Smt Venkatalakshmi Vs Smt Vijayalakshmi

THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 13.08.2021, IN GRANTING 1/4^TH SHARE IN FAVOUR OF THE PLAINTIFFS IN ITEM NO.1 OF THE SUIT SCHEDULE PROPERTY PASSED IN OS.NO.6480/2017 ON THE FILE OF THE XLII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-43) AND ETC.,

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

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CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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ORAL JUDGMENT

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The Regular First Appeal is filed by the defendant Nos.1

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to 3 calling in question the judgment and decree passed in O.S.No.6480/2017 dated 13.08.2021 by the Court of XLII

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Additional City Civil and Sessions Judge, Bengaluru (CCH-43) (hereinafter referred to as the ‘Trial Court’ for short), whereby the suit filed for partition is decreed by granting 1/4^th share to the plaintiffs as well as defendant Nos.1 to 3 in item No.1 of the suit schedule property. The suit in respect of item No.2 property is dismissed, but there is no appeal against it. Therefore, the present appeal is confined to only decreeing the suit for partition in respect of item No.1 of the suit schedule property.

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For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Trial court.

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The plaintiffs have filed the suit for partition and separate possession claiming 1/4^th share each in the suit schedule property by contending that the suit schedule properties are joint family properties. The genealogical tree is as follows:

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“ವಂಶ��

�ಂಕ�ೕ� ( �ವ� ),

��ೕಮ� . �ಂಕಟಲ�� ( �ಂಡ� , 52 ವಷ� )

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�ೕ� , �� ( �ವ� ) ��ೕ . ಮ�ೕಶ (37 ವಷ� ) ��ೕ . ಉ"ೕ� (33 ವಷ� ) ��ೕಮ� . #ಜಯಲ�� ( �ಂಡ� 35 ವಷ� )

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&'( . ವಂದನ ( ಮಗ, 10 ವಷ� )

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ಈ"ೕ��./0ವವಂಶ��ದಅಂಶಗ,ಸತ4560ತ78ಂ9ಈ:ಲಕ ಪ�'<ಕ(=>7ೕ? .”

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The defendants have filed written statement and contended that the suit schedule item No.1 property is self acquired property of defendant No.1, having acquired the same through GPA holder dated 22.01.1994 from Ramamma. Thus, the first defendant is absolute owner of the property. Subsequently, first defendant has sold the item No.1 schedule property to her three sons namely who is husband of the first plaintiff and defendant Nos.2 and 3. On 20.11.2007, all the three sons have executed relinquishment deed in favour of defendant No.1. Thus, it is contended by

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defendant No.1 that item No.1 property is self acquired

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property of defendant No.1. Therefore, prays to dismiss the suit.

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This appeal is confined only in respect of item No.1 of the suit schedule property. There is no appeal by the plaintiffs as against dismissal of suit so far as item No.2 of the schedule property. Therefore, the discussions of the appeal are only pertaining to item No.1 of the suit schedule property.

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The trial Court has framed the following issues:

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1) Whether the plaintiffs prove that plaintiffs and defendants constitute joint family as contended in their plaint?

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2) Whether the plaintiffs prove that Item Nos.1 and 2 of the suit schedule properties are joint family properties of themselves and defendants and liable for partition as contended in the plaint?

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3) Whether the defendants prove that Item Nos.1 and 2 of the suit schedule properties are self-acquired properties of defendant No.1 as contended in their written statement?

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4) Whether the plaintiffs are entitle for 1/4^th share in suit schedule properties?

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5) Whether the plaintiffs are entitle for the reliefs claimed?

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6) What order or decree?

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The first plaintiff is examined as PW.1 and got marked the documents at Exs.P1 to P4. On the other hand, the defendant examined as DW.1 and got marked the documents at Exs.D1 to D12.

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Based on the evidence on record, the trial Court

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has decreed the suit so far as item No.1 of schedule property and dismissed the suit regarding item No.2 property is concerned. The Trial Court has decreed the suit so far as item No.1 property that the joint family consisting of defendant No.1 and her three children were existence when defendant No.1 had purchased the item No.1 property through GPA from Ramamma in the year 1994 and subsequently, the transactions made such as defendant No.1 sold item No.1 property to her three sons in the year 2007 and in the year 2007, all the three sons have relinquished their shares in favour of defendant No.1. All these aspects

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prove that item No.1 schedule property is joint family property. Therefore, decreed the suit.

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Being aggrieved by decreeing the suit so far item No.1 schedule property is concerned, the defendants have preferred the appeal by raising various grounds and learned counsel for the appellants/defendants in consonance with the grounds raised, has argued that the item No.1 schedule property is self acquired property of defendant No.1 and it is not partible property. The defendant No.1 had income and out of her own income, had purchased the property. Therefore, item No.1 property is self acquired property of defendant No.1. Hence, the trial Court has committed an error in appreciating this evidence. Therefore, prays to set aside the judgment and decree passed by the Trial Court by allowing the appeal.

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On the other hand, learned counsel for the respondents/plaintiffs submitted that defendant No.1 did not have independent income so as to purchase item No.1

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property and at the time, when item No.1 property was acquired by defendant No.1, the joint family was in existence. Therefore, it is submitted that item No.1 property is joint family property. Further, it is submitted that later transactions of selling item No.1 schedule property to three sons and further transactions that all the three sons have relinquished their shares in favour of defendant No.1 proved the fact that item No.1 property is a joint family property. Therefore, it is submitted that the Trial Court is correct in decreeing the suit so far as item No.1 property is concerned. Therefore, prays to dismiss the appeal.

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Upon hearing the arguments by learned counsel

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for the parties, the following points arise for consideration:

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1. Whether, under the facts and circumstances involved in the case, the plaintiffs prove that item No.1 property is the joint family property thus amenable for partition and the plaintiffs are entitled to 1/4^th share in item No.1 of the suit schedule property?

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2. Whether, under the facts and circumstances of the case, the defendants prove that item No.1 schedule property is self acquired property of defendant No.1?

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3. Whether, the judgment and decree passed by the Trial Court requires interference by this Court?

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The plaintiffs are contending that the suit schedule item No.1 property is joint family property; this fact is refuted by the defendants. Therefore, on this disputed fact, the evidence are to be appreciated. The relationship between the parties is not disputed and the genealogy shown by the plaintiffs is also not in dispute.

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It is the case of the defendants that the suit schedule item No.1 property is the self acquired property of defendant No.1; then it is burden on the defendants to prove that the suit schedule item No.1 property is the self acquired property of defendant No.1. There is no evidence by the defendants that there was severance in the joint family. There is a presumption of existence of joint family. It is burden on the defendants to prove that the joint family was

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severed and that after severance, the property was acquired, but there is no evidence by the defendants.

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Ex.D-2 is the original registered GPA dated 22.01.1994 by which defendant No.1 has acquired the property through GPA. It is pertinent to mention here that at that time all are living jointly either expressly or in the constructive way as there was no severance in the joint family. Further, there is no evidence by the defendants as to what the defendant No.1 was doing for mobilization of fund and what was the capacity to purchase the property exclusively by her. Therefore, this probabilizes the fact that the property acquired by defendant No.1 is by joint nuclear fund.

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Furthermore, as contended by the defendants themselves, they have also relinquished their rights in favour of defendant No.1 and she had sold the suit schedule item No.1 property to her three sons viz., husband of plaintiff No.1 and defendant Nos.2 and 3.

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Here it is pertinent thing, upon considering the evidence that defendant No.1-mother of husband of plaintiff No.1 and defendant Nos.2 and 3 has sold the property to her own children for sale consideration, but on the very next day i.e., 20.11.2007, her own children have released the said property in her favour. Therefore, all these transactions probalize the fact that the suit schedule item No.1 property was acquired out of joint family fund.

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There is no averment in the written statement by the defendants as to what she was having source of income. Also, in the evidence, it is stated that she got some property by her brothers, but that is not supported by any evidence to prove that she was having independent source of income. Hence, the Trial Court is correct in coming to the conclusion that suit schedule item No.1 property is a joint family property of the plaintiffs and defendants. Therefore, the Trial

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Court has correctly partitioned the suit schedule item No.1 property and decreed the suit, which does not suffer from

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any perversity. Accordingly, I answer point No.(i) in the Affirmative and point Nos.(ii) and (iii) in the Negative. Hence, the judgment and decree passed by the Trial Court is found to be justified and correct, which needs no interference by this Court. Thus, the appeal is liable to be dismissed.

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In the result, proceed to pass the following:

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ORDER

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i. The Regular First Appeal is dismissed .

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ii. The judgment and decree dated 13.08.2021 passed in O.S.No.6480/2017 by the XLII Additional City Civil and Sessions Judge, Bengaluru (CCH-43) is hereby confirmed.

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iii. No order as to costs.

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iv. Draw decree accordingly.

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Sd/(HANCHATE SANJEEVKUMAR) JUDGE

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KA: Para 1 to 11 SRA: Para 12 to end List No.: 1 Sl No.: 55

Smt Venkatalakshmi v. Smt Vijayalakshmi

Case brief

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Smt Venkatalakshmi v. Smt Vijayalakshmi

Case brief

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