This appeal challenges a dismissal of a suit for partition. The High Court upheld the finding that the appellant separated from the joint family in 1986 by purchasing properties independently, rendering the claim for a share in joint ancestral property untenable.
Appeal dismissed with no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
RFA No.452/2007
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 23RD DAY OF AUGUST, 2022 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR FIRST APPEAL NO.452/2007 (PAR)
BETWEEN:
SRI P. GOPAL REDDY, S/O KONDA REDDY, AGED ABOUT 30 YEARS, HINDU, AGRICULTURIST, R/O K. VEERAPURA VILLAGE, BELLARY TALUK AND DISTRICT-583101.
(BY SRI V.M. SHEELVANT AND SRI J. BASAVARAJ, ADVOCATES) AND:
…APPELLANT
RFA No.452/2007
EMPLOYEE IN SAGAR FINANCE, RESIDING NEAR KAMBALI MATT, LALAKAMAN, BRUCEPET, NEAR WATER TANK, BELLARY-581301.
…RESPONDENTS
(BY SRI GODE NAGARAJA, ADVOCATE FOR R-3 AND R-4, R-1, R-2 AND R-5 SERVED)
THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 04.12.2006 PASSED IN OS.NO.378/2003 ON THE FILE OF THE ADDL.CIVIL JUDGE (SR.DN.) BELLARY, DISMISSING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING.
JUDGMENT
Heard the learned counsel for the appellant and the
learned counsel for respondent Nos.3 and 4.
rankings before the Trial Court to avoid the confusion and
for the convenience of this Court.
RFA No.452/2007
before the Trial Court is that defendant No.1 is his father, defendant Nos.2 and 3 are his brothers and defendant No.4 is his sister. The plaintiff and defendant Nos.1 to 3 are the members of the joint family. The suit schedule properties belong to the family and all are ancestral properties. It is also the contention of the plaintiff that the properties are purchased out of joint nucleus. Defendant Nos.1 and 3 are residing in the remaining portion of the same house and there is only one common entrance for both the portions. Defendant No.3 and his family members always used to obstruct the plaintiff for making use of the main door, apart from the main door, there is no other way for ingress and egress to the plaintiff and his family members and hence he has caused the notice demanding the portion of the joint family property through an advocate on 02.09.2003 claiming 1/4th share and the defendants have given the untenable reply. Defendant No.1 has executed a gift deed in favour of defendant No.2
RFA No.452/2007
in respect of 17 cents of land fully described in ‘A’ schedule through gift deed dated 28.08.2003 and also executed a gift deed in favour of defendant No.4, the sister of the plaintiff and defendant No.2 in respect of Sy.No.433/B and 432/B and the very execution of both the gift deeds are null and void since the properties are the joint family properties and defendant No.1 was not having any exclusive right to sell the property.
RFA No.452/2007
defendants and the very claim of the plaintiff is false that he is entitled for 1/4th share.
defendants, the Trial Court framed the following issues:
1. Whether the plaintiff proves that the suit properties are joint family properties and he has got 1/4th share in the same?
2. Whether the defendants proves the alleged partition in 1986?
3. Whether Sy.No.432 and 433/B measuring 17 cents and 18 cents respectively, are the selfacquired properties of defendant No.1?
4. Whether the plaintiff proves the existence of suit ‘C’ schedule properties?
5. What decree or order?
himself as P.W.1 and examined his uncle as P.W.2 and got marked the documents at Exs.P.1 to 13. Defendant No.3 examined himself as D.W.1 and examined one witness as
D.W.2 and got marked 20 documents. The Trial Court
RFA No.452/2007
after considering both oral and documentary evidence placed on record, answered issue No.1 as negative that the plaintiff fails to prove that suit properties are joint family properties and he has got 1/4th share and answered issue No.2 in the affirmative in coming to the conclusion that the defendants have proved the alleged partition in the year 1986. The Trial Court answered issue Nos.3 and 4 in negative in coming to the conclusion that Sy.Nos.432 and 433/B are not the self-acquired proprieties of defendant No.1 and the plaintiff has not proved the existence of suit ‘C’ schedule properties and dismissed the suit. Hence, the present appeal is filed before this Court by the plaintiff.
RFA No.452/2007
purchased out of his own income and are not the joint family properties. These properties stood in joint names of plaintiffs and Smt. Anusuya W/o. P. Nagi Reddy who has been examined as P.W.2. The P.W.2 is the paternal uncle and he has stated the source of acquisition of these properties, in spite of it the trial Court has committed an error that, there was a partition among the family and the plaintiff was residing separately at Kappagal village, consequent upon he took the share in the joint family and the very finding of the trial Court is erroneous and the counsel also brought to the notice of this Court, the finding of the trial Court while answering the issues involved between the parties in paragraph Nos.7 & 8 while considering Issue Nos.1 to 4. Particularly in paragraph No.8 comes to the conclusion that, defendants have contended that, both properties are self acquired properties of deceased defendant No.1 and even though answered that, those properties were purchased out of the joint family income and comes to the conclusion that,
RFA No.452/2007
those properties cannot be contended as self acquired properties, committed an error in dismissing the suit. Once the Court has given finding that, it is joint family property and the properties were purchased out of joint family income ought to have granted the decree and instead of dismissed the suit and hence, it requires interference of this Court.
RFA No.452/2007
has purchased the property and also in the crossexamination P.W.1 categorically admits that he was aged about 41 years in the year 2005 and no documents are placed on what date the property Survey Nos.389 and 246 have been purchased by the plaintiff since he claims that, he had purchased the same out of his own income. The said sale deeds are also not placed before the Court. The trial Court considering the admission elicited from the mouth of P.W.1 that, he had sold the very same property in the year 2000 and also he was having a house at Kappagal village. Appreciated all these materials comes to the conclusion that, there was already a partition among the family members in the year 1986 and hence, no error on the part of the trial Court in dismissing the suit.
on perusal of the material available on record, the point that would arise for consideration of this Court are :
(i) Whether the trial Court has committed an error in answering Issue No.1 as negative and answering Issue No.2 as affirmative in coming to
RFA No.452/2007
the conclusion that the plaintiff has failed to prove that the suit schedule properties are joint family properties and he is entitle for 1/4th share and there was already a partition and whether it requires interference of this Court?
(ii) What order?
the respective counsel and also on perusal of the material, it is the case of the plaintiff that, suit schedule properties are purchased out of the joint family nucleous and hence, he is entitle for 1/4th share in respect of the suit schedule property. The defendants have pleaded that, already there was a partition and defendant No.2 took the property bearing survey No.389 and also Survey No.246 and he has separated from the family. There is no dispute with regard to the relationship between the parties. Defendant No.1 is the father and plaintiff and defendant Nos.2 and 3 are the sons of the defendant No.1 and defendant No.4 is the daughter of the defendant No.1. The plaintiff in order to prove his case, examined himself as P.W.1 and reiterated
RFA No.452/2007
the averments of plaint in the affidavit and in the crossexamination admitted that, he is the elder son to defendant No.1 and other defendants are his brothers and he also admits that, he is having a house at Kappagal village, but he denies that, he was residing in the said place, but he categorically admits that, he was doing agriculture from 1975-1976 and all of them were together. It is suggested that, the properties bearing survey No.389, measuring 10 acre 21 cents was purchased by his father in his name, but the same was denied, but he claims that he has purchased the same on his own. It is also suggested that in Survey No.246, measuring 8 acres 6 cents was also purchased in his name by his father and the same was denied and he has purchased the same on his own, but he claims that, in order to purchase the said property, his uncle P.W.2 has given the money, but P.W.2 who has been examined the before trial Court has not stated anything about helping P.W.1 in purchasing the property and in the cross-examination he categorically admits that, as on the
RFA No.452/2007
date of cross-examination he was aged about 41 years and it goes back to 1965 his date of birth. But he admits in the cross-examination that in the year 1973 he was 21 years old and also he admits that, he was not having any independent income and when such admission is given that he was not having any independent income the very claim that he has purchased the property bearing Survey Nos.389 and 246 on his own cannot be believed. It is also suggested that, those properties were not included in the plaint and the same was denied. It is evident from the records that, he was aged about 20 years at the time of purchasing of the property bearing Survey No.389 and 246 and when he was not having any independent income, the very admission given by him takes away the case of the plaintiff that he had purchased the properties and those two properties are his own properties. During the crossexamination suggestion was made that, he had franchised his vote at Kappagal village and the same was denied, but he admits that his name may be found in the voter’s list.
RFA No.452/2007
It is also important to note that, those two properties were sold by him in the year 2000 and it is suggested that he was having bad voices and hence, he sold, but the same was denied, but having sold the property he has admitted that in the year 2000, but the suit was filed in the year 2003 after selling the properties in the year 2000 itself. The P.W.2 who has been examined in support of P.W.1 also, he categorically admits that the son of the plaintiff also pursued his education at Kappagal village but he claims only for one year and also he admits that plaintiff is having a house at Kappagal village. In the crossexamination, P.W.2 categorically admits in the year 198384, the plaintiff was not having any independent income and the evidence of P.W.1 is corroborated by the admission elicited from the mouth of P.W.2 that he was not having any income in the year 1983-84 and hence, the very claim that those two properties are his self acquired property has not been substantiated by the plaintiff and on the other hand, third defendant himself has been
RFA No.452/2007
examined as D.W.1 and he claims that, plaintiff took his share and he started residing separately at Kappagal village, but in the cross-examination he admits that there was no any partition deed and also no document for having given the suit schedule properties in favour of the defendants. It is also elicited that in the sale deed, nowhere it is mentioned that, the money was given by the father and D.W.1 categorically admits that, plaintiff is residing at Kappagal village. The D.W.1 admits regarding giving of criminal case against them and also examined one witness as D.W.2 and he says that, the plaintiff at the time of purchasing the property, he was only 15 years old when the properties were purchased i.e. Survey No.389 and 246. In the cross-examination D.W.2 admits that, defendant No.1 is his maternal uncle and his daughter is his wife and hence, D.W.2 is interested witness. Having considered both oral and documentary evidence available on record, the document at Ex.D.1 and Ex.D.2 are the properties sold by the plaintiff ad the voters list also has
RFA No.452/2007
been produced as Ex.D.3 and study certificate as Ex.D.4 i.e. in respect of son of plaintiff and certified copy of sale deed dated 17.05.1978 which is marked as Ex.D.5 and Ex.D.6 is the certified copy of the sale deed of 19.06.1993 and Ex.D.7 is the sale deed of 11.05.1994 and it is the claim of the plaintiff that, those two properties are purchased by him, but in order to prove the fact that, he was having independent income no other documents are produced and though he claims that he purchased the same, but in the cross-examination he admits that, he was not having any independent source of income, but he claims that, P.W.2 has given the money and the same has not been spoken by P.W.2 and also P.W.2 categorically admits that in the year 1983-84 the plaintiff was not having any independent income and hence, it is clear that, there was no any independent income and the fact that, those two properties were purchased in the plaintiff’s name is not in dispute, but it is the case of the defendants that those two properties were purchased by the
RFA No.452/2007
defendant No.1 in the name of plaintiff and the said defence corroborates in view of the admission given by P.W.1 and P.W.2 and apart from that, P.W.1 himself sold
the property in the year 2000 and subsequently after selling of those two properties made the claim in respect of the suit schedule properties and hence, I do not find any error committed by the trial Court in coming to the conclusion that, already there was a partition and the plaintiff was enjoying the properties i.e. property No.389 and 246 and also there is an admission that he was having a house at Kappagal village and P.W.2 also admits that, the P.W.1 is having a house at Kappagal village and hence, it is clear that those properties were purchased out of the income of the joint family and the plaintiff was enjoying the said property after he separated from the Family and it is also important to note that, P.W.1 claims that he was doing agriculture from 1975-76 onwards and all of them are living together and when he was separated from the family, has not been stated in his evidence and
RFA No.452/2007
only he claims in an ingenious method that he had purchased the property Survey Nos.389 and also 246 and not disclosed the source of income and though he discloses the source of income that he had availed the amount from his uncle and the same is not corroborated and instead of P.W.2 has not stated anything with regard to parting of money to the plaintiff to purchase to purchase the property and hence, the trial Court after evaluating the evidence of P.W.1, P.W.2, D.W.1 and D.W.2 and also having considered the sale deeds which have been marked on the side of the defendants and also the documents of plaintiff which have been placed before the Court rightly comes to the conclusion that the plaintiff has been separated from the joint family and rightly answered issue No.2 that he was separated from the family and there was already a partition. No doubt, D.W.1 admits that, no documentary proof regarding partition, but the Court has to take note of the conduct of the parties and answers elicited from the mouth of the evidence of
RFA No.452/2007
witnesses even though in the absence of documentary proof regarding partition and having considered all these materials and also taking into note of the conduct of the plaintiff and admissions elicited from P.W.1 rightly answered point No.1 as negative and the point No.2 as affirmative that, there was already a partition and hence, I do not find any merit in the appeal to comes to a other conclusion that the trial Court has committed an error. No doubt, the counsel appearing for the appellant brought to the notice of this Court while answering Issue Nos.1 to 4 the finding was given that the suit schedule properties are purchased out of joint nuecleous and the same not affects the claims of the defendants since the plaintiff was already separated from the joint family and subsequently the properties are purchased in the name of defendant No.1 and defendant No.1 subsequently willed away those properties in favour of the defendants and the very contention that the defendant No.1 was not having any absolute right to execute the Gift Deed cannot be accepted
RFA No.452/2007
once he has been separated from the joint family by taking the property Survey No.389 and also Survey No.246 and apart from that, he had sold the very same property in the year 2000 and thereafter he had filed the present suit and hence, no merits in the appeal.
In view of the discussions made above, I pass the
following:
ORDER
Appeal is dismissed. No costs.
Sd/JUDGE
MD/SVH
2 issues framed by the court
Whether the trial Court committed an error in concluding that a prior partition in 1986 existed despite the appellant's claim of joint family ownership?
Whether the appellant discharged the burden of proving that the suit properties were self-acquired and that he had separated from the joint family prior to the sale?
1 provisions across 1 enactments
Sri P. Gopal Reddy
Nagamma
Lalithamma
Vijaykumar
P. Chandra Shekar Reddy
B. Prabhavathi
H.P. Sandesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
