Sri Lingappa Vs Smt. Lakshmamma

SMT. ASHWATHAMMA, W/O MUNIYAPPA, AGED ABOUT 55 YEARS, R/A RAJANAKUNTE AGRAHARA VILLAGE, HESSARAGHATTA HOBLI, BANGALORE NORTH TALUK - 560064. LRS OF DECEASED LINGAPPA.

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…APPELLANTS

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(BY SRI D L N RAO, SR.ADVOCATE FOR SRI SRINIVASA C, ADVOCATE)

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AND:

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SMT LAKSHMAMMA, W/O MUNIKRISHNA, AGED ABOUT 53 YEARS,

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HC-KAR

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SMT. SAVITHRAMMA, W/O SHIVANNA, AGED ABOUT 52 YEARS.

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SMT SHANTHAMMA, W/O KEMPEGOWDA, AGED ABOUT 50 YEARS, 1 TO 4 ARE RESIDING AT ARALUMALLIGE VILLAGE, KASABA HOBLI, DODDABALLAPURA TALUK - 561203, BENGALURU RURAL DISTRICT.

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SMT. RAMAKKA, W/O LATE LAKSHMAIAH, AGED ABOUT 48 YEARS, SINCE DEAD BY HER LRS

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4(a) SMT KRISHNAMMA, W/O ANJINAPPA, D/O LATE RAMAKKA, AGED ABOUT 47 YEARS, RESIDING AT BETTENAHALLI VILLAGE, HEGGANAHALLI HOBLI, DEVANAHALLI TALUK, BENGALURU RURAL DISTRICT - 562110.

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4(b) SMT CHANDRAMMA, W/O HUCHAPPA, D/O LATE RAMAKKA, AGED ABOUT 45 YEARS, RESIDING AT NO.120/A, BENGALURU, BENGALURU - 562149.

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4(c) SMT LAKSHMMA, W/O KEMPANNA, D/O LATE RAMAKKA, AGED ABOUT 43 YEARS, RESIDING AT KASUVANAHALLI VILLAGE, DODDABALAPURA TALUK, VEERAPURA POST, BENGALURU RURAL DISTRICT - 561203.

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HC-KAR

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4(d) SMT KAMALAMMA, W/O SURESH, D/O LATE RAMAKKA, AGED ABOUT 41 YEARS, RESIDING AT ARALLUMALLIGE VILALGE, DODDABALLAPURA TALUK, BENGALURU RURAL DISTRICT - 561203.

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4(e) SMT NAGAMMA, D/O LATE RAMAKKA, AGED ABOUT 40 YEARS, RESIDING AT: THIPPURU VILLAGE, DODDABELAVANGALA HOBLI, DODDABALAPURA TALUK, BENGALURU RURAL DISTRICT - 561203.

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4(f) SMT VIMALAMMA, D/O LATE RAMAKKA, AGED ABOUT 37 YEARS, RESIDING AT ARALLUMALLIGE VILLAGE, DODDABALAPURA TALUK, BENGALURU RURAL DISTRICT - 561203.

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SRI NARAYANAPPA (DEAD)

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SMT KAMALAMMA, D/O NARAYANAPPA, W/O JAYARAM, AGED ABOUT 38 YEARS, RESIDING AT BETTENAHALLI VILLAGE, JALA HOBLI, DODDABALLPUR TALUK - 561203.

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SRI MALLESHA, S/O NARAYANAPPA, AGED ABOUT 34 YEARS, R/AT TAUNASE AGRAHARA, YELAHANKA HOBLI, BANGALORE NORTH TALUK - 560 064.

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HC-KAR

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SRI HARISH, S/O NARAYANAPPA, AGED ABOUT 34 YEARS,

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SMT RADHAMMA, D/O NARAYANAPPA, AGED ABOUT 30 YEARS,

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SRI MANJUNATHA, S/O NARAYANAPPA, AGED ABOUT 28 YEARS, RESPONDENT NO.7 TO 9 ARE RESIDING AT S.M.GOLLAHALLI VILLAGE, KASABA HOBLI, DODDABALLAPUR TALUK - 561203.

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…RESPONDENTS

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(BY SRI S NAGARAJA, ADVOCATE FOR R1 TO R3; SRI B THYAGARAJA, ADV. FOR R4 (a to f) & R5 TO R8, R9- SERVICE OF NOTICE IS DISPENSED WITH V.C.O DT 28.07.2025)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGEMENT DECREE DTD 7.9.2013 PASSED IN R.A.NO.56/2011 ON THE FILE OF THE IV ADDL. DISTRICT SESSIONS JUDGE, DODDABALLAPUR, BANGALORE RURAL DISTRICT, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 12.1.2011 PASSED IN O.S.NO.160/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE JMFC., DODDABALLAPUR.

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

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CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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HC-KAR

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ORAL JUDGMENT

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This appeal is filed against the concurrent finding in a suit for partition and separate possession. Hence, defendants No.1, 3 and 4 are before this Court.

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This appeal was admitted on 13.10.2022 to answer the following substantial question of law.

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Whether the Trial Court as well as the First Appellate Court are justified in holding that the suit scheduled properties are ancestral properties of the plaintiffs and thereby justified in granting relief of partition in favour of the plaintiffs?

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Certain facts are admitted.

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3.1 The suit is filed by four sisters against defendant

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No.1, their father, defendants No.2 and 3, their sisters and defendant No.4, the son of defendant No.2. Defendant No.5 is said to be the brother of defendant No.1.

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3.2 The suit is filed on the premise that the suit properties are joint family properties acquired out of the joint family income and the plaintiffs assisted their father i.e., defendant No.1 purchase the properties. Accordingly, suit is

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HC-KAR

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filed claiming partition on the premise that the plaintiffs are also having equal share along with defendant No.1.

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3.3 The plaintiffs have also referred to the Gift Deed

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said to have been executed by defendant No.1 in favour of defendant No.4. However, no declaration is sought in respect of the alleged Gift Deed in favour of defendant No.4.

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Defendants No.1, 4 and 5 contested the suit. Defendant No.1 took a stand that the properties are the selfacquired properties Defendants No.1 and 4 also referred to the registered sale deeds dated 18.02.1963, 01.04.1963 and 01.02.1972 to contend that the properties covered under those deeds are the self-acquired properties of defendant No.1.

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As far as item No.4 property, it is urged that the said property is acquired by defendant No.1 by way of Darkast on 27.09.1994. Item No.5 bearing Sy.No.23 is stated be granted to defendant No.1 in the year 1974-1975. In so far as item No.6 property is concerned, it is stated be purchased by defendant No.1 on 22.01.1974.

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HC-KAR

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Based on these contentions, defendants No.1 and

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4 prayed for dismissal of the suit.

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The Trial Court framed five issues.

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First issue is whether the plaintiffs establish that

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the suit properties are the joint family ancestral properties acquired in the name of defendant No.1.

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The second issue is relating to the Gift Deed in favour of defendant No.4 executed by defendant No.1.

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The Trial Court came to a conclusion that the suit properties are the joint family properties and granted a decree for partition and separate possession of 1/7^th share.

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Aggrieved by the aforementioned judgment and decree, defendants No.1 to 4 filed Regular Appeal. The appeal was dismissed confirming the judgment and decree passed by the Trial Court. Hence, the Second Appeal by defendants No.1, 3 and 4.

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Learned Senior counsel appearing for the appellants would raise the following contentions:

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(a) Plaint averments do not disclose that the properties are the ancestral properties in the hands of defendant No.1. It is stated that the plaintiffs assisted defendant No.1 to purchase the property by contributing their income. No evidence is placed before the Court to show that the plaintiffs contributed their income to purchase the property in the name of defendant No.1. When the properties were purchased, some of the plaintiffs were minors and one of the plaintiffs was not even born.

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(b) It is not pleaded that defendant No.1 had ancestral property or income from the ancestral property which formed nucleus to purchase the properties in his name. The presumption under law is in favour of selfacquisition, and the burden is on the party who asserts that the properties are ancestral properties and the burden is not discharged by the plaintiffs in this case.

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(c) Defendant No.1 has executed a Gift deed in favour of defendant No.4 in respect of item No.1 and 2 of suit schedule properties and those properties being the self-

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acquired properties, the Gift Deed is acted upon. The executant of the Gift Deed has not disputed the Gift Deed and the Trial Court and First Appellate Court erred in granting a decree of partition in respect of the properties covered under the said Gift Deed.

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(d) During the pendency of the suit, item No.5 of the suit schedule is also sold and said property being the selfacquired property of defendant No.1, sale is also valid and there cannot be a decree for partition in respect of said property.

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(e) The property retained by defendant No.1 under the settlement deed is only 35 guntas and extent is so small that it is not sufficient to purchase items No.1 and 2 properties.

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(f) The admission of DW-1 in the cross-examination that the income from the properties granted and the income from the joint family properties was utilized to purchase the remaining properties is an erroneous admission, in as much as when the properties were

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HC-KAR

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purchased, the other properties were not yet granted to defendant No.1. Thus the nucleus was not sufficient

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to acquire the properties at items No.1 and 2.

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Learned Senior counsel appearing for the

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appellants has referred to the following judgments:

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(a) D.S.Lakshmaiah and Another vs. L.Balasubramanyam and Another¹

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(b) Ramappa Basappa Palled vs. Smt.Basava²

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(c) Shrinivas Krishnarao Kango vs. Narayan Devji Kango and others³

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(d) Dandappa Rudrappa Hampali vs. Renukappa @ Revannappa⁴

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Learned counsel appearing for the

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respondents/plaintiffs would urge that the defendant No.1 owned certain properties as joint family ancestral properties along with the remaining members of the family. In the year 1955, defendant No.1 executed a registered relinquishment

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deed relinquishing his share in other joint family properties

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1 (2003) 10 SCC 310

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2 ILR 1993 KAR 1865

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3 (1954) 1 SCC 544

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4 ILR 1993 KAR 1182

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HC-KAR

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and retained share in item Nos.3 and 6. In principle it is a partition and said document at Ex P12 reveals that the property retained by him is either ancestral or joint family property.

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It is also urged that the income derived from the properties retained by defendant No.1 in the Ex. P-12, defendant No.1 acquired item Nos.1, 2, 4 and 5 properties and the grant in the name of defendant No.1 is also made in favour of the joint family and to this effect, there is a clear admission in the cross-examination of D.W.1.

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Learned counsel for the respondents/plaintiffs would also submit that, in the cross- examination of D.W.1, he has admitted that he wishes the properties to be inherited by his daughters after his demise. Referring to these aspects, it is urged that the properties are the joint family properties, nucleus is established and the presumption relating to self-acquisition of the properties by defendant No.1 is rebutted.

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Learned counsel appearing for the plaintiffs/respondents would submit that the properties

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HC-KAR

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retained by defendant No.1 in the year 1955 measured 2 acres 4 guntas comprised in 2 different survey numbers. And income from those properties was more than sufficient to purchase item No.1 property for Rs.200/-item No.2 property for Rs.400/-.

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In addition, learned counsel appearing for the plaintiffs/respondents would contend that defendant No.1 has not pleaded that he had independent source of income other than the income from the ancestral properties. In the cross-examination he has admitted that he had no other income. However, his witness tried to improve the case contending that defendant No.1 had income from livestock and such contention was not raised by defendant No.1

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In addition, learned counsel for the plaintiffs/respondents would also contend that in paragraph No.3 of the plaint, plaintiffs have contended that the properties are purchased from the joint family income derived from the joint family properties.

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HC-KAR

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This Court has considered the contentions raised

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at the Bar and perused the records.

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Though learned Senior Counsel for the appellants is in a way justified in contending that the plaint averments do not contain the details relating to defendant No.1 acquiring the properties from the nucleus of the ancestral properties, what is required to be noticed is, in paragraph No.3 of the plaint, the plaintiffs have stated that the suit properties are joint family and ancestral properties of the parties to the suit. There is a pleading that joint family funds

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are utilized to acquire some of the suit properties in the name of the defendant No.1. It is not specifically pleaded as to which property is acquired from the income of which property. To that extent, one can say that plaint averments do not contain the necessary particulars. However, the question is whether it is fatal to the case of the plaintiffs.

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What is required to be noticed is that the plaintiffs have claimed share in the suit properties on the premise that the suit properties are ancestral and joint family properties

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HC-KAR

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acquired from the income derived from the joint family properties.

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The defendants have contested the suit and have understood the claim of the plaintiffs. Defendant No.1 has asserted that all the properties are his self-acquired properties. Thus, not providing specific particulars relating to the nature of acquisition of each item of the property has not caused any prejudice to the defence set by the defendant No.1.

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It is also noticed from Ex.P12, the relinquishment

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deed that 2 properties namely item No.3 and 6 are retained by defendant No.1 after relinquishing some other family properties to his brothers. Ex.P12 also contains a recital that the properties covered under Ex.P12 are ancestral properties as well as self-acquired properties.

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In addition, the Court has also perused the crossexamination of D.W.1. The relevant portion of crossexamination of D.W.1 is extracted as under:

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“1955gÀ°è £Á£ÀÄ ¹zÀÝgÁªÀÄAiÀÄå ªÀÄvÀÄÛ CªÀgÀ vÀªÀÄä PÉA¥ÀgÁªÀÄAiÀÄå¤UÉ ¤¦-12 gÀ ºÀPÀÄÌ PÀÄ¯Á¸É ¥ÀvÀæ §gÉzÀÄPÉÆlÄÖ zÁªÁ

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HC-KAR

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LlA £ÀA.3 ªÀÄvÀÄÛ 6 D¹ÛUÀ¼À£ÀÄß ¥ÀqÉ¢gÀÄvÉÛÃ£ÉAzÀgÉ ¸Àj. G½zÀ ¸ÀévÀÄÛUÀ¼À£ÀÄß £Á£ÀÄ ºÉtÄÚªÀÄPÀÌ¼À ªÀÄzÀÄªÉVAvÀ ªÉÆzÀ®Ä RjÃ¢ ªÀiÁrgÀÄvÉÛÃ£ÉAzÀgÉ ¸ÀjAiÀÄ®è. DzÀgÉ ªÀÄzÀÄªÉAiÀiÁzÀ £ÀAvÀgÀ RjÃ¢¹gÀÄvÉÛÃ£É. zÁªÁ LlA 4 ªÀÄvÀÄÛ 5 UÀ¼ÀÄ £ÀªÀÄä PÀÄlÄA§PÉÌ ¸ÀPÁðgÀ¢AzÀ ªÀÄAdÆjAiÀiÁVgÀÄvÀÛªÉAzÀgÉ ¸Àj . ¸ÀzÀj ¸ÀévÀÄÛUÀ¼ÀÄ ªÀÄvÀÄÛ MlÄÖ PÀÄlÄA§¢AzÀ §AzÀ ¸ÀévÀÄÛUÀ¼À ªÀgÀªÀiÁ£À¢AzÀ £Á£ÀÄ G½zÀ zÁªÁ LlAUÀ¼À£ÀÄß RjÃ¢¹gÀÄvÉÛÃ£ÉAzÀgÉ ¸Àj. G½zÀ ¸ÀévÀÄÛUÀ¼À£ÀÄß RjÃ¢¸ÀÄªÀ ¸ÀAzÀ¨sÀðzÀ°è £ÀªÀÄä ªÀÄPÀÌ¼ÀÄ vÁªÀÅ PÀÆ° ªÀiÁrzÀ ºÀt ºÉÆA¢¹PÉÆnÖgÀÄvÁÛgÉAzÀgÉ ¸ÀjAiÀÄ®è. AiÀiÁªÀ ªÀÄUÀ¼À ªÀÄzÀÄªÉ AiÀiÁªÀ ªÀµÀð ªÀiÁrgÀÄvÉÛÃ£ÉAzÀÄ £À£ÀUÉ ¤RgÀªÁV ºÉÃ¼À®Ä DUÀÄªÀÅ¢®è. CzÉÃ jÃw CªÀgÀ ªÀÄzÀÄªÉUÀ½UÉ JµÀÄÖ RZÀð ªÀiÁrgÀÄvÉÛÃ£É J£ÀÄßªÀ §UÉÎ ¯ÉPÀÌ EgÀÄªÀÅ¢®èªÉAzÀgÉ ¸Àj.

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4£ÉÃ ¥ÀæwªÁ¢UÉ ¸ÀévÀÄÛ zÁ£À ªÀiÁqÀÄªÀ ¸ÀAzÀ¨sÀðzÀ°è £À£Àß ºÉtÄÚ ªÀÄPÀÌ¼À C£ÀÄªÀÄw ¥ÀqÉ¢gÀÄªÀÅ¢®è. ®PÀëöäªÀÄ ªÀÄvÀÄÛ EvÀgÉÃ ºÉtÄÚªÀÄPÀÌ¼À £À£ÀUÉ D¹ÛAiÀÄ°è ¨sÁUÀ PÉÆqÀÄªÀAvÉ £ÉÆÃn¸ï PÉÆnÖgÀÄvÁÛgÉAzÀgÉ ¸Àj. CzÀgÀAvÉ £Á£ÀÄ CªÀjUÉ ¨sÁUÀ PÉÆnÖgÀÄªÀÅ¢®è. ºÉtÄÚªÀÄPÀÌ½UÉ £ÉÆÃn¸ï ªÉÆzÀ¯ÁUÀ° CxÀªÁ £ÀAvÀgÀªÁUÀ° zÁªÁ D¹ÛAiÀÄ°è £Á£ÀÄ ¥Á®Ä PÉÆnÖgÀÄªÀÅ¢®è. ºÉtÄÚªÀÄPÀÌ½UÉ zÁªÁ D¹ÛAiÀÄ°è ¥Á®ÄPÉÆqÀÄªÀÅzÀ£ÀÄß vÀ¦à¸ÀÄªÀÅzÀPÉÆ¸ÀÌgÀ zÁ£À¥ÀvÀæ ¸ÀÈ¶Ö¹PÉÆArgÀÄvÉÛÃ£ÉAzÀgÉ ¸ÀjAiÀÄ®è.

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£À£ÀUÉ ¤¦-9gÀ ¥ÀæPÁgÀ zÁ£À¥ÀvÀæ §gÉzÀÄPÉÆqÀÄªÀ C¢üPÁgÀ EgÀÄªÀÅ¢®èªÉAzÀgÉ ¸ÀjAiÀÄ®è. zÁªÁ D¹ÛAiÀÄ°è £À£Àß ºÉtÄÚªÀÄPÀÌ½UÀÆ ¸ÀºÀ »¸Éì EgÀÄvÀÛzÉAzÀgÉ ¸ÁQëAiÀÄÄ £Á£ÀÄ ¸ÀvÀÛ ªÉÄÃ¯É CªÀgÀÄ vÉUÉzÀÄPÉÆ¼Àî° JAzÀÄ ºÉÃ¼ÀÄvÁÛgÉ. zÁªÁ D¹Û LlA £ÀA.3 1 JPÀgÉ 9 PÁ®Ä UÀÄAmÉAiÀÄ°è 5£ÉÃ ¥ÀæwªÁ¢ aPÀÌPÉA¥ÀtÚ¤UÉ AiÀiÁªÀÅzÉÃ C¢üPÁgÀ EgÀÄªÀÅ¢®èªÉAzÀgÉ ¸Àj”.

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(emphasis supplied)

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In the cross-examination, D.W.1 has admitted

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that properties granted to him are the properties granted to the joint family. It is also categorically admitted that the

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HC-KAR

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income derived from the ancestral properties are utilized to purchase the remaining properties. This being the position, absolutely there is no difficulty in holding that the properties are joint family properties.

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Though learned Senior counsel for the appellants would submit that gift deed is executed and execution is duly established, it is required to be noticed that before executing the gift deed, consent of the remaining joint sharers is not obtained by the donor. The law in this regard is well settled. In case, a gift deed is executed in respect of the joint family properties, the consent of the remaining sharers has to be obtained. It is squarely admitted in the cross-examination that no such consent is obtained before executing the gift deed. Under these circumstances, the Court has come to the conclusion that the gift deed is invalid. This Court does not find any error in the reasoning assigned by the Trial Court and First Appellate Court which have held that the gift deed does not bind the plaintiffs.

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HC-KAR

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This Court after considering the deed of the year

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1955 is of the view that defendant No.1 father has retained around 2 acres of land and the properties at items No.1 and 2 were purchased in the year 1963 i.e., almost 8 years after the execution of the deed in the year 1955. Though the plaint averments does not give details as to the income and expenditure of defendant No.1, considering the fact that the plaintiffs were minors in 1960s, the Court could not expect too much of particulars from the plaintiffs relating to the income and expenditure of the properties held by defendant No.1.

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For the aforementioned reasons, the contention that the plaintiffs have not established the nucleus cannot be accepted.

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Learned Senior counsel would refer to the judgment of Division Bench of this Court in Ramappa Basappa supra wherein it is stated that the there must be plea and evidence as to the existence of nucleus and acquisition of the property from the said nucleus. It is to be

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HC-KAR

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noticed that in the said case, there was no admission by the defendant to say that the properties were acquired from income of the joint family properties, whereas in the instant case, defendant No.1 has admitted in the cross-examination that the properties are acquired from the income of the joint family properties. Though it is shown that 2 properties were not granted to defendant No.1 when he purchased items No.1 and 2 properties, what is forthcoming is defendant No.1 has retained 2 properties in the partition of the year 1955.

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Learned counsel for the appellant has also relied on the judgments of the Apex Court in D.S. Lakshmaiah, Srinivas Kango supra and also the judgment of this Court in Dandappa supra. This Court has perused the aforementioned judgments. Suffice to say that the facts obtained in the aforementioned judgments are different and the ratio in the aforementioned judgments cannot be made applicable to the facts of the present case.

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In D.S. Lakshmaiah supra the Apex Court has

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held that there cannot be a presumption that every joint

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HC-KAR

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family has a joint family property and the burden is on the person who asserts that the property is the joint family property and must establish sufficient joint family nucleus to purchase the property. In the instant case, as already noticed the existence of joint family property is very much established and defendant No.1 himself has admitted that two properties granted are for the joint family. Thus, the plaintiffs have discharged the burden cast on them. The judgment in Srinivas Kango supra is also on the burden of proof relating to the joint family property and two ancestral properties measuring around 2 acres in the name of defendant No.1 constituted sufficient nucleus for defendant No.1 to acquire other properties.

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Under these circumstances, the plea that the joint family nucleus was utilized to purchase the suit properties is not established cannot be accepted. Both courts have held that suit properties are joint family properties and this Court does not find any reason to interfere with the said finding in exercise of jurisdiction under Section 100 of Code of Civil Procedure, in the light of the evidence discussed above.

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HC-KAR

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It is also noticed that suit is dismissed in respect of item No.3 of the suit property on the premise that there is one more dispute pending between the joint family members and third parties. However, liberty is reserved to the plaintiffs to file an appropriate suit in respect of the said property. The plaintiffs have not assailed that part of the judgment and decree, but have filed separate suit claiming right over the said property and the said suit is still pending consideration. Since, the Courts have not expressed any opinion on item No.3 of the property, and liberty is reserved to file the suit in respect of the said item of the property, this court is of the view that the rights of the parties to the suit will be decided in the said suit.

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It is submitted that during the pendency of the suit, sale deed is executed in respect of item No.5 of the property. Needless to state that sale transaction which has taken place during the pendency of the suit is subject to result of the suit. The purchaser is entitled to claim such right as available in law subject to result of the suit.

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HC-KAR

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For the reasons recorded above, the substantial question of law is answered in favour of the respondents and against the appellants.

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Hence, the following:

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ORDER

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(i) The appeal is dismissed confirming the judgment and decree dated 12.01.2011 passed in O.S. No. 160/2006 on the file of Senior Civil Judge, Doddaballapura.

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(ii) The judgment and decree dated 07.09.2013 passed in R.A No.56/2011 on the file of IV Additional District Judge, Doddaballapura are confirmed.

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Sd/(ANANT RAMANATH HEGDE) JUDGE

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SS/GVP/ST List No.: 1 Sl No.: 12 …

Sri Lingappa v. Smt. Lakshmamma

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Sri Lingappa v. Smt. Lakshmamma

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