Single judge of Karnataka HC dismissed a second appeal against judgment confirming joint family properties. Held repurchase of family land was from joint income, not individual, finding no perversity.
The second appeal was dismissed; the judgment confirming 1/6th shares was affirmed.
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.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A.NO.924/2022 (PAR)
BETWEEN:
...APPELLANTS
(BY SRI V.B. SIDDARAMAIAH, ADVOCATE)
AND:
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R/A URDIGERE HOBLI, TUMAKURU TALUK AND DISTRICT.
...RESPONDENTS
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 19.02.2022 PASSED IN RA.NO.277/2019 ON THE FILE OF THE VII ADDITIONAL DISTRICT JUDGE, TUMAKURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT DECREE DATED 20.11.2019 PASSED IN O.S.NO.284/2016 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, TUMAKURU.
THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
This matter is listed for admission today. Heard the
learned counsel for the appellants.
file of the VII Additional District Judge, Tumakuru.
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the Trial Court is that they are the daughters of one Hanumaiah
@ Hanumappa through the second wife Thimmakka who has been arraigned as defendant No.1. Defendant No.2 is the son of Hanumaiah @ Hanumappa through the first wife and defendant Nos.3 and 4 are daughters of Hanumappa @ Hanumaiah through first wife and claimed that the suit schedule properties are the joint family properties and they sought for an order to grant a decree for granting 1/6th share in each of the item Nos.1 to 5 properties. The defendants in the written statement contend that the property at item Nos.1, 3 and 4 was sold to one Mohammed Akbar Saheb on 12.01.1961 and item No.2 was sold to one Narasimhaiah on the very same day and the said properties are re-purchased by defendant No.2 on 03.06.1975 and 03.01.1977 and also claimed that item No.5 house property was independently purchased by defendant No.2. The plaintiffs in order to prove their case examined plaintiff No.1 as P.W.1 and got marked the documents at Exs.P.1 to 6. On the other hand, the wife of Hanumaiah examined herself as D.W.1 and examined one witness as D.W.2 and got marked the documents at Exs.D.1
to 10. The Trial Court after considering both oral and
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documentary evidence placed on record comes to the conclusion that the suit properties are joint family properties and the plaintiffs are entitled for 1/6th share each in item Nos.1 to 4 only. The Trial Court also comes to the conclusion that though defendant No.2 contend that he had purchased the property independently, but source of income for having purchased the property has not been proved. The said finding is challenged in R.A.No.277/2019 by defendant No.2.
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and dismissed appeal. Hence, the present appeal is filed by defendants before this Court.
and also on perusal of the material available on record, it is not
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in dispute the originally the property belonged to Hanumaiah and also it is not in dispute with regard to the relationship between the parties. The said Hanumaiah had two wives and through first wife and second wife, the parties are born to them. However, it is the main contention that the properties were sold by the father in the year 1961, both item Nos.1, 3 and 4 and 2 in favour of Mohammed Akbar Saheb as well as Narasimhaiah, but the property was re-purchased by defendant No.2 on 03.06.1975 and 03.01.1977 in terms of two sale deeds. But the very contention of the defendant in the written statement before the Trial Court is that it is the independent property of defendant No.2 and in order to substantiate that he was having source of income to purchase the property, he has not placed any material. When defendant No.2 contend that it was the selfacquired property of him, he has to prove the very source of income and the person who asserts that the property belongs to him, he has to prove that those properties are purchased by him out of his own income and nothing is placed on record before the Court even though defence was taken to substantiate his contention that it was the independent property of defendant No.2. The Trial Court having taken note of the material on
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record, when the defendant failed to prove his case that it was the independent property, answered issue Nos.4 and 5 in the negative. But comes to the conclusion that the plaintiffs are entitled for the relief of 1/6th share each in the suit schedule item Nos.1 to 4 properties.
the father of defendant No.2 and therefore the only question to be considered is whether suit item Nos.1 and 3 was sold under
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Ex.D.1 having re-purchased by defendant No.2 under sale deed at Ex.D.3 in his individual capacity or on behalf of entire joint family. The said question is also answered in paragraph No.22. Considering the evidence of D.W.1 when he admits that he has not done any other work except agriculture, it can only mean that re-purchase of joint family properties under Ex.D.3 in the name of defendant No.2 was from joint family income and joint family nucleus and therefore re-purchase was not in his individual capacity, but on behalf of the entire joint family and the contention of the defendants was not accepted by the Appellate Court in the appeal.
with regard to the allotment of share and also comes to the conclusion that finding of the Trial Court has not been challenged regarding share granted by the Trial Court and answered point No.1 in the negative and also considered Order 41 Rule 27 of CPC considering point for consideration as point No.2 and comes to the conclusion that documents which have been produced before the First Appellate Court will not tilt the result and the documents also not necessary to decide the issue between the parties with regard to germane issue involved in the matter and
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given the reasons in dismissing the application. The property originally belonged to Hanumaiah and though it was sold and repurchased by the father and subsequently by defendant No.2, defendant No.2 was not having any independent source of income to purchase the same and the same has been considered by the Trial Court and the First Appellate Court. Hence, I do not find any ground to invoke Section 100 of CPC to frame substantial question of law and the findings given by both the Courts are not perverse. Under the circumstances, there is no merit in the second appeal to frame substantial question of law.
following:
ORDER
The appeal is dismissed.
Sd/JUDGE
MD
3 issues framed by the court
Whether the trial and first appellate courts committed perversity in rejecting the application for additional evidence under Order 41 Rule 27 CPC.
Whether the respondent failed to prove that repurchased properties were self-acquired and not joint family property.
Whether the present appeal merits allowing a substantial question of law under Section 100 of CPC.
2 provisions across 1 enactments
Sri Chikkanna
Smt. Puttachannamma
Smt. Kamakka
Smt. Kamalamma
Sri Chikkamani
Smt. Thimmakka
H.P. Sandesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
