I
IN THE HIGH COURT or KARNATAKA AT EANGAEQRE
DATED THIS THE 9" DAY or sEPTEMEERg72fi1§L
PRESENT
THE HON'BLE MR. JUSTICE K,L. MENJNNATE3 "E
AND V V I
THE HON'BLE ME; ;tsTICE $;M§NQH$R"'fi
REGULAR FIRST APPEAL No 1513/2005 EEAE)
BETWEEN: A ' 'V
J.Venkatesh 5/0"late°': _ _.x .
S.K.Javarappa;;50 years, "E"7"~w
R/o Door No;2G52g".;_"T ?'=' ~
Sri Lakshmi Venkateshwer~F
Saw Mi;;[ Eghsug, E __ -_Wx
Mysore"nist,{v i_ _'a_ . .. APPELLANT
(ByxAdVodateTSri}ifN{Raghupathy)
AND:
j"1, J{§hEinivas E/bwiate
«S.KTJavaEappa, 40 years,
z'.R/ceDo§rTNp;;O52,
"j0id.K)RTNagar Road,
fiufisuET Myéore Dist.
¢_ 2T J.Latha d/o late S.K.Javarappa,
=_'38 years, C/o Ramesh,
f"R/6 Door No.441o, 4"'cross,
'Near Krishnadevaraya Circle,
_ Vijayanagar Zmistage,
T'=~Mysore.
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4.
3. J.Jayalakshmi d/o late
S.K.Javarappa, major,
R/o Door No.2052,
Old K.R.Nagar Road,
Hunsur. Mysore Dist.
4. J.Vijaya w/o P.Rajendra,_»w-
45 years, R/o Door No.42Q,
2"'Cross, Gayathri Puram"r
2"'Stage, Mysore.
5. Saraswathi w/o Ramesh,",o
40 years, R/o Door No,441O,V,
4"'Cross, Near Krishnsdevaraya
Circle, Vijayanagar-E@flStage,;ox
MYSore. " V i "= Vy
6. Chandra s/oW$}K.Javarappa,7*»»
50 years, R/é Door fio.2052,
Old K.R1Na§ér Road, Hunsur,'
MysoroHDis£;e&_ ,"."'W, 5
7. K.AfJosepfi,W%Qyysars,"
No.135,«B.M,Ro§d,>_" "
HunsursyMysoreVDist}
8. H,H,Ganesh"s]o Nsrayana Setty,
"x_ 4Q_ysars, Cut Size Gowdown,
's;1 Lakshm; Vénkateshwar Saw
'"Mysorafaisg: .. RESPONDENTS
(fidvooaté Sri.N.H.Vijay Kumar for R–1)
$z_(Advocats Sri.B.B.Ballari & Assts. for R~2 to 5)
“”C(R47,& 8 *4. served)
*-4(R~6V”,. Appeal dismissed)
-an—.–.–_..
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This Regular First Appeal is filed under Sec.96
of CPC against the judgment and decree7 dated
5.4.2006 passed in O.S.No.104/99 on the file 5: the
Civil Judge (Sr.Dn.), Hunsur, partly decreeing the
suit for partition and separate possession,*j* “.1
This Appeal is coming on fior final hearing thiski
day, MANJUNATH J. delivered the :e;1ee;eg:»»_ ,_
J’U neé§&; N”T_V
Legality and ofirrectnese of the gudgment and
decree passed by the diyil fiudgefl$r.Dn.), Hunsur
on 5.4.2006 in fi.S.$o.id§/9% is ealled in question
by the epeelieefi, 5eee;e;*i. Appellant was 1%
defendant in the §uitgT Rel to 5 and the appellant
are children oi one late S.K.Javarappa who died in
the year l972Le_} Rel” to 5 instituted suit for
_partitien4 and ‘separate possession of their 5/6″‘
share*i in <fal1__ the plaint schedule property.
According 'to~ the plaint averements, their father
vfg fiavarappa' died in 'the year 1972 and 'three years
ikpriorrto the institution of the suit their mother
ii:Lahshmamma died. They had another brother by name
idevarajegowda who died d15 years prior to the date
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suit. He admitted. the relationship between the
parties. According to him, item No.3 is not the
joint family property and it is his selfweequired
property. He also contended that them set jnill
established. by him is out of his Mself#se§fiiredW.
property, therefore defendants heve no right pveri
suit item No.3 and saw mill 4’eslt–ab1ips:he§i’ iontlitemp
No.1. In the circumstanées, he”,raised_ several
other contentions and requestsjthe court to dismiss
the suit. Based on the above plesdings, following
issues were framed by the triel court:
1. Whether theuplaintiffs prove that the suit
sohedule * properties are joint family
properties “d.of_’ themselves and the
defendants? ‘ ” ”
‘”w_ 2; Whether the plaintiffs “”” prove that they are
‘.3 entitled for partition and separate
p”possessiQn of 5/6″ share in the suit
“tpsohedule”properties?
3;””‘~Wl:-,et1:er the plaintiffs are entitled for
mesne profits?
*l.§dfWhether the defendants prove that the suit
” “°is bad for non-inclusion of the joint
family properties?
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5. Whether the defendants prove that the suit
is bad for non-joinder of necessary
parties?
6. Whether the 1″ defendant proves that the 2nd
item of the suit schedule property gas his
self–aCq’-«’tired PrOPertY? ”
7. What decree or order?_ e_
In order to Prove their respeetiue contentions? 2″
plaintiff Smt.J.Latha, lgunmarried._ daughter of
Javarappa, got examined he:$ue’lf”Vof another
daughter Saraswathi was examined es §W~2 and relied
upon documents AExs.P~1″–to “§;e.l0nV behalf of’ the
defendants, _l%t defendant” gotvlesanined. himself’ as
DW~1 and he relied upon ExsflD–1 to 32. Trial court
after hearing the parties held issues 1 to 3 in the
affirmative and issues 4 to 6 in the negative and
uultimatelp suit filed by the plaintiffs came to be
decggéde in epartf holding that plaintiff No.1 and
Ksdefendantg Noll and so also 2″” plaintiff are
uidentitled ta 49/168″5share and plaintiffs 2 to 4 are
V*iuentitled to 7/16?” share. The court further held
Vffhat” the property standing in the name of the
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plaintiff as per Exs.Dwl0 to 12 are also liable for
partition. Against the judgment and decree of the
trial court, plaintiffs have not filed any appeal.
Therefore, share granted in respect of Exs;DflQ to
12 has become final. Present appeal is filed bphr
the appellant who was 1″ defendant in allottingethet
share to the plaintiffs in respect of;item_Noi3 and
running saw mill existing {one item: $0.1 of the
plaint schedule property.7f
2. We have heard the counselffor’the parties.
3. The main contention of the appellant’s counsel
before usf”2′.s* court did not appreciate
that suit item No.3 is selfwacquired property of 1″
“defendant; .hé7,has acquired. the same by ‘utilizing
the income gxsm the business. According to him,
trial court has committed an error in granting a
f”share, in “the machinaries of saw mill which is
“rL’¢stablished on suit item No.1. In the
circumstances, he requests the court to rem
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appreciate the entire evidence and documents
produced by the parties and set aside the judgment
and decree so far as it relates to the_aboyefiitees,
He further contends that when the pro§ertylincluded_l
under Exs.5-10 to 12 are not “the ,joint”?§am;1y”
properties, plaintiffs were not entitled to get 3
share out of the above said bropertiesry V}
4. Per contra, counsel for h-l_subbits that trial
court after agpreciatinc the eyidefice let in by the
parties and? §§n§iseg£ng}’tfi§i{pra1 and. documentary
evidencef has gi§fi§1§X§;§§£§a decree to the parties
herein and that no error re committed by the court
below to call for the interference by this court.
,ini_the*~gircumstances, he requests the court to
dismissxthelapyeal.
VH5, Having heard the counsel for the parties, we
Wh’5a§en,;o hconsider the following points in this
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1. Whether appellant/1″ defendant has proved
that suit item No.3 was acquired by him out
of the self-acquired property? V *
2. Whether the saw—mi1l establish_ejd””–.one._i tsnit
item No.3 was established from’.”outV’-o’f,.V_'”he’.a
selfwacquired funds of 1″ defer:dant’?.,: «
3. Whether the judgment} and 2&eeeee°»e§ ;the’
trial court calls for i’nterferen_ce? «. ”
6. Except selfwserving of defendant,
he has not relied oi-:9 Many other
witnesses . Parties relationship .
Defendant adW?¥e§fi§e§ tfiii.¥#t death of his father
Javarappa, the joint family
affairs. He.’ that after the death of
Javarappa, « hewbeing’ltheapeldest son was managing the
affairyysgiivoéf th”e..,JV’VVjvoin”t family. Therefore, it is
vldcleiiarl” date of death of Javarappa,
app’e.ll.antV”‘h’e,s ‘hecome the karta of the joint family.
Appellant who claims that he has purchased suit
from out of his selfwacquired property,
_1_ia”sV’;not placed any evidence before the court to
that he had his own income either during the
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life time of Javarappa or after the death of
Javarappa. If 3.” defendant has let in evivdence to
show that he had his own income and
income he had purchased suit item
have appreciated his contention. u’upn{f§>’rtunea_te..1y, ‘
1″ defendant has not 1eadsan___y ex}id”encet.’t’o«A.s_Vhov§;
he had his own independent he had
independent income suit item
No.3. In the he has
not given an_y3_: suit item
No.3 except ‘:”d’dofif:ument to show that
item No name. Plaintiffs ‘also
admit that ‘item No i’s*~..Vistanding in the name of the
appellant tehereinigivi Eiren in the plaint it has been
uevetrea pee ibyv them. What the plaintiffs have
content-:i_ed” said item has been purchased in
V the name v–..of’«”the 15″ defendant/appellant out of the
income. It is not in dispute that the
“~d appellant was the karta of the joint family when he
acquired the suit item No.3. If a property is
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acquired in the name of the karta of the_ joint
family, unless and until it is rebuttedj”ab_’y_l”‘–him,
presumption under the Hindu Law that it is eéqnired
by him out of the joint £azni1_y….i_pcoa2é””a:;’;c1 league “has.
to be treated as a joint fanily pnopertp.¢ ifi the
absence of cogent evidence htsl show pthet hthe
appellant had his own incone to acquire suit item
No.3, trial court is*£@stified in disbelieving the
contention of the appellant that suit item No.3 is
his absolute ipsoperty!*: ,nocordingly, we answer
point No.l..”xj”i
8. So far as point No¢2″is concerned, admittedly
saw isl4″‘*eVstVa1:?li’shéd on item No.1 which is a
,joint-family«propert§. It is also the case of the
parties” that “residential house on suit Iten: No.1
‘Vk,and three shops were constructed during the life
nlftime of’Javarappa. The only question is that how
lpthelinwestment is made to establish a saw mill on
nidsuit item No.1. 1″ defendant who claims to be the
V” absolute owner of the plant and machinaries of saw
(fix
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mill has not placed any material to show___how he
acquired the same. When he contends that-t:.fhe”*.pAhas
purchased the same by borrowing loan from
best piece of evidence was to,».s1.;*:_1;;xno_’:i theiivadoclngmentise. ‘
from the bank to show how the
and what was the
discharging the loan,’ dispute
that the saw mill is defendant in
his name as kartiauof :t”rie- When he has
established we are of the
opinion justified in dis—
believing the the appellant in regard
to the saw as the share allotted by
the t,,r§ial’~ cotV’1’rt.__in respect of the properties
uVnderVA:”E:__cs.D~–l0 to 12, as rightly pointed by
then” co.z.1VnsVel”_”_v~–for”s”the appellant if the said property
is sold the plaintiffs and if the said property
diseitzeepossession of some third parties, plaintiffs
capnriotbwclaim any share and as a matter of fact
{plaintiffs have also not claimed any share in the
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plaint. However, trial court (M1 its own without
even framing an issue has granted decree in favour
of the parties. Therefore, we are of the vieu that
allotment of share to the plaintiffs under Ersfipelfl
to 12 is bad in law and any judgment uassed by thein
trial court would not bind the third parties what
are in possession unless and until their sale deed,
is attacked. In the circufistancesg*hoth the points
are to be held against the agyellant.
9. In the result,_ this rapfiéaityis dismissed.
Parties to baa: their costsq””
Sd/-*
Iudqe
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