Regular Second Appeal against lower courts decreeing partition of ancestral properties. The appellant claimed specific properties were self-acquired. The High Court found no independent source of income proved for self-acquired claim and dismissed the appeal.
Appeal dismissed. Judgments and decrees of Courts below confirmed.
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NC: 2024:KHC:53170 RSA No. 1001 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1001 OF 2024 (PAR)
BETWEEN:
SRI. LINGARAJU S/O LATE LINGAIAH AGED ABOUT 64 YEARS, R/AT NAGARAKERE VILLAGE, KASABA HOBLI, MADDUR TALUK -571428
…APPELLANT
(BY SRI. NEGLUR ARAVIND M., ADVOCATE)
AND:
Digitally signed by B VEENA KUMARI
Location: HIGH COURT OF KARNATAKA
NC: 2024:KHC:53170 RSA No. 1001 of 2024
AGED ABOUT MAJOR R/AT NAGARAKERE VILLAGE KASAGBA HOBLI, MADDUR TALUK -571428.
…RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 22.03.2024 PASSED IN RA.NO. 9/2022 ON THE FILE OF THE SENIOR CIVIL JUDGE, MADDUR DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 06.01.2022 PASSED IN OS.NO.445/2016 ON THE FILE OF THE C/C. III ADDITIONAL CIVIL JUDGE AND JMFC, MADDUR.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This regular second appeal is filed by the appellant challenging the judgment and decree dated 22.3.2024 passed in R.A.No.9/2022 by the learned Senior Civil Judge, Maddur and the judgment and decree dated 6.1.2022 passed in O.S.No.445/2016 by the learned III Additional Civil Judge and JMFC, Maddur.
The plaintiff filed the suit against the defendants seeking a partition and separate possession of her 1/5th share in suit schedule properties and mesne profits, costs, and such other reliefs. It is the case of the plaintiff, defendants No.1 and 2 are the brothers and defendant No.3 and 4 are the sisters of the plaintiff. The plaintiff and defendant No.3 and 4 are married and residing at their matrimonial house. The father of the plaintiff and defendants, i.e., Lingaiah S/o Buddekyathegowda, died on 18.02.2010, leaving behind him, the plaintiff and the defendants as his legal heirs. Wife of Lingaiah predeceased him. Lingaiah died intestate.
3.1. It is further stated that, the suit schedule properties are ancestral and joint family properties of the plaintiff and defendants. Buddekyathegowda and his wife Ningamma adopted Lingaiah as per the custom and rituals prevailing in their community. Thus, Lingaiah inherited all
the properties of Buddekyathegowda, who had no issues except, the adopted son Lingaiah. Since Lingaiah died intestate, the plaintiff and defendants have succeeded in the estate of deceased Lingaiah, and all the properties except Item No.1 were inherited by the plaintiff and the defendants.
3.2. It is further contended that, Lingaiah was an agriculturist and the Manager of the joint family consisting of himself, the plaintiff and the defendants. During his lifetime, Lingaiah purchased Item No.2 of suit schedule property out of joint family nucleus wherein he had constructed a Mangalore Tiled house. Since Lingaiah was suffering from ailment, he was not in a position to manage the joint family and hence, during the lifetime of Lingaiah, the 1st defendant became the Manager of the joint family and looking after the joint family affairs, deriving sufficient income from the suit properties.
3.3. It is contended that the plaintiff found that, the defendant No.1, during the lifetime of Lingaiah, had purchased Item No.1, suit schedule property, in his name,
out of joint family income. Defendant No.1 had no independent source of income, and the suit schedule properties are all ancestral and joint family properties of the plaintiff and the defendants, and no partition has occurred between the plaintiff and the defendants. Defendant No.1 refused to give the share to plaintiff. Hence, she filed a suit for the relief of partition and separate possession. Accordingly, prays to decree the suit.
3.4. The defendant No.1 filed a written statement denying the plaint averments while admitting the relationship of the plaintiff with the defendants and admitting that their father died on 18.02.2010 and the mother of the 1st defendant died before to the death of his father. Further, it is stated that, defendant No.1 was doing tender coconut business for the past 20 years, and out of the income derived therefrom, he purchased the suit item No.1 under a registered sale deed dated 25.02.2004 for a valuable sale consideration of `6,950/- from its original owner and stated that, Item No.1 is his self acquired property.
Defendant No.1 further stated that, items No.2 to 8 are the absolute properties of his father. At the time of the marriage of the plaintiff, the father of defendant No.1 had given 3 gold chains weighing 75 grams, 4 gold bangles weighing 60 grams, gold ring weighing 20 grams and a gold chain to her husband and performed the marriage of the plaintiff by investing a huge amount etc. Accordingly, the defendant No.1 has given a share of the plaintiff by way of cash of Rs.1,00,000/- to the plaintiff, and thereby, she relinquished her rights in Item No.2 to 8 in favour of the defendant No.1. Hence, the plaintiff has no right over the suit schedule properties. Further, defendant No.1 contended that as their father Lingaiah was suffering from ill health for a period of 5 to 6 years before to his death, defendant No.1 had incurred a loan towards his medical expenses and other incidental expenses after his death. The defendant No.1 has family debt of more than `8,50,000/- and the same is outstanding. Hence, pray to dismiss the suit.
NC: 2024:KHC:53170 RSA No. 1001 of 2024
3.5. The trial Court, based on the pleadings of the parties, framed the relevant issues. The plaintiff, to prove her case, examined herself as PW-1 and marked Ex.P1 to Ex.P.10. On the other hand, 1st defendant examined himself as DW-1 and marked Ex.D1 to D4.
3.6. The trial Court, on assessment of oral and documentary evidence, decreed the suit of the plaintiff and declared that, the plaintiff is entitled to a 1/5th share in the suit schedule properties. Defendant No.1, aggrieved by the judgment and preliminary decree passed in O.S.No.445/2016, preferred an appeal in R.A.No.9/2022 on the file of the Senior Civil Judge, Mangalore. The Appellate Court, on re-assessment of oral and documentary evidence, dismissed the appeal vide judgment dated 22.3.2024. The defendant no.1, aggrieved by the impugned judgments, filed this Regular Second Appeal.
the income derived from the tender coconut business. He submits that, the plaintiff by accepting Rs.1,00,000/-, relinquished her rights in favour of defendant no.1 regarding items nos.2 to 8 of the suit schedule properties. Further, he also submits that for performing the marriage of the plaintiff, father of defendant No.1 had taken loan and gold ornaments were given to the plaintiff and hence, the plaintiff is not entitled to a share in the suit schedule properties. Therefore, he submits that, the courts below have not properly appreciated the material on record, and hence, the impugned judgments are arbitrary and erroneous. Hence, on these grounds, he prays to allow the appeal.
plaintiff that, item no.1 of the suit schedule property is acquired out of joint family nucleus. However, defendant no.1 contends that item no.1 is his self-acquired property as he acquired the same from the income derived from the tender coconut business. However, defendant No.1 to establish that he was having an independent source of income to purchase the property, has not produced any records to prove the same.
NC: 2024:KHC:53170 RSA No. 1001 of 2024
he had secured a loan to meet the medical expenses of his father Lingaiah and incurred debt of more than Rs.5,00,000/-. However, as there was no sufficient proof in support of the said contention, it had to be presumed that the medical expenses incurred by defendant no.1 were out of the income derived from the joint and ancestral properties of the plaintiff and defendants as defendant no.1 has acted as a Manager of the joint family and he was looking after the properties. DW.1 had admitted that suit schedule properties are the wetlands and they were growing sugarcane and paddy, i.e., commercial crops. The Courts below, considering the aforesaid facts, have rightly held that, defendant No.1 has spent the amount towards medical expenses from out of
the income derived from the ancestral and joint family properties. The Courts below have concurrently held that, defendant No.1 has failed to establish his defence, and the plaintiff has proved that the suit schedule properties are the ancestral and joint family properties of the plaintiff and defendants, and they are all members of the Hindu undivided family and no partition is effected between them. The Courts below, were justified in passing the impugned judgments. Hence, I do not find any grounds to interfere with the impugned judgments and no substantial question of law arises for consideration in this appeal.
ORDER
The appeal is dismissed.
The judgments and decree passed by the Courts below are hereby confirmed.
No order as to the costs.
Sd/(ASHOK S.KINAGI) JUDGE
rs
3 issues framed by the court
Whether the appellant failed to establish that suit schedule properties are his self-acquired property.
Whether the plaintiff relinquished her rights in the share of properties in favour of the appellant.
Whether the appellant successfully proved the existence of family debt for medical expenses.
SRI. LINGARAJU S/O LATE LINGAIAH
SMT. SUNEETHA W/O U B KRISHNAPPA
SMT. VASANTHA W/O BASAVAPPA
SMT. ANNAPOORNA W/O JAYARAMU
SRI JAGADEESHA S/O LATE LINGAIAH
ASHOK S.KINAGI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
