AI Structured Summary
Not yet generated for this judgment
Judgment
H. Billappa
This appeal by the first defendant is directed against the judgment and decree, dated 11.11.2002, passed by the Civil Judge (Sr.Dn).Harihar, in O. S. No. 115/2002.
By the impugned judgment and decree, the trial Court has decreed the suit of the plaintiff granting 1/3rd share in the suit schedule properties.
Aggrieved by that, the appellant first defendant has filed this appeal.
The original plaintiff i.e., the first respondent has died and he is represented by his L.Rs. The Respondents 2 to 7 are the defendants.
The parties will be referred to with reference to rank in the original suit O.S.No.1 15/2002.
In brief, the facts are:
The original plaintiff Sri H.P.Chitrashekarappa filed suit in O.S.No. 145/1989 which has been renumbered as D.S. 115/2002 for partition and separate possession of the suit schedule properties and for declaration that the alienation of item Nos.2 and 7 of the suit ''B'' schedule properties does not bind him. The case of the original plaintiff Sri H.P. Chitrashekharappa was that himself and the defendants are the sons of late Adivappa who was residing at Hannah during his lifetime. Adivappa died in the year 1956. The plaintiff and the defendants are co-parceners and members of the joint Family. The defendant No. 1 is the eldest son of Adivappa. The plaintiff and the defendants 2 and 3 are younger to defendant No.1, Defendants 4 to 7 are the alienees of some items of suit schedule properties. There is one more son of Adivappa by name Papanna @ Mahadevappa and he has been given in adoption to the family of Sri H.K.Somamma of Honnali.
The Plaintiff and the first defendant are married. Defendants 2 and 3 are not married. The plaintiff and the defendants were not able to pull on well. Therefore, they started living separately since 1981-82. The plaintiff is residing at Bilichodu in Jagalur Taluk. The first defendant is residing at Shimoga. Second defendant, is residing at Anandapuram and the third defendant is residing at Honnali.
The family had agricultural properties. The income was not sufficient to meet the requirement of growing needs of the family. Therefore, the plaintiff and the defendants started pursuing different avocations in their respective places. It is staled that the plaintiff carried on vegetable vending and petty business at Bilichodu in Jagalur Taluk, The first defendant is carrying on rice business at Shimoga. The second defendant is sick and does not do anything. The third defendant is pursuing agriculture and also doing business in rice and jogery.
In so far as the agricultural properties are concerned, the first defendant is managing the properties on behalf of the faintly. In so far as house properties in ''B'' Schedule are concerned, item No.6 is in the occupation of the second defendant item No.3 is in possession of the first defendant on behalf of the family as manager of the family.
Before the plaintiff and the defendants started living separately, they were living together at Honnali in their family house at item No.6. The family of the plaintiff and the defendants is an agricultural family and also carrying on business. The property at item No.6 was inherited from the father of the plaintiff and the defendants. The agricultural properties in ''A'' schedule and the other properties in ''B'' schedule except item No.6 are the properties acquired by the family at various stages right from 1966 till 1972-73 by relentless efforts pursuing agriculture and business. The business and the agriculture were jointly carried on by the plaintiff and the defendant No. 1. Defendants 2 and 3 also assisted. The suit ''A'' and ''B'' schedule properties except item No.6 are acquired out of the joint earnings of all the members of the family and are joint family properties.
The properties mentioned in ''C'' schedule are gold and silver articles belonging to the family. One gold chain weighs about six tolas. The silver articles are the articles of the mother of plaintiff and the defendants. The other articles were acquired by the family during 1966 to 1980. All items mentioned in ''C'' schedule are in possession of the first defendant.
During 1980, the plaintiff and the defendants 2 and 3 felt that they cannot live together and there should be a partition. Therefore, they demanded the first defendant. There was a panchayat in the year 1980. But, the matter could not be settled as the parties did not agree. The first defendant and the third defendant who are educated have always tried to be together in the family affairs. By collusion, they have been successfully preventing the division of the family properties. Inspire of best efforts by the plaintiff and the second defendant, the division could not take place. The plaintiff and the defendants started living separately since 1981-82. But, the family remained a joint family.
The first and the third defendants in collusion have entered into a partition deed dated 7.7.1980 dividing certain properties, The plaintiff came to know about it when he started collecting the documents to file the suit. The deed of partition is not binding on the plaintiff and the other members of the family. The entire properties are available for partition. The first defendant is making hectic efforts to dispose of the properties.
The first defendant to defraud the other family members has nominally transferred the property at item No.7 in ''B'' schedule in favour of the fourth defendant who is none other than the cousin brother of the wife of the first defendant. The fourth defendant has transferred the property in favour of the fifth defendant. The alienation by the first defendant is not binding on the plaintiff and the defendants 2 and 3. The plaintiff came to know about the alienation when he obtained the certified copies to file the suit. It is stated the first defendant has committed fraud on the family by transferring valuable property worth more than ( Rs. ).75,000/ for Rs.1000/- in favour of the sixth defendant and got a transferred in the name of his wife i.e., the seventh defendant. It is stated, the alienation is not binding on the plaintiff. The alienations are only to defraud the plaintiff and the defendants 1 and 2 and not for legal necessity. Therefore, the plaintiff has prayed for partition and separate possession of the suit schedule properties and declaration that the alienations are not binding on him.
The first defendant has filed his written statement contending that the plaintiff and the defendants 1 to 3 are the sons of late Adivappa. The other defendants are not related. Defendant No.7 is the wife of the first defendant. Adivappa died in the year 1956. There is one more son of Adivappa by name Papanna @. Mahadevappa and he has been given in adoption to The family of H.K.Somamma of Honnali. The plaintiff and the defendants 1 to 3 have been living separately since 1958-59. The ''defendants 2 and 3 are younger and the first defendant brought them up. From 1980 onwards, the second defendant has been living separately and the third defendant is under the care of the first defendant. The second defendant has been suffering from ailments. The first defendant has been looking after him. The plaintiff is residing at Bilichodu in Jagalur Taluk. The first defendant is residing at Shimoga. The third defendant is residing at Honnali. It is denied that the second defendant is residing at Anandapura.
It is stated that the family did not possess any agricultural properties except house property mentioned in item No.6 of ''B'' schedule. There were no other properties belonging to the family. The plaintiff has been staying separately since 1958-59. Earlier, he was running a Kirani shop at Thumbinakatte road in Honnali Town from 1973-74 by raising loan from the Canara bank. Prior to that, he was doing vegetable vending business. The plaintiff could not flourish in the Kirani business. Therefore, he went to Bilichodu which is his wife''s place in the year 1977 and doing business there. The third defendant after partition in the year 1980, has been doing agriculture and some petty business. The first defendant started rice business and gradually picked up his business and out of his self exertion and efforts acquired the suit schedule properties. Therefore, the suit schedule properties except item No.6 of ''B'' schedule are self acquired properties of the first defendant. The plaintiff cannot claim anything. The first defendant, after acquiring ''A'' schedule property has been doing both agriculture and business. The first defendant shifted to Shimoga in the year 1983 for improving his business.
It is stated, in the year 1958-59 when the plaintiff and the defendants separated themselves, the plaintiff continued to stay in item No.6 of the suit ''B'' schedule property and defendants 1 to 3 stayed in the out-house. Later on, the defendants shifted to Kote road in Honnali and started residing there in a rented house. Since 1958-59, there is no connection between the plaintiff and the defendants 1 to 3. The averments that ''A'' and ''B'' schedule properties have been acquired by the family at various stages between 1966 and 1972-73 have been denied. The averments that ''C schedule properties are articles of the family and they are in possession of the first defendant has been denied. It is contended that there are no such articles as mentioned in ''C'' schedule. The articles mentioned in the inventory are the self acquired properties of the first defendant.
The averments that in 1980, the plaintiff and the defendants 2 and 3 felt that there should be partition and there was panchayat in 1980 are ail denied The plaintiff has no right to question the right of the first defendant to deal with the suit schedule properties as the suit schedule properties are the self acquired properties of the first defendant, except item No.6 of the ''B'' schedule properties and properties which have been given to the third defendant for his livelihood. The averments that the first defendant with an intention to defraud the family members has transferred some of the properties have been denied. It is stated that the plaintiff has no right to seek partition of the suit schedule properties. The suit schedule properties have been acquired by the first defendant out of his own efforts. The plaintiff or the other defendants have no right title or interest in the suit schedule properties. There was no joint family The plaintiff and the first defendant have been residing separately since many years pursuing their avocation. There was no joint family nucleus which was yielding income to enable the first defendant to acquire the suit schedule properties The plaintiff has not contributed anything to purchase the suit schedule properties. Some of the suit schedule properties have been sold by the first defendant for legal necessity. The first defendant borrowed loan from the banks and societies to improve the land. The first defendant was indebted to Vyavasaya Seva Sahakara Sangha Niyamitha. Honnali in a sum of ( Rs. ).11,345/-and ( Rs. ).5,000/- and odd towards arrears of land revenue and to discharge the same, as a necessity, the first defendant has alienated the properties.
In the year 1980, the third defendant expressed his desire to reside- separately Out of love and affection, the first defendant: has given some properties for his livelihood. Though the document is styled as partition deed, in reality, the self acquired properties of the first defendant have been given. The suit schedule properties except item No.6 of the ''B'' schedule are the self acquired properties of the first defendant and the alienations are valid. Therefore, the first defendant has prayed for dismissal of the suit.
The defendant No 4 has filed his Written Statement contending that the allegations that the 1st defendant has alienated the property at Item No.7 with an intention to defraud the other members of the family ate false. The plaintiff is not entitled for any relief against the defendant No.4. The 1st defendant was the absolute owner of Item No.7 of the suit ''B'' schedule properly and he has sold the property in favour of the fourth defendant for valuable consideration through registered sale deed. The defendant No.4 has been put in possession of the property. The defendant No.4 has made improvement and thereafter, has sold the property in favour of the 5th defendant. The plaintiff has filed this suit with ulterior motive.
It is stated, even if the plaintiff is entitled for am share he may be allotted some other property. The property-sold in favour of the 4th defendant may be treated as the share of the 1st defendant. Therefore, the defendant No.4 has prayed for dismissal of the suit.
Defendant No.7 has filed her written statement contending that since 1980, the 2nd defendant has been living separately. The 3rd defendant is under the care of the 1st defendant. The plaintiff is presently residing at Bilichodu in Jagalur Taluk which is his wife''s place. The 3rd defendant is the resident of Honnali. The plaintiff was not residing with the 1st defendant. The 1st defendant for his livelihood was doing business. Out of his income from the business, the 1st defendant has acquired the suit schedule property except item Nos.2 and 6 of the suit ''B'' schedule property. Item No.2 of the suit ''B'' schedule property belongs to the 7th defendant. Item No.6 of the suit ''3'' schedule property belongs to the joint family and the defendants 1 to 3 along with 7th defendant stayed in the out house and later on, shifted to rented house. Ever since 1958-59 there has been absolutely no connection between the defendants 1 to 3. The averments in paragraphs 4, 6, 7 and 8 have been denied.
The defendant No.7 has purchased Item No.2 of the suit ''B'' schedule property from Smt. Nagarathnamma, W/o. Narayana Rao, out of Stridhana through registered sale deed dated 13/2/1981. Defendant No.7 has constructed the house in 1983 and the same has been sold for valuable consideration on 20.7.1989 to one Sri. H.S.Manjunath of Honnali. The transactions was between defendant No.7, Smt. Nagarathnamma and Manjunath and there is no connection with the 1st defendant Therefore, the defendant No.7 has prayed for dismissal of the suit.
Defendant No.8 has filed his Written Statement contending that 1st defendant is managing some properties and he is enjoying some properties as divided by eiders during 1980, item No.6 is in the occupation of the 8th defendant, It is stated, the properties were acquired by the combined efforts of all the members of the family out of joint earnings and the properties are joint family properties and the defendant No. 1 cannot dispose of joint family properties ignoring the Jubani Hissa. If the 1st defendant has alienated the property without the signature of the other family members, it is bad in law. Defendant. No. 1 has no power to sell the joint family property.
In the year 1980, the members of the family sat together and executed the Jubani Hissa before the eldest members of the village. The defendant No.8 has no objection to decree the suit as per Jubani Hissa. Therefore, defendant No.8 has prayed for decree as per Jubani Hissa in the year 1980.
The Trial Court has framed the following issues:
Whether the plaintiff proves that himself and defendants 1 to 3 constituted a Hindu Joint Family?
Whether the plaintiff proves that the suit schedule properties are the properties of the Joint family of himself and defendants 1 to 3?
Whether the plaintiff has been separated from the Joint family since the sear 1958-59 as contended by the 1st defendant?
Whether the suit schedule properties are the self-acquired properties of the 1st defendant as contended in para-6 of the written statement of the 1st defendant?
Whether the plaintiff proves that the sale of Item No.7 of ''B'' schedule by the 1st defendant in favour of the 4th defendant and by the 4th defendant to the 5th defendant and also the sale of Item No.2 of ''B'' schedule property by the 1st defendant in favour of the 6th defendant and from the 6th defendant to the 7th defendant, is not binding on the plaintiff?
Whether the 1st defendant had exclusively saleable interest in Item Nos. 2 and 7 of ''B'' schedule properties.
Whether the plaintiff is entitled for partition and separate possession of 1/4th share in the suit schedule properties?
Whether the plaintiff is entitled for mesne profits?
To what reliefs the plaintiff is entitled to?
What Decree or order?
Addl. Issues:
Whether the plaintiff proves that the partition effected on 7/7/1980 is not binding on him?
Whether he further proves that the 8th defendant was given in adoption as such he is not entitle to a share in the schedule properties?
Whether the 8th defendant is entitled to a share, If so what is his share?
The Trial Court, has answered issue Nos. 1, 2 and 5 in the affirmative; issue Nos. 3, 4 and 6 in the negative and consequently, has decreed the suit granting 1/3rd share in the suit schedule properties to the plaintiff.
Aggrieved by that, the appellant-first defendant has filed this appeal.
The learned counsel for the appellant contended that the impugned Judgment and decree cannot be sustained in law. He also submitted that the Trial Court has failed to consider the evidence on record in proper perspective Further he submitted that, the family did not possess any property except Item No. 6 of the suit ''B'' schedule property and all other properties are self-acquired properties of the first defendant. He also submitted that there was no joint family nucleus. The evidence of P.W.2 shows that from 1971-72, the plaintiff and the first defendant were residing separately and doing business separately. The plaintiff has borrowed money from the Bank to do the business and he was residing at Bilichodu. The plaintiff has not produced anything to show that the properties were purchased jointly or the plaintiff has contributed, He also submitted that the documents produced by the appellant i.e., the first defendant show that the properties have been acquired by the first defendant. He also submitted that there was no joint family nucleus and the plaintiff has failed to prove that the suit schedule properties have been acquired out of the joint family funds. He also submitted that merely because some properties have been given to the defendant No.3 out of love and affection, it does not mean that the properties are joint family properties. He also submitted that the properties have been acquired by the appellant i.e., first defendant out of his own earnings and the suit schedule properties except Item No.6 of ''B'' schedule are the self-acquired properties of the first defendant. Further, he submitted that D.W.2 has deposed that the plaintiff has availed loan from the Bank for business purpose and D.W.3 has deposed that the plaintiff and the appellant were doing business separately and not jointly. He also submitted that the recitals of Ex.2 does not mean that the properties are joint family properties; Merely because some properties have been given to the third defendant out of love and affection, it does not mean the properties are joint family properties. Further he submitted that, the suit ''C'' schedule properties do not exist and there is no evidence on record to show that suit ''C'' schedule properties exist. He therefore submitted that the impugned Judgment and Decree cannot be sustained in law.
Placing reliance on the decision of the Hon''ble Supreme Court reported in Shrinivas Krishnarao Kango Vs. Narayan Devji Kango and Others, , the learned counsel for the appellant submitted that proof of existence of joint family does not lead to a presumption that the property held by a member of the family is joint. The burden to establish that the property is a joint family property is on the person who asserts it. In the present ease, the plaintiff has failed to establish that the suit schedule properties except Item No.6 of ''B'' schedule are joint family properties.
Placing reliance on the decision of this Court reported in 2000(4) KCCR 2609 (DB) in Shri Ramesh Srinivasa Jannu v. Sri Srinivas Vittoba Jannu Since Deceased By Lrs. and Others, the learned Counsel for the appellant submitted that the mere fact that the members of the family were allowed to use the self-acquired property or its income out of generosity, does not result in abandonment or blending of the property with the joint family properties.
Placing reliance on the decision of the Hon''ble Supreme Court reported in AIR 2003 3800 (SC) , the learned counsel for the appellant submitted that there is no evidence to show that there was sufficient nucleus to acquire the properties. Therefore, the properties acquired by the appellant are his self-acquired properties and cannot be presumed to be joint family properties.
He therefore submitted that the impugned Judgment and Decree cannot be sustained in law.
As against this, the learned Counsel for the L.Rs. of the first respondent submitted that the impugned Judgment and Decree does not call for interference. He also submitted that the trial Court on proper consideration of the material on record has rightly held the suit schedule properties are joint family properties. Further he submitted that, there was no separation in the year 1958 and all the properties were acquired out of the joint earnings before 1978 and therefore, the suit schedule properties are joint family properties. He also submitted that Adivappa, the father of the plaintiff was doing business and the family occupation was business and the plaintiff and the first defendant were doing business jointly and out of joint earnings, the suit schedule properties have been acquired. Further he submitted that, the first defendant thinking that the plaintiff may claim properties has alienated some of the properties, He also submitted that it is suggested to the plaintiff that there was division in the year 1980 and if there was division, what properties were allotted to the share of the plaintiff. He also submitted that from the joint effort of the plaintiff and the defendant No.1, the suit schedule properties have been acquired and therefore, the plaintiff is entitled for a share in the suit schedule properties. He also submitted that there was division in the year 1980 between the first defendant and the defendant No.3 and the defendant No.3 has been given share as per Ex.P-2 and in Ex.P2, it is clearly stated that the properties are joint, family properties. Further he submitted that from the evidence on record, it is clear that the suit schedule properties have been acquired out of the joint effort of the plaintiff and the defendant No. 1 and the source of income to acquire the suit schedule properties was from agriculture, business and kirana shop. The plaintiff and the defendant No.1 were cultivating the land and getting income from the business also. Prom the income of the business and agriculture, the suit schedule properties have been acquired and therefore, the plaintiff is entitled for a share in the suit schedule properties. He also submitted that the plaintiff and the defendant. No.1 were residing together till 1981 and the properties have been acquired during that period out of joint earnings and therefore, the plaintiff is entitled for a share in the suit schedule properties and the impugned Judgment and Decree does not call for interference.
I have carefully considered the submissions made by the learned counsel for the parties.
The point that arises for my consideration is
Whether the trial Court was justified in holding that the suit schedule properties are joint family properties and granting decree?
It is relevant to note, the suit is for partition and separate possession and declaration that the alienations are not binding on the plaintiff. The plaintiff claims that the suit schedule properties are joint family properties and they have been acquired out of the joint earnings and therefore, the plaintiff is entitled for a share in the suit schedule properties.
The first defendant: claims that the suit, schedule properties except item No.6 of ''B'' schedule are his self acquired properties and he has acquired them out of his own earnings and therefore the plaintiff is not entitled for any share in the suit schedule properties.
The plaintiff has examined P.Ws. 1 and 2 and Exhibits P. 1 to P. 18 have been marked.
The defendant has examined D.Ws. 1 to 3 and Exhibits D. 1 to D.55 have been marked.
The plaintiff i.e., P.W.1 has deposed that his father died in 1956. They were residing together and cultivating lands as tenants. When his father died, himself and the defendant no. 1 were elders. Defendants 2 and 3 were younger. They were doing business in paddy and groundnut and also agriculture. In 1963, they started Kirana shop in Nehru road. In 1967, they purchased the shop where they were doing business, Item No.2 of suit ''A'' schedule properties was cultivated by them as tenants. In 1962, they purchased it. The income from the land and the shop was used to buy item No.2. Item no. 1 of suit ''A'' schedule and items 4, 5 and 7 of suit ''B'' schedule were? purchased from the income of land, business and shop. He has stated that they resided together till 1978-1979. In 1979, as the women folk of the family were not pulling on well and a panchayat was convened and ho demanded a share. The properties were not divided. In 1981, he went to Bilichodu with his wife. The first defendant started residing at Shimoga from 1982. In 1989., he demanded share and it was not given. When he the obtained documents, he came to know that there was division between defendant the No. 1 and defendant No.3 in the year 1980. He has stated that some properties have been sold in favour of the defendants. 4 and 7. Item No.7 has been sold in favour of defendant No.4. In turn, the defendant No.4 has sold it to defendant No.5. He has stated that apart from the immovable properties, the family possessed gold articles shown in ''C'' schedule. It was purchased during 1968-1971. Item No.2 of ''B'' schedule has been acquired in the name of the defendant No.7. The defendant No.8 is residing in the ancestral house.
In his cross-examination, P.W.1 has stated he has no documents to show that they were doing business jointly and has denied the suggestion that the defendant No. 1 and himself were doing the business separately. He has admitted that he borrowed money from the Canara Bank. He has denied the suggestion of defendant No.8 that in the year 1980, he had taken share and is enjoying the properties. He has denied the suggestion of defendant No.3 that he has taken share about 20 years back in the presence of the panchayathdars. He has stated that till 1978, they were residing together.
P.W.2 has deposed that the plaintiff and the defendants were residing together and doing business i.e., Kirana shop and agriculture. The first defendant was managing the affairs of the family. There were lands in Devarahonnali. Near KEB office, behind Police Quarters, there were two vacant sites and one big shop. They were running shop there There is ancestral house in Kumbara street. Except the ancestral house, the other properties were acquired In 1981-82, there was a panchayat in the Mutt regarding partition. The properties were not divided. Since 1971-72, defendants were residing separately that means for about 10-15 years.
In the cross-examination, P.W.2 has denied the suggestion that the properties were divided in the year 1980. He has stated that plaintiff and the defendants were running Kirana shop together. He has denied the suggestion that the plaintiff and first defendant are residing separately since 1957 58. He has stated that he was present in the panchayat which was held in the year 1981-82 and no writing took place. He has denied the suggestion that after partition in the year 1957 58, the first defendant has acquired the properties out of his own earnings.
The first defeadant i.e., D.W.1 has deposed that his lather died in 1956. His father left only one house i.e., item No.6 of ''B'' schedule and had not left any property which was yielding income. He was doing business on sandy days and the, plaintiff was also doing business on sandy days separately. In the year 1958-59, they shifted to out house. Upto 1970, the plaintiff was selling food grains by going to different places. Till 1970, they were residing there, In 1970, the plaintiff opened a provision store in the name and style of Aruna Provision Stores in Tumbinakatte road at Honnali. The first defendant was selling rice and jowar on sandy days, in different places. The plaintiff and himself did not do business together. During 1979-80, the plaintiff closed the shop as he suffered loss.
Further DW 1 has stated that in the year 1963, he purchased item Nos.4 and 5 of ''B'' schedule properties through Ex.D.1. In 1967, ne purchased item No.3 of ''B'' schedule through Ex.D.3 In 1971, he purchased item No.2 of ''B'' schedule through Ex.D.9. He has sold item No.2 to Nagarathnamma for Rs. 1000/- and Nagarathnamma has sold the site to his wife in the year 1980, in the year 1972, he purchased 3 acres and 20 guntas of land in Sy.No.54/2 i.e., item No.2 of ''A'' schedule through Ex.D.11. He has given half share in item No.2 of ''A'' schedule to defendant No.3 out of love and affection. In 1973, he purchased item No.7 of ''B'' schedule through Ex.D. 17. In 1980, he sold item No.7 to defendant No.4. In 1969, he had taken 3 acres and 32 guntas of land in Sy.No.54/1 on lease. He was cultivating it. Except the house at Kumbarabeedi, Honnali, he has not inherited any ancestral property. Gold and silver articles shown in ''C'' schedule property are nor in his possession and he has not received gold or silver articles from his father. His father had left no gold or silver articles. In 1981, he left to Shimoga and he has not done any business with the plaintiff. The plaintiff was running kirana shop separately.
In his cross-examination, D.W.1 has stated that from 1966 till 07.07.1980, the defendant No.3 was residing with him. Some properties were given to defendant no.3 on 07.07.1900. Defendant No.3 was not given any share in the ancestral property, Item No.7 was sold to defendant No.4. In turn, defendant No.4 has sold item No.7 to defendant No.5. Defendant No.7 is his wife. He sold item No.2 in 1980 to defendant No.6. In 1981, his wife has purchased from defendant No.6. The suggestion that panchayat was convened on 11.6.1980 has been denied. He has stated that there was partition between himself and his brother, after the death of his father, in respect of joint family properties. The defendant No.2 was residing with him and he died at Honnali. His father was doing business and died in the year 1956 After the death of his father, except plaintiff and defendant No.8, all others were residing together. He cannot say the day, month or the year from which the plaintiff and the defendant lived separately. After the death of his father, he was doing rice and jowar business. He has not maintained any accounts of his business and he has not paid the sale tax or the income tax. He was cultivating Sy.No.54/1 on lease basis from 1967. Item No.3 was purchased in the year 1967. He purchased the land in the year 1972 73. In 1980, himself and the defendant No.3 have divided the family properties as per Ex.P.2. Except from the business, agricultural and Kirana shop there was no other income. The defendant No.8 was given in adoption. He has no document to show the source from which the money came to purchase the properties.
D-.W.2 has stated that the plaintiff had borrowed a sum of Rs.2000/- to do Kirana business and a suit was filed to recover the amount and the suit has been decreed and the Execution petition is pending.
D.W.3 has stated that the house in Kumbara street is the family property. Except the house, the family did not own any other properties. The first defendant was doing business by going to different places. Thereafter, he stopped business and shifted his house in Kote street. The first defendant purchased the land from his earnings and he was cultivating the land. He was residing in Kote street for about ten years. Thereafter, he went to Shimoga. The plaintiff or the oilier brothers of the first defendant did not join him in doing business. The second defendant has died. The plaintiff was doing business and he was running a shop at Honnalipet and stopped business saying that he has suffered loss.
In his cross-examination, D. W. 3 has stated that the family occupation of the defendants 1 and 3 is sandy business since their father''s time and they are doing business in different places. He does not know from what source or who gave the money to purchase the suit schedule properties. He does not know about the division between the plaintiff first defendant and the eighth defendant in the year 1980.
The plaintiff has produced Exs.P1 to P18. Ex.P1 is invitation. Ex.P.2 is the partition deed dated 07.07.1980 between the first defendant and the third defendant. Ex.P.3 is the sale deed dated 22.12.1967, in favour of first defendant, in respect of the property bearing assessment No. 170. Ex.P.4 is the mutation extract, in respect of Sy No.54/2. Ex.P5 is the mutation register extract, in respect of Sy.No.54/1. Ex.P.6 is the genealogical tree. Ex.P.7 is the RTC extract, in respect of Sy.No.54/1A for the years 1982-83 to 1984-85 and the name of the first defendant is shown in the cultivator''s column. Ex.P.8 is the RTC extract in respect of Sy.No.54/2 and the name of first defendant is shown in the cultivators column for the year 1982 88 to 1984 85. Ex.P.9 is the assessment list in respect of the property bearing No. 170. The property stands in the name of first defendant. Ex.P.10 is the assessment list, in respect of the property bearing No. 1311. The property stands in the name of the first defendant. Ex.P.11 is the assessment list in respect of the property bearing No.1316. The property stands in the name of Adivappa, the father of the plaintiff and the defendants 1 and 3. Ex.P.12 is the assessment list in respect of the property bearing No.714 The property stands in the name of the defendant No.3. Ex.P.18 is the assessment list in respect of the property bearing No.704. The property stands in the name of Smt. Savithramma, the defendant No.7. Ex.P.14 is the assessment list in respect of the property bearing No. 1657, The property stands in the name of the first defendant. Ex.P.15 is the sale deed dared 23.4.1973, in favour of first defendant, in respect of site No.69. Ex.P.16 is the sale deed dated 26.8.1971, in favour of the first defendant, in respect of property bearing assessment No.714. Ex.P.17 is the certified copy of the plaint in O.S.No.86/1989 (Old No.111/1987). Ex.P.18 is the certified copy of the order sheet in O.S.No.111/1987.
The first defendant has produced exhibits D.1 to D.55. Ex.D.1 is the sale deed dated 18-4-1963, in favour of the first defendant, in respect of the property bearing assessment No 1312 and 1311. Ex.D.2 is the assessment list of property bearing No. 1754. Ex.D.3 is the sale deed dated 22.12.1967, in favour of the first defendant, in respect of the property bearing assessment No. 170. Ex.D.4 is the assessment list in respect of the property bearing assessment No.45. Exhibits D.5 to D.8 are the tax paid receipts. Ex.D.9 is the sale deed dated 26.8.1971, in favour of the first defendant, in respect of property bearing assessment: No.714. Ex.D.10 is the sale deed dated 11.10.1971, in favour of the first defendant, in respect of property bearing assessment No.714/3. Ex.D.11 is the sale deed dated 6.9.1972, in favour of the first defendant, in respect of property bearing Sy.No.54/2 of Devarahonnali village. Ex.D.12 is the mutation register extract in respect of Sy.No 54/2. Exhibits D.13 to D.16 are the RTC extracts of Sy.No.54/2B for the years 1.985-86 to 1986-87, 1990-91 to 1992-93, 1990 91 to 1994-95 and 1995-96. The name of the first defendant is shown in column No.12. Ex.D.17 is the sole deed dated 23.4.1973, in favour of the first defendant, in respect of assessment No. 1652, site No.69. Ex.D.18 is the certified copy of the plaint in O.S.No.143/1973 (O.S.No.427/69). Ex.D.19 is the certified copy of the written statement in O.S.No.427/1969. Ex.D.20 is the certified copy of the compromise petition in O.S.No.143/1973. Ex.D.21 is the copy of the order passed by the Tahsildar, Honnali, regarding change of katha in respect of Sy No.54/1. Ex.D.22 is the mutation register extract in respect of Sy.No.54/1. Exhibits D.23 to D.28 are the RTC extracts in respect of Sy.No.54/1A for the years 1985-86 to 1986-87, 1990-91 to 1994 95, 1995-96. 1969-70 to 1972-75. 1974-75 to 1978-79 and 1979-80 to 1964-85. Ex.D.29 is the sale deed dated 22.5.1975, in favour of the first defendant, in respect of Sy.No.54/1A. Ex. D.39 is the assessment list in respect of property bearing No. 1750. The property stands in the name of Adiveppa, the father of the plaintiff and the first defendant. Ex.D.31 is the certified copy of the order sheet in O.S.No. 160/1978. Ex.D.32 is the certified copy of the order sheet in execution case No.34/90. Ex.D.33 is the redemption deed dated 30-3-1984, in favour of the first defendant in respect of Sy.Nos.54/2 and 54/1A by Canara Bank. Ex.D.84 is the ration card showing the names of the family members of the first defendant. Ex.D.35 is the sale deed dated 26.11.1971, in favour of H. K. Gowramma, by the defendant No.8 in respect of property bearing assessment No.906. Ex.D.36 is the sale deed dated 26.12.1977, in favour of H.Narayana, by defendant. No.8 in respect of property bearing assessment No.714/4. Ex.D.37 is the partition deed dated 7.7.1980 between the first defendant and the third defendant. Ex.D.38 is the RTC extract in respect of Sy.No.54/2B for the year 1990 91. The name of the defendant No.3 is shown in column No.12. Ex.D.39 is the assessment list in respect of property bearing No.705/1. The property stands in the name of the defendant No.3. Ex.D.40 is the assessment list of property bearing No.706/4: The property stands in the name of U.S. Manjunatha s/o.Kenenappa. Ex.D.41 is the assessment list of property bearing No. 1753/2. The property stands in the name of Nagamma W/o.Mahadevappa, Shanthamma w/o.Palakshappa. Exhibits D.42 to D.44 are the photographs Ex.D.45 is the notice issued by the Assistant Executive Engineer to the first defendant. Ex.D.46 is the tax demand register for the year 1997-98 in respect of the property bearing No. 1904. Ex.D.47 is the RTC extract in respect of Sy.No.54/1A for the years 1990-91 to 1991-93. The name of the first defendant is shown in column No.12. Ex.D.49 is the tax paid receipt in respect of Sy.No.54/1A. Ex.D.50 is the notice issued by the co-operative society to the first defendant. Ex.D.51 is the receipt dated 29.6.1979 showing payment of Rs. 2,320/- to the Society. Ex.D.52 is the ration card of the plaintiff''s family. Ex.D.53 is the invitation to attend the obsequies of the plaintiff. Ex.D.54 is the death certificte of the plaintiff. Ex.D.55 is the order passed in MA.No.56/1987.
The evidence on record shows that the father of the plaintiff and the defendants 1 to 3 has died in the year 1956. The plaintiff contends that he lived with the defendants 1 to 3 till the year 1981. Thereafter, he left to Bilichodu with his wife during 1981-82, The first defendant contends that the plaintiff separated from the family in the year 1958 59 The first defendant has not produced anything to show that the plaintiff has separated from the family in the year 1958 59.
The plaintiff has deposed that his father died in the year 1956. The first defendant, himself and the defendants 2 and 3 continued to reside together. They were cultivating the lands as tenants. When their father died the defendants 2 and 3 were young. Himself and the first defendant were doing business in paddy and groundnut and also cultivating the land as tenants. He has stated, in 1963, they started a kirana shop in Nehru road. In 1967, they purchased the shop where they were doing business. Item No.2 of suit ''A'' schedule was cultivated by them as tenants. In 1962, item No.2 was purchased from the income from the land and the shop. Item Nos.1 4, 3, 7 and the other properties were purchased from the income from the land, business and the shop. He has stated that they resided together till 1978-79, in 1979, as the womenfolk in the family were not pulling on well, a panchayat was convened and in the said panchayat, the plaintiff demanded the share but, the properties were not divided. In 1981, he went to Bilichodu with his wife. He has also stated that in 1989 he demanded share and it was denied and the first defendant has sold item Nos.2 and 7 of ''B'' schedule to deprive him of his share.
The first defendant has deposed that his father died in the year 1956 and only ancestral house i.e., item No.6 of B schedule was left by his father. No other properties were left by his father. He was doing business. The plaintiff was also doing business separately. He has stated, in 1958-59, they shifted to outhouse, lived there upto 1970. The plaintiff opened provision store in 1970 in the name of Aruna Provision at Tumminakatte road. Honnali. He has stated, he was doing rice and jawar business. The plaintiff and himself did not do business together. In 1979-80, the plaintiff closed the shop as he sustained loss. He has stated, in 1963, he purchased item Nes.4 and 5 of ''B'' schedule through. Ex.D.1. In 1967, he purchased shop premises i.e., item No.3 of ''B'' schedule through Bx.D.3. In 1971, he purchased item No.2 of ''B'' schedule through Ex.D.9. In 1972, he purchased 3 acres and 20 guntas of land in By.No.54/2 i.e., item No.2 of ''A'' schedule property. In 1973, he purchased item No.7 of ''B'' schedule through Ex.D. 17. In 1969, he had taken 3 acres and 32 guntas of land in Sv.No.54/1 on lease. He was cultivating the land. Except the house at Kumbara Beedi. Honnali, he had not inherited any ancestral property. Gold and silver articles shown in item No.1 to 9 of ''C'' schedule are not in his possession. He has given share to defendant No.3 in item No.2 of ''A'' schedule out of love and affection.
The first defendant ie., D.W.1 has admitted that he was cultivating the land in Sy.No.54/1 on lease since 1967. Ex.D.19 shows that he took the land on lease in Sy.No.54/1A in the year 1960 from Madappa on a rent of ( Rs. ).150/-. Later on, Padmanabhalah enhanced it to ( Rs. ) 1,200/-. The first defendant has admitted that he was doing business in rice and jawar and the plaintiff was also doing business, in 1070, the plaintiff opened a provision store. The first defendant has stated that he has not maintained any accounts regarding his business and he had no bank account and he has not paid income or sales tax and he has no document to show the source of income to purchase the suit schedule properties. Therefore, it is clear, there is no documentary evidence to show that the defendant No. 1 was doing business independently. There is also no documentary evidence to show the income of the first defendant during relevant, point of time. All the properties have been acquired during 1963 to 1975. The first defendant has not produced anything to show that the plaintiff was residing Separately, it is clear, the plaintiff and the defendants 1 to 3 were residing together and doing business. The defendant No.1 has admitted that except from agriculture, business and shop, there was no other source of income.
In the year 1980, the partition has taken place between the defendant No.1 and the defendant. No.3 as per Ex.P.2, in the said partition, two properties i.e., 2 acres and 16 guntas of land in Sy.No.54/2 and property bearing assessment No.706/714, katha No.526/B measuring 29 feet x 15 feet have been allotted to the share of the defendant No.3. In Ex.P.2, it is clearly mentioned that the defendant No.3 was residing in the joint family and the defendant No.3 is taking his share from the joint family properties and he has no claim in the remaining joint family properties, The defendant No. 1 has signed Ex.P.2 as Manager of the family. The recitals of Ex.P.2 clearly show that the family was joint and the properties are joint family properties. 2 acres and. 16 guntas of land in Sy.No.54/2 i.e., item No.2 of suit ''A'' schedule and property bearing assessment No.706/714, katha No.526/B measuring 29 feet x 15 feet i.e., item. No. 1 of suit ''B'' schedule have been given to the share of the defendant No.3. The defendant No.1 contends that the properties were given to the defendant. No.3 out of love and affection. It cannot be accepted. The recitals of Ex.P.2 clearly show that the properties were joint family properties and the defendant No.3 has taken his share. Nowhere in Ex.P.2 it is mentioned that the defendant No.1 has given the properties to the defendant No.3 out of love and affection or the properties are self acquired properties of the defendant No.1.
It is clear from Ex.P. 2 that the claim of the First defendant that the suit schedule properties except item No.6 of ''B'' schedule are not joint family properties cannot be accepted. From the recitals of Ex.P.2, it is clear that the properties are joint family properties and the family was joint and the defendant No.3 has taken his share and separated from the family. The defendant No.1 has failed to show that the suit schedule properties were acquired out of his own earnings and they are his self acquired properties. No doubt, the suit ''A'' and ''B'' schedule properties except item No.6 of ''B'' schedule have been acquired in the name of the first defendant who was managing the affairs of the family. The plaintiff and the defendant. No. 1 as eiders of the family have done business. The first defendant has stated that he has not maintained any account regarding his business and he had no bank account and he has no document to show the source of income from which the suit schedule properties were acquired, In the absence of documentary evidence, it is difficult to believe, the suit schedule properties i.e., ''A'' and ''B'' schedule properties are self-acquired properties of the first defendant. The evidence on record clearly shows that ''A'' and ''B'' schedule properties are joint family properties and therefore, the plaintiff is entitled for a share.
The first defendant has alienated two properties i.e., item No.2 and item No.7 of suit ''B'' schedule. Item No.2 has been sold in favour of the defendant. No.6 through registered sale deed dated 25-10-1980 and in turn, the defendant No.6 has sold item No.2 to defendant. No.7 who is the wife of the first defendant. Item No.7 has been sold in favour of the defendant No.4 and the defendant No.4 inturn has sold item No.7 to defendant No.5. The defendant No. 1 contends that Item No.2 and 7 are his self-acquired properties and he has sold item No.2 and 7 for his need. Infact, item No.2 and 7 are joint family properties and therefore, the alienation is bad and does not bind the plaintiff.
In so far as ''C'' schedule properties are concerned, the plaintiff has deposed that the family possessed gold articles shown in ''C'' schedule and it was purchased during 1968 to 1971. Nothing is produced to show that the gold articles were purchased during 1968 to 1971. There is nothing on record to show the existence of ''C'' schedule properties. Therefore, the Trial Court was not justified in granting share in ''C'' schedule properties and it cannot be sustained in law.
In so far as ''A'' and ''B'' schedule properties are concerned, the plaintiff is entitled for a share. The defendant No.2 has died during the pendency of the suit. The defendant No.8 has been given in adoption. The plaintiff is not a party to the partition between the defendant No.1 and the defendant No.3 and it does not bind the plaintiff. Therefore, the plaintiff is entitled for 1/3rd share in the suit ''A'' and ''B'' schedule properties. In so far as ''C'' schedule properties are concerned, the plaintiff is not entitled for any share.
Accordingly, the appeal is allowed in part, in so fat-as ''C'' schedule properties are concerned. The judgment and decree passed by the Trial Court in O.S.No. 115/2002 stands confirmed in respect of suit ''A'' and ''B'' schedule properties. In so far as ''C'' schedule properties are concerned, the plaintiff'' is not entitled for any share. No costs in the circumstances of the case.