:1: IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 12TH DAY OF NOVEMBER, 2010 PRESENT THE HON’BLE MR. JUSTICE V.G.SABHAHIT AND THE HON’BLE MR. JUSTICE B.V.PINTO R.F.A. NO.496/2003 (PAR) BETWEEN: MHALSA MARTHAND KULKARNI W/O LATE MARTHAND KULKARNI HINDU AGED ABOUT 62 YEARS R/A HIREBAGEWADI BAIHONGAL, BELGAUM 2. VIJAYA RANJANI W/O GURUNATH NADGIR, HINDU, MAJOR,R/AT NO. 25, 20TH A MAIN, 1ST CROSS, 1ST R BLOCK RAJAJINAGAR, BLORE- 10 3. SANJEEVA MARTHAND KULKARNI S/0 LATE MARTHAND KULKARNI, HINDU, AGED ABOUT 25 YEARS, R/AT HIREBAGEWADI, BAIHONGAL, BELGAUM. APPELLANTS (By Sri. V.P.KULKARNI ADVOCATE; APPELLANT NO.3 DECEASED AND HENCE DELETED V.C.O. Dated 25.03.2008] :2: AND: BHEEMAJI MALHARRAO KULKARNI S/o. LATE MALHARRAO BHEEMAJI KULKARNI, HINDU MAJOR, MEDICAL PRACTITIONER, R/AT BASAVANAGAR, BAILHONGAL, BELGAUM 2. NEELKANTH MALHARRAO KULKARNI S/o. LATE MALHARRAO BHEEMAJI KULKARNI, HINDU, MAJOR, ADVOCATE R/AT BEHORE CHALL BAILHONGAL, BELGAUM 3. SMT VANAMALA W/O VASANTRAO DESHPANDE HINDU, MAJOR,1ST FLOOR, PRIYANKIT BUILDING,LOKAMANYA COLONY, OPP. VANSPOND ROAD, POONA-4 11038 4. DAT1’ATRAYA MALHARRAO KULKARNI HINDU S/o. LATE MALHARRAO BHEEMAJI KULKARNI, MAJOR, BUSINESSMAN, R/AT MALMADDI DHARWAD, MULTI PRINTS VANVASI RAMDEVAR COMPLEX, MALMADDI, DHARWAD-7. 5. DR CHIDAMBER MALLHARRAO KULKARNI HINDU, MAJOR, MEDICAL PRACTITIONER, R/AT SANGLI, BAIHONGAL, BELGAUM 5a. SAVITRI CHIDAMBER KULKARNI, AGED ABOUT 55 YEARS, POST SANGOLLI. 5b. SMT. D.S. DANI W/O. ANANDRAO, AGE: 32 YEARS, R/0. F V2, FORCE MOTORS COLONY, MUMBAI PUNE ROAD, AKKURD, PUNE 35. :3: 5c. SUNIL CHIDAMBER KULKARNI AGED ABOUT 34 YEARS, AT: POST SANGOLLI TALUK: BAILHONGAL 5d. GIRISH CHIDAMBER KULKARNI, AGED ABOUT 30 YEARS, AT POST: SANGOLLI, TALUK: BAILHONGAL. 6. SRI BASAPPA SHIVALINGAPPA KAMBI FATHER’S NAME NOT KNOWN HINDU MAJOR, AGRICULTURIST, R/AT JAMALUR BAIHONGAL, BELGAUM 7. SRI PRADEEP KRISHNAJI KULKARNI HINDU, MAJOR, R/AT KILLA GOKAK, BELGAUM DISTRICT, 8. SMT. VINAYA W/O. SRI PRAKASH TORVI, HINDU, MAJOR, PROFESSOR, CHITAGUPPI CHALL, HUBLI. RESPONDENTS (By Sri. G.BALAKRISHNA SHASTRY ADVOCATE Ri & R2; SRI G. RAVISHANKAR SHASTRY ADVOCATE FOR R4; R5(A), R5(C), R5(D), R6 TO R8 ARE SERVED; NOTICE TO R5(B) DISPENSED WITH) THIS RFA IS FILED U/S 96 OF CPC AGAINST THE JUDGMENT AND DECREE DT. 17. 12.2002 PASSED IN OS NO.5/1997 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) & ASST,SESSIONS JUDGE, BAILHONGAL, DECREEING THE SUIT FOR PARTITION & SEPARATE POSSESSION AND FOR DECLARATION. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, V.G.SABHAHIT, J. DELIVERED THE FOLLOWING: :4: JUDGMENT This appeal is filed by the defendant Nos.4, 5 and 7 in O.S. No.5/1997 on the file of Pri. Civil Judge (Sr.Dn.), Bailhongal being aggrieved by the judgment and decree dated 17.12.2002, whereunder suit filed by the respondents 1 & 2 herein has been decreed against Defendants la to 8 for partition and separate possession of their 7/36th share each or 14/36th share together in the entire suit properties mentioned in the plaint schedule A, B and C and defendants 2 & 3 are entitled to 7/36th share each, defendants 4 to 7 together are entitled to 7/36th share, defendant la is entitled to 1/36t share in the entire suit properties mentioned in the plaint schedule A, B & C and they are at liberty to apply to the court during the final decree proceedings for partition and division of their share by paying necessary court fee. It is further ordered that the registered sale deed dated 22. 11.1996 executed by defendant No.7 in favour of defendant No.8 with respect to the Si. No.1 of plaint schedule ‘B’ is null and void and not binding on the share of the plaintiff Nos. 1 & 2. :z: 2. The essential facts of the case leading upto this appeal with reference to the ranks of the parties before the trial court are as under: Plaintiffs 1 & 2 (Respondents 1 & 2 herein) filed O.S. No.5/97 on the file of the Prl. Civil Judge (Sr.Dn.), Bailhongal, seeking for partition and separate possession of their share in the suit schedule ‘A’, ‘B’ & ‘C’ properties, more fully described in the schedule. 3. The plaint commences with a description of the suit properties. Schedule ‘A’ landed properties comprises of seven items of land; Si. Nos. 1 to 6 situated at Jamalur Village and the land in Survey No.225 at Sl. No.7 is at Sangolli Village. Schedule ‘B’ comprises of one house and backyard situated at Jamalur Village at Si. No.1, an open site at Si. No.2 and houses at Si. Nos.3 & 4 are situated at Sangolli Village. Schedule ‘C’ comprises of ‘A’ Class shares of M.K. Hubli Sugar Factory standing in the name of deceased Marthand Malharrao Kuikarni. :6: 4. It is the case of the plaintiffs that Malharrao Bheemaji Kulkarni, defendant No.1 in the suit had five sons, Viz., Marthand (predeceased his father), Dattatraya (Defendant No.2), Chidamber (Defendant No.3), Bheemaji (Plaintiff No.1) and Neelkanth (Plaintiff No.2). Marthand died leaving behind his wife: Mhalasa (Defendant No.4), his daughters: Smt. Vijaya @ Ranjani W/o. Gurunath Nadgir (Defendnat No.5) & Smt. Vinaya W/o. Prakash Torvi (Defendant No.6) and son, Sri Sanjeev (Defendant No.7). It is the case of the plaintiffs that the suit schedule properties are the joint family properties of the family as there was no partition of the same. It is averred that the plaintiffs have got 50% share in the schedule properties. That Malharrao and his brother Vitthal Bheemaji Kulkarni were also not divided and they were entitled to 50% share each in the schedule properties and Malharrao had a brother whose grandson: Pradeep is arrayed as Defendant No.9 in the suit. It is averred in the plaint that the family of the plaintiffs and defendants 1 to 7 is a joint Hindu family. Suit schedule properties are the joint family properties as there is no partition between plaintiffs and defendants 1 to 7 in regard :7: to the suit schedule properties. Properties at Si. Nos. 1 and 2 in Schedule ‘A’ were purchased in the names of Defendant Nos.2, 3 and deceased Marthand Maiharrao Kulkarni/father of Defendant Nos.5 to 7 and husband of Defendant No.4, out of the compensation amount received by the submergence of the joint ancestral family land at Old Sangolli. The suit property mentioned at Si. No.1 in ‘B’ Schedule was previously an open site, which was purchased in the name of the deceased Marthand as the elder member of the family; it was purchased from one Sri Irappa Shivarudrappa Telgede under the registered sale deed dated 03.05.1976 and measuring east-west 23 cubits and north-south 50 cubits out of the joint family funds. After the purchase of the open site, a house has been got constructed on this open site and the house measures totally 150 Sq.ft. The remaining portion is the back yard to this constructed house and at the time of purchase of this open site, the number of the property was G.P. No.433/A. After the construction of the house on this open site, it has been given G.P. No.54/A. After the death of Marthand, now this property is standing the name of Defendant No.7. The joint family had a :8: house in Old-Sangolli which has been acquired by the Government under Malaprabha Project and compensation was awarded. With the help of this compensation amount, a new house has been got constructed in gaon-thana of Sangolli village for residential purpose and so also out of this compensation amount, another building is got constructed wherein now Defendant No.3 is running his hospital. These two properties are now bearing G.P. No.455 and 456. There is also an open site allotted by the Government and it is bearing G.P. No.453. These properties are now standing in the name of Defendant No.1. 5. It is further averred that shares worth Rs.500/- of ‘A’ Class of M.K. Hubli Sugar Factory was also purchased in the name of deceased Marthand, The said shares were also purchased out of the joint family funds. The shares and other benefits of it are also the joint family properties. The Defendants 1 and 3 are residing in Sangolli and are managing the joint family properties. The joint family properties are in joint possession of plaintiffs and defendant Nos. 1 to 7 till the date of this suit. And even after the death of Marthand, the :9: sugarcane grown in the joint family lands is sent to M.K. Hubli Sugar Factory in the name of deceased Marthand and the proceeds were accumulated in the said share. It is further averred that if there is any property in the name of plaintiffs and Defendant No.2, it is their self-acquired property. They have never taken any joint family income for the acquisition of the property. Defendant No.3 is also practicing doctor at Sangolli and out of his own income, he has purchased some lands in his name. They are also his self-acquired properties. After the death of Marthand, the names of defendants 4 and 7 are entered as his legal hairs to the lands and house properties. Defendant No.7 is a spendthrift. He is not doing any job. To meet out his illegal expenses and the expenses for his bad vices, he has sold the property mentioned at Sl.No. 1 in Schedule ‘B’ to Defendant No.8, There was and is no any family legal necessity to sell the joint family property. Defendant No.7 has no any exclusive right, title and interest to sell the joint family property. He is not the manager of the joint family also. Simply taking the undue advantage of his name appearing in the property extract and to harass the plaintiffs 10: and other defendants, he has sold the house and backyard property to Defendant No.8. It is not binding on the plaintiffs and defendants 1 to 3. It is further averred that the plaintiffs have together got 2/5th share in all the suit properties and the sale deed executed by Defendant No.7 in favour of Defendant No.8 on 22.11.1996 is liable to be decreed as not binding on the plaintiffs and the plaintiffs have sought for the following reliefs in the suit: (a) 215 th share in all the suit properties to plaintiffs and they be put in actual separate possession of their share by effecting partition by metes and bounds; (b) That declaring that the sale deed dated 22.11.1996 executed by defendant No.7 in favour of defendant No.8 is not binding on the plaintiffs share; (c) Awarding full cost of this suit to plaintiffs from defendants; (d) Awarding any other relief/reliefs for which the plaintiffs are found entitled to; 11: 6. Defendant Nos.4 and 7 have filed their common written statement which was adopted by defendant No.5. Defendant Nos.8 and 2 have filed separate written statements. Defendant Nos. 1 and 6 have been placed exparte and Defendant No.9 has not filed his Written statement. 7. In the written statement filed by the Defendant Nos.4 and 7, it is contended that the genealogy given in para 2 of the plaint is incomplete because the propositus/Malharrao Bheemaji Kulkarni has a daughter who is married and residing in her husband’s house at Sangli. (It may be noted that the said daughter has been brought on record as the LR of defendant No.1 after the death of Malharrao). The averment made in the plaint, that the properties at Item Nos. 1 and 2 of Schedule ‘A’ and item No.1 of Schedule ‘B’ are purchased in the name of Marthand out of joint family funds, is false and they are self acquired properties of Marthand, which has been inherited by Defendants 4, 5 and 7. It is contended that the deceased Marthand had purchased the shares of M.K. Hubli Sugar factory out of his own funds and it is also a self acquired property and so far as Item Nos.1, 2 and 6 in ‘A’ Schedule is 12: concerned, they are also self acquired properties of Marthand and they are not purchased out of the funds of joint family and the said properties were in possession of Marthand and after his death, Defendants 4,5 and 7 are in possession of the said properties. 8. Having regard to the above said pleadings of parties, following issues were framed by the trial court for its consideration: 1. Whether, the plffs. prove that landed and house properties mentioned in schedule A & B of the plaint and the shares mentioned in schedule C of the plaint are the properties belonging to the joint family of themselves and defts. 1 to 7? 2. Whether, the plffs. prove that they are in joint possession and enjoyment of all the suit properties? 3. Whether, the piffs. prove that landed properties mentioned at SI.No.1 and 2 of schedule A have been purchased in the names of defts 2 & 3 and deceased Marthand, out of the compensation amount awarded for the joint family ancestral land situated at old Sangolli? 13: 4. Whether, the puffs, further prove that property mentioned at Sl.No.1 of B schedule was previously a open site purchased out of joint family funds and after the purchase, a house has been constructed out of joint family funds i.e., out of the compensation amount awarded in respect of a joint family house situated at old Sangolli which has been acquired under Malaprabha project? 5. Whether, the plffs. prove that the sale deed executed by deft. No.7 in favour of deft. No.8 in respect of joint family house i.e. item no.1 of schedule B is not binding on them and deft. No.1 to 3 and the said alienation is without any family legal necessity? 6. Whether, the suit is bad for non-joinder of other legal heirs of deceased Vittal Kulkarni? 7. Whether, deft. Nos.4, 7 prove that house bearing G.P.No.54/A of Jamalur village was self-acquired properties of his father Marthand Kulkarni and said house has been sold to meet out family legal necessity? 8. Whether, the valuation made for the purpose of Court-fee and jurisdiction is proper? 14: 9. Whether, the puffs, are entitled to 115 share each? If not what is the extent of share of the puffs? 10.Whether, the piffs are entitled to preliminary decree as prayed for? Addi. Issues: 1. Whether the deft no.4 & 7 proves that Sl.No.1 & 2 of the suit lands namely R.S.No.102/2, 103/2 of Jamalur village were purchased out of their independent earnings of deceased Martandrao, deft no.2 and 3 and is their exclusive property? 2. Whether the deft no.4 & 7 proves that Sl.No.6 of the suit land namely R.S.No.110 of Jamalur village was the self-acquired property of deceased Martandrao or in the alternative they prove that the deceased Martandrao Kulkarni and his legal-heirs namely deft no.4 to 7 became the owners by way of adverse possession? 3. Whether the deft no.4 & 7 proves that suit schedule C namely the share in the M.K.Hubli Sugar Factory was the self-acquired property of deceased Martandrao? 4. Whether the deft no.4 & 7 proves that whatever the properties that are standing independently in 15: the name of puff Nos.1 & 2, deft Nos.2 & 3 were also the joint family properties? 5. Whether the puffs, and deft Nos.2 & 3 proves that the properties that are independently standing in their names are their self-acquired properties? 9. On behalf of plaintiffs, Plaintiff No.1 was examined as PW-1 and he got marked 12 documents as Ex.P-1 to Ex.P-12. The defendant No.4 got herself examined as DW-1 and no documents were produced on behalf of defendants. 10. The trial court, after considering the contentions of learned counsels appearing for the parties and on appreciating the oral and documentary evidence produced before it, held that the suit schedule properties are the joint family properties of the plaintiffs & defendants 1 to 7 and negatived the contention of the Defendants 4, 5 and 7 that Item Nos. 1, 2 & 6 in Schedule ‘A’, Item No. 1 in Schedule ‘B’ and the shares described in Schedule ‘C’ are the properties of Marthand and accordingly, answered the issues against the defendants and in favour of plaintiffs and decreed the suit as referred to above. 16: 11. Being aggrieved by the said judgment and decree, Defendants 4, 5 and 7 preferred this appeal. During the pendency of this appeal, appellant No.3/defendant No.7 died and his name has been deleted. Therefore, the appeal is confined to the contentions urged by appellants 1 & 2 only, namely defendants 4 & 5. The other defendants have not preferred any appeal against the judgment and decree passed by the trial court. 12. We have heard the learned counsels appearing for the appellants and learned counsel appearing for the respondents 1, 2 & 4. The other respondents though served have not chosen to represent this appeal. 13. Learned counsel appearing for the appellants has taken us through the oral and documentary evidence adduced by the parties before the trial court and submitted that even as per the averments made in the plaint, properties at item Nos. 1 & 2 of ‘A’ Schedule namely the land comprising survey Nos.102/2 measuring 4 acres 26 guntas PK 0.01 acres and survey No.103/2 measuring 3 acres 2 guntas PK 0.01 acres 17: respectively are situated at Jamalur village. Even according to the averments made in the plaint, they are purchased in the name of Marthand, though it is averred in the plaint and is deposed by the plaintiff to that regard that the said property was purchased out of the compensation amount awarded in respect of the property of the family acquired for Malaprabha project. In view of the fact that the property was purchased in the name of a younger member in the family, as Malaharrao was father was alive at the time of purchase, the burden is heavy on the plaintiffs to discharge the initial burden of showing that the properties at Sl.Nos. 1 & 2 of ‘A’ Schedule and Sl.No. 1 of ‘B’ Schedule were purchased out of the compensation amount awarded and Item No.6 of ‘A’ Schedule was purchased out of the joint family funds and he further submitted that unless the plaintiffs are able to show the extent of joint family properties acquired for the purpose of Malaprabha Project, the quantum of compensation awarded and the date of award, they cannot be said to have discharged their initial burden cast on the plaintiffs to show that there was sufficient nucleus from the income of the joint family properties 18: or from the compensation received in this case to purchase the said properties, that too in the name of Marthand who was not the manager of the family and father Malharrao was looking after the affairs of the family and in the absence of any evidence in that behalf, then the onus never shifts to the defendants 4, 5 and 7 who are the LR’s of Marthand to show that the said properties were acquired out of the income of Marthand and not out of the income received from joint family funds and therefore, in the absence of discharge of the initial burden cast upon the plaintiffs, the plaintiffs are bound to fail as they have approached this Court for partition and separate possession of the suit schedule properties. 14. In support of his contentions, he has relied upon certain observations made in the XVI Edition of Commentary on Hindu Law & Usage on the basis of decisions of various courts including Hon’ble Apex Court, at page Nos.746 & 748. The relevant portion of which is extracted as under: “Onus on coparcener to prove nucleus.— The burden of proving that nay particular property is joint family property, is in the first instance upon the 19: persons who claims it as coparcenary property. Where the possession of a nucleus o joint family property is either admitted or proved, an acquisition made by a member of the family is presumed to be joint family property, subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. Until and unless adequate nucleus is shown the onus is not on the acquirer to prove that the property standing in his name was purchased from joint family funds. And it is only after the possession of an adequate nucleus is shown, the onus shifts on to the persons whom claims the property as self-acquisition, affirmatively to make out that the property was acquired without any aid from the family estate.” “The sufficiency of the evidence to be adduced to shift the onus that initially rests upon plaintiff of showing adequate nucleus from which acquisitions could have been made is essentially a question of fact that depends upon the nature and extent of the nucleus. One of the tests to assist in the termination of the adequacy of the nucleus is the income which the nucleus yields. If the court is not satisfied that the joint family nucleus is sufficient to buy any additional property, the property would be held to be self acquired 20: 15. The learned counsel appearing for the appellants submitted that the trial court has not appreciated the evidence adduced before it and has erroneously held that Item Nos. 1, 2 & 6 of Schedule ‘A’ and item No.1 of Schedule ‘B’ and also the shares of MK Hubli Sugarcane factory are the joint family properties and not self acquired properties of Marthand and to that extent the judgment and decree passed by the trial court is liable to be set aside. 16. Learned counsel appearing for the Respondents 1, 2 and 4 submitted that the averments made in the plaint would clearly give description of the properties held by the family. Defendants 4, 5 and 7 only contend that item Nos.1, 2 & 6 of ‘A’ Schedule and item No.1 of ‘B’ Schedule were self acquired properties of Marthand and do not dispute that the other properties described in the schedule at Item Nos.3, 4, 5 & 7 of ‘A’ Schedule and Item Nos.2, 3 & 4 of ‘B’ Schedule are the joint family properties and the extent of lands at Sl.Nos.3, 4, 5 & 7, which would come to 20 acres, in which Malharrao’s share is 50% and there was sufficient nucleus. He further submitted 21: that acquisition of the property belonging to the joint family and passing of the award in favour of Malharrao, the father of plaintiffs and Marthand, and the fact that compensation has been awarded for the property acquired, have not been disputed. However, it is contended that the quantum of compensation received and the date of receipt of amount is not proved and the material on record would clearly show that the award was passed in the year 1970 and property at Sl.Nos. 1 and 2 of ‘A’ Schedule have been purchased during the year 1970-71 and house at Si. No.1 of ‘B’ Schedule was also purchased after the award was passed on 03.05.1976 and the averments made in the plaint and the evidence of PW- 1 and documents produced by him would clearly show that there was sufficient nucleus from the income of other properties held by the family for the purchase of Item Nos. 1, 2 & 6 of ‘A’ Schedule, Item No. 1 of ‘B’ Schedule and the shares described in ‘C’ Schedule were purchased out of the joint family funds and the same has been transferred in the name of Marthand at the instance of his father/Malharrao, which is clear from the mutation entry which has been got marked and therefore, the 22 findings of the trial court that the schedule properties at Item Nos. 1, 2 & 6 of ‘A’ Schedule, Item No.1 of ‘B’ Schedule and the shares described in ‘C’ Schedule are the joint family properties and are not self acquired properties of Marthand, who has died leaving behind Defendants 4,5 & 7, is justified and does not call for interference in this appeal. 17. In reply, learned counsel appearing for the appellants submitted that since the averments made in the plaint and evidence of PW- 1 would show that they have acquired the house at Old—Sangli and there is no evidence on record in regard to the