- 1 - NC: 2025:KHC-D:6708-DB RFA No. 100282 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 22ND DAY OF APRIL, 2025 PRESENT THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA REGULAR FIRST APPEAL NO.100282 OF 2019 (PAR/POS) BETWEEN: MAHADEV S/O. BHIMAPPA KURUBCHANNAL @ CHANNAL, AGE: 50 YEARS, OCC: EX-ARMY PERSON, R/O. KULAGOD, TQ: GOKAK-591307, DIST: BELAGAVI. …APPELLANT (BY SRI DINESH M. KULKARNI, ADVOCATE) AND: 1. KUMARI. PRIYA D/O. MAHADEV KURUBCHANNAL @ CHANNAL, AGE: 18 YEARS, OCC: STUDENT. 2. KUMARI. POOJA D/O. MAHADEV KURUBCHANNAL @ CHANNAL, AGE: 16 YEARS, OCC: STUDENT. 3. KUMARI. BASAMMA D/O. MAHADEV KURUBCHANNAL @ CHANNAL, AGE: 14 YEARS, OCC: STUDENT. 4. KUMAR. VIKAS S/O. MAHADEV KURUBCHANNAL @ CHANNAL, AGE: 12 YEARS, OCC: STUDENT. 5. SMT. MANJULA CLAIMING W/O. MAHADEV KURUBCHANNAL @ CHANNAL, Digitally signed by V N BADIGER Location: HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD - 2 - NC: 2025:KHC-D:6708-DB RFA No. 100282 of 2019 AGE: 38 YEARS, OCC: AGRICULTURE, R/O. KULAGOD, TQ: GOKAK-591307, DIST: BELAGAVI, NOW AT SORAGAV, TQ: MUDHOL-587101. …RESPONDENTS (BY SRI. GIRISH A. YADAWAD, ADVOCATE FOR C/R1 TO R5) THIS RFA IS FILED UNDER SECTION 96 (1) READ WITH ORDER 41 RULE 1 OF CPC 1908 AGAINST THE JUDGMENT AND DECREE DATED 25.03.2019 PASSED IN O.S.NO.161/2017 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, MUDHOL, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM) 1. The captioned appeal is by the unsuccessful defendant assailing the Preliminary Decree drawn in O.S.No.161/2017, wherein the trial Court on assessing the oral and documentary evidence has come to the conclusion that plaintiffs No.1 to 4 are the children born in the wedlock of plaintiff No.5 and defendant and therefore they are entitled for 1/6th share in the suit schedule properties. Suit is - 3 - NC: 2025:KHC-D:6708-DB RFA No. 100282 of 2019 accordingly decreed. The Preliminary Decree is challenged in the captioned appeal. 2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court. 3. Before we proceed to examine the rival contentions, we deem it appropriate to take cognizance of the family tree, which is as under: Mahadev – [Deft] Manjula – wife [Plff No.5] Priya Pooja Basamma Vidkas [Plff.No.1] [Plff.No.2] [Plff.No.3] [Plff. No.4] 4. Facts leading to filing of this appeal are that plaintiffs No.1 to 4 along with plaintiff No.5, the mother, have instituted a suit for partition in O.S.No.161/2017. Plaintiff No.5 claimed to be the wife of defendant and she asserted that plaintiffs No.1 to 4 are the children born in the wedlock of plaintiff No.5 and defendant. Plaintiffs contended that they constitute the undivided joint Hindu family along - 4 - NC: 2025:KHC-D:6708-DB RFA No. 100282 of 2019 with defendant and the suit schedule properties are their ancestral joint family properties and therefore they claimed 1/6th share each. The present suit is filed alleging despite repeated requests, defendant has refused to effect partition by metes and bounds. 5. On receipt of summons, defendant tendered appearance and filed written statement and stoutly denied the entire averments made in the plaint. The defendant disputed that Item Nos.1 and 3 of suit schedule-A properties are joint family ancestral properties. Defendant also disputed the marital status of plaintiff No.5. The defendant contended that he has married to one Shantawwa and she led marital life with him only for a period of 5 years and there are no issues from the said wedlock. Defendant therefore disputed and denied that plaintiff No.5 is his legally wedded wife. Plaintiffs and defendant to substantiate their respective claims, let in oral and documentary evidence. Since defendant has disputed the marital status of plaintiff No.5, plaintiffs have produced the Birth Certificate of plaintiffs No.1 - 5 - NC: 2025:KHC-D:6708-DB RFA No. 100282 of 2019 to 4, which are marked as Exs.P9 to 12. Plaintiffs have also produced E.C.H.S card, which are marked as Exs.P.22 to 26. 6. Learned Judge having examined the cogent and clinching evidence let in by plaintiffs, has come to a conclusion that plaintiff No.5 has succeeded in substantiating that she is the legally wedded wife of defendant and plaintiffs Nos.1 to 4 are the children born in the wedlock of plaintiff No.5 and defendant. 7. While examining as to whether all the suit schedule properties are joint family ancestral properties, the trial Court referring to the rebuttal evidence let in by defendant, however held that Item Nos.1 and 2 are the self acquired properties of defendant, therefore proceeded to grant 1/6th share each to the plaintiffs in Item Nos.3 to 5 landed properties and plots bearing Nos.2 and 94. 8. Learned counsel for the defendant reiterating the grounds urged, has vehemently argued and contented that plot Nos.2 and 94 are self acquired properties of defendant. He would submit the fact that defendant has succeeded in substantiating that he is an Ex-serviceman, the onus would - 6 - NC: 2025:KHC-D:6708-DB RFA No. 100282 of 2019 shift on the plaintiffs to substantiate that the ancestral lands were generating sufficient income and surplus income was utilized to purchase the plots bearing No.2 and 94. He would therefore point out that plaintiffs have failed to produce any documentary evidence to prove that the ancestral properties had sufficient nucleus and could have generated surplus income. In absence of this evidence, he would argue that the learned Judge erred in treating plot Nos.2 and 94 as also joint family ancestral properties. 9. Per contra, the learned counsel appearing for plaintiffs, would point out that the family of plaintiffs and defendant owns sufficient agriculture lands and therefore the initial burden is discharged by plaintiffs and onus shift on defendant. Defendant has not produced any rebuttal evidence to establish that he has not utilized the joint family corpus while purchasing the plot Nos.2 and 94. In regard to the marital status of plaintiff Nos.5, he would point out that the clinching evidence adduced at Exs,P.9 to 12 coupled with the Army records marked at Exs.P.22 to 26 as well as the policy secured by defendant, thereby nominating plaintiff - 7 - NC: 2025:KHC-D:6708-DB RFA No. 100282 of 2019 No.5 as a nominee at an undisputed point of time would clinch the core issue relating to the marital status, hence he requests this Court to dismiss the appeal. 10. We have carefully examined the pleadings of plaint and written statement. We have also meticulously gone through the oral and documentary evidence let in by both parties. 11. The following points would arise for our consideration is, (i) Whether the finding of the trial Court that plaintiff No.5 is the legally wedded wife of defendant and therefore plaintiffs have succeeded in establishing that they constitute an undivided joint Hindu family along with defendant suffers from perversity, warrants interference at the hands of this Court? (ii) Whether the finding of the trial Court that Plot Nos.2 and 94 are joint family ancestral properties, suffers from any perversity and therefore would warrants interference by this Court? - 8 - NC: 2025:KHC-D:6708-DB RFA No. 100282 of 2019 Finding on point No.(i) 12. Upon a careful perusal of the records, particularly the assertions made by the defendant in his written statement and his conduct during the cross-examination at the trial stage, it becomes evident that the defendant has made only a feeble attempt to dispute the marital status of Plaintiff No.5. This denial appears to be a calculated move, intended solely to prevent Plaintiff No.5 and her children- Plaintiffs No.1 to 4 from claiming their legitimate share in the suit schedule properties. 13. Although the defendant has claimed to have been married to one Shantawwa, the evidentiary weight of official Army records, which enjoy a higher degree of reliability and credibility, effectively resolves this controversy. Exs.P.22 to P.26, which are the Ex-servicemen Contributory Health Scheme (ECHS) Cards issued in favour of Plaintiffs No.1 to 5, serve as credible and authoritative documentary proof. These documents were issued by the concerned Army authorities at a time that remains undisputed and were duly marked and exhibited during the proceedings. Notably, the defendant has - 9 - NC: 2025:KHC-D:6708-DB RFA No. 100282 of 2019 failed to offer any rebuttal or plausible explanation regarding these documents, thereby lending further credibility to the plaintiffs’ case. 14. In addition to these documents, Ex.P.16 being the original LIC (Life Insurance Corporation) policy obtained by the defendant, further corroborates the marital status of Plaintiff No.5. This document, which was executed in August 2003, clearly identifies Plaintiff No.5 as the wife of the defendant, again at a time which is not in dispute. The contemporaneity and official nature of this evidence provide a conclusive basis to affirm the relationship. 15. Moreover, the plaintiffs have succeeded in eliciting key admissions from the defendant during cross- examination. In unequivocal terms, the defendant admitted that Plaintiffs No.1 to 4 are indeed his children. This significant admission further supports the plaintiffs’ claim and aligns with the documentary evidence on record. The relevant portion of the defendant’s cross-examination reads as follows: - 10 - NC: 2025:KHC-D:6708-DB RFA No. 100282 of 2019 “F PÉù£À 1 jAzÀ 4£Éà ªÁ¢AiÀÄgÀÄ £À£ÀUÉ ºÁUÀÆ 5 £Éà ªÁ¢UÉ d¤¹gÀÄvÁÛgÉAzÀgÉ ¸Àj.” 16. The plaintiffs have produced substantial and credible documentary evidence to establish the marital relationship between Plaintiff No.5 and the defendant. In particular, reliance has been placed on the LIC policy secured by the defendant in the year 2003, which has been marked as Ex.P.16. This document clearly mentions Plaintiff No.5 as the wife of the defendant. In addition, the Ex-servicemen Contributory Health Scheme (ECHS) Cards issued by the concerned Army authorities, which have been marked as Exs.P.22 to P.26, further corroborate the familial relationship. These cards, issued at an undisputed point in time, include the names of Plaintiffs No.1 to 5, thereby strengthening the plaintiffs' claim. 17. What further fortifies this position is the unequivocal admission made by the defendant during his cross-examination. The defendant admitted that the LIC - 11 - NC: 2025:KHC-D:6708-DB RFA No. 100282 of 2019 policy marked as Ex.P.16 was indeed secured by him in 2003. Although the specific marital status of Plaintiff No.5 may not be a central issue in the suit, the plaintiffs have, through both documentary and oral evidence, successfully established and substantiated this aspect. The cumulative effect of this consistent and credible evidence leaves no room for doubt regarding the relationship, and it is evident that the defendant’s denial in this regard is unsubstantiated and appears to be a mere afterthought. Accordingly, Point No.(i) is answered in the negative. Finding on Point No. (ii): 18. The defendant has taken the stand that Plot Nos.2 and 94 were purchased solely from his terminal benefits received upon retirement from the Army. This assertion carries with it a corresponding evidentiary burden. Once the defendant claims that the suit schedule properties were acquired through his exclusive personal funds, it becomes incumbent upon him to produce relevant bank records and supporting documents to substantiate the source - 12 - NC: 2025:KHC-D:6708-DB RFA No. 100282 of 2019 of such funds. In particular, the defendant was required to produce bank account statements, passbooks, or withdrawal records showing that terminal benefits were indeed received and used directly for the purchase of these two plots. 19. However, in the present case, the defendant has failed to discharge this burden. There is a conspicuous absence of any bank documents or financial statements on record. The defendant has neither produced nor explained the absence of such material evidence, which he alone is capable of furnishing. His failure to disclose the bank account details or transaction records, despite claiming to have used terminal benefits for the purchase, is a significant omission. This deliberate withholding of evidence warrants an adverse inference against the defendant under Section 114(g) of the Indian Evidence Act, 1872. 20. Further, while the defendant seeks to shift the burden onto the plaintiffs by contending that they must prove the existence of sufficient ancestral nucleus, the factual matrix of the present case indicates that the plaintiffs have successfully discharged their initial burden. They have - 13 - NC: 2025:KHC-D:6708-DB RFA No. 100282 of 2019 established that the joint family possessed ancestral lands which were capable of yielding surplus income. Once this foundational burden was discharged, the onus shifted to the defendant to demonstrate that the suit properties were not acquired from the joint family nucleus but from his own independent income. 21. Given his failure to produce even minimal supporting documentary evidence, we find that the defendant has not been able to rebut the presumption in favour of joint family ownership. Consequently, we are inclined to hold that Plot Nos.2 and 94 were not purchased exclusively out of the defendant’s terminal benefits but are in fact joint family properties acquired from the ancestral corpus. Accordingly, we hold that Plot Nos.2 and 94 form part of the joint family properties, and the plaintiffs are entitled to their rightful share therein. 22. For the foregoing reasons, the point Nos.(ii) is answered in the ‘negative’. - 14 - NC: 2025:KHC-D:6708-DB RFA No. 100282 of 2019 23. In the light of findings recorded on point Nos.(i) and (ii), we proceed to pass the following : ORDER Appeal is devoid of merits, hence same is dismissed. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE Sd/- (G BASAVARAJA) JUDGE CKK Ct:vh List No.: 1 Sl No.: 16