6. AiÀiÁªÀ DzÉñÀ CxÀªÁ rQæ?"
8. The plaintiffs, in order to prove their case, examined
to 23. The defendants, in order to prove their case, examined
9. The Trial Court having considered the material on
10. Being aggrieved by the judgment and decree of the
R.A.No.36/2019. The First Appellate Court having considered the
6) What order?"
11. The First Appellate Court having considered the
material available on record comes to the conclusion that
plaintiffs have not placed sufficient material to show that plaint
schedule immovable properties are joint family properties which
have got sufficient annual yield enabling late Thattaiah @
Thathappa to keep the fixed deposit as per item No.4 of the suit
schedule properties and also comes to the conclusion that the
plaintiffs failed to produce sufficient material to prove the fact
that properties at item Nos.13 and 14 were granted by the
appropriate authority in lieu of the lands which were acquired for
the public purpose and also taken note the contention that
D.Ws.1 and 2 have admitted that there was no oral partition
among the children of late Chaluvegowda and so also whether
the Trial Court committed an error in coming to the conclusion
that plaintiffs have not included all the properties while seeking
the relief of partition and separate possession. The First
Appellate Court having reassessed the material on record,
answered point Nos.1 to 5 as 'negative' and dismissed the
appeal and confirmed the judgment of the Trial Court. Being
aggrieved by the concurrent finding, the present second appeal
is filed before this Court.
12. This Court having considered the grounds which
have been urged in the second appeal, vide order dated
11.07.2024 and also considering the document of Exs.D1 to D3
which stands in the name of the plaintiffs which does not
disclose that all the properties are joint family properties and
also considering the observation made by the Trial Court and the
First Appellate Court, admitted the second appeal and framed
the following substantial questions of law:
"(1) Whether the Trial Court and the First Appellate
Court committed an error in coming to the
conclusion that already there was oral
partition, in the absence of any documentary
evidence to prove the factum of oral partition
and the parties have acted upon the same?
(2) Whether the Trial Court and the First Appellate
Court committed an error in not considering
the material available on record and the
finding of both the Courts that already there
was a partition is against the material on
record and it amounts to perversity in coming
to such a conclusion?"
13. Learned Senior counsel, who appears for appellants
would vehemently contend that one Chaluvegowda is the
propositus of the family and suit is filed for the relief of partition
and separate proposition in respect of the suit schedule
properties, including the agricultural land, house property and
the fixed deposit amount which is kept in the State Bank of
India. The counsel would vehemently contend that both the
Courts have committed an error in dismissing the suit and
confirming the same. The counsel appearing for the appellants
brought to notice of this Court Ex.P8-mutation register extract
which came into existence in the year 1995-1996 and contend
that including the wife of Chaluvegowda and all the five sons
have given consent for transfer of property in favour of the elder
son i.e., Thattaiah @ Thathappa. The counsel also brought to
notice of this Court the details mentioned in Ex.P8. The counsel
also would vehemently contend that defence was taken in the
suit that there was an oral partition and the same is not
supported by any document. Though issue was framed regarding
the contention that whether there was an oral partition and the
Trial Court, while answering issue No.2 committed an error and
given perverse finding without any documentary proof
evidencing the fact of oral partition. The counsel would
vehemently contend that Exs.P12 to 16 are the RTC extracts and
the same pertains to four survey numbers. The counsel would
vehemently contend that Sy.No.61 measures 7 acres, 31 guntas,
Sy.No.3/1 measures 2 acres, 22 guntas and Sy.No.21 measures
17 acres, 34 guntas and contend that all the suit schedule
properties are included as item Nos.1 to 16.
14. The counsel also vehemently contend that Sy.No.21
measuring 17 acres was acquired for the purpose of construction
of dam. The very observation made by the Trial Court that suit
for partial partition is not maintainable is erroneous and
committed an error in dismissing the suit. The counsel would
vehemently contend that no such plea was taken in the written
statement that the plaintiffs' property is also a joint family
property and even no such plea was taken that suit for partial
partition is not maintainable in the written statement and also no
issue was framed. The counsel would vehemently contend that
properties are purchased in the name of Thattaiah @ Thathappa
and the same is also out of joint nucleus and there was no other
income, except the joint family property. The counsel would
contend that with regard to relationship is concerned, there is no
dispute and categorically brought to notice of this Court
admission given by D.W.1 and D.W.2 and contend that there is a
fair admission that after the death of Chaluvegowda, elder son
Thattaiah @ Thathappa was looking after the properties of the
family. The counsel also would vehemently contend that
Thattaiah @ Thathappa died on 10.10.2010 and fixed deposit
receipt is also produced as Ex.P6 and the fact that in terms of
Ex.P8, all the family members gave consent to transfer the
property in the year 1997 evidence the fact that there was no
partition and all of them were in the joint family. The counsel
would vehemently contend that total 42 acres, 38 guntas of land
belongs to the family and out of which, 17 acres were acquired
and the contention of the defendants is that there was a
partition and the same was an earlier partition which had taken
place 25 years ago. But, counsel contend that all the properties
were acquired in the name of Kartha i.e., Thattaiah @
Thathappa. The very observation made by the Trial Court in
paragraph Nos.22 and 23 that there was an oral partition and
also the plaintiffs' properties are not included and suit for partial
partition is not maintainable is an erroneous observation. In
order to prove the oral petition, nothing is placed on record and
none of the documents placed on record by the defendants
reflect that there was an oral partition. The property stands in
the name of the plaintiffs presume that there was an oral
partition and those properties are not the joint family properties
and the same are self-acquired properties of the plaintiffs, since
all of them have been settled in Bangalore.
15. The counsel also vehemently contend that the First
Appellate Court also committed an error in making similar
observations in paragraph Nos.32 and 33 and the said finding is
also erroneous and confirmation of the judgment of the Trial
Court is erroneous and finding is perverse. It is contented that
the properties which have not been included are the self-
acquired properties of the plaintiffs and hence, the same was not
included in the suit. But observation is that those properties are
not included and hence there was a partition is an erroneous
approach. Therefore, the counsel would contend that judgment
and decree passed by the Trial Court and the First Appellate
Court requires to be set aside.
16. Learned counsel appearing for respondent Nos.2 and
4 in his argument would vehemently contend that documents
Exs.D2, D3, D8, D9, D10, D11, D13 and D14 clearly disclose
that there was a partition and properties stand in the name of
plaintiff Nos.3 and 6. The counsel would vehemently contend
that Ex.D1 is very clear that property No.299 was sold by one of
the plaintiffs and Ex.D13 is also very clear that there was an oral
petition. The counsel would contend that item Nos.14 and 18 are
granted properties in favour of Thattaiah @ Thathappa and
contend that said grant was made on 20.03.1976. The counsel
would vehemently contend that Ex.D22 is very clear that
property belongs to Thattaiah @ Thathappa and bequeathed the
property by way of Will in favour of the daughter. The counsel
would contend that Ex.D11 is very clear that property was
granted in favour of plaintiff No.6 in the year 1989 and so also
Ex.D11 in favour of plaintiff No.3 and when these grants are
made in favour of plaintiff Nos.3 and 6 and they have not been
included in the suit schedule properties. The counsel would
vehemently contend that P.W.1 categorically admitted that he is
enjoying those properties and not included all those properties in
the suit. It is contended that nothing is whispered in respect of
item Nos.5 to 16 and contend that when the plaintiffs sold the
property in terms of Ex.D1 and the same is admitted and Exs.D2
and D3 stands in the name of plaintiff No.6, it is very clear that
there was an oral partition. The counsel also contend that
Exs.D4, D5, D6, D7, D8 stands in the name of Appajigowda and
both the Courts have not committed any error as contended by
learned senior counsel for the appellants. The counsel
vehemently contend that when there are sufficient materials
regarding acquiring of properties by the plaintiffs after the
partition, question of interference by this Court does not arise in
this second appeal.
17. Learned counsel for caveator-respondent No.7
adopts the arguments of learned counsel for respondent Nos.2
and 4 and contend that gift deed was executed in favour of
defendant No.7 on 26.05.2010 in terms of Ex.D23 and the same
was not challenged by the plaintiffs and when there was no such
challenge to the said gift deed, question of considering the same
does not arise.
18. In reply to this argument of learned counsel for
respondent Nos.2 and 4 and learned counsel for caveator-
respondent No.7, learned senior counsel for the appellants would
vehemently contend that question of challenging the gift deed
i.e., Ex.D23 does not arise, since this suit is filed for the relief of
partition and separate possession and contend that all the
properties belong to joint family and even if any document is
executed, the same would not convey any right. The counsel
would vehemently contend that though properties of the
plaintiffs are not included, at no point of time, they contend that
those properties are joint family properties. The counsel would
vehemently contend that Ex.D1 is only an assessment extract in
respect of site measuring 30 x 40 and the same was purchased
and sold by plaintiff No.1 and the fact that he was in
Government Service working in the Police Department and
purchased the property is not in dispute. The counsel would
contend that Ex.D2-sale deed is dated 09.03.2012 and
subsequent to filing of the suit, the property was purchased by
plaintiff No.6. The counsel also would contend that Ex.D3-sale
deed is dated 16.01.2013 and the same is purchased subsequent
to filing of the suit and the fact that Kartha died in the year 2010
is not in dispute. It is contented that 30 guntas of land was
granted to plaintiff No.6 and the same was his separate property
and hence, question of inclusion of those properties does not
arise. The counsel would contend that the very contention that
property was given in favour of defendant No.7 cannot be
accepted, since the property was acquired out of joint family
nucleus and the fact that property measuring to an extent of 17
acres was acquired for the purpose of dam is also not in dispute
and no compensation was paid to the plaintiffs out of the
compensation amount received. If there was any such partition,
property would have stood in the name of the plaintiffs in terms
of the oral partition and no such documents are produced.
Hence, the very contention of learned counsel for respondent
Nos.2 and 4 and learned counsel for caveator-respondent No.7
cannot be accepted.
19. Having heard respective counsel and also on perusal
of the material available on record and also the substantial
questions of law framed by this Court which have been referred
supra, this Court has to analyze the material on record whether
such a finding of oral partition and parties have acted upon in
terms of the oral partition, in the absence of such material on
record evidencing the fact of oral partition and any documentary
evidence and whether it proves the factum of oral partition has
to be considered by this Court and analyze whether the finding
given by the Trial Court as well as the First Appellate Court that
in the absence of the material on record that there was a
partition is against the material on record and it amounts to
perversity, in coming to such a conclusion.
Substantial question of law Nos.(1) and (2)
20. Both these substantial questions of law are
considered together, since both are interconnected to each other
to prove the factum whether there was an oral partition and
whether any documentary evidence supports the contention of
the defendants regarding oral partition and there is any
perversity in the findings of the Trial Court and the First
Appellate Court.
21. Having considered the material on record, this Court
has to look into the averments of plaint. This Court has already
mentioned averments of the plaint in brief and it is relevant to
note that 16 items of properties are included in the suit. It is
also the specific case of the plaintiffs that properties belong to
one Chaluvegowda, who is the propositus of the family and some
of the properties are acquired out of the joint family nucleus in
the name of elder son Thattaiah @ Thathappa. Before analyzing
the material on record, this Court would like to make it clear that
there is no dispute with regard to the relationship between the
parties that one propositus Chaluvegowda was in the family and
plaintiffs are the children of said Chaluvegowda. The relationship
is not disputed and existence of the properties to the family is
also not disputed. But, only contention was taken that there was
already an oral partition which had taken place 25 years ago.
This suit was filed in the year 2014 and if, 25 years is taken, it
goes back to 1989. The Trial Court comes to the conclusion that
documents produced shows that there was a severance of the
joint family status about 25 years back. While coming to such a
conclusion, none of the documents are relied upon by the Trial
Court that the properties which belongs to the family was
transferred to the plaintiffs in view of oral petition.
22. In paragraph No.18, the Trial Court discussed that
the plaintiffs have not included all the properties belonging to
the family in the suit and also an observation is made that
admittedly, in a suit for partition, the parties to the suit are
bound to include all the properties belonging to the family
members and seek for partition. But the Trial Court relies upon
the evidence of D.W.1 and D.W.2, who have relied upon
document Ex.D1 i.e., in respect of Site bearing No.299 of
Mallathahalli Village situated in Bangalore pertaining to site
measuring 30 x 40 which stands in the name of plaintiff No.1 Sri
V.C. Ramachandraiah. The P.W.1 also admitted that the same
was sold by him and defendants also relied upon documents
Exs.D2 and D3, the sale deeds dated 09.03.2012 and
16.01.2013 which shows that the properties mentioned in
Exs.D2 and D3 have been purchased by plaintiff No.6
Appajjigowda and comes to the conclusion that these three
properties shown in Exs.D1 to D3 have not been included in the
plaint schedule by the plaintiffs and P.W.1 also admitted the
same. But, the fact is that Exs.D2 and D3 which came into
existence subsequent to death of Thattaiah @ Thathappa i.e.,
Kartha of the family, but suit was filed in the year 2014 and as
on the date of purchase of these properties by plaintiff No.6,
Thattaiah @ Thathappa, who is the Kartha of the family was no
more. The Trial Court also made an observation that Exs.D10
and D11 are 'Hakku Patras' standing in the name of plaintiff No.3
and late Narayana, the husband of defendant No.5 which have
not been included in the schedule and those properties were
granted in the year 1989. But, the plaintiffs though have claimed
that there has been no partition of the suit schedule properties,
no explanation is forthcoming, as to why the properties were
granted separately in favour of plaintiff No.3 and Narayana and
why those properties have not been included. But, the Trial
Court comes to such a conclusion that those two properties are
granted in year 1989 and hence, arrived at a conclusion that
there was a partition effected among the children of
Chaluvegowda can be believed to be true on perusal of Exs.D10
and D11 itself.
23. The Trial Court in paragraph No.19 also discussed
with regard to admission on the part of P.W.1 in respect of
Ex.D1 and also admission on the part of P.W.1 that defendant
Nos.3 to 6 are cultivating the properties at Veerapura Village by
growing ragi crops in the said properties and also taken note of
Exs.D13 and D14 i.e., RTCs pertaining to Sy.No.22 measuring 30
guntas and Sy.No.32 measuring 1 acre which is standing in the
name of plaintiff No.6 and Ex.D16 pertaining to Sy.No.60/1
measuring 38 guntas standing in the name of defendant No.2-
Sowbhagyamma, wife of Thattaiah @ Thathappa. The RTCs
shows that those properties are not included in the suit schedule
properties. The defendants have also relied upon documents
Exs.D19 to D21 issued by B.B.M.P. that plaintiff No.1-Y.C.
Ramachandraiah has got sites at Bangalore for which he is
paying taxes, but those properties are not included in the suit
schedule. Even Exs.D24 to D26 tax paid receipts goes to show
that the properties in the name of defendant No.7 which was
gifted by Thattaiah @ Thathappa in favour of defendant No.7 as
per gift deed dated 26.05.2010 i.e., Ex.D23 is also not included
in the suit schedule. Even the house shown in the photographs
Exs.D27 to D30 and the building shown in Exs.D31 and 32
belonging to the plaintiffs are not included in the schedule and
having discussed the same, the Trial Court comes to the
conclusion that those properties are not included in the suit
schedule.
24. It is also an observation in paragraph No.21 of the
judgment of the Trial Court in respect of contention of defendant
No.7 that item No.14 of the suit schedule property shown in
Ex.D23 was a self-acquired property of Thattaiah @ Thathappa
which was granted to him by the Government and which was
gifted by him in favour of defendant No.7. The gift deed dated
26.05.2010 Ex.D23 executed by defendants in favour of
defendant No.6 has not been challenged by the plaintiffs till date
and no prayer has been sought by the plaintiffs seeking for any
relief either cancellation or that the said gift deed is not binding
on the plaintiffs. Inspite of the contention taken up by defendant
No.7 in her written statement, the plaintiffs have chosen to file
the suit against selected items of the properties which are
standing in the name of the defendants only. Having considered
these materials on record, the Trial Court comes to the
conclusion that suit for partial partition is not maintainable and
also comes to the conclusion that there is a substance in the
contention of the defendants that there was a partition about 25
years back and it can be seen from the documents produced by
both the sides.
25. Having analyzed these reasons, this Court has to
examine the material on record and it is admitted in the
evidence that Chaluvegowda passed away in the year 1984 and
it is also important to note that, P.W.1 in his cross-examination
admitted that he had sold the property in terms of the document
Ex.D1 and when the said document was confronted to him, he
admits that he sold the property on his own. But, he claims that
the same was his self-acquired property and he has not included
the same and admits that property which is purchased by
plaintiff No.6 in terms of Exs.D2 and D3 are not included in the
suit schedule properties. But the fact is that those properties are
purchased by plaintiff No.6 is not in dispute and also admits that
even plaintiff No.5 is also residing at Bangalore. It is also
important to note that he categorically admits that item Nos.1, 2
and 9 to 11 belongs to his father Chaluvegowda and admits that
item Nos.13 and 14 are granted to his grand-father and his
brother and the same was given in view of acquisition of the
properties and he categorically says that Sy.Nos.5, 7 and 8 were
acquired in the year 1978-1980 and admits that item Nos.13 and
14 was granted in the year 1999 and those properties were in
the separate possession of Thattaiah @ Thathappa and
Narayanappa. But, again he says that it was in the joint family
possession, but denied all the suggestions with regard to he was
doing Contractor work and was also supplying milk. He also
admits that some portions of the properties are in possession of
some of the defendants and they are growring crops and also
admits that Thattaiah @ Thathappa was residing at
Adakamaranahalli and they are cultivating the land and also
admits that item Nos.5 and 6 were purchased by Thattaiah @
Thathappa and denies purchase of item No.7 and admits that in
the fixed deposit made, the name of his wife was given as
nominee.
26. This Court also has to take note of evidence of
D.Ws.1 and 2, since substantial questions of law is framed by
this Court with regard to perversity is concerned. Hence, this
Court has to look into both the evidence of plaintiffs as well as
the documents. The defendant No.4, who has been examined as
D.W.1 reiterated the averments of written statement in his
evidence and got marked the documents. In the cross-
examination, he admits that when Chaluvegowda was alive, he
was the Kartha of family. Though he denies that after the death
of Chaluvegowda, his father became Kartha, but categorically
admits that after the death of Chaluvegowda, his father was
looking after affairs of the joint family and also categorically
admits that after the death of father, all the properties were
transferred in the name of his father. Hence, it is clear that after
the death of propositus, the property was transferred in the
name of his father i.e. Thattaiah @ Thathappa and he was
looking after the affairs of the family. But, he claims that
Sy.Nos.60, 3/1, 24/6 and Site No.8 are the self-acquired
property of his father and also admits that he cannot tell how
many acres of land are the ancestral properties and cannot tell
the extent of his father's self-acquired property and also
description of the property. He also admits that plaintiff No.1
was working in the Police Department and denies that the
plaintiff No.1 was also taking care of the family affairs and claims
that plaintiff No.5 was working in Axis Bank and he does not
have any document to that effect, but he can produce the same.
It is suggested that Thattaiah @ Thathappa was not doing any
Contractor work and real estate business and the same was
denied. But, he admits that, in order to prove that he was doing
Contractor work, there was no licence and also says that he was
doing real estate business from the last ten years in the name of
'Ganesh Developers'.
27. It is elicited in the cross-examination of DW1 that his
father was doing real estate and out of the income from the real
estate, he used to purchase the property and he also deposed
that to prove the fact, he is not having any documents. As he
deposed in the chief evidence that no division was taken place
and plaintiff No.6 is not residing along with them, the same was
admitted by him when a suggestion was made to him. It is also
elicited that he has not produced any documents to show that
his father was earning money from real estate business.
However, he admits that family was having the property at
Veerapura village and Adakamaranahalli. A suggestion was made
that all of them are jointly cultivating the land and they are in
possession of the property, the said suggestion was denied. But
volunteers that Veerapura land was cultivated by plaintiff Nos.1,
3 and 6. When suggestion was made that plaintiff No.6 was not
residing along with them from last ten years, he says that from
last two years, he is not residing with them and now, plaintiff
No.6 is residing at Bengaluru. But he volunteers that plaintiff
No.6 is residing at Bengaluru from long time and also cultivating
the land at village. He also admits that his father was doing
contract work and dealing with one Debbaguli Shivanna but he
has not produced any documents in this regard. But he
contends that in order to show that they were having high-breed
cows and supplying 100 liters of milk to the dairy, there is no
documents to prove the same. But a suggestion was made that
his father was doing dairy farming from the last ten to fifteen
years and supplying the milk to the dairy, the said suggestion
was admitted. A suggestion was made that plaintiff Nos.3 and 6
were taking care of the family affairs after the death of his
father, the witness volunteers that they were looking after from
the beginning and also admits that Ex.D1 is the property of
plaintiff No.1. It is suggested that plaintiff No.6 had purchased
the property under Ex.D2 and D3 doing a business in Bengaluru
and the witness says that he does not have knowledge above the
same. It is suggested that Ex.P8 came into existence with the
consent of the family members and the said suggestion was
denied.
28. The other witness is DW2. In her evidence she
reiterated the written statement averments and got marked the
documents at Ex.D22 to 26 and also photographs, Ex.D27 to 35.
This witness was subjected to cross-examination. In the cross-
examination, she admits that she cannot tell the site number
and house number of photos at Ex.D27 to D34. It is suggested
that her uncle constructed the building from his self earning
since he is working in the police department and not made use
of joint family fund and the said suggestion was denied.
However, after cross-examining this witness in part, adopted the
cross-examination of DW1 as the same is in respect of DW2
wherein clear admission in terms of the admission given by
DW1. DW1 also admits that while purchasing the property by
her father in the year 2000 and she cannot tell how her father
got the money to purchase the said property.
29. The very substantive questions of law framed by this
Court is with regard to the finding of both the Courts whether
the same amounts to perversity. In the cross-examination of
PW1, the material answer was elicited confronting of document
of Ex.D1 and the same is admitted. But he categorically admitted
that he himself sold the said property and so also Ex.D2 and D3
also confronted to him and got marked through him. He also
admits that plaintiff No.6 is residing in Hegganahalli, Bengaluru
and also admits that plaintiff No.6 is having house at
Adakamaranahalli and the same is not included in the suit.
Plaintiff No.5 is also residing in Bengaluru and also there is an
admission with regard to the fact that the defendants are
cultivating the land and growing ragi and also there is a clear
admission that family was having item Nos.1, 2, 9 to 11 in the
name of Cheluvegowda and other properties are purchased in
the name of Thattaiah. Except this admission, nothing is elicited
with regard to the earlier partition as contended by the
defendants.
30. It is the case of the defendants that partition was
taken place 25 years ago and suit was filed in 2014, hence, it
goes back to in between 1985 to 1990, if such partition was
taken place. This evidence the fact that there was a partition
and parties have acted upon in terms of the said partition but no
document is placed on record in this regard. Though the counsel
appearing for the respondent would vehemently contend that
Ex.D1, D2, D3, D8 to 11, D13 discloses that there was a
partition and these properties are having purchased after the
death of Thattaiah that is Ex.D2 and D3 and Ex.D10 and D11 are
the properties which were allotted in favour of V Narayana and
Srinivasa and these documents do not disclose anything about
the fact that there was already a partition.
31. The main contention of the appellants' counsel also
that Ex.P8 is the document of mutation extract which came into
existence in the year 1996-97. If partition was taken place as
contended by the defendants about 25 years ago, the question
of document at Ex.P8 came into existence that too with the
consent of all the family members including the mother, in the
name of eldest son i.e., Thattaiah does not arise. This document
was not taken note of by the Trial Court as well as First Appellate
Court while considering the material on record regarding earlier
partition. Having perused Ex.P8, it is very clear that wife and
other children of Cheluvegowda have given consent to transfer
the property in the name of Thattaiah eldest son i.e., in respect
of Sy.No.3/1 and 61 to the extent of 2 acres 22 guntas as well
as 7 acres 31 guntas respectively and the same is an ancestral
and joint family property which was standing in the name of
Cheluvegowda.
32. It is also important to note that Sy.No.21 measuring
17 acres was also acquired for the purpose of construction of the
dam and the same is also not disputed. When such being the
case, even if such property was acquired, no material is placed
before the Court for having paid the compensation to any of the
plaintiffs. It is also important to note that the Trial Court while
coming to the conclusion that there was a partition, in paragraph
18 discussed with regard to Ex.D1 is concerned and the same
was purchased by plaintiff No.1 and sold the same. No doubt,
the said property was not included. But mere admission is that
not included the said property, same cannot be contended that
the same is part of partition. But the fact that he was working in
the police department is not denied by any of the parties. Apart
from that other documents relied upon at Ex.D2 and D3 are the
sale deeds which show that plaintiff No.6 had purchased the
same. It is also important to note that these properties are
purchased even after the death of kartha of the family i.e.,
Thattaiah who passed away in 2010 itself as per the document
produced before the Court i.e., death certificate and nothing is
placed on record to show that those properties are purchased
out of joint nucleus and any amount was given. Though Trial
Court in detail discussed the documents of Ex.D1 to D3. When
PW1 admitted that defendant Nos.3 to 6 are cultivating the
properties at Veerapura village by growing ragi crops, the same
cannot be a ground to come to a conclusion that already there
was a partition.
33. It is important to note that the Trial Court relies
upon the documents at Ex.D13 and D14 RTCs pertaining to
Sy.No.22 measuring 30 guntas and Sy.No.32 measuring one
acre which are standing in the name of plaintiff No.6 and Ex.D16
pertaining to Sy.No.60/1 measuring 38 guntas standing in the
name of defendant No.2 - Sowbhagyamma. Merely these
documents are standing in the name of plaintiff No.6 and
defendant No.2, those properties are not the ancestral and joint
family properties which were gone to their share. In order to
prove the factum of oral partition about 25 years ago and none
of the properties are under the cultivation either by the plaintiffs
or by defendant No.2, no documents are placed. When such
being the case, the Trial Court ought not to have comes to the
conclusion that there was a partition. If really there was a
partition in respect of ancestral and joint family property, there
would have been an entry in the documents that there was a
partition and parties have acted upon. But no such document is
placed on record evidencing the said fact. The Trial Court mainly
relies upon the document of Ex.D22, D23, D27 to D30 and those
photographs were marked through DW2. But in order to prove
that there was a partition and out of the said joint family nucleus
only, these properties are purchased, no material is placed on
record. Thus, the Trial Court committed an error in relying upon
these documents of subsequent purchase made by the
defendants wherein some of the properties are purchased
subsequent to the death of kartha who passed away in the year
2010 itself.
34. It is important to note that when specific defence
was taken in the cross-examination that already there was a
partition, but categorical admission given by DW1 that there was
no partition in the family. Even it is the evidence of DW1 that
plaintiff No.6 was also residing along with them in the house but
he categorically deposed that from last two years, he left the
house of DW1. Hence, his evidence is very clear that after the
death of Cheluvegowda, his father was looking after the affairs
of the family. According to him, he passed away in the year
1984 and also he categorically admits that after the death of
Cheluvegowda, all the properties are transferred in the name of
his father. Hence, there is a clear admission and same is also
evident from the document of Ex.P8. It is also important to note
that though he claims that his father was doing real estate
business and contract work, but categorically admitted that no
documents are placed on record in this regard. But categorically
admitted in the cross-examination when a suggestion was made
that as he contend in chief evidence that there was a oral
partition but he admits that there is no any personal partition. It
is also categorically admits that at present plaintiff No.6 is not
residing along with them. These admissions clearly show that
there is no any partition. These admissions also not taken note
of by the Trial Court as well as the First Appellate Court. When
there is a clear admission that the family was having property at
Veerapura village and Adakamaranahalli, a suggestion was made
that all of them are cultivating the property and enjoying the
same but DW1 volunteers that plaintiff Nos.1, 3 and 6 are
cultivating the said property, but no document is placed on
record to show that his uncles i.e., plaintiff Nos.1, 3 and 6 are
cultivating the land at Veerapura village after the partition.
35. I have already pointed out that clear admission was
given by DW1 that when a suggestion was made to him that
plaintiff No.6 is not residing along with them from last ten years
but he says that two years prior to the death of his father, he is
not residing with them. If there is already a partition, what
made plaintiff No.6 to reside along with them till 2 years before
the death of his father. If his evidence is that plaintiff Nos.1, 3
and 6 are cultivating the property separately at Veerapura
village, he categorically admits that plaintiff Nos.5 and 6 are
residing in Bengaluru but admission was given that plaintiff No.6
is also residing in Bengaluru as well as cultivating the land in the
village. This admission clearly goes to show that plaintiff No.6
was along with his father and he also assisting the family for the
cultivation of the property. These are the admissions which were
not taken note of by both the Courts.
36. The evidence of DW2 is clear that document at
Ex.D22 is a original grant certificate in favour of his father and
he had executed a gift deed in terms of Ex.D23. No doubt,
having perused the document at Ex.D22 it is clear that the said
property was granted under the Ashraya scheme in memory of
anniversary of independence. When property was given under
the Ashraya Schme, that becomes the independent property of
her father and her father had executed a gift deed and thus,
same cannot be termed as an ancestral and joint family
property. Hence, there is a force in the contention of the counsel
for respondent No.7/defendant No.7 that same cannot be a
property of the joint family.
37. It is also the contention of the respondent counsel
that Ex.D10 and D11 are very clear that the properties which
were allotted in favour of Srinivasa as well as Narayana, same
were not included in the partition suit. Having perused
documents at Ex.D10 and P11, it is very clear that Hakku Patras
were issued as per the Government order of the year 1972 which
was issued in the years 1989 and 1976 respectively in favour of
Srinivasa and V Narayana and same has not been included in the
plaint and site also allotted in favour of defendant No.7's father
similarly and likewise two properties are allotted in favour of
Srinivasa and Narayana and nothing is placed on record to show
that these two Hakku Patras are given on behalf of the family. It
is not the pleading of the defendants in the written statement
that these properties are also the joint family properties and
same ought to have been included in the suit and also no
defence of partial partition was attributed by taking specific
defence in the written statement. But both the Courts committed
an error in coming to the conclusion that suit for partial partition
is not maintainable. In the absence of any pleading to that
effect, both the Courts cannot comes to the conclusion that
partial partition suit is not maintainable unless the same was
pleaded and made as part of written statement contending that
those properties are ancestral and joint family properties.
Admittedly these properties are granted in favour of the father of
defendant No.7 as well as other two family members and also
purchased in the name of the plaintiffs and plaintiff No.6 and no
material is placed on record to show that the said grant was also
made in favour of the family as well as purchase with joint
nucleus. Unless the grant is in favour of the family, the question
of inclusion of the said properties to the family does not arise.
Both the Courts have carried away in coming to the conclusion
that the properties which are standing in the name of plaintiffs
and defendant No.2 which they have acquired is a proof to
comes to a conclusion that already there was partition and the
said reasoning is nothing but an assumption and no material on
record to show that there was a partition. The document of
Ex.P8, which came into existence in the year 1996-97, is very
clear that there is no partition and also there is a categorical
admission that after the death of Cheluvegowda, the properties
are transferred in the name of the eldest son i.e., Thattaiah and
other family members including the plaintiffs as well as their
mother have given consent for transfer of property. The main
document of Ex.P8 discloses that family was continued and there
was no any partition. Even it is accepted that partition was taken
place 25 years ago, the same goes in between 1985 to 1989 and
document of 1996-97 clearly evidences that there was no any
partition. Hence, the Trial Court as well as the First Appellate
Court committed an error to consider both oral and documentary
evidence placed on record in a proper perspective. Hence, I
answer both substantive questions of law as affirmative holding
that findings of both the Courts suffer from perversity in ignoring
both oral and documentary evidence placed on record
particularly, the admission on the part of DW1 with regard to
family property is concerned.
38. It is also important to note that PW1 categorically
admitted that the defendants are cultivating the property at
Veerapura village by growing ragi. The suggestion was made to
DW1 that the father had high-breed cows and doing dairy
farming and supplying the milk to the dairy. Though, the same
was denied but the very suggestion made to DW1 is very clear
that father was supplying the milk to the dairy from last 10 to 15
years. Though DW1 admits that no such document to prove the
said fact, the very suggestion is clear that they were milking
having 10 to 15 high-breed cows and father had maintaining the
same from last 10- to 15 years and supplying the milk to the
dairy and the said admission was got elicited from the mouth of
DW1 while cross-examining him by the plaintiffs' counsel
themselves. The specific case of the defendants also that father
was doing business independently, but document is not produced
in this regard and supplying of milk to the dairy was not
disputed. Thus, answer was elicited from the mouth of DW1
making the suggestion during the course of cross-examination
regarding supply of milk. Hence, it is clear that they were
cultivating the property at Veerapura village as well as getting
the income to the family by supplying the milk. Thus, the Court
has to take note of the fact that keeping the amount in FD,
Thattaiah appointed his wife as nominee, if such income is from
the joint nucleus, he would have nominated any one of the
plaintiffs as nominee. Hence, it is clear that said amount is out
of income of the family of the defendants that is Thattaiah i.e.,
out of milking maintaining high-breed 10 to 15 cows and
supplying the milk to dairy as suggested and no material is
placed before the Court to show that Rs.10 lakh was out of the
joint family income having such amount and particularly having
that much of amount out of the joint family nucleus, nothing is
placed on record and there cannot be any hypothetical
assumption that out of joint family income, FD was kept. Hence,
the plaintiffs are not entitled for any share in the FD amount
unless any cogent evidence.
39. In view of the discussions made above, I pass the
following:
ORDER
The second appeal is allowed in part.
The judgment and decree dated 09.04.2019
passed in O.S.No.310/2014 by the Trial Court and
the judgment and decree dated 15.07.2021 passed
in R.A.No.36/2019 by the First Appellate Court are
set aside. Consequently, the suit of the plaintiffs is
allowed in part granting the share as sought
excluding the property which was gifted in favour of
defendant No.7 by her father that is the granted
property and so also FD amount of Rs.10 lakh.
Sd/-
(H.P. SANDESH)
JUDGE
ST/SN
