IN THE HIGH COURT OF RARNATAKA CIRCUIT BENCH AT DHARWA[) DATED THIS THE 23 DAY OP MAY. 2 Q] BEFORE THE HON’BLE MR.JUSTICE K.GOVINDARAJULU RPANO.1024/2000 AIw Mi CCV O .1O38.FiLQ11 BETWEEN: Sri. Yallappa Mallappa Bachagundi, Age 47 years, 0cc: agriculture R/o Karadigudda Tq. Dt. Dharxvad. APPELLANT I cc) mm on) (By Sri.M.G.Naganuri, AcIv.) A ND: Sri . Mallappa. Sb Yallappa MalIlga\vad, Aged about 52 vrs. 0cc: agriculture R/o Karadigudda, Tq. and Disc Dharwad. 2. Smt. Fakirawwa, W/o Fakirappa Bachagundi Aged about 55 years, occ: household R/o Kardigudda, Tq. and Dist. Dharwad, 3. Smt. Basawwa, W / o Tamanna Bachagundi, Aged about 48 yrs.. 0cc: household o Karcligudda. Tc1 and Dist: Dharwad. 4. Srnt. Tavavva. W.’ o Fakirappa Bachaguncli. Aged about 45 vrs.. 0cc: household R/o Kardigudda. tq. and clist: dharwad. Since deccased by her LRs. 4a. Fakirappa. S / o Gangappa Bachagundi. age major, occ: Agriculture, R/o Karadigudda, Taluka Dharwad, 4b. Smt. Shashikala, W/o Shankarapa Hasabi, age major, 0cc: Household work, R/o Kabbur, Tal, And Dist, Dharwad, 4c. Draxayini, d/o Fakirappa Bachagundi aged major, 0cc: household work, R/o Kabbur, Taluka and Dist, Dharwad, 4d. Savawa, D/o Pakirappa Bachagundi minor by her M/G Fakirappa S/o Gangappa Bachagundi R/o Karadigudda Taluka and Dist. Dharwad, 4e. Gangappa, S/o Fakirappa Bachagundi aged minor by his M/G Fakirappa S/o Gangappa Bachagundi R/o Karadigudda, Tal and Dist. Dharwad, 5. Smt. Shantawwa W/o Fakirapa Katti Aged about 42 yrs., 0cc: household R/o Ranebennur, Police Qrtrs, TM Ranebennur, Di.. Haven, 6. Smt. Paravatevva, W/o Mallappa Mcd, Aged about 62 yrs., 0cc: household, R/o Kardiguda, Tq. and Dist. Dharwad. Since deceased by her LRs. 6a. Smt. Shantawa, W/o Parappa Asundi, aged 70 years, 0cc: household r/o Nanagundikoppa Post Dodwad 591 184 Taluka Bailhongal dist. Belgaum. 6b. Smt. Gourawa, W/o Shiddappa Bachagundi, age 66 vrs., 0cc: household R/o Karadigudda 581 201, Taluka and disi.. Dharwad. 6c. Smt. Mallawwa W/o Nagappa Mugabast, 3 WI age 53 years. 0cc: household R/o Karadigudda 581 201 Taluka and Dist. Dharwad. 6d. Smt. (uirijawa. w/o Basappa Kalakanni age 50 yrs., 0cc: household Rio Kyarkoppa. Tq. and Dist. Dharwad. 6e. Smt. Shivawa. w/o Malakajappa Morab. age 46 yrs.. occ: household rio Karadigudda 581 201 taluka and dist. Dharwad. 6f. Shri. Danappa Mallappa Mcii. Age 59 years. occ: agriculture Rio Karadigudda 581 201, Taluka and dist. Dharwad. 6g. Shri Somappa Mallappa Meti. age 55 years, occ: agriculture rio Karadigudda 581 201 taluka and dist. Dharwad. 6h. Shri Ningappa Mallappa Mcd, age 48 years, 0cc: agriculture rio Karadigudda 581 201 taluka and dist. Dharawd. 61 Shri Channappa Mallappa Meti, age 42 yrs., oce: agriculture rio Karadigudda 581 201 taluka and dist. Dharwad. 7. Smt. Damava Wio Basappa Kargunda @ Hittalmani Aged about 60 yrs., occ: Household, Rio Kardigudda Tcj. and dist. Dharwad. 8. Smt. Mallawwa, Wio Dharmangowda Doddawad a Path, age 50 yrs., 0cc: household, Rio Mangalagatti Tq and Dist. Dharwad. 9. Smt. Yallawwa. 4 \•Vj u Honnappa Karagunda i Rarirnallamanaar. Age 49 yrs., occ: household, R/o Kardiguda, Tq. and dist, Dharwad. lO.Smt. Bayava J Lilavan. W/o Rajashekar Akki. Aged about 43 vrs.. Ucc: Hon sehold P / o M allapu r Tq. and Dist. Dharwad. 11 Nagawwa, W/o Channapa Bachagundi Aged about 65 vrs. occ: household R/o lKardigudcla. Tq. and dist. Dharwad Since deceased by her legal representative Are already on record as respt. No. 12 to 18 12.Smt. Nagawwa. W/o Tammanna Bendigeri Aged about 45 vrs., 0cc: household P/n Pudatalakatti. Tq. and dist. Dharxvad. 1 3. Sri. Basappa. s/o Cliannapa Bach aguncli Aged about 42 vrs.. 0cc: agriculture R/o Kardigudda, Tq. and dist. Dharwad. 14.Sri. Shivanand, S/o channappa Bachagundi Aged about 37 vrs.. 0cc: agriculture P/n Kardigucida Tq. and dist. dharwad. 1 5. Sri. Shivashankarappa S/c) Channappa Bachagundi Aged about 32 yrs., occ: agriculture R/o Kardigudda, Tq. and Dist. Dharwad. 16. Smt. Savavxva. W/o shankarappa kuragund LI Hosamani. Aged about 32 years. r! o Kardiguda Tc 1. and Dist. Dhar\vad. 17. Smt. Bhimawwa, W/o Suhhas Kuragund a Hittalmani, Aged about 29 vrs.. S 0cc: household. rio Kardigudda Tq. and dist. dharwad. 18. Sri. Shrishailappa, 51° Channappa Bachagundi, Aged about 30 vrs.. occ: agriculture RIo kardigudda. tq. and dist. dharwad. 19. Sri. Fakkirapa Qangappa Bachagundi Aged about 52 yrs, 0cc: agriculture Rio Kardigudda, Tq. and Dist. Dharwad. 20. Sri. Tamanna, S/o Gangappa Bachagundi, Aged about 52 yrs., 0cc: agriculture Rio Kardigudda, Tq. and Dist. Dharwad. 21. Sri. Dyavanagouda Mallanagouda Patil, Aged about 57 yrs.. 0cc: agriculture Rio Mangalgatti. Tq. and dist. Dharwad. 22. Smt. Gangawwa, W/o Sanganabassappa Pattatha, aged about 49 yrs., occ: household, Rio Dodwad, Tq. Baillahongal. Dist. Belgaum. Since dead by IRs. 22a. Shri Sanganbasappa Chanabasappa Patath age 66 years, 0cc: agriculture R/o Dodwad 591184 Tq. Bailhongal Dist. Belgaum. 22b. Shri Shivakant Sanganbasapa Patath age 42 years, 0cc: agriculture Rio Dodwad 591 184. Taluka Bailhongal dist. Belgaum. 22c. Shri. Suresh Sanganbasappa Patath, age 41 yrs., occ: agriculture rio dodwad 591184, taluka Bailhongal Dist. Belgaum. .RESPONDENTS (common) (By Sri. Ravi 0. Sabhahit, Adv. for RI, R3, R8 to 10 and R18 to R20. Sri. D. Krishna Murthy, ADv. for R21. R2, R4(a -e), R6(a-i), R7, R12. R17. R16. R22(a-c) sd. R5. R-13 to 15 service held sufficient.) This RFA is filed under Section Pb of CPC against the judgment and decree dated 4.8.2000 passed in O.S.No.63/83 On the file of the 111 AddI. Civil Juclge(Sr.Dn) and CJM Dharwacl dismissing the suit for partition and separati possession. Misc.Cvl. 103899/2011 is filed under order XLI Rule 27 read with Section 151 of CPC praying to kindly permit to produce the documents by way of additionai evidence as per the separate list for reasons stated therein. This appeal a’ w \lisc.Cvl. 103899/20 1 1 coming on for final hearing . this day, the court delivered the following: JUDGMENT Plaintiff in OS. No.63/1982 on the file of the Addi. Civil Judge(Senior Division) and CJM, Dharxvad, is the appellant in this appeal under Section 96 of the Code of Civil Procedure. 2. Parties will be referred according to the status found in the Court below for convenience. 3. The suit of the plaintiff is for partition, separate possession, consequential reliefs in regard to the plaint schedule properties mentioned in schedule “A” and schedule “B” of the plaint. 7 V 4. The case of the plaintiffs i.e., the father and son is as follows: (a) Defendant No.1 is the undivided brother of plaintiff No.1. Defendants 2 and 4 are the sons of defendant No.1. All the persons constitute joint hindu family. They are the exclusive owners in possession of the joint family properties. Defendant No.1 being the elder male member of the family, khata is recorded in his name. From out of the joint family funds and from out of the joint nucleus and joint labour, certain properties are purchased in the name of different persons ostensibly for the sake of convenience and satisfaction of the traditional beliefs. (b) Defendant No.1 and plaintiff No.1, two undivided brothers, have acquired properties in block No.349 of Karadigudda village in the name of the second defendant and block No.207 and 210 of Karadigudda village in the name of the second plaintiff. (c) The plaintiffs have described in regard to the acquisition of the properties and referring to the earlier transactions state that one Hasapa elder step brother of flrst plaintiff and first defendant got separated the properties in or about 1920. So the said transaction is not at all concerned with the suit for partition. The plaintiffs having joint right and title over the properties, seek for partition. 5. Defendant No. 1 has filed the written statement. Admit the blood relationship. Contend in 1920 plaintiff No. 1 and defendant No. I were minors. keeping in view the interest of the minors, Pakirappafather of plaintiff No. 1 and defendant No. 1 has brought about the partition. It is duly registered. So there is no joint family, much less joint family nucleus, much less joint possession, so seek for dismissal of the suit. 6. It is also contended further, the house property bearing No.42A was gifted to the first plaintiff and the first defendant on 22 / 04 1957 hr smt. (iangava. Even though the gift is macic in the year 1957, the first plaintiff and first defendant are residing separately in the same house. It is further contended by defendant No. 1 that the house 9 properties bearing Nos.80 and 237 have been purchased by the defendant out of his own funds. So the plaintiffs have no right, title or interest in regard to these properties. In regard to other Sv.No.. it is contended that they were cultivated jointly by the first plaintiff and first defendant. But subsequently it came to be divided. So the claim of the plaintiffs in this regard is also not maintainable. 7. The learned trial Judge has framed the issues. Permitted the parties to lead evidence. Second plaintiff is examined as PW-l. Through him, Exs.P-1 to P-34 are marked. DWs. I and 2 were examined. Exs.D-l to D-25 are marked. The exhibits marked include the deposition of second plaintiff as per Ex.D-25(C) in an earlier proceeding. The learned trial Judge while appreciating the evidence has answered the following issues raised with the following reasons: Issues: 1. Do plaintiffs prove that suit properties are the joint family properties of plffs. And defts. 1 to 4? 6 I () 2. Do they further prove that sale deed in favour of defts., is bogus and it is not binding on them and the said land is liable for partition? 3. Do defts. 1 to 4 prove that their family is divided long back in 1920 and after partition the parties have acquired properties? 4. Are plffs. entitled to the the reliefs sought? 5. What order or Decree? Addl. Issue No.1 dtd.28/ 11 1. Whether the suit is time barred? Addl. Issue No.2 Dtd:4—8-97 2. Whether defendants 3 and 4 prove that they are the owners of block no.620 of Karadigudda village? Findings: Issue No.1- No. Issue No2 NC). Issue No.3Yes. Issue No.4 No. Issue No.5As per order Addi. Issue No. 1 Dtd.28. 11. -Yes. Addl. Issue No.2 dtd,4,$.97 - Yes. 11 V 8. The learned trial Judge has disbelieved the case of the plaintiffs that the plaintiffs are in joint possession of the suit schedule properties and dismissed the suit. 9. The learned advocate for the plaintiffs vehemently contend the following circumstances seeking for a decree for partition: 1. Blood relationship between the parties is admitted. Item Nos. 2 and 3 are purchased in the name of the plaintiff. 2. Item Nos.4 and 5 are joint properties and are subject mattcr of gift. There is a joint gift. 3. In regard to Sy.No.63 of Amminabhavi village there is a proceeding before the Land Tribunal. Statements are given by first defendant before the Land Tribunal. The said declaration includes order sheet of the Tribunal, it would disclose that defendant No.1 has agreed that they are living jointly and they are possessing property jointly. 4. The next submission is with regard to a document dated 25/05/1942 wherein the properties are sold jointly by the brothcrs? 10. Further substantiates contending as against the case of the plaintiffs for partition, the reply is that they are already partitioned. Even assuming that there was partition 12 at a point of time, the parties having acquired, dealt with, enjoyed the properties jointly, the properties became joint family properties. So the prayer of the plaintiffs has to be allowed. The learned trial Judge has not considered the subject matter in this regard in proper perspective. 11. ft is also further contended by the learned advocate Sri. Naganuri to the effect that when there is a joint property, at least to the extent of the joint properties, the Court below ought to have granted decree for partition. It could havc separated the joint properties and other properties, could have done this exercise, having not done, the approach of the learned trial Judge is not proper. So pray for a decree for partition. 12. In reply, the learned advocate for the defendants contend that according to the assertions found in the facts of the case, plaintiff No.1 and defendant No. I were minors. Their father has arranged the properties, it is a registered vatni patra of 1920. First point would be whether father will not have a right to arrange the properties between the sons. 13 ‘ Ptt, The answer is “Yes”. When there is such a premise on which a case is found, there should be some expression or overt act of the brothers to show that they have put in their individual properties and the gifted property in joint and thus categorized as joint family properties. Joint family property is understood of having a joint right over the property. The genesis at 1920 would disclose that there was an arrangement made by the father. No material, documentary or oral evidence is produced before the Court below to probablise either first plaintiff or the first defendant gave any statement before the authorities for not acting on the partition deed and having joined hands/reunion and continued to live jointly. So the statement before the Land Tribunal by itself is not a criteria because the statement of 1975 before the Land Tribunal is contrary to the statement of 1920 i.e., after 50 years. So the earlier statement of 1920 prevails rather than the statement of 1975. So the approach of the learned trial Judge is propcr. So pray for dismissal of the appeal. 14 ‘I 13. Carefully considered the material submission, evidence recorded, documents marked, the Court being a first appellate Court, points that arise for consideration are as follows: 1. Whether the plaintiffs prove that the plaint schedule properties purchased are joint family properties? - 2. Whether defendant No. I proves that there was a partition as per Ex.D-2? 3. Whether the plaintiffs are entitled for a share? If so, to what extent and in regard to what properties? 14. Points 1 and 2 arc interconnected. So they are taken for discussion at a stretch: 15. Before adverting to the facts of the case, as the case reflects a transaction of 1920, the Hindu Law in regard to its origin summarised by Mane In his book “Hindu Law and usage” is relevant, 16. Mayne in his Hindu Law referring to the Patriarchal family states as follows: “In tracing society backwards to its cradle it would appear that one of the earliest units is the Patriarchal 15 ‘WI Family. The Patriarchal Family may be defined as “a group of natural or adoptive descendants, held together j. subjection to the eldest living ascendant, father, grand-father, great-grandfather. Whatever be thc formal prescription of the law, the head of such a group is always in practice despotic; and he is the object of respect, if not always of affection which is probably seated deeper than any positive institution.” 17. In regard to the origin of the joint family, thc learned author states as follows: “Origin of Joint family: - The transition from the patriarchal family to the Joint Family arises (where it does arise) at the death of the common ancestor, or head of the house. lf the family choose to continue united, the eldest son would be the natural head. But it is evident that his position would be very different from that of the deceased Patriarch. The one was head of the family by a natural authority. The other can only be so by a delegated authority. He is primus but inter pares. Therefore, in the first place, he is head by choice, or by natural selection, and not by right. The eldest is the most natural but not the necessary head, and he may be set aside in favour of one who is better suited for the post. Hence, Narada says “Let the 4— 16 4 eldest brother, by consent, support the rest like a father; or let a younger brother, who is capable. do so; the prosperity of the family depends on ability”. In the next place, the extent of his authority is altered. He is no longer looked upon as the owner of the property but as its manager. Both as regards collaterals and his own descendants, he is no more than the president of a republic, so to say.” 18. The learned author referring to the power of the father states as follows: “The older view of ownership to be found in Manu was that sons had no right of ownership so long as their father was alive. Any doubt on this point is dispelled by the Arthasastra of Kautilya which states the rule almost in the same terms. 19. As against the case of the plaintiff for partition. reply by defendant No.1 is that there was a partition in the year 1920. In such a situation, the Court has to refer to the averments made in the plaint. Para 5 of the plaint reads as follows: At— 17 \1 “5. Cause of action accrued in about Feb. 1983 when piffs demanded partiiton and separate possession of their half share in the suit properties and when this was postponed and impliedly denied finally by the Defts. At any rate the suit for partition and possession is well within time.” 20. Next contention urged is defendant No.1 has executed a gift deed it is objected by PW- 1. Defendant withdrew his application for effecting mutation by filing a memo. Memo is marked as Ex.P-29. Memo reads as follows: “The applicant has given the above wardi to effect mutation in respect of the properties(lands) fallen to his share in the apsatwatni(Partition) effected before the village elders about 3 years back. Since the lands fallen to the shares of the applicant and opponents have been in their respective actual possession and wahiwat. Though this is a true fact, the opponents have taken up a false contention that there was no partition at all in their joint family properties and have filed false objections to the waid wardi. However, as per the advise of the village accountant this applicant wishes to withdraw the said Wardi with liberty to file the same leter which may kindly be in the interest ofjustice.” Theme in memo do not run according to the tenor of evidence in chief at para 4 of the deposition. Further in spite of memo mentioning the cousins are in separate 18 “ possession, the memo is not challenged specifically in the suit. Further two stands are found so Ex.P-29 is not helpful for plaintiffs case for partition. 21. Plaintiff do not spell about the legality or otherwise of 1920 partition in the plaint. Not only that they do not spell out or challenge 1920 partition but also even after filing of the written statement of the defendant, not even a rejoinder is filed by the plaintiffs narrating the circumstances, the acts, which lead to reunion. 22. Coming to thc transaction of 1920, it is found from Ex.D-2 that when the first plaintiff and defendant No.1 were minors, the father makes an arrangement. Even such an arrangement is not challenged by the plaintiff even after filing of the written statemcnt by defendant No.1. So the premises that is found from the facts of the case is that by 1920 plaintiff No.1 and defendant No.1 are separated brothers. So the first argument of advocate for defendant No.1 is accepted. So the contention of advocate for plaintiffs that partition of 1920 is not acted upon is rejected. 19 23. Next contention is that DW-1 has admitted sale of property at Karadigudda jointly. Ex.P-1 is relied. It is a certified copy. It refers to sale of 3 properties for Rs.300/-. In the recitals joint possession, enjoyment is not mentioned. The sale deed do not trace out the title also. By mere joining of 3 persons for the execution of sale deed. It cannot be inferred they have dealt with joint family property. Further evidence of PW- I in regard to 1920 happenings read as under: In order to avoid the disputes in the year 1920 my grand father effected a partition between his sons Basappa and deceased plaintiff No. I and decesed defendant No.1. Evenafter the said partition the sons of my grand father were living joint till 1940. On 10- 4-1940 Basappa and deceased plaintiff No.1 and deceased defendant No.1 sold jointly a house situate at Qoudar Lane of Karadigudda to Ningappa Batagundi. I have produced the certified copy of sale deed executed by Basappa, Qangappa and Mallappa in favour of Ningappa Batagundi. The certified copy of sale deed dated 10-04-1940 is marked as Ex.P-1.” 24. The evidence disclose that a divided Basappa has joined. As it is the case of plaintiffs that they are living jointly, at least there should have been a mention of 2 brothers are joint, there could have been a mention as to how the 3 properties sold are acquired, enjoyed. No such It—.. 20 recital is and is partition relied as found. So the contention of PWi that 1 plaintiff defendant continued jointly, though there was in1920 is not prohablised. So this circumstance a material by plaintiffs, will not help plaintiffs. 25. The next crucial point would be whether from the evidence placed before the court, the Court can come to the conclusion that there was joint enjoyment and acquisition of the properties by the parties. 26. Section 134 of the Evidence Act declares that it is not the quantity of the evidence but it is the quality of the evidence i.e., criteria. In view of the mandate under this section, the facts of this case are taken up for consideration: ——-.----.—--...‘———: .-..—.. —“.—,s .).L.. L...... — crc a ro DCi t:zc: 27. 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