa

South by : Lands of Hanumappa

18) Part and parcel of land bearing Sy No.57/3 measuring 0.13 & ½ Guntas bounded on the

East by : Kaluve and Lands

of Hanumanthappa

West by : Land bearing Sy.No.57/1

North by : Lands of Hanumanthappa

South by : Lands of Hanumappa

19) Part and parcel of land bearing Sy No.38/3 measuring 0-04 & 1/2 Guntas bounded on the

East by : Kaluve

West by : Kaluve

North by : Lands of Hanumanthappa

South by : Lands of Andeppa

Sl. No.14 to 19 are situated at Gejjukuppe village.

SCHEDULE 'B' PROPERTIES

1) Part and parcel of site bearing Janjar No.119, measuring 28 X 28 ft bounded on the

East by : Remaining Property

West by : Road

North by : Road

South by : House of Putta Muniyappa

2) Part and parcel of site (palya) bearing property No.83 measuring 88 X 28 ft. and bounded on the :

East by : Property of Hanumakka

West by : Remaining property

North by : Road

South by : Dhari

3) Property bearing Janjar No.120 (Malige Mane) measuring 60 X 31 ft. bounded on the

East by :Road

West by :Vacant Site

North by : Road

South by : Dhari

4) Property No. 84 (palya) measuring 32 X 31 ft.

bounded on the

East by : House

West by : Hanumantharayappa

North by: Road

South by: Dhari

5) Vacant site bearing property No. 193, measuring 40 X 90 ft bounded on the

East by: Road

West by: Vacant site

South by :Site No.58

All the above properties are situated at Dharmapura Village, Vijayapura Hobli, Devanahalli Taluk, Bangalore District.

6) Part and parcel of Malige Mane bearing Janjar No.109, measuring 9 X 13 ft bounded on the

East by: Road

West by: Property of Krishnappa

North by :Property of Muniswamappa

South by :Dhari

7) Part and parcel of Malige Mane bearing Janjar No.110, measuring 25 X 21 ft. and bounded on the:

        East by:      Property of Hanumakka

        West by:     Road


           North by : Dhari

           South by :Property of Chowdappa

8) Part and parcel of site (Palya) bearing property No.73, measuring 15 X 21 ft. bounded on the:

East by: Property of Muniswamappa

West by: Property of Hanumappa

North by : Dhari

South by :Property of Chowdappa

Above properties are sitauted at Dharmapura Village, Vijayapura Hobli, Devanahalli Taluk, Bangalore District.

9) Part and parcel of House (Stone House) measuring 42 X 40 ft. situated at Dharmapura Village, Vijayapura Hobli, Devanahalli Taluk, Bangalore District, bearing Janjar No.199, Property No.194 and bounded on the

East by: Dhari

West by: Saguvali Land

North by : Saguvali Land

South by : Saguvali Land

SCHEDULE 'C' PROPERTIES

MOVABLES:

1. Stone slabs 10 x 3 ft. 100 Rs.40,000/-

Nos.

2. Angles (Sheets) Rs.50,000/-

3. Cement Sheets 10 x3 & ½ ft. Rs.16,000/-

4. Width Stone 10 X 1 & ½ ft Rs.30,000/-

5. Tyre Gadi -

6. Cows 5 Nos. -

7. Tractor FURGUSON - CAW- -

2941, 1989 model, Trailer No. CAW -2942

8. Generator with pump Rs.15,000/-

9. Bore-well 4 Nos. i.e., land -

bearing Sy.Nos.89/1, 89/2, 98 & 97

GOLD ORNAMENTS:

1)3 pairs chain-3 Nos. each measuring 65 gms.

2)Ear stud and Jumki - 3 pairs in all measuring 50gms."

4.2. It is contended that Channabyrappa is the

father of the plaintiffs and defendants and defendant No.7

is his wife. Channabyrappa said to have died on

30.07.1995, leaving behind plaintiffs and defendants as his

legal representatives.

4.3. Among the defendants, defendant Nos.3 to 6

are the sisters, who have been married long ago and they

are residing with their respective husbands.

4.4. Suit properties are the ancestral properties and

were under the management of defendant No.2 who is an

educated person in the family. Defendant No.1 is the

eldest son of Channabyrappa and property described in

suit item Nos.14 to 19 under 'A' schedule are situated at

Dharmapura Village and are originally ancestral properties.

Remaining properties mentioned in the schedule are

acquired by the plaintiffs' father out of the income derived

from the ancestral property in his name as well as in the

name of defendant No.2. Plaintiff further contended that

thus the 'B' schedule properties are also to be treated as

joint family properties.

4.5. It is further contented that defendant No.2

being better educated in the family, having worldly

knowledge, was managing the affairs of the suit properties

of Channabyrappa even though defendant No.1 was the

eldest male member after the death of Channabyrappa.

After the death of Channabyrappa, katha of 'A' schedule

properties were transferred in the name of defendant No.2

for convenience and differences arose among the family

members.

4.6. Plaintiffs demanded partition and separate

possession of their shares which was agreed to be given by

the defendant Nos.1 and 2 and later on, postponing the

same on one pretext or the other.

4.7. As such, there was a panchayat convened

during May, 1998 and panchayat advised defendant Nos.1

and 2 to accord legitimate share of the plaintiffs. In the

panchayat, defendant Nos.1 and 2 agreed to accord the

shares but defendant No.2 who acted as kartha, wanted a

larger share in the suit properties which was not accepted

by the plaintiffs.

4.8. It is also the contention of the plaintiffs that

taking advantage of the ignorance and the implicit

confidence reposed by the plaintiffs, defendant No.2

created some documents with regard to the suit properties

and attempted to alienate the same for his wrongful gain.

4.9. In the guise of managing the suit properties,

defendant No.2 also borrowed huge loans and when the

plaintiffs repeatedly demanded for partition, his sons

threatened the plaintiffs and therefore, suit for partition

came to be filed.

5. Pursuant to the suit summons, defendant No.2

filed a written statement which was adopted by defendant

Nos.1, 3 to 7 by filing a memo on 14.07.2000.

6. In the written statement, entire plaint

averments were denied and there was a specific denial

that the suit properties are the ancestral properties held by

Channabyrappa.

7. It is also denied that defendant No.2 was

managing the property. They contended that the

properties acquired by Channabyrappa are his individual

properties and there was no joint family income utilized for

purchase of the properties by Channabyrappa.

8. Defendant No.2 further maintained that the

properties mentioned in 'B' schedule are the individual

properties of Channabyrappa and himself.

9. Defendant No.2 admitted that Channabyrappa

died about five years ago and marriage of defendant No.2

took place in the year 1968 and his wife hails from a rich

family and with the aid of his father-in-law and brother-in-

law, defendant No.2 acquired item Nos.2 to 5 of the suit

properties and ever since their acquisition, defendant No.2

enjoyed those properties exclusively.

10. It is also contended that suit item Nos.8 and 9

of 'C' schedule properties are the joint family properties

and are open for partition. But gold ornaments and other

things are not in existence and sought for decreeing of the

suit in part only in respect of item Nos.8 and 9 of the 'C'

schedule properties.

11. Based on the rival contentions of the parties,

learned Trial Judge has raised following issues:

1. Whether the plaintiffs prove that suit schedule properties are all the joint family properties consisting of themselves and defendants and they are in joint possession as alleged?

2. Whether the 2nd defendant proves that suit item Nos.2 to 5 of A schedule properties are the self acquired properties of himself under the circumstances pleaded in paragraph 19 to 21 of the written statement?

3. Whether the 2nd defendant further proves that suit item No.1 of A schedule is a granted land to 1st defendant and it is his self acquired property as alleged in paragraph 22 of the written statement?

4. Whether the 2nd defendant further proves that C schedule properties are not in existence as alleged in paragraph 23 of the written statement?

5. Whether the plaintiffs are entitled for partition and separate possession of 11/60th share in all schedule properties on the future mesne profits as prayed?

6. To what relief, if any, the parties are entitled?

12. In order to prove the case of the plaintiffs,

plaintiff No.1 got examined as PW.1 and two witnesses

namely Chikkamotappa and H. Muniyappa as PW.2 and

PW.3.

13. On behalf of plaintiffs, as many as 50

documentary evidence were placed on record which were

exhibited and marked as Ex.P.1 to Ex.P.50 comprising of

genealogy, mutation register extract, certified copy of the

order of tahsildar, certified copy of mahazar, notice issued

by village accountant, mutation, copy of the order of

Tahsildar, copy of mahazar, notice issued by village

accountant, copy of Form No.19, certified copy of vote list,

sworn affidavit, notice issued by VSSN Mandible, certified

issued by PLD Bank, notice issued by Vysya Bank, police

acknowledgments, sale deed, Xerox copy of the letter

written to Tahsildar, pahanies, home and land tax

assessment list.

14. As against the evidence placed on record,

defendant No.2 got examined as DW.1 and on his behalf,

12 documents were placed on record as Ex.D.1 to D.12,

comprising of ration card, sale deed, RTC extracts, bank

notice, society notice, endorsement issued by Tahsildar,

kandayam and tax paid receipts and society notice.

15. On conclusion of recording of the evidence,

learned Trial Judge heard the arguments of the parties in

detail and by impugned judgment, decreed the suit of the

plaintiffs by granting 11/60th share and ordered enquiry

into mesne profits.

16. Suit was dismissed insofar as gold ornaments

are concerned as they were not available for partition.

17. Likewise, defendant No.1 have filed cross-

objection to the appeal which would be dealt in detail infra.

18. Being aggrieved by the same, it is defendant

Nos.2, 4, 6 and 8 have filed the present appeal on the

following grounds:

 "That the Judgment and Decree passed by the Trial Court is contrary to the facts, materials and the law. Hence, it is liable to be set aside.

 That the Trial Court has totally ignored the unequivocal and clear admission made by the Plaintiffs to the effect that only items from 14 to

19 of 'A' schedule Properties are joint family properties. The reasons given by the Trial Court in this regard are perverse and on this ground alone the impugned Judgment and Decree is liable to be set-aside.

 That the PW-1 in his evidence affidavit at para 2 has clearly admitted that after the death of their father though the Defendant No.1 was eldest brother, the Defendant No.2 was looking after the properties. How can a younger brother can become a kartha of the family and this aspect has not been properly considered by the Trial Court while passing the impugned Judgment and Decree.

 That the Plaintiffs have clearly admitted that the 11 properties claimed by the Defendants are the self acquired properties. And further PW-1 has admitted that he has not produced any record to show that there was money with his father to acquire properties. He also admitted that he has not seen the sale deeds and agreements of Survey No.89/1, 89/2 and 89/3 and further admitted that the annual income of the 2nd Defendant is Rs.50,000/- per annum and this itself was sufficient income for acquisition of properties by the 2nd Defendant independently. But the Trial Court has brushed aside the said clear various admissions made by the Plaintiffs. Hence, the impugned Judgment and Decree is perverse, one sided, unjust and illegal.

 That the trial court has not appreciated the ratio of the judgment cited by the Defendant No.2 in proper perspective and thereby wrongly held that it is not sufficient to show that joint family have some assets.

 That the Plaintiffs have miserably failed to prove that the assets of the joint family have formed the nucleus from which disputed assets have been acquired. In the absence of the same the Trial Court has decreed the suit erroneously and further wrongly held that the ratio of the Supreme Court

Judgment is not at all applicable to the case on hand on the ground that the above judgments are related to establishment of business and not acquisition of agricultural land.

 That the trial court has wrongly answered the issue Nos.1 and 5 in the affirmative and issue Nos.2, 3 and 4 in the negative without there being proper application of mind to the facts pleaded and material produced by both the parties herein.

 That the trial Court has heavily relied upon the written statement filed by the 2nd Defendant and thereby erroneously come to the conclusion that he has taken inconsistent pleas. It is a well settled law that the Defendants can take up inconsistent and alternative pleas as de and the Plaintiffs have to succeed on their own strength and merits and not on the inconsistency of defence taken by the Defendants. This principle has not been followed by the Trial Court while passing the impugned Judgment and Decree.

 That the Trial Court has wrongly calculated the shares in respect of the suit schedule properties without following method of calculation while fixing the quantum of shares and it is obligatory and incumbent on the part of the Trial Court to fix the quantum of shares in accordance with law. In

not doing so has occasioned miscarriage of justice to the Defendants.

 That the conclusions arrived at and the inferences drawn by the Trial Court is contrary to the law, facts and material on record warranting immediate interference of this Hon'ble Court."

19. Learned counsel for the appellants reiterating

the grounds urged in the appeal memorandum contented

that learned Trial Judge failed to note the overwhelming

evidence placed on record by defendant No.2 who is

examined as D.W.1 and wrongly decreed the suit of the

plaintiffs resulting in miscarriage of justice and sought for

allowing the appeal.

20. He would further invite the attention of this

Court by contending that Trial Court has wrongly

calculated the share in respect to the suit properties

without following the established procedure while fixing the

quantum of shares resulting in miscarriage of justice.

21. He also contended that plaintiffs failed to

establish the assets of the joint family so as to prove that

there was surplus in the joint family which was spilled over

to purchase the suit properties and the reasons assigned

by the learned Trial Judge in treating the suit 'B' schedule

properties are earned out of the joint family income has

resulted in grave miscarriage of justice besides opposed to

the settled principles of law on the point and sought for

allowing the appeal.

22. Learned counsel for the appellants further

contented that plaintiff No.1 who is examined as PW.1

clearly admitted that defendant No.1 is the eldest male

member, but defendant No.2 was made as karta and he

failed to prove that defendant No.2 acted as karta and was

managing the affairs of the joint family which has been

ignored by the learned Trial Judge while decreeing the suit.

23. It is also his contention that plaintiffs admitted

that among the suit properties; 11 properties claimed by

the defendants are the self-acquired properties of

defendant No.2 and therefore, decreeing of the suit is

improper.

24. Learned counsel for cross-objector adopting

the above arguments sought for allowing the cross-

objection and dismissal of the suit.

25. He also contended that PW.1 clearly admitted

that he has not seen the sale deeds or agreements of the

lands bearing Sy.No.89/1, 89/2, 89/3 of Dharmapura

village and clearly admitted that annual income of

defendant No.2 was Rs.50,000/- per annum which was

sufficient enough for the acquisition of 'B' schedule

properties by defendant No.2 out of his independent

income which has been totally ignored by the learned Trial

Judge while decreeing the suit of the plaintiffs and sought

for allowing the appeal.

26. Per contra, learned counsel for the contesting

respondents/plaintiffs supports the impugned judgment.

27. He would contend that defendant No.2 who is

examined as D.W.1, specifically contended in the written

statement that his wife hails from the rich family and

father-in-law and brother-in-law have supported financially

for acquisition of the suit properties which are standing in

the exclusive name of defendant No.2 but to establish the

same, except the self-serving testimony of DW.1, there is

no other evidence placed on record whereby it should be

presumed that defendant No.2 being the worldly wise

person, was managing the suit properties as karta and has

purchased the suit 'B' schedule properties from out of the

nucleus from the joint family and thus, decreeing of the

suit as prayed for is just and proper and sought for

dismissal of the appeal.

28. Having heard the arguments of both sides, this

Court perused the material on record meticulously.

29. On such perusal of the material on record,

following points would arise for consideration:

1. Whether the plaintiffs have successfully established that all the suit properties are the joint family properties except the gold ornaments for which the suit is dismissed?

2. Whether the grant of share in the suit properties in the impugned judgment is just and proper?

3. Whether the cross-objector makes out a case that impugned judgment passed in O.S.No.86/2006 to be set aside and counter claim filed by the cross-objector before the Court below needs to be allowed?

4. Whether the impugned judgment is suffering from legal infirmity and perversity and thus, calls for interference?

5. What order?

REGARDING POINT Nos.1 TO 4:

30. In order to prove the case of the plaintiffs,

plaintiff No.1 is examined as P.W.1. In the case on hand,

there is no dispute as to the relationship. Further, the

material document placed on record namely Form No.19

vide Ex.P.15, wherein succession and survival are

inheritance certificate is issued by competent authority is

not in dispute.

31. Exs.P.18 to Ex.P.25 are the letters from the

bank pertaining to the loans availed in respect of the suit

properties. Exs.P.30 to Ex.P.48 are the RTC Extracts

wherein at an undisputed point of time, name of the father

- Channabyrappa was standing. Mutation register extract

would go to show that after the death of Channabyrappa,

name of defendant No.2 came to be mutated in the

revenue records.

32. P.W.2 to P.W.3 are the witnesses who have

supported the case of the plaintiffs.

33. In the cross-examination of P.W.2, it has been

alleged that he is aged about 65 years. He has answered

that he cannot say total items of the suit properties in the

plaint and he cannot also reveal the survey numbers of the

properties and when it was purchased.

34. However, he has specifically answered that

defendant No.2 was acting as karta after the death of

Channabyrappa. He admits that before the criminal case

came to be filed between the parties, parties were leaving

in the joint family and after the criminal case and the

incident involved in the criminal case, plaintiffs are leaving

separately and they are earning their livelihood by doing

coolie work.

35. He has also specifically answered that before

the incident involved in the criminal case happened, there

was a panchayat. But parties did not agree for the

decision of the panchayat. He has stated that he has also

signed the said decision of the Panchayath and parties

have also signed, but they are available with their

respective parties.

36. In the cross-examination of PW.3, he has

stated that he cannot specifically say which are the items

of the suit properties which were ancestral properties at

the inception and when other properties were purchased.

37. He has stated that during the lifetime of

Channabyrappa, one Chowdappa was the eldest member

of the family and they were leaving together. He has also

answered that the lands were cultivated jointly and

members of the family had the separate kitchen. He has

also stated that the income from the agricultural lands are

exclusively enjoyed by defendant No.2 and for last five to

six years, plaintiffs and defendant No.2 are leaving

separately.

38. Material evidence placed on record on behalf of

the plaintiffs thus would establish that at an undisputed

point of time, Channabyrappa possessed the ancestral

properties and according to the plaintiffs, other properties

are acquired from out of the joint family income.

39. In order to establish that 'B' schedule

properties are the self-acquisition of defendant No.2, as

referred to supra, defendant No.2 is examined as DW.1

and there is no other material evidence placed on record.

40. In his cross-examination, D.W.1 has admitted

that that he is an agriculturist. He has stated that his

father had nine children. Among them, five were sons and

four were daughters namely Chowdappa,

Hanumantharayappa, Krishnappa, Lakshmana, Muniraju,

Kempamma, Muniyamma, Munikempakka and

Munithayamma.

41. He admits that during the pendency of the suit,

mother of the parties died. He pleaded ignorance that all

the children of Channabyrappa are the parties to the suit.

He admits that he has studied up to 10th standard and

denied that he is the only educated person in the family.

42. He denied that he was looking after the joint

family properties for a period of 30 years. He denied that

suit properties are the ancestral properties. He denied that

there is no partition in respect of the suit properties. He

has answered that his wife is from Nandi village and his

father-in-law has three daughters and two sons. He denied

that what is the property possessed by his father-in-law

and survey numbers of the lands possessed by his father-

in-law. He admits that his brother-in-law has been married

and they are leaving jointly.

43. He admitted that to establish that his father-

in-law was rich enough to contribute for the purchase of

the joint family; he has not placed any records. He has

specifically denied that Sy.No.89/1 of Dharmapura village

is a joint family property. He further denied that his father

had three brothers namely Hanumappa, Appayappa and

Maniswamappa. He pleads ignorance about the partition

that has taken place in respect of the land in Sy.No.89/1 of

Dharmapura village between his father and his uncles. He

denies that in such partition, his father has got 31¼ of the

land in Sy.No.89/1 Dharmapura village. He denies that his

father had purchased 31¼ guntas of the land from

Appayappa i.e. the uncle of DW.1.

44. He has answered that he has purchased

Sy.No.89/1 of Dharmapura village through a sale deed but

he has not produced any such sale deed. He admits that

in respect of land in Sy.No.89/1 of Dharmapura village,

there is no mutation entry and an endorsement has been

issued by Tahsildar vide Ex.D.10. He admits that ragi crop

has been grown in the said land and there are coconut

trees. He denied the assertion that for the sake of

convenience and he being educated, katha was agreed to

be transferred in his name.

45. He admits that land in Sy.No.6 of Shantha

Kuntana Halli village is not belonging to him in his

individual capacity and it has been granted in favour of

defendant No.1. In respect of land in Sy.No.89/2 of

Dharmapura village, he admits that the same measures 2

acres 31 guntas and he has purchased the same from

Venkateshappa and Chowdappa.

46. He further admits that he does not know how

Venkateshappa and Chowdappa got the title to the said

property. He also admits that grapes and ragi are grown

in the said land. He admits that he does not remember

when he purchased the said property. He has stated that

he has sold the jewels belonging to his wife for arranging

the sale consideration for purchase of the land in

Sy.No.89/2. But he admits that there is no document to

establish the same.

47. He pleaded ignorance that in respect of item

No.1 of the suit property, there was a replacement from

Sy.Nos.6 to 31. He denied that in the said survey number,

land was granted in favour of defendant No.2 to the extent

of 4 acres. He denied that he has sold 2 acres of the land

but the witness volunteered that as per the order of the

Tahsildar, 2 acres of the land was granted in his favour in

his individual capacity.

48. He further stated that he does not remember

the date, year or the day of the previous partition. He

admits that plaintiffs have produced the said partition and

he has not produced the same. He pleaded ignorance that

there was an order of injunction not to alienate the

properties. He admits that he has not attended the Court

on all dates of hearing but his Advocate has intimated him

the proceedings that took place on every dates of hearing.

49. D.W.1 has stated that he does not remember

the area of the land covered under Sy.No.9/2 of

Dhamapura village. He denies that the land in Sy.No.9/2

had fallen to the share of his uncles. He has answered

that he does not remember the vendor of the land in

Sy.No.9/3 of Dharmapura village. He has denied that said

land is purchased by him from Venteshappa and

Chowdappa on for and on behalf of the joint family.

50. However, he maintained that himself and his

wife used to earn the money by doing labour work and

from out of the said income, they have purchased all the

four items of the suit properties. He has also stated that

he does not remember what the labour charges were in

the year 1979. He further answered that he does not

know who is the owner of the land in Sy.No.43/1 and 43/3.

He denied that himself, his father and other legal

representatives of his father have sold the property in

favour of Munishamappa on 28.11.1979 in respect of the

land in Sy.No.43/1. He further denied having sold the land

in Sy.No.43/3 to Munishammappa.

51. He has stated that land in Sy.No.37/3 of

Gejjeguppe village is in the name of his father, but it is not

in the possession of either plaintiffs or defendants. He

pleaded ignorance that said land was also sold in favour of

son of Munishamappa by name Hanumappa and again he

pleaded ignorance about the land in Sy.No.38/3 of

Gejjeguppe village being the property of the joint family.

52. He denied that other properties of the suit are

purchased from the sale consideration of the land sold in

Sy.Nos.37/3, 38/3, 43/1 and 43/3. He pleaded ignorance

about situation of the land in Sy.No.98 of Dharmapura

village which is one of the items of the suit property, the

area covered under the said land and who is the owner of

the said property.

53. Likewise, he pleaded ignorance about the

details of the land in Sy.Nos.97, 107, 108 and 1/3 (suit

properties) of Dharmapura village. He denied that all

those properties are the joint family properties. He

specifically maintained that land in Sy.No.52/5 of

Dharmapura village is his individual property as he has

purchased the same from his vendor whose name he does

not remember and so also the date of sale, consideration

paid etc.

54. He further denied that land in Sy.No.52/5 of

Dharmapura village is purchased for and on behalf of the

joint family. He admits that he has no documents to show

that he had sold the jewels belonging to his wife and he

has no documents to establish what were the labour

charges earned by himself and his wife in the year 1979.

55. He answers that land in Sy.No.77/1 of

Dharmapura village is in the name of Chowdappa, but he

does not know the details thereof. Likewise, he pleaded

ignorance about the land in Sy.No.81/2A of Dharmapura

village and land in Sy.No.59/2 of Gejjukuppe village. He

further pleaded ignorance that what are the number of the

properties that were purchased in the name of Chowdappa

for and on behalf of the joint family. He further pleaded

ignorance about the land in Sy.No.59/2 of Gejjukuppe

village being mortgaged to P.L.D. Bank. He pleaded

ignorance about the land in Sy.No.59/1 of Gejjukuppe

village being the ancestral property.

56. Further, he pleaded ignorance about the lands

in Sy.No.57/5, 57/3, 38/3 of Gejjukuppe village being the

joint family properties. He further answered that nine

houses and sites mentioned in the 'B' schedule are the

joint family properties. However, he maintained that

whatever the houses or the sites which are standing in his

name are his self acquired properties and he also have a

share in the house which was purchased from Hanumakka

which is in the name of his father mentioned in the 'B'

schedule. He further pleaded that he does not know when

he purchased the house site and the houses and its

consideration and other details.

57. In his further cross-examination, he admits

that he has not instructed his Advocate to prepare the

details with regard to the Palupatti and his Advocate

prepared the same and he has only subscribed his

signature on to it.

58. He further answered that he cannot furnish the

details of the area of the land in Sy.Nos.97, 98, 107, 108

situated in Dharmapura village. He denied that 100 stone

slabs are installed to protect the said property as

compound by spending Rs.40,000/- but he maintained that

he got it installed to protect the property in order to have

a cow shed. But he cannot furnish the details for the

installation of stone slabs namely on what date the same

was installed, what is the amount spent etc.

59. Further, he denied having installed the iron

angles and cement sheets for protection and storage of the

properties of the joint family and purchasing a Tractor and

Trailer for the benefit of the joint family. But he has stated

that the Tractor and Trailer unit bearing No.CAW-2941 and

2942 are his self-acquired property. He denied that the

loan amount borrowed for the purchase of the Tractor and

Trailer unit was repaid by the contribution of all the

members of the joint family.

60. He admits that tube wells are dug in Sy.No.97

and 98 of Dharmapura village by his father and all the

members have got possession over the tube wells.

However, he denies that tube wells being in existence in

land in Sy.Nos.89/1 and 9/2 of Dharmapura village. He

denied that plaintiff Nos.1 and 2 and defendant No.7

obtained the loan for diary and he was a guarantor for the

said loan. He denied having objected for transfer of katha

in the name of plaintiff No.1 and defendant No.7. However,

on confrontation of Ex.P.28, he admits the same and so

also Ex.P.29 wherein his signatures were found.

61. The above evidence on record is sought to be

reappreicated by defendant Nos.2, 4, 6 and 8.

62. On re-appreciation of the above evidence on

record, it is crystal clear that there is no dispute as to the

relationship of the parties.

63. It is the case of the plaintiffs that the suit

properties are the joint family properties and therefore,

they have sought for sharing the suit properties.

Relationship is not in dispute inasmuch as Ex.P.1 is

admitted by the defendants. Admittedly, it is defendants

who have taken the plea that there was an earlier partition

and there is a Palupatti.

64. D.W.1 has specifically admitted in his cross-

examination that he has not produced any Palupatti, but

plaintiffs have produced the same. He also pleaded

ignorance as to the date, year and the month of the

Palupatti whereas plaintiffs have maintained in the suit

that there is no partition and after the death of common

prepositus, plaintiffs are also entitled for the share.

65. The documents that are placed on record are

the mutation register extract in form of Ex.P.2 to P7.

Exs.P.2 to P.7 would make it clear that the mutation has

taken place after death of the common prepositus and the

sales that have taken place in respect of the joint family

properties. Certified copy of the order passed by the

Tashildar is at Ex.P.8. Contents of Ex.P.8 which is the

order of the Tahsildar wherein it is stated that after the

death of the common prepositus, the change of katha was

accepted and Hanumakka being the wife of

Channabyrappa has affixed her left thumb impression.

Chowdappa, Hanumanthappa, Lakshmana and Muniraju

have signed whereas Krishnappa has affixed his left thumb

impression.

66. As could be seen from the written statement

and the examination-in-chief of D.W.1, defendant has

stated that properties which are standing in the name of

defendant are all his self acquired property.

67. He has also stated that his wife hails from

affluent family hailing from Nandi village. It is his case

that he has purchased suit Nos.2 to 5 which are standing

in his name from his income and from the contribution

made by his father-in-law and brothers-in-law.

68. To establish the said aspect of the matter,

except the self-serving testimony of D.W.1, there is no

other material documents placed on record. Father-in-law

or brother-in-law or anybody from the family of the wife of

D.W.1 has been examined to establish the fact of

contribution for purchase of the properties.

69. On the contrary, a specific answer is elicited in

the cross-examination that out of the savings from the

labour work, in the year 1979, he saved the money and

from the labour charges earned by himself and his wife, he

purchased the four items of the suit properties as is

contended in the written statement.

70. If the wife of D.W.1 is hailing from the affluent

family, then what was the necessity for the wife of D.W1

and D.W.1, to do the coolie work. The answer elicited in

the cross-examination contradicts the stand taken in the

written statement.

71. Crowning all these aspects of the matter,

D.W.1 in his cross-examination, categorically admits that

he did not instruct to prepare the written statement or the

examination-in-chief of it and he does not know the

contents with regard to the alleged Palupatti and other

details.

72. Further, he would admit that he has only

subscribed his signature to the written statement and the

examination-in-chief prepared by his Advocate. What is

the evidentiary value that should be attached to such a

statement is a question that remains unanswered on

behalf of the appellants.

73. It is elicited in the evidence that it is D.W.1

who has been educated in the family having studied up to

10th standard and all others have not studied at all.

Therefore, in order to facilitate the transactions with

regard to the suit properties; some of the properties were

purchased in the name of D.W.1 and katha of the

properties were also made in the name of D.W.1.

74. It is an acceptable explanation on behalf of the

plaintiffs to further their case that even though properties

are standing in the name of D.W.1; those properties are

the joint family properties.

75. Specific suggestions are made that some of the

properties belonging to the joint family were sold to

Munishamappa and his son Hanumappa. Though D.W.1

pleaded ignorance, from the material document that is

placed on record, the properties were sold to

Muniushamappa and Hanumappa through a registered sale

deed and that amount must have been utilized for the

purpose of purchase of the remaining properties.

76. In other words, plaintiffs were successful in

establishing that there existed a joint family nucleus for

the purchase of all the items of the suit properties.

Presumption thus, comes into operation in favour of the

plaintiffs.

77. It is settled principles of law and requires no

emphasis that if the D.W.1 have taken the plea that it is

his self acquired after the plaintiffs placed material

evidence on record to discharge the initial burden, it is for

the defendants to prove and establish that some of the

items of the suit properties as is contended in the written

statement are his individual properties.

78. In other words, D.W.1 has to place such

cogent material on record which would be sufficient for the

Court to arrive at a conclusion that D.W.1 had independent

income apart from the joint family income and for the

purchase of the properties, pleaded in the written

statement, he utilised his individual income and did not

derive any financial assistance from the joint family funds.

79. In the case on hand, as discussed supra, as

could be seen from the cross-examination of D.W.1, D.W.1

is unable to place any cogent material on record as he

pleaded ignorance about the consideration amount in the

sale deeds which are admittedly standing in his name.

80. Further, he pleaded ignorance about the date,

month and year of the sale in respect of the properties

which are standing in his name. If at all, if D.W.1 has

spent his own money in respect of such of the properties

which are standing in his name and utilised his own funds,

being the most educated person in the family of the

plaintiffs and defendants, he should be in a position to say

that how much money he had spent for purchase of each

of the properties and source thereof.

81. In that regard, D.W.1 has not placed any

material evidence on record nor his theory of contribution

from his wife's family is not established as discussed supra

by examining any one of the members of his wife's family

or at least his wife.

82. Likewise, the theory put forward by him that

he sold the jewels of his wife and then purchased the

properties which are standing in his name is also not

proved as he is unable to say what is the amount that he

derived from the sale of the jewels and with whom he sold

the jewels or any receipt thereof has been placed on

record.

83. Now adverting to the cross-objection, in the

cross-objection, following is the prayer:

"Wherefore the judgment and decree dated 12.09.2006 passed in O.S.No.86/2006 on the file of Civil Judge (Sr. Div.) and JMFC, Devanahalli be set aside and this cross objections be allowed with costs in the interest of justice and equity."

84. To substantiate the same, there are no

grounds at all raised in the cross-objection and only facts

have been stated in paragraph No.11 which reads as

under:

"The cross objector/respondent No.3 family consisting of four sons and two daughters are eking out their life by cultivating the item No.1 and 13 of the suit schedule property. The children of cross objector/respondent No.3 filed suit for partition and separate possession of their share in respondent exclusive property i.e., item

No.1 of the suit schedule properties, by filing O.S.No.169/2011 on the file of the Sr. Civil Judge, Devanahalli by making all respondents and appellants as parties to the suit. The appellant herein who filed written statement that the property is liable to be partitioned among all members of the family by taking inconsistent plea with that of original suit under which the present appeal is filed. The appellant No.1 is now in collusion with respondents No.1 and 2 is obstructing the enjoyment of the suit item No.1 and 13 of the suit schedule property. The copies of the plaint and written statement are herewith produced for kind reference."

85. Material on record would not warrant allowing

the cross-objection in dismissing the suit. Therefore,

cross-objection needs to be rejected.

86. Thus, learned Trial Judge rejecting the theory

of the earning of the items mentioned in the written

statement by spending the individual income of D.W.1 is

just and proper.

87. Consequently, when the plaintiff has

discharged the initial burden to establish that suit

properties are the joint family properties by placing

necessary evidence on record including the documentary

evidence, this Court is of the considered opinion that point