Partly allowed

Basavanneppa S/O Moogappa Udakeri, v. Somappa Mugappa Udakeri

Karnataka HC4 Sept 2024RSA/100868/2014

Case brief

AI extract

What is this about?

The High Court allowed the second appeal in part, holding that the Trial Court erred in not admitting a photocopy of an unregistered partition deed as secondary evidence. The Court found the specific land in question was self-acquired by the appellant following the partition and excluded it from division, while granting shares in the remaining joint family properties.

What did the court decide?

The decree was modified to exclude the suit item bearing Sy.No.379/1 from partition, holding it is the self-acquired property of the appellant. Other properties remain subject to 1/6th share to all co

Basavanneppa S/O Moogappa Udakeri, Vs Somappa Mugappa Udakeri — Partition | Karnataka HC (2024)

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NC: 2024:KHC-D:13540 RSA No. 100868 of 2014

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IN THE HIGH COURT OF KARNATAKA

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DHARWAD BENCH

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DATED THIS THE 04^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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REGULAR SECOND APPEAL NO.100868 OF 2014 (PAR)

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BETWEEN:

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BASAVANNEPPA, S/O. MOOGAPPA UDAKERI, SINCE DECEASED BY HIS LRS.

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1A. SMT. GOURAWWA, W/O. BASAVANNEPPA UDAKERI, AGE: 55 YEARS, OCC: HOUSEHOLD WORK, R/O. UENAGI – 591 221, TQ: SAUNDATTI, DIST: BELAGAVI.

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MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH

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1B. SMT. NIRMALA, W/O. SIDDALINGAPPA KODROLLI, AGE: 32 YEARS, OCC: HOUSEHOLD WORK, R/O. CHIKKOPPA – 591 234. TQ. SAUNDATTI, DIST: BELAGAVI.

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1C. NEELAKANTH, S/O. BASAWANNEPPA UDALERI, AGE: 32 YEARS, OCC: AGRICULTURE, R/O. YENAGI-591221, TQ. SAUNDATTI, DIST: BELAGAVI.

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…APPELLANT

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(BY SRI. RAVI S. BALIKAI, ADVOCATE FOR 1(A TO C))

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AND:

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SOMAPPA MUGAPPA UDAKERI, SINCE DECEASED BY HIS LRS.

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1A. SMT. MAHADEVI, W/O. SOMAPPA UDAKERI, AGE: 54 YEARS, OCC: HOUSEHOLD, R/O. UDAKERI ONI, YENAGI – 591 126. TQ. SAUNDATTI, DIST: BELAGAVI.

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1B. SMT. SHRIDEVI, W/O. MALLIKARJUN MALLANNAVAR, AGE: 33 YEARS, OCC: HOUSEHOLD, R/O. HOSUR – 591 126, TQ. SAUNDATTI, DIST: BELAGAVI.

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1C. ANAND, S/O. SOMAPPA UDAKERI, AGE: 26 YEARS, OCC: AGRICULTURE, R/O. UDAKERI ONI, YENAGI – 591 126. TQ. SAUNDATTI, DIST: BELAGAVI.

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1D. SANTOSH, S/O. SOMAPPA UDAKERI, AGE: 24 YEARS, OCC: AGRICULTURE, R/O. UDAKERI ONI, YENAGI – 591 126. TQ. SAUNDATTI, DIST: BELAGAVI.

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GADIGEPPA MOOGAPPA UDAKERI AGE: 62 YEARS, OCC: AGRICULTURE, R/O. YENAGI – 591 342, TQ. SAUNDATTI, DIST: BELAGAVI.

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SMT. KASHAWWA, D/O. MOOGAPPA UDAKERI, NOW CALLED KASHAWWA, W/O. GANGAPPA CHETTENNAVAR, AGE: 67 YEARS, OCC: HOUSEHOLD WORK, R/O. MUGABASAVA – 591 325, TQ. SAUNDATTI, DIST: BELGAUM.

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SMT. GANGAWWA, D/O. MOOGAPPA UDAKERI, NOW CALLED GANGAWWA, W/O. YALLAPPA KADROLLI, AGE: 57 YEARS,

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OCC: HOUSEHOLD WORK, R/O. CHIKKOPPA – 591 231, TQ. SAUNDATTI, DIST: BELAGAVI.

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SMT. GIRIJAWWA, W/O. NAGAPPA KAGGANAGI, AGE: 37 YEARS, OCC: AGRICULTURE, R/O. MYAKALMARDI – 591 167, TQ. SAUNDATTI, DIST: BELAGAVI.

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SMT. NELAMMA @ NILAVVA, W/O. BASAPPA UDAKERI, AGE: 73 YEARS, OCC: HOUSEHOLD WORK, R/O. UDIKERI VILLAGE, TQ. BAILHONGAL, DIST: BELAGAVI.

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SMT. KASTUREVVA, D/O. BASAPPA UDAKERI, W/O. AJJAPPA GAMMANNAVAR, AGE: 46 YEARS, OCC: HOUSEHOLD WORK, R/O. UDIKERI VILLAGE, TQ. BAILHONGAL, DIST: BELAGAVI AND ALSO RESIDES AT TADAKOD, TQ. & DIST: DHARWAD.

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…RESPONDENTS

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(BY SRI. S.G.NADOOR, ADVOCATE FOR SRI. A.C.CHAKALABBI, ADVOCATE FOR R1(A TO D) (VK NOT FILED) VIDE ORDER DATED 12.08.2024 SRI. SANTOSH B. RAWOOT, ADVOCATE FOR R3 TO R5; SRI R.A.PUROHIT, ADVOCATE FOR IMPLEADING PROPOSED APPLICANT NOS.6 AND 7; R2 SERVED )

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 24.07.2014 PASSED IN R.A.NO.179/2012, ON THE FILE OF THE II ADDITIONAL SESSIONS JUDGE, BELAGAVI AND THE JUDGMENT AND DECREE DATED 07.07.2012 PASSED IN O.S.NO.22/2007 ON THE FILE OF THE

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SENIOR CIVIL JUDGE, SAUNDATTI AND THE SUIT OF THE PLAINTIFFS BE DISMISSED AND THIS APPEAL BE ALLOWED WITH COSTS.

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

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ORAL JUDGMENT

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Though the matter is listed for admission, but with consent of the counsels appearing for the appellants and respondents, the matter is taken up for final disposal after framing substantial questions of law.

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This regular second appeal is filed by defendant No.1 challenging the judgment and decree dated 24.07.2014 passed in R.A.No.179/2012 by the II Additional Sessions Judge, Belgaum (hereinafter referred as ‘the First Appellate Court’) and judgment and decree dated 07.07.2012 passed in O.S.No.22/2007 by the Senior Civil Judge, Saundatti (hereinafter referred as ‘the Trial Court’).

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For the sake of convenience and easy reference, rank of the parties is referred to as per their ranking before the Trial Court.

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PLAINT:

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The plaintiff has filed the suit for partition and separate possession claiming his 1/3^rd share in all the suit schedule properties. The genealogy is not disputed. Mugappa is the original propositus; Basavanneppa (defendant No.1), Gadigeppa (defendant No.2), Somappa (plaintiff), Kashavva (defendant No.3), Gangavva (defendant No.4) and Dundavva (daughter of another daughter of Girijavva) all form joint family. The plaintiff has contended that all the suit properties are ancestral and joint family properties, therefore, filed the suit for partition and separate possession.

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WRITTEN STATEMENT:

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Defendant No.1 had filed written statement by contending that there was earlier partition on 12.04.1991 between defendant Nos.1 and 2 and plaintiff and by virtue of said partition the plaintiff and defendant Nos.1 and 2 are in their respective possession. Thereafter, in the year 1999, defendant No.1 has purchased the property bearing Sy.No.379/1 measuring 01 acre 04 guntas out of his own

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income and thus, it is self acquired property of defendant No.1. Defendant Nos.3 to 5 have filed written statement stating that there was no partition between the plaintiff and defendants and therefore, they are also entitled for 1/6^th share each in all the suit schedule properties.

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Defendant No.1 is contending that there was already partition in the family and out of the share allotted to defendant No.1, he has purchased the suit schedule item No.3 property i.e. Sy.No.379/1 measuring 01 acre 04 guntas of land out of total extent 04 acre 34 guntas. Therefore, it is sum and substance of defendant No.1 that suit schedule item No.3 property bearing Sy.No.379/1 measuring 01 acre 04 guntas is self-acquired property of defendant No.1 and thus, it is not amenable for partition. Therefore, prayed to dismiss the suit.

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Upon hearing pleadings of the parties, the Trial Court has framed the following issues:

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Whether the plaintiff proves that the suit properties are joint family properties of himself and defendants?

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Whether the plaintiff proves that, he is in joint possession and enjoyment of the suit properties on the date of filing of the suit?

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Whether the plaintiff is entitled to get 1/3^rd share in the suit properties?

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Whether the defendant No.1 proves that, the land to the extent of 1 acres 4 guntas in Sy.No.379/1 of Yenagi village is his self acquired property?

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Whether the defendant No.1 proves that, the defendant No.1 has purchased 1 acre 4 guntas in Sy.No.379/1 of Yenagi village in his name?

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Whether the defendant No.1 proves that, there is already partition took place in the family on 12.04.1991 and parties to the suit are enjoying their respective shares since from the date of partition?

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Whether the defendant No.1 proves that, after partition he has improved the property fallen to his share by investing the huge amount after the partition?

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What order or decree?

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REASONINGS OF TRIAL COURT:

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The Trial Court has decreed the suit by granting

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1/6^th share each to the plaintiff and defendant Nos.1 to 5.

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The Trial Court held that defendant No.1 has failed to prove there was previous partition in the family as pleaded by defendant No.1. Though defendant No.1 has produced photocopy of the previous partition deed, it is not marked since the said document is not registered one. Therefore, by holding so the Trial Court has come to conclusion that defendant No.1 has failed to prove that there was previous partition, thus, decreed the suit.

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REASONINGS OF FIRST APPELLATE COURT:

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Being aggrieved by it, defendant No.1 has preferred regular appeal before the First Appellate Court. The First Appellate Court after re-appreciating the evidence on record has dismissed the appeal and thereby confirmed the judgment and decree passed by the Trial Court. The reasons assigned by the First Appellate Court is that defendant No.1 has failed to prove previous partition, though defendant No.1 has produced Apsat Vatni Patra dated 12.04.1991 but it is not at all marked for want of registration. Therefore, the partition deed must be registered one under the Registration Act, 1908, but the

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photocopy of the partition deed produced is unregistered one, and it is not got marked. Therefore, the First Appellate Court held that defendant No.1 has failed to prove previous partition and hence confirmed the judgment and decree passed by the Trial Court.

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Being aggrieved by it, defendant No.1 has

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preferred the present second appeal.

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SUBMISSIONS OF APPELLANT/DEFENDANT NO.1:

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Learned counsel for the appellants-defendants submitted that, defendant No.1 has pleaded that there was earlier partition on 12.04.1991 and by virtue of revenue entries-Ex.D-3 it is proved that there was partition in the family and it was acted upon, accordingly, the names of respective parties have been mutated in the revenue entries and according to this, the plaintiff and defendant Nos.1 and 2 are in respective possession and cultivating the lands, but these documents are over-looked by both the Trial Court and First Appellate Court. Further submitted that the Trial Court has committed an error in not marking the photocopy of Apsat Vatni Patra dated 12.04.1991 on the reason that it is a

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photocopy. Photocopy of any document is secondary evidence but it is to be tested with the parameters as per clause (2) of Section 63 of Indian Evidence Act. Therefore, submitted that photocopy of Apsat Vatni Patra produced is secondary evidence as per Section 63 of the Indian Evidence Act, but the Trial Court has not passed any order either to reject or to get it marked, during the trial, but simply mentioned that defendant No.1 has produced photocopy of Apsat Vatni Patra. Whether, this photocopy can be considered as secondary evidence or not, that is secondary aspect but the Trial Court out rightly rejected at the threshold and did not allow defendant No.1 to mark that document; therefore, defendant No.1 is denied of opportunity of proving the said secondary evidence of Apsat Vatni Patra. Had the Trial Court permitted defendant No.1 to mark the photocopy of Apsat Vatni Patra, then defendant No.1 would have proved the accuracy of it by laying foundation for production of secondary evidence and also proving its accuracy with the original, since it is the case of defendant No.1 that original of that lies with the plaintiff, but at the threshold the Trial Court has not permitted the

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defendant No.1 to get marked the said secondary evidence. Therefore, submitted that there are substantial questions of law involved regarding proving of previous partition through Exs.D-6 and D-7 and also the secondary evidence what the defendant No.1 intended to get marked; therefore, prays to allow the appeal by holding that there was partition in the family.

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SUBMISSIONS OF RESPONDENT/PLAINTIFFS:

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On the other hand, learned counsel for the plaintiff-respondent Nos.1 (A to D) submits that [during pendency of the appeal plaintiff died, therefore, his legal heirs were brought on record as respondents No.1 (A to D)]. Further, submitted that both the Trial Court and First Appellate Court are correct in holding that the said partition deed intended to be produced by defendant No.1 is unregistered document and therefore, both the Trial Court and First Appellate Court have correctly rejected the said evidence. Hence, defendant No.1 has failed to prove that there was earlier partition. Further, submitted that mere entries in the revenue records as per Exs.D-6 and D-7,

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cannot prove that there was previous partition and in this regard both the Trial Court and First Appellate Court are correct in rejecting the contention of defendant No.1 that there was earlier partition.

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Further it is submitted that though defendant No.1 has stated that there was previous partition, but it is only between the sons and the other three daughters have not been given any share; therefore, even though there was previous partition but daughters were not given share, hence it is unregistered partition, therefore, as per the judgment of Hon’ble Supreme Court in the case VINEETA SHARMA

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VS. RAKESH SHARMA & OTHERS, reported in (2020) 9

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SCC 1, decree of the suit by granting 1/6^th share each to the plaintiff and defendant Nos.1 to 5 is correct, which needs no interference, therefore prays to dismiss the appeal.

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Further, learned counsel for respondent Nos.1 (A to D) submitted that on denial of marking the secondary evidence of Apsat Vatni Patra, defendant No.1 has not raised any plea in the first appeal; therefore, defendant No.1 is not

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entitled to raise that ground in the second appeal, therefore,

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prays to dismiss the appeal.

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SUBSTANTIAL QUESTIONS OF LAW:

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Upon hearing the submissions of both the parties

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and after perusal of records, the following substantial questions of law arises for consideration:

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a) Whether, under the facts and circumstances involved in the case, both the Trial Court and First Appellate Court are justified in not permitting defendant No.1 to mark Apsat Vatni Patra dated 12.04.1991, when it is tendered by defendant No.1 during trial before the Trial Court on the reason that, the said Apsat Vatni Parta is a photocopy?

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b) Whether, under the facts and circumstances involved in the case, in trial, photocopy is produced by defendant No.1 to prove its relevancy but rejecting to get it marked at threshold thus, completely keeping outside the purview of consideration of the case, because the said document is photocopy, is justified?

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c) Whether, under the facts and circumstances involved in the case, defendant No.1 has proved there was previous partition on 12.04.1991 and the suit item No.3 land bearing Sy.No.317/1 measuring 01 acre 04 guntas is selfacquired property of defendant No.1?

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ANALYSIS:

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The relationship between the parties in not in dispute. Mugappa is the original propositus who has three sons and three daughters. Plaintiff is the third son and defendants are brothers and sisters of plaintiff. It is not disputed that the plaintiff and defendants are coparceners. The plaintiff is contending that the suit schedule properties are joint family and ancestral properties, but defendant No.1 is contending that there was previous partition on 12.04.1991 and the suit item No.3 property bearing Sy.No.379/1 measuring 01 acre 04 guntas is self-acquired property of defendant No.1 as it was purchased by him in the year 1999 for valuable consideration after the partition. Therefore, it is sum and substance of contention of defendant No.1 that the suit schedule item No.3 property is self-acquired property of defendant No.1 and is not amenable for partition.

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It is tried a lot to mention here that when the plaintiff has filed suit for partition by contending that the suit properties are joint family and ancestral properties,

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presumption arises that acquisition of properties by joint family nucleus and that is to be established by the plaintiff himself. Because there is presumption of joint family, but there is no presumption regarding joint family properties. Even being coparceners of the joint family, coparceners may acquire the property independently on their own source. In this context, it is burden on the plaintiff to prove that with the joint family nucleus and fund suit properties are acquired. In order to show that what are the joint and ancestral properties, what would be the income from those properties and whether, the said income/fund is sufficient to purchase property after maintaining the family or if there was any surplus fund so as to acquire are all to be proved. In this regard, I place reliance on the judgment of Hon’ble Supreme Court in the case of APPASAHEB IRAPPA CHANDAGAD VS. DEVENDRA IRAPPA CHANDAGAD reported in AIR 2007 SC 218. In similar circumstances where the suit is filed for partition and separate possession, the Hon’ble Supreme Court discussed at Para Nos.9, 10 and 11 as follows:

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“9. So far the legal proposition is concerned, there is no gain saying that whenever a suit for partition and determination of share and possession thereof is filed, then the initial burden is on the plaintiff to show that the entire property was a joint Hindu family property and after initial discharge of the burden, it shifts on the defendants to show that the property claimed by them was not purchased out of the joint family nucleus and it was purchased independent of them. This settled proposition emerges from various decisions of this Court right from 1954 onwards.

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In the case of Srinivas Krishnarao Kango v. Narayan Devli Kango and Ors. , REPORTED IN air 1954 sc 379, their Lordships held that proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property. Therefore, so far as the proposition of law is concerned, the initial burden is on the person who claims that it was joint family property but after initial discharge of the burden, it shifts to the party who claims that the property has been purchased by him through his own source and not from the joint family nucleus. Same proposition has been followed in the case of Mst. Rukhmabai v. Lala Laxminarayan and Ors. reported in air 1960 sc 335 wherein it was observed as follows:

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There is a presumption in Hindu Law that a family is joint. There can be a division in status among the members of a

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joint Hindu family by definement of shares which is technically called "division of status", or an actual division among them by allotment of specific property to each one of them which is described as "division by metes and bounds". A member need not receive any share in the joint estate but may renounce his interest therein; his renunciation merely extinguishes his interest in the estate but does not affect that status of the remaining members vis-a-vis the family property. A division in status can be effected by an unambiguous declaration to become divided from the others and that intention can be expressed by any process. Though prima facie a document clearly expressing the intention to divide brings about a division in status, it is open to a party to prove that the said document was a sham or a nominal one not intended to be acted upon but was conceived and executed for an ulterior purpose. But there is no presumption that any property, whether moveable or immoveable, held by a member of a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint family property.

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Similarly, in the case of Achuthan Nair v. Chinnammu Amma and Ors. Reported in AIR 1966 SC 411, their Lordships held as follows:

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“Under Hindu law, when a property stands in the name of a member of a joint family, it is incumbent upon those asserting that it is a joint family property to establish it. When it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition, the law raises a presumption that it is a joint family property and the onus is shifted to

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the individual member to establish that the property was acquired by him without the aid of the said nucleus. This is a well settled proposition of law.”

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Similarly, in the case of Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe and Ors. , their Lordships have held that the character of any joint family property does not change with the severance of the status of the joint family and a joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned amongst the co-sharers. By a unilateral act it is not open to any member of the joint family to convert any joint family property into his personal property.

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In the case of Surendra Kumar v. Phoolchand (dead) through LRs and Anr. reported in (1996)2 SCC 491 their Lordships held as follows:

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“It is no doubt true that there is no presumption that a family because it is joint possessed joint property and therefore the person alleging the property to be joint has to establish that the family was possessed of some property with the income of which the property could have been acquired. But such a presumption is a presumption of fact which can be rebutted/ But where it is established or admitted that the family which possessed joint property which from its nature and relative value may have formed sufficient nucleus from which the property in question may have been acquired, the presumption arises that it was the joint property and the burden shifts to the party alleging selfacquisition to establish affirmatively that the property was acquired without the aid of the joint family.”

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Therefore, on survey of the aforesaid decisions what emerges is that there is no presumption of a joint Hindu family but on the evidence if it is established that the property was joint Hindu family property and the other properties were acquired out of that nucleus, if the initial burden is discharged by the person who claims joint Hindu family, then the burden

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shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property by cogent and necessary evidence.”

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But the plaintiff has not pleaded that what would be the joint family nucleus fund whether was it sufficient for purchasing property after maintaining the family or there was surplus fund so as to acquire the property for and behalf of joint family. Absolutely there is no pleading and evidence by the plaintiff.

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On the other hand, it is pleaded by defendant No.1 that the suit schedule item No.3 property bearing Sy.No.379/1 is acquired separately by defendant No.1 in the year 1999 for valuable consideration after family partition on 12.04.1991. Defendant No.1 has produced Ex.D-3 which is the mutation order stating that there was partition between the plaintiff and defendant Nos.1 and 2 and accordingly their names were mutated as per vardi made before the revenue authorities. Admittedly, defendants No.3, 4 and 5 who are daughters have not been given share in the suit properties. But, defendant No.1 banking upon Ex.D-3 stated that there was earlier partition which was reduced into writing and thus

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it is memorandum of partition and is not compulsorily required to be registered. Therefore, according to that memorandum of partition, vardi is submitted to the revenue authorities and accordingly, names of the plaintiff and defendant Nos.1 and 2 were entered and all these three properties are in their separate possession and enjoyment. Defendant No.1 has taken contention that there was partition in the family and it was reduced into as memorandum of partition under the name and stayed as Apsat Vatni Patra. In order to prove this fact in issue, defendant No.1 has produced photocopy of the same before the Trial Court during trial, when defendant No.1 is called upon to give evidence, but the Trial Court in the course of trial has just received the said Apsat Vatni Patra and placed on record without permitting the defendant No.1 for marking as exhibit in the trial. The said Apsat Vatni Patra is available on record but it is unmarked. To this extent defendant No.1 has discharged his duty by producing Apsat Vatni Patra to the Court for proving his contention taken in the written statement. Though it is photocopy of the same, the Trial Court ought to have made some observations whether, it is

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permitted to be marked or not permitted to be marked, but without passing any order on this aspect simply kept in record. In the deposition of defendant No.1 being examined DW-1, the Trial Court has noted down that the photocopy of Apsat Vatni Patra is produced. Though this Apsat Vatni Patra is photocopy obtained through mechanical processes is amounting to secondary evidence as per Section 63 of the Indian Evidence Act. Whether, this Apsat Vatni Patra is relevant or not, that is to be considered after getting it marked, but just receiving and placing on record and without permitting to mark the same and not making any comment upon it, is not correct approach of the Trial Court.

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Clause (2) of Section 63 of the Indian Evidence Act reads as follows:

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Section (63) - Secondary evidence means and includes;

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“(1)” x x x

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“(2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;”

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Therefore, defendant No.1 has intended to produce and according to him Apsat Vatni Patra is secondary

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evidence. Whether it is secondary evidence or not is the question to be considered. Whether is it relevant or not, the Trial Court had to make some order on it. But the Court cannot presume that it cannot be marked on the reason that it is photocopy. Whether is it amounting to secondary evidence or not ought to have been expressly passed order by the Trial Court, but simply keeping the same on record is not correct approach. When party tenders a document, it may be photocopy but the Court has to decide whether it is relevant or not and admissible or not; but presuming that it is a photocopy not permitting the defendant No.1 to get it marked is not correct approach. Mere production of photocopy as a secondary evidence is not sufficient, but that is subject to conditions enumerated in clause (2) of Section 63 of the Indian Evidence Act. But before that when photocopy is produced that ought to have been marked and take decision on it. But the Trial Court has not done so; therefore, the Trial Court has failed in its duty to receive the evidence and consider the same in accordance with law. In the cross examination of DW-1, he had stated that he has produced photocopy of the Apsat Vatni Patra. Therefore,

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defendant No.1 has done his duty attempting to prove his case what he has pleaded in the written statement. But the Trial judge at the threshold without making any comment upon it, shut the doors for defendant No.1 to prove what he has intended to prove according to his pleading. Whether photocopy is relevant or not, admissible or not that can be decided after receiving and marking the document. Marking the document and proving the document are two different aspects, but many times it is confused with marking of document is amounting to proving of fact; that is not so with the legal position. Marking of document in the trial has its own significance; inviting the other side to make comment upon it and inviting the Trial Judge to appreciate on it whether to accept the evidence or not during course of appreciation of evidence. Therefore, the Trial judge ought to have permitted the defendant No.1 to get the said document marked, otherwise it is amounting to denial of chance to the party to prove the facts according to what he pleaded in his pleadings. Therefore, in this regard the Trial Court has committed grave error in not permitting the defendant No.1 for marking the document. Its relevancy or otherwise is the

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next domain which is to be considered after marking the same. But before marking the same, forming opinion on it by the Trial judge is not correct. Therefore, in this regard, the approach of the Trial Court is not correct.

¶134

Though this legal point is not raised before the First Appellate Court but it is a substantial question of law to be considered. Therefore, raising this ground in the second appeal is permissible. Here, the Trial judge during trial process while receiving evidence has not followed the procedure of trial. Therefore, this goes to the root of the matter. Therefore, it is a substantial question of law, even if this ground is not urged in the first appeal but can be raised in the second appeal.

¶135

Though the plaintiff denied previous partition, but the very nature of suggestions made by the plaintiff to the DW-1 goes to prove that plaintiff has admitted his signature on the stamp paper. It is suggested by plaintiff to DW-1 that in order to make compromise of the issue, thumb impression of plaintiff was taken on the stamp paper and it is admitted as true. Further, the suggestions put by the plaintiff that the

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said stamp paper was used for the purpose of creating partition deed, though the suggestion is denied but the very suggestion that taking thumb impression on the stamp paper has proved that the plaintiff has put thumb impression on the stamp paper. Considering the suggestions of plaintiff put to DW-1 prove the fact that the plaintiff has admitted he has put thumb impression on the stamp paper, but the Trial judge has not allowed to mark the said document as discussed in detail above.

¶138

Ex.D-3 is the mutation entry that the properties were divided amongst the plaintiff, defendant No.1 and defendant No.2. Both the trial Court and the First Appellate Court have observed and gave the finding that plaintiff, defendant No.1 and defendant No.2 might have for their convenience formed the said Apsat Vatani Patra. The trial Court in the judgment at paragraph 21 has observed that on scrutiny of evidence, it appears that there was separation between the parties only for convenience of the parties. The said view is also taken by the First Appellate Court on its appreciation of evidence independently. Therefore, both the

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Trial Court and the First Appellate Court have come to the conclusion that there was severance in the joint family status and properties, but held that the property at item No.3 bearing Sy.No.379/1 to the extent of 01 acre 04 guntas is also joint family property and also amenable for partition. But admittedly, this property was purchased in the year 1999. Though the plaintiff has contended existence of joint family and joint family properties, but in what way the suit item No.3 property was purchased by joint nucleus fund is not explained and there is no evidence in this regard. Here the principle of law laid down by the Supreme Court in the case of Appasaheb case (supra) is squarely applicable in the present case. The plaintiff has not pleaded what was the income of joint nucleus fund and what was the surplus fund so as to purchase other property for and on behalf of joint family property. Therefore, in this context, though presumption regarding joint family can be raised but presumption regarding joint family property cannot be raised and it is to be pleaded and proved. Therefore, plaintiff has failed to prove the suit item No.3 property is joint family property.

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It is the case of defendant No.1 that there was

¶143

oral partition and later it was reduced into writing, thus became memorandum of partition and accordingly, report was given to the revenue authorities and in the revenue records, the said aspect of partition was entered. Ex.D-7 is the mutation entry goes to prove that plaintiff and defendant No.1 have raised loan independently on their lands. Therefore, defendant No.1 has proved that the suit item No.3 property is not joint family property.

¶144

The daughters were not given any share in the joint family property. Though it is contended by the defendant No.1 that there was partition, it is only between the plaintiff, defendant No.1 and defendant No.2, by this severance in the family, defendant No.1 might have acquired the suit item No.3 property bearing Sy.No.379/1 but the partition was inequitable distribution of property as per previous partition as contended by defendant No.1. Therefore, defendant Nos.3, 4 and 5 being coparceners are also entitled for share in the suit property, except the land in Sy.No.379/1 measuring 01 acre 04 guntas. Therefore, in

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this regard, defendant No.1 has proved that he has purchased item No.3 property bearing Sy.No.379/1 out of his own fund exclusively for himself and therefore, this is not amenable for partition. Hence, the suit is to be decreed in respect of other properties excluding the land in Sy.No.379/1 above stated. Therefore, both the Trial Court and the First Appellate Court are not justified in not permitting defendant No.1 to mark Apsat Vatni Patra dated 12.04.1991 when it is tendered by defendant No.1 during the trial only on the reason that it is a photocopy. Accordingly, I answer substantial question of law Nos.(a) and (b) in the Negative. For the reasons discussed above, defendant No.1 has proved that there was previous partition on 12.04.1991 and therefore, the suit item No.3 land bearing Sy.No.317/1 is self-acquired property of defendant No.1. Accordingly, I answer substantial question of law No.(c) in the Affirmative. While answering the substantial questions of law above stated, the appeal is liable to be allowed in part.

¶147

The impleading applicants being wife and daughter of deceased appellant have filed I.A.No.4/2019 for

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impleading themselves in the appeal with a contention that they are wife and daughter of deceased-appellant. Here in this case, whether the appellant is entitled to exclusive ownership of Sy.No.379/1 or whether it is amenable for partition, is only the question considered in this case. Therefore, if the impleading applicants have right of share in other properties that is to be claimed only through the share of the appellant in appropriate forum. At the most, applicants’ right is to be crystalised only through the deceased appellant by not affecting other coparceners. Therefore, liberty is reserved to the impleading applicants to work out their remedy in appropriate forum. Accordingly, I.A.No.4/2019 is disposed of. Hence, I proceed to pass the

¶150

following:

¶151

ORDER

¶152

i. RSA No.100868/2014 is allowed-in-part.

¶153

ii. The judgment and decree dated 07.07.2012 passed in O.S.No.22/2007 by the Senior Civil Judge, Saundatti, which is confirmed by the First Appellate Court, is modified to the extent that plaintiff and defendant

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Nos.1 to 5 are entitled 1/6^th share each in all the properties except the land in Sy.No.379/1 to the extent of 01 acre 04 guntas situated in Yendegi village of Saundatti taluk.

¶156

iii. No order as to cost.

¶157

iv. Draw decree accordingly.

¶158

Sd/(HANCHATE SANJEEVKUMAR) JUDGE

¶159

SRA: Para 1 to 20 KGK: Para 21 to end CT:GSM List No.: 2 Sl No.: 1

Basavanneppa S/O Moogappa Udakeri, v. Somappa Mugappa Udakeri

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Basavanneppa S/O Moogappa Udakeri, v. Somappa Mugappa Udakeri

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