Partly allowed

Nataraju v. Nagabhushanaswamy

Karnataka HC29 Mar 2023RSA/1779/2018

Case brief

AI extract

What is this about?

This regular second appeal challenged the confirmation of a trial court order granting partition of family properties. The court upheld the finding that properties were joint family properties derived from ancestral land, dismissing the appeal but modifying the plaintiff's share from 1/7th to 1/6th.

What did the court decide?

The appeal was dismissed but the appellate order granting 1/7th share was modified to 1/6th share for the appellant.

Nataraju Vs Nagabhushanaswamy — Partition | Karnataka HC (2023)

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1 - RSA No. 1779 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF MARCH, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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REGULAR SECOND APPEAL NO. 1779 OF 2018 (DEC/INJ)

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BETWEEN:

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NATARAJU S/O SIDDAPPA N AGED ABOUT 49 YEARS RESIDING AT AMACHAWADI VILLAGE, CHAMARAJANAGAR TALUK AND DISTRICT

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…APPELLANT

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(BY SRI. CHIDANANDA KUMAR M., ADVOCATE)

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AND:

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NAGABHUSHANASWAMY S/O N SIDDAPPA AGED ABOUT 47 YEARS

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Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA

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RESIDING AT AMACHAWADI VILLAGE CHAMARAJANAGAR TALUK AND DISTRICT-571 127.

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N. SIDDAPPA S/O NAGAPPA

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AGED ABOUT 81 YEARS RESIDING AT AMACHAWADI VILLAGE CHAMARAJANAGAR TALUK AND DISTRICT-571 127.

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MAHADEVASWAMY S/O N SIDDAPPA AGED ABOUT 43 YEARS RESIDING AT AMACHAWADI VILLAGE CHAMARAJANAGAR TALUK AND DISTRICT-571 127.

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RSA No. 1779 of 2018

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JAYAMANGALAMMA W/O GURURAJ AGED ABOUT 53 YEARS RESIDING AT HALLAHALLI VILLAGE KUNTOOR HOBLI TAGARAPURA POST KOLLEGALA TALUK CHAMARAJANAGAR DISTRICT-571 442.

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NAGARATHNAMMA W/O B H NAGARAJU AGED ABOUT 51 YEARS RESIDING AT C/O SURVEY SHIVAPPA RESIDING AT ANNADANI HOSTEL GUNDLUPET TOWN CHAMARAJANAGAR DISTRICT-571 111.

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UMA @ INDIRAMMA W/O NAGENDRA AGED ABOUT 41 YEARS RESIDING NEAR SRIMATA GOPISHETTI VILLAGE RAMAPURA POST KOLLEGALA TALUK CHAMARAJANAGAR DISTRICT-571 440.

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…RESPONDENTS

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THIS RSA IS FILED UNDER SECTION 100 R/W ORDER 41 RULES 1 AND 2 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 08.11.2017 PASSED IN R.A.NO.37/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND CJM, CHAMARAJANAGAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 01.03.2013 PASSED IN O.S.NO.210/2009 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE, AND JMFC, CHAMARAJANAGAR.

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

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RSA No. 1779 of 2018

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JUDGMENT

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This matter is listed for admission.

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Heard the learned counsel appearing for the appellant.

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This appeal is filed challenging the judgment and decree dated 08.11.2017 passed in R.A.No.37/2014 on the file of the Senior Civil Judge and C.J.M., at Chamarajanagar.

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The factual matrix of the case of the plaintiff before the Trial Court is that the suit schedule properties are the ancestral joint family properties of himself and defendants and they were in joint possession and enjoyment. Hence, claimed the relief of partition contending that in spite of the demand made to partition the property not allotted any share.

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The first defendant, who is the father of the plaintiff appeared before the Trial Court and filed the written statement stating that the suit schedule item No.2 property is the only ancestral joint family property and also took the contention that the suit item Nos.1, 3 to 6 properties are his self acquired properties. The plaintiff would contend that the partition deed dated 20.12.2003 and the gift deed dated 14.09.2005 executed

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RSA No. 1779 of 2018

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by the first defendant are invalid and not binding on the plaintiff.

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The plaintiff in order to prove the case, he himself has examined as P.W.1 and got marked the documents as Exs.P1 to P16. On the other hand, the first defendant, who is the father of the plaintiff has examined as D.W.1 and got marked the documents as Exs.D1 to D6.

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The Trial Court after considering both oral and documentary evidence available on record came to the conclusion that the suit schedule properties are the joint family properties of the plaintiff and also the defendants and they were in joint possession. The very contention of the defendants is that the suit schedule properties i.e., suit item Nos.1, 3 to 6 are the self acquired properties of the first defendant, the same was answered as negative. While answering issue No.2 came to the conclusion that not only item No.2 is the ancestral property and other properties are acquired out of the joint family nucleus. The Trial Court also given the finding that the partition deed dated 20.12.2003 is not binding and gift deed is also not valid since the father was not having any absolute right to

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5 - RSA No. 1779 of 2018

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execute the gift deed. Hence, granted the relief of 1/7^th share in the suit schedule property and came to the conclusion that the Partition Deed and the Gift Deed are not binding on the 1/7^th share of the plaintiff in all the suit schedule properties. The defendants are directed to effect partition in the suit schedule item Nos.1 to 4 and 6 properties and hand over the 1/7^th share to the separate possession and enjoyment of the plaintiff. Being aggrieved by the judgment and decree of the Trial Court, an appeal was filed by the second defendant before the First Appellate Court, wherein, it is contended that in terms of the Partition Deed dated 20.12.2003, the appellant has spent an amount of Rs.2,50,000/- for improvement of the property. The Trial Court has committed an error in considering the earlier partition deed dated 20.12.2003 and also the gift deed and the very finding of the Trial Court is erroneous. Based on the grounds urged by the appellant, the First Appellate Court formulated the points that whether the Trial Court has committed an error in not considering the partition deed dated 20.12.2003 and also spending an amount for the improvement of the property which was allotted in favour of the appellant, the Trial Court has mis-understood the documentary evidence

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RSA No. 1779 of 2018

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available on record, the judgment and decree of the Trial Court is erroneous, the suit is barred by limitation and whether the Trial Court has not considered the fact that since there was already a partition, the suit schedule property cannot be partitioned for second time.

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The First Appellate Court on considering all these materials available on record and also on re-appreciation of both oral and documentary evidence answered the points as negative and dismissed the appeal by confirming the judgment of the Trial Court. Hence, the present second appeal is filed before this Court.

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The main contention of the learned counsel appearing for the appellant/defendant No.2 in this appeal is that except item No.2 all properties had purchased by the father of defendant No.2 by raising loan but not from the joint family income. The loan obtained by the father has been cleared by defendant No.2, and there was a mortgage, the same was cleared and the document is also produced before the Court and those properties are not purchased from the joint family income. Both the Courts have committed an error in

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RSA No. 1779 of 2018

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coming to the conclusion that the suit schedule properties are the joint family properties. The learned counsel would vehemently contend that only item No.2 is the ancestral property and by selling the same, other properties are purchased. Hence, the very approach of the Trial Court is erroneous. The learned counsel would vehemently contend that this Court has to frame the substantial question of law that the Trial Court granted 1/7^th share in favour of the plaintiff though the properties are not the ancestral properties and also the stand of the First Appellate Court is that the Trial Court has not committed any error and also confirmed the judgment of the Trial Court. Hence, it requires interference of this Court.

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Having heard the learned counsel appearing for the appellant and on perusal of the material available on record, no dispute with regard to the relationship between the parties. The first defendant is the father of the plaintiff. The plaintiff and the other defendants are the children of the first defendant. The main contention of the learned counsel appearing for the appellant is that except item No.2 all other properties are the self-acquired properties of the father of the plaintiff. Both the Courts have taken note of the material

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RSA No. 1779 of 2018

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available on record and also came to the conclusion that the father was not having any other independent income and also existence of family properties also not in dispute. The Trial Court while answering issue No.1 has taken note of both oral and documentary evidence placed on record and rightly came to the conclusion that the father was not having any separate independent income in order to purchase the property. Except the plaintiff, defendants No.2 to 6 are also not disputing the contention of D.W.1 that item Nos.1, 3, 4 and 6 properties as the self-acquired properties of defendant No.1. But it is forthcoming in the evidence that, D.W.1 as the father and Kartha of the family, he has purchased the properties under Exs.D1 to D3. Prior to that, item No.2 appears to be the only ancestral property which was in the possession of the joint family. Admittedly it is an irrigated land. But undisputedly, ever since the date of the purchase, D.W.1 has not separated them from the joint family and no separate cultivation is noticed. Item No.6 property consisting of more than three properties with houses and vacant sites. But D.W.1 has not placed any evidence to show that, he has purchased them out of his own earnings. Though he claims as if has raised loans

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9 - RSA No. 1779 of 2018

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and utilized his skill to acquire item Nos.1, 3, 4 and 6 properties etc., but he has not produced any evidence to substantiate the same except Adhara Pathras – Exs.D4 to D6 for having pledged item No.2 (ancestral property) to raise loans. These documents also disclose the discharge of such loans by D.W.1. D.W.1 has purchased all the properties as being the Kartha of the family and came to the conclusion that no material has been placed before the Court that out of his own income and skill, he has purchased the property.

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The First Appellate Court on re-appreciation of both oral and documentary evidence placed on record considered the grounds in paragraph No.20 with regard to the question whether the suit schedule properties except item No.2, all other properties are the self acquired properties of defendant No.1. It is also taken note of that though defendant Nos.1 to 3 have contended that only item No.2 is the ancestral property, Ex.P4 shows that item No.3 has also been inherited by defendant No.1. Ex.D1 is the certified copy of the sale deed pertaining to item No.4, Ex.D2 is the certified copy of the sale deed pertaining to item No.1/5 of the suit schedule properties and other sale deeds are also taken note of. No dispute with regard

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10 - RSA No. 1779 of 2018

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to item No.2 is the ancestral property. The only dispute is with regard to the other items of the suit schedule properties. In order to show that the suit schedule properties are his self acquired properties, the defendant No.1 has not produced any material before the Court to prove that he has got separate income other than the joint family income. Hence, the First Appellate Court came to the conclusion that the property cannot be presumed to be joint family property merely because of existence of a joint family - Burden to prove the property to be joint lies on the person who assert so. But if he proves that the family possessed sufficient nucleus with the aid of which joint family property could be acquired, then presumption would be that the property is joint and onus would shift on the person claiming it to be self acquired. The First Appellate Court having considered the material available on record came to the conclusion that no material has been placed before the Court to show that whether he had purchased the property out of his own income i.e., from his skill and earning and he has got any other independent income, the same had been discussed in paragraph No.21. Having considered the material available on record, and also the cross-examination of D.W.1, he has stated

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11 -

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RSA No. 1779 of 2018

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that only item No.2 is the ancestral property and other properties are the self acquired properties. He took the specific defense that item Nos.1, 3, 4 and 6 are the self acquired properties and the same has not been proved.

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The First Appellate Court on re-appreciation of both oral and documentary evidence placed on record came to the conclusion that the family was having the ancestral property i.e., mainly item No.2, from this property, the other properties have been purchased and he was not having any independent income in order to acquire the properties. Hence, came to the conclusion that the plaintiff is entitled for a share i.e., 1/7^th .

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Now, the learned counsel appearing for the appellant would submit that the father is no more. In view of the death of the father, the share of the parties to be modified, instead of 1/7^th , the same has to be modified as 1/6^th . Having considered the material available on record, I do not find any error committed by the Trial Court as well as the First Appellate Court. Both the Courts taken note of the fact that the defendant No.1, who has been examined as D.W.1 has not placed any material before the Court to prove that other than

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12 -

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RSA No. 1779 of 2018

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item No.2, all other properties are his self-acquired properties. Hence, I do not find any error committed by the Trial Court granting the relief of partition in favour of the plaintiff and the First Appellate Court also on re-appreciation of evidence confirmed the judgment of the Trial Court.

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The learned counsel appearing for the appellant has filed I.A.No.1/2018 under Order 41 Rule 27 read with Section 151 of CPC, to produce the additional documents viz., copy of On Demand Pronote dated 09.05.2002, copy of the Pronote dated 01.05.2008, copy of the Mortgage Deed dated 09.07.2009 and the copy of the cancellation of the Mortgage Deed dated 23.03.2016.

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The suit was filed on 10.09.2009. The property was mortgaged on 09.07.2009 and clearance of the mortgage deed was on 23.03.2016. The mortgage was just two months prior to filing of the suit. During the pendency of the matter, he had cleared the mortgage loan. These documents will not come to the aid of the appellant in order to decide the germane issues involved between the parties with regard to issue of partition. These documents reveals only with regard to availing of loan by

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13 -

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RSA No. 1779 of 2018

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mortgaging the property and clearing the loan which he had availed. Hence, I do not find any force in the contention of the learned counsel appearing for the appellant to consider these documents.

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In view of the discussions made above, I pass the

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following:

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ORDER

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(i) The appeal is dismissed. Consequently, I.A.No.1/2018 also stands dismissed.

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(ii) However, 1/7^th share of the plaintiff is modified as 1/6^th in view of enlargement of share.

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In view of dismissal of the appeal, I.A.No.1/2023

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for condonation of delay of 165 days in filing the appeal also does not survive for consideration, the same stands disposed of.

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Sd/JUDGE

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CP List No.: 1 Sl No.: 19

Nataraju v. Nagabhushanaswamy

Case brief

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Nataraju v. Nagabhushanaswamy

Case brief

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