Back
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Aravind Kumar, E.S. Indiresh, JJ.
R. Ganesh Prasad - Appellant
Versus
G. Raviprasad Major - Respondent
Regular First Appeal No. 637 of 2011
Decided On : 22-07-2020
JOINT FAMILY PROPERTY - Partition - [JOINT FAMILY PROPERTY] - [Section 68 of the Evidence Act, Section 63 of the Indian Succession Act] - The court held that the properties in question were joint family properties and not the absolute and exclusive properties of the first defendant. The court found that the first defendant failed to prove the due and valid execution of the Will and that the properties were self-acquired. The court also found that the second defendant did not have any independent source of income to purchase the property in question and that it was joint family property.
Fact of the Case:
The plaintiffs filed a suit for partition and separate possession of the suit schedule property, claiming that the properties were joint family properties and that they had a share in them. The first defendant denied the claims, asserting that the properties were his absolute properties and not joint family properties.
Finding of the Court:
The trial court decreed the suit in part, holding that the first plaintiff was entitled to a 1/5th share in certain properties and the second plaintiff was entitled to a 1/8th share in the same properties. The defendants appealed the decision.
Issues: The main issues were whether the properties were joint family properties, whether the trial judge had properly appreciated the evidence, and what the final decision should be.
Ratio Decidendi: The court found that the properties in question were joint family properties and not the absolute and exclusive properties of the first defendant. The court also found that the first defendant failed to prove the due and valid execution of the Will and that the properties were self-acquired. The court further found that the second defendant did not have any independent source of income to purchase the property in question and that it was joint family property.
Final Decision: The appeal was dismissed, and the judgment and decree of the trial court were affirmed.
JUDGMENT
E.S.Indiresh, J. - Defendants 1 to 5 being aggrieved by judgment and decree dated 06.01.2011 passed by the III Additional Civil Judge, Senior Division, Mysore in O.S.No.354/2000 have filed this appeal whereunder, plaintiffs suit for partition and separate possession in respect of the suit schedule property has been decreed.
2. For the sake of convenience, parties in this appeal shall be referred to in terms of their status before the trial Court.
3. The factual matrix of the plaint averments are that late H. Ramaprasad had three sons namely Sriyuths Gopal Prasad, Nagaraj R. Ganesh Prasad (defendant No.1) and one daughter Smt.Subhadra. Defendants No.1 and 2 have four children namely Sri Ravi Prasad (plaintiff No.1), Sri Rajesh (Defendant No.3), Smt. Rajeshwari (defendant No.4) and Sri Ramakrishna (defendant No.5). The genealogical tree of Late H.Ramaprasad is as under:
4. The plaint averments indicate that Late Sri H. Ramaprasad had acquired various immovable properties and on his demise, 'A' schedule property devolved on first defendant. It is further contended that properties described in Schedule 'B' was earned out of the income derived from schedule 'A' property; first defendant succeeded to schedule 'A' properties under Hindu partition and succession/survivorship right; defendant Nos. 3 and 5 are younger brothers of plaintiff No.1; first defendant is the proprietor of the business of retail Wine Merchants at Mysore run under the name and style of 'M/s. Ganesh Agencies' and same had been established by investing a sum of Rs.6,500/- which was given to him by his father Sri H. Ramaprasad in the year 1963. First defendant was also running another business as "M/s. Ganeshprasad Whole Sale Wine Merchant" at Mysore and this business was the business of the joint family of plaintiffs and defendants. During the year 1998, defendant No.1 had sold this business to one Sri. Potharaj for a sum of Rs.7,00,000/- and entire sale consideration is also the income of joint family and accountable to the plaintiff's share. Defendant No.3 is also dealing with wine business. Defendant No.5 is a doctor by profession running a clinic at Mysore in the property which is included in the 'B' schedule property of the plaint. Defendants 3 to 5 are all married and defendant No.4 is the daughter of defendants 1 and 2 and they are looking after the families of defendants 3 to 5. The plaint averments further states that fourth defendant's marriage was before 30th July, 1994 and as such, she is not entitled for any share in the joint family of the plaintiffs and second defendant is the wife of first defendant and as such second defendant is also not entitled for any share in the plaint schedule properties.
5. The plaint averments further states that plaintiff No.1 is the patient suffering from various diseases, particularly epilepsy and as such, incurred huge amount for medical purpose. The plaintiffs further state that defendants No.1 and 2 being the parents of the plaintiff No.1 have not taken care of plaintiff No.1 and they have also not settled the life of plaintiff No.1 in a proper manner as they have settled defendants 3 to 5. The grievance of plaintiff No.1 is that defendants 1 and 2 have not discharged their moral and legal liability towards health and prosperity of plaintiff No.1 and as such, they had discriminated the children. It is further stated in the plaint that defendants have also constructed a choultry in 'A' schedule property and defendants No.1 and 2 have assured the plaintiff No.1 that income derived from 'A' schedule property would be given to them, as the plaintiff No.1 is not having any avocation for maintenance of his family and as such, plaintiff No.1 had requested the defendants 1 and 2 to allot 'A' schedule property for which defendants No.1 and 2 have denied the legitimate share of plaintiff No.1. Defendants No.1 and 2 have refused the share of joint family properties to plaintiff No.1. It is further stated in the plaint
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
