The principle that properties purchased by a Kartha in his name are deemed to be out of the joint family nucleus if the joint family possessed adequate properties capable of generating enough income.

JUDGMENT :

R. NATARAJ, J.

1. This Regular Second Appeal is filed by defendant No. 2 in O.S. No. 98/2009 challenging the judgment and decree dated 11.04.2011 passed by Prl. Civil Judge (Junior Division) Srirangapatna (henceforth referred to as ‘Trial Court’) partitioning the suit properties which was confirmed by Prl. Senior Civil Judge and JMFC, Srirangapatna (henceforth referred to as ‘First Appellate Court’) in R.A. No. 31/2011 in terms of the judgment and decree dated 13.01.2016. Both the Courts held that the plaintiffs were entitled to 11/180th share in the suit schedule properties.

2. The parties shall henceforth be referred as they were arrayed before the Trial Court.

3. It was claimed by the plaintiffs that Giddayyana Dyavaiah was the propositus of a joint family comprised of Dyavarasaiah, the husband of plaintiff No. 1 and father of plaintiff No. 2 as well as defendants No. 2 to 9. The plaintiffs claim that the suit schedule properties were the ancestral and joint family properties. They contended that Dyavarasaiah died on 27.06.1996 leaving behind the plaintiffs and defendant No. 1 as his Class-I heirs. The request of the plaintiffs to partition joint family estate was turned down by the defendants which compelled them to file a suit for partition and separate possession of their undivided share.

4. The suit was contested by defendant No. 2, who admitted the relationship. He, however, contended that he and his parents were living separately prior to 27.06.1996, in view of certain misunderstanding in the family. He claimed that he was doing independent business and was earning his livelihood without the assistance of the joint family properties. He claimed that he had purchased the suit property bearing Items No. 3, 16 to 18, 20 and 22 out of his own earnings by borrowing money and from financial aid from his parents-in-law. He, therefore, claimed that the suit in respect of the aforesaid properties be dismissed. He also claimed his share in the joint family ancestral properties excluding Items No. 3, 16 to 18, 20 and 22.

5. Based on the above contentions, the Trial Court framed the following issues:

(i) Whether the plaintiffs prove that the suit schedule properties are ancestral and joint family properties themselves and the defendants?

(ii) Whether the defendant No. 2 proves that the suit schedule properties i.e. item Nos. 3, 16, 17, 18, 20 and 22 are the self acquired and independent properties of himself?

(iii) Whether the plaintiff is entitled for the relief as sought for?

(iv) What order or decree?

6. The plaintiff No. 1 was examined as PW-1, who marked documents as Exs.P1 to P25, while the defendant No. 2 examined himself as DW-1 and marked documents as Exs.D1 to D17. He also examined two witnesses as DWs. 2 and 3.

7. Based on the oral and documentary evidence, the Trial Court held that except the oral testimony of DWs. 2 and 3, the defendant No. 2 did not place on record any material to establish that he had a separate income without the aid and assistance from the joint family property. It also held that since the defendant No. 2 had admitted his relationship with the plaintiffs, in the absence of any material to establish that the suit Items No. 3, 16 to 18, 20 and 22 were the absolute properties of the defendant No. 2, the plaintiffs were entitled to undivided share, and therefore, decreed the suit and declared that the plaintiffs were entitled to 11/180th share in the suit schedule properties.

8. Being aggrieved by the aforesaid judgment and decree, the defendant No. 2 filed an appeal insofar as it related to the properties bearing Items No. 3, 16 to 18, 20 and 22.

9. The First Appellate Court secured the records of the Trial Court, heard the counsel for the parties and after considering the material on record, framed points for consideration and in terms of its judgment and decree dated 13.01.2016 dismissed the appeal. While doing so, the First Appellate Court rejected an application filed by defendant No. 2 under Order