Sri J Shivaramegowda Vs Sri J Ramakrishnegowda — Karnataka HC (2025) — LawSathi Research

Sri J Shivaramegowda Vs Sri J Ramakrishnegowda — Karnataka HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

None to the appellants; the second appeal is dismissed and the First Appellate Court's modified decree granting 1/7th share each to the plaintiffs in the suit schedule properties stands.

Issue for consideration

Whether the second appeal, directed against the concurrent findings of the Trial Court and the First Appellate Court, discloses any ground for admission and framing of a substantial question of law. +3 more

Court's answer

No error is found in the Trial Court and the First Appellate Court appreciating the oral and documentary evidence on record and concluding that the suit properties are ancestral properties.

Ratio / Principle

There is no ground to admit the second appeal or to frame any substantial question of law, both questions of fact and law having been considered by the Trial Court and the Appellate Court.

Key takeaways

The denial of the signature on Ex.P.15 (palu parikath) while pleading an earlier partition is contrary to the defendant's own defence, undermining the earlier-partition claim.ratio¶73
Once the defence is taken that a property is self-acquired, the burden is on the defendants to prove purchase out of independent income; defendant No.2 never entered the witness box and placed nothing on record, so the claim that item No.9 was her self-acquired property was not substantiated.ratio¶87
The deposition of Kempamma in O.S.No.81/1991 cannot be considered as additional evidence in this case as it pertains to another case; additional evidence is considered only if it bears on the germane issues involved in the case.

Detailed headnote1 paragraphs

Partition - Hindu joint family - second appeal under Section 100 CPC against concurrent findings. Plaintiffs sued (O.S.No.11/1994, Principal Civil Judge and JMFC, Malavalli) for partition claiming the suit properties were ancestral joint family properties; defendants pleaded an earlier partition (palu parikath, Ex.P.15 dated 05.05.1977) and that item No.9 was the self-acquired property of defendant No.2 (purchased under registered sale deed dated 23.01.1989, Ex.D.19, from the wife of plaintiff No.2). Held: the defendant's denial of his signature on Ex.P.15 was contrary to his own defence; nothing was placed on record to prove the earlier partition, all records standing in the name of defendant No.1 as kartha of the family; on item No.9, the burden of proving self-acquisition lay on the party asserting it, and defendant No.2 never entered the witness box nor produced evidence of independent income. The deposition of Kempamma in O.S.No.81/1991 was inadmissible as additional evidence, pertaining to another case. Following the principles in Appasaheb Peerappa Chandgade (MANU/SC/8597/2003) and RFA No.1518/2005 (MANU/KA/4392/2022), no substantial question of law arose; the second appeal was dismissed, upholding the First Appellate Court's modification awarding 1/7th share each to the plaintiffs.

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11^TH DAY OF DECEMBER, 2025

BEFORE

THE HON'BLE MR. JUSTICE H.P.SANDESH

REGULAR SECOND APPEAL NO.1646 OF 2023 (PAR)

BETWEEN:

SRI. J. SHIVARAMEGOWDA,

S/O LATE POLICE JAVARAYI GOWDA, SINCE DEAD BY HIS LRS.

1(a) SRI. S. SHIVAKUMARASWAMY, S/O LATE J. SHIVARAME GOWDA, AGED ABOUT 54 YEARS, R/O CHANNAPATNA MAIN ROAD, NEAR SHAMBULINGESHWARA TEMPLE, KONNAPURA VILLAGE, MALAVALLI TALUK, MANDYA DISTRICT-571421.

Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

1(b) SMT. THAYAMMA, W/O RAMESH, D/O LATE J. SHIVARAMEGOWDA, AGED ABOUT 52 YEARS, R/O HULLEGALA VILLAGE, MALAVALLI TALUK, MANDYA DISTRICT-571421.

SMT. JAYAMMA, W/O SHIVARAMEGOWDA J, AGED ABOUT 75 YEARS, R/AT KONNAPURA VILLAGE, HALAGURU HOBLI, MALAVALLI TALUK-571421.

…APPELLANTS

(BY SRI. ANAND N.S., ADVOCATE)

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AND:

SRI. J. RAMAKRISHNEGOWDA, S/O LATE POLICE JAVARAYIGOWDA, AGED ABOUT 71 YEARS, R/O KONNAPURA VILLAGE, HALAGUR HOBLI, MALAVALLI TALUK, MANDYA DISTRICT-571421.

SRI. HANUMANTHE GOWDA, S/O LATE POLICE JAVARAYIGOWDA, AGED ABOUT 68 YEARS, RETIRED HEADMASTER, R/O. MUTTETHARAYA NILAYA, 7^TH CROSS, V.V.NAGARA, KALLAHALLI, MANDYA CITY-571426.

SMT. JAYALAKSHMAMMA, W/O LATE MAYIGOWDA, AGED ABOUT 70 YEARS, R/O RAMAMANDIRA BEEDI, KONNAPURA HALAGURU HOBLI, MALAVALLI TALUK-571421.

SMT. GOWRAMMA, W/O LATE CHIKKATHIMMEGOWDA, AGED ABOUT 67 YEARS, R/O RAMAMANDIRA BEEDI, KONNAPURA HALAGUR HOBLI, MALAVALLI TALUK-571421.

SMT. BHAGYAMMA, W/O PATEL PUTTEGOWDA, AGED ABOUT 65 YEARS, BEHIND KAVERI WINE STORE BUILDING, THOREKADANA HALLI VILLAGE, HALAGURU HOBLI, MALAVALLI TALUK-571421.

SMT. SUNDARAMMA, W/O LATE NAGARAJU, AGED ABOUT 64 YEARS,

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R/O KEMBUTHAGERE VILLAGE, KASABA HOBLI, MALAVALLI TALUK-571475.

…RESPONDENTS

(BY SRI. SHIVA PRASAD M., ADVOCATE FOR C/R1)

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 13.07.2023 PASSED IN R.A.NO.6/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, MALAVALLI, DISMISSING THE APPEAL AND CONFIRMING WITH MODIFYING THE JUDGMENT AND DECREE DATED 30.11.2019 PASSED IN O.S.NO.11/1994 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, MALAVALLI.

THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

ORAL JUDGMENT

This matter is listed for admission. Heard the learned counsel for the appellants and the learned counsel for the caveator/respondent No.1.

This second appeal is filed against the concurrent finding of the Trial Court and the First Appellate Court.

The factual matrix of the case of the plaintiffs before the Trial Court while seeking the relief of partition and separate possession, it is contended that the plaintiffs and the defendants are the members of the joint family and they

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constitute a joint family and the suit schedule properties are the joint family properties. Item Nos.1 to 8 and 10 have fallen to the share of defendant No.1. It is contended that schedule item No.9 is the self-acquired property of defendant No.2. In view of the defence taken, the suit is bad for non-joinder of necessary parties. The Trial Court granted an opportunity to both the parties to substantiate their contention. The Trial Court having considered the material on record, comes to the conclusion that the plaintiffs and the defendants constitute a joint family and the suit schedule properties are the properties belonging to the family and did not accept the contention of the defendants that there was already a partition, since the very defendant denied the signature available in the document of Ex.P.15, which is marked as palu parikath. The claim of the defendants that item No.9 is the self-acquired property of defendant No.2 is also not accepted and comes to the conclusion that the suit schedule properties belongs to the family and granted the relief in favour of plaintiff Nos.1 and 2.

Being aggrieved by the said judgment and decree,

an appeal is filed before the First Appellate Court. The First

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Appellate Court having considered the grounds which have been urged in the appeal memo, formulated the points whether the plaintiffs have established that they and defendant Nos.1, 3 to 6 are the members of the joint family, whether the suit item No.1 to 8 and 10 fallen to the share of defendant No.1 as contended by defendant No.1 and suit item No.9 is the selfacquired property of defendant No.2, whether defendant Nos.1(a), 1(b) and 2 establishes that the suit is bad for nonjoinder of necessary parties and mis-joinder of unnecessary parties and non inclusion of properties, whether defendant Nos.1(a) and 1(b) and 2 established that suit is barred by limitation and whether the Trial Court has committed an error in allotting 2/7^th share each to the plaintiffs in the suit schedule properties and whether the impugned judgment requires interference. The First Appellate Court having considered both oral and documentary evidence placed on record, answered point No.1 in the affirmative that the plaintiffs and defendant Nos.1, 3 to 6 are the members of joint family and answered point Nos.2 to 4 in the negative and point Nos.5 and 6 partly in the affirmative and modified the judgment of the Trial Court granting 1/7^th share each in the suit schedule properties.

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Being aggrieved by the concurrent finding, the present second appeal is filed before this Court.

The main contention of the learned counsel for the appellants before this Court is that both the Courts failed to consider the material on record. The learned counsel would vehemently contend that both the Courts committed an error in decreeing the suit for partition when the plaintiffs themselves produced the previous palupatti of the year 1977 and admitted the papupatti of 1977 in the pleadings of the previous suit. The learned counsel contend that both the Courts committed an error in coming to the conclusion that item No.9 was the joint family property when both the Courts themselves had come to a conclusion that there was no evidence of income from the properties and thereafter, wrongly shifted the burden on appellant No.2 to prove the acquisition of item No.9 as her selfacquired property. The learned counsel vehemently contend that when the suit was barred by limitation, ought not to have entertained the same. The suit was filed in the year 1994 and partition was taken place in the year 1977 and issue of limitation also not considered by both the Courts.

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Per contra, the learned counsel appearing for the caveator/respondent No.1 would vehemently contend that both the Courts have taken note of the material available on record. All the records stands in the name of defendant No.1 and defendant No.1 is the elder member of the family. All the documents are in the name of defendant No.1, who is the kartha of the family. The learned counsel would contend that both the Courts comes to the conclusion that material available on record is sufficient to show that the properties are ancestral properties and defendant No.2 was not having any independent income to purchase item No.9 property and to prove the fact that defendant No.1, who is the kartha of the family, had purchased the property, not placed any material before the Court. An observation is made by the First Appellate Court that he did not choose to enter the witness box.

The learned counsel also relied upon the judgment

of the Apex Court in the case of APPASAHEB PEERAPPA

CHANDGADE v. DEVENDRA PEERAPPA CHANDGAGE AND

OTHERS reported in MANU/SC/8597/2003 , wherein it is held that initial burden of proof the existence of any right is on

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the party who is claiming the right and if this party successfully discharge this burden, then this burden shifts on the party denying the this right. The learned counsel also brought to the notice of this Court paragraph No.6, wherein the Apex Court held that 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 out of independent of them. This settled proposition emerges from various decisions of this Court right from 1915 onwards.

The learned counsel also relies upon the judgment of this Court passed in RFA No.1518/2005 dated 23.09.2022 reported in MANU/KA/4392/2022, wherein this Court made an observation that party, who claims that it is a self-acquired property and he was having independent source of income and that he had purchased the property out of his own income, has

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not substantiated the same by producing any document and Trial Court has not committed any error in coming to such a conclusion. When the person asserts the same, he has to prove the same and the learned counsel brought to the notice of this Court paragraph No.29 of the judgment.

Having heard the learned counsel for the appellants and the learned counsel for the caveator/respondent No.1 and considering the material on record, particularly the pleadings of parties, it is the specific case of the plaintiffs that the plaintiffs and the defendants constitute Hindu undivided joint family and suit schedule properties are the joint family properties. There is no dispute with regard to the fact that the properties are ancestral properties. But only contention was taken by the defendants that already there was a partition in the joint family and that suit schedule item Nos.1 to 8 and 10 had fallen to the share of defendant No.1. When the witness was crossexamined, the document of Ex.P.15 was confronted to the appellant and the same was totally denied by him and hence, the Trial Court and the First Appellate Court taken note of the fact that when the specific pleading was taken that there was

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already a partition and when the document was confronted, he did not accept the same and he denies the same and hence, comes to the conclusion that the very denial itself is contrary to his own defence. Apart from that, in order to prove the factum of earlier partition is concerned, nothing is placed on record and all the documents stands in the name of defendant No.1. It is not in dispute that defendant No.1/appellant is the first son of Javarayigowda and plaintiff Nos.1 and 2 are his brothers and others are sisters. The Trial Court considered the material with regard to the nature of the property is concerned and no doubt, in respect of item No.9 of the property is concerned, the same was sold by the wife of plaintiff No.2 and also earlier there was

a registered sale deed dated 23.01.1989 purchased by defendant No.2 from one Sakdevamma i.e., wife of plaintiff No.2. In order to prove the factum that the same was purchased out of her own income, nothing is placed on record. Apart from that, the First Appellate Court also considered that witness did not enter into the witness box in order to prove the fact that the same is the self-acquired property. The material also not furnished before the Trial Court as well as the Appellate Court with regard to parties have acted upon in terms

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of the partition. No documents are placed that in terms of the earlier partition, properties are standing in the name of the plaintiffs and other family members. All the documents stands in the name of defendant No.1 only. The fact that defendant No.1 is the head of the family is not in dispute, since he being the elder member of the family. These are the factors which were taken note of by the Trial Court.

The First Appellate Court also re-assessed the material on record keeping in view the contentions urged by the appellant and formulated the point regarding nature of the properties is concerned as well as whether item No.9 of the property is the self-acquired property of defendant No.2 as contended by defendant No.2. Even an observation is made while considering the material on record in paragraph No.26, when the defence was taken that item No.9 property is the selfacquired property of defendant No.2. But, the said property was purchased when defendant No.1 was managing the family as kartha. The Trial Court also made an observation with regard to the said fact is concerned. On perusal of Exs.P.2 to 9 records of rights with respect to the suit schedule properties

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show that they are standing in the name of defendant No.1. In Exs.P.2 to 5 mentioned that the khatha has been accepted in his name vide M.R.No.23/15/12/1969 by inheritance. Only in Ex.P.4 mentioned that same has been accepted as per partition. In Exs.P.5 and 6 mentioned that khatha has been mutated by way of inheritance vide M.R.No.20/1969-70. Ex.P.10 is the demand register extract standing in the name of defendant No.2. All these materials were taken note of by the First Appellate Court. Even during the cross-examination of D.W.1, when the document of Ex.P.15 was confronted to him, he denied his signature. He has denied the paluparikath dated 05.05.1977, though he claims that earlier there was a partition in the year 1969 itself. When he himself denies that document and when he pleads that there was earlier partition, but he did not accept the document, which was confronted to him and the same is also taken note of by the First Appellate Court. The First Appellate Court in paragraph No.37 taken note of that on perusal of Ex.D.19 sale deed dated 23.01.1989, it reveals that defendant No.2 had purchased suit item No.9 property from the wife of plaintiff No.2. But the contention of the plaintiffs is that the said property is also joint family property purchased in the

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name of defendant No.2. In order to substantiate the contention of the defendants that item No.9 property is the self-acquired property of defendant No.2, defendant No.2 never entered the witness box and chosen to depose as to how the said properties become her self-acquired property. Once the defence was taken that the property is the self-acquired property, burden is on the defendants to prove that the same is the self-acquired property and also the same is purchased out of independent income.

The learned counsel for the caveator/respondent No.1 also brought to the notice of this Court the judgment of the Apex Court as well as this Court referred supra, wherein both the Courts have held that once pleading was made that it is a self-acquired property, the same has to be proved by the party, who asserts the same and the same has not been done. When such being the case, I do not find any error on the part of the Trial Court and the First Appellate Court in appreciating both oral and documentary evidence available on record in coming to the conclusion that the properties are ancestral properties. There is no dispute with regard to the properties

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are ancestral properties and only contention in respect of item No.9 is that the same is the self-acquired property of defendant No.2 and the same is also not substantiated. Both the question of fact and question of law was considered by both the Trial Court as well as the Appellate Court and hence, I do not find any ground to admit the second appeal and frame any substantial question of law.

The learned counsel for the appellants would vehemently contend that deposition of Kempamma was given in O.S.No.81/1991 and the same can be considered as additional evidence by filing an application and also the document of palapatti. The evidence given by Kempemma in O.S.No.81/1991 cannot be considered as additional evidence in this case, as the same is pertaining to some other case and hence, I do not find any ground to consider the same and the same will not twist the result of the case. The additional evidence will be considered, if it is in respect of germane issues involved in the case for deciding the case and hence, no ground is made out.

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In view of the discussions made above, I pass the

following:

ORDER

The second appeal is dismissed.

Sd/(H.P.SANDESH) JUDGE

RHS/MD List No.: 1 Sl No.: 30