- 1 - RSA No. 200393 of 2014 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 17TH DAY OF APRIL, 2025 BEFORE THE HON’BLE MS.JUSTICE J.M.KHAZI RSA NO. 200393 OF 2014 (PAR) BETWEEN: 1. KRISHNA NAIK S/O SHARANU NAIK CHAVAN, AGED ABOUT 71 YEARS, OCC: AGRICULTURE, R/O LAKHANPUR, TQ: JEWARGI, DIST: KALBURGI. 2. LAXMIBAI W/O KRISHNA RATHOD, AGED ABOUT 51 YEARS, OCC: HOUSE HOLD, R/O KHADHYAPUR, TQ: JEWARGI, DIST: KALBURGI. ...APPELLANTS (BY SRI.R S SIDHAPURKAR, ADVOCATE) AND: 1. RAMU NAIK S/O SHARANU (CHAVAN) NAIK, AGED ABOUT 55 YEARS, OCC: COOLIE & AGRICULTURE, R/O LAKHANAPUR, TQ: JEWARGI, DIST: KALBURGI, NOW RESIDING AT KURD KANGROLI TQ & DIST: BELGAUM-590001. 2. DAMULU S/O SHARANU CHAVAN (NAIK), AGED ABOUT 65 YEARS - 2 - RSA No. 200393 of 2014 OCC: AGRICULTURE & COOLIE, R/O LAKHANPUR, TQ: JEWARGI, DIST: KALBURGI, NOW RESIDING AT SATHYAL THANDA, TQ: BASAVAN BAGEWADI, DIST: BIJAPUR-586101. 3. RATNABAI W/O BHOJU RATHOD, AGED ABOUT 73 YEARS OCC: HOUSE HOLD, R/O GOLAGERI, TQ: SINDAGI, DIST: BIJAPUR-586101. …RESPONDENTS (BY SRI.VINAYAK APTE, ADVOCATE FOR R1; SRI.JADHAV BABURAO, ADVOCATE FOR R2 & R3) THIS RSA IS FILED U/S 100 OF CPC, AGAINST THE JUDGEMENT AND DECREE DATED- 27.09.2014 PASSED IN R.A. NO.136/2010 BY THE LEARNED SENIOR CIVIL JUDGE, JEWARGI CONFIRMING THE JUDGEMENT AND DECREE DATED- 26.10.2010 PASSED IN O.S.NO.135/2009 BY THE LEARNED CIVIL JUDGE (JR.DN) AND J.M.F.C, JEWARGI AND DISMISS THE SUIT WITH COSTS THROUGHOUT. THIS RSA HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 17.02.2025 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT, PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MS JUSTICE J.M.KHAZI - 3 - RSA No. 200393 of 2014 CAV JUDGMENT (PER: HON'BLE MS JUSTICE J.M.KHAZI) JUDGEMENT & ORDER ON IA 1/2015 Being aggrieved by the concurrent findings of the trial Court and the First Appellate Court, decreeing the suit for partition and separate possession of plaintiff’s share in the suit schedule properties, defendant Nos.1 and 4 have filed this second appeal. They have also filed I.A.No.1/2015 under Order 41 rule 27 of CPC, to permit them to produce additional documents consisting of Khasara Pahanis for the year 1955–56 to 1957–58 and RTC in respect of Item No.1 of suit schedule i.e, Sy.No.15/A. 2. For the sake of convenience, parties are referred to by their ranks before the trial Court. 3. It is the case of the plaintiff that he and defendants are the children of late Sharanu Naik. They are the members of the joint family and coparceners. Suit schedule properties are their joint family properties. In the - 4 - RSA No. 200393 of 2014 oral partition that took place on 26.06.2009 equal share is allotted in all the suit schedule properties. However, when plaintiff requested defendant to affect the regular partition, they not only refused, but also threw the plaintiff out of the house. Plaintiff is having 1/5th share in all the suit properties. Without any alternative, he has approached the Civil Court. 4. Defendants have filed written statement, admitting the relationship between the parties. Mother of plaintiff and defendant is also necessary party. It is admitted that suit item No.2 i.e., Sy.No.15/B is joint family property. But item No.1, i.e., Sy.No.15/A is the self acquired property of defendant No 1. He has purchased the same out of his self earnings. There is no cause of action for the suit and sought for dismissal of the same. 5. Based on the pleadings trial Court has framed necessary issues. 6. In support of his case, plaintiff examined himself as PW-1 and relied upon Exs.P1 to 20 . - 5 - RSA No. 200393 of 2014 7. On behalf of descendants, the power of attorney holder of defendant No.1 is examined as DW-1 and Ex.D1 is marked. 8. The trial court decreed the suit granting 6 x 25th share in suit properties. 9. Aggrieved by the same, the defendants approached the First Appellate Court. It dismissed the appeal filed by the defendants and confirmed the judgment and decree passed by the trial Court. 10. Aggrieved by the same, defendant Nos.1 and 4 have come up with this appeal contending that the impugned judgment and decree of trial Court as well as the First Appellate Court are against law, facts and probabilities of the case. Both Courts have utterly failed to place the initial burden on the plaintiff to prove that suit item No.1 is also ancestral and joint family property. The documents produced by the plaintiff prove that the said property was belonging to one Daku Lamani and plaintiff has failed to prove how the property belonging to said - 6 - RSA No. 200393 of 2014 Daku Lamani has come to his family. Both Courts have erred in holding that it is ancestral property. They have wrongly placed the burden on defendant No.1 to prove that it is his self acquired property. It has also not appreciated the admissions given by plaintiff during his cross-examination. 11. Vide order dated 19.06.2024, the appeal is admitted on the following substantial questions of law. (i) Whether the Courts below were justified in placing burden on the defendants to prove acquisition of Sy.No.15/A, without placing initial burden on the plaintiff to prove that the suit land is the ancestral property? (ii) Whether the Courts below were justified in granting share to the plaintiff inSy.No.15/A ignoring the material evidence on record? 12. Plaintiff has filed contra objections to the appeal stating that the appeal is not maintainable. The trial Court has wrongly granted 6/25th share in the suit properties as he is entitled for 1/3rd share and pray to modify the decree. - 7 - RSA No. 200393 of 2014 13. Defendant Nos.1 and 4 have filed I.A.No.1/2015 under Order 41 Rule 27 of CPC to permit them to produce additional documents viz, Khasara Pahanis' and RTCs in respect of item No.1 of suit schedule property. 14. In the affidavit appended to the application, defendant No.1 has deposed that, while entrusting the case to his advocate, he had given all the necessary instructions and documents. However, he was advised that since already plaintiff has produced those documents, it is not necessary for him once again to produce the same documents and therefore he could not produce these documents. 15. On the other hand supporting the concurrent judgment and decree of the trial Court and First Appellate Court, it is submitted by the learned counsel for plaintiff that the fact that item No.1 was acquired through purchase is not in dispute. However, it was purchased through the income derived from suit item No.2. Therefore, the burden is on defendants to establish that - 8 - RSA No. 200393 of 2014 they had independent income and suit item No.1 was purchased as self acquired property of defendant No.1, which they have failed. The documents now sought to be produced are already placed on record by the plaintiff and no purpose would serve by producing the same documents and sought for the dismissal of appeal as well as I.A.No.1/2015. 16. Heard arguments and perused the record. 17. The relationship between the parties is admitted. Plaintiff and defendant are the children of Sharanu Naik. Suit item No.2 is the property of the joint family. As evident from Ex.P1 to 4 which are the Khasara Pahanis in respect of suit item No.2, it was standing in the name of one Daku Krishna Lamani. According to defendant No.1 it was acquired by him through purchase. Even though defendants claim that defendant No.1 has purchased it, the sale deed is not produced. Plaintiff is not disputing the fact that this property was acquired through purchase. However, he claims that it was purchased out of - 9 - RSA No. 200393 of 2014 joint family funds and therefore, it is also a joint family property. 18. It is pertinent to note that defendant No.1 is the eldest male member of the family of plaintiff and defendants. He is having personal knowledge about the family affairs. However, he has not chosen to enter the witness box and give evidence. On the other hand he has chosen to examine his son as DW-1. When compared to PW-1, the knowledge of defendant No.1 regarding the affairs of the joint family and its properties is more personal. Therefore, examination of defendant No.1 would have been more appropriate. Even though DW-1 has deposed that he and his brothers used to earn and pay their earnings to defendant No.1 and out of the said amount, defendant No.1 has acquired suit item No.1, except his self-serving statement, there is no concrete evidence to prove the same. 19. This fact assumes importance since other than suit item No.2, the family was not having any other source - 10 - RSA No. 200393 of 2014 of income. Defendants have not led any evidence to show that other than working in the joint family property, they were engaged in some other avocation or work and out of the same, they had income and suit item No.1 was purchased through such income. Therefore, the trial Court as well as the First Appellate Court have rightly held that suit item No.1 was acquired out of the income of the joint family and therefore it is also a joint family property and granted share in it also. 20. So far as I.A.No.1/2015 is concerned, the documents sought to be produced through this application are already produced by the plaintiff. Moreover, there is no dispute that suit item No.1 was acquired through purchase. In the absence of defendants establishing that they had independent income other than the income derived through the joint family property, in the light of presumption that the property possessed by the joint family is a joint family property, the trial Court as well as the First Appellate Court are justified in also holding that suit item No.1 is also a joint family property. - 11 - RSA No. 200393 of 2014 21. In the light of presumption that the property possessed by joint family is joint family property, the trial Court as well as First Appellate Court is justified in placing the burden on the defendants to prove that suit item No.1 is the self-acquired property of defendant No.1 and on his failure to prove the said fact granting share in it also. Consequently, the substantial questions of law are answered in the Affirmative. 22. So far as the shares are concerned, as per the amendment to the Hindu Succession Act, the daughters are also entitled for equal share. Therefore, plaintiff and defendants are entitled for equal share. Though when the suit was filed, the mother of plaintiff and defendants was alive, during the pendency of the suit she died. Therefore, plaintiff as well as defendants are entitled for equal share. Consequently, plaintiff is entitled for 1/5th share instead of 6/25. To this extent, the share is required to be modified. 23. In the light of findings on substantial questions of law, the appeals fails accordingly, the following: - 12 - RSA No. 200393 of 2014 ORDER (i) Appeal filed by defendant Nos.1 and 4 under Section 100 of C.P.C is dismissed. (ii) The impugned judgment and order dated 26.10.2010 in O.S.No.135/2009 on the file of Civil Judge (Jr.Dn.) and JMFC, at Jewargi and judgment and decree dated 27.09.2014 in R.A.No.136/2010 on the file of Senior Civil Judge, Jewargi are confirmed. (iii) The Registry is directed to send back the trial Court as well as First Appellate Court records along with copy of this judgment forthwith. Sd/- (J.M.KHAZI) JUDGE RR