-1- IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 26” DAY OF MAY, 201 1 PRESENT THE HON’BLE MR. JUSTICE N. KUMAR AND THE HON’BLE MR.JUSTICE ARAVIND KUMAR RFA NQ.3003j2011 Between: Sri.Basappa S/o.Balappa Angadi, Age 46 years, 0cc.: Agriculture, R/o. :Marakudi, Tq. :Raibag, District Belgaum-591 235. 2. Sri.Basalingappa S/o.Balappa Angadi, Age 30 years, 0cc.: Agriculture. R/o. :Marakudi. Tq. :Raibag, District Belgaum-591 235. 3. Sri.Mallappa S/o.Balappa Angadi. Age 33 years, 0cc.: Agriculture, R/o. :Marakudi. Tq. :Raibag. District Belgaum-591 235. Appellants (By Sri.Hanamant R.Latur, Advocate) And: Smt.Gouraw\a W/o.Gurupadappa Angadi. Age ‘71 years. 0cc.: Household work & Agriculture, R/o. :Marakudi, Tq. :Raibag. District Belgaum-591 235. 2. •Smt.Laxmibai W/o.Basappa Siddapur, Age 51 years, 0cc.: Household work, R/o.Sasalatti, Tq.: Jamakhandi, District Bagalkot-587315. 3. Smt.Gourawwa W/o.Ningappa Angadi. Age 66 ears. 0cc.: Household work. R/o. : Marakudi, Tq. :Raibag. District Be1gaum59l 235. 4. Sri.Gurupad S/o.Ningappa Angadi, Age 45 years. 0cc.: Agriculture. R/o. : Marakudi, Tq. :Raibag, District Belgaum-591 235. 5. Sri.Ramappa S/o.Allappa Angadi, Age 64 years. 0cc.: Agriculture. R/o. :Marakudi, Tq. :Raibag. District Be1gaum59l 235. 6. Sri.Parappa S/o.Ramappa Angacli, Age 46 years, 0cc.; Agriculture, R/o. :Marakudi, Tq. :Raibag, District Belgaum-591 235. 7. Smt.Basawwa D/o.Ramappa Angadi, Age 40 years, 0cc,: Household work, R/o. :Marakudi, Tq. :Raibag, District Belgaum-591 235. 8. Sri.Allappa S/o.Ramappa Angadi, Age 35 years, 0cc,: Agriculture. R/o. :Marakudi, Tq. :Raibag, District Belgaum 591 235. 9. Sri.Shivaliongappa S/o.Ramappa Angadi, Age 31 years, 0cc.: Agriculture, R/o. :Marakudi, Tq. :Raibag, District Belgaum-591 235. 10. Sri.Tukkappa S/o.Allappa Angadi, Age 61 x’ears, 0cc.: Agriculture, R/o. :Marakudi, Tq. :Raibag. District Belgaum-591 235. Respondents (By Sri.K.S.Patil, Adv. for R-l and R-2. 3 Sri.Sikandar S.Bawakhan. Adv. for R-10. R-3, 4 & 6 Served. Notice to R-5, 79 D/W.) This R.F.A. is filed under Section 96 of CPC against the judgment and decree dated 18/11/2010 passed in O.S.No.3/2009 on the file of the Senior Civil Judge, Raibag, decreeing petition filed for partition and separate possession. This appeal coming on for admission this day, N.Kumar J., delivered the following: JUDGMENT This appeal is preferred by defendant Nos. 1 to 3 challenging the judgment and decree of the trial Court, which has decreed the suit for partition and separate possession, granting 1/5th share to the plaintiffs in all the suit schedule properties. For the purpose of convenience, the parties appeal would be referred to as they are to in the original suit. Sri.Allappa is the propositus. He had name Gurupad, Balappa, Ningappa, Tukkappa. Gurupad is the elder son. 50 years back leaving behind his wife 2. in this r e fe rred 3, One five sons by Ramappa and He died about -4- Gourawwa1st Plaintiff and daughter Laxmibai2nd plaintiff. On the day Gurupad died, his father Allappa was very much alive and he died 10 years after the death of Gurupad. After the death of Gurupad their four sons have continued as members of the joint family property and were cultivating the joint family properties collectively. Item No.2, 4, 5, 6, 8 and 15 of the suit schedule property are admittedly the ancestral property. The other items of the schedule property are purchased either in the names of these sons of Allappa or in the name of their sons under various registered sale deeds for valuable consideration. The case of the plaintiffs is all these acquisitions are out of the joint family nucleus. As a joint family in which certain extent of lands are irrigated lands, income was generated out of these lands and out of the said income derived subsequent properties are purchased which are standing in the names of sons of Allappa or in their sons names. All of them are joint family properties. U—. .4, -5- They are in joint possession and enjoyment of the properties along with the defendants. They were living in the family. When differences arose between the lady members of the family they wanted their legitimate share to be separated so that they can live separately and peacefully. Therefore they demanded their 1/5th share in the suit schedule property and the defendants refused their request. Therefore, they filed the present suit for partition and separate possession of their 1 / 5th share in all the suit schedule property. In the schedule attached to the plaint they have set out fully 16 items of the properties belonging to the joint family property. 4. After service of summons defendants entered appearance. The 3rd defendant filed his written statement. He admitted the relationship between the parties and genealogy. He disputed that all the suit schedule properties are the ancestral joint family property. He specifically pleaded that the ancestral properties are only R.S.No.14/1, 16/1, -6- 19/1, 28 of Marakudi Village and R.S.No.32 of Kappalaguddi village and the rest of the properties shown in the suit schedule property are not the joint family properties. Therefore, he had no objection for decreeing the suit for partition in respect of the ancestral joint family properties. He contended that other properties are self acquired property of the defendants. They have acquired these properties by their hard work and they are cultivating personally. The defendant Nos.1, 5 to 16 filed a memo adopting written statement filed by the 3rd defendant. 5. On the aforesaid pleadings, trial Court framed four issues as under: i. Whether plaintiffs prove that the suit properties are joint family ancestral properties? ii. Whether defendants No.1 to 3 & 5 to 10 prove that only R.S.No.l5/1, 16/1, 19/1 and 28 of Marakudi Village and R.S.No.32 of Kappalaguddi village only are the joint family properties and -7- other suit properties are self-acquired properties of defendants? iii. Whether plaintiffs are entitled for partition? If so, what share and in which properties? iv. What decree or order? 6. Plaintiffs in order to substantiate their claim, examined 2nd plaintiff-daughter of Gourawwa as PW-1. She produced 18 documents, which are marked as Ex.P-1 to P-iS. On behalf of defendants, Mallappa Balappa Angadi was examined as DW- 1 and they examined two witnesses, i.e., Shankar Kadappa Katti and Mahadev Girimallappa Katti as DW-2 and DW-3 and produced as many as 25 documents, which are marked as Ex.D-i to D-25. 7. The trial Court on appreciation of the aforesaid oral and documentary evidence on record held that the plaintiffs have proved that all the properties of the schedule• are joint family and ancestral properties. They were all acquired out of 1— -8- the joint family nucleus and therefore plaintiffs have established their case that suit schedule property is being ancestral joint family properties, though defendants contend that the other properties are all the self acquisition and they have acquired these lands by raising loan from the societies and banks, defendants have miserably failed to establish their case of self acquisition through sale deeds that are produced. It only shows the acquisition. On the contrary in the written statement, a specific plea was taken that these properties are self acquired out of hard work, thereby meaning that hard work was carried out in the ancestral property which were belonging to joint family. They have produced evidence, which also shows as for back in the year 1955 a canal was dug which passes through these lands. They were all having cultivation facilities. Therefore, trial Court came to a conclusion that these properties are joint family properties and are not self acquisition as contended by the defendants, as -9- genealogy of the family had not been disputed, each branch was held to be entitled to 1/5th share as prayed for. 8. Assailing the impugned judgment and decree of the trial court, learned counsel for the appellants contended that it is a settled law that there is a presumption of existence of joint family property, there is no presumption that properties standing are joint family properties. Though it is admitted that five items of schedule properties are ancestral properties, unless the plaintiffs prove that these joint family properties yielded the income and that income was more than sufficient to acquire the properties in the name of the family members jointly the plea of defendants ought to have been accepted by the trial Court. Thus, it is contended that properties which were acquired subsequently cannot be held to be proved as joint family properties. In the instant case, plaintiff has pleaded complete ignorance of this aspect. Therefore, trial court had 10 committed a serious error in not arriving at a conclusion that plaintiffs have failed to establish the case of the joint family nucleus. He further submitted that defendants by doing hard work and b\ raising loan both from bank as well as societies, have acquired the properties. The RTC produced in this case refers to bank loan and in the light of the evidence, the Court below was not justified in holding the case of the defendants was not proved. Therefore, he prays for setting aside the judgment and decree of the trial Court. 9. Per contra learned counsel for the respondents supported the impugned order. 10. In the light of the aforesaid rival contentions the point that arise for our consideration in this appeal is as under: a) Whether the finding of the trial court that suit schedule properties are joint family 2 . t 4. — 11 - properties and liable for partition, calls for interference? 11. From the material on record, it is clear that the genealogy of the family is not disputed. The relationship between the parties as set out in the plaint is admitted. Allappa was the propositus. He had five sons. 1st plaintiff’s son Qurupada was the eldest one, 2nd plaintiff is the daughter of Gurupada. Unfortunately, Gurupada died 50 years back during the lifetime of his father and Allappa continued the joint family properties along with his remaining sons. They were all living together in the joint family and they enjoyed the property jointly. Ten years after the death of Gurupada, Allappa died. During his life time no partition tool place. Therefore the remaining four sons of Allappa and plaintiffs continued as joint family members and continued to cultivate the joint family property. It is thereafter defendants have acquired various properties under registered sale deeds. It is the specific case of the defendants that - 12 - they have acquired the property by dint of hard work. The admission that the property is ancestral property is measuring 53 acres is clear. In 53 acres of land, if they worked hard certainly they would yield income to meet the expenses of the family, apart from the cultivation expenses. Thus, the undisputed fact clearly demonstrate that it is only a chunk of land, and they were all working hard and living happily with good income generated from the said property. As the time passed, they acquired various lands, with the expansion of family because of marriage and birth of children. The family owned 55 acres of lands. It is not in dispute that there is no partition between the family. There is no misunderstanding all these years. The 2nd plaintiff is living with her husband. Plaintiff is aged more than 70 years. She is a lady. Unfortunately because of the misunderstanding in their family she thought that it is time that she should to live separately and peacefully. Therefore she demanded her legitimate share in the property. I - 13 - When it was denied, she filed a suit. Tt was contended that they have borrowed money from the bank and purchased vast extent of land. Admittedly, defendants have even borrowed money from the bank and society on the security of ancestral property. The loans are discharged from the income of the joint family property. Even in respect of hand loan which is evidenced by Ex.D-2. It is discharged out of the income of the joint family. Under these circumstances the trial court on proper appreciation of entire legal evidence on record and taking note of facts above referred to, has rightly come to a conclusion that all the properties which are acquired subsequently also are out of joint family nucleus and are impressed with the character of joint family property and they are not self acquisition. Once it is held that all the properties are joint family properties each branch is entitled 1/5th share. That is how the plaintiff’s mother, the 1st defendant and 2nd plaintiff daughter are entitled to the share of Gurupad the 14 eldest son, Allappa was granted I / 5 share in the plaint schedule property. The said finding is based on proper appreciation of documentary evidence on record and is in accordance with law. Therefore it does not suffer from any infirmity, which calls for interference by this court. In that view of the matter, we do not see any merit in this appeal. Accordingly the appeal is dismissed, Parties to bear their own Co sts. Sal 3UDGE Vnp* JTjj