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Rama Nagappa Mahar @ Kamble Vs. Nagappa Mallappa Mahar @ Kamble and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberRegular Second Appeal No. 689/2003
Judge
Reported inAIR2006Kant31; ILR2005KAR5386
AppellantRama Nagappa Mahar @ Kamble
RespondentNagappa Mallappa Mahar @ Kamble and ors.
Appellant AdvocateR. Gopal Adv.
Respondent AdvocateB. Pramod for ;Veena and ;Geetha K.M., Advs. for R1, 3-5 and R2
DispositionAppeal dismissed
Excerpt:
.....and further held that the plaintiffs have failed to prove that i-b schedule properties are the joint family properties and accordingly, decreed the suit of the plaintiffs for 1/2 share in suit schedule i-a and schedule ii properties. 1. whether the appellate court was justified in confirming the finding of the trial court that the defendants have failed to prove oral partition in the year 1937 and that the said finding is perverse and contrary to the evidence on record and as such, the suit of the plaintiffs for partition could not have been maintained? 2. whether the appellate court failed in holding that item no. the material on record clearly shows that the parties are residing separately and cultivating the lands separately and that there was an oral partition as averred by the..........schedule to the plaint. after purchase of the said land, it was all along treated and wahivated as joint family property and also blended with the other family properties at bambarge, bearing r.s. nos. 106/2, 106/3 and 72 described at sl.nos. 2, 3 and 4 of schedule 1a to the plaint. the lands described in schedule 1b are the tenanted lands and these lands have been cultivated by the family of the plaintiffs and defendants no. 1 during the life time of nagappa. these lands were all along treated and wahiwated as family tenanted lands. it is averred that the first defendant is a shrewd and a cunning man. the plaintiffs, on the other hand, are illiterates and gullible persons. the plaintiffs had full trust and faith in ramappa and acted at his behest by lending their signatures to the.....
Judgment:

V.G. Sabhahit, J.

1. This appeal by the first defendant is directed against the judgment and decree passed by the learned II Additional District Judge, Belgaum, in R.A. No. 21/99 dated 17.6.2003, confirming the judgment and decree passed by the learned I Additional Civil Judge (Sr. Dn), Belgaum, in O.S. No. 76/1987 dated 6.4.1999, decreeing the suit of the plaintiffs in part for partition and separate possession of their half share in the Schedule I-A and Schedule-11 properties.

2. The essential facts of the case leading up to this appeal with reference to the rank of the parties before the trial Court are as follows :

The plaintiffs filed a suit O.S. No. 76/87 seeking for partition and separate possession of their half share in the suit schedule properties by metes and bounds. Schedule I consists of two portions, Schedule I-A comprises of 4 items of agricultural lands and Schedule 1-B comprises of tenanted lands and Schedule II consists of three household properties and two open sites as described in the schedule. It is the case of the plaintiffs that one Nagappa, the propositor of the family had three sons viz., Kallappa, Rama (defendant No. 1) and Mallappa. Plaintiffs 1 to 3 are the sons and plaintiff 4 is the wife of Mallappa. It is averred that Nagappa died about 50 to 60 years next before filing of the suit. Kallappa was given in adoption to one Nagawwa, W/o. Omya Mahar in the year 1923. Mallappa died on 8.12.1960 leaving behind the plaintiffs i.e., his sons and wife as his heirs. It is averred that after the death of Mallappa, all the plaintiffs were maintained and looked-after by Ramappa (first defendant) and they have lived as members of an Undivided Hindu Family. The family was all along residing at Bambarage. Therefore, Ramappa thought that it was inconvenient to cultivate and look-after the family lands at Kadoli and therefore, he disposed off three family lands bearing R.S. Nos. 513/ 18,113/19 and 192 in between 1966 and 1970 and out of the sale proceeds, he purchased R.S. No. 113/2 at Bambarge which is item No. 1 in Schedule 1A of the schedule to the plaint. After purchase of the said land, it was all along treated and wahivated as joint family property and also blended with the other family properties at Bambarge, bearing R.S. Nos. 106/2, 106/3 and 72 described at Sl.Nos. 2, 3 and 4 of Schedule 1A to the plaint. The lands described in Schedule 1B are the tenanted lands and these lands have been cultivated by the family of the plaintiffs and defendants No. 1 during the life time of Nagappa. These lands were all along treated and wahiwated as family tenanted lands. It is averred that the first defendant is a shrewd and a cunning man. The plaintiffs, on the other hand, are illiterates and gullible persons. The plaintiffs had full trust and faith in Ramappa and acted at his behest by lending their signatures to the documents as desired by him. Defendant No. 1 tried to create dissension and rift between the plaintiffs inters and the name of Nagappa continued to appear as Kabjedar in the record of rights to the family lands bearing R.S. Nos. 72, 106/2 and 106/3 though Nagappa had died long back. Defendant No. 1 purported to give wardi to the village officer, Bambarge on or about 24.8.1984 for entering his name and the name of the second plaintiff in the Kabjedar's column and the said wardi was duly mutated at Mutation Entry No. 1192 and certified on 30.9.1984. Subsequently, defendant No. 1 seems to have entered the name of Nagappa i.e., plaintiff No. 1 to one of the household properties and he played mischief and filed only one application regarding R.S. No. 157/47. described at Sl. No. 3 of Para I-B of the schedule in the name of Nagappa and filed another application for occupancy rights regarding the other lands described in Schedule I-B in his name. Since the dispute arose among the parties and defendant No. 1 started appropriating the entire landed income for himself without even providing for the bare necessities of the plaintiffs, the plaintiffs requested him to hand over their share to which they are entitled and since the first defendant did not heed to their request, the suit was filed for partition and separate possession of half share in the schedule properties by metes and bounds. The suit was resisted by the first defendant by filing his written statement. Defendant No. 2 is the daughter of Mallappa and she was impleaded by order dated 22.9.93 as the contention of non-joinder party was taken. In the written statement, the first defendant admitted the relationship among the parties and that he was also called as Rama Nagappa Myageri. It is further averred that Nagappa died in 1935 and thereafter, there was a oral partition in the year 1937 between him and Mallappa in respect of the ancestral undivided family properties i.e., the lands bearing R.S.Nos. 106/2, 106/3 and 72, each having half share out of 4 annas share coming to propositor Nagappa i.e., the first defendant having 2 annas and Mallappa having two annas and thus, the first defendant and Mallappa, since partition, separately cultivated these lands of their own portions as these lands cannot be separated by metes and bounds because of fragmentation. It is further averred that item No. 1-A i.e., the land comprising in R.S. No. 113/2 measuring 5 acres 9 guntas of Bombarge is the self-acquired property of the first defendant which was purchased on 4.5.70 out of the money given by his son Bharma Rama Kamble who was working as a Lecturer at Aurangabad since about 4 years prior to 1970 and hence, the averments made in the plaint that the suit properties were purchased out of the sale proceeds of R.S. No. 513/18, 513/19 and 192 in between 1960 to 1970 is false and the said sales have no nexus regarding acquisition of the suit properties. It is further averred that the averments made in the plaint that 'B' schedule properties, Schedule 1A and 1B properties are ancestral lands of joint Undivided Hindu Family, is false. Similarly, the contention that the house and open sites mentioned in Sl. No. 2 of the schedule are undivided joint family properties is false and only House Nos. 32/1, 140 and open site 145/1 were the undivided Joint Hindu Family properties and it is averred that open site Nos. 130 and 148 are the self-acquired properties of the first defendant and the house built by the defendant is out of the loan taken from the Housing Society of Belgaum and they are not the joint family properties. It is further averred that after partition, House No. 140 and open site 145/1 went to the share of the plaintiffs and house No. 32/1 of Kadoli went to the share of the first defendant and since they are living in their own separate portions continuously, the averment made in the plaint to the effect that the defendant being seniormost member of the family, assumed management of the family properties and tried to create rift among the plaintiffs inter se and several averments made in the plaint making allegations against the first defendant were denied as false. It was further averred that the suit is not properly valued and therefore, the suit is liable to be dismissed. Defendant No. 2 filed the written statement admitting para Nos. 1 to 5 of the plaint and further averred that she has not chosen to claim any share in the suit properties and given up her claim and if the Court comes to the conclusion that she is also entitled to claim a share, then her share may be allotted to the plaintiffs only. The first defendant also filed additional written statement denying that Ratnawa has given up or has relinquished any share in the property left behind her father in favour of the plaintiffs and that the suit is barred by time. Having regard to the pleadings of the parties, the trial Court framed issues and additional issues. On behalf of the plaintiffs, plaintiff No. 1 was examined as P.W. 1 and he got marked exhibits P1 to P39. On behalf of the first defendant, defendant No. 1 was not examined, his son was examined as D.W. 1 and D.Ws. 2 and 3 were also examined and exhibits D1 to D16 were got marked.

3. The trial Court after considering the contentions of the learned Counsel appearing for the parties and the material on record, by its judgment and decree dated 6.4.99, held that the suit filed by the plaintiffs is in time and that oral partition as alleged by the first defendant has not been proved and the first defendant has failed to prove that item No. 1 in Schedule 1-A and item Nos. 1 to 3 in Schedule II of the plaint are the self acquired properties of the first defendant and further held that the plaintiffs have failed to prove that I-B Schedule properties are the joint family properties and accordingly, decreed the suit of the plaintiffs for 1/2 share in suit Schedule I-A and Schedule II properties. Being aggrieved by the said judgment and decree, the first defendant preferred R.A. No. 21/99 on the file of the learned II Additional District Judge, Belgaum and the first appellate Court by its judgment dated 17.6.2003, dismissed the appeal and confirmed the judgment and decree passed by the trial Court. Being aggrieved by the said judgment and decree, the first defendant has preferred this second appeal which was admitted on 17.10.2003 for consideration of the following two substantial questions of law:

'1. Whether the Appellate Court was justified in confirming the finding of the trial Court that the defendants have failed to prove oral partition in the year 1937 and that the said finding is perverse and contrary to the evidence on record and as such, the suit of the plaintiffs for partition could not have been maintained?

2. Whether the appellate Court failed in holding that item No. 1 of the 'A' schedule and item Nos. 1 and 2 of the 'C' schedule are joint family properties overlooking the evidence of the defendant to show that they are the self acquired properties and that the finding of the Appellate Court in that regard are perverse and contrary to the evidence on record.'

4. I have heard the learned Counsel appearing for the parties on the above said substantial questions of law.

5. The learned Counsel appearing for the appellant/first defendant submitted that the Courts below were not justified in disbelieving the contention of the appellant/first defendant that there was an oral partition. The material on record clearly shows that the parties are residing separately and cultivating the lands separately and that there was an oral partition as averred by the first defendant. The learned Counsel further submitted that the Courts below were not justified in holding that the first defendant has failed to prove that item No. 1 in Schedule I-A i.e., the land comprised in Sy. No. 113/2 measuring 5 acres 9 guntas situate in Bambarge village is not the self-acquired property of the first defendant. He further submitted that though the first defendant has not examined himself, his son has been examined and the material on record clearly shows that the plaintiffs have failed to discharge the initial burden of proving sufficient nucleus for the purchase of the property which is admittedly in the name of the first defendant as per exhibit P19 dated 4.5.1970 for consideration of Rs. 2,000/-. He submitted that out of the said consideration amount, Rs. 1,400/- had already been paid in 1967 itself and on the date of sale, Rs. 600/- was paid. The learned Counsel further submitted that the material on record shows that the said item of the property purchased comprised in Sy. No. 113/2 was the tenanted property in favour of the first defendant and the consideration amount received under exhibits P17 and 18 would not constitute sufficient nucleus for the purchase of the said property for consideration amount. He further submitted that the evidence of the son of the first defendant who has been examined as D.W. 1 and the other material on record would clearly show that the plaintiffs have failed to discharge the initial burden of proving that there was sufficient nucleus which constituted the source of income for the purchase of the property bearing R.S. No. 113/2 and in the absence of discharge of the said initial burden, mere fact, that defendant No. 1 was the eldest member, would not by itself be a ground to hold that it was not the self-acquired property. In support of his contention, he has relied upon the decision of the Hon'ble Supreme Court in the case of Mudigowda Gowdappa Sankh and Ors. v. Ramachandra Revgowda Sankh (dead) By His Legal Representatives and Anr., : [1969]3SCR245 wherein it is held as follows:

'There is no presumption that a Hindu family merely because it is joint, possesses any joint property. The burden of proving that any particular property is joint family property is therefore, in the first instance upon the person who claims it as coparcenary property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate.'

6. He has also relied upon the Division Bench decision of this Court in the case of Shriramesh Srinivasa Jannu v. Sri Srinivas Vittoba Jannu, Since Deceased By L.Rs and Ors., 2000 (4) KCCR 2609 wherein, the principles laid down by the Hon'ble Supreme Court as stated above has been reiterated. He has also relied upon the Division Bench decision of this Court in the case of Ramappa Basappa Palled v. Smt. Basava, : ILR1993KAR1865 wherein it is held that in order to discharge the initial burden of proving the nucleus, two conditions are required to be satisfied. Firstly, it must be shown that there was sufficient nucleus of the joint family property out of which the property could have been acquired and secondly, apart from the said joint family property, the manager had no other source of income and then the onus shifts on the manager, when it is shown that he was in possession and charge of the joint family funds, which necessarily implied that, the said joint family funds could have formed a sufficient nucleus to acquire the new property. The learned Counsel for the appellant further submitted that the Courts below were not justified in holding that items 1, 2 and 3 of Schedule II properties are also not the self-acquired properties of the first defendant as the same is contrary to the material on record.

7. On the other hand, the learned Counsel appearing for the respondents/plaintiffs submitted that both the Courts below have concurrently held that the oral partition as alleged by the first defendant in 1937 is not proved. He further submitted that the plaintiffs have discharged the initial burden of proving the existence of nucleus of the property belonging to the family which would constitute the consideration amount for the purchase of the land in the name of the first defendant under Exhibit P19. The learned Counsel submitted that the three joint family properties have been sold under the sale deed exhibits P17 and 18. He submitted that the family was all along residing at Bambarge and since the properties bearing R.S. Nos. 5137 18,113/19 and 192 of Kadoli village were located in different area and could not be cultivated conveniently, the family members thought it fit to dispose off those three lands and purchase a land in Bambarge village so that the members of the family could cultivate the land conveniently and that this contention of the plaintiffs is supported by the evidence of P.W.1, the son of the first defendant. He further submitted that the first defendant apart from filing a written statement has not examined himself, and the person who is examined on his behalf has no personal knowledge about the oral partition and his evidence or the evidence of P.Ws.2 and 3 are not helpful to prove that items 1, 2 and 3 of Schedule II properties are the self-acquired properties of the first defendant and therefore, the concurrent findings arrived at by the Courts below is justified.

8. I have considered the contentions of the learned Counsel appearing for the parties in the light of the principles laid down by the Hon'ble Supreme Court and this Court in the above cited decisions. I have been taken through the oral and documentary evidence on record, the pleadings and the judgment and decree of the trial Court and the first appellate Court and I answer the substantial questions of law as follows:

1. In the affirmative

2. In the negative for the following reasons:

SUBSTANTIAL QUESTION OF LAW NO. 1

It is the case of the plaintiffs that the suit schedule properties are the joint family properties as there was no partition of undivided Joint Hindu Family comprising of the father of the plaintiffs and defendant No. 2 and the father of the first defendant. On the other hand, it is the contention of the first defendant that there was a oral partition in the year 1937. The first defendant has not examined himself and the witness D.W.1 examined on his behalf is his son. D.W.1 has admitted in his cross-examination that he was not born when the alleged oral partition took place in 1937. The evidence of D.Ws.2 and 3 also would not substantiate the contention of the first defendant that there was an oral partition in the year 1937 as they were not present at the time of partition. All that they have stated is that the parties are living separately and cultivating the lands separately which would not in any way substantiate the contention of the first defendant about the oral partition in the year 1937 and the best evidence to prove oral partition would have been the evidence of the first defendant himself. It is clear from the evidence of D.W. 1 that the first defendant was present before the Court when D.W.1 was deposing and that he was healthy and in the absence of the evidence of the first defendant who would have been the best person to speak about the oral partition in the year 1937, I hold that, having regard to the abovesaid material on record, the Courts below have concurrently held that the oral partition is not proved and the said finding is unassailable and cannot be said to be perverse or arbitrary. Accordingly, I answer the substantial question of law No. 1 in the Affirmative by holding that the appellate Court is justified in confirming the findings of the trial Court and the first defendant has failed to prove the oral partition in the year 1937 and the said finding is not perverse.

SUBSTANTIAL QUESTION OF LAW NO. 2

Defendant No. 1 has claimed in his written statement that item No. 1 in Schedule 1A and items 2, 3 and 4 in Schedule II are the self-acquired properties and not the joint family properties. In view of the findings on substantial question of law No. 1 and having regard to the contentions taken by the first defendant and in view of the principles laid down by the Hon'ble Supreme Court and this Court in the decisions relied upon by the learned Counsel appearing for the appellant, it is clear that the burden is upon the plaintiffs to prove the initial burden that the consideration amount for purchase of the land comprised in Sy. No. 113/2 measuring 5 acres and 9 guntas situate at Bambarge village which constitutes item No. 1 in Schedule 1A of the Schedule to the plaint was paid out of the income from the joint family properties and it is only after the discharge of the said burden, the onus would shift on the first defendant to show that the property was acquired out of his own income. The plaintiffs have specifically averred in the plaint that three properties which admittedly belonged to the family viz., Sy. Nos. 513/18, 113/19 and 192 were sold between 1966 to 1970 and the proceeds received from the said sale was utilised for the purchase of the land comprised in Sy. No. 113/2 which was in the name of the first defendant, who is the eldest member in the family. On the other hand, it is the contention of the first defendant that the said property was purchased by him out of his own income and the contribution made by his son. It is to be noted here also that the first defendant has not examined himself. On behalf of the plaintiffs, P.W. 1 has been examined and he has stated about the sale of the three joint family properties as per exhibits P17 and 18 and he has stated that the property bearing R.S. No. 113/2 was purchased on behalf of the family, out of the amount realised by the said sales. The first defendant apart from averring in the written statement that he has his own properties and other income did not substantiate the said contention by examining himself, and the evidence of his son who is examined as D. W. 1 is also not helpful to substantiate the contention of the first defendant that there was no sufficient nucleus as the facts elicited in the cross-examination of D.W.1 would clearly show that his evidence is not helpful in substantiating the contention of the first defendant and on the other hand, it corroborates the evidence of the plaintiffs as he has admitted in his cross-examination that since it was inconvenient to cultivate the lands situate at different places, the said properties were disposed off in order to purchase the land bearing R.S. No. 113/2 situate at Bambarge village. D.W.1 has admitted in his cross-examination as follows:'It is true that Kadolli lands were sold since it was not convenient for our family members to cultivate them. After the disposal of the Kadolli lands, Sy. No. 113/2 was purchased. It is true that Sy. No. 113/2 was purchased with an object to cultivate the lands conveniently at one and the same place.'

9. The above facts elicited in the cross-examination of D. W. 1 clearly corroborate the evidence of the plaintiffs that these three joint family properties were sold with an object of purchasing the land Sy. No. 113/2 and the defendant No. 1 has not examined himself to show that he had income from any other properties held by him and admittedly, he is the eldest member in the family and in the absence of evidence of the first defendant, it is clear that both the Courts below have rightly held concurrently on the question of facts that the plaintiffs have discharged the initial burden of proving sufficient nucleus income from the joint family properties for the purchase of the property bearing R.S. No. 113/2 and therefore, the onus would shift upon the first defendant to prove that the said property was purchased out of his own income. It is stated that consideration amount of Rs. 1,400/-was paid on 13.10.1967 itself and Rs. 600/- was paid on 4.5.1970. The first defendant has not examined himself to prove that the amount that was paid was out of his own income from properties other than the joint family properties and the evidence of D.W. 1 is also not helpful to substantiate the contention of the first defendant taken in his written statement as what is stated by him is that he paid Rs. 2,000/- on 4.5.70 which would not at all explain the payment of the amount of Rs. 1,400/- on 31.10.67 and the said deposition is not at all corroborated by other material on record and the very content of exhibit P18 believe the evidence of D.W.1 as the consideration amount that is paid on 4.5.70 is only Rs. 600/- and not Rs. 2,000/- and therefore, it is clear that both the Courts below based upon the above said material on record have concurrently held that the first defendant has failed to prove that item No. 1 of Schedule 1 A, the land comprised in Sy. No. 113/2 is the self-acquired property of the first defendant. Similarly, the concurrent findings arrived at by the Courts below holding that the first defendants has failed to prove that items 1, 2 and 3 in respect of Schedule II is not the self-acquired property of the first defendant is also justified as defendant No. 1 has not examined himself to substantiate the said contention and his son who has been examined as D.W.1 has not substantiated the said contention and the material facts elicited in his evidence is that he has no personal knowledge about the fact as to whether the said property is the self-acquired property of his father or the joint family property and therefore, having regard to the above said evidence on record, the said finding arrived at by the Courts below is also justified and accordingly, I answer the substantial question of law No. 2 in the Negative by holding that the Courts below were justified in holding that item No. 1 in 'A' Schedule to the plaint and items 1 and 2 of 'C' schedule are joint family properties and accordingly, I hold that the concurrent findings arrived at by the Courts below is entitled to be confirmed.

10. It is submitted by the learned Counsel for the appellant that the first defendant has effected vast improvement over the land comprised in Sy. No. 113/2 and constructed the house in item No. 1 of Schedule II of the plaint. It is well settled that preliminary decree would only declare the share of the parties to the schedule properties and properties to be partitioned. Equities have to be worked out in the final decree proceedings wherein partition has to be effected by metes and bounds. It is open to the first defendant to contend that the property in his possession may be allotted to his share as it is well settled that while effecting partition by metes and bounds, the possession of the property by a particular party to the proceedings has to be honoured as far as possible and therefore, the said contention can be urged in the final decree proceedings.

11. Accordingly, I pass the following:

ORDER:

The appeal is dismissed. The judgment and decree passed by the learned II Additional District Judge, Belgaum, in R.A.No. 217 99 dated 17.6.2003, confirming the judgment and decree passed by the learned I Additional Civil Judge (Sr. Dn), Belgaum, in O.S. No. 76/1987 dated 6.4.1999 is hereby confirmed. However, there shall be no order as to costs in this appeal.


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