Dismissed

Smt.Munithayamma v. Sri.L.Devaraju

Karnataka HC19 Dec 2023RSA/1312/2022

Case brief

AI extract

What is this about?

This second appeal dealt with a dispute over partition of ancestral family properties. The High Court affirmed the lower courts' dismissal of the suit, holding that there was a prior family partition in 1988 which severed the defendant from the joint family, and that certain properties were his self-acquired assets rather than joint family property.

What did the court decide?

The second appeal filed against the judgment dismissing the suit for partition is dismissed, upholding the lower courts' finding of prior partition and self-acquired status of the properties.

Smt.Munithayamma Vs Sri.L.Devaraju — Partition | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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R.S.A NO.1312 OF 2022

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BETWEEN:

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SMT.MUNITHAYAMMA W/O LATE LAKSHMAIAH AGED ABOUT 72 YEARS DEAD BY LRS ALREADY ON RECORDS

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SRI B L SRINIVAS S/O LATE LAKSHMAIAH AGED ABOUT 40 YEARS

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BOTH ARE R/AT BOMMANAHLLI VILLAGE SRIRAMPURA POST, NANDI HOBLI SRIRAMPURA POST, CHICKBALLAPURA - 562101

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ALSO AT NO.013, GROUND FLOOR SREE PALACE APARTMENT, 4^TH MAIN SUMANGALI SEVASHRAM ROAD, HEBBAL BANGALORE - 560024

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...APPELLANT

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(BY SRI.K.N.NITISH, ADVOCATE FOR SRI.K.V.NARASIMHAN, ADVOCATE)

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AND:

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1 . SRI.L.DEVARAJU S/O LATE LAKSHMAIAH AGED ABOUT 50 YEARS

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SMT B L VINODAMMA D/O LATE LAKSHMAIAH W/O KANTARAJU R/AT 23RD CROSS, CHAMRAJPET JAHEEN KHAN BUILDING, CHIKKABALLAPURA DISTRICT DEAD BY HER LRS

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2 . SRI KANTHARAJU S/O MUNIKOOLAPPA AGED ABOUT 55 YEARS

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3 . SMT MYTHRA D/O KANTHARAJU AGED ABOUT 29 YEARS

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4 . MRS MILANA D/O KANTHARAJU AGED ABOUT 25 YEARS

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ALL ARE R/O MYLANAHALLI VILLAGE JALA HOBLI, BENGALURU NORTH TALUK-562149

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5 . SMT RAMAMANI D/O LATE LAKSHMAIAH W/O RAJU AGED ABOUT 45 YEARS R/AT HEMARANAHALI POST SHIDDLAGATTA TALUK

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6 . SRI B L MUNI VENKATASWAMY S/O LATE LAKSHMAIAH AGED ABOUT 43 YEARS

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DEFENDANT NO.1 AND 4 ARE R/AT BOOMANAHALLI POST, SRIRAMAPURA POST NANDI HOBLI, CHICKBALLAPURA TALUK

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7 . SRI A SATHYANARAYANASWAMY S/O LATE CHIKKAPPAIAH AGED ABOUT 60 YEARS R/AT THANISANDRA VILLAGE BANGALORE EAST TALUK BANGALORE - 560045 8 . SRI R NARASIMHAIAH S/O R REDDAPPA AGED ABOUT 65 YEARS R/AT 1388, 1ST MAIN, GANDHINAGARA YELAHANKA TOWN, BENGALURU 9 . SRI AVISH KUMAR VILAS KUMAR S/O VILAS KUMAR NEMICHAND AGED ABOUT 40 YEARS R/AT NO 16, KUMARAKRUPA ROAD BANGALORE - 560001 10 . SRI.C.NARAYAN SWAMY S/O LATE SRI.CHIKKAPAPANNA, AGED ABOUT 57 YEARS, R/AT NO.151, 17TH CROSS, 30TH MAIN ROAD, J.P.NAGAR, 6TH BLOCK, BENGALURU - 560078.

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…RESPONDENTS

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(BY SRI.S.R.DESHPANDE, ADVOCATE FOR R1 & R2; R3, R4 & R5 NOTICE SERVED)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 16.07.2022 PASSED IN RA.NO.115/2016 ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHIKKABALLAPURA, DISMISSING THE APPEAL AND

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CONFIRMING JUDGMENT AND DECREE DATED 20.10.2016 PASSED IN OS.NO.475/2007 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, CHICKBALLAPUR.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 18.12.2023, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The captioned second appeal is by the unsuccessful plaintiffs assailing the concurrent judgments of the Courts below wherein the plaintiffs' suit seeking relief of partition and separate possession is dismissed by both the Courts.

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For the sake of convenience the parties

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are referred to as per their rank before the trial Court.

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The family tree of plaintiffs and defendants 1 to 4 is as under:

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Lakshmaiah (Died) |

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Munithayamma (62 Years) P1 |

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|--------
||------------------------------------------
|
|
||----------
|| |---|---|---| |
L.Devaraj|

B.L.Vinod Ramamani B.L.Venkataswamy|
B.L.Srinivas| |40 Years|37 35
33|30| |Indra|Thanu (29 Years)|Veena| |(35 Years)|
|(25 Years)|

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4. The facts of the case are as under:

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Plaintiff No.2 and defendants 1 to 4 are the

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children of plaintiff No.1-Munithayamma and one Lakshmaiah. The plaintiffs have filed the present suit contending that they constitute a joint undivided family along with defendants 1 to 4 and first defendant is the Kartha of the family after the demise of Lakshmaiah. The plaintiffs have also claimed that the suit schedule properties are in joint possession and enjoyment of plaintiffs and defendants 1 to 4. Plaintiffs have alleged that defendants 1 and 4 colluding with each other are acting adverse to the

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interest of plaintiffs and that defendant No.1 has sold item No.3 in favour of defendant No.5. Hence, the present suit for partition.

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Defendant No.1 tendered appearance and filed written statement and stoutly denied the plaintiffs' claim insofar as item Nos.1, 2, 4, 5 and 8 are concerned. Defendant No.1 has set up a plea of prior partition by contending that there was a partition in 1998 and in the said partition, defendant No.1 was allotted item No.3 towards his share and pursuant to it, he has sold item No.3 to defendant No.5 under registered sale deed dated 15.12.2005. Defendant No.1 further claimed that item Nos.1,2,4,5 and 8 are his self acquired properties and the same are not available for partition.

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Defendant No.4 by way of counter claim claimed that plaintiffs have not included several

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ancestral properties and therefore, claimed share in the schedule annexed to the written statement.

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Defendant No.5 claimed to be the bonafide purchaser of item No.3 from defendant No.1. Defendant No.7 claimed that defendant No.6 has purchased suit item No.5 from defendant No.1, who in turn has sold the same in his favour under registered sale deed dated 11.3.2009.

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Plaintiffs and defendants to substantiate

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their claims have let in oral and documentary evidence.

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Trial Court having examined the pleadings and oral and documentary evidence answered additional issue Nos.1 and 2 in the affirmative and has held that defendant No.1 has succeeded in establishing that item No.8 is his self acquired property and that defendant No.1 has succeeded in

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establishing that there was a partition in the family in 1988 and he separated from the family by taking one land i.e. suit item No.3.

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Trial Court while answering issue Nos.1 to 3 partly in the affirmative declined to accept the contention of the plaintiffs that items No.1 to 7 are the joint family ancestral properties. Trial Court while answering issue No.1 partly in the affirmative held that suit items 1, 2, 4, 5 and 8 are the self acquired properties of defendant No.1. The suit was partly decreed granting 1/5th share to plaintiffs in item Nos.6 and 7.

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The appellate Court as a final fact finding authority having reassessed the entire material on record was not inclined to accept the contention of the plaintiffs that items 1, 2, 4, 5 and 8 are joint family ancestral properties. Appellate Court having taken

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cognizance of the rebuttal evidence let in by defendant No.1 held that item Nos.1,2,4,5 and 8 are the self acquired properties of defendant No.1. While taking cognizance of Ex.P4 which is the sale deed dated 28.01.1975, appellate Court concurred with the findings recorded by the trial Court on plea of prior partition set up by defendant No.1. The appellate Court also took note of the evidence let in by first plaintiff in the earlier suit bearing O.S.85/2008 wherein first plaintiff claimed that she is acting as the Kartha of the family after the demise of her husband. Consequently, appellate Court proceeded to dismiss the appeal.

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This Court has admitted the appeal on

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22.12.2022 on following substantial questions of law:

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"1. The judgment and Decree of the lower Appellate Court is erroneous as it has misdirected itself in appreciating the question of law and onus is places on the Appellant

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without enquiring into that onus is on the Respondents.

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2. The Judgment and Decree of the lower Appellant Court is vitiated as nonconsideration of relevant evidence and its judgment and decree has been influenced by non-consequential matter."

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Heard the learned counsel for the plaintiffs and the learned Senior Counsel appearing for defendant No.8 and learned counsel appearing for defendant No.1. Perused the concurrent findings of the Courts below.

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Plaintiffs 1 and 2 have instituted suit by contending that the suit schedule properties are the joint family ancestral properties while defendant No.1 is resisting the suit and has set up a plea of prior partition. Defendant No.1 has contended that there was partition in the family on 6.6.1988 and in the said partition defendant No.1 separated from the family by taking one ancestral property namely item No.3.

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Defendant No.1 to substantiate his defence

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that there was severance in the family insofar as defendant No.1 is concerned has produced mutation at Ex.D20. On perusal, it indicates that there is oral partition in the family and item No.3 bearing Survey No.73 is allotted to the share of defendant No.1. The next crucial document which strengthens the plea of partition and allotment of item No.3 to defendant No.1 is the deposition of first plaintiff in earlier suit bearing O.S.No.85/2008 which is marked as Ex.P1 and confronted to P.W.2. On examining the deposition, it is clearly evident that plaintiff No.1, who is the mother of defendant No.1 has admitted the family partition and allotment of item No.3 to defendant No.1. Plaintiff No.1 has further admitted that she gave consent by submitting a Waradhi to mutate the name of defendant No.1 insofar as item No.3 is concerned.

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Admissions , if true and clear are by far the best proof of facts admitted. Therefore, it is a trite law that the admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties before the hearing of the case, stand on a higher footing than evidentiary admissions. The pleadings or judicial admissions are fully binding on the party which makes such an admission. The admissions in the pleadings constitute waiver of proof thereof. Pleadings signed by a party under oath or accompanied by an affidavit offer the strongest evidence of veracity. The Apex Court in the case of Nagindas Ramdas .vs. Dalpatram Ichharam alias Brijram & Others¹ held that judicial admissions can be a basis in themselves while deciding the dispute between the parties.

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1 (1974) 1 SCC 242

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The next clinching rebuttal evidence is Ex.D2 which is the sale deed dated 15.12.2005 executed by defendant No.1 in favour of defendant No.5. The recitals in Ex.D2 would clinch the entire controversy relating to severance in the family insofar as defendant No.1 is concerned. Defendant No.1 while selling item No.3 in favour of defendant No.5 has traced his right based on a family partition in 1988. The same is indicated at unnumbered paragraph (3) of sale deed vide Ex.D2. Interestingly, plaintiff No.2 and defendant No.4, who are his brothers have signed this sale deed as witnesses. Therefore, it can be inferred that it was well within the knowledge of plaintiff No.2 and defendant No.4 regarding 1988 partition. There is no crossexamination by plaintiff No.2 insofar as recitals relating to family partition indicated in Ex.D2-sale deed.

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The other significant details which would further probabalize the plea of prior partition set up by defendant No.1 are admissions elicited in the crossexamination of P.W.2. Plaintiff No.2, who is examined as P.W.2 has admitted that first plaintiff's mother was infact managing the family affairs and that she had no independent earning. Ex.D22 is the application filed by first plaintiff-mother seeking grant of land bearing Survey No.109 wherein she has disclosed the holdings of the family and the first plaintiff in the said declaration has stated that her family owns only two properties namely Survey No.61 measuring 2 acres 8 guntas and Sy.No.62 measuring 34.05 guntas. There are other significant details which are elicited by defendant No.1 which also gives an indication that plaintiffs have not approached the Court with clean hands. Plaintiff No.1, who tendered examination-inchief and got the documents marked did not offer for

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cross-examination. Plaintiff No.2 in his cross-

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examination has admitted that he has constructed a house in item No.6 bearing Survey No.61 and the said house is not the subject-matter of partition suit. While examining additional issue No.4, both the Courts have found that plaintiff No.1 has gifted one property to daughter who is defendant No.2. Plaintiff No.2 admits that this property is also not included. Defendant No.1 has placed on record properties purchased by plaintiff No.1 which are marked as Exs.D5 and D6. These properties are also not included. Vide Ex.D5, plaintiff No.1 has purchased the property bearing No.239/1A measuring 1 acre 28 guntas on 17.5.2001 and another property under the sale deed dated 25.07.2021. When a question is posed to plaintiff No.2 in the cross-examination, he has deposed that these properties are the self acquired properties of his mother. This statement

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runs contrary to the admission elicited in the crossexamination of P.W.2, who has admitted that his mother had no independent earning.

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If these significant details are looked into, this Court is of the view that defendant No.1 has succeeded in not only substantiating that there is severance in the family but has also succeeded in proving item Nos. 1,2,4,5 and 8 are his self acquired properties. The plaintiffs' narrative that defendant No.1 was acting as a Kartha of the family and the above said properties are purchased with the aid of joint family funds is not substantiated by plaintiffs. On the contrary, defendant No.1 has succeeded in leading rebuttal evidence and also by eliciting in the cross-examination of plaintiff No.2 that it is plaintiff No.1-mother, who was managing the ancestral properties. The material on record clearly reveals that defendant No.1 separated from the family in the year

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1988 and therefore, had no access to the joint family income.

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So far the legal proposition is concerned, there is no gain saying that whenever a suit for partition is filed, the initial burden is on the plaintiffs to show that all the properties are the joint family properties. Unless initial burden is discharged, the onus will never shift on the defendants to demonstrate that properties purchased were not out of the joint family nucleus. Since severance is proved, the theory set up by the plaintiffs that item Nos.1,2,4,5 and 8 are acquired out of joint family funds stands falsified.

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Both the Courts referring to the rebuttal evidence let in by defendant No.1 coupled with several admissions elicited in the cross-examination of P.W.2 were justified in dismissing the suit insofar as item Nos.1,2,4, 5 and 8.

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In the light of the discussions made supra the substantial questions of law formulated by this Court are answered in the affirmative and against the plaintiffs.

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Hence, I proceed to pass the following:

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ORDER

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The second appeal is dismissed.

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Sd/JUDGE

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*alb/-

Smt.Munithayamma v. Sri.L.Devaraju

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Smt.Munithayamma v. Sri.L.Devaraju

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