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2019 Supreme(Kar) 1418
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
ALOK ARADHE, P.G.M. PATIL, JJ.
Smt. Phulavati W/o Manohar Upadhye & Ors. - Appellants
Versus
Prakash S/o Yashwant Upadhye & Ors. - Respondents
R.F.A. No.743 of 2007 C/w R.F.A. Crob No.2 of 2008
Decided On : 11-11-2019
For the Appellant :Sri. Sangram S. Kulkarni, Advocate.
For the Respondent:Smt. Hemalekha K.S., Advocate, Sri. R.V. Itagi, Advocate, Smt. Hemalekha K.S. & Sri. R.M. Kulkarni, Advocate for Sri. G.B. Balakrishna Shastry, Advocate, Sri. Shivaraj Ballolli, Advocate, Sri. K.M. Nataraj, Advocate, Sri. Basavaraj Mekki, Advocate, Sri. G.R. Anandanimath, Advocate.
Headnote:
Plaintiff against judgment and decree by which suit filed by appellant/plaintiff hereinafter referred as to as plaintiff seeking relief of partition and separate possession has been partly decreed - Being aggrieved by aforesaid judgment and decree trial Court defendant has filed cross-objections - Since common question of law and facts arise for consideration in this appeal as well as cross-objection they were heard analogously and are decided by this common judgment - whether the plaintiff is entitled to share in the properties listed at Schedule ‘A’, Schedule ‘B’ in schedule ‘C’ Schedule ‘E’ in Schedule ‘F’ and entire property in Schedule ‘G’, in view of Section of Hindu Succession Act - Whether defendant has been able to prove that suit properties as mentioned in Schedule ‘A’ to ‘E’ annexed to plaint are his self-acquired properties of the defendant and deceased - Held, It well settled legal proposition that joistless joint family does not lead to presumption that property held by any member of family is joint and burden rests upon person asserting that any item of property was joint - But if joint family has sufficient nucleus from and out of which said property could be acquired burden shifts to member family that property has been acquired without assistance from joint family - expression partnership property’ has been defined in Section Indian Partnership Act includes all property and interests in property originally brought from stock of firm all property and rights and interests in property acquired by purchase otherwise by or for firm in course of business firm good-will of business - Section Indian Partnership Act deals with concept of application property of firm - It lays down that property firm may be held and used by partners Firm exclusively for business of firm - Property mentioned in Schedule contains of movable properties containing gold and silver ornaments and articles - Trial court has not assigned any finding for not awarding share to plaintiff in aforesaid properties mentioned in Schedule - Aforesaid properties have been acquired from funds of joint family and therefore plaintiff and defendants number are entitled for their share share each in aforesaid property which belongs to joint family – Appeal disposed
JUDGMENT :
This appeal has been filed under Section 96 of the Code of Civil Procedure, 1908, by the plaintiff against the judgment and decree dated 14.11.2006 by which the suit filed by the appellant/plaintiff (hereinafter referred as to as ‘the plaintiff’) seeking the relief of partition and separate possession has been partly decreed. Being aggrieved by the aforesaid judgment and decree of the trial Court, the defendant No.9 has filed cross-objections. Since common question of law and facts arise for consideration, in this appeal as well as cross-objection they were heard analogously and are decided by this common judgment.
2. The geneaology showing the relationship of the plaintiff and the defendants is as under:
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| Yashwant (died on 18.02.1988 Champabai (Deft.No.8 | ||||||
| Annasabheb (died on 6.9.1988) | Prakash (D-1) | Pramila (D-10) | Pulavati (Pltf) | Veenutha (D-9) | Pusha (D-11) | Vijaymala (D-12) | |
| Vasanti (D-4) | Mahaveer (D-2) | Prithviraj (D-3) |
| ||||
| Vishwajit (D-5) | Veeradhawal (D-6) | Vidhya (D-7) | |||||
3. Facts giving rise to filing of this appeal are that one Yeshwant S/o Chandranath Upadhaye was adopted by Sunanda Bai, who had lost her husband in the year 1930 and had inherited moveable and immoveable properties situate at Angol. Admittedly, the aforesaid Yeshwant died on 18.02.1988 leaving behind his widow, daughters, sons and grand-children. The eldest son of late Yeshwant namely Annasaheb died leaving behind his widow, two sons and a daughter who are arrayed as defendants No.4 to 7 in the suit. The second son namely Prakash is defendant No.1 and his two sons namely Mahaveer and Prithviraj are defendants No.2 and 3. The plaintiff and defendants No.9 to 12 are the daughter of late Yeshwant, whereas defendant No.8 is the widow of late Yeshwant who expired on 14.08.1998 after the institution of the suit. It is the case of the plaintiff that on the death of late Yeshwant, the suit schedule properties, the particulars of which have been described in Schedule ‘A’ to Schedule ‘G’ annexed to the plaintiff devolved on the plaintiff and the defendants. It was pleaded that the aforesaid properties are being held jointly by the plaintiff and the defendants and there has been no partition. It was further pleaded that the plaintiff has got 1/7th share in the schedule properties, whereas defendants No.1 to 3 together have got 1/7th share each in all the suit schedule properties except the property bearing CTS No.3421 mentioned in Schedule ‘A’ in which the plaintiff has got 1/28th share. It was also pleaded that the aforesaid property was jointly purchased by defendants No.13 to 15 and late Yeshwant Upadhaye by a registered sale deed dated 22.05.1995 and defendants No.13 to 15 have got 1/4th share each and late Yeshwant Upadhye has got 1/4th share. Thus, the plaintiff has got 1/28th share in CTS No.3241.
4. It was also pleaded that after the death of Yeshwant Upadhaye, the plaintiff requested defendant No.1 and deceased Annasaheb to enter her name as a co-owner in respect of the suit schedule properties. However, the plaintiff learnt that defendant No.1 and late Annasaheb got their names entered in the records in respect of the suit properties. It was averred that the defendant no.1 and late Annasaheb wanted to deprive the plaintiff of her legitimate share. The plaintiff also requested defendants No.1, 5 and 6 to effect partition in respect of the suit schedule properties. However, they refused to accede to the prayer made by the plaintiff. Thereupon, the plaintiff filed the suit, on or about 20.01.1992, seeking the relief of partition and separate possession in respect of her 1/7th share in the suit schedule properties except the property bearing CTS No.3241 mentioned in Schedule ‘A’.
5. The defendants No.1 to 8 filed the written statement in which the averments in the pla
