- 1 - HC-KAR NC: 2025:KHC-D:8767-DB RFA No. 100331 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 15TH DAY OF JULY 2025 PRESENT THE HON'BLE MR. JUSTICE R.NATARAJ AND THE HON'BLE MR. JUSTICE RAJESH RAI K REGULAR FIRST APPEAL NO. 100331 OF 2019 (PAR/POS) BETWEEN: 1. SRI. VEERAPPA @ IRAPPA S/O. GONEPPA SANKANANAVAR, AGE: 73 YEARS, OCC: AGRICULTURE, R/O: GANAJUR, TQ AND DIST: HAVERI-581110. 2. SMT. SHANTAVVA W/O. VEERAPPA @ IRAPPA SANKANANAVAR, AGE: 68 YEARS, OCC: AGRICULTURE, R/O: GANAJUR, TQ AND DIST: HAVERI-581110. 3. SRI. NAGARAJ S/O. VEERAPPA @ IRAPPA SANKANANAVAR, AGE: 41 YEARS, OCC: AGRICULTURE, R/O: GANAJUR, TQ AND DIST: HAVERI-581110. 4. SRI. MANJUNATH S/O. VEERAPPA @ IRAPPA SANKANANAVAR, AGE: 39 YEARS, OCC: AGRICULTURE, R/O: GANAJUR, TQ AND DIST: HAVERI-581110. …APPELLANTS (BY SRI. V.M.SHEELVANT, SRI. S.H.MITTALKOD AND SRI. VIJAY S.KOUJALAGI, ADVOCATES) Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC-D:8767-DB RFA No. 100331 of 2019 AND: 1. SRI. GANESH S/O. VEERAPPA @ IRAPPA SANKANANAVAR, AGE: 45 YEARS, OCC: AGRICULTURE, R/O: GANAJUR, TQ AND DIST: HAVERI, NOW R/AT: NAGENAHALLI, TQ: RANEBENNUR, DIST: HAVERI-581110. 2. SRI. BASAVARAJ S/O. VEERAPPA @ IRAPPA SANKANANAVAR, AGE: 43 YEARS, OCC: AGRICULTURE, R/O: GANAJUR, TQ AND DIST: HAVERI, NOW R/AT: BASAVESHWAR NAGAR, TQ: AND DIST: HAVERI-581110. …RESPONDENTS (NOTICE TO R1 AND R2 ARE SERVED) THIS RFA IS FILED UNDER SECTION 96 RED WITH ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 02.03.2019 PASSED IN O.S.NO.129/2016 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, HAVERI, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ AND THE HON'BLE MR. JUSTICE RAJESH RAI K - 3 - HC-KAR NC: 2025:KHC-D:8767-DB RFA No. 100331 of 2019 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE R.NATARAJ) The plaintiffs in O.S.No.129/2016 on the file of the Additional Senior Civil Judge, Haveri (hereinafter referred to as the ‘trial Court’, for short) have filed this appeal challenging the judgment and decree dated 02.03.2019 by which their suit was decreed in part. 2. For the sake of convenience and easy understanding, the parties shall henceforth be referred to as they were arrayed before the Trial Court. 3. The suit in O.S.No.129/2016 was filed for partition and separate possession of the plaintiffs’ share in the suit schedule properties. The suit schedule properties comprised of five schedules. The first schedule consisted of agricultural lands situate at Ganajur Village while the second schedule related to plots in Haveri town, the third schedule consisted of plots in Byadagi town, the fourth schedule was a Mahindra tractor- trailer and the fifth schedule was loan raised by the family for the necessities of the family from Syndicate Bank and other private sources. The plaintiffs contended that they and - 4 - HC-KAR NC: 2025:KHC-D:8767-DB RFA No. 100331 of 2019 defendants constituted a joint family and they possessed the suit schedule properties. They claimed that the defendants with an intention to undertake mining activities to mine gold in suit item Nos.1 and 2 had claimed that the said properties belonged to them. The plaintiffs claimed that on 01.06.2015 they demanded their share in the suit schedule properties which was refused by the defendants. Therefore, the plaintiffs were advised to seek for partition and separate possession of their shares in the suit schedule properties. 4. The suit was contested by the defendant No.1 who filed a written statement inter alia contending that suit item Nos.6 and 7 of schedule 'A' were properties of the family purchased in the name of plaintiff Nos.3 and 4. Likewise, the tractor-trailor in schedule 'D' was purchased by the joint family in the name of plaintiff No.1. He claimed that the suit item No.1 being land bearing Sy.No.103/1C+§+PÀ+qÀ/2 was purchased by Shivalingappa Gonneppa Sankkannanavar in terms of a sale deed dated 15.05.1996 and suit item No.5 bearing R.S.No.103/1C+§+PÀ+qÀ/1C was also purchased by Shivalingappa Gonneppa Sankkannanavar in the year 1969 and suit item No.4 - 5 - HC-KAR NC: 2025:KHC-D:8767-DB RFA No. 100331 of 2019 bearing Sy.No.103/1C+§+PÀ+qÀ/1§ was purchased by Shivalingappa Gonneppa Sankkannanavar in the year 1970. Later, the brothers of Shivalingappa namely (i) Revanasidappa, (ii) Basappa, (iii) Erappa (Plaintiff) divided the said properties in the year 1987 in terms of which the property bearing R.S.No.103/1C+§+PÀ+qÀ/1C measuring 4 acres and R.S.No.103/1C+§+PÀ+qÀ/1§ measuring 4 acres fell to the share of the plaintiff No.1. The property bearing R.S.No.103/1C+§+PÀ+qÀ/2 fell to the share of Basappa Gonneppa Sankkannanavar and as he was residing at Hubballi, he left this property to be managed by the plaintiff No.1. He contended that the land bearing R.S.No.103/1C+§+PÀ+qÀ/C stood in the name of the plaintiff No.1 and that the plaintiff No.1 along with plaintiffs No.2 to 4 in order to deprive the share of the defendants had created revenue documents and transferred the Katha of the said property in the name of the plaintiff No.2. He contended that he was cultivating various lands in Karjagi village on tenancy and out of the income so generated, he purchased the land bearing - 6 - HC-KAR NC: 2025:KHC-D:8767-DB RFA No. 100331 of 2019 R.S.No.103/1C+§+PÀ+qÀ/2 in the year 2008. He therefore contended that none of the plaintiffs or the defendant No.2 had any share in the said property. He however admitted that the land bearing Sy.No.103/1C+§+PÀ+qÀ/§, Sy.No.103/1C+§+PÀ+qÀ/1C, Sy.No.103/1C+§+PÀ+qÀ/2 and the plots at Byadagi town and the tractor-trailer were all properties of the family and therefore he was entitled to 1/5th share therein. He claimed that there was no liability of the family and that the one shown in the suit schedule was a creation of the plaintiffs and therefore he was not liable to share the liability. 5. The defendant No.2 also filed the written statement inter alia admitting that plaintiffs and defendants were members of a joint family and that they had not divided the properties of the family. He stated that suit item Nos.3 and 4 of Schedule 'A' stood in the name of plaintiff No.1 and item No.5 of Schedule 'A' stood in the name of plaintiff No.2 where there existed a farm house and a cattle shed. He admitted that the tractor-trailer was in the name of plaintiff No.1. He denied that suit item Nos.1 and 2 of 'A' schedule were purchased out of the funds of the joint family, but were purchased in the names of - 7 - HC-KAR NC: 2025:KHC-D:8767-DB RFA No. 100331 of 2019 defendant Nos.1 and 2. He also denied that the plots at Haveri described in schedule 'B' were purchased from the funds of the joint family in his name. He denied that suit item No.6 of schedule 'A' was purchased in the name of plaintiff No.3 by utilising the funds of the joint family. He also denied that item No.7 of schedule 'A' was purchased in the name of plaintiff No.4 by utilising the funds of the joint family. He denied that there was any liability of the family much less a sum of Rs.15,00,000/- shown in schedule 'E'. 6. He claimed that when he was 13 years old, he left his parents and was living in his relatives house at Ranebennur and was studying. Later, he started working in the shop of his relative named, Sri. Virupakshappa Shivappa Kempannavar and that he was paid salary. He claimed that during January 2008, he purchased a lorry bearing registration No.KA-27/A-893 from which he earned sufficiently. He later purchased a car bearing registration No.KA27/A-5136 which he rented out and earned from it. He claimed that he did other businesses in Ranebennur and earned sufficiently. He therefore, claimed that he never used the funds of the family. He contended that he was - 8 - HC-KAR NC: 2025:KHC-D:8767-DB RFA No. 100331 of 2019 carrying on business in the name and style of ‘Sankannanavar Agro Traders’ from which he generated sufficient income. He claimed that out of the income so generated, he purchased item No.2 of schedule 'A' in the year 2008. He claimed that he purchased a plot bearing No.6 in Sy.No.10B of Ranebennur which he sold on 14.02.2011 and he sold the lorry on 31.05.2010. He claimed that he purchased the sites at Haveri from his business income. He therefore contended that the aforesaid properties were not available for partition since they were his absolute properties. He contended that he had helped the family financially and had assisted the family in purchasing the tractor trailer. Therefore, he contended that the suit for partition was not maintainable in respect of the properties purchased by him out of his own earning. 7. Based on these contentions, the trial Court framed the following issues: “ISSUES 1. Whether the plaintiffs prove that, the suit schedule properties are ancestral joint family properties of plaintiffs and defendants? - 9 - HC-KAR NC: 2025:KHC-D:8767-DB RFA No. 100331 of 2019 2. Whether the plaintiffs prove that they are in possession and enjoyment over the suit schedule properties? 3. Whether the plaintiffs prove that no partition by metes and bounds is effected between them so far? 4. Whether the plaintiffs prove that they have got 1/6th share each over the suit schedule properties? 5. Whether defendant No.2 proves that the suit schedule "A" and "B" properties are his slef acquired properties? 6. Whether the plaintiffs prove that they are entitled for the relief of partition and separate possession for in the plaint? 7. What order or decree? ADDTIONAL ISSUE:- 1. Whether the defendant No.1 proves that, suit schedule A-1 property is his absolute property?” 8. The plaintiff No.4 was examined as PW.1 and he marked Exs.P.1 to P.14 which essentially were the revenue extracts of the lands in question and the statements of the loan accounts. The defendant No.1 was examined as DW.1. The defendant No.2 was examined as DW.3. A witness for the - 10 - HC-KAR NC: 2025:KHC-D:8767-DB RFA No. 100331 of 2019 defendant No.1 was examined as DW.2. They marked Exs.D.1 to D.28. 9. Based on the oral and documentary evidence, the trial Court held that the defendants No.1 and 2 had established that the properties purchased in their names were their independent properties and consequently decreed the suit in part and declared that the plaintiffs No.1 to 4 and defendants No.1 and 2 were entitled to 1/6th share each in the suit schedule ‘A’ at item Nos.3 to 7, suit schedule ‘C’, ‘D’ and ‘E’ properties. 10. Being aggrieved by the aforesaid judgment and decree insofar as it relates to refusing to grant a share in the suit item Nos.1 and 2 of the schedule ‘A’ and schedule ‘B’ properties, the plaintiffs are before this Court. 11. Learned counsel for the plaintiffs contended that the plaintiffs and the defendants constituted a joint family. He contends that the defendant No.1 was the eldest member of the family and suit item No.1 was purchased in the name of the defendant No.1 out of the nucleus of the joint family. He also contends that the suit item No.2 was purchased in the name of - 11 - HC-KAR NC: 2025:KHC-D:8767-DB RFA No. 100331 of 2019 defendant No.2 which was again acquired out of the funds of joint family. He also contends that schedule ‘B’ properties were also purchased in the name of defendant No.2 out of the funds of the joint family and the same were liable to be partitioned. He thus contends that the trial Court committed an error in treating the aforesaid properties as independent properties of defendants No.1 and 2. He contends that when the family is possessed of sufficient nucleus, it should be presumed that the joint family funds were utilized for purchasing properties in the names of the defendants No.1 and 2 and it is for the person who claims that they are self acquired properties, to establish the same before the Court by acceptable evidence. He contends that though the defendants No.1 and 2 had entered the witness box and had placed on record certain documents, they did not establish the source of their funds to do business. He contends that the business was funded by the joint family nucleus and hence, any accretion made by any member of the family from out of the funds of the family has to be treated as belonging to the joint family and therefore, the plaintiffs and the defendants are entitled to an equal share. - 12 - HC-KAR NC: 2025:KHC-D:8767-DB RFA No. 100331 of 2019 12. The respondents though served with the notice have not appeared before the Court. 13. After having heard the learned counsel for the plaintiffs and after perusing the records of the trial Court as well as the judgment and decree, the following question arises for consideration: “Whether the plaintiffs had placed on record enough material to establish that the funds of the family were utilized to purchase suit item Nos.1 and 2 of schedule ‘A’ and properties of ‘B’ schedule in the names of defendant Nos.1 and 2?” 14. The defendant No.1 claimed that he purchased suit item No.1 on 02.06.2008. The claim of the defendant No.1 was that he was cultivating the land belonging to the father of DW.2 as a tenant and that out of the income so generated, he purchased suit item No.1. In order to prove this contention, the defendant No.1 examined DW.2, who deposed that the defendant No.1 was cultivating the land as a tenant and also deposed that he generated sufficient funds from which he purchased suit item No.1. - 13 - HC-KAR NC: 2025:KHC-D:8767-DB RFA No. 100331 of 2019 15. The family of the plaintiffs and the defendants comprised of the plaintiffs No.3 and 4, who were two sons of plaintiffs No.1 and 2. Item Nos.3 to 7 of schedule 'A' comprised of lands which measured more than 16 acres. Therefore, it is quite probable that the family generated enough income for its maintenance. The defendant No.1 claimed that he was cultivating the land of the father of DW.2 and from the income generated from such tenancy, he had purchased item No.1. 16. A perusal of the sale deed dated 02.06.2008 in the name of defendant No.1 shows that suit item No.1 was purchased for a total sale consideration of Rs.1,20,000/-. Therefore, it was incumbent upon the defendant No.1 to prove by acceptable evidence that he had generated the money by cultivating the land of the father of DW.2. The evidence of DW.2 when perused, does not disclose whether there was any agreement in writing regarding the tenancy and the amount generated by defendant No.1. It also did not disclose the crops raised by the defendant No.1 and whether there was any document to establish that the defendant No.1 was cultivating his property as a tenant. Besides this, the suit item No.1 was - 14 - HC-KAR NC: 2025:KHC-D:8767-DB RFA No. 100331 of 2019 purchased in the year 2008 at which point in time the defendant No.1 was aged about 32 years. Except the self- serving statement of the defendant No.1 that he had generated enough money to purchase the suit item No.1 and the interested testimony of DW.2, there was no palpable evidence to disbelieve the claim of the plaintiffs that suit item No.1 was purchased out of the funds of the joint family. Having regard to the fact that the defendant No.1 was not pursuing any other activity other than agriculture and since the family was also into cultivating its own lands, which was capable of generating sufficient funds, the probability that the suit item No.1 was purchased out of the income of the joint family is more. It is also relevant to note that the family was in Ganajur village whereas DW.2 claimed that the defendant No.1 was cultivating the land situated in Karjagi village. Therefore, unless there is evidence to show that defendant No.1 had separated from the family and was living away from the family and was independently cultivating the land of the father of DW2, the irresistible conclusion that could be drawn was that the suit item No.1 was purchased by the family in the name of defendant No.1 and not out of the funds generated by - 15 - HC-KAR NC: 2025:KHC-D:8767-DB RFA No. 100331 of 2019 defendant No.1 by cultivating the land of the father of DW2. Therefore, the finding of the Trial Court that the suit item No.1 was the independent property of the defendant No.1 warrants interference, as the evidence adduced by the defendant No.1 was not sufficient to establish that suit item No.1 was purchased by him out of his own funds. 17. As regards suit item No.2 of schedule ‘A’ and the properties of schedule ‘B’, it is relevant to note that the defendant No.2 had placed on record an account extract for the years 2003 to 2008, which showed that he was conducting some business. He was frequently receiving certain credits into his account from different sources. Suit item No.2 of schedule ‘A’ was purchased by the defendant No.2 in terms of Ex.D.17 on 02.06.2008 for a total sale consideration of Rs.1,20,000/-. It is also relevant to note that the defendant No.1 had sold a plot bearing No.6 in terms of Ex.D.16 on 14.02.2011 for a sum of Rs.1,21,000/-. Ex.D1 shows that the defendant No.2 had raised a loan from a bank for his business purposes. Likewise, Ex.D.2 was the account extract which indicated that the defendant No.2 had raised a loan of Rs.99,000/-. He has placed on record - 16 - HC-KAR NC: 2025:KHC-D:8767-DB RFA No. 100331 of 2019 the account extract of ‘Sankannanavar Agro Traders’ as Ex.D.23 for the term 01.01.2008 to 22.08.2016, which indicates that the defendant No.2 was conducting the business of ‘Sankannanavar Agro Traders’ from the year 2008. He has also placed on record, the registration certificate of ‘Sankannanavar Agro Traders’ as Ex.D.26 under the Karnataka Value Added Tax Act. It is trite that the business conducted by a member of the joint family cannot be presumed to be a business of the joint family and it is for the person who claims to be so to establish it in accordance with law. The defendant No.2 has claimed that he was working in the shop of his uncle and thereafter branched out and started his own business. The evidence on record, therefore, establishes that the defendant No.2 had an independent business from which he generated funds which was sufficient enough to purchase properties in his name. The plaintiffs though claimed that suit item No.2 of schedule ‘A’ and schedule ‘B’ were properties of the joint family, they did not place on record adequate evidence to establish that the funds of the joint family were utilized to purchase the said properties by the defendant No.2. In the face of the documentary evidence produced by defendant No.2, the - 17 - HC-KAR NC: 2025:KHC-D:8767-DB RFA No. 100331 of 2019 Trial Court was right in holding that suit item No.2 of ‘A’ schedule and the ‘B’ schedule were the independent properties of the defendant No.2. 18. In view of the above, the finding of the Trial Court that suit item No.1 was the independent property of the defendant No.1 and suit item No.2 of ‘B’ schedule were the properties of the defendant No.2, deserves to be modified only to the limited extent of suit item No.1 that stood in the name of defendant No.1. Therefore, we hold that the evidence on record was not sufficient for the Trial Court to hold that suit item No.1 was the independent property of the defendant No.1. Accordingly, we answer the point framed by us for consideration and hold that that the plaintiffs had proved that suit item No.1 of schedule 'A' was purchased by the family in the name of defendant No.1 but they failed to establish that item No.2 of schedule 'A' and the properties in schedule 'B' were purchased out of the funds of the family in the name of defendant No.2. 19. Consequently, this appeal is allowed in part and it is declared that the plaintiffs and defendants are entitled to an - 18 - HC-KAR NC: 2025:KHC-D:8767-DB RFA No. 100331 of 2019 equal share in suit item No.1 of ‘A’ schedule along with the other properties as per the decree passed by the Trial Court. However, the claim of the plaintiffs in respect of suit item No.2 of schedule 'A' and the ‘B’ schedule is rejected. 20. The parties to bear their own costs. Sd/- (R.NATARAJ) JUDGE Sd/- (RAJESH RAI K) JUDGE RH,YAN Ct:vh List No.: 1 Sl No.: 27