Partly allowed

Sri M S Bhujangaiah v. Sri M B Jagadeesh

Karnataka HC18 Aug 2022RFA/1414/2006

Case brief

AI extract

What is this about?

High Court Bengaluru allowed two revisional appeals in a partition suit. It altered the share calculation for the plaintiff from one-eighth to one-ninth and set aside the lower court's inclusion of a specific plot (item No. 5) in the partition, declaring it the exclusive self-acquired property of the respondent.

What did the court decide?

Plaintiff entitled to 1/9th share in suit items excluding item No. 5; item No. 5 declared exclusive property of the fourth defendant.

Sri M S Bhujangaiah Vs Sri M B Jagadeesh — Partition | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF AUGUST, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE V. SRISHANANDA

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R.F.A.No.1458/2006 (PAR) C/W R.F.A.NO.1414/2006(PAR)

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IN R.F.A.NO.1458/2006

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BETWEEN

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M B JAGADISH AGED 53 YEARS S/O M S BHUJANGAIAH R/AT NO.205, 2^ND MAIN, HRISHKESH NAGAR, BSK III STAGE, BENGALURU -560 085

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...APPELLANT

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(BY SRI SHARAT CHANDRA BIJAI, ADVOCATE)

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AND

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1 . M S BHUJANGAIAH S/O SIDDEGOUDA SINCE DEAD BY LRS RESPONDENTS NO.2, 3, 4, 12 to 15, 16, 17 ARE ORDERED TO BE TREATED AS LRS

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2 . M B SHIVAKUMAR

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S/O M S BHUJANGAIAH SINCE DEAD BY LRS.,

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2(a) CHIKKATHAYAMMA

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AGE 51 YEARS W/O LATE M.B.SHIVAKUMAR

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2(b) DEEPAK.M.S, MAJOR

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SON OF LATE M.B.SHIVAKUMAR

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2(c) ASHA, MAJOR D/O LATE M.B.SHIVAKUMAR

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2(d) CHITRA M.S., MAJOR D/O LATE M.B.SHIVAKUMAR

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R2(a) TO (d) ARE RESIDING AT DOOR NO.46/2 11^TH CROSS, ITTAMADU MAIN ROAD B.S.K 3^RD STAGE

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BANGALORE - 560 085.

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3 . M B MANJUNATH

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S/O M.S. BHUJANGAIAH R/AT NO.240, 2^ND CROSS 3^RD PHASE, NGEF LAYOUT NAGARABHAVI, BANGALORE-560072

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4 . GOWRAMMA

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C/O M.S. BHUJANGAIAH R/AT NO.17, 1^ST MAIN ROAD 5^TH CROSS, CHAMARAJAPET BANGALORE-560 018

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5 . M NEELAKSHANTAIAH S/O MADAIAH @ DORE KANNAIAH R/O SIDDARTHANAGAR MALAVALLI

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6 . BORAIAH S/O BORAIAH R/O SIDDARTHANAGAR MALAVALLI

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7 . UMESH S/O M KEMPAIAH MINOR, REPRESENTED BY M.KEMPAIAH

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8 . MANDESH S/O M KEMPAIAH MINOR, REPRESENTED BY M.KEMPAIAH

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9 . M KEMPAIAH MAJOR,

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RESPONDENTS 7 TO 9 ARE R/O SHIMSHAPURA B.G. PURA HOBLI MALAVALLI TALUK

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10 . SIDDARTHA EDUCATION SOCIETY GOLLARAHALLI, TUMKUR BY ITS HEAD MASTER SIDDARTHA HIGH SCHOOL MALAVALLI

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11 . M/s.GANESH SAW MILL BY ITS PROPRIETOR GANGADAS D.PATEL OPP: MISSION COMPOUND KOLLEGALA ROAD MALAVALLI

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12 . M.B. SUGANA

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AGED ABOUT 42 YEARS D/O M.S. BHUJANGAIAH

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13 . M B RAJESH, 35 YEARS

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14 . M B PADMA AGED ABOUT 37 YEARS W/O S K PADMARAJAIAH

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12 TO 14 ARE RESIDING AT NO.2, NANJUNDESHWARA LAYOUT, ROSE GARDEN ROAD, 5^TH PHASE, J.P NAGARA, BENGALURU.

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15 . M B THULASI W/O A M SHIVARAM R/O NO 162/4, III MAIN, 4^TH PHASE, 7^TH BLOCK, BANASHANKARI 3^RD STAGE, BENGALURU - 85

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16 SMT.M.B.UMADEVI AGED ABOUT 59 YEARS SINCE DEAD BY LRS R2(a) to (d), R3, R4, R12 TO R15 AND R17

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17 SMT.M.B.HAMSAKUMAR AGED ABOUT 55 YEARS R/AT LAKSHMI NILAYA GANIGARA KOPPALU BANNUR POST T.NARASIPURA TALUK MYSURU DISTRICT

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...RESPONDENTS

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(BY SRI N KRISHNAMURTHY, ADVOCATE FOR R2(a-d) AND R3; SRI B.ROOPESH, ADVOCATE FOR R4;

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SRI C.R.GOULAY, ADVOCATE FOR R10; SRI HARICHANDRA .M FOR SMT.VAISHALI HEGDE ADVOCATES FOR R11; SRI K.SHIVALINGAPPA, ADVOCATE FOR R13 TO R15; SRI T.K.MOHANDAS, ADVOCATE FOR R17;

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SRI L.RAJA, ADVOCATE FOR R18 TO R23 IN IMPLEADING I.A.1/17;

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VIDE ORDER DATED 27.03.2012, R16 AND R17 ARE LRS OF DECEASED R1;

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R5, R6, R9, R12 ARE SERVED AND UNREPRESENTED; R7 AND R8 MINORS REPRESENTED BY R9; VIDE ORDER DATED 14.06.2017 R2 TO R4, R12-R15, R17 AND APPELLANT ARE LRS OF DECEASED R16)

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THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER XLI RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DT.23.03.2006 PASSED IN O.S.NO.160/2000 ON THE FILE OF THE CIVIL JUDGE (SR.DN.), MADDUR, PARTLY DECREEING THE SUIT FOR PARTITION AND SEPERATE POSSESSION.

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IN R.F.A.NO.1414/2006

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BETWEEN:

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1 . SRI M S BHUJANGAIAH S/O LATE BANGALE SIDDEGOWDA, AGED ABOUT 75 YEARS OPPOSITE TO MISSION COMPOUND MALAVALLI KOLLEGALA ROAD, MALAVALLI-571 430 MANDYA DISTRICT

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2 . SMT GOWRAMMA W/O SRI M S BHUJANGAIAH

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AGED ABOUT 65 YEARS OPPOSITE TO MISSION COMPOUND, MALAVALLI -KOLLEGALA ROAD MALAVALLI-571 430. MANDYA DISTRICT

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...APPELLANTS

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(BY SRI B ROOPESHA, ADVOCATE)

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AND

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1 . SRI M B JAGADEESH S/O SRI M S BHUJANGAIAH AGED ABOUT 45 YEARS R/AT NO.17, 5^TH CROSS, SIRSI ROAD, CHAMARAJPET, BANGALORE - 560 018.

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2 . SRI M B SHIVAKUMAR S/O SRI M S BHUJANGAIAH AGED ABOUT 42 YEARS R/AT NO.17, 5^TH CROSS, SIRSI RAOD,CHAMARAJPET, BANGALORE - 560 018.

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3 . SRI M B MANJUNATH (WRONGLY STATED AS M.B.BHUJANGAIAH, S/O SRI M S BHUJANGAIAH, AGED ABOUT 40 YEARS R/AT NO. 176, 1^ST FLOOR 14^TH A MAIN, 8^TH B CROSS, RPC LAYOUT, VIJAYANAGAR II STAGE, BANGALORE -560 040.

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4 . SRI M NELAKANTAIAH

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S/O SRI MADAIAH @ DORE KANNAIAH AGED ABOUT 40 YEARS R/AT NO.176, 1^ST FLOOR 14^TH A MAIN, R/O SIDDARTHANAGARA, MALAVALLI MANDYA DISTRICT-571 430

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5 . SRI BORAIAH

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S/O SRI BORAIAH AGED ABOUT 40 YEARS RESIDENT OF SIDDARTHANAGAR, MALAVALLI MANDYA DISTRICT -571 430

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6 . SRI UMESH S/O SRI M KEMPAIAH AGE : MINOR,

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7 . SRI MANDESH S/O SRI M KEMPAIAH MINOR,

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(BOTH ARE REPRESENTED BY THEIR MOTHER AND GUARDIAN SMT KEMPAMMA W/O SRI KEMPAIAH

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8 . SRI KEMPAIAH AGED ABOUT 35 YEARS

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(RESPONDENTS 6, 7 AND 8 ARE THE RESIDENTS OF SHIMSHAPAURA, B.G.PURA HOBLI MALAVALLI TALUK MANDYA DISTRICT-571 430

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9 . SIDDARTHA EDUCATION SOCIETY

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GOLARAHALLI, TUMKUR, BY ITS HEAD MASTER, SIDDARTHA HIGH SCHOOL, MALAVALLI MANDYA DISTRICT-571 430

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10 . M/s.GENERAL SAW MILL BY ITS PROP; GAGANDAS D PATEL OPPOSITE TO MISSION COMPOUND, MALAVALLI KOLLEGAL ROAD, MALAVALLI TOWN-571 430.

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11 . M B SUGUNA D/O SRI M S BHUJANGAIAH AGED ABOUT 36 YEARS,

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12 . M B RAJSH

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AGED ABOUT 29 YEARS,

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RESPONDENTS 11 AND 12 ARE RESIDENT OF D.NO.17/4, 1^ST MAIN, 5^TH CROSS, CHAMARAJPET, BANGALORE -560 018

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13 . M B PADMA W/O SRI S K ADMARAJAIAH AGED ABOUT 21 YEARS, RESIDENT OF DETROIT, U.S.A.

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14 . M B TULASI W/O SRI A.M.SHIVARAM, RESIDENT OF NO.162/4, III MAIN, 4^TH PHASE, 7^TH BLOCK BANASHANKARI III STAGE, BANGALORE -560 085.

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...RESPONDENTS

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(BY SRI K V MOHAN KUMAR, ADVOCATE FOR R11, R13 AND R14; SRI SHARAT CHANDRA BIJAI, ADVOCATE FOR R1; SRI ANAND M. SHOLAPURMATH, ADVOCATE FOR R6; SRI C.R.GOULAY, ADVOCATE FOR R9; SRI N.KRISHNA MURTHY, ADVOCATE FOR R2(A-D); R3, R4, R7, R8, R10, R12 ARE SERVED AND UNREPRESENTED; VIDE ORDER DATED 07.10.2014, NOTICE TO R5 IS HELD SUFFICIENT)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DT.23.03.2006 PASSED IN O.S.NO.160/2000 ON THE FILE OF THE CIVIL JUDGE (SR.DN.), MADDUR, PARTLY DECREEING THE SUIT FOR PARTITION AND SEPERATE POSSESSION.

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THESE APPEALS COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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RFA No.1458/2006 is filed by the plaintiff challenging the Judgment and decree passed in O.S.No.160/2000 on the file of the Civil Judge, Senior Division, Maddur dated 23.03.2006 insofar as not

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decreeing the suit in respect of item No.1 to the extent of 21 2/3 guntas.

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RFA No.1414/2006 is filed by the first and fourth defendants challenging the very same Judgment insofar as mentioning item No.5 and allotting the share in the suit property in the operative portion of the order though finding recorded by the learned Judge that it is self acquired property of fourth defendant.

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Brief facts of the case are as under:

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Plaintiff/appellant filed a suit for partition contending that Bangle Siddegowda had three sons namely Bhujangaiah (first defendant), Devaiah and M.S.Nagaraju. After the death of Bangle Siddegowda

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and his wife Siddalingamma, Bhujangaiah, first defendant married Padma. Plaintiff and defendants 2 and 3 being sons of Bangle Siddegowda, defendants 16 and 17 who are daughters of Bangle Siddegowda (not

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made parties at the inception of the suit but subsequently impleaded) became the owners of the entire schedule properties and therefore sought for his share in the suit schedule properties. The description of the suit schedule properties are also furnished.

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After service of summons defendants 2, 3, 5 remained exparte. Fourth defendant filed separate written statement denying the plaint averments. She specifically contended that suit item No.5 is self acquired property of fourth defendant. First defendant also filed separate written statement wherein he admitted the relationship between the parties. However, he contended that plaintiff has not impleaded daughters of Bangle Siddegowda and after the death of his wife he married Gowramma (fourth defendant) on 16.09.1966. He further contended that from the marriage between himself and fourth defendant he got three daughters and a son. He admitted the partition that took place in the

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year 1961 between Bangle Siddegowda and his brothers. He also contended that he has received a sum of Rs.4,000/- in the said partition. He specifically contended, suit item No.5 was purchased by fourth defendant out of her income and sought for dismissal of the suit on the ground of non-joinder of necessary parties.

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Defendants 6 to 9 filed separate written statements accepting the genealogy furnished by the plaintiff and relationship of defendants 1 and 4. It was further contended suit item No.8 purchased by first defendant out of his own income and it is self acquired property.

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Defendants 12 to 15 filed separate written statement denying the entire plaint averments and also contended suit is not maintainable and sought for dismissal of the suit.

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Based on the rival contentions of the parties

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trial court raised six issues and three more additional issues as under:

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"1. Whether the plaintiff proves that all the schedule properties are the ancestral and joint family properties of the joint family consisting of himself and defendant No.1 to 3 as alleged?

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2. Whether the suit is bad for non-joinder of necessary parties?

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3. Whether the defendants 1 and 4 prove that the plaint schedule item No.5 is the separate property of defendant No.4?

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4. Whether the defendant No.1 proves that the plaint schedule item No.4, 6 and 9 were purchased by him and sold for family benefit and legal necessity?

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5. Whether the plaintiff is entitled for 1/4^th share in the schedule property as claimed?

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6. To what order or relief, the plaintiff is entitled?

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Additional issues:

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1. Whether the defendant No.6 to 9 prove that they are the bonafide purchasers of schedule property item No.8?

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2. Whether defendant No.12 to 15 proves that there is outstanding due of more than Rs.1,00,000/- as alleged and non inclusion of the same suit is not maintainable?

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3. Whether defendant No.12 to 15 proves that they are children of defendant No.1 and 4 and also entitled for share in the suit properties? If so to what extent and in which properties?"

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In order to prove the case of the plaintiff, plaintiff got examined himself as PW-1 by filing affidavit in lieu of examination-in-chief and relied on 24 documents which is marked as Ex.P-1 to 24(a) comprising of partition deed, RTC extracts, Demand Register Extracts, certified copy of the registered sale

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deeds, certified copy of mortgage deed, police news patrike and photo in the said police news patrike.

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To counter the evidence adduced by the plaintiff, on behalf of the defendants, three witnesses were examined among them DW-3 is Gowramma, the fourth defendant. Exhibits D-1 to D-30 were relied on behalf of the defendants wherein Ex.D1:Agreement Deed, Ex.D2:Lease Deed, Ex.D.2(a to f): Signatures, Ex.D.2(g)(h)(j):Signatures,Ex.D.2(k):Biklam Signatures, Ex.D.3-Identity card issued by Food & Civil Supply, Ex.D.4-Original Enumeration Form 24/1/72, Ex.D.5:WILL copy, Ex.D.6:Medical Certificate, Ex.D.7:Demand notice of K.S.K., Ex.D.8:Demand notice V.S.Board, Ex.D.9:Envelop, Ex.D.10:Original Mortgage Deed, Ex.D.11:C/c of Sale Deed, EX.D.12:C/c of Regd. settlement deed, Ex.D.13:C/c of Sale Deed, Ex.D.14: Genealogical Tree, Ex.D.15:Identity Card, Ex.D.16:C/c of Lagna Patrika of defendant no.4, Ex.D.17:Original

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certificate of St.Mary Hospital, Ex.D.18:Marriage invitation Card, Ex.D.19 to 22:Inland letters, Ex.D.23:Ration Card, Ex.D.24:Voters list, Ex.D.25:No objection Certificate, Ex.D.26:Kandayam Receipt, Ex.D.27: C/c of order of Tahsildar, Ex.D.28:C/c of order by High Court in WP.11691/77, Ex.D.29:C/c of deposits of Defendant no.4, Ex.D.30: Receipt Patta Book C/c of order of Tahsildar, Ex.D.28:C/c of order by High Court in WP.11691/77, Ex.D.29:C/c of deposits of Defendant no.4, Ex.D.30:Receipt Patta Book.

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On conclusion of recording of evidence of the parties, trial court heard the arguments of parties and has answered the aforesaid issues as under:

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Issue No.1 and Additional issue No.3 : Affirmative Issue No.2 : Negative Issue No.3 & 4 : Negative Addl. Issue No.1 : Negative Addl. Issue No.2 : Negative Issue No.5 : 1/8^th Share Issue No.6 : As per final order

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Suit was partly decreed. Operative portion of judgment reads as under:

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Operative Portion

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"The suit of the plaintiff is partly decreed. Plaintiff is entitle for 1/8^th share in all the suit schedule properties except suit item No.7 and out of 2/3^rd portion in suit item No.1. Defendant No.12 to 15 are also entitle for 1/8^th share each in the same properties and they are directed to

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pay the court fee. Plaintiff, defendant No.1 to 3 and 12 to 15 are entitle to discharge the mortgage loan and obtain shara to the extent of their share. There shall be separate enquiry for mesne profits.

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Under the circumstances of the case, I direct the parties to bear their own costs."

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Being aggrieved by the impugned Judgment

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and decree plaintiff, first and fourth defendant have preferred the above appeals as referred to supra.

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12. In the appeal filed by plaintiff following grounds have been raised.

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The Judgment and Decree of the Lower Court is opposed to law, fact and evidence on record.

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The Lower Court failed to appreciate that Respondent No.6 did not file his written statement thus admitted the claim of the Appellant, under the circumstances, the Lower Court ought to have granted the Decree in respect of the 39½ Guntas of land wrongfully sold to Boregowda Respondent No.6 the non consideration of the same has resulted in miscarriage of justice.

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The Lower Court failed to appreciate that the first respondent suppressed the fact, that the appellant and respondents No.2 and 3 are his children in the mortgage deed and mortgaged the property showing Defendant No.1, 4, 12 to 15 only as family member, hence the appellant and respondent No.2 and 3 are not liable. The repayment of the said loan liability was wrongly fixed on appellant and respondent No.2 to 3 though they are not parties to same and even their existence was denied in the same.

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The Lower Court failed to appreciate that Respondent No.1 alone is liable for the loan incurred suppressing

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the true facts, i.e. evidenced by registered deed of mortgage.

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The Lower Court erred in granting share to defendant No.4 and her children, when the defendant No.4 is not the legally wedded wife of the first Defendant / first respondent.

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The judgment and decree of the Lower Court is otherwise unjust, unfair, unreasonable, opposed to Rule of Law, procedure and not in line with Hindu Law. Though there is material suppression and false evidence given by the defendant the Lower Court considered the same oppose to very Hindu Law of Partition.

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The Trial Court in para-28 of Judgment and Decree has discussed about Item No.1 of the suit schedule property i.e. Survey No.705/1A (which is mentioned to be of an extent of 21 2/3 guntas in the plaint). The Trial Court observes that the entire extent of suit schedule lands in item No.1 as not being available for partition. The Trial Court proceeds under an impression that the entire extent of Survey No.705/1A as being 21 2/3 guntas, and proceeds to holds that Defendant No.1 /Respondent No.1 as being entitled 2/3^rd of the same. This understanding of the Trial Court in this regard is wholly erroneous. As could be seen from Ex.P-1 the partition deed dated 30.6.1961

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(executed into between Defendant No.1 and his 2 brothers). Ex.P-3(the RTC relating to said item No.1 of the suit schedule property) and Ex.P-15 (the Index of Land), that the entire extent of the lands in Survey No.705 is 1 Acre 25 Guntas and that 1/3^rd of the same i.e., 21 2/3 guntas after the phodi/bifurcation came to be numbered as Survey No.705/IA and the same was allotted to Defendant No.1. Therefore, the view of the Trial Court that only 1/3^rd of the said item No.1 i.e. 1/3^rd of 21 2/3 guntas as being available for partition is in an error apparent on record. Accordingly, the Appellant / plaintiff as held by the Trial Court as being entitled for 1/8^th share in all the other suit schedule properties likewise is entitled for 1/8^th share even in respect of item No. 1 i.e. 21 2/3 guntas of land. Under the circumstances out of One Acre 25 Guntas, the 1^st Defendant and his two brothers entitled to 1/3r d share. Hence the Defendant No. 1 under the partition got 21 2/3 guntas in the same. The two brothers of the Defendant No.1 Respondent No.1 are not entitled to any share in the said 21 2/3 guntas which has to be partitioned among the Appellant and Respondents No.2, 3 and 12 to 15 and 17 only."

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Likewise in the appeal filed by first and fourth defendants following grounds have been raised:

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The impugned judgment and decree passed by the Hon'ble trial court are illegal and incorrect.

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They are opposed to facts, probabilities and circumstances of the case.

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They are contrary to the case put forth by the parties and evidence both oral and documentary adduced by them.

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Inspite of clear specific stand of the fourth defendant that item No.5 of the suit property is her absolute property having purchased by her and this stand of her has been supported by other Defendants in the Written Statement as well as in their evidence. But, still, the Hon'ble Trial court erred in decreeing the Suit including item No.5 of the Suit property.

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The Hon'ble Trial court erred in not considering that when once the property is acquired by a woman, it becomes her absolute property as per Section 14 and 15 of the Hindu Succession Act.

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Viewed from any angle, the impugned judgment and decree are not sustainable in law and they are liable to be set aside."

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Learned counsel for the appellant/plaintiff Sri.Sharat Chandra Bijai vehemently contended that learned trial Judge erred in law in not properly appreciating the contents of Ex.P-1 and therefore Judgment and decree rendered by the trial court in directing that 1/3^rd of schedule property that has fallen to the share of Bhujangaiah is to be divided is incorrect and therefore sought for rectification insofar as the land in Sy.No.705/1A. He further contended that there is no proper finding recorded by the trial court in respect of suit item No.5 in as much as there are varied versions in the impugned Judgment and therefore grant of share to the plaintiff in respect of item No.5 is to be maintained.

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Further contended that having regard to the relationship being admitted and alleged Will has not been properly proved, the trial court was required to

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allot the share as prayed for by the plaintiff and sought for allowing the appeal to that extent.

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Per contra, learned counsel for first and fourth defendant and appellants in RFA No.1414/2006 Sri.Roopesh contended that the trial court having recorded a specific finding in the body of the Judgment that item No.5 is self acquired property of Gowramma granting share in item No.5 in the operative portion of judgment is incorrect and sought for allowing the appeal to that extent.

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In view of rival contentions of the parties, following points would arise for consideration:

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"1. Whether the plaintiff has made out a case for granting share as claimed in the plaint including item No.5?

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2. Whether the finding recorded by the trial court that 1/3 of the property that has come to the

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share of Bhujagaiah in Ex.P-1 is to be shared by the plaintiff is just and proper.

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3. Whether the appellant in RFA No.1414/2006 makes out a case that item No.5 of the suit property is self acquired property of fourth defendant and the order passed by the trial court in the impugned Judgment in the operative portion granting share in item No.5 of the property also is justified in view of the finding recorded by the trial court in the body of the impugned Judgment."

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In the case on hand the relationship is not in

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dispute. Initially suit was filed without impleading daughters of Bhujangaiah born out of wedlock with Padma. Later on they got impleaded themselves and

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they have been made as defendants 16 and 17. Property earlier belonged to Bangle Siddegowda and there is no dispute that there was a partition in the year 1961. Nodoubt copy of the Will produced by the defendants is marked at Ex.D-5. But Ex.D-5 has not

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been properly proved. Therefore, the trial court has rightly recorded the finding on the said issue as referred to supra.

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Sri.Sharat Chandra Bijai, learned counsel for appellant contended that in Ex.P-1 the property that has fallen to the share of Bhujangaiah to the extent of 21 2/3guntas and so also Devaiah and Nagaraj who are the brothers of Bhujangaiah.

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After the death of Padma, Bhujangaiah married Gowramma (fourth defendant). Item No.5 of the suit schedule property stands in the name of Gowramma. The sale deed in this regard is marked at Ex.D-10.

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Learned trial Judge has recorded a finding in paragraph 32 of the impugned Judgment with regard to item No.5 as under:

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"Regarding suit item No.5 it is property bearing No.330/A and 330/B. According to plaintiff this property was purchased by defendant no.1 out of joint family nucleus and property received by defendant No.1 purchased in the name of defendant no.1, who is paramour of defendant no.1. Defendant no.4 also contended that it is her self acquired property. She has contended that she has purchased out of money received from her parents. She also claims that she is legally wedded wife of defendant no.1, which is also proved as discussed above. Defendant no.1 is kartha of the family. Burden is heavy on defendant No.4 to prove this aspect. She examined herself and deposed that not able to prove what was her source of income to purchase this property. Even in her written statement she has not properly contended that from what source she acquired this property. Therefore, it can be said that it is joint family property of plaintiffs and defendants."

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It is also necessary for this court to refer paragraphs 26 and 27 of impugned judgment to appreciate the rival contentions of the parties with regard to suit item No.5. For ready reference and for clarity paragraphs 26 and 27 of the impugned Judgment are also extracted hereunder:

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"26. Defendant no.2, 3 and 5 not filed any written statement and oppose the suit. Plaintiff contended that some are ancestral properties and some are purchased by him. In this case defendant No.1 has not entered the witness box simply contended that suit item no.1 also belongs to their uncle, suit item no.3 acquired by the government. When defendant no.4 contended that suit item no.5 is self acquired property burden is on her to prove the same. In her evidence as DW3 deposed that defendant no.1 married her. Further deposed that her husband executed a Will in her favour. Suit item no.5 is her self-acquired property. She purchased the same from brother of her husband. Produced the certified copy of the sale deed. Khatha stands in her name. Suit property was leased and she is collecting the rent and using the same for expenses

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of her children. Devaiah's wife has filed a case against her before Tahsildar, Malavalli, wherein defendant no.4 opposed the petition, wherein it was held that property belongs to defendant no.4. Now burden shifts on the plaintiff to show that the property was purchased by defendant no.1 in the name of defendant no.4 out of joint family nucleus. Plaintiff contended that defendant no.1 being the father is the kartha of the family and taking entire income. What was the income of the family is not stated by him.

¶185

27. Plaintiff has not examined other witnesses so as to rebut the contention of defendant no.4 regarding suit item no.5. Plaintiff contended out of Rs.4,000/- and income from other properties defendant no.1 purchased the properties and suit item no.5 purchased in the name of defendant no.4. It is not explained by the plaintiff why it was purchased in the name of defendant no.4 if she is not related to them. Sale deed stands in the name of defendant no.4 in respect of suit item no.5. Defendant no.4 also doing independent transaction which can be seen from many documents. Therefore, it can be said that suit item no.5 is self acquired property of defendant no.4."

¶186

¶187

On cumulative reading of the aforesaid paragraphs coupled with documents that has been produced by fourth defendant especially sale deed and fixed deposit receipts it is crystal clear that Gowramma had independent income to purchase suit item No.5 of the property. On behalf of plaintiff except stating that Bhujangaiah had contributed for the purchase of the property in the name of Gowramma no other evidence is adduced.

¶188

Therefore finding recorded by the trial court in the aforesaid paragraphs on cumulative consideration would only make out a case that item No.5 is purchased by fourth defendant from out of her own funds and therefore it is to be held as self acquired property of Gowramma. Therefore the granting of share to the extent of 1/8^th in suit item No.5 by the trial court needs interference.

¶189

¶190

Likewise a bare reading of Ex.P-1, it is crystal clear that Bhujangaiah got 21 2/3 guntas and finding of the trial court that 1/3 of 21 2/3 is to be granted in the 1/8th share to the plaintiff is incorrect and therefore it also requires interference and rectification.

¶191

Further, having regard to the relationship being admitted, parties would be entitled to 1/9^th share instead of 1/8^th share. Therefore keeping other findings in tact, the appeal needs to be allowed to the extent that plaintiff would be entitled to 1/9^th share in the share of Bhujangaiah to the extent of 21 2/3 guntas as per Ex.P-1 and that share granted to the plaintiff in item No.5 needs to be set aside and declaring that fourth defendant is the exclusive owner of item No.5 as she has acquired said item of the property out of self acquisition.

¶192

¶193

Therefore the points are accordingly answered

¶194

and following order is passed:

¶195

ORDER

¶196

RFA No.1458/2006 is allowed in part. Plaintiff is entitled to 1/9^th share in suit items except suit item No.5 and entitled to share in 21 2/3 guntas in respect of item 705/1A.

¶197

RFA No.1414/2006 is allowed. The impugned

¶198

Judgment in respect of item No.5 is set aside and it is declared that the appellant No.2/fourth defendant is the exclusive owner of item No.5 of the property.

¶199

Memo is filed by the counsel for respondent No.11 that he has already handed over possession of the property in his possession to Bhujangaiah. Same is recorded.

¶200

¶201

In the facts and circumstances of the case, no order as to costs.

¶202

In view of disposal of appeal on merits, the pending applications are consigned to the records.

¶203

Sd/JUDGE

¶204

SBN

Sri M S Bhujangaiah v. Sri M B Jagadeesh

Case brief

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Sri M S Bhujangaiah v. Sri M B Jagadeesh

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