Sri Rangaiah @ Rangaswamy vs Sri Rangappa and Others

H.N. Nagamohan Das, J.—This second appeal is directed against the judgment and decree dated 15.01.2005 in R A. No. 34/1996 passed by the Principal Civil Judge (Senior Division at Ramanagar insofar as it relates to reversing the judgment and decree dated 31.07.1996 in O.S. No. 83/1989 passed by then Munsiff at Magadi in respect of item Nos. 7 to 13 of A schedule, item Nos. 2 and 3 of B schedule and C schedule properties.

Appellant is the Plaintiff and Respondents are the Defendants before the Trial Court. In this judgment for convenience the parties are referred to their status before the trial Court.

Plaintiff and Defendant Nos. 2 to 8 are the children of Defendant No. 1 and they constitute undivided Hindu joint family. The plaint schedule properties are the joint family properties of Plaintiff and Defendants. Despite repeated requests and demands, the Defendants refused to partition the plaint schedule properties. Therefore the Plaintiff filed O.S. No. 83/1989 for partition and separate possession of his 1/6th share in the plaint schedule properties.

Defendant Nos. 1, 2 and 4 to 8 filed written statement inter alia admitting the relationship between the parties, but denied that the plaint schedule properties are the joint family properties. Defendant No. 3 separated from the joint family and he is residing separately by taking 2 acres of land. Item Nos. 7 to 13 of plaint A schedule property are the self acquired properties of Defendant No. 2 and they are not joint family properties. On these grounds the Defendants opposed the claim of Plaintiff. On the basis of pleadings, the Trial Court framed the following issues for its consideration.

i. Whether the plaint B schedule item Nos. 2 and 3 and C schedule properties are the ancestral properties of the parties to the suit?

ii. Whether the Defendant No. 2 is the Manager of the joint family of these parties since 30 years?

iii. Whether plaint A schedule items No. 7 to 13 were acquired and B schedule house was constructed out of the nucleus of joint family properties and earnings of Plaintiff?

iv. Whether there is cause-of-action?

v. Whether Plaintiff is entitled to l/6th share and separate possession in all plaint schedule properties with future mesne profits?

vi. Whether Defendant No. 3 separated from joint family in 1960 with 2 acres of land?

vii. Whether Defendant No. 2 is in exclusive possession of plaint schedule A items Nos. 7 to 13?

viii. Whether suit item No, 9 is the self acquisition and possession of Defendants 2 and 3 as Darkastu land?

ix. What decree or order?

Before the Trial Court the Plaintiff examined four witnesses as P.W.1 to P.W.4 and got marked Ex.P.1 to Ex.P.34. The Defendants examined seven witnesses as, D.W.1 to D.W.7 and got marked Ex.D.1 to Ex.D.16. The Trial Court on appreciation of the pleadings, oral and documentary evidence held that the Plaintiff and Defendants are members of undivided Hindu joint family. The plaint schedule properties are the joint family properties. Some of the plaint schedule properties are acquired in the name of Defendant No. 2 out of the nucleus of the joint family properties. Consequently the Trial Court by its judgment dated 31.07.19% decreed the suit for partition declaring that Plaintiff is entitled for l/6th share in the plaint schedule properties.

Defendant No. 2 being aggrieved by the judgment and decree of the Trial Court filed an appeal in R.A. No. 34/1996. The first Appellate Court after hearing arguments framed the following points for its consideration.

i. Whether the Trial Court erred in holding that, the 2nd Defendant is the Manager of the joint family?

ii. Whether the Trial Court erred in holding that the suit items 7 to 13 of A schedule and suit items 2 and 3 of B schedule and also C schedule are the joint family properties of the Plaintiff and the Defendants?

iii. Whether the Trial Court erred in holding that the Plaintiff is entitled to l/6th share in all the suit properties?

iv. Whether the appeal is fit to be allowed?

v. What order or decree?

The first Appellate Court on reappreciation of the entire material en record held that item Nos. 7 to 13 of plaint A schedule, item Nos. 2 and 3 of plaint B schedule and C schedule properties are not the joint family properties and not liable for division. The first Appellate Court held that these plaint schedule properties are the self acquired properties of Defendant No. 2. Consequently under the impugned judgment the first Appellate Court partly allowed the appeal and reversed the judgment and decree of the Trial Court insofar as the above items are concerned and confirmed the judgment and decree of the Trial Court insofar as the remaining items of plaint schedule and declared that the Plaintiff is entitled for 7/36th share in the schedule properties. Hence, this second appeal.

This Court by order dated 24.03.2005 admitted the appeal to consider the following substantial question of law:

Whether the contra finding of the appellate Court that, item-Nos. 7 to 13 of A schedule property are the individual property of the second Defendant on the ground that the Plaintiff has failed to prove that they are acquired from joint family funds despite proof of the fact that the family owned sufficient nucleus and funds and over-looking the legal presumption available in favour of the Plaintiff is perversely contrary to law and evidence on record.

Sri. M. Shivaprakash learned Counsel for the Plaintiff contends that the plaint schedule item Nos. 1 to 6 are agricultural lands yielding sufficient income. Out of the joint family income, item Nos. 7 to 13 of plaint A schedule are acquired in the name of Defendant No. 2, The acquisition of plaint schedule items in the name of Defendant No. 2 was for the benefit of joint family, they are in the hotch-spat of the joint family and members of joint family were jointly enjoying the same. The first Appellate "Court without considering the oral and documentary evidence on record committed an illegality in reversing the finding of the Trial Court. Reliance is placed on the following decisions.

i. K.V. Narayanaswami Iyer Vs. K.V. Ramakrishna Iyer and Others,

ii. M.R. Rajasekharappa Vs. H.N. Siddananjappa,

Per contra, Sri. H. Kantharaj learned Counsel for the Defendants supports the judgment of the first Appellate Court. It is contended that Defendant No. 2 was residing separately from the joint family. There is evidence on record to show that out of the personal income of Defendant No. 2 he acquired plaint schedule item Nos. 7 to 13 and therefore they are his private properties. There is no evidence on record to show that joint family had the income and the same was contributed to acquire the plaint schedule item Nos. 7 to 13. There is no evidence on record to show that the properties acquired by Defendant No. 2 were put into the hotch-spot of joint family. On the other hand the evidence on record discloses that Defendant No. 2 was enjoying the plaint schedule item Nos. 7 to 13 as his separate properties. Reliance is placed on the following decisions.

AIR 2003 3800 (SC) .

I heard arguments on both the side and perused the entire appeal papers.

At this stage it is necessary to notice the law declared by the Supreme Court and this Court on the question of law relating to joint family properties.

The Supreme Court in the case of K.V. Narayanaswami Iyer Vs. K.V. Ramakrishna Iyer and Others, held as under:

Where properties were acquired in the name of a joint family member, if at the date of such acquisition the joint family had sufficient nucleus for acquiring it, the property should be presumed to have been acquired from out of family funds and so to form part of the joint family property, unless the contrary is shown. In the present case on a consideration of the evidence it is found that the joint family had at the date of the acquisition of the properties in question sufficient nucleus from which these properties could be acquired.

The Supreme Court in AIR 2003 3800 (SC) held as under:

The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.

A Division Bench of this Court in the case of M.R. Rajasekharappa Vs. H.N. Siddananjappa, held as under:

It is settled law that the proof of existence of a joint family does not lead, to the presumption that it possesses joint property. The property held by a member of the joint family cannot also be presumed to be the joint family property. In a suit for partition, a party who claims that any item of suit property is joint family property, the burden of proving that is so, rests on the part who asserts it. However, in a case where it is established that the joint family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property claimed to be the joint family property may have been acquired, the presumption arises that it was joint family property and the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family... It is also well established that where at the date of acquisition of a particular property, the joint family had sufficient nucleus for acquiring it, the property in the name of any member of the joint family should be presumed to be acquired from out of the family funds and was to forum part of the join family property unless the contrary is shown. It is more so it; the case of a kartha of a joint family possession sufficient nucleus at the time of acquisition of the property in his name to prove that he acquired it independent of, and without the aid of, the joint family funds.

Keeping in mind the law laid down in the decisions referred to supra it is necessary to examine the fact situation in the present case. Defendant No. 1 is the father of Plaintiff and Defendant Nos. 2 to 8, According to the Plaintiff, Defendant No. 2 was managing the joint family of Plaintiff and Defendants. Therefore certain items of plaint schedule are purchased in the name of second Defendant and therefore they are joint family properties. In the plaint there is no pleading to the effect that Defendant No. 2 was the manager of the joint family. Plaintiff who was examined as P.W.1 admits that his father Defendant No. 1 was the manager of joint family. Further it is seen from the record that Defendant No. 2 separated from his parents as early as in the year 1955 and he was residing separately. There is no positive evidence on record to show that Defendant No. 2 was residing with the Plaintiff and other members of the family. In the circumstances the first Appellate Court by appreciating this evidence on record rightly concluded that Defendant No. 2 was not the manager of joint family. Therefore, the question of acquiring certain plaint schedule properties in the name of Defendant No. 2 as Manager will not arise and the same is not proved and established by the Plaintiff. Plaintiff joined service in the year 1966 and he was staying in Bangalore. There is no documentary evidence on record to show that Plaintiff has contributed his income to the joint family.

The joint family of Plaintiff and Defendants were owning plaint schedule item Nos. 1 to 6. Both the Courts below held that the plaint schedule item Nos. 1 to 6 are agricultural lands and they are dry lands. No documentary evidence is produced to show that from these lands the joint family had surplus income to contribute towards the purchase of certain items of the plaint schedule properties in the name of Defendant No. 2. The oral evidence of Plaintiff is also inconsistent in this regard. In the absence of any positive evidence on record the first Appellate Court rightly held that from the plaint schedule item Nos. 1 to 6 there was no sufficient income to be contributed to purchase certain properties in the name of Defendant No. 2.

Admittedly the Plaintiff was residing at Bangalore, Defendant No. I was residing at Lakkupe village in Magadi taluk and Defendant No. 2 was residing separately from his father at Lakkupe village. There is no evidence on record to show that the joint family properties had sufficient income and that the same was contributed to purchase certain properties in the name of Defendant No. 2, If really the joint family had the income then there was impediment to purchase plaint schedule properties in the name of Defendant No. 1 instead of Defendant No. 2. There is no pleading and evidence clarifying this situation.

The first Appellate Court noticed the fact that there is no evidence to show that there was contribution from the joint family nucleus to purchase certain items of plaint schedule properties in the name of Defendant No. 2. Plaintiff contends that in addition to the agriculture the joint family was also doing milk vending business. In support of this contention there is no evidence on record to show that the joint family was doing milk vending business and the joint family had income from the said business. Except the oral interested testimony of P.W.1 there is no other evidence on record.

Ex.D.1 to Ex.D.4 are the registered sale deeds and Ex.P.33 is another sale deed in the name of Defendant No. 2 under which the plaint schedule item Nos. 7,''S, 10 to 13 are purchased. A reading of these sale deeds do not specify that Defendant No. 2 purchased the properties on behalf of joint family. There is no reference in these documents to show that there is contribution of salt consideration by the joint family of Plaintiff. On the other hand Defendant No. 2 contends that he purchased these properties out of his self-earning. Defendant No. 2 contends that he was cultivating the lands belonging to one Gangappa, Timmaraya Shetty and Munhiwamappa and was earning some income. Out of the said earnings he purchased plaint schedule items under Ex.D.1 to Ex.D.4 and Ex.P.33. This contention of Defendant No. 2 corroborates with the evidence of D.W.3 to D.W.7. In the cross-examination of this witness nothing is elicited to disbelieve their version. In addition to the income from agricultural lands Defendant No. 2 was also doing brick business and out of this also he was earning income. Even P.W.2 and P.W.3 in their evidence admit that Defendant No. 2 was doing brick business and he was also growing vegetables in the lands belonging to others. By appreciating this evidence on record the first Appellate Court held that Defendant No. 2 acquired some of the plaint schedule properties by investing his own income.

Plaintiff contends that though some of the plaint schedule properties are in the name of Defendant No. 2 they are put into the hotch-pot of the joint family and the members of joint family were enjoying the same. Except the oral interested testimony of P.W.1 there is no other evidence on record to show that the properties purchased in ''the name of Defendant No. 2 were treated as joint family properties. The Plaintiff has miserably failed to prove that the properties in the name of Defendant No. 2 are treated as joint family properties. Admittedly Defendant No. 2 was residing separately from the Plaintiff and other Defendants. The documents available on record establishes the fact that Defendant No. 2 alone was enjoying the properties in his name as his self-acquired properties. The first Appellate Court on proper appreciation of this evidence on record rightly concluded that the properties in the name of Defendant No. 2 are not the joint family properties and on the other hand they are his self-acquired properties. Accordingly, 1 answer the question of law framed above in negative.

For the reasons stated above the appeal is hereby dismissed.