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IN THE H§GH COURT OF FARNATAKA AT BANGALQRE
DATED THIS THE :8?" DAY OF 3" UL'! 2003
BEFORE
THE HONBLE MR.JUS'I'i{ZlE SUBHASH 2:§.:AD£
BETWEEN: "
S17; R. Diieep Kumar,
S/0. R. Rama,
Aged, abeut 56 years,
R/a. Sy.N0.54,
Subramgmyagmm Road, V
Chikkallasandra, _T ' '
U hobli, V .V ' jv --. -'
Bangalore-560 061.; ' _ - " .. APPELLANT
(By Sri. Sri. G. visvegwaza,' '
Sri. s. G. Rajeév "I'sEa_j1:, }'Z~.dv9.)
AND: % V
1.
Sri. S. Ramu,* _ ‘ ._
SI 0- 191- %’Sidda19:&a, = ‘
Aged about 80 yr:”azs’,*.
Rjfia. ‘Khatha”:¢g.55o in
$§y.1’*~I<3_,». Sxzbmfiianyapttra Road,
%' ' « Chikkanaséndra, Uttarahalii Hobii,
' B$1g&1_ofc-§'*3.§C- 'O6 1.
81*}. R. Siiélaraju,
S)’-.0. R-aihu,
V’ Aged. about 51 years,
AA R/a. frihailla No.:’350 in
~ Sy~…No.:’54, Subramanyapura Road,
‘ Vflhjkkallasandra, Uttarahafli Ho-bli,
V’ E Bangalsre-56006 1 ,
..7A1s:) reading at
Door No.1199, Srirampuia,
29¢’ Main, Mysore. .. RESPDNDENTS
$0
(By Sri. H. Rajanarayana, Adv. for R1
Sri. A. G. R& , Adv. for R2)
.. fi ,
claim of the glaintifi’ for ‘C’ and ‘D’ properties.
“2′, The triai -mart based on these pleadings, the,
fallowing issues:
1. Does the plaintfifgmzre his enjeymeni
‘B’ scheduie prcperiies as ‘srfjairzfi «
ftzmify wiih defendant? = ~’ ».
§~.3
Does defendant No.2″ prgkve Vs1.z’i3.’ A-32-:’:.3:-.{.=2«V:i’:23Ze %
praperties are 3:15 se§f~aa:ju§’Siiiort? V ‘
3. Whether the suit «is -the pféiiisiéns sf
fiémami Tran.-3ac:’ti”ert?.3 1989?
4. Whether defendani i3g.*z%£ifi£«fed joermanent or
rrtanda£o:y«¢’ir§.,iumi:fior;
5. Does; :.1§’9f;24’_p© :’f:oLs§:’ famiiy partition in
6. iifhétfzer ” ,!Vé.2 is entitled for the
possession? ” ‘
7;,’ {Fees upI£iint:f}f?° gézmve his right fer partition and
” p§>s3¢ssiori«:;f_1_{.\3Td share in the suit properties?
‘ “8, the suit is bad for non-joinder of necessary
T T’;?d’f’?€’3?*-¥,.V~~
A reiiefs she parties are entitled?
AflB{?’YOAE4L ISSUE FRAMED ON 5.1.1.999
x _ Whether the court fee paid on the counter claim is
‘ ” sujfideni andproper?
iflefem the trial zrgurt, plaintiff was examined as PW-1 and one
Witness was examined as PW—2 and he get marked EXSP1 to
I
_g –
joint family fund. Later, said suit was withdrawn by the
defsnciani N0. 2.
11. Sr;i,(T’n8.Viswes}Wa::’a, learned Senior Counsel
for the piai:nt:ifl’ submitted that the suit .313
acquired fiom out caf joint famiiy fund. He
amount was derived from the Sri Gu.i19uné:fl;a “Rice Sli ;
Gmunaflxa Rice Miii firm is a i3};~
famfly in which piajntjfi’, defendai:£:}’€9.1,.vfi1eft;i1e1éi1tVV«Nvf.$¥V2; ‘Vf§’o11i1″§:iV,
the daughtar ef the 1” dcfgndazif when $111:
plaintifi sscured a Gflvezfificht of plaintjfij his
wife was madc.v;1$ Va 1978, the site at
R31’ lwiagagf wa$1:~i< L¢:! 1' ~ in order to purchase thg suit
scheciuie
v if; supfxéfi: his centerztien, be strongly relied on the
*_§t: "E{ fi.§¢(} t§e*–.d@fcndaflt No.2 in O.S.Ne.134/1988, which is
as Relying on the said exhibit, he submitted
V that, fii'cfc:1§,§a'11£ No.2 had filed a. suit. for partition 313:3 scpalate
.'A4 1:.'s<'§sA3t:s;sioii" far 113" share in the suit schsduie garaperty
{_'.'3§<._ N'a:3.*:'.','~««~<3~). He mlied on para–~3 of the piaint and Sllbmiftéd than
VT _ 'i;h€: éefenda11t No.2 in the said suii has stated as under:
".3. Farmer during June 29,79 {Nineteen Seventynine},
an exfeni cf {and of 3 acme 20 Qantas in Sy..:"§o.54
(Three acres and twenty gamers in Survey IV0.F:}'iyf0ur]
of Chikkaiasandra vfilage, Ufiarahaiif Hobk', Qangaiom
£91
\
,.9,.
Sent}? Taiukt was purchased for yaluabfe oonsidemiion
in fhe name of me piainiifij out of the income fram {he
joirzi famiiy properties{ Out of Skis iand two aa*es ;r’:f
land has been cmrwerfed for nori-agrimgifural
The 119$! of the Icmd is usedfor pouftry and a:griczgl£:cfe,-f’–V[. ,
By relying on the said decument, he further s11,7r.>2fi1;3L;{i.’t*:Vc:i:iV–T.}i:;’r1:;«.tT,biagi,
vim? of the admission 1:33,: the defandanfi No:,_;?;,« it §::f’O”?téd..
ztioubt ihat; the suit schedula prgxperty iéfla ‘jaihnt ”
He alse mibmitteci. that, tha s;é£ic3: “31;it x’§it}3§(1§ra1ée*n on
28.8.1979, which is proaucgésé aiggd further
submjttsd that, though t}1f’:% as withdrawn,
however, the in defendant N02
wilibmd him.
13. He if’1j.c;_1VA:’0Iz ‘E}§{;’R_14§{a§, me haiamte sheet as an 303′
June 193oén_ ¥.>I de’1’V.,_%§b:–j.Sfi§§:i!:::” ilcxézt, an amount of Rs.36,887.-45
paisc, Wh’§.€’}} is EXeP14(c) is Sh()’WI1 standing in tha
G\.i;1*rufii::v Poijlfij} Faxm as an asset belonging to the
He further relied Ex.P’?2, a suit fiied by the
against the defendani No.2 wherein the father
3:aotI:::f% i~ of the plajntjfi sought for permanent injunctian
“the defendant No.2, restraining from irlterferilzg wifth
use and exigioyment of the suit schedule property (house
beaxing N0550 in Sy.Ne.54). Relying on Ex.P’?2, he
further submitted that, at pr.-1:ra–5 of the said suit, both the
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plaintifis father and mother alleged that, the defendant No.2 is
trying to oust them fimm the suit scheduie property £1; V~a?§’z?5×1:;{ of
withdrawal of the suit in 0.55.310. 134/ 1988.» Ha ;_-QA41:1« %
EXP74, 21 writtsn siatement filed by the c¥e:fe1}c1a: 1_§j’–V.I’§t>:.VA;’Zf’
saéd suit and submitfaci that, in the ‘as:1fi’ttcfi’):A4s§;a’1?:;11i?:;’Lt_.:at
thczugh the seems; dcfenciazxt aygges ¢h%a%:,% he fi.1;%J::i sé,?:i{ i1i”=
O.S.Ne.134/ .1988 as he was india-cg: “by. ::»;e’_ is: the
purpose of regulazisation cf~:§h€ (3-r.I$;!’fi;S’;’fE’?{};€v’M’?1Ei(31I3., the
sajci suit: was compromiscrzd was given to
the éefendzmt.bc1o§§,$:«:1§_d$§§fi§éa§:t sairi compromise
was not re::::::°dt.:§i’; §_§€VVdefendant N033′ on 0115:
breath 3eli§;’:a&§:%ju:§;:é§;’Vpi;:;psrt}*§ at the same tires,
he ciajms pfoperty. He ffizrther submitted
that, a memer$i:2_§i:.m <5c:'.:i1p:f3mise filed in 'the suit {fled by the
fame: umcssthern'éf fif;§:__&p»1aintifi" in 0.S.Ne,3257/1990 as per
E1'!ffEI"thOUght ané the piajnfifi is not party' to the
sair.;1 the allegczd ad mission by the defenéant
31351 moflzer are net binding on the piaintifii
" §;i_.L§A1';§;v;flz év..ze:'f,'. Thsgiltifemed to the gaid dacument and 3uhm.ittc{i that, in
«i;'f§:.::._«js:aViéi'–c–;§m;;remise, it is admittad than in the event of dttcreeing
the ssctond ci€fsnd3I1t.w'o~u£:i be antitlcd far 1/ 3"' sham.
Hzgjaisc sub.mitte:d that the piaintéif did make an appiicatiorz as
per E:x,P'78 to get himseif impisaded in the suit filsci by the
,«*-'_''2'?
gb’
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parents in viftw ()f the order passed in M,F.A,No.154′?]1991
durixzg tbs pendency” of the pI”6S€:nt suit fiieé by him. P’1aint;ifi’s
patents, who had fled the said Silif, withdmw the samt:–as pm”
EX,P’I”9, alleging that fhare was a seti}.emeim; The, wife
had also filed 2: suit against the deihndant Nos.
Ex.P3Q ix} c>.s,No,30?2/1991 infer£::Ei(:_ &
i3.1j113:1cti(m net” is change the name a
the name of Si-tidu Poultry Thgf
defendant. Howavei’, the: amid -zjflisntziésitfcivljfoagfdefauli. Q11
14,12,19′?9. He also siiififiitteai ifié’~§en駧 Naif the suit
schedule gmisperty has: :,f§7′;s.;~:o.44.”3:3/ 1988
against the !’3Q;.:2 $2}? of the sale to the
£’215(t€I].’£ of acrfi thé said suit was dismissed; agad
cenfumfld Vvfivfl! r«:”.:;,: 1485
Hz f’:1I’1.”V}1′{‘;17T ggprnitted that, G”uz’s.11:::ath.a Rica Mill was
“9w.r1i1ig_ 2; _1()?f.°1’_’;?’ £:’:E~”€1(3. tbs same was U”£1I1SfCIT€d in fly: 11:33:36 of
c;:i1~11i:’:a_;~11″P5′:;.1:r§{;aé per E;v;.P13′?’. Ex.P1.’3? is :21 lettfir aédrcssed
V V’ 9:0 Incdme ?13x-Qfflcer 1:33; the Gumnatha Rice M13, infmming that.
” lorry; ‘,:§’-.::afri11.g NQVMYG 4659 beiengitzg to M[s.Sri Grurunaiiha
Rfi’c::_ ‘§’~J£–ii1 is handed over to M ,1 s,Gumdev P931113’ Farm anti
% saiuglzt. fer dsletian o:f’cnt1″y of lorry in the assessment mgistexz
E
.3.
15. He a1${) Ifiliffiii on Ex.P113 and stlbmiticd that the
dafenciant N02 had filed objections befem the Land Acqfi:iS%T£ion
Oificez’ in mgani ta acquisition of 1 acre 28 guntas ef.~$§%’._’?\§§}’_.;”S%*.-j1A
ané at 13313-1 of the said 0″h3§ecti011, he had
member of the jam? famiiy cansistizrg obf”i1:in:$e§f,-.fé:-it11¢;4;«
plaintiff and his mother and has caffigdiéggafly
iheugh the land is purchased in fax V’
property. Hf? also relied reg Ls§;:ow fh:a ‘Aificome of
Rs,-42,DG{},l – cierived by way 16. 3978 as per
the assessment r6gii*§§f/_§sr§§:”‘3t’:%V He alga mfied on
E-X.PI4(a) ?:s:h:f:t;*–1:_ Jung 1930′ gt,
furiher relzlezji” “”‘a$s’fiessment of the second
defendant giefenaant has desctrihtszd his
assets as 3/ 4*; :%;.¥::_ VagI’i{§L;.1’V;i;;;”;é21« 331d 1/411″ in 10113; and 1/ 43* in
Véfiurrunagiligavfiicg }:§_§:___fp.r;1*ther refcrreé to EXPQ4, tim balance
Aé}1§:ct;9=.3- 2 611.. :_1983: to__ point cut 13:15 value of the Izmd is shown as
Rs.%i:€}.,{§{){3/ V4’; Izslied on EXPI7, a letter written by the
to Manager, Sangli Bank regarding 10313 for
_ ‘<:6£1su":;;x:fio1:i'"0f gotiawn.
He furthcr mferregi to the evidense caf DW~2_ and
‘ ‘that, there was a paxiition izxetween the defendant £530.}
his uncle 02:1 303* December 1955 and subsequently again
there was 21 partitrion cm ‘.?,2.1.19’?O as per EXF4 betweezx the
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defenéant No. 1 and his brothers. In the said partifioe, defendant
No. 1 got Rice Mill, which was censtxucted is an area meaeélring
100 ft X 100 ft. Thereafter, a mite bearing No.5 at
which had fallen it} the share of the first defendeei;,:\\
purchase the suit schedule property. F::bih”t11e_ V
of the said siie and also finm the 553;
Gumnathe Rice Mills, the suit
in the name of defendant vi’~E–«:)z.2 faef by
the defendant N032 in his 1988. The
defendant No.2 ancifhe defeii£i’.».e)tV.:i\Ez;t’.. mother of the
plaintifi have property is a joint
family pmper1y_A”i_t1F in Q.S.Ne.325′?}19QQ
wherein against ihe defendant
No.2. The paym.eJ:”rt_0Vf Csefieiciemfion is clearly shown in the
“be1anee,. The eiffiexzce coupled with the documentary
‘admission made by the defendant Fig.2
the suit schedule property, though stand
i13 the IVi’E’2lII1t’5.,V eafzsiefendant No.2, was purchased from {slit of jomt
” H ” f1_.211d.’~ He also submitted that them ie as evidence to shew
siefendant No.2 had any independent source of income to
nifeurchese the suit property in 19?8. He submitted that the his}
” eefitt has eneneouely held that the has failed to prove
V’ that the suit scheduie property is a joint family property by
<;fi5y:,
E? * '
«iii-
wr::2ng.1y pzztting the “buxziers of prcof an the p1a_:’:3i§fi; despits the
admission by the écfeiidaxzt. Fé:::>.2 in O.S.N0,134/ He
submitted that $115 judgment azzd deems of the i:xia3;”{7ou f1f£. _~;f:i1.:-:A
passtsd in fitter disregaifl {Q the admissicn 3:311_”‘%h€’V..:%:arjde1§{;:VV
establislzing the €:XiSf€I1{?€ ofjoint ‘1 * . ‘V ‘
1?’. Learizcd Cetmsel 21p;3€za,;;*i11gV”§?r)V.3:””t1:;e
submitted that. the suit is 130? i:i;4fii;11tai11é¥3£e&_VVAaé Sig; piaéntiff
himsslfadmits that, the i%”§§$.i§>’ufithase§ the name
of the second {iefendant far cE31;15§€i:e§i?%1ti:);fi éf<R'$¢35,{3{)0! ~ out of
imtcame .i,e., Gurunatha Rice Mill.
Hf: $t113B}?;fi1.f§d” th.ai.t31e; not a gparstncr of the said firm
and he <:am;Q't"–:;1a:i.t3.ta;E_;:133i'e"s€1it. He also submiiztecé that, before
"i'h;=: 31155;'. ;s_¢.i2a:d13.1e was purchased by the seccwnd.
éig:fei,£:i'e111$,~.;£ieM zmtered into 311 agreement dateé 22.4.19'??? as
peg? gg.g*2¢w& Essa ggiied an E2x,P150 (E1x.D2) szaouwmg that the long?
was Izfiiothgcétéd ms Kesariah Fizganca Csrporafion by dcfengéant
vazgd Viéas geld by fiefexidant Nag fer Rs,4G,Q(}Of~. The
:_Ij¢gi':::fi*fa¥35o11 Cefiificate cf the lorry produced at Ex.i3'49{a} shows
_4t§aat–;Vit stands in the name sf Gumzdev Peultry Farm, He fxzrfiler
A félied on E,§x,E?~'§ 1, the <){1I1V€1"Si0I} Gfland.
18, ii: fu.r:E1e1* rebled an EX,P'2 and EXPIB to azhcsrw that the
piainfifi" reiimci from 2:115 firm on 1.'?.19'?8 and a:fi:s::r thé: rsrtizctiment
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has got diiferent sham in the profit and loss, he1_1ce the
partnership cannot become joint family business.
20. Insofar as payment of sale c0nside1’atioI_t:is
he relied on only Ex.P.14(c) to show th_~at’;’ the in
the name of Gurunatha Poultry to the
Though the sale consideration ‘PW-1 i
his evidence has stated thatA,_…i: it eonsideration is
Rs.60,350/– and further se’ee:1:ted_ amount is paid from
M/s.GurunathaR1’ceeMil1. V
‘.21. In ‘Was severance of joint
family, he 1′,7Cl.l’t’,”(‘!._:(i):1″J;-9 disruption in the family.
22. I11″supporte.Vof’-l.his_i”eoiitention, he relied on a decision
reported 1995-e.A_LL It-‘IDiI’A ‘ration comm” CASES page 861 and
that, vvacquisifiohiiof property by a member of the joint
of his own. He also submitted that.
vExs.P’l..1′:oi P3, P14 clearly establish that, there was a
disruptioii the and there was no joint family existed. He
‘ rstlbtliitted that, the partnership was not joint family
“Fl ‘urther, the plaintifl’ has admitted that he has retired’
firm. He also relied on Ex.P14(a) to submit that, the
‘balance sheet is dated 30″‘ June 1980 whereas, the purchase of
J “suit schedule property is dated 29.6.1979. The balance sheet
I
. t (
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pex*tain.s to 13* July 19739 to 3015 Jun: 1989 and the 3.m011nt
mensrioneci in Ex.P14(a}§ it dates not prove the case of
as the balance sheet does not Show paymmat. dt11i13_g§més2é$–s:3;is:;iiA_
year of 1978-39. Insafar as purcthase {sf “‘#:crh§cisj}.e’
pmpertj; on ‘29.6.19”.?9 is c011z:.~er;md;=__ thfzrré Lié; *r:\}i(iéz3__<:'€:.;_Tc§f
payment as the accmznts were Vci-based {Sn ;':;-0*11 :T}21':1;c._19?§? V' L.
there is :10 reference in the jibéén fmm
Gur11z1atha Rice M111} he also
Iflicd GI}. Ex.P15{}, at balanff 1979 and
pointed. out that, Rice: M3131 for
the purchase cm hypothecation of
the iomy. daftzndant. N092 i5 shown
as oumer {§§ tI;¢ long is tI’aI}Sf€I’I’€2d as per
Ex.P13′?,, insofatjééas £§ug$é~3Sm éi1t of the defendant N92 as per
.E;x.P15($ot:cCrnfi€i;=}1.{§_ further submitted that it is his personal
* -::cma’1:.t._
2,’3 ;VV1n$nfé%”‘:–.Vr$ 0KS$NOIZ3¢! .1988 filed. by the dcfcnriazat No.2
_ “» _i$”(j0}f:1C¢’:rf1~!€’v(;l;;. he submitted than the statemanf mach: in the
:iS=t10¥L concinszéve proof 311:} in this regaxtl, ha relied on a
_de§i:isi @n of the Slzpreme Court regmrted in AH? 19”?4 SC: 471. Hf?
$130 relied 0:; his evidence, to shew the circt11z1st2s11<;~e under
which the said suit was filed. In this mgaxdg he rslicd on the
written statement filfid by $114: zisfendant No.1 and the plaintiff 1711
:-
.18.
$116 said Suit. to show that, they have admitted that, suit prtxaperty
is self–aCq11z’3*ed proptarty of the {§<:":fen.c1am. N052. fiat ftlzrther
Silbmittfid that, the suit, W85 dismissed as with{§r.;3§5s;:, He
sllbmiftgd that the defendant N02 has shw11 the “._of
incams at RsK3Q,0€)0/ ~ by 3.236 of icazzy 53.15153 the
of the su.:’.i’ schedule ;31″o;>erty is admitted as
plaintiif @359; Tha loan was raised on
schedule property was p11rchas::(§'[:_e:2. V ‘
224$ Learned Cxmnsel far tIf1e ge,;r;f§:i;»1.}<i =r.§f3fe*;:.2, i"r:az1 £Ar¢}:;§::ai. 313311137
on Exs'P1:'i30, D2, 113$ evidézizé;-§"Qf EX.P52, E:.x,P62,
Ex.P383 Ex'P14{(*.) tr). sh.-CW… .3551: '*z–3;e.__ :;9£a;;:;":1%5' is 1101 paid by
G13n1nath:§, Rictéf in} '
25. ‘~f}::”e dais-nrclanég fzlrfthttz” s!.1bmit’£.es:i
that $31!: szgit is} in View of that fact that, plaintiif
§;§f3.Iff1}f§1″ of and once he is ratired {mm the firm,
he a. Suit for paziificm or share: in the:
pafim/zrfihip Without pzfjudicc, ht: also submitted ‘mat,
‘ms 111e;111’fia>.:;i; atgf ‘A’ schedule pmprsrty in tha p£a:im, skews that, the
flélong to M] s.(}ur11naitha Rice Mfiis and Gxinldev
It is stzianzittcd that, ins-:>far as Gurudsv Peuitry
?iZ1:i’fif:”is contained, admifiedly, neither the pkajnfiff is partxzzer 1301″
has any rciiation with the p1″1}z’:y:, inclusion of G11r:.1d::v Faulty};
.jQ-
Farm i5; II1iSC(}I}{?€’iVCd, ‘B’ scheduier ;m:wps1:*ty is a b11i1c§i11g EJ113211 an
the property belonging to the second defemiiani, and without.
fhare bging right aver the land, ‘£116 Claim in mspgzgt of a
buflding is net maintaizzable, »
261 He fairthar submittad than the schezifilgé
pur<.*ha.s,scc1 in the? name 9f the se<:ro;1ci"'a?;s:f£:1:§L.é#:;fi_;t" ' j "
deeé, proparty rsgister stand in hi$
admittedly has been paid _4;£}2€ %
hypsthecatjng thc larry, vrghish e$;ide.1r.1't"D2, He
fixziher submitted $1131.; V firm is a
sepazaitz property and eat,r_"rh–V.-:)f£;"'V $11.: :v,IE:§é.1"s gs': a distjxzct
sepafl-{ta iie ".:_h§V of the share, they are holders of
scparz:-13:3 pfogggerfy. '
~11; thé i:';ght'j<if the éfontantians raised by 11:31}: the Sidiifi,
{E15 jgitxérglts an §tHfor co1:3.sficrat;i0x1 in this appeal;
' defendarztg preve Ihai aim suit is not
T rfmif;1i::'u:'na;I)fe?
“‘Wh駒?zer She piainirfi” fuzz-s prayed {km the 3212′:
” .3:-fzedufe pmperties arej0ii1.zfa171z’!_y prapeiffes and
he has share in the s{:i,idproper1.’ie$?
1.28, A: the outset, from the pleadings, it fig clear t};1a:£.,, the
h V “”;éV§1H22L£3’1€if:” cgaims “that the giefazsdant Ekkxl started Gtznlnatha Rice
M2113 in mg year 2957 anfi in 1971, glainnlfi am thté defendant
.,;>g..
?4o:2 wart: i:;::h1cte:€§ as partners, Further in 1975; plaintifi” was
substituted 1:35;” 11$ ‘wife: as a partnar and in thc yea}: 1984, the-:-.
pa:r’t;aersh.ip was traxasfecrrfid and a new partnersmp was
canstimtad. with assets mzd iiabilitigs and piajntiff a33;€gé’:3_ t};at;
deffinéani N0″ 3, invested the mane}; in the nam_e’§:)i’ i€i’=§ff’§:i<:i'a;:§§1~–
N92' in support. cf his case, had _. S§3Vtt1;2%3".
doctumatzlts.
29. it is not in (iisp1′;te’fl:;a,§ Ex:;?1.’ is a’ fizég’i§zt:a!:ioI1A av? L’
partnezship deed, EXWPQ is a 7pa111;§%fs_§:i1:sVV_deeci’.’ «Frbm viE:x.P1, it is
clear that, the plajxztiif was-..;é1::Vpar¥31e;’Vf§0~m» to 191753 and fmm
1975 tmwaitis, hisjwifxa bAf:C£>3TJQ?x–f: £115 pz»;rtners%1:i;3
dead, €ac;_?a of get a distinct sham: in I113 pmfit
and. liabi11*;i;s.M% % ‘ta piaintiff himself, the sage
censizizjrafioix Rio._ 1)11I§;*i3$s:€ ;Ehe suit land was paid from the
Vézcrcgtifif’ 0:3~.T.;\;§,i%’3{{}1:1;Li:i:it}ia Rice: Mills, In this ragarri, ‘ms: relied
§:§:1__ “EXIPAJ ‘§hr: piaadingg ané the evidence lad by {Chit
it .is73 .c:3:eax that. the p1a:i;11tifi’s Case is based on the
. ‘2iVr;.u111is:ii:i<:~n ;:»f psroperty by the firm' Piainiifi" is not disputing that
._ 13;ré§$"*«;s10t a partner wI:1.€:1 {£113 prsrzaperty was acquired, There is
..__ :io Qispute {hat the property was acqufltd in the year 29?') and
V V n "at 'that time, the plaintrifi' was met a parmar. if {ha piaintifis Cafifif
is basad on acquisition of }_3r01)CI't_fe' out af funds 01" the
partnership firm, then the plajzxtiff has to pmvs that, he has got
,2;,
share in the fem; when the was not a partner at relevant
time of purchase of the suit pmperty, whether plaintiff could
claim share in the same?
so. In this case, the wife of the p1ain1:ifi’ is not a “The
plaintiff does not dispute that, his father, the .{3f1:*stv 4_
started Gurunatha Rice Mills in 195′? by ‘
in Mysore allotted to him in the “V1955
also a partition between. the ii-efcnttient L’
1970 and the first defendant Rice
Mills and a site in Raja;’iIV1aeegr_.A alleges that
the first defendant s<)lVd_»– Rajajinagar for
Rs.25,0(}t)]- _ :5' Suit schedule pxoperty for a
considc1'aE'(511_"of Jfihowever. he also admits that
Rs.10,()C.G,l_– the joint famiiy business i.e.,
*Rit':e MiIleV.V"""'fi1ough the allegation is made that the
was from the sale of property at
accoxding to the plainfifi himself the sale is
18,2Z~}978, Whereas the suit schedule prept:rt.y is
on 29.6.1979. Same does not shew any co-reiatioxx
-.._”iBet\$é§een saie of Rajajinagar property am}. the purchease of suit
-32-
33.. In this regard, it is necessary to notice the evidence of
the glaintifi’. He categorically admits in his examinafiert4tti#et1ief
itseif that: ‘ té V
“The suit property was purchased for Rs. Z
amount was provided by funds of Guruflaiha M2’I£§;,.V
ajointfantilypavtrwrship concerrt” ‘ « ‘7 V. V’
This admiseicm is further suppoi L’
plainfifi’ an Ex.P14. Ex.P1{_} is tire tefiishow that
the jpayment of amountvveeis _ Rice Mills.
Ex.P14 is an assessment Rice Mills of
the year 1989′ 30th June 1980.
Ex.P14(a] is fgaiect tcfrsimw that an amount of
Rs.36,88′:ft45 e§{é14(c) is paid tn Gurudev
Poultry admittedly relates 3:0 21 year
commencing ‘E?’ s 1979 to 3031 June 1980. The
Vfiumhasie irfthe-._s11it property is cm 29.6.1939, i.e., prior
‘é.e~e.e3:S1r2E:en:t”_:year of 1979430.. In the cmss~examinafion,
‘ that as per Ex.P}3, he retired from
«.._’G-urunafiigtfiice Mills in 1975 and whatever profit and loss was
t<':'r_.his share was transferred to the account of hits Wife. He
.___'"a51st:§;admits that, his share is about Rs. 32,600] ~.
32. Learned Senior Counsel for the plaint;i:fi:’ had further
Ieiied on the hypothecatrion of the lorry belonging to Gurllnatha
rgfifi
%”\
-33-
Rice Mills as $63′ Ex.F1SO in order to show mat the sale
consideration was arra11g€:d_by hypothecatjng the said lorry to
M] s.Kt:sariah Finance Ccznxporafion for Rs.40,0GG/-. As against
this, the defezudant had relied on Ex.Di2, an R.c.boo1<..jo"'_:'s1;ow
that the iorry was purchased in the year 1977 by. _
R.C. book stood in the name: ef the defendant ..
hypothccatfid for a yeriod of 8 L
Corporafion and it is entered in the.=;_ RC.' -mes; " ,
ciaearly Show that the plajntifl' Wa§'§t't':;}':5i, _onl§ 'w§§3'vi30t':;partner of
the firm nor the decumtntéss' pmvtit tite payment
of sale consideration at m1evafit_Vp£'§§:t$fbV Guzcunafila Rice
Mili. He also tr: an amount was
g€fl€T3t€dV:"'b}"' RHGWCVCI, fmm Ex.D2, it is clear
that the Eon-if was' the name of defendant No.2 and
__. shows, nit Ifirpothecatcd by him.
‘ .. the above. the partnership deed Ex.P2
each partner has got distinct share. F”irs'{
V «gt has got 30% share, defendant No.2 has got 25%
of the plainfifi has got 20°/o share and another
_ Qfififiérthas got 25% shape. when the: partners have gtzat difiemnt
Vt tiistifilct share in the yartnarship business, it cannot be held that,
D» [it was joint faxnily business and the acquisition of pmperty by the
saiai fimil is acguisition by the joint family. if it is joifit family
-34.
bueiziess, the share should have been equal whereas, the shame
shown in the deed does not support the case of the plainfifl”.
Piaintifi has failed te pmve that, M] sflurunatizia Rice Mifiie joint
family business 3302′ he is a partner of the same.
34. Further, the acquisition of property as
[)2 clearly shows that, the consigiefation is by V’ 9
M} sfiuninatha Rice Miiis, in turn,
lorry was hypotheeated an 2015» a}iia.e 1’97’9_’ the V L’
suit schedule property is j{ai3.rehaiserVi:A”‘o_n”‘:?.,F,3J’*’ 19:79, which
supports the case of the of the plaintiff
that the consideraiiczxi is p’9;id– iiiiyv 2 iéice Mills is not
as per Ex.P14, which is
admittedlyefof the
-As re’§a1~e?.$”te tize iedmission of the defendant No.2 in
:i’ii_d’;:’3.er§:s-; i.3«4f19″8€§, tixgiigh the defendant No.2 flied the said suit
the suit schedule propeziy as joint famiiy
the suit came to be withdxawn. In this regarti.
-. Coiizisei for defendant No.2 has relied 013.. E: decision of
reported in 11,12 1992 Ker 2905 in the matter of
./._”}§.Di§,IP KUMAii’ –vs~ s.RAMU inieralia, submitfing that, em
isleatiiiigs am not admissible in evidence as conclusive proof. He
also relied on a decision 01′ the Apex Court reported in AIR 1974
f%
“J
‘.
.25.
SC 4?} and in support of the same, be 3.130 relied on the evidence
of DW-1. DW–1 in his evidence has expiajned the cixeumsiaqees
under which the suit was filed interafia, alleging
advised to file a suit as the piajntiff wanted 1 _
1:0 him and he had teld the}: it is not péééfile fvtd’._:e-giei_7e§*_f.?Q,e”Vé;:a1é
deed in his favour as he was not an agfieultuzietv é:am:§'”‘§:v1e1e’–.V
i31aim:ifi’s Afivcxrate had advised’ file” 3._Vsu.eif= get it
compromised .
36. It is settled law am not
conclusive pmfifisg on an
earlier occasio;1….:v§§i§§.V. of mjunction has
ebserved the admission. alleged to
have beeI1 “:;:1ade fiefeixdant No.2 in the plaint in
().S.No.134/ 19é’8,,_ 1:;..¢a1in.o£”be said that the plaintiffs case
j§1*<i~1':'ed;~. '1'}:1e é3;!;tV1 admission by itself will not be a
the defendant will be at libeny to show,
' under 1p§fV11atvr:ii*(:;v"2.;_::&1sta11ces he has made it and even to Show that
was The Apex Court in a decision} xeported in AIR 39'?-4
3:14?' the matter of BISWANATH PRASAD AND OTHERS –vs-
PRASAD AN D GTHERS has obsewed:
‘There is ca cardinal disiindion. between a party who is
the author of a prior statement and a witness who is
examined and as saught to be discredited by use of his
prior staiement. In the fonner case an adrnissien by a
pang is substantive evidence if it fixyilb the
-35-
requirements cf 32}; in the latter case at prior siaiemeni
is used to discredit ihe ctredibiliiy of the wiiness and
does not bemme substantive evidence. In the former
there is rm necessary requirement of the siaterrtcinii
containing the admission having to be put is the
bemuse it is evidence pmprio vigore; in the latter. gage V ”
the Court cannot be invited I0 disbelieve a w_iii:.es$
the strength of a prior mntraciiciory statement “uniess it
has’ been put to him, as required by Section _-I 45″.”’–. . 4′
37. In the light ef the decision
statement by iisezlf is not a conciififiizzg thgixgh’:..;it’ be* i
cvidtzncc. However, defendant ‘i333 in his
evidence, as to under what was filed anti
it is also clear the j'(§ii1’E””.:’».t’r;1i’.y’i,.”Vf’t}§it’:’11t filed by the
piaintifi’ and cief.c:11§Iai.;ar;i:i;{i that the suit
property of defendant No.2. in View 0f
these “it'”c:annot be held that the case 0f
the p1ai;m:1fLs:5i:dig ‘pi$3vé£i.&’}t;1dmitted1y, the said suit did not
and in the judgment of this
Cfmflf 200? KAR 2394 in the matter of
i »,1<.s.V1«:r_¢'i<AT;¥:Si¥:i_ '-i-vs- N.G.LAKS§-iMINARAYAN"A AND OTHERS
«xiyiilcreixa fl13'.$AC011I'§L has held that:
"ii" "an admissiorr, is in writing and if an opposite pars};
"._w:12iis to» make use of that statement as an admzssiarz,
ihen the whole statement containing the admissgian must
'V —-be taken iogeiher to ascertain what the party has
conceded againsr hinzseyf Unless the whole is received
the true meaning cf the part which is evidence against
him cannot be ascertaineci An admission aontaimad in a
pleading is :1 piece of substantive evidence, which can
g "in,
#1 ._~'
-37-
be aczied upon even witheuz putting it to the maker of
auch statement. . . .’
In this case, the defendant No.2 has expiaincd the:
under which he had filed the said suii, apart”
plaintifi, who was defendant in the éuitf
‘(ha suit schedule pmpcrty Was’ 1 nu
defendant No.2. Nothing has 1acV:e”11:§1icitec.i by thé’
cross–exami11aticm of DWV.,«;;.,.V. ggtefiisiqn ‘of ‘the (301114;
mported in AIR 195*? so QASANT SiNGI~i ..
v$- JANK; s;N<_}H–i ;sz;_ 'Apex Court has
observed: " ' I A '
'Adn'¢iwi§:z_v'..»be §$:éAcZ' ¢..§_m§idenoe against him in
other su1"£:.-i, _Sizch,a.:1nti$sio:; oamwi, however, be
regarded asL~:;f?zcIu$ii9eT and the pcmy can Shaw it as not
_._'{'he {}«i§§;if;iOn this Court in a case Itpofirzci in KCCR
= 1éi9}9{ .i;;;*–..1;he matter of SMT.SI~£AK¥;INTALA BAE –~vs- SR§
1\éA_LL§1§s:A'R;i:;i§;éiéPA JEVARGI has alsa helé that
'"*"Adm1s$ior2s made in other procaeedings though reievarti
woufd no! he conciusive and it can be shown that flue
n VTL_ad25n1'ssion made :3 incorrect or based an
_ "misundersianciing and acimission macie in a. previous
giroceeding is not oondusizxe proczf tfwugh it may be
reievant."
uhese decisions dearly Show that, the admjsfiion made by the
defendant No.2, that itsclf is not a ccnclusive gsroof. £11 case of
joint family DI’O3)CI’1Z3I. in thfi absence of evidence to Show the joint
1
.23.
living and combined cultivation, acquisition by joint income,
claiming the acquired property as joint family properly eamlot be
aecepteé, solely because it is acquired by the Manager of the
fasrsily at relevant ooint of time. In the decision of
Ieported in 1995 Ame 861 in the matter of RAMAPPg§”EJ§;’:f§;g§l5i?%~~. _
PALLED AND OTHERS –vs- SMTBASAVA
Cotut has held that, the pmperty
shorer. no presumption would srisees 3’oV:i;*1_tl *’
is also supported by another 1991 V
PATNA 145 in the matter ‘ieAs;§ii’i§A?:€1;;V,”‘f::xazARik’ 5:, omess «-
vs~ RAMAKANT’ TIWARY AND o-*i¥Hi:’1-2s:”
38. tfia;’3–..«;o13i*t’i;xeiVs founé. that, the plow’ fiff
on one haiidé §:leadsVli;ll};iatV schedule properties are joint
family pzopert};;’–ofi’vthe in the plaint as well as in the
1..-e:ridenqe;’.:.he_lA siivegestt ‘t§1s._t_.__lfirst defendant invested the money in
the ‘ Vsee.ofid__ ciefeneiant out of the income derived from
V whereas, the piaintifl” in evidence alleges
that, “3; purchased by the second defendant on the
V of tlie plamtfifi himself as per EXPIS7 whereas, the ease
” fiisinfiflis that, Rs.2S,Of}O/~ is paid by the defendant No.1.
T e$§<;'P'l57 is not proved. {Defendant No. 1 at parsfia of his written
llhxhlstatement has stated that he paid Rs.25,0{}0f~ out of sale
proceeds of sale of site No.5, Rajajinagar. Even the p3.aintiff at
-39-
pazraré 0f his piaint has stated that the first defendant mvestsd
the money. Timre is no pleading mat the p1aix1tifi’ paid
consideration. Ex.P157 is neither supported by M
evidence. Though defendaxzt. No.1 has flied tha –
supporting the case 9f the p1aintifi’ haézg
box to prove that Rs,25,CK)O/- of s:a;1;ti”.A_
sits No.5, Rajajinagar, no documéiitégarfi V
court on appreciaiion of ..21as that the
suit schedtfle proparties are not-j9i1i t
39. Though {he documents,
such as Exfgi 1988, EXSP14. P63 —
the writte1i__ ;:?:1e(1%4.%§;§3g;…x{1;Me _’dV:¥:’fendant Nos.1 and 2 and
Ex.P’?4 – by the second defendant in
O.S.Na.3f2i”%7_[ }.9u9{).,VAAh<:$5ve\$ér,«..'fht3se dcxruments do not establiah
:' 'T;h§é"t:xif;'t»§n{¥e of joint or the acquisition of suit schedule
the joint family fund. A suit filed by the
é.s.No.3o72/ 1991 is dismissed for default and
E3332? is the agreement 0:" sale is in the name of
No.2 azxd thereafter, under an ageement by the
.___':V1'éfei:;dant No.2. 1 acre was agreed to be sold as per Ex.P156,
'thevfie documents estabiish that, the defendant No.2 not only
purchased the suit schedule property, but also exercised his right
over the same as absolute owner.
.30.
40. From the evtietience led by the partiee, it is clear tlzat the
plaintiff was not a partner of M] s.Gu:runatha Rice Millst’.:.ik.*l3.en
this property was acquimd. Plaintiff has admitted
schedule property was acquired from out of K
Gurunatha Rice Mills. The plainfifi
M/s.(}urui1atha Rice Mill is a joint
also not prevofl his case that the ‘acfitiisition of the’
name of defendant No.2 is fieee iitiiiclette. In the
absence of evidence of the the plaintiff does
not get share inf. u eiie of the family
members in his ” l3i; of of3’oi;tit family and
joint famfiy 1:~*u1:{i”,:’fs;;t;it be held as joint. family
pmpertiesLV–._lf’tl1e not joint family properties,
the suit fer and the trial court on
of evidence has rightly come to the
if ‘ the learned Senior Counsel for the plaintiff
ielied oi: severe] tiecisions, however, on facts it is fotmd that, the
being a partner of M] s.Gm’unatha Rice Mill and also
having failed to prove the joint family nucleus to
V ilgiiitehase the suit eehedule property and further, the property
admittedly being purchased by the defendant No.2, i do not find
that, the decisions relied by the leained Senior Counsel for the
plaiafifi are of any assistance. The trial court on appreciation of
the entire evidence with well-founded reasms has held that,
suit schedule properties are self»-acquired pmpertim of 3
defendant ‘
42. In the light of the above d1sac’ _nssio§:§;’..1 &o V’
merit in the appeal to interfere w1th’ the S
the tr’:a1court.
Acmraingxy, the appeal ~ %%%% S&/3' Judg3' KNM} V-.