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Judgment
K.N. Phaneendra, J. - The present appeal is preferred against the judgment and decree passed by I Additional Civil Judge (Sr. Dn.) at Dharwad in O.S.No.76 of 1987 dated 28th August, 2001 dismissing the suit of the plaintiffs for several reliefs.
The suit schedule property is described in the schedule, which is as under:
A residential house bearing R.S. No.64/1 A/ 1 A/1 A/2A/1A/A/A/B/1B3 - measuring 5 guntas and 1� annas of Laxminagar, Dharwad (old plot No.9 of Lakamanahalli, Dharwad.
The plaintiffs prayed for the following reliefs:-
(i) It be declared that the suit property as the joint family property of plaintiffs and defendants and as a consequential relief of injunction be granted restraining the defendant, his agents and servants from forcibly dispossessing the plaintiffs from the suit property.
(i)(a) It is humbly prayed that plaintiffs appellants be awarded ⅘th share by way of partition and separate possession in the suit property as they are ready to pay requisite court fee for the same.
(ii) That the defendant be directed to pay the costs of the suit.
(iii) That such other and further reliefs that may appear just be awarded."
Before adverting to the factual matrix and also the grounds urged before this Court, it is relevant to note here that earlier this Court vide judgment dated 29th August 2008 disposed of the appeal by allowing the same and consequently decreeing the suit of the plaintiffs declaring that the plaintiffs are jointly entitled for ⅘th share in the suit schedule property and defendant No.l is entitled for l/5th share. Being aggrieved by the said judgment and decree, the defendant (respondent No. 1 before this Court) preferred a civil appeal before the Hon�ble Apex Court in Civil Appeal No.6935 of 2015 (Arising from SLP (C) No.9759 of 2009). The Apex Court vide order dated 8th September, 2015 remitted the matter for reconsideration and fresh disposal of the appeal with certain observations.
It is observed by the Apex Court thus,
"In determining, whether the aforesaid suit scheduled property belongs to the appellant herein, or the respondent-plaintiff, required an examination only with reference to the suit schedule property located at Lakamanahalli village in Dharwad City. The determination rendered by the High Court has dealt with other properties including the Tejawwinagar Cooperative Housing Society site, which was allotted to the respondent-plaintiff also in the year 1980, but not with reference to the suit schedule property located at Lakamanahalli village in Dharwad City. In the above matter, learned counsel for the parties are agreed, that the impugned order passed by the High Court should be set aside, and the High Court should be required to re-adjudicate the issue, by confining the dispute to the suit schedule property situated at Lakamanahalli village, in Dharwad City.
In the above view of the matter, the impugned order passed by the High Court is hereby set aside. The Regular First Appeal, disposed of by the High Court by its impugned order dated 29.08.2008, is directed to be restored to its original number. The parties shall appear before the High Court of Karnataka (Circuit Bench at Dharwad) on 09.10.2015 at 11.00 a.m. The High Court shall examine the matter to the limited effect noticed above, and return its findings, in accordance with law.
Till the disposal of the Regular First Appeal by the High Court afresh, the parties are directed to maintain status quo, as regards the suit schedule property."
In pursuance of the above said directions of the Apex Court, the appeal has been restored and arguments are heard afresh and the appeal is disposed of by this judgment.
The Court has to gain factual dispute between the parties on the basis of their pleadings. Therefore, it is necessary to extract brief claims of the plaintiffs and the defence taken up by the defendant.
The plaintiffs 1 to 4 and defendant are close relatives to each other. In order to show the relationship between the parties, the genealogical tree as admitted by the parties is shown as under:
The above genealogical tree discloses that Guranagouda Hanamantagouda Patil is the husband of the 2nd plaintiff and father of plaintiffs 3 and 4 and as well as the defendant.
It is the case of the plaintiffs that plaintiff No. 1 was in Government service and retired as a Surveyor in 1976. Plaintiffs 3 and 4 and defendant were also doing private service and earning members of the Hindu Joint Family and there was no partition sofar as the joint family properties are concerned. Defendant No. 1 is the eldest son of plaintiff No. 1 and is a graduate. It is the case of the plaintiffs that plaintiff No. 1, in the year 1980, purchased an open site for a sum of Rs. 16,000/- from its lawful owners in the name of the defendant. As the plaintiff No. 1 was already allotted another house site in Tejaswi Co-operative Housing Society, he purchased the suit schedule site (later a house was built) in the name of the defendant. It is the case of the plaintiffs that the entire money for purchase of the suit schedule site and for construction of the house, paid out of the joint family funds and the pensionary benefits of plaintiff No.1. Plaintiff as No.3 and 4 also contributed for purchase of the site and as well as for the construction of a house. Therefore, the suit schedule property is the joint family property of the plaintiffs and the defendant. In fact, the defendant also accepted the same and gave an application to the Village Accountant and, on the request of the plaintiffs and the defendant, the katha has been made out in the names of the plaintiffs and the defendant, vide mutation entry in M.E.No.3461 dated 26.11.1985. Surprisingly, the defendant preferred an appeal against the said mutation entry in RTS.AP No.80/86-87 before the Assistant Commissioner, Dharwad, and thereafter, he started behaving rudely claiming the property as his own, denying that the said property is a joint family property. When the defendant started to behave rudely and claimed the said property as his own, and as the Assistant Commissioner by his order dated 11.05.1987 cancelled the mutation entry holding the suit property as separate property of the defendant, the cause of action arose for the purpose of filing the suit. Therefore, the plaintiffs prayed for a declaration and other consequential reliefs as noted supra.
The defendant, in pursuance of the summons issued, appeared before the Court and contested the proceedings by Filing his written statement. He denied the entire allegations made in the plaint except accepting the relationship between the parties. It is the specific contention taken by the defendant that the suit schedule property is his self acquired property. The defendant further stated that as the relationship between the plaintiffs and the defendant became strained, he left the family in the year 1975 and thereafter, he completed his graduation with the help of his teachers, friends and relatives and also by doing part time work. He not only continued his education by his earnings, but also saving some money. He worked in Savi Industry and thereafter in another industry, earned, saved lot of money and purchased the suit schedule site out of his own earnings. It is the further case that, plaintiff Nos. 1 to 3 have not given any money for the purpose of purchasing the site or for the purpose of constructing the house on the suit schedule site. It is further case of the defendant that in the year 1979, he paid an amount of Rs. 10,000/- as earnest money to the lawful owners of the suit schedule site and subsequently on 18.02.1980, he paid the remaining consideration amount of the Rs.6,000/- (total Rs. 16,000/-) and got the suit schedule site registered in his name. After purchase of the site, the defendant out of his own earnings constructed a house and has been residing in the said house. None of the plaintiffs contributed any money either for purchase of the site or for construction of the house. The defendant, at no point of time, had given consent for change of katha in favour of the plaintiffs and defendant jointly. Therefore, the defendant, after coming to know about the clandestine activities of the plaintiffs in getting the khata changed in the joint names of the plaintiffs, the defendant has preferred an appeal in RTS. Appeal No.80/86-87 and the said proceedings are still not logically concluded. Therefore, he prayed that the suit schedule property is not the joint family property and the plaintiffs are not entitled for any share in the suit schedule property and there is no cause of action for filing the suit. It is also contended that the valuation made by the plaintiffs is not correct and the suit schedule property is worth more than Rs.3,00,000/- and the plaintiffs have to pay the correct and proper court fee. He also contended that suit is bad for non-joinder of necessary parties and properties. Hence, for all these reasons, the defendant requested the Court to dismiss the suit.
On the basis of the above said rival contentions of the parties, the Trial Court framed the following issues:
"1. Whether the plaintiffs prove that the suit property is purchased by plaintiff-1 in the name of defendant, and it is a joint family property of the plaintiffs and defendant?
Whether the plaintiffs are in lawful possession of the suit property and they are entitled for permanent injunction as sought?
Whether the suit property is valued properly and court fee paid is sufficient?
What order or decree?"
In order to prove their case, the plaintiffs examined plaintiff No. 1 as P.W. 1, plaintiff No.4 as P.W.2 and two more witness as P.Ws.2 and 3 and got marked Exs.P. 1 to P.27. The defendant examined himself as D. W. 1 and two witnesses on his side as D.Ws.2 and 3 and got marked Exs.D1. to D22(a) and closed his case, at the first instance.
Thereafter, appreciating the oral and documentary evidence on record, the Trial Court dismissed the suit vide judgment dated 11th August, 1989. Being aggrieved by the same, the plaintiffs approached this Court in RFA No.644 of 1989 and this Court vide judgment, dated 6th November, 1998, allowed the appeal by allowing the amendment application filed by appellants and remitted the matter to the Trial Court for fresh disposal. After remand, the prayer column in the plaint was amended and the Trial Court framed the additional issues, which are as under:
"1. Whether the suit is bad for non-joinder of parties?
Whether the suit is property valued and the court fee paid is proper?(Framed on the order sheet dated 24.03.2001)
Whether the plaintiffs prove that they are entitled for shares in the suit properties? If yes, for what shares?
(Framed on the order sheet dated 18.08.2001)"
The plaintiffs on the above said issues also examined one more witness as P.W.5. D.W.4 was also examined and Exs.D.23 to D.349 were marked further on behalf of the defendant.
After appreciating the oral and documentary evidence on record, the Trial Court answered issues Nos.l and 2 in the negative and 3 in the affirmative and additional issue Nos.l and 3 in the negative and additional issue no.2 in the affirmative and once again the suit of the plaintiff was dismissed holding that defendant No.1 is the exclusive owner of the suit schedule property. Being aggrieved by the said judgment dated 28th August 2001, the present appeal has been preferred.
I have heard the arguments of the learned counsel for the appellants as well as the respondent. I have carefully perused the entire oral and documentary evidence adduced and produced by the parties in support of their case.
Sri. Mahadev R. Nargund, learned counsel for the appellants arguing in support of the grounds urged in the Memorandum of Appeal, submitted that,-
(i) The Judgment and Decree passed by the learned Civil Judge is contrary to law, facts, evidence and circumstances of the case and the trial court has not properly appreciated the evidence on record and it only proceeded on the presumptions and assumption, which has resulted in misarriage of justice.
(ii) The trial Court has lost the sight of the facts that the plaintiffs have produced sufficient materials to show that they have jointly purchased the property and constructed a house in the suit schedule site in the name of the defendant for family convenience and that has been taken advantage by the defendant.
(iii) The trial Court has committed serious error in not holding that the suit schedule site and the house are the joint family properties of the plaintiffs and defendant, as the defendant has not established by cogent and convincing evidence that he is the exclusive owner of the suit schedule property having purchased the same out of the his own earnings.
(iv) The trial Court has not properly appreciated the evidence on record in its proper perspective and considered the extraneous materials on imagination in order to dismiss the suit of the plaintiffs.
(v) The trial Court ought to have given a finding that all the joint family members viz., plaintiffs and defendant have jointly contributed money for purchasing the site and for construction of a house on the suit schedule site.
Therefore, the learned counsel for the appellants contended that the appeal deserves to be allowed on re-appreciation of the material on record and requested the court to hold that, the suit schedule properly as a joint family property of the plaintiffs and the defendant, and the plaintiffs/appellants are entitled for ⅘th share in the suit schedule properties.
Per contra, Sri. S. P. Kulkami for Sri. T. Basavana Goud, learned counsel appearing for the Respondent No. 1 taking me through oral and documentary evidence on record, has strenuously contended that,
(i) If the entire evidence is evaluated even once again, it clearly discloses that the plaintiffs have not established that there was existence of any joint family funds or any joint family nucleus or contribution in order to purchase the property by the plaintiffs, in the name of the 1st defendant. There was no occasion to purchase the property in the name of Defendant No. 1.
(ii) The defendant has produced cogent and convincing material to show that, he started living separately from the family since 1974-75; He was working while studying and earned lot of money and out of his own earnings, he purchased a site and thereafter, constructed a house on it, by his earnings.
(iii) Though it is admitted by the plaintiffs that other properties are also available to the family and there are other female members in the family, all those members have not been made as parties and all those properties have not been included in the suit. Therefore, the suit is also not maintainable for non-joinder of necessary parties and properties. Hence, the suit is not maintainable and the same is liable to be dismissed.
(iv) The trial Court after completely appreciating the burden of proof cast upon the plaintiffs has held that, the plaintiffs have not proved that, the suit schedule property is the joint family property. The trial Court has also considered the separate earnings of the defendant and that he has established that the suit schedule property is the self-acquired property of the defendant and as such, dismissed the suit, which calls for no interference at the hands of this Court. Hence, he prayed for dismissal of the appeal with costs.
On overall re-appreciation of the oral and documentary evidence placed by the parties and also after examining the trial Court�s judgment, the point that would arise for consideration of this Court is,
(i) Whether the trial Court has committed any factual or legal error in not declaring the suit schedule property as a joint family property of plaintiffs anil defendant and that it is the self acquired property of the defendant?
(ii) Whether the appellants have made out any other reasonable or substantial ground to interfere with the judgment and decree passed by the Trial Court ? What order?
On careful perusal of the oral and documentary evidence, firstly, the court has to consider, whether the suit schedule property is proved to be a joint family property. The entire burden is cast upon the plaintiffs to show that the said property was earned jointly by the plaintiffs and the defendant and all the plaintiffs and the defendant have contributed money for the purpose of purchasing the site and also for constructing a house building on the suit schedule site.
Before adverting to the factual matrix of this case, it is just and necessary to bear-in-mind the fundamental basic principles with regard to the proof of joint family property and how it is to be established and on whom the burden of proof lies.
In catena of Rulings of the Hon �ble Apex Court and the High Court, the law is settled sofar as the joint family property is concerned. Every Hindu family is presumed to be the joint, unless the contrary is proved, but this presumption can be rebutted by direct evidence or by the conduct of the parties. There is no presumption that when one member separates from the others, the latter remain united. Whether the latter remained united or not, must be decided on the facts of each case. To the above it may be added that in the case of old transactions when no contemporaneous documents are maintained and when most of the active participants in the transactions have passed away, though the burden still remains on the person who asserts that there was no partition, it is permissible to fill-up the gaps by reasonable inferences on the basis of facts and circumstances, and conduct of the parties in a given case.
It is also to be borne-in-mind that, in order to establish the severance of joint status in the Hindu Joint Family, the unequivocal expression of intention is sufficient. It is also now well-settled that, an agreement between all the coparceners is not essential to the disruption of the joint family status, but a definite and unambiguous indication of intention by any one member to separate himself from the family and to enjoy his share in severalty will amount in law to a division of status. It is immaterial in such a case whether the other members assented or not. Once the decision is unequivocally expressed, and clearly intimated to his co-sharers, the right of the coparcener to obtain and possess the share to which he admittedly is entitled, is unimpeachable. However, if the expression of intention is a mere pretence or a sham, there is in the eye of law no separation of the joint family status.
In view of the above said guiding principles, it is clear that if on the basis of the material on record, though the parties may not be in a position to pin-point the existence or non-existence of joint family funds for purchase of the joint family property, which is in the name of any one of the coparceners, the court has to consider on facts, circumstances and the documents to come to the conclusion whether it is joint family property or the self-acquired property of one of the coparceners. It is also to be borne-in-mind that even remaining in the joint family as a coparcener, if one amongst them has a separate and independent source of income, then there is no bar for him to purchase the property in his name in exclusion of the other co-parceners. This may happen if a person is having independent source of income and he started residing separately or even residing along with others, but not utilised any funds of the ancestral or joint family properties. If he purchases the property in his own name by using his funds, then it can be the self-acquired property of that man. It all depends upon the facts and circumstances of each case.
In order to prove the existence of joint family property and utilisation of the Joint Family funds by the plaintiffs to purchase the property in the name the 1st defendant as claimed in this particular case, has to be ascertained from the oral and documentary evidence placed before the court. In this background, I would like to discuss the evidence of the parties in this regard.
PW. 1 is the father of the 1st defendant and other plaintiffs, who in fact has stated that he was working as a Surveryor in the Survey Department in the year 1978. He was also working in a Co-operative society after his retirement and it is stated that the defendant and plaintiffs- 3 & 4 have also been doing their independent work, but it is their case that they are all residing under the same roof in the joint family and there was no partition. With reference to the suit schedule property he has stated that, during the year 1978, the 1st defendant has completed his studies and he has been doing a private work after his studies. Plaintiff No.1 was sending money of Rs.170/- to Rs.200/- to Defendant No.1 every month. It is his case as depicted that he purchased the suit schedule property in the name of Defendant No. 1, which was in the nature of a site at that time.
The evidence led by the plaintiff No. 1 as PW. 1, Plaintiff No.4 as PW.4, and Plaintiff No.3 as PW.5 are almost similar and they have reiterated the plea taken-up in the plaint. They have reiterated that, PW.l was working in Survey Department and retired in the year 1978. It is also admitted that the 1st defendant has studied up to B.Sc. and he completed his studies in the year 1978 and thereafter, he started working independently. It is the case of PWs. 1, 4 & 5 that PW.l was sending amount of Rs,170/- to 200/- to the defendant when he was studying and it is stated that, they all contributed money for the purpose of purchasing the suit schedule property and in this regard, PW. 1 has stated that, he actually purchased the property in the name of Defendant No. 1 by paying consideration amount of Rs. 16,000/-. The plaintiffs further stated in their evidence that, as already there was another site in the name of PW. 1 in Tejasvi Nagar, P.W.1 has purchased the suit property in the name of the 1st defendant. It is the specific case of PW. 1 that, he has received his pension amount and in fact by adding the agricultural income of the family, he purchased the suit property in the name of Defendant No. 1 and also that, he constructed the house by utilising pension amount and as well as agricultural income.
It is the further evidence of the plaintiffs that Defendant No.1 has given a requisition to the competent authorities for change of khata into the name of plaintiffs-3 and 4 with respect to the suit schedule property. Subsequently, Defendant No.1 himself has challenged the said order of change of Khata by the competent authority i.e., before the Assistant Commissioner and that the Assistant Commissioner has set-aside the said order and in that regard a writ petition is pending before the High Court. It is the further case of the plaintiffs particularly, Plaintiff Nos. 3 & 4 that in their evidence they have stated that they also contributed their own earnings to Defendant No.1 for purchase of the said property. Except this PWs. 1, 4 & 5 have not given any details with regard to, how much money they were earning and in what manner they were earning during 1979-80 and how much money actually they contributed for purchase of site and construction of the house.
The plaintiffs have also produced the documents Exs.P1 to P.28.1 would like to discuss those documents little later.
On a plain reading of the plaint and the evidence of PW.4 & PW.5 are concerned, they have not categorically stated anything about their income, but, they only supported the evidence of PW. 1. The evidence of PW.4 & PW.5 shows that they started earning only after purchase of the suit schedule property, because, PW.4-Ashok has stated that he has taken loan from the Bank Authorities for the purpose of establishing a Poultry Form. The document produced before the court discloses that, PW.4 and PW.5 have started their business i.e., PW.4 was running the poultry form and PW.5 was running Tempos, those are subsequent to the purchase of the property i.e., subsequent to 1980, which is an admitted fact. Therefore, the evidence in examination-in-chief remains that the plaintiffs have strongly relied upon the pensionary benefits of PW. 1 and also the income from Joint Family agricultural lands.
During the course of cross-examination of P.W.1, it is admitted by PW.1 that, PW.4 has started his business in the year 1984 and at that time, PW.5 was also not having any work till he purchased three Tempos subsequently. Therefore, at that particular point of time, i.e, during the year 1979-80, he was going to the land during vacation and assisting their paternal uncle in the agriculture. So, this clearly indicates that during 1979-80, PWs. 4 & 5 were not at all earning and it creates a serious doubt whether they could have contributed any amount for purchase of the site by Defendant No. 1. It is admitted that the lands are in possession of their paternal uncle, and the said person has not been examined.
Now coming to the pensionary benefits of PW. 1, as he has stated in his examination-in-chief that, as per Exs.P9, 10 & 11, he received an amount of Rs. 15,000/- as his pensionary'' benefits and out of the said amount, he contributed Rs. 10,000/- for purchase of the suit site and subsequently also he paid a sum of Rs.6,000/- out of his pensionary benefits and the joint family income out of the agricultural lands. The suit schedule site has been purchased in the name of Defendant No. 1. In this background, it is just and necessary to look into these documents. The main contention of the plaintiffs is that an amount of Rs. 16,000/- was given by Plaintiff No.l out of his pensionary benefits. In this regard they have produced the documents viz., Exs.P9 to 11 and P17, which show that the pensionary benefit was received by Plaintiff No.l and said documents are required to be seriously considered by this court. Ex.P10 is dated 11.09.1979, which shows that an amount of Rs. 11,385/- was the total lump-sum amount for which the plaintiff No.l was entitled due to his retirement. Ex.P 11 is the challan dated 10.10.1979. under which an amount of Rs. 15,440.80 has been credited to the account of the plaintiff No. 1. Ex.P17 is the Pass-book maintained by the plaintiff in Syndicate Bank during that time. It is not the case of the plaintiff that he maintained any other account and he has got any other source of income, which is deposited in any other bank.
Admittedly the suit schedule site was purchased by defendant No. 1 in the year 1980 i.e, precisely on 18.02.1980. The defendant in his evidence has stated that earlier to the purchase, he entered into an agreement with the owner in the year 1979 itself. This fact has also been admitted by PW. 1 in his cross-examination by saying that, about one year prior to the sale deed, the sale transaction talks were taken place and at that time, he gave money of Rs. 10,000/- out of his pensionary benefits. The defendant has stated in his evidence that, in the month of June 1979, the sale agreement transaction has been taken place. So, it is clear that an amount of Rs. 10,000/- was given in favour of the seller of the site by Defendant No. 1 which aspect is also fortified by the evidence of DW.2 - Neelakanth, who has stated that he has sold the property in favour of Defendant No.l for Rs. 16,000/-.
Now let me consider whether the plaintiff No. 1 could have paid the said amount during that relevant point of time. Admittedly the sale agreement has been taken place in the year 1979 i.e., in the month of June 1979 or even prior to that, according to the plaintiffs. Admittedly, Exs.P10, II & 17 show that an amount of Rs. 15,000/- and add towards pensionary benefit was deposited to the account of the plaintiff in the month of October, 1979 precisely on 10.10.1979. Admittedly by that time, the entire sale agreement transaction had already been taken place and Defendant No. 1 has paid a sum of Rs. 10,000/- to the owner. As could be seen from Ex.P17 pass book of PW. 1 relied upon by the plaintiff shows that at the relevant point of time, in the year 1979, particularly, from January to October, there was no amount of Rs. 10,000/- at any point of time in the account of the plaintiff. The amount of Rs. 15,440/- was credited to his account on 15.10.1979 and as on 26.10.1979, an amount of Rs.20,506/- was in the account of the plaintiff and on various dates, he has drawn the amount subsequent to 26.10.1979 out of the said amount. Therefore, it clearly goes to show that there was no transaction of drawing the amount of Rs. 10,000/- out of his account and out of any pension and paying the same to Defendant No. 1 for purchase of suit schedule property. Likewise, the said document also discloses that, during the year 1980 particularly as on 18.02.1980, he has not drawn any amount of Rs.6,000/- in order to pay the same to Defendant No.l for payment towards sale consideration. It shows that he has drawn the amount of Rs.6,662/- only on 07.04.1980 which was much after the execution of Ex.P1 (sale deed). In the month of February 1980 he has only drawn a sum of Rs.289.70 from his account and not more than that. Therefore, the contention of the plaintiff that he has paid part sale consideration amount in the year 1979 and paid Rs.6,000 at the time of registration of the sale deed, is not supported by his own evidence and documents. On the other hand, the defendant has produced certain materials in this regard.
The defendant has also led evidence in order to counter the materials placed before the court by the plaintiffs to show that since 1974 itself he was separated from the family and he has been studying on his own and he completed his studies in the year 1978 and started earning by doing work in a private concern and he purchased the suit schedule property out of his own earnings. He has categorically stated that from 1975, he has been studying in JSS college staying in hostel of the said college and thereafter, he joined as a sales representative in a private firm viz., M/s. Sanmati Engineering Works and also he was doing some work in M/s. Appolo and National Credit House Co., as a Sales Representative and he was earning lot of money. In this context, he entered into an agreement of sale of the property in the 6th Month of 1979 and at that time, he paid Rs. 10,000/- as an advance amount towards the purchase of the property and he paid the remaining amount of Rs.6,000/- on 18.02.1980. In order to establish this, the defendant has produced several documents i.e., Ex.D9, which is the Ledger Extract of Syndicate Bank Account, which is in the name of the defendant. This document-Ex.D9 clearly discloses that during the year 1979 particularly on 11.06.1979, he has issued a cheque in favour of one Padaki Patil for a sum of Rs.9,000/-. Therefore the said document clearly discloses that he has got sufficient funds in his account as on the 6th month of 1979 and he has drawn an amount of Rs.9,000/-.
Subsequently, this document also shows that during the year 1980, he has got sufficient funds for to pay the remaining amount of Rs.6,000/- towards sale consideration. The transaction shows that he has drawn a sum of Rs.7,200/-. He was working in the other firm viz., Sanmati Engineering as a Sales Representative and he has drawn Rs. 12,000/- as his salary at Rs. 1,000/- per month. Ex.D3 is the appointment order issued by a partner of the Savi Industries which also discloses that, apart from working in Savi Industries, he was also working as probationary trainee and drawing salary of Rs. 175/- p.m. during the year 1979. So the above documents coupled with the account extract of Syndicate Bank which is marked as Ex.D9 clearly probablises that he has got sufficient amount during that particular point of time. It is stated by Defendant that he has purchased the property by issuing cheques in favour of the seller of suit schedule property. He has also produced Exs. D.23 and D.26 which are the pass books of Syndicate Bank and Vijaya Bank and also he examined one Mr. Sunil (D.W.3) to show that the defendant was working under him on 15% Commission basis in the Borewell and Transport business and he has stated that the defendant has started working as an employee in the year 1979 and they were paying him the salary of Rs. 1,000/- p.m. and the defendant was working with them till 1985. Ex.D22, Exs.D.14 to 18 and Ex.D19 are the service and Salary certificates issued by Mr. Sunil and acknowledged the same in his evidence showing that in the year 1979 the defendant has received an amount of Rs.5,000/- towards his salary. Exs.D.20 & D.21 are the statement of accounts, which also clarifies the same.
In the course of cross-examination, he has admitted that he will produce all the documents if necessary in this connection and he denied that he has not paid any salary to the defendant. Therefore, these documents amply clarifies that the defendant was doing some work from the year 1978 and onwards and he has been exempted from paying any fee and as well as hostel fee and it also shows that he was in the hostel during that particular point of time. In this regard, as I have already noted above, PW.4 & PW.5, who are none other than the brothers of Defendant, have not specifically denied about the fact that the defendant was working from 1978 and the agreement of sale was entered into in the year 1979; the sale deed was in the name of the defendant in the year 1980 precisely on 18.02.1980.
PW.4 and PW.5, though they have stated that they were also earning at that particular point of time and they also contributed some amount, but actually they have not at all produced any document before the court in order to amplify their plea. PW.4 particularly in his evidence at Para-3, has stated that he do not know when actually the agreement of sale was taken place, but at the time of Registration before the Sub-Registrar, a sum of Rs.6,000/- was paid. The said amount was paid by the father of PW. 1 through defendant. Sofaras this aspect is concerned, the defendant has examined a person who sold the property in his favour. DW.2-Neelakanth, s/o. Ramachandra Patil, has stated that the property was in the name of his brother�s sons Kishore Hanamanth Padaki and Vasanth Ramachandra Patil, who has stated that his brother�s sons Kishore Hanamanth Padaki and Vasanth Ramachandra Patil have sold the property in favour of defendant for a sum of Rs. 16,000/- about 10 years ago.
At para-12 of his evidence, PW.5 has stated that, neither himself nor defendant have paid any amount towards the marriage expenses of their sisters. He stated that he has been running three tempos during that time. It is stated, his father has invested money for purchase of three tempos and each tempo is worth Rs. 1,00,000/- and he has taken loan for the purpose of purchasing tempos. So that itself clearly goes to show that he was also not earning during that particular point of time and he was not having any tempo at that time when the defendant has entered into an agreement of sale and purchased the same later. This version of PW.4 and PW.5 is also fully supported by PW. 1. It is categorically stated that the 4th defendant has started Poultry Form in the year 1984. which is after the purchase of the suit schedule property and he has also stated that subsequent to the purchase of the property, plaintiff No.3 has started business with his tempos. It is also stated that at that particular point of time, these two persons were going to the lands for doing work, but they were not permanently residing in the village, but often they were going to village to do some work. These witnesses viz., PWs. 4 and 5 have stated that, their paternal uncle has been in actual possession of the said landed properties of the family. There is no evidence to show that, what was the production per year and how much money they were getting from the landed properties so as to contribute any amount for purchase of the suit schedule Property. Therefore, in my opinion, it probablises that Defendant by doing work from 1979 onwards at different places must have earned money and purchased the suit schedule property. It can be safely said that the plaintiffs have not proved that they have contributed any money to the defendant for the purchase of the property.
The defendant has examined DW.4-Channamallappa to show that the defendant had got executed an agreement of sale in his favour in respect of the said property in the year 1986 and the suit is filed in respect of the said agreement in O.S. No.8398 of 1998 and the execution is also filed on that in Execution Case No.105 of 1994. The said transaction between the defendant and DW.4 is nowhere comes in the way of the plaintiffs claiming their share in the suit schedule property, if they are able to establish that it is a joint family property. Therefore, I do not feel it just and necessary to deal with that aspect in detail.
Regarding Construction of the House:
The plaintiffs have also relied upon the further facts that they contributed lot of money for the purpose of constructing the house on the suit schedule site. They also relied upon the conduct of the defendant in treating the said property as a joint family property. PW.l in this regard has simply stated that the house was constructed on the suit schedule site from the Joint Family landed property funds and PW.4 and PW.5 have also contributed for construction of the house. But except stating that by PW.l, nothing has been stated about the funds available with them to show that they have contributed any amount for the purpose of construction of the house. It is stated by PW. 1 that he has taken tractors on rental basis for the purpose of supplying the building materials at that time. He has produced Exs.P6 and P7 in this regard.
A careful perusal of Exs. P6 & P7, it clearly goes to show that he has paid a sum of Rs.205 and 598 on 02.01.1980 and on 30.06.1982. The above said evidence falsifies the plea of the plaintiff, because as on 02.01.1980, the property itself was not purchased and by 30.06.1982 house was already completed. Therefore, the question of they contributing something and in what manner, is not at all supported by any materials. The plaintiffs have also relied upon Ex.P8, the Certificate issued by the Syndicate Bank. It shows that on 25.11.1980 he has taken loan of Rs.7.000/- from the said bank and according to him, he utilised that money for the purpose of construction of the house. But, there is no material to show, as to in what manner he has utilised the said amount. Very particularly it is admitted by PW. 1 that he has got two daughters and he performed the marriage of the 2nd daughter in the year 1986. As to when he has performed the marriage of his first daughter has not been stated. Therefore, it creates a serious doubt that the money which was taken by him perhaps might had been utilised in any other manner. In the absence of any material to show that he has contributed that money for the purpose of construction of the house, it cannot be relied upon unless some convincing material is placed before the court. He has also stated in the course of cross-examination that the house building construction contract was given to one Acharya in the year 1980. But, subsequently, PW.l himself has supervised and purchased some property, and wood materials etc. and in that manner he has contributed for construction of the house. But the said Acharya has not been examined by PW. 1. But, it is stated that one Chikkamath was the person who supplied wooden materials for construction of the house. PWs.4 & 5 in this regard, particularly PW.4 has stated that his father has provided funds out of his pensionary benefits and also the income from running tempos and Poultry Form for the construction of the house. PW.4 has specifically stated that he paid Rs. 10,000/- for construction of the house, but in what manner he has paid the same and on what date and time he paid the said amount is not at all stated. So admittedly these persons have started Poultry Form and running the tempos, which after the construction of the house. Therefore, it is only a oral evidence, which are not supported by any materials on record to show that these persons were actually contributed some money during that particular point of time for construction of the house.
Contrary to this, the defendant has produced certain materials before the court to show that he actually constructed the house. He produced particulary the document which is marked at Ex.D4 dated 04.04.1981, which shows that he purchased wood from Chikkamath by paying some amount. The said Chikkamath has issued a receipt showing that he has received Rs.7,601/- and that receipt is marked before the court. So purchasing of the wood from Chikkamath is admitted by PW.l in his evidence, but the receipt was not produced by PW.l, but it was produced by the defendant as per Ex.D4. This also shows that the defendant has actually the person who constructed the house. Apart from the above said documents, the defendant has also stated as to how he has constructed the house. It is stated by him in his evidence that after purchase of the suit schedule site, he started construction and he has maintained dairies to show expenditure incurred for the construction which are marked at Exs. D.27 to D.31. Though these documents are in the handwriting of the defendant, but contrary materials have not been produced by the plaintiffs to show that they have maintained any accounts to show as to how they spent amount for construction of the house.
The defendant has also produced Ex.D.32, which is the permission given by the Deputy Commissioner for purchase of Cement and also he has taken permission from the Corporation as per Ex.D.33 for construction of the house. He has also produced the materials before the court to show that he has paid continuously the water tax and to show that an Irrigation pump was also installed in the suit schedule property and to show that the electricity charges, installation charges, are paid by him, he has produced Exs D.145 & D.146. To show that he had money transaction with Mangala Finance Corporation, he has produced the documents at D.166 to D.I73. In fact, he has also produced several receipts for purchase of the building materials for construction which are marked at Exs.D.194 to 342 and he has paid continuously the water tax, electricity bills, corporation tax etc., which are according to Exs. D.343 to 348. Though the authors of these documents have not been examined, but these documents are in the printed form and it bears signature of the competent authority with seal. Therefore, in the above facts and circumstances of the case, the comparative assessment of the plaintiffs� case and defendant''s case probablises that the defendant has actually constructed a house out of his own funds and he has also produced sufficient materials before the court to probabilse his plea.
When once the plaintiffs have not established their case by producing cogent and convincing evidence that they had sufficient money at the time of purchase of the property and that they have contributed some money for construction of the house, their case should fall-down in establishing that the suit schedule property is a joint family property and the same is liable for partition. Hence, I do not find any strong reason to deviate from the observations made by the trial court in this regard in holding that the plaintiffs have not proved that the suit schedule property is a joint family property and they are entitled for a share in the said property.
It is in the evidence of the defendant that he has categorically stated that the plaintiffs have also some other properties of their own and joint family land are also in existence. Even the joint family properties i.e, some landed properties are there in the name of his father�s brother and in possession of his father�s brother as per Exs.P.147 to P. 153 (RTC Extracts and other documents pertaining to Sy. Nos.205/1B. 216/7A, 227/IB & 251/IB). In this regard, he has categorically stated in his evidence that his father owns some land and his father had also got a site at Thejaswi Nagar and he sold the same subsequently and it is also stated that the plaintiff No.4 is the owner of 04 acres of land in Tadasinkoppa village and the Plaintiffs - 3 and 4 are the owners of 02 acres of land in Tadasinkoppa village. To show this, he has produced Exs.D.147 to 153 and he has also produced the certified copies of the said sale deeds, which are marked at Exs. P154 to P. 155. But, these properties are not made as the suit schedule properties and nothing has been stated by PWs. 4 and 5 as to how they acquired those properties and they also have not stated so in the plaint. Further added to that, PWs. 1, 4 and 5 have categorically admitted that they have got landed properties in their village. But, those properties have not been mentioned in the plaint and nothing has been stated as to who has been in possession and enjoyment of the same. If really they had any income from the said agricultural properties, definitely they would have produced the documents showing the same. Further, added to that, admittedly prior to the filing of this suit, the plaintiff No.4 has purchased three tempos and the plaintiff-5 has been running the Poultry Form in the suit schedule property for some time and if any contribution was made from them for construction of the house, out of those properties and they have specifically stated that those Poultry Form and running Tempos are acquired out of their own funds. But, the evidence shows that PW. 1 (father) has contributed for purchase of the Tempos and that the defendant also helped in establishing the Poultry Form by the Plaintiff-4. But, those properties were also not made as the suit schedule properties nor it is stated that they are self-acquired properties of the plaintiffs-4 and 5. Therefore, doubt arises from conduct of the plaintiffs in not bringing out the entire truth before the Court. They have hatched-out a plan only for claiming share in the suit schedule property. Therefore, in my opinion, though the suit is maintainable for partial partition, but without explaining about important aspects raised by the defendant, the plaintiffs cannot succeed in their suit.
It is evident that the plaintiffs have also made and produced certain documents to show that the plaintiffs and defendant have been residing together under a common roof and they relied upon the conduct of the defendant i.e., defendant requesting the village account to enter the name of plaintiffs-3 and 4 in the Revenue Records so far as the suit schedule property is concerned. It is evident from the records that according to the plaintiffs, the defendant as per Ex.P3 has given a wardi to the Revenue Department and has given the statement as per Ex.P4 and on the basis of which the katha has been made-out in the name of the plaintiffs-3 and 4. Ex.P14 is the marriage invitation card of Defendant. Ex.P15 is the voters� list which also shows that the family members are residing together. But mere residing together is not sufficient to hold that the family has got any joint family funds or income so as to utilise the same by the defendant for the purpose of purchasing the suit schedule property.
In fact, though the plaintiffs have relied upon Exs.P3 and P4-wardi and statement of the defendant, but subsequently, the defendant after coming to know about the wrong entries made in the RTC, he has questioned the said entries before the Assistant Commissioner in RTS Nos.80/86-87 and vide order dated 11.05.1997 as per Ex.P5, the Assistant Commissioner has set aside the said entries and restored the entries in the name of the defendant. It appears that was also challenged before the Deputy Commissioner and then a writ petition has been filed before this Court. It is suffice to say that in the said writ petition in W.P. No. 12630 of 1987 disposed of on 04.11.1987, the Court has observed that the parties are already before the Civil Court and the entries shall be subject to the decision of the Civil Court. Therefore, there is no need to discuss about the said disputed entries. But, the conduct of the defendant clearly shows that, as soon as he came to know about the false entries, he questioned the same and got it set aside. Though, as I have stated that some materials are placed to show that they were residing together, but that itself is not sufficient to hold that the suit schedule property is the joint family property. In this regard, the learned counsel for Respondent No. 1 has also relied upon a decision of the Hon�ble Apex Court reported in AIR 2003 SC 3800 in between D. S. Lakshmaiah and another v. L. Balasubramanyam and another, has observed that,
"Hindu Law - Partition Suit - There is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.
Further, the Hon�ble Apex Court has also observed that, -
The Evidence to show that land in question was Joint Hindu Family property - However, no evidence to show that said property was yielding any income or nucleus sufficient to make impugned acquisitions Property acquired by appellant cannot be presumed to be Joint family property - Fact that appellant has not led evidence to establish his separate income to purchase property - Inconsequential."
(Emphasis supplied)
The learned counsel for the respondent No.l, to some extent, has relied upon a decision of this Court reported in 2013 (1) KCCR 363 between Sri. Mhalsa Marthand Kulkarni and others v. Bheemaji Malharrao Kulkarni and others, wherein this court has observed that,-
"It is well settled that when the plaintiffs come to the Court contending that the suit schedule properties are joint family properties, then it is for them to aver and prove the same by giving description as to how they were acquired either by inheritance or by purchase and the nucleus for purchase of the properties and so far as this appeal is concerned, the said burden can be discharged by proving the nucleus that available for purchasing the properties though in the name of an elder member of the family. Then the onus would shift to the person in whose name the property was made, to show that it was sell-acquired property, purchased out of his own income with no support of the income from the joint family.
In view of the above said decisions, it is crystal clear so far as this case is concerned that, though the plaintiffs have made attempts to show the existence of joint family and existence of some agricultural properties to the family which are standing in the name of one of the brothers of Plaintiff-1, but no evidence is adduced before this Court to show, whether there was any income from that nucleus and whether his brother was parting any share out of the said landed property in favour of PW. 1. Absolutely the evidence is silent insofar as this aspect is concerned, which also fortifies that the plaintiffs have not established their case with reference to the existence of joint family funds out of the joint family nucleus or they personally contributed to the defendant to purchase the suit schedule property and for construction of the house over the suit schedule property.
The next important aspect raised before this Court by Plaintiffs� counsel is that, PW. 1 has already having a site in his name at Thejaswi Nagar. Admittedly, it is sold subsequently by PW.l. Therefore, on this account, he purchased the suit property in the name of the defendant. But, the question remains that the suit property was purchased admittedly after retirement of PW. 1, as PW. 1 was retired in the year 1978. When that being the case, what prevented him from purchasing the property in his name. There is no bar under any law for the time being in force that he should not purchase any property in his name after his retirement, particularly when it is not the property belonging to any co-operative society, there is no satisfactory explanation as to why it was purchased in the name of the defendant though all the members have contributed the amount. Secondly, it also creates a serious doubt as to when other family members according to the plaintiffs are earning independently and why and how they have contributed for purchase of this property in the name of the defendant. On the other hand, it should have been purchased jointly in the name of all the members. Therefore, in this line also, the plaintiffs have not properly established their case. It is also further noted that the plaintiffs have stated that PW.4 & PW.5 have also participated at the time of the sale agreement and registration of the document, but the same has been falsified by the evidence of the owner of the property viz., DW.2, who has specifically stated that he does not know about the plaintiffs at all, but he only knew the defendant, who purchased the property.
Now, coming to the other materials available on record, the documents produced by the defendant and the evidence of PW. 1 discloses that at the time of purchase of the property and as well the construction of the house, the plaintiffs were residing in a rented house, particularly belonging to one Vanakuduri, from the year 1977. It is also admitted by PW. 1 that he has not paid rents regularly and due to which notice was given to him by the owner. It is also evident that after the construction of this house, the plaintiffs have come to the house constructed by the defendant. That also creates a serious doubt, when plaintiffs were unable to make rentals to the rented house, whether they could have contributed any amount for construction of the suit house. On the other hand, as I have already referred to many number of documents produced before the Court shows that the defendant has money in his account and some of the documents also disclose that earlier to construction of the house, he has put-up some sheds in the said land and letters of correspondence also shows that the sheds were constructed by him and the raw materials were supplied by M/s. Savi Industries as per Ex.D.174. M/s. Patravali Enterprises as per Exs. P. 176, P. 177 & P. 178 and M/s. National Trading House bill as per Ex.P178. The defendant has also produced Exs. D.38 to D.40 to show that during the years 1979 and 1980, PW.1 has declared his family income at Rs.2,000/- while furnishing the income certificate in respect of the education of his daughter Leela Guranagouda Patil and his sons Hanamantagouda Guranagouda Patil and Ashok Guranagouda Patil. Therefore, it clearly goes to show that all the documents right from 1979 support the case of the defendant. None of the documents are shown to be in the name of any one of the plaintiffs and they never made any payment towards water tax or electricity charges and further there is no reason as to why all the documents should be made in the name of the defendant. If really, the property was purchased from the joint family income in the name of the defendant, they would have at least made an attempt to exercise their right over the said properties.
In the above facts and circumstances of the case, as rightly observed by the trial Court, the plaintiffs have not discharged their burden in proving that the suit schedule site has been purchased in the name of the defendant by contributing money and also the house constructed thereon by the plaintiffs and the defendant by utilising any of the joint family funds. Therefore, the trial Court in my opinion, has not at all committed any mistake in appreciating these aspects and coming to the conclusion that the plaintiffs have not discharged their burden. I am also of the opinion that, initial burden itself has not been discharged by the plaintiff. On the other hand, though onus has not been shifted on the defendant, but in spite of that, he has produced lot of materials before the Court to probabalise that, he was an earning member of the family from the year 1978 itself and he had free facilities in the college and hostel while studying, and his earnings have been shown to the Court by way of production of many materials. Therefore, I am of the opinion that the appellants have not made-out any substantial ground before this Court to interfere with the judgment passed by the trial Court. Hence, answering the Points - 1 & 2 formulated in the negative, I proceed to pass the following:
ORDER
The appeal is dismissed. The judgment and decree dated 28.08.2001 passed by the I Addl. Civil Judge (Sr. Dn.) & CJM, Dharwad, in OS No.76 of 1987 is hereby confirmed.
In view of the relationship between the parties, the parties are ordered to bear their respective costs.