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2007 Supreme(Kar) 375
2007(5) Kar. L.J. 292
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
H.V.G. RAMESH, J.
K.S. BASAVARAJAPPA AND ANOTHER - Appellants
Versus
VEERABHADRAPPA - Respondent
Regular First Appeal No. 678 of 1996
Decided on : 2nd July, 2007
Advocate appeared
Sri G.L. Vishwanath, Advocate for Appellants;
Sri M.V. Hiremath, Advocate for Respondent.
Headnote:Hindu Law - Partition - Whether there is severance between member of joint family members - Is a question of fact to be members - Is a question of fact to be determined on reviewing all attendant - circumstances. Held : In so far as conduct of the parties are concerned, together there was a real partition or not, as noted in the order of the trial court, the properties are substantially shared between the plaintiff and defendant and secondly, some of the properties which have fallen to the share of Ningamma the mother of the parties is also said to have been sold by the plaintiff and that aspect has not been disputed and depicting the fact of partition there are some revenue entries made in respect of the properties. More over, there is separate messing and separate living of this plaintiff and defendant According to the defendant after partition in the year 1963, he left Kodiyala Village and stayed at Hosa Agrahara and he is also said to have built a house and also acquired some properties out of the income from the hotel and kirana shop which he was running. Even the plaintiff does not dispute the fact of defendant running a kirana shop and a hotel. The trial court having noted several transactions and the manner in which they have taken place, has rejected the claim of the plaintiff. As noted by the Apex Court and also by this Court, the question whether there is severance between the other members is one of the fact to be determined on reviewing of all attendant circumstances. In the case on hand, as rightly noted by the trial court all the attendant circumstances are in favour of the defendant to show that there is a partition in the year 1963 and it appears to be in the form of an oral partition as there are no documents produced. Corroborating the said aspect, the conduct of the parties as well as the equal division of the properties formed the basis for the trial court to hold that there is partition. There is no illegality or error committed bX the trial court in arriving at the conclusion in dismissing the suit of the plaintiff.
Cases Referred: AIR 1953 SC 235; 1985 (2) KLJ 312; AIR 1967 SC 1124; AIR 1966 SC 405.
Partition - Severence - Seperate living of members and enjoyment of property seperately - May be taken into consideration for infering amicable settlement - But it is not conclusive. Dilatory settled principles : It is open to the members of the coparcenary to arrange amicably separate possession and enjoyment of the family properties without effecting partition or disruption of the joint family, but at the same time whether co-owners in exclusive possession of different portions of joint family property held the same in partition or under an arrangement as to the possession, depends upon the intention of the parties which has to be gathered from the facts and circumstances of the case. Where direct evidence of intention is available there is no difficulty in determining the question. In cases where such direct evidence of intention is wanting the fact that the members have been living separately and enjoying the properties separately may be taken into consideration in arriving at the conclusion but that is not conclusive. [1985 (2) Kar. L.J. 312].
Cases Referred: AIR 1953 SC 235; 1985 (2) KLJ 312; AIR 1967 SC 1124; AIR 1966 SC 405.
This appeal is against the judgment and decree passed by the Civil Judge and Judicial Magistrate First Class, Hunsur, in O.S. No.8 of 1993.
2. The suit is filed for partition and possession by the plaintiffs in respect of the properties comprised of land, house and moveable articles. The 1st plaintiff is the younger brother and 2nd plaintiff is the elder sister of the defendant against whom the plaintiffs joined together, filed a suit for partition and possession. It is stated that their father died 35 years ago and that the suit properties are the joint-family properties and they are in joint possession, and that defendant is trying to alienate the suit schedule property despite the attempt made by the plaintiffs to effect partition and since defendant did not accede to the request, the suit is filed.
3. In the written statement filed by the defendant, it is his specific case that during 1963 itself there was a partition effected between the two brothers and at that time 1 acre of land was gifted to the 2nd plaintiff on 26-9-1963 jointly executed by both the parties as such, she is not entitled for a share and the 2nd plaintiff got married in the year 1959 itself. After partition, the defendant is said to have migrated to Hosa Agrahara from Kodiyala and subsequently acquired plaint Band C Schedule properties. Even according to the defendant, the plaintiff also sold 1.10 acres of land allotted to the share of the mother Ningamma in the year 1965. Stating that four items of properties were allotted to him at Kodiyala, Bommenahalli and Doddavaddragudi to an extent of about 8.08 acres and that 1st plaintiff has been allotted nearly 11 acres of land at Kodiyala and Somanathapur Village and there was also division of movables and cattle and also a house property has been divided among the brothers.
4. The Trial Court based on the pleadings raised as many as five issues. On behalf of the plaintiffs, six witnesses have been examined and on behalf of the defendant, the defend apt himself got examined and two of the witnesses were examined on his behalf and several documents were got marked. The Trial Court based on the material evidence on record, has dismissed the suit of the plaintiffs holding that there was a prior partition during 1963 and that the 2nd plaintiff has got 1 acre of land by way of gift towards her share. Being aggrieved by the same, this appeal is by the plaintiffs on various grounds.
5. Heard the Counsel for the appellants and the Counsel representing the respondent. .
6. Counsel for the appellants/plaintiffs submitted that mere enjoyment of some property separately does not amount to partition. Even after the alleged partition in the year 1963, some of the properties were sold in the joint name of the 1st plaintiff and defendant which goes to show that there was no such partition between the brothers and as a matter of arrangement, some properties are enjoyed by the plaintiff and some other properties are enjoyed by the defendant but, that by itself will not constitute a partition. It is also contended nowhere it is suggested to the witnesses of the plaintiff and the plaintiff regarding 1963 partition as such, defendant has not made out a case as regards partition between himself and the plaintiff and as per the legal position, among brothers presumption is always towards jointness and there was heavy burden on the defendant to prove the partition of the year 1963. Neither any material evidence is produced nor any witness who are parties to the panchayat have been examined in this regard and accordingly submitted, even out of the property which was being sold, some other properties were subsequently acquired and that the Trial Court has erred in forming a presumption on its own to make out a case for the defendant and in dismissing the suit.
7. In support of his argument, learned Counsel has relied upon the case of M/s. Trojan and Company v RM. N.N. Nagappa Chettiar, to contend that the decision of a case cannot
