Shri C. Shashidhar, Sri. C. Suresh and Smt. Prema vs Smt. K.G. Devamba

B. Manohar, J.—Appellant is the second Plaintiff in O.S. No. 8819/1997 being aggrieved by the judgment and decree dated 29-6-2004 passed by the 18th Additional City Civil Judge, Bangalore, wherein the Civil Judge dismissed the suit filed by the Plaintiffs preferred this appeal.

The Plaintiffs have filed a suit seeking for partition and separate possession of the suit schedule properties and allot 1/4 share to each of the Plaintiffs out of the suit schedule properties and demarcate the properties and put the Plaintiffs in possession of their shares. Consequently, they also sought for an injunction restraining the Defendants from alienating, creating any charge over the suit schedule property.

The Plaintiffs in their plaint contended that they are the children of Dr. N. Channabasappa through his first wife late Chandamma who died in the year 1957. The Defendant No. 1 is the second wife of Dr. N. Channabasappa and the third Defendant is the daughter of first Defendant. Dr. Channabasappa died on 1-1-1986. The case of the Plaintiffs is that their father Dr. Channabasappa was working as a Joint Director in Animal Husbandry department. After the death of his first wife Smt. Chandamma i.e. mother of Plaintiffs 1 to 3 in the year 1957, he married the first Defendant in the year 1963. The Plaintiffs and the Defendants 1 and 3 were living along with Dr. N. Channabasappa till his death. Dr. N. Channabasappa purchased the property bearing Sy. No. 93 of Sharnapur Village measuring 17 acres 21 guntas of land, Davanagere Taluk, along with two others namely K.R. Somasekharappa and H.G. Hanumanthappa. The said property was partitioned as per the registered partition deed dated 23.1.1969 and Sri. Channabasappa got 5 acres 21 guntas of land. The said property was sold in the year 1969, out of the said sale proceeds, Channabasappa purchased the land bearing Sy. No. 50/3 at Sulthanapalya measuring 1 acre 10 guntas under three different sale deeds in the name of the first Defendant. Originally, it was an agricultural land, due to the development of the Bangalore City, the said land has lost its agricultural character and it has developed and huge houses have come up. Therefore, there is no more existence of agricultural status. The said property is purchased out of the joint family nucleus. It is the contention of the Plaintiffs that they have got right over the land purchased in the name of the first Defendant situated at Sulthanapalya. The father of the Plaintiffs died on 1-1-1986 leaving behind Plaintiffs and Defendant Nos. 1 and 3. Further, the Plaintiffs 1 and 2 started earning during the year 1975-76 onwards and they have also contributed funds for the development of the said properties. Out of such contribution, the first Defendant and the father of the Plaintiffs constructed a house in the said property in the year 1979. Since all of them continued to live together in the said house till the death of the Plaintiffs'' father, the Plaintiffs have got right over the suit schedule properties and the suit schedule properties are the joint family properties. However, after the death of father of the Plaintiffs, the first Defendant started ill-treating the Plaintiffs, therefore, without any alternative they had to make arrangement for separate living and cooking. There is no partition in the joint family properties. However, the first Defendant taking advantage of the same, tried to alienate the properties and shifted her residence from the suit schedule property to a Flat. She had entered into an agreement with the second Defendant for the construction of the apartment on the said property. On questioning the same, the first Defendant informed that she is putting up an apartment and she would give a share to all the Plaintiffs. However, the first Defendant is secretly selling the flats in order to avoid giving share to the Plaintiffs in the suit schedule properties. In view of that, the Plaintiffs filed a suit seeking for partition and possession and also for injunction.

In pursuance to the notice issued by the learned Civil Judge, the Defendants entered appearance and first Defendant filed objections denying the averments made in the plaint and also contended that the suit properties are not the joint family properties. The Plaintiffs have no right or interest in respect of the suit schedule property. The Plaintiffs separated from their father long before his death. There is no cause of action for the suit and the averments made in the plaint are false. Further contended that she had married Dr. Channabasappa in the year 1963 and prior to that she was working as a Teacher in Vanivilas Government High School from the year 1958. Thereafter, she served in various High Schools run by the Bangalore City Corporation and retired as Head Mistress. Further, the father of the first Defendant was a retired Chief Engineer in the Karnataka State. On his death, there was partition in the family of the first Defendant under the registered partition deed dated 30-7-1963. In that partition, she got her share as two Bungalow sites measuring 120 ft x 80 ft each in P.G. Extension, Davanagere, 6 sites measuring 40 ft x 40 ft in 9th Block, Sarakki Layout, Jayanagar, Bangalore. Further she sold 2 bungalow sites at Davanagere to one Keshava Murthy under the registered Sale deed dated 16-12-1965. She purchased 20 guntas of land from Siddaramappa and Ramakrishnappa as per the sale deed dated 3-12-1969, 11 guntas of land in Sy. No. 50/3 of Mattadanalli Dakhale, Sulthanapalya under the registered sale deed dated 19-12-1969, a site measuring 14 ft x 118 ft. from one Papaiah, on 19-12-1969 and 5 sites measuring 30 ft x 35 ft each under the registered sale deed dated 19-12-1969 in her name. Since then, she is in lawful possession and enjoyment of the said properties. She has constructed a Farm House by availing loan of Rs. 15,000/- from the Indian Bank. The Katha of the said properties stands in her name and she is paying the property Tax. The said properties had been purchased by selling her properties at Davanagere and her husband Dr. Channabasappa has not contributed any money to purchase the same.

Further, Dr. Channabasappa purchased Sy. No. 93 of Shamnur village along with K.R. Somashekharappa and H.G. hanumanthappa. When the property was divided among Dr. Channabasappa and other two persons, Channabasappa had to owe some money to other two partners and the first Defendant discharged the said debts.

In view of that, while allotting share to Dr. Channabasappa, the name of the first Defendant was also included as a owner of Sy. No. 93/1-A along with Dr. Channabasappa. The said property was sold in the year 1969 for the purpose of marriage of the 3rd Plaintiff. Hence, it is clear that Dr. Channabasappa has not contributed any money for the purchase of the property at Sulthanapalya.

The first Defendant further alleges that Dr. Channabasappa did not possess any ancestral property and he has brought up his children by the meager salary he was getting as a Government employee. Though he had purchased the property at Davanagere, the first Defendant had settled the debt that he has to owe to his two partners. Further, the first Defendant and her husband purchased the property bearing Sy. No. 116/1 measuring 1 acre 22 guntas, Sy. No. 105/1 measuring 2 acres 3 guntas in the name of the second Plaintiff and also purchased the land bearing Sy. No. 116/1 measuring 2 acre 14 guntas Sy. No. 100/1 measuring 2 acres 6 guntas, Sy. No. 116/3 measuring 16 guntas in the name of the third Plaintiff. Further, they also purchased land bearing Sy. No. 113/10 to 113/18 measuring 1, acre 7 guntas of land situated at Byappanahalli and 6 acres of land in the name of the first Plaintiff. It is contended that the Plaintiffs have not disclosed the said facts in the plaint and they have suppressed the material facts. Further, the Plaintiffs have sold the said properties in the year 1988 onwards. The said property was also not included in the present suit. Further the first Defendant has constructed the Flats out of her own earnings and disposed of the same, the Plaintiffs have no right or interest in respect of the aforesaid flats. The first Defendant further alleges that the allegation of the Plaintiffs that the first Defendant assured that she would give a share in the building constructed by her is totally incorrect. That apart they are staying separately since 20 years. The joint family is not in existence and sought for dismissed of the suit.

On the basis of the pleadings of the parties, the learned City Civil Judge, framed the following issues:

(i) Whether the Plaintiffs prove that suit schedule property was purchased from the family funds in the name of the first Defendant and the suit schedule property is the joint family property of the parties to the suit?

(ii) Whether the Plaintiffs prove that they and the first Defendant belonged to the undivided-Hindu Joint family?

(iii) Whether the Plaintiffs is entitled to 1/4th each undivided share in the suit schedule properties and separate possession of the same by metes and bounds?

(iv) Whether the Plaintiffs prove that they have got right, title and interest over the suit schedule properties and are entitle for grant of permanent injunction as prayed for?

(v) Whether the first Defendant proves that the suit schedule property is her self acquired property?

(vi) To what order or decree?

The Plaintiffs in order to prove their case examined first and second Plaintiffs as P.W.2 and P.W.1 respectively and also examined one Siddappa as P.W.3 and got marked Ex.P1 to Ex.P.41. On behalf of the Defendants, the first Defendant got examined herself as D.W.1 and examined two other witnesses as D.W.2 and D.W.3 and got marked the documents as Ex.D1 to Ex.D.23.

The Trial Court after considering the oral and documentary evidence let in by the parties held issue No. 1 to 4 in the negative and issue No. 5 in the affirmative, consequently by its judgment and decree dated 29-6-2004 dismissed the suit filed by the Plaintiffs holding that the Plaintiffs are not entitled to any share in the suit property. Being aggrieved by the judgment and decree dated 29-6-2004 made in O.S. No. 8819/1997, the Plaintiffs filed this appeal.

Initially all the three Plaintiffs had filed the appeal. During the pendency of the above appeal, the Appellant Nos. 1 and 3 filed a memo seeking leave of the court to withdraw the appeal. Accordingly, the appeal was dismissed as against Appellant Nos. 1 and 3. The Appellant No. 2 is contesting the appeal.

Sri. Ko. Channabasappa, learned Counsel appearing for the Appellant contended that the judgment and decree passed by the court below is contrary to law and no material has been placed before the court to show that the first Respondent has purchased the suit schedule properties out of her own earnings. Though the materials have been placed before the court to show that after ceiling the property bearing No. 93 situated at Shamnur village in the year 1969 the properties in question were purchased, the Trial Court totally misunderstood and misread the evidence on record. The learned Counsel further contended that Ex.P. 15 i.e. the declaration filed before the Authorities under Urban Land (Ceiling and Regulation) Act the first Respondent had declared that the lands in dispute are the joint family properties. Hence, it is not open for the first Respondent to contend that the lands in dispute are not joint family properties. Further in the declaration filed by Dr. Channabasappa before the State Government it was specifically mentioned that the properties are owned by the family. Hence, it is not open for the first Respondent to contend that the lands in dispute are not joint family properties. Further, the properties in dispute were purchased from nucleus of the joint family income. Hence, the Appellant is entitled for a share in the suit schedule properties and sought for allowing the appeal by setting aside the judgment and decree passed by the court below.

On the other hand, Sri. B. Rudregowda, learned Counsel appearing for the first Respondent contended that there is no infirmity or irregularity in the judgment and decree passed by the court below. The Trial Court after considering the oral and documentary evidence let in by the parties held that the suit schedule properties were purchased by the first Respondent by selling some of the properties at Davanagere and out of her own earnings since she was working as a Teacher in Municipal High School. Further, the father of the Plaintiffs has sold the property bearing Sy. No. 93 situated at Shamnur village in the year 1969 and celebrated the marriage of the third Plaintiff. Further, the Appellant has also not disclosed the expenditure of the marriage of the third Plaintiff. Apart from that in the family partition of the properties of father of the first Defendant, she got vast extent of land at Davanagere as well as in Bangalore. By selling some of her properties at Davanagere, she has purchased the lands in dispute and the same Cannot be treated as joint family properties in the absence of any nucleus of joint family properties. The Appellant himself has admitted in his cross-examination that from the year 1978 onwards he has been residing separately and there is no existence of joint family. Further, no document has been produced before the court to show that they have contributed any amount for the purchase of the suit schedule properties. There is no infirmity in the judgment and decree passed by the court below and sought for dismissal of the appeal.

We have carefully gone through the arguments addressed by the learned Counsel for the parties.

The relationship between the parties is undisputed. Both the parties admit that the Appellants are the children of Dr. Channabasappa through his first wife and the first Respondent is the second wife of Dr. Channabasappa and the third Respondent is the daughter of Dr. Channabasappa through the first Respondent. The case pleaded by the Appellant is that Dr. Channabasappa purchased the property bearing Sy. No. 93 situated at Shamnur village in the year 1961 along with two other partners K.R. Somashekarappa and H.G. Hanumanthappa. The said property was sold in the year 1969 in order to purchase the property at Sulthanapalya and also purchased the suit schedule properties in the name of the first Respondent, hence, the said properties had been purchased out of the nucleus of the joint family properties. Therefore the Appellant is entitled for his share in the said properties. Whereas, the first Respondent contended that she was working as a Teacher from the year 1958 and married Dr. Channabasappa in the year 1963. Further, her father was a retired Chief Engineer in the State Government and in the family partition she got two bungalow sites at Davanagere and 5 sites measuring 40 x 40 feet in the 9th Block, Jayanagar, Bangalore. She sold two big sites at Davanagere on 16-12-1965 out of which amount and also out of her earnings, she has purchased the properties in Sulthanapalya and Mattadahalli. It is her contention that neither Dr. Channabasappa nor Plaintiffs have right or interest whatsoever over the said properties and neither Dr. Channabasappa nor Plaintiff had contributed any money for the purchase of the said properties. Hence, the suit schedule properties cannot be treated as joint family properties and they have no right over the same.

The second Appellant examined himself as P.W.1. In his evidence he has reiterated his stand in the plaint and contended that Sy. No. 93 situated at Shamnur village, Davanagere Taluk was jointly purchased by Dr. Channabasappa, H.G. Hanumanthappa and K.R. Somashekharappa. In that partition, Dr. Channabasappa got 5 acres 21 guntas of land and other two partners got 6 acres each. Dr. Channabasappa sold his share in the said property through GPA and out of the said sale proceeds the suit schedule properties have been purchased under 4 different sale deeds. Hence, they are the joint family properties and the Appellant has got 1/4th share in the properties. Further, the first Respondent sold some of the properties at Davanagere and in turn she purchased some properties in Davanagere itself. Even in the declaration filed before the Deputy Commissioner of Urban Land Ceiling Authority, the first Respondent has shown the lands in dispute as family properties. Hence, she cannot turn down and say that the said properties are not joint family properties. He has further deposed that they lived together as joint family till the death of Dr. Channabasappa in the year 1986. From the year 1975-76 Appellants 1 and 2 started earning and contributed their earnings for the construction of the house. It was further deposed that the first Respondent orally informed the Appellant that she would construct an Apartment in the lands in dispute and allot residential flats and houses to all the Appellants as their shares. However, secretly without informing the Appellants, the said flats had been alienated.

P.W.1 was cross-examined. In his cross-examination P.W.1 has stated that he married in the year 1981. From 1078 to 1983, he stayed at Byappanahalli, during 1984-85 he stayed at Davanagere, from 1985 onwards he was staying at Basaveshwaranagar, in the middle he stayed at Shimoga for a period of 4 years. He further deposed that there was partition in the family of the first Respondent and in the said partition, two sites measuring 120 x 80 feet each in P.G. Extension were allotted to the share of the first Respondent. Further 6 sites measuring 40 x 40 feet each situated at 9th Block, Jayanagar were also allotted to her.

Further, the two big sites at P.G. Extension were sold to one Keshava Murthy in the year 1965. He has further deposed that in respect of property bearing Sy. No. 93 situated at Shamanur village, Davanagere Taluk, the name of the first Respondent was also included along with his father. Further, his father and first Respondent had given Power of Attorney in favour of Mahadevappa and Duggappa and the said Power of Attorney holders sold 5 acres 21 guntas in Sy. No. 93 in the year 1969. He has further deposed that his father was drawing salary of Rs. 1450/- in the year 1979; Rs. 1,525/- in 1980. His father has spent money for education of his 3 children. However, he has denied that from the sale proceeds of the properties at Davanagere and out of the savings of the first Respondent she has purchased the properties in Sulthanapalya. He has admitted that khatha in respect of the lands in dispute and other lands stand in the name of the first Respondent. He has further admitted that some of the properties purchased by the first Respondent were sold prior to the death of the father of the Appellants on 1-1-1986. Further, the father of the deponent has signed the sale deed as a witness. P.W.1 also admitted that the marriage of the 3rd Plaintiff was performed in the year 1969. However, he denied that by selling the property bearing Sy. No. 93 situated at Shamanur village, Davanagere District, the marriage of the 3rd Plaintiff was performed. Further, he has admitted that the properties purchased in the name of the P.W.1 in the year 1979 by the first Respondent and her husband were sold by P.W.1 on 26-10-1987 onwards in favour of one Padma Prakash Shetty for Rs. 75,000/- to an extent of 2 acres 3 guntas of land in Sy.No. 105/1 and 1 acre 24 guntas of land in Sy. No 100/2 for Rs. 50,000/- in favour of Smt. Usha and another property in favour of Padmaprakash Shetty for Rs. 45,000/-.

P.W.3 in his evidence has deposed in favour of P.W.1 and he is an interested witness. In his evidence, he has stated that he does not have any personal knowledge about the selling and purchase of the properties and he has given the evidence on the basis of the hearsay. Though P.W.2 has given evidence, the appeal filed by the P.W.2 who is the Appellant No. 1 in the appeal has withdrawn his appeal.

The D.W.1 in her evidence deposed that what is stated in the written statement and her categorical contention that she had purchased the suit schedule properties at Sulthanapalya from and out of her earnings as Head Mistress of Municipal Corporation School and also by selling of her properties that she got in the family partition of her father and the Appellants have no right or interest over the suit schedule properties and the same was not purchased out of the nucleus of the joint family income. She has produced some of the documents in support of her contentions. In her cross-examination she denied that out of sale consideration of the property bearing Sy. No. 93 situated at Shamanur village, Davanagere Taluk, purchased the properties at Sulthanapalya. The property at Sulthanapalya was purchased by her own earnings and on selling of some of the properties allotted to her in the family partition of her father. For negotiations and sale of the plaint properties with the vendor her husband i.e. Dr. Channabasappa accompanied with her. She has further deposed that after selling two big sites at Davanagere on 16-12-1965 she purchased 1 acre 6 guntas of land at Davanagere for Rs. 3,000/- and remaining Rs. 15,000/- was kept in the Bank and for purchase of the property at Sulthanapalya, she withdrew the money from the Bank in the year 1969. Sy. No. 50/3 measuring 20 guntas was purchased on 3-12-1969 for Rs. 10,000/- and 11 guntas of land was purchased for Rs. 5,000/- and land measuring 118 feet x 14 feet in Sy. No. 44 was purchased for Rs. 2,000/-. Neither Dr. Channabasappa nor the Appellants had contributed any money for purchase of the said properties. She has further deposed that for the settlement of debts of Dr. Channabasappa to other two partners in respect of purchase of the land bearing Sy. No. 93, she has paid money to them. In view of that, while allotting 5 acres 21 guntas of land in favour of Dr. Channabasappa, name of the first Defendant was also included in the sale deed. The said property has been sold by giving Power of Attorney in the year 1969. Further in the declaration filed before the Urban Land Ceiling Authority she has mentioned that she is the owner of the property and their family consisting of husband and four children. Further, some of the properties belonged to the first Respondent were gifted in favour of the first Appellant. Long prior to the death of Dr. Channabasappa, the Appellants were living separately and there is no existence of joint family. Hence, the Appellants have no right over the suit schedule properties.

Having heard the learned Counsel for the parties, the only point for consideration in this appeal is as to whether the suit schedule properties purchased by the first Respondent is out of joint family funds of the Appellant and Respondents or not?

The evidence of the parties and documents made available clearly show that in the family partition of the first Respondent''s father, the vast extent of land was allotted to the first Respondent and by selling two big sites measuring 120 x 80 feet in the year 1965 and also out of her own earnings working as Head Mistress in Municipal High School the first Respondent had purchased the suit schedule properties. The Record of Rights and other relevant records stand in the name of the first Respondent. Though the Appellant has contended that by selling the property belonging to Dr. Channabasappa situated at Shamanur village, Davanagere Taluk, the suit schedule properties were purchased, no material has been produced before the court to show that out of the nucleus of the joint family properties the suit schedule properties were purchased. The specific case of the first Respondent is that by selling the properties at Davanagere, Dr. Channabasappa performed the marriage of the 3rd Appellant in the year 1969. The first Respondent has produced necessary documents to show that by availing loan from the Bank she has constructed the house and residing therein Though the Appellant has contended that they had contributed the money for the construction of the house, no document has been produced in this regard.

Admittedly, the properties have been purchased in the year 1969. The case of the Appellant is that in the declaration filed by the first Respondent before the Urban Land Ceiling Authorities, she has declared that the family owns vast extent of property including the suit schedule property. Hence, the specific case pleaded by the Appellant is that the suit schedule properties are joint family properties. To contend that the properties are joint family properties, except declaration at Ex.P. 15, no document has been produced. The evidence led by the Appellant or the documents produced by them do not show that the suit schedule properties are purchased from the nucleus of the joint family properties. Usually in a Hindu joint family, the property belonging exclusively to the female member would also been normally managed by the manager of the family. Only on the ground that the head of the family is managing the property, the said property will not become the joint family properties. In a judgment reported in AIR 1993 KAR 148 in the case of Dundappa Rudrappa Hampali and Ors. v. Renukappa @ Revanappa and Ors. it is held that existence of joint family does not lead to interference that property held by any member of family is joint. The initial burden is to establish the existence of such joint family properties, capable of being the nucleus from which new property or asset could be acquired. It is not sufficient to show that joint family possessed some assets and it is necessary to prove that the assets of joint family might have formed the nucleus from which disputed assets might have been acquired. Whether the joint family assets could form the nucleus again depend upon their nature and relative value. The existence of such joint family properties which could have formed the nucleus for acquiring new property by itself would not lead that the new assets acquired by any member of the family would be joint family properties. In the instant case, except mere assertion on the part of the Appellant that from selling of the property Sy. No. 93 measuring 5 acres 21 guntas of land, Dr. Channabasappa purchased the suit schedule properties in the name of the first Defendant. No material in support of the said contention has been produced. Further, the Appellant has also not disclosed how the marriage of the 3rd Appellant was performed in the year 1969. The Trial Court after considering the material evidence on record held issue Nos. 1 and 2 against the Appellant and also held that the suit schedule properties are not the joint family properties and purchased out of nucleus of the joint family. Further, the other issues were also held against the Appellant.

Sri. Ko. Channabasappa, learned Counsel appearing for the Appellant relied upon the judgment reported in Seth Beni Chand (Since Dead) Now by L.Rs. Vs. Smt. Kamla Kunwar and Others, ; 1963 SCR 1 (Kanakarathanamma v. V.S. Loganatha Mudliar and Anr.; Maharao Sahib Shri Bhim Singhji Ors. Vs. Union of India (UOI) and Others, ; Jodhan Real Estate Development Co. (P) Ltd. and Anr.; Rajendra Gard Etc; Shamshul Islam Etc. v. Union of India and Ors. and contended that the declaration made under Urban Land Ceiling Act, regarding holding of the family is binding, hence the suit schedule properties has to be declared as joint family properties.

On the other hand, Sri. B. Rudragowda, relying upon the judgment reported Vidhyadhar Krishnarao Mungi and Others Vs. Usman Gani Saheb Konkani and Others, and Pratibha Rani Vs. Suraj Kumar and Another, contended that the property purchased by the wife cannot be treated as benami of the husband and the same cannot be treated as joint family properties.

The pleadings of the parties and evidence on record clearly shows that the suit schedule properties are the self acquired properties of the first Defendant by selling some of the properties at Davanagere and by her own earnings as Head Mistress of Municipal School purchased the property. No document has been produced to show that the properties have been purchased out of the nucleus of the joint family. Hence, the Appellant has failed to prove that the suit schedule properties are the joint family properties. The Trial Court considered the matter in detail and dismissed the suit. We found that on re-examination of evidence and pleadings of the parties, the Appellant has not made out any ground to interfere with the order passed by the court below. That apart, the other members of the family i.e. Appellants 1 and 3 have withdrawn the appeal. The second Appellant has not made out any ground to interfere with the well-considered order passed by the Trial Court and we answer the point for consideration against the agreement. Accordingly, we pass the following:

ORDER

Appeal is dismissed.

Parties to bear their own costs.