—1— IN THE HIGH COURT 0F KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 25TH DAY 0F MAY, 2011 PRESENT THE HON’BLE MR. JUSTICE N. KUMAR AND THE HON’BLE MR.JUSTICE ARAVIND KUMAR R.F.A.NO.44412003 (PAR) Between: Sri. Sudbir Shivajirao Kakatkar, Age: 50 years, 0cc: Business, R/o: CTS No.1090, Ananatshayan galli, Belgaum, Tq. & Dist: Belgaum. 2. Sri. Suhas Shivajirao Kakatkar, Age: 48 years, 0cc: Service, Rio: Rajarampuri, Koihapur, Tq. & Dist: Kolhapur. 3. Sri. Balasaheb Shivajirao Kakatkar, Age: 45 years, 0cc: Business, R/o. Sunshine Aptm., Tilakwadi, Belgaum, Tq. & Dist: Belgaum. 4. Sri. Sanjay Shivajirao Kakatkar, Age: 41 years, 0cc: Business, R/o. Gilganchi Aptm., Somawar Peth, Tilakwadi, Belgaum, Tq. & Dist: Belgaum. Appellants. (By Sri. Ravikumar D Gokakkar, Advocate.) -2- And: 1. Sri. Uday Ganapatrao Kakatkar, Age: 38 years, Rio: CTS No.1090, Ananatshayan Galli, Belgaum, Tq. & Dist: Belgaum. 2. Smt. Indumati Shivajirao Kakatrao, Age: 73 years, Rio: CTS No.1090, Ananatshayan Galli, Belgaum, Tq. & Dist: Belgaum. 3. Sri. Ganapatrao Yellojirao Kakatkar, Age: 76 years, Rio: CTS No.1090, Ananatshayan Galli, Belgaum, Tq. & Dist: Belgaum. (R.3 deleted vide Court order dated 31.1.2008) 4. Smt. Sashikala Ganpatrao Kakatkar, Age: 63 Years, Rio: CTS No.1090, Ananatshayan Galli, Belgaum, Tq. & Dist: Belgaum. 5. Sri. Chandrabhaga Narayanrao Naiwade, Age: 81 years, Rio: Sankeshwar, Tq: Hukkeri, Dist: Belgaum. 6. Smt. Leelabai Shivajirao Jagtap, Age: 73 years, Rio: Gajraj building, near Amprali Apts., Congress road, Tilakwadi, Belgaum. Respondents. (R.3 deleted vide Court order dated 31.1.2008) (B Sri. V.P Kulkarni & Sri. Sangram S Kulkarni, Advocates for R.l.) (Sri. MG Naganuri, Advocate, for R4.) Sri.Mallikarjun C Basareddy, Advocate, for R.5.) (R.2 & R.6 Notice served.) This Regular First Appeal is filed under Section 96 of CPC against the judgment and decree dated 24.1.03 passed in O.S.No. 193/1994 on the file of the III Addl. Civil Judge (Sr,Dn.), Belgaum, decreeing the suit for partition and separate possession. This appeal coming on for Final Hearing this day, N.Kumar, J., delivered the following: JUDGMENT This appeal is by defendants 3, 4, 5 and 6 challenging the judgment and decree of the trial Court whïch has decreed the suit of the plaintiff for partition and separate possession of his legitimate share in ah the suit schedule properties. 2. For the purpose of convenience the parties are referred to as they are referred to jn the original suit. 3. Plaintiff is the son of defendant No.7-his father and defendant No.8-his mother. Ist defendant is the elder brother of defendant No.7. Defendant No.2 is the wjfe of defendant No. 1. Defendants 3 to 6 are the Sons oC defendants 1 and 2. Defendants 9 and 10 are e 1 -4- the sisters of defendant No.1 and 7. The father of the defendants I and 7 Sri.Ycliojirao died ut Belgaum on 4/I/1956 leaving behind his widow Gangubai and two Sons nameiy defendants I and 7 and two daughters namely defendunts 9 and 10. Gangubai died in the year 1980. The case of ihe plaintiff is Sri.Yellojirao was an agrictilturisi by profession. He owned and cuitivated agricultural land at Belgaum. With the aid of the joint family income. Ohec business tvas started. Out of the income of the joint familv lands and the business, properties werc acquired from Urne to Urne. After tue deaih of Ycllnjirao, the I clefendant as the eldesi male mernhcr in the fnmiiy. became the manager of the joint familv. The joint family was running the business under the mime and style of M/s.Yaiiappa Kallappa Kakaikar and sons. Ohec Merchants. This business “as startcd in the year 1947. The Isi defendant was looking after this business even during the lifetime of Veliojiran. After the death of Yellojirao, ail the farnily matters were under the management of defendant No.]. The entire income from the joint family properties vas uncier the control of defendant 1—” -D No.1. Defendant No.7 wbo is the younger brother of defendant No.1 bas aiways been obedient to defendant No.1 and 1$’ defendant bas aiways cxcrcised complete control and influence over the V” defendant. The influence of defendant No.1 on 7th defendant was 50 great that though. defendant No.7 was serving, ail bis income was being handcd over to the eider brother 1 defendant. Even for petty expcnscs he had to take money from the lst defendant. Thus, the 7tIi defendant is under the thumb and control of the W defendant. 4. After the death of Yeltojirao, bis widow Gangubai and sons-defendants I and 7 continued to live as mcmbers of a joint family, in a joint family bouse at AnantashaanagaI1i, Belgaum. Gangubai was in possession and enjoyment of ber husband’s sbare in the joint family properties tiil ber death. On the death of Gangubai, ber j/3d share in the joint family became a fresh stock of descent for partition and defendants 1, 7, 9 and 10 succeeded to ber I/.3rd share in the joint family properties. Therefore, defendant No. 1 and bis branch consisting of himself, defendants 2 to 6 together were entitled to 5/1 2th ‘t-.. -6- share. Defendants No.7, 8, 9 and 10 together became cntitled to 5/1211) sharc, whereas thc defendants 9 and 10 became entitled to 1 /3rd share in the share of the branch of the defendant No.7. Therefore, he is entitled to 5/36th share in the suit schedule properties. 5. Plaintiff came to know that l defendant exerting his influence over his brother 7111 defendant bas managed to obtain a compromise decree in O.S.No.381/ 1993 putting up a show that defendant No.7 had claimed a share against defendant No.l. In the said suit alI the family properties were not included and though 7th defendant was not entitled to haif share in the suit properties, even according to the allegation made in the plaint, the compromise brought about shows that instead of giving haif share to the defendant No.7, a nominal share is shown to have been given to him and major portion of the properties bave been retained by the 1’ dcfendant. The alleged partition under the compromise decree in O.S.No.381/1993 is unjust, inequitable and therefore it is not binding on the plaintiff. Plaintiff and other sharers were not impleaded as parties to the said suit f -7- obviously because had they been impleaded, defendant No. 1 could flot have brought about a compromise decrce. That decrec in O.S.No.381/1993 does flot embrace ail the joint family properties and ail persons entitled to a share on partition are not impleaded as parties to the suit. lntcrest. of the plaintiff who was entitled w get a iegitimate share in the joiflt family properties has been totally ignored by his father 7th defendant in the suit. The piaintiff therefore is entitled w reopen the partition brought about by the compromise decree in O.S.No.381/1993 and daim his legitimate share in ah the suit schedule properties. Plaintiff demanded his legitimate share in the joint family properties. i-le wrote Jetters to ahi the defendants No. 1 to 8. Defendant No.7 sent reply threatening the piaintiff of taking criminal action against him for sending the said letter. From the tenor of the reply it is clear that reply must have been sent as dcsired by the l’ defendant. Since the plaintiff’s interests in the joint famiiy properties are flot being properly iooked after by defendant No.7 and he is acting against the intcrest of the plaintiff, the plaintiff 4’ -8- was constrained to institute the suit for partition and separate possession of his 5/36” share in joint family properties, mesne profits and costs of the suit. 6. Plaini contains four schedules namely schedule A, B, C and D. In A schedule, 12 items of urban properties are set out. In schedule B, 3 items of agricultural property situated at Hundalewadi are set out. In schedule C, the businesses run by the family arc set out. Scheduic D is the movable property owned hy the joint family. 7. After service of summons, 1’ defendant filcd his detailed written statement. He does flot dispute the relationship between the parties. According to him, the suit of the plaintiff for reopening of the partition is nol maintainable in law. He has specifically contended that he alonc started the business of Ohec in the name and style of M/s.Yallappa Kallappa Kakatkar. It was a proprietary business of the 1’ defendant and he did it with the experience providcd by Sri.Nalavadi of Sankeshwar. There was no joint family business. There was no joint -g family fund, which eould be used by the 1’ defendant. This defendani. worked hard in his business and provided education to bis sons and looked after the plaintiff as bis own son. The properties at S1.No.6, 7, 8 and 9 are the separate and self acquired properties of this defendant in which the defendant No.7, 8, 9 and 10 and bis own sons namely defendant No.3 w 6 bave no share in the said properties. The allegations that with the aid of alleged joint family income and alleged joint family business, the suit scheduic properties were acquired, is false. He also denied the allcgation that after the death of his father he was managing the properties and entire income from the alleged joint family properties was under the control of this defendant. Fie also denied that defendant No.7 was under his thumb and control and that he exercised complete control and influence over defendant No.7. The allegation that 7ih defendant was handing over his entire income to the hands of the 1 defendant is denied as false. 8. Ii. was contended that defendant No.7 was a bank employee. He was appointed as cashier in the -10- Belgaum Pioneer Urban Co-operative Bank, Belgaum, in the year 1953 for a salary of .8O/- per month and he retired in the year 1988 as Assistant Manager in the said bank and was drawing a salary of !.2,450/- per month at the Urne of retirement. The defendant No.7 vas utilizing ail his income for his family only i.e., plaintiff and defendant No.8. After retirement from the bank service, defendant No.7 had no benefits, and ht utilized his income i.e., his provident funds etc., earned from his service for the purchase of Tempos in the name of defendant No.8. The defendant No.7 was also serving in Prakash Cinema Talkies as part-time employee to augment his income to maintain his family. Defendant No.8 instead of utilizing the income to their farnily, sold the Tempos without any reasons and instigated hcr son to file a false suit. Defendant No.7 had filed O.S.No.381/ 1993 on the file of the 4” Addl. Civil Judge (Jr.Dn.), Belgaum, for the relief of partition and for awarding 1 / 1 21h share in the suit propcrties. The said suit ended in the terrns of compromise and decree was passed accordingly. The said decree was actcd upon and names were entered in V- 4.’ - 11 - the revenue records and in the CTS record. The plaintiff bas flot challengcd the said decree in any other competent Appellate Court. Therefore, this decree passed in O.S.No.381/1993 is final and conclusive. Therefore, the plaintiff canflot file the present suit seeking reopening of the partition. 9. Defendant No.9 and 10 are married sisters. Their marnage took place prior to the coming into force of 1-lindu Succession Act 1956. Therefore, they are neither necessary nor proper parties to the suit. The sisters were flot impleaded in O.S.No.381/1993. This defendant spccifically denicd thc allegations made in para No.5 of the plaint as false. The compromise decree is binding on the plaintiff, defendant No.8, 9 and 10. It is not a nominal one. The allegation that dcfendant No. 1 bas taken major portion of the properties is falsc. He bas more love and affection towards the plaintiff than bis sons. He took active part in seeking admission to the plaintiff in Saint Paul’s School which is English Medium School to provide him bettcr cducation. However plaintiff did flot take advantage of the education and left education and L. t’ - 12 - the school without any reason. In order to help the plaintiff he provided him Lathe Machine in industrial area at Bclgaum. Plaintiff did flot dc) the business of Lathe Machine, but sold the machines and was addicted to the vices, He requested the plaintiff to do some other business, but plaintiff did flot pay any attentiofi to the requcst of this defefidant. This defendant tried w rehabilitate the plaintiff and to wean him away from the vices, but plaintiff who was with the bad association did not respond to the request of this defcndant. This dcfefldant specifically denied the john family business and contended that business is self acquired business of this defendant. Defendant No.7 has no interest in the said business. Therefore, they lcd the business as independent business of this defefidant. The properties ifi schedule A at Sl.No.6, 7, 8 afld 9 are the self acquired properties of this defendant. Properties in Schedule C and D are not the joint family properties. There were no joint family properties at schedule A afld B. He is a social worker, member of a Congress party, he earned good name in thc said field afld purchased the 4, -13- properties with the aid of honourarium paid to him by thc Belgaum City Municipality and as Chairman of APMC and supplemented by income of bis properties and business. Therefore, these properties are the self acquired properties. Therefore, he sought for dismissal of the suit. 10. 4g” defendant bas filed a separate written statement. He bas reiterated the allegations made by his father-1’ defendant. It is his specific case that he is a qualified Civil Engineer working with the Irrigation Department to thc State of Maharashtra in 1977. Out of his service earnings he agreed to purchasc the property at Sl.No. 12 in schedule A under an agreement of sale datcd 3/11/1989. This property is a separate and self acquired property of him in which ncither thc plaintiff nor any other defendants have any manner of right, Ufle and intcrest in it. He denies the allegation that said property was purchased from out of the alleged joint family business earnings. This property was rightly excluded in O.S.No.381/1993. He contended that Court fee paid is t... ‘t -14- not sufficient, as the plaintiff is not in joint possession. He sought for dismissal of the suit. li. Defendant No.5 also filed a separate written statement reiterating the allegations made in the written statement of his father1st defendant. He specifically stated that he is a partner of M/s.B.S.Kakatkar a partnership firm constituted in the year 1983 and reconstituted on 14/6/1992. This partnership firm runs kirana shop under the name and style of M/s.B.S.Kokatkar at Kalmath Road, Belgaum. He agreed to purchase the property at Sl.No.1O under an agreement dated 5/4/1988 for a valuable consideration. This property at Sl.No.1O is a separate and self acquired property of this defendant. Therefore, ii. was not included in the O.S.No.381/1993. Neither the plaintiff nor the other defendants have any manner of right, title or interest in this property i.e., property at Sl.No.1O in schedule A. Therefore, he sought for disinissal of the suit. 12. Defendant No.6 also filed a separate written statement reiterating the allegations made in the L— t. -15- written statement of his father-l’ defendant. He specifically contended that he is a partner of M/s.B.S.Kakatkar a partnership firm, doing kirana business situated at Kalmath Road, Belgaum. He purchased the property ai. Sl.No.5 in schedule A out of his own earnings in thc name of his wife Mrs.Shubada. Later on he sold the same and purchased the property at Sl.No. 11 in Schedule A of the plaint. The property at Sl.No.5 and property at Sl.No.1 I are separate and self acquired properties of this defendant and therefore the said properties werc rightly excluded in O.S.No.381/1993. The suit of the plaintiff is bad for misjoinder of properties and cause of action and therefore he also sought for dismissal of the suit. 13. The 7th defendant has also filed a separate written statement supporting the 1’ defendant, his elder brother. He contends that suit for partition is not maintainable. Plaintiff is not a co-parcener or a member of alleged joint family. That plea of properties described in the schedules being joint family properties are denied. He admits the relationship of the parties. He denies that out of the income of the r-d -16- joint family lands and business, properties were acquired from time to turne. He also denied the fact that after the death of his father, L defendant becarne the manager of the joint family. He denies that 1t defendant was looking after the Qhee business after the death of his father. He cornpletely denies the allegation that the entire properties and the incorne was under the control of 18E defendant. He also denies that mE defendant is exercising complete control and influence over him. In fact he has completely joined hands with the lt defendant and he has reiterated the contentions of the 1 defendant. He also sought for dismissal of the suit. 14. On the aforesaid pleadings, trial Court framed as many as 12 issues and an additional issue which are as under: ISSUES 1. Whether the plaintiff proves that the suit schedulc properties are the joint farnily properties of the plaintiff and the defendants? U— ‘4 - 17 - 2. Whether the plaintiff proves that the plaintiff is entitled to 5/36th share in the suit schedule properties? 3. Whether the plaintiff is entitled for partition and separate possession of his share in the suit schedule properties? 4. Whether the plaintiff proves that Yallojirao, father of the defendants 1 and 7 died on 4.1.1956? 5. Whether the plaintiff proves that the compromise decree in O.S.No.381 of 1993 is unjust and inequitable and is not binding on the plaintiff and that the said partition has to be reopened? 6. Whether the defendant No.4 proves that Sl.No.12 of ‘A’ schedule property is his self acquired property? 7. Whether the defendant No.5 proves that the property at Sl.No.1O of ‘A’ schedule property is his self acquired property? 8. Whether the defendant No.6 proves that Sl.No.5 and 11 of ‘A’ schedule k—. properties are his self acquired p r o per t je s? 9. Whether the Court fee paid bv the plaintiff is correct? 10. Whethcr the suit is haci for non joinder of necessarv parties? li, Whethcr the suit is bad for mis joinder of the properties? 12. What order? Additional Issue Whcthcr the defenclant No. I proves that item Nos.6, 7, 8 and 9 of the suit schedule properties arc hjs self acquired properties? 15. Plaintiff in order to substanate his daim examined himself as PW. 1 and produced 28 documents \vhich are marked as Ex.P. 1 to P.28. On behaif of the defendants, 5° clcfcndant vas examined as DW. 1 and 70i defendant was examincd as DW.2. Thev also produced 7 documents which are marked as Ex.D .1 to D.7. L I- 16. The trial Court on appreciation of the aforesaid oral and documentary evidence on record held that the plaintiff has proved that the suit schedule properties are joint family properties of the plaintiff and defendants, except the movables mentioned in the plaint. It also held that the Yellojirao died on 4/1/1956 and defendants who have set up the pica that the plaint schedule properties are ail self acquired, have miserably failed to prove the same. It also held that the decree for partition passed in O.S.No.381/1993 is bad for non joinder of necessary parties as well as non inclusion of ail the joint farnily properties and it is flot binding on the plaintiff as he was not a party to the same. Therefore k held, after the death of Yellojirao, ail the joint family properties devolved on his widow and two sons in equal share i.e., 1/3”’ each. On the death of the widow Gangubai, that 1/3”’ share which she inherited, devolved on her two sons and two daughters in equal share and therefore, the plaintiff is entitled to 5/36e” share along with his father, lst defendant and his sons, whereas defendants 8 and 9 are entitled to l/36t share. t -20- Therefore, ii. decreed the suit of the plaintiff. Aggrieved by the said judgment and decree the suit of the trial Court, defendants 3 to 6 are in appeal. 17. The learned counsel for the appellants assailing the impugned judgment and decree of the trial Court contended, when already joint family properties are partitioned, by virtue of a decree passed in O.S.No.381/ 1993, second suit for partition without getting the earlicr decree set aside, or the allotment of shares set aside, is flot maintainable. The only ground on which earlier decree for partition can be set aside is on the ground of fraud, mistake and misrepresentation and none of those grounds exists or proved in this case. He further contendcd, it is only items I to 4 in A schedule, items 1 to 3 in the B schedule arc thc joint family propcrties. Items No.5 to 12 in the said A schedule are the self acquired properties of the lst defendant and his sons. The burden of proving the existence of a joint family. and existence of joint family nucleus squarely lies on the plaintiff. If his entire cvidence is read as a whole shows his total ignorance on these aspects and t-.. f. - 21 - therefore he bas flot proved bis case. Unfortunately trial Court has placed the burden of proof wrongly on the defendants and committed a serious error in coming to the conclusion that ail these properties are the joint family properties. Further he contended, in Hindu Law therc is no presumption that a business carried on by a member of the famiiy is a joint family business. The entire burden of showing that such a business is a joint family business is on the person alleging the same. Even on this aspect the evidence on record is completely silent and does not prove the case of the plaintiff. Therefore, he contended that judgment and decree of the trial Court at any rate, in respect of items No.5 to 12 in the A schedule and in respect of C schedule is erroneous and same is to be set aside. 18. Per contra, the learned counsel appearing for the plaintiff pointed out that on the day the suit for partition was filed, plaintiff was major. The subject matter of the said suit were ail ancestral properties in which the plaintiff had a right by birth. As he was not impleaded in the said suit, the decree passed therein do not bind the plaintiff to any extent whatsoever. L- ‘J, - 22 - Therefore, there was no necessity to seek canceliation of the said decree. i-le further pointed out, father of the defendants 1 and 7 was a rich man, he was an income tax assessee. During his lifetime not only he owned agricultural lands but he was carrying on Ghee business as the name of the business itself suggests. After his death the I’ defendant being the eldest son got the mutation cntry in respect of ail the properties transferred to his name and continued to carry on the (lhee business. The joint family had sufficient nucleus. h is from that nucleus lst defendant started carrying business in the name of his sons in partnership. The said business was commenced from the nucleus of the joint family and therefore, the business though carried on in partnership, it is a joint family business. In the year 1976 when Urban Land Ceiling Act came into force, the l’ defendant filed a declaration before thc authorities in his capacity as karta of the joint family showing the defendant No7 his brother as a member of the joint family. The order passed by the authorities shows that 1 defendant and his brother were members of a joint family along with I - 23 - their chiidren who were major. Even at that time they