Dismissed

Sri. Kempegowda v. Smt. Bhagyamma

Karnataka HC21 Feb 2023RSA/595/2017

Case brief

AI extract

What is this about?

In a regular second appeal regarding partition, the High Court of Karnataka held that the First Appellate Court did not err in declaring suit properties as joint family property. The court ruled that self-acquired property status requires strict proof of purchase funds, which the defendant failed to provide. The appeal was dismissed.

What did the court decide?

The appeal was dismissed; the judgment of the First Appellate Court allowing the respondent's claim for partition and 1/5th share in all items is upheld.

Sri. Kempegowda Vs Smt. Bhagyamma — Partition | Karnataka HC (2023)

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RSA No. 595 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF FEBRUARY, 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.595 OF 2017 (PAR)

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BETWEEN:

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SRI KEMPEGOWDA, AGED ABOUT 72 YEARS, S/O LATE DODEGOWDA.

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SRI CHIKKAMMA, AGED ABOUT 70 YEARS, W/O SRI KEMPEGOWDA.

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Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA

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SRI BASAVARAJU, AGED ABOUT 54 YEARS, S/O SRI KEMPEGOWDA, EMME KOPPALU VILLAGE, KASABA HOBLI, HUNSUR TALUK-571105, MYSURU DISTRICT.

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SRI REVANNA, AGED ABOUT 50 YEARS, S/O SRI KEMPEGOWDA.

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SRI SWAMY AGED ABOUT 44 YEARS, S/O SRI KEMPEGOWDA.

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APPELLANT NOS.1, 2, 4 AND 5 ARE RESIDING AT MALLUR VILLAGE (LAKKANAKOPPALU), GAVADAGERE HOBLI, HUNSUR TALUK-571105.

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…APPELLANTS

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(BY SRI B.S. NAGARAJ, ADVOCATE)

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RSA No. 595 of 2017

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AND:

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SMT. BHAGYAMMA, AGED ABOUT 39 YEARS, D/O KEMPEGOWDA, W/O SWAMYGOWDA, MOOKANAHALLI VILLAGE, KASABA HOBLI, HUNSUR TALUK, MYSURU DISTRICT – 570 001.

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…RESPONDENT

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(BY SRI T.H. AVIN, ADVOCATE)

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THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 05.08.2016 PASSED IN RA NO.455/2014 ON THE FILE OF THE VIII ADJ, MYSURU, ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 07.04.2014 PASSED IN OS NO.65/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, HUNSUR.

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

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J U D G M E N T

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Heard the learned counsel for the appellants and

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the learned counsel for the respondent.

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This appeal is filed challenging the judgment

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and decree dated 05.08.2016, passed in R.A.No.455/2014, on the file of the VIII Additional District and Sessions Judge, Mysuru.

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The factual matrix of the case of the plaintiff before the Trial Court while seeking the relief of partition

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RSA No. 595 of 2017

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and separate possession is that the suit schedule properties are the ancestral and joint family properties of the plaintiff and the defendants. In pursuance of the suit summons, defendant No.1 appeared and filed the written statement contending that item Nos.5, 6, 8, 9 and 10 are the self-acquired properties and also contended that the plaintiff has taken her share as stated in paragraph No.16 of the written statement. Based on the pleadings of the parties, the Trial Court framed the issues with regard to whether the suit schedule properties are the ancestral and joint family properties and whether defendant No.1 proves that item Nos.5, 6, 8, 9 and 10 are the self-acquired properties of defendant No.1. It is also the contention of defendant No.1 that the plaintiff has already taken her share and hence the Trial Court framed an issue whether the plaintiff is entitled for 1/6^th share as contended in the suit. Additional issue is also framed with regard to non-joinder of necessary parties that whether the suit is bad for non-inclusion of all joint family properties. The plaintiff in support of her claim

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RSA No. 595 of 2017

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examined herself as P.W.1 and got marked the documents at Exs.P.1 to 25. The defendant No.1 examined himself as D.W.1 and examined two witnesses

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as D.W.2 and D.W.3 and got marked the document of Ex.D.1. The Trial Court after considering the material on record, answered issue Nos.1 and 2 in partly affirmative in coming to the conclusion that some of the properties are ancestral and some of the properties are selfacquired properties of defendant No.1. Regarding the plaintiff has taken her share, answered issue as negative and the Trial Court comes to the conclusion that the plaintiff is entitled for 1/5^th share in respect of item Nos.1 to 4, 11 and 12 of suit schedule properties and not entitled for share in respect of item Nos.5 to 10.

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Being aggrieved by the judgment and decree of the Trial Court, the plaintiff has filed an appeal in R.A.No.455/2014. Having considered the grounds urged by the plaintiff in the appeal, the First Appellate Court formulated the point with regard to whether the judgment and decree of the Trial Court is erroneous,

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illegal, perverse and not sustainable in the eye of law.

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The First Appellate Court on re-appreciation of the material available on record, allowed the appeal and modified the judgment and decree of the Trial Court and decreed the suit as sought in respect of all items of suit schedule properties and declared that the plaintiff is entitled for 1/5^th share in all the suit schedule properties. Hence, the present appeal is filed by the defendants before this Court.

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This Court having heard the learned counsel

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for the appellants, admitted the matter and framed the substantial question of law as below:

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“Under the facts and circumstances of the case and in the light of admission of P.W.1, whether the findings of the First Appellate Court that plaint schedule item Nos.1 to 5 were acquired out of joint family nucleus is perverse”

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The learned counsel for the

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appellants/appellants would vehemently contend that the plaintiff in the cross-examination categorically admitted that defendant No.3 left the house when he was aged

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RSA No. 595 of 2017

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about 18 years and also brought to the notice of this Court the cross-examination of P.W.1, wherein she has

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stated that the family was facing difficulty and hence he went to Bangalore and was working in Bangalore and managing the family affairs. It is also brought to the notice of this Court the admission that when defendant No.3 went to Bangalore, at that time, the family was consisting of children and properties were dry lands. A suggestion was made that defendant No.1 was getting the income and the same was sufficient only to manage the family and the same was denied. The learned counsel would contend that the admission is clear that defendant No.3 is the elder son of the family and he had been to Bangalore when he was aged about 18 years and when P.W.1 was aged about 5-6 years and family was having difficulties and this admission is very clear that item Nos.5 to 10 of the properties are self-acquired properties and the same are purchased out of funds sent by defendant No.3. Hence, the First Appellate Court

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RSA No. 595 of 2017

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committed an error in granting the relief in respect of item Nos.5 to 10 also.

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Per contra, the learned counsel for the

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respondent/plaintiff submits that D.W.1 in the crossexamination categorically admitted that after meeting the expenditure he used to get of Rs.25,000/- to Rs.50,000/per annum, but when there was no rain they were not getting even Rs.1,000/- also. The learned counsel brought to the notice of this Court that D.W.1 categorically admitted in the cross-examination that in order to show that item Nos.5 to 8 and 12 are purchased as his self-acquired properties, he has not produced any documents. The learned counsel would contend that even for item Nos.1 and 2 also he has categorically admitted that he has not produced any documents. The learned counsel submits that D.W.1 categorically admitted that except agricultural income, he was not having any independent income and not doing any job other than agriculture. The learned counsel submits that defendant No.1 also not denied that the family was

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RSA No. 595 of 2017

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having agricultural properties and his only contention is that item Nos.5 to 10 are the self-acquired properties,

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but he has not produced any documentary proof with regard to the said properties are purchased out of his self-income. The learned counsel submits that it is the case of defendant No.1 that he had purchased item Nos.5 to 10 out of the money sent by defendant No.3 and he

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had sent an amount of Rs.1,000/- by working in garments, but defendant No.3 has not been examined before the Court to prove the same. The learned counsel submits that when the family is having joint family properties, the Court has to presume that all the properties are joint family properties. When defendant No.1 took the defence that it is the self-acquired properties, burden is on defendant No.1 to prove that out of the said income he had purchased the item Nos.5 to 10 of the suit schedule properties and no such material is placed before the Court to substantiate his contention.

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Having heard the learned counsel for the

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appellants and the learned counsel for the respondent

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RSA No. 595 of 2017

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and also taking note of the answers elicited from the mouth of P.W.1 and D.W.1, this Court has to consider the substantial question of law framed by this Court while admitting the appeal.

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The learned counsel for the appellants contend that there is a clear admission on the part of P.W.1 that the family was not having any income when defendant No.3 went to Bangalore and hence the First Appellate Court has committed an error in granting the relief of partition in respect of all the items of the suit schedule properties.

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Having taken note of the material available on

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record, no doubt, the Trial Court while answering issue No.2 comes to the conclusion that defendant No.1 has proved that the property was purchased out of the amount which he had received from defendant No.3 and also taken note of the admission elicited from the mouth of D.W.1 in the cross-examination that it is the specific contention of defendant No.1 that he has received Rs.1,000/- from defendant No.3 and hence, he was able

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to purchase the suit properties. But an observation is made that however the plaintiff has admitted that it is the self-acquired property of her father, but no such admission is found in the cross-examination of P.W.1. He only admitted the fact that when defendant No.3 went to Bangalore, the plaintiff was aged about 5-6 years and also when the family was facing difficulty, at that time, defendant No.3 had been to Bangalore. It is admitted that the family properties are dry land. A suggestion was made that the income was sufficient only to maintain the family and the same was denied by P.W.1. There is no admission on the part of P.W.1 that item Nos.5 to 10 of the suit schedule properties are purchased out of the self-income of defendant No.1. The very reasoning given by the Trial Court in paragraph No.25 of the judgment that the plaintiff has admitted that it is the self-acquired property of her father is erroneous. It is stated that funds were given by the grandmother of the plaintiff to the father of the plaintiff and the property has been purchased by defendant No.1 along with Chennegowda.

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RSA No. 595 of 2017

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In order to prove the fact that amount was given by the grandmother of the plaintiff, no material is found.

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The First Appellate Court while reversing the judgment of the Trial Court taken note of the evidence available on record and in paragraph No.21 comes to the conclusion that on going through the oral evidence of P.W.1 and D.W.1, there is no dispute about the relationship between the parties. Admittedly, defendant Nos.1 and 2 are the parents of the plaintiff and defendant Nos.3 to 5. The plaintiff pleaded that the suit schedule properties are the ancestral and joint family properties. But the defendants denied the entire pleadings and contended that the suit item Nos.5 to 10 are self-acquired properties. It is observed that the parties to the suit are Hindus and governed by Mithakshara law. Normal condition of Hindu Society is joint and undivided family. Undivided Hindu joint family is ordinarily joint not only in estate but also in food and worship. The existence of joint estate is not an essential requisite to constitute a joint family and a joint family

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which does not own any property may exist. In other

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words, a joint family may exist with or without possessing joint family properties. The First Appellate Court taking note of the evidence on record, in paragraph No.22 comes to the conclusion that the family is having joint family properties of the plaintiff and the defendants and defendant No.1 being the kartha of the joint family is managing the joint family and joint family properties and also taken note of RTC extracts in respect of item Nos.1 to 4 that they are inherited by defendant No.1 from his ancestors. Even the defendants have denied this aspect in their pleadings and D.W.1 in his evidence has not stated anything about this aspect. But taken note of the admission given by him in his evidence that the suit item Nos.3, 9 and 11 are the ancestral properties. Though defendant No.1 has contended that item No.9 is the selfacquired property, but in the cross-examination he admits that it is also an ancestral property and the same is brought to the notice of this Court by the learned counsel for the plaintiff. The First Appellate Court taken

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RSA No. 595 of 2017

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note of the documents of Exs.P.1 to 6 and 14 to 16 and

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those documents are contrary to the evidence of D.W.1.

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The main contention of the learned counsel for

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the appellants is that P.W.1 categorically admitted in the cross-examination and I have already pointed out that admission is only in respect of defendant No.3 went to Bangalore when he was aged about 18 years and at that time the plaintiff was aged about 5-6 years. The learned counsel for the respondent also brought to the notice of this Court that when a suggestion was made that out of joint family income, they were getting income of Rs.1,50,000/- and D.W.1 admitted that income would be Rs.25,000/- to Rs.50,000/- per annum and if no rain, they would get less than Rs.1,000/-. When defendant No.1 claims that he had purchased the property out of funds sent by defendant No.3, it is rightly pointed out by the learned counsel for the respondent that ought to have examined defendant No.3 before the Court for having sent the money. Apart from that, D.W.1 categorically admitted that in order to show that these

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RSA No. 595 of 2017

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properties are self-acquired properties, he has not produced any documents. Admittedly, he was not having any other avocation other than agriculture and he was the kartha of the family and he was cultivating the joint family properties. When defendant No.1 took the specific defence that he had acquired those properties and those properties are self-acquired properties, burden lies on him and the person who asserts before the Court that those are the self-acquired properties, he has to prove the same. Admittedly, the family was having other properties also other than item Nos.5 to 10 and no grievance with regard to the granting of share in respect of other properties and only grievance is with regard to item Nos.5 to 10. When the Trial Court granted the relief in respect of other items of properties, no appeal was filed and only the plaintiff has filed the appeal in respect of item Nos.5 to 10.

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The Appellate Court on re-appreciation of both oral and documentary evidence placed on record, in paragraph Nos.21, 22 and 23 comes to the conclusion

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that when the joint family exists with joint family properties and once the family is having joint family properties, any subsequent acquisitions made in the name of any member of the family, it assumes the character of joint family property. Though it is contended by defendant No.1 that the plaintiff has taken the share, the same was negatived by the Trial Court and the same is also not questioned before the First Appellate Court. When such being the material available on record, I do not find any error committed by the First Appellate Court in reversing the finding of the Trial Court in granting the relief of partition in respect of all the items of suit schedule properties. The substantial question of law framed by this Court is with regard to admission of P.W.1 and the said admission not pertains to item Nos.5 to 10 and only admission is given with regard to defendant No.3 went to Bangalore when he was aged about 18 years and at that time, the plaintiff was aged about 5-6 years. When such material is available before the Court and when there is no

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RSA No. 595 of 2017

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admission with regard to acquisition of item Nos.5 to 10 are self-acquired properties as contended by the appellants, I do not find any force in the contention of the learned counsel for the appellants. The First Appellate Court has not committed any error in coming to the conclusion that the plaint schedule item Nos.5 to 10 were also acquired out of the joint family nucleus and the same is not perverse as contended by the learned counsel for the appellants. This Court can reverse the finding only if the finding of the First Appellate Court is perverse and the same is not against the material available on record. The First Appellate Court on reappreciation of the evidence considering the question of facts and question of law, allowed the appeal and granted share in respect of all items of suit schedule properties in favour of the plaintiff. Hence, the substantial question of law framed by this Court is answered in the negative.

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In view of the discussions made above, I pass the following:

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RSA No. 595 of 2017

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ORDER

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The appeal is dismissed.

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Sd/JUDGE

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MD List No.: 1 Sl No.: 49

Sri. Kempegowda v. Smt. Bhagyamma

Case brief

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Sri. Kempegowda v. Smt. Bhagyamma

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