Second appeal in partition suit dismissed. High Court upheld trial court and first appellate court findings that appellants failed to prove suit property was joint family property purchased from a joint nucleus, as they produced no evidence of family income or nucleus. Appeal dismissed.
Second appeal dismissed; judgments and decrees of courts below confirmed.
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.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1632 OF 2014 (PAR)
BETWEEN:
…APPELLANTS
(BY SRI. NAGARAJA S., ADVOCATE)
AND:
Digitally signed by BHAVANI BAI G Location: High Court of Karnataka
SRI. THIPPESWAMY S/O LATE ODO NINGAIAH, SINCE DEAD REPRESENTED BY HIS LR'S
AGED ABOUT 42 YEARS,
…RESPONDENTS
(BY SRI. B. D. CHANDRASHEKAR, ADVOCATE FOR R2; R1, R4, R5 & R6 ARE SERVED & UNREPRESENTED; R3 - SERVICE HELD SUFFICIENT, VIDE ORDER DATED 28.08.2023)
THIS RSA IS FILED U/SEC 100 OF CPC, AGAINST THE JUDGEMENT AND DECREE DATED 26.8.2014 PASSED IN R.A.NO.31/2013 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, CHALLAKERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 31.10.2013 IN O.S.18/2010 ON THE FILE OF CIVIL JUDGE AND JMFC, MOLAKALMURU.
NC: 2023:KHC:40355 RSA No. 1632 of 2014
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed by the appellants challenging the judgment and decree passed by the Senior Civil Judge and JMFC, Challakere in R.A.No.31/2013 dated 26.08.2014 confirming the judgment and decree passed by the Civil Judge and JMFC, Molakalmuru in O.S.No.18/2010 dated 31.10.2013.
Plaintiffs filed a suit for partition and separate possession. The case of the plaintiffs is that the plaintiffs and defendants are the members of the Hindu Undivided Family and the suit schedule property is the joint property of the plaintiffs and defendants. The suit schedule property was purchased by the plaintiffs and defendants out of joint family income in the name
NC: 2023:KHC:40355 RSA No. 1632 of 2014
defendant No.2 on 21.11.1989 for valid consideration. The plaintiffs and defendants are jointly enjoying the suit schedule property. There is no partition effected in the family of plaintiffs and defendants. It is further stated that defendant No.2 by colluding with defendant No.3 executed the gift deed in favour of defendant No.3 in respect of suit property without the knowledge and consent of the plaintiffs and other defendants. The plaintiffs requested the defendants to effect the partition in the suit schedule property, but the defendants refused to effect the partition. Hence, the cause of action arose for the plaintiffs to file the suit for partition and separate possession.
The summons was duly served on the defendants. Defendant No.5 in spite of service of summons remained absent and he was placed ex-parte. Defendant No.3 filed the written statement and remaining defendants adopted the written statement filed by the Defendant No.3. Defendant No.3 denied the averments made in the plaint. It is denied that the suit schedule property was purchased out of joint family income in the name of defendant No.2. It is contended that the suit
schedule property is the self acquired property of defendant No.2.
It is contended that the suit schedule property was purchased by the parents of defendant No.2 in the name of defendant No.2 and the said property is the Stridhana property. It is contended that the defendant No.2 gifted the suit schedule property in favour of defendant No.3 by executing a registered gift deed dated 06.01.2010. The defendant No.3 became the absolute owner of the suit schedule property by virtue of the gift deed dated 06.01.2010. It is contended that the defendant No.1 partitioned the family property on 18.11.1986 and in the said partition, the defendant No.1 acquired the property measuring 5 acres in Sy.No.97/P1 at Bukkambudi Village and the said property is the joint family property of the plaintiffs and defendants and the husband of defendant No.5 is cultivating the suit schedule property. Hence, prayed to dismiss the suit.
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was examined as PW.1 and examined two witnesses as PWs.2 and 3 and got marked 6 documents as per Exs.P.1 to P.6. Defendant No.4 examined as D.W.1 and got marked 6 documents as per Exs.D.1 to D.6. The trial Court considering the oral and documentary evidence answered issue Nos.1 to 4 in the negative and consequently, dismissed the suit of the plaintiffs with cost.
NC: 2023:KHC:40355 RSA No. 1632 of 2014
2. Whether the appellants/plaintiffs further prove that the judgment and decree of the lower court is contrary to law and evidence on record and it needs interference of this court?
3. What order?"
and documentary evidence, answered Point Nos.1 and 2 in the negative and consequently dismissed the appeal confirming the judgment and decree passed by the trial court.
decrees passed by the Courts below have filed this second appeal.
and 3 have not entered into witness box in order to establish that the property was purchased by the parents of defendant No.2 and the said property is her Stridhana property. Hence, on these grounds, he prayed to allow the appeal.
submissions of the learned counsel for the plaintiffs.
in-chief and got marked the documents i.e., Ex.P.1 is the Genealogical tree of the family of the plaintiffs and defendants; Ex.P.2 is the certified copy of the gift deed executed by defendant No.2 in favour of defendant No.3 in respect of suit schedule property; Ex.P.3 is the RTC extract in respect of suit schedule property; Ex.P.4 is the acknowledgement; Ex.P.5 is the certified copy of the registered sale deed which discloses that the defendant No.2 has purchased the suit schedule property in her name; Ex.P.6 is the RTC Extract. Further, the plaintiffs, except producing the said documents, have not produced any record to show that what was the income derived from the land acquired by the father of the plaintiffs in the partition and further the plaintiffs has neither pleaded nor placed any record to show that the family was having a joint nucleus and the said joint nucleus was sufficient to purchase the suit property and maintain the property. In rebuttal, the defendant No.4 was examined as DW.1 and he has reiterated the written statement averments in the examination-in-chief and has produced the documents as Ex.D.1 is the partition deed which discloses that there was partition between the father of plaintiffs and his brothers. In the said partition, the
NC: 2023:KHC:40355 RSA No. 1632 of 2014
father of the plaintiffs and defendant Nos.2 to 6 acquired land bearing Sy.No.97 measuring 5 acres and Ex.D.2 is the sale deed executed in favour of defendant No.2. Ex.D.3 is the certified copy of M.R. extract which discloses that on the strength of Ex.D.2, the name of defendant No.2 was entered in the revenue record. Ex.D.4 is the registered gift deed executed by defendant No.2 in favour of defendant No.3 in respect of suit schedule property in favour of defendant No.3 was marked as Ex.D.4. Exs.D5 and D6 are the R.T.C. Extracts, the suit properties stands in the name of defendant No.3 on the basis of registered gift deed.
of the plaintiffs and defendants, hence, the plaintiffs have failed to discharge the burden of proof placed on them. Though the defendant Nos.2 and 3 have not entered into witness box, the plaintiffs cannot depend upon the weakness of the defendant’s case. Hence, the plaintiffs have to establish their case independently.
arises for consideration and any error in the impugned judgments and decrees passed by the Courts below.
17. Accordingly, I proceed to pass the following:
ORDER
The appeal is dismissed .
The judgments and decrees passed by the
courts below are confirmed.
No order as to the costs.
In view of the dismissal of the appeal,
I.A.No.1/2014 does not survive for consideration.
Sd/JUDGE
GBB
List No.: 1 Sl No.: 20 CT:SK
2 issues framed by the court
Whether the appellants established that the suit property was purchased out of joint family nucleus and constitutes joint family property?
Whether the courts below erred in dismissing the suit for partition for failure to discharge the burden of proof regarding joint family nexus?
1 provisions across 1 enactments
SRI. DURUGAPPA S/O LATE THIPPESWAMY
SMT. VIJAYAMMA W/O LATE SHIVARUDRAPPA
SMT. THIPPAMMA W/O THIPPESWAMY
SMT. MARAKKA W/O HONNURAPPA
SMT. MARANNA S/O LATE THIPPESWAMY
SMT. RUDRAMMA W/O GANGAPPA
Ashok S. Kinagi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
