Partly allowed

Hanamant S/O. Shivappa Kulgod v. Smt.Kamala W/O. Girimalla Gokak

Karnataka HC13 Dec 2024RFA/100175/2018

Case brief

AI extract

What is this about?

Appeal by defendant in a partition suit challenging decree giving plaintiff a 1/5 share. High Court affirmed partition of ancestral items 1-3, held items 8-9 were self-acquired of defendant No.5 and dismissed suit as to them, and remitted items 4-7 for fresh trial evidence.

What did the court decide?

Decree modified: suit decreed for items 1-3, dismissed for items 8-9; claims over items 4-7 remitted to trial court with additional evidence permitted.

Hanamant S/O. Shivappa Kulgod Vs Smt.Kamala W/O. Girimalla Gokak — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:18163 RFA No. 100175 of 2018

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 13^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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REGULAR FIRST APPEAL NO.100175 OF 2018 (PAR/POS-)

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BETWEEN:

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HANAMANT S/O. SHIVAPPA KULAGOD, AGED ABOUT 48 YEARS, OCC: AGRICULTURE, R/O. MUGALKHOD, TQ: RAIBAG, DIST: BELAGAVI-590001. (BY SRI. RAJASHEKHAR BURJI, ADVOCATE)

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…APPELLANT

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AND:

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Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA

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SMT. KAMALA W/O. GIRIMALLA GOKAK, AGED ABOUT 43 YEARS, OCC: HOUSEHOLD WORK AND AGRICULTURE, R/O. MUGALKHOD, TQ:RAIBAG, DIST:BELAGAVI-590001.

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SMT. SHANTAVVA W/O. SHIVAPPA KULAGOD, AGED ABOUT 63 YEARS, OCC: AGRICULTURE, R/O. MUGALKHOD, TQ: RAIBAG, DIST: BELAGAVI- 590001.

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BHIMAPPA S/O. SHIVAPPA KULAGOD, AGED ABOUT 38 YEARS,

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OCC:AGRICULTURE, R/O. MUGALKHOD, TQ:RAIBAG, DIST:BELAGAVI-590001.

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SMT. LAKKAVVA W/O. SHRISHAIL MALI, AGED ABOUT 41 YEARS, OCC: HOUSEHOLD WORK, R/O. HIDAKAL, TQ: RAIBAG, DIST: BELAGAVI-590001.

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SMT. SAROJA W/O. HANAMANT KULAGOD, AGED ABOUT 45 YEARS, OCC: HOUSEHOLD WORK AND AGRICULTURE, R/O.MUGALKHOD, TQ: RAIBAG, DIST: BELAGAVI-590001.

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…RESPONDENTS

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(BY SRI. MRUTYUNJAY TATA BANGI, ADVOCATE FOR C/R-1; R2, R4 AND R5-SERVED BUT UNREPRESENTED; NOTICE TO R3 IS DISPENSED WITH)

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THIS RFA IS FILED UNDER ORDER 43 RULE 1 READ WITH SECTION 96 OF CODE OF CIVIL PROCEDURE, PRAYING TO ALLOW THE PRESENT APPEAL AND SET ASIDE THE JUDGMENT AND DECREE DATED 18.01.2018 PASSED BY THE COURT OF SENIOR CIVIL JUDGE AND JMFC., RAIBAG IN O.S.NO.254/2015 AND FURTHER SUIT OF THE PLAINTIFF/RESPONDENT NO.1 MAY KINDLY BE DISMISSED, IN THE INTEREST OF JUSTICE AND EQUITY.

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

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CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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ORAL JUDGMENT

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This appeal is by the defendant No.2 in a suit for partition. The suit is decreed awarding 1/5 share to the plaintiff in all the suit schedule properties.

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The admitted genealogy is as under:

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Shivappa (Dead) =Shantavva (D-1) Hanamant Lakkavva Bhimappa Kamala (D-2) (D-4) (D-3) Plff. = Saroja (D-5) Wife

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One Shivappa was the propositus, he died on

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03.09.2013. At the time of his death, he was survived by his wife Shantavva who is arrayed as defendant No.1 and two sons Hanamant and Bhimappa who are arrayed as defendants No.2 and 3 and two daughters Lakkavva and Kamala. Lakkavva is defendant No.4. Defendant No.5 is wife of Hanamant and she is arrayed as a party as item

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No.8 property stands in her name.

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Kamala has filed a suit for partition. The plaintiffs contend that item No. 1 to 3 properties are ancestral properties and from the income derived from the said properties, remaining properties are purchased. It is also contended that there is no partition among the plaintiff and the defendants and as such, the plaintiff seeks 1/5^th share in the suit properties.

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Defendant No.2 filed written statement. Defendants No.1, 4 and 5 adopted the written statement filed by defendant No.2. The defendant No.2 contented that the family had no nucleus to purchase item No.4 to 8 properties. It is his contention that the defendants have spent around Rs.2,00,000/- for the marriage of the plaintiff and have given gold ornaments at the time of her marriage in the year 1999 and in 1990 plaintiff and defendant No.4 have relinquished their share in favour of defendants No. 1 to 3.

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It is also pleaded that defendant No.2 is having

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a medical shop in Mugalkhod village and he is practicing as

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a registered medical practitioner and earns an income of Rs.45,000/- per month and has purchased item No.4, 6, 7,

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8 and 9 properties on his self earnings and it is also claimed that item No.5 property has been registered in his name in view of the arrangement between the defendant No.2 and his uncle. Item No.8 and 9 are the properties purchased in the name of defendant No.5. It is further stated that properties at item Nos.8 and 9 are purchased in the name of defendant No.5 from the income derived from her maternal father. Thus, he has prayed for dismissal of this suit.

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The trial Court framed issues relating to the claim that the suit properties are the joint family properties and the claim that item number 4, 6, 7, 8 and 9 are the self acquired properties.

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The trial Court rejected the contention that the defendant No.2 purchased the property from his self earnings. The Court concluded that the separate income in

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the hands of defendant No.2 is not established and decreed the suit.

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Learned counsel appearing for defendant No.2/appellant would submit that independent income of defendant No.2 is very much established. He was registered medical practitioner and was also running a medical shop. P.W-1 in the cross- examination, has admitted that defendant No.2 was having income of around Rs.10,000/- per month from the medical practice and Rs.15,000/- per month from the pharmacy shop. He would also contend that item Nos.8 and 9 properties are standing in the name of defendant No.5-wife of appellant and defendant No.5 purchased the said properties from the income derived from her parents and her mother is examined and there is a presumption in favour of the selfacquisition and the burden is on the plaintiff to establish that the properties are the joint family properties.

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10. It is urged that Trial Court has overlooked the

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well settled principle of law and granted a decree for

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partition merely because the plaintiff and defendants are the joint family members. It is also his contention that item No.7 property cannot be considered as joint family property as the said property is transferred to defendant No.2 from his uncle and it was an arrangement between himself and his uncle and plaintiff cannot claim any share in it.

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He would further contend that there is no pleading relating to joint family income being surplus enough to purchase the property in the name of defendant No.2 and in the absence of proper pleading and evidence, the Trial Court could not have held that suit properties are purchased from the joint family income.

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plaintiff/respondent No.1 would contend that item Nos.1 to 3 properties are admittedly ancestral properties and they are agricultural lands and the Court is justified in holding that item Nos.4 to 9 properties are acquired from the joint family income. He would also contend that defendant No.2

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has not produced sufficient materials to show that he did possess sufficient independent income to purchase the aforementioned properties at item Nos.4 to 9 and in the absence of evidence to support the contention that properties are purchased from the independent source of income of defendant No.2, the Trial Court is justified in holding that the suit properties are the joint family properties.

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The following points arise for consideration:

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i. Whether the appellant has made out ground to allow the application for production of additional documents?

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ii. Whether the appellants establish that item No.4, 6 and 7 and 8 and 9 properties are the self-acquired properties as contended in the written statement?

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I.A.1/2019 and I.A.3/2019 are filed under Order

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XLI Rule 27 of the Code of Procedure seeking production of additional documents.

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I.A.1/2019 is filed on 08.03.2019, wherein the appellant seeks to produce copy of the licence dated 05.03.1997 issued under the Drugs and Cosmetic Act, 1940. He has also produced the profit and loss account from 01.04.2017 to 31.03.2018 and also the balance sheet as on 31.03.2018. In addition, one letter dated 02.01.2015 is produced which is addressed to Siddeshwara Medical and General Stores.

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On perusal of the four documents referred to above, this Court is of the view that, except the licence issued under the Drugs and Cosmetics Act, 1940, rest of the documents are not relevant for the adjudication of this case, where the Court is deciding on the question as to whether the appellant is having sufficient nucleus to purchase the properties at item No.4, 6 and 7.

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Apart from that, appellant has also filed one more application in I.A.1/2014 on 09.12.2024, wherein he has sought leave of the Court to produce 9 documents.

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This Court has perused the said documents.

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These documents cover the period from 1997 to 2006.

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Learned counsel for the respondents opposed the said applications on the premise that no grounds are made out to allow the applications at this stage and he would contend that the documents are not necessary for adjudication of the case on hand.

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This Court has considered the contentions raised at the Bar.

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This Court is called upon to decide whether some of the properties standing in the name of the appellant are his self-acquired properties or the properties acquired from the joint family income. Since the appellant claims that he was a practicing Medical Officer from some point of time and thereafter he started business, he opened medical shop and from that shop and practice, he had the income to purchase the properties, this Court is of

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the view that these documents may throw some light on the controversy.

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For the aforementioned reasons, the first application in I.A.3/2019 dated 08.01.2019 is allowed in part and the second application in I.A.1/2014 dated 09.12.2024, is allowed.

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As far as item No.8 and 9 properties are concerned, they are standing in the name of defendant No.5, who is the wife of the present appellant. It is stated that she purchased the properties at item No.8 and 9 from the funds contributed by her father, who was a PSI. It is also her contention that the said properties are selfacquired properties of defendant No.5. It is noticed that, item No.5 property is purchased in the year 2008 and item No.8 property is purchased in the year 2009. Item No.8 property is purchased for Rs.1,95,000/- and item No.9 property is purchased for Rs.3,74,000/-.

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Mother of defendant No.5 is examined. This

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court is of the view that there is a presumption relating to the self acquisition of a property standing in the name of individual and that presumption is bit stronger in case the property stands in the name of a woman. After going through the evidence on record, this Court is of the view that the presumption in favour of the self acquisition of Item No.8 and 9 properties in the name of defendant No.5 is not rebuted. Hence, this Court is of the view that the trial court is not justified in granting a decree for partition in respect of item No.8 and 9 properties.

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The trial Court has not assigned the specific reason as to how it has concluded that item No.8 and 9 properties are the joint family properties. Though the issue No.3 is framed relating to the self acquisition pleaded in the written statement where defendant No.2 states that the property at item No.8 and 9 are purchased

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from the funds provided by his father in law i.e. father of defendant No.5, the trial court has not assigned valid

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reasons as to why the evidence led by the mother of defendant No.5 is to be disbelieved. The fact that the father in law of defendant No.2 was a Government employee is not in dispute and it is also not in dispute that father in law possessed agriculture lands.

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This being the possession, the finding of the trial court on property No.8 and 9 that they are the joint family properties of plaintiff has to be set aside and is accordingly set aside.

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Now the Court has to consider; whether the appellant has made out a case to contend that item No.4, 5, 6 and 7 are the joint family properties. Item No.4, 6 and 7 are admittedly the properties purchased in the name of defendant No.2. The question is; did he possess sufficient income to purchase those properties when he purchased those properties. Existence of ancestral properties item No.1 to 3 is an admitted factual position. Whether the income from those properties were sufficient

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to purchase these properties is another point that requires consideration.

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On going through the evidence before the trial

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court this court is of the view that both the parties failed to adduce the required evidence to arrive at a definite conclusion whether the properties are self acquired properties of the present appellant or the joint family properties as contended by the plaintiff. Before this Court two applications are filed and this court has allowed first application in part and second application in full for production of additional documents. Those documents have to be tested and the plaintiffs should be given an opportunity to cross examine the appellant on these documents which are sought to be produced as additional evidence.

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As far as item No.5 properties are concerned, it is noticed that the said properties transferred in the name of the appellant by his uncle through a varadi. Whether the uncle of the appellant had intention to transfer only for

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the benefit of the appellant or is it for the benefit of the entire family of appellant including the plaintiff is a matter which requires to be considered by recording evidence in this regard.

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For the aforementioned reasons, this court is of the view that the impugned judgment and decree of the trial court have to be set aside in part.

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Since the claim of the plaintiff that item No.1 to 3 properties are ancestral properties is established beyond any doubt, the decree for partition in respect of item No.1 to 3 properties have to be affirmed. It is also stated before this Court that final decree proceeding in respect of item No.1 to 3 properties is at a final stage and division of the properties is already proposed by the Commissioner. The appellant shall cooperate in delivery of the plaintiff’s share in item No.1 to 3 properties in the pending final decree proceedings. Thereafter, the appellant is permitted to lead evidence in respect of item No.4 to 7 properties to establish his claim. The plaintiff is also permitted to lead

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additional evidence to substantiate her claim that the item

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No.4, 6 and 7 properties are the ancestral properties. Hence, the following;

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ORDER

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i) The appeal is allowed in part.

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ii) The impugned judgment and decree dated 18.01.2018 in O.S. No.254/2015 on the file of Senior Civil Judge, Raibag are modified.

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iii) The suit of the plaintiff is decreed in respect of item No.1 to 3 properties.

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iv) The suit is dismissed in respect of item No.8 and 9 properties.

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v) The matter is remitted to the trial court to consider the claim of both parties in respect of item No.4 to 7 properties.

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vi) It is made clear that this court has not expressed any opinion on rival claim in respect of item No.4 to 7 properties and all contentions kept open in this regard.

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vii) The parties shall appear before the trial court on 08.01.2025 without any further notice from the trial court.

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viii) The delivery of possession of the plaintiff’s share in respect of item No.1 to 3 properties is a condition precedent for the appellant to lead evidence on item No.4 to 7 properties.

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ix) The Registry shall transmit the additional documents which are allowed by this court to the trial court for further consideration.

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x) The Registry shall also send back the trial

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court records.

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Sd/(ANANT RAMANATH HEGDE) JUDGE

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RKM,AM,GAB,CHS CT:ANB List No.: 1 Sl No.: 40

Hanamant S/O. Shivappa Kulgod v. Smt.Kamala W/O. Girimalla Gokak

Case brief

What is this about?

What did the court decide?

Hanamant S/O. Shivappa Kulgod v. Smt.Kamala W/O. Girimalla Gokak

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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