Extracted from the PDF above. The PDF is authoritative.
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HC-KAR NC: 2025:KHC-D:8546-DB RFA No. 100094 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 10TH 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. 100094 OF 2019 (PAR/POS)
BETWEEN:
1. SHRI. LAGAMANNA MALLAPPA @ MALLA GOUDAR AGE: 63 YEARS, OCC: AGRICULTURE, R/O: KADABAGATTI-591307, TQ: GOKAK, DIST: BELAGAVI. 2. SHRI. SHIVAPPA MALLAPPA @ MALLA GOUDAR AGE: 56 YEARS, OCC: AGRICULTURE, R/O: KADABAGATTI-591307, TQ: GOKAK, DIST: BELAGAVI. 3. SHRI. TAMMANNA @ SANNATAMMANNA MALLAPPA @ MALLA GOUDAR, AGE: 53 YEARS, OCC: AGRICULTURE AND ADVOCATE, R/O: KADABAGATTI-591307, TQ: GOKAK, DIST: BELAGAVI. 4. SMT. BALAWWA W/O. MALLAPPA @ MALLA GOUDAR, AGE: 85 YEARS, OCC: AGRICULTURE, R/O: KADABAGATTI-591307, TQ: GOKAK, DIST: BELAGAVI. …APPELLANTS (BY SRI. LAXMAN T.MANTAGANI, ADVOCATE)
AND:
1. SHRI. LAXMAN MALLAPPA @ MALLA GOUDAR AGE: 65 YEARS, OCC: AGRICULTURE, R/O: KADABAGATTI-591307, TQ: GOKAK, DIST: BELAGAVI. 2. SMT. SATTEWWA W/O. NIRWANI GOUDAR AGE: 50 YEARS, OCC: AGRICULTURE,
Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATKA DHARWAD BENCH Date: 2025.07.26 11:08:00 +0530
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R/O: KADABAGATTI-591307, TQ: GOKAK, DIST: BELAGAVI. 3. SHRI. CHIDANAND NIRWANI GOUDAR AGE: 28 YEARS, OCC: AGRICULTURE, R/O: KADABAGATTI-591307, TQ: GOKAK, DIST: BELAGAVI. 4. SHRI. NEELAPPA NIRWANI GOUDAR AGE: 26 YEARS, OCC: AGRICULTURE, R/O: KADABAGATTI-591307, TQ: GOKAK, DIST: BELAGAVI. 5. SMT. SUSHILAWWA W/O. FAKIRAPPA SHINDIMARAD, AGE: 61 YEARS, OCC: HOUSEHOLD, R/O: BENACHINAMARADI, (URBINHATTI)-591112, TQ: GOKAK, DIST: BELAGAVI. 6. SMT. IRAWWA W/O. FAKIRAPPA BIRADAR, AGE: 53 YEARS, OCC: HOUSEHOLD, R/O: GUDANATTI-591344, TQ: GOKAK, DIST: BELAGAVI. 7. SMT. SHEVANTI W/O. BHIMAPPA MALAGI AGE: 47 YEARS, OCC: HOUSEHOLD, R/O: BENACHINAMARADI, (URBINHATTI)-591112, TQ: GOKAK, DIST: BELAGAVI. 8. SMT. SUVARNA W/O. SIDRAM HANABAR AGE: 45 YEARS, OCC: HOUSEHOLD, R/O: MABANUR-591117, TQ: SOUNDATTI, DIST: BELAGAVI. 9. SMT. SHEELAWWA W/O. SHANKAR PATIL AGE: 44 YEARS, OCC: HOUSEHOLD, R/O: VADRAL-591226, TQ: CHIKODI, DIST: BELAGAVI. …RESPONDENTS (BY SRI.
DINESH M.KULKARNI, ADVOCATE FOR R1;
NOTICE TO R2, R5 TO R9 ARE SERVED;
VIDE ORDER DATED 21.04.2025 NOTICE TO R3 AND R4 ARE HELD SUFFICIENT)
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THIS RFA IS FILED UNDER ORDER 41 RULE 1 READ WITH SECTION 96 OF CPC 1908 AGAINST THE JUDGMENT AND DECREE DATED 11.12.2018 PASSED IN O.S.NO.343/2013 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE GOKAK, 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
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE R.NATARAJ)
The plaintiffs in O.S.No.343/2013 on the file of the Principal Senior Civil Judge, Gokak (hereinafter referred to as ‘the Trial Court’, for short) have filed this appeal challenging the correctness of the
judgment and decree dated 11.12.2018, in terms of which, the suit filed by them for partition and separate possession was decreed in part and they were denied a share in suit Item Nos.1 and 2 of schedule ‘2’ which was held to be the exclusive properties of the defendant No.1. - 4 -
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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.343/2013 was filed for partition and separate possession of 13 items of agricultural lands situated at Gokak and 3 residential plots at Gokak and 3 house properties at Kadabagatti village. The plaintiffs claimed that their genealogy was as follows:
Mallappa (Dead)
= Balawwa (P4=A4)
Laxman Lagamanna Sushilawwa Nirwani Irawwa Shivappa Tammanna Shevanti Suvarna Sheelawwa (D1=R1) (P1=A1) (D5=R5) (Dead) (D6=R6) (P2=A2) (P3=A3) (D7=R7) (D8=R8) (D9=R9)
=Sattewwa
(D2=R2)
Chidanand Neelappa
(D3=R3) (D4=R4)
4. The plaintiffs contended that the propositus- Mallappa died in the year 2000 leaving behind the plaintiffs and defendants as his Class-I legal heirs. They contended that all their sisters had relinquished their rights in the suit properties in favour of the plaintiffs and the defendants. - 5 -
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Therefore, the daughters were not necessary parties to the suit. They contended that after the death of propositus- Mallappa, they and defendants continued the joint family and were in joint possession and enjoyment of the suit properties. They contended that the house property situated at Gokak was acquired out of the income of joint family and was purchased in the name of defendant No.1 as he was the eldest son of the propositus-Mallappa and plaintiff No.5. Therefore, they contended that all the properties were held by the joint family, some of which were ancestral and some were acquired out of the nucleus of the joint family. They contended that they and the defendants had jointly constructed a building and therefore, each one of them had an undivided right, title and interest in the suit properties.
They contended that there was no partition between the plaintiffs and the defendants by metes and bounds and the revenue records in respect of same properties were entered in the names of the plaintiffs and the defendants, while in respect of some it stood in the name of the propositus- Mallappa. - 6 -
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5. The plaintiffs contended that the defendant No.1 alone got his name entered in the panchayat records in respect of suit Item No.1 of schedule-III. Thereafter, the name of the plaintiff No.2 was also entered in the property extract. The defendant No.1 filed an appeal before the Taluka Executive, Panchayath contending that the said property was his absolute property and plaintiffs had no right in the said property. The plaintiff claimed that the defendant No.1 was acting against their interest and was trying to deprive them of their share in the suit properties. Therefore, the plaintiffs sought for partition and separate possession of their share in the suit properties. 6. The defendant No.1 contested the suit by filing a written statement contending inter alia that there was a partition of the properties of the family in the year 1990 and that the plaintiffs were aware of the same and the consequent mutation entered in the records of the Panchayath as well as the extent of the properties allotted to all the sons of Mallappa, the propositus. He contended that as per the partition, five strips were marked in Survey
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No.435/2A and 435/2B and each of the sons was allotted 31 guntas. He contended that Survey No.430/3B/2 fell to the share of Shivappa and 2 portions were formed in Survey No.425/3B/2, which were allotted to the plaintiff No.1 and the defendant No.1. He contended that Survey No.425/3B/1 was allotted to the plaintiffs and since in Survey No.430/3B/1 and Survey No.431/7B/2 the government intended to form Janata Plots, the same was not available for partition.
He contended that the other suit properties were less than 6 guntas and their location was not easily identifiable and hence they were continued in the name of the propositus-Mallappa. As far as house properties are concerned, he contended that GPC 268 and 82 fell to the share of the plaintiff No.3, GPC 262 and 92 fell to the share of plaintiff No.1, GPC 448 and 49 fell to the share of plaintiff No.2 and GPC 158 was allotted to the defendant No.1. He contended that he had constructed a building over the property allotted to him. He contended that the parties had acted upon the partition and were in possession of their respective properties for more than 23 years. He contended
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that he developed the agricultural lands allotted to him and was drawing the usufructs from the said properties. He contended that when the partition of the properties were effected during the lifetime of the propositus, the plaintiffs have no right to file instant suit for partition. 7. He contended that during the lifetime of the propositus, he had separated from the family and was doing milk vending business from the age of 23 years and was earning since then. He claimed that out of his own hard labour and skill, he had purchased plot No.54 in Survey No.288/1 situate at Gokak from its erstwhile owners Dundappa Channappa Pattanashetti and Bassayya Channayya Pattanashetti and from then on he is in exclusive possession and enjoyment of the same. He claimed that he applied for a loan for construction of a building in the said site in the year 1998. The Urban Co-operative Bank Ltd., Gokak, after verifying the business undertaken by him and on the basis of income earned, sanctioned loan of ₹1,50,000/- for construction of a house in the said property.
He contended that with the loan so granted, he constructed a
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house and repaid the loan to the Bank in installments till the year 2002. Therefore, he contended that the aforesaid property was his absolute property and neither the plaintiffs nor the other defendants had any share therein. He also contended that he had purchased a constructed house with open space bearing Plot No.57 out of Survey No.288/1 for valuable consideration from its earlier owners in terms of sale deed dated 02.12.1996 and had developed it out of his own money. Thus, he contends that Plot No.54 and 57 was his absolute property and the income of the joint family was never utilized to purchase the said properties. He alleged that the plaintiffs in
order to cause hardship and inconvenience to him had filed the suit for partition not only in respect of ancestral agricultural lands but also the plots that the defendant had purchased out of his earnings. He contended that the plaintiffs had deliberately not included the land in Survey No.971/1 measuring 9 acres 4 guntas situate at Tavag village in Gokak Taluk and Plot No.58/A purchased out of the funds of the joint family. He also
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claimed that the plaintiffs had deliberately excluded the daughters and hence, the suit was liable to be dismissed. 8. The plaint was thereafter amended and the daughters were arrayed as defendants 5 to 9. The plaintiffs also included the land bearing Survey No.971/1 that stood in the name of the plaintiff No.1 and Plot No.58/A in Survey No.288/1 that stood in the name of the plaintiff No.1. However, they contended that the said properties were their absolute properties. 9. The defendant No.6 filed a written statement claiming her share in the suit schedule properties. The defendants 5, 7 to 9 adopted the written statement filed by the defendant No.6 and they paid the Court fees to pass a decree regarding their share. 10. The defendant No.1 filed an additional written statement to the amended plaint and contended that the land in Survey No.971/2 was also the property of the joint family and Plot No.58/A in Survey No.288/1 was the joint family properties that was registered in the name of plaintiff
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No.1 and plaintiff No.2 while Plot No.54 in Survey No.288/1 of Gokak was the exclusive property of the defendant No.1. He also claimed that GPC No.49 was also the ancestral joint family property. 11. Based on these contentions, the Trial Court framed the following issues:
1. Whether the defendant Nos.1 to 4 prove the earlier partition in respect of family properties as alleged? 2. Whether the defendant Nos.1 to 4 prove that suit item No.1(13) and II (3) and joint family properties as alleged? 3. Whether the defendant Nos.1 to 4 further prove that suit item Nos.II (1) and (2) are exclusive properties of the defendant No.1? 4. Whether the plaintiffs and defendant Nos.5 to 9 are entitled for the relief of partition as prayed? 5. What order or decree? 12.
The plaintiff No.2 was examined as PW1, who marked Exs.P1 to P22. A witness was examined as PW2, who
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spoke about the family of the plaintiffs and defendants being joint. The defendant No.1 was examined as DW1 and he marked Exs.D1 to Ex.D307. He also examined a witness as DW2, who spoke about the independent source of income of the defendant No.1 and also about the partition of the properties of the family. 13. Based on the oral and documentary evidence, the Trial Court held that suit Items 1 to 12 of Schedule-1 and suit items 1 to 3 of Schedule-3 were properties of the joint family and therefore, declared that the plaintiffs 1 to 4, defendant No.1 and the predecessors of defendants 2 to 4 are entitled to 12/77th share each. The daughters of the propositus were held entitled to 1/77th share each. It declared suit item No.13 of Schedule-1 and suit Item No.3 of schedule-2 were the exclusive properties of plaintiff No.1, and the plaintiffs 2 to 4 and therefore the defendants had no share in them. Similarly, it declared that suit items 1 and 2 of schedule-2 were the properties of the defendant No.1 and that the plaintiffs and defendants 2 to 9 have no share therein. - 13 -
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14. Being aggrieved by the said judgment and decree, the plaintiffs are before this Court. 15. The learned counsel for the plaintiffs contended that it is the case of the defendant No.1 that he had undertaken milk vending business at the age of 23 years and that he had sufficient income in his hands to purchase suit items 1 and 2 of Schedule-2. He contends that except the self-serving statement, the defendant No.1 did not produce any material to establish the said fact.
He contends that the defendant No.1 did not even adduce evidence of a person in the village, who vouched the aforesaid claim. He contends that the defendant No.1 also did not disclose as to when, where and how he had undertaken the milk vending business, how many cows he had, how many liters of milk he sold and the income generated from the said business. He, therefore, contends that this is a self-serving claim made by the defendant No.1 to lay an unlawful claim to suit items 1 and 2 of Schedule-2. He also contends that the defendant No.1 had though constructed a house on suit items 1 and 2 of schedule-2, by raising a loan, the said loan was also
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repaid out of usufructs from the joint family properties. He therefore, contends that the plaintiffs are entitled to an equal share in the suit properties including the properties that stood in the name of the plaintiff No.1, plaintiff No.2 and the defendant No.1. He further contends that though defendant No.1 claimed that there was prior partition in the year 1990, no material was placed before the Court and no circumstances were established to justify the partition. Thus, he contends that the properties of the family were not divided and consequently all the sharers are entitled to an equal share. He also contends that the Trial Court had granted notional shares to the daughters of the propositus, but in view of the judgment of the Hon’ble Apex Court in the case of Vineeta Sharma v. Rakesh Sharma and others reported in AIR 2020 SC 3717, the daughters are also entitled to equal share. In view of the above, the learned counsel contends that the impugned judgment and decree be modified by declaring that the plaintiffs and the defendants are entitled to equal share in all the suit properties and also hold that the daughters are entitled to equal share.
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16. Per contra, learned counsel for the defendant No.1 contended that the total extent of the properties held by the family was about 5 acres and odd, which was not sufficient for all the members of the family to fend for themselves. He further contends that the defendant No.1 had branched out and had undertaken separate business of vending milk from which he earned some income. He contends that DW2 had indeed spoken about the defendant No.1 involving himself in the said business. He contends that it was from this business that the defendant No.1 had purchased suit items 1 and 2 of Schedule-2 and therefore, the Trial Court, after verifying the evidence produced in that regard, had negatived the claim of the plaintiffs for partition in respect of these two properties. He also contends that the defendant No.1 had constructed a house on suit items 1 and 2 of schedule-2 by raising a loan from the Urban Co- operative Bank Ltd., Gokak. He contends that there is no material placed on record to establish that the loan was repaid out of the income from the joint family. Thus, he contends that it was the defendant No.1, who owned suit
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items 1 and 2 of schedule-2 and it was he who had constructed a building thereon by his own hard labour. He, therefore, contends that the Trial Court was justified in not granting any share in the said properties to the plaintiffs and the other defendants. Alternatively, he submits that in the event this Court were to hold that all the properties are the properties of the family, which were acquired out of the funds of the family, then he prays that suit items 1 and 2 of schedule-2 be allotted to his share by adjusting it against his claim in respect of suit item No.13 and suit item No.1 to 3 in schedule-3 of the suit.
The learned counsel fairly submits that in view of the law declared by the Hon’ble Apex Court in the case of Vineeta Sharma (referred supra), the daughters are also entitled to an equal share and that the Trial Court has committed an error in granting them notional share. 17. We have considered the submissions of the learned counsels of the plaintiffs and the learned counsel for the defendant No.1. The points that would arise for our
consideration are:
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i) Whether there was enough evidence before the Trial Court to refuse a share to the plaintiffs and the defendants in suit item No.1 and 2 of schedule-2?
ii) Whether the Trial Court has committed an error in holding that suit items 13 of schedule-1 and item No.3 of schedule-2 were independent properties of the plaintiff No.1 and therefore, whether this Court should exercise discretion under Order XLI Rule 33 of CPC to grant a share in the aforesaid properties?
18. This appeal is restricted only to refusal to grant shares in suit items 1 and 2 of schedule-2 that stood in the name of defendant No.1. It is however, the case of the plaintiffs that the family continued to be joint and that all acquisitions made including item No.13 of schedule-1 and item No.3 of schedule-2 were out of the funds of the joint family. It was therefore, contended that the plaintiffs and the defendants are entitled to an equal share in all the suit properties.
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19. Per contra, the learned counsel for defendant No.1 claimed that suit items 1 and 2 of schedule-2 were the independent properties of the defendant No.1. The relevant portion of the pleadings in the written statement, in this regard is as follows:
“iii) Further this defendant respectively submits that during the life of father- propositus itself he was separated and was/is carrying milk vending business since at the age of 23 and stared earning independently at the age of his 23 year itself. This defendant by his own skill and hard labour by earning money has purchased PlotNo.54 in Sy.288/1 situated at Gokak form its erstwhile owners Dundappa Channappa Pattanshetti and Basayya Channayya Pattanshetti for valuable
consideration under regd. sale deed and on same date he was put in exclusive possession, use and enjoyment of the same and applied for loan for construction of building in said site to Urban Co-op. Bank Ltd. Gokak in the year
1998. The Bank after verifying this defendant milk vending business and on the basis income earned through Milk vending business sanctioned loan of Rs. 1,50,000/- for construction in said property. With sanction of loan hand loans this defendant constructed
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the house and repaid the loan to said Bank by installments till
2002. Therefore above described house is absolutely self acquired property & exclusive possession of this defendant. iv) Further this defendant has also purchased the constructed house with open space bearing plot No.57 out of Sy.No.288/1 for valuable
consideration from its erstwhile owners under Regd. Sale deed on 2/12/1996 and developed the same with own earned money by this defendant, hence said suit properties situated at Gokak are absolutely self acquired properties of this defendant. In fact no properties are acquired with the aid of ancestral property income or with help of any plaintiffs at any time. Neither plaintiffs nor propositus-Mallappa is no way concerned to the above said house properties situated at Gokak. The plaintiffs with an malafide intention to cause hardship and harassment have filed false suit without any rights and laying a claim falsely in the suit house property belonging to this defendant. The suit house bearing Plot No 54 and 57 are absolute and exclusive ownership in possession of this defendant and are his self acquired properties. Both these properties never been treated as
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joint family properties of plaintiffs and defendants as alleged in the plaint.”
20. In support of the above contention, the defendant No.1 marked Exs.D1 and D2, which were the sale deeds dated 23.03.1995 and dated 02.12.1996. He also placed on record Ex.D5, which is a certificate issued by the Gokak Urban Co-operative Bank, Ltd., which shows that the defendant No.1 had raised loan to construct building over the aforesaid two properties. These two properties are now assessed to the tax in the name of the defendant No.1 and the defendant No.1 has paid the tax, which is evident from Exs.D7 to D89. Exs.D90 to D120 are the counterfoils of the challans of Gokak Urban Co-operative Bank Ltd., to show that the defendant No.1 had paid the loan. Exs.D123 to D200 are the electricity bills in respect of the houses constructed over the aforesaid properties. Exs.D201 to D278 are the receipts for having paid the electricity charges. Exs.D279 to D284 are the property tax paid receipts and Exs.D287 is the house opening ceremony card. The plaintiffs did not dispute the fact that the defendant No.1 was in Gokak from the year 1995-96 and onwards. They have not
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explained as to what exactly he was doing in Gokak to eke out his livelihood.
As rightly contended by the learned counsel for the defendant No.1, the total extent of land that was held by the joint family was 5 acres 19 guntas until the suit item No.13 of schedule-1 was purchased in the name of defendant No.1. It is not the case of the plaintiffs that any of the suit items were sold to enable the defendant No.1 to purchase suit items 1 and 2 of schedule-2. DW2 in his cross- examination deposed as follows:
“3. UÉÆÃPÁPÀzÀ°ègÀĪÀ ªÀÄ£ÉAiÀÄ£ÀÄß ªÁ¢ ¥ÀæwªÁ¢AiÀÄgÀÄ PÀÆrUÀ½¹ PÀnÖ¹zÁÝgÉ JAzÀgÉ ¨ÉÃgÉ DzÀ £ÀAvÀgÀ 1£Éà ¥ÀæwªÁ¢UÉ AiÀiÁªÀÅzÉà GvÀà£Àß EgÀ°®è J®ègÀÆ d«ÄãÀÄ ¸ÁUÀĪÀ½ ªÀiÁr vÉUÉzÀ GvÀà£ÀߢAzÀ D ªÀÄ£É PÀnÖ¹zÁÝgÉ JAzÀgÉ ¸ÀļÀÄî. 1£Éà ¥ÀæwªÁ¢ ªÀÄ®è¥Àà£À »jAiÀÄ ªÀÄUÀ JAzÀgÉ ¤d. DvÀ »jAiÀÄ ªÀÄUÀ£ÁVzÀÝjAzÀ DvÀ£À ºÉ¸ÀjUÉ J®ègÀÆ PÀÆr ¤ªÉñÀ£À Rjâ¹ J®ègÀÆ PÀÆr ªÀÄ£É PÀnÖ¹zÁÝgÉ JAzÀgÉ ¸ÀļÀÄî. 4. 1£Éà ¥ÀæwªÁ¢ ºÁ°£À ªÁå¥ÀgÀ¢AzÀ §AzÀ DzÁAiÀÄ¢AzÀ ¥Áèl Rjâ¹ ªÀÄ£É PÀnÖ¹zÁÝgÉ JAzÀÄ ¸ÀļÀÄî ºÉüÀÄwÛzÉÝÃ£É JAzÀgÉ ¸ÀļÀÄî.”
21. DW2, in his cross-examination stood by his claim that the defendant No.1 was vending milk and was earning from which he purchased suit items 1 and 2 of schedule-2. - 22 -
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Ex.D6 is the ration card issued in the name of defendant No.1 at Kadabagatti village, while Ex.D285 is the ration card of plaintiff No.1. In the ration card, which is marked at Ex.D6, the defendant has claimed that he is an agriculturist and that he owns 30 guntas of land. Likewise, the plaintiff No.1 in Ex.D285/ration card has claimed that he is an agriculturist. This also gives an indication that defendant No.1 had stayed away from the family and living independently. 22. However, the claim of the defendant No.1 that the properties were partitioned in the year 1990 in terms of which portions of Sy.Nos.435/2A, 435/2B, 430/3B/2, 435/3B/2 has allotted to the shares of the five sons was not proved by acceptable evidence.
Though the defendant No.1 claimed that he was vending milk and earning income, he did not produce an iota of document to establish it. The defendant No.1 could have produced evidence to show that he used to purchase feed for the cows, any veterinary prescriptions, insurance obtained for the cows, the place where he housed the cows, the customers etc. The least he
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could do was to examine a few customers who could vouch his claim. He did not even mention the number of cows he had, the quantity of milk yield, any account extract to show that he was possessed of sufficient funds, etc. Therefore, it is difficult to accept the claim of defendant No.1 that he had purchased item Nos.1 and 2 of schedule-II out of his own funds. Likewise, the suit item No.13 of schedule-1 was purchased in the name of plaintiff No.1 by availing loan from State Bank of India on 23.03.2015. There is nothing to show that plaintiff not had any source of funds to clear the loan so raised. Therefore, neither the plaintiffs nor the defendant No.1 were able to explain the source of funds to purchase the suit item No.13 of schedule-1 and suit items 1 and 2 of schedule-2. Therefore, the only irresistible conclusion that can be drawn is that suit items 1 and 2 of schedule-2 could have been purchased from out of the nucleus of the joint family. Likewise, suit item No.13 of schedule-1 was purchased out of the nucleus of the joint family. Similarly, suit item No.3 of schedule-2 also could have been purchased out of the nucleus of the joint family. - 24 -
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23.
However, there is credible evidence on record to show that it was the defendant No.1, who had raised a loan from bank to construct a building on suit items 1 and 2 of schedule-2. Therefore, we hold that the evidence before the Trial Court was not sufficient to return a finding that suit items 1 and 2 of schedule-2 was the exclusive properties of the defendant No.1. Likewise, it committed an error in holding suit item No.13 of schedule-1 and suit item No.3 of schedule-2 were the exclusive properties of the plaintiff No.1. Consequently, we deem it appropriate to hold that all the suit properties belong to the joint family, which comprised of plaintiffs and the defendants. 24. As regards the shares of the plaintiffs and the defendants were entitled to, the plaintiff No.4 died during the pendency of the suit leaving behind plaintiffs No.1 to 3, defendant No.1, the branch of defendants No.2, 3 and 4, defendants No.5, 6, 7 8 and 9 who succeeded to an undivided share in all the suit schedule properties. Therefore, the
judgment of the Trial Court declaring that the daughters of the propositus were entitled to a notional share deserves
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interference in view of the judgment of the Apex Court in the case of Vineeta Sharma Vs. Rakesh Sharma & Others1.
25. As regards the relief to which defendant No.1 is entitled to, in view of our finding that he had raised a loan to put up construction on suit items No.1 and 2 of Schedule 2, it is appropriate to direct that while drawing up of final decree, the Court shall as far as possible allot suit items No.1 and 2 of Schedule 1 to defendant No.1 and set-off the claim of the plaintiffs and other defendants against the share of defendant No.1 in other properties. Hence, a) The point No.1 framed is answered and it is held that there was no sufficient evidence to deny a share to the plaintiffs and defendants in items No.1 and 2 of schedule-II. b) The point No.2 is answered and it is held that suit item No.13 of schedule-I and item No.3 of schedule-II were also properties of the family and plaintiffs and the defendants are entitled to an equal share in all the suit schedule properties by exercising power under Order XLI Rule 33 of CPC.
1 (2020) 9 SCC 1
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26. As regards the shares of the daughters, it is held that the daughters are entitled to an equal share as the sons and hence, they too are entitled to 1/10th share in the suit schedule properties.
27. In view of the above, the following order is passed:
ORDER i) The appeal is allowed in part.
ii) The judgment and decree of the Trial Court in so far as it relates to refusing a share in suit items No.1 and 2 of Schedule 2 is modified and it is declared that the sons and daughters of the propositus are entitled to an equal share in all the suit properties.
iii) As a result, all the plaintiffs except plaintiff No.4 and defendants No.1, 5, 6, 7, 8, and 9 are entitled to an equal share viz., 1/10th each. Defendants No.2, 3 and 4 are entitled to 1/10th share together in all the suit properties.
iv) The final decree court shall as far as possible allot suit items No.1 and 2 of Schedule 2 to the share of defendant No.1 and adjust the claim of the plaintiffs and defendants in suit item No.1
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and 2 of Schedule 2 against the share of defendant No.1 in the other suit properties.
v) No costs.
vi) Office is directed to draw a preliminary decree on the above terms.
Sd/- (R.NATARAJ) JUDGE
Sd/- (RAJESH RAI K) JUDGE
RH,YAN,KMS CT:VH List No.: 1 Sl No.: 17