Presumption of property acquisition with joint family funds and the impact of a preliminary decree for partition on the joint family status.

JUDGMENT

1. The plaintiff in O.S. No.8523/2002 on the file of the XLIV Additional City Civil and Sessions Judge, Bengaluru, has filed this writ petition challenging an Order dtd. 1/9/2022 passed therein by which the Trial Court rejected an application (I.A. No.21) filed by him under Order XIV Rule 5 of the Code of Civil Procedure, 1908 (for short, 'the CPC') seeking to recast issue No.3 and to frame an additional issue.

2. The suit in O.S. No.8523/2002 was filed inter alia for the following reliefs, in respect of the property bearing No.43/37, 2nd cross, Promnade Road, Frazer Town, Bengaluru, measuring 40 feet x 60 feet.

"(a) Partition and Possession of 1/8th share in the schedule properties by metes and bounds; (a-1) To set aside the alleged family partition dtd. 5/8/1987 and the alleged registered deed dtd.:22/3/1989 which is registered as document No.4394/1988-89, Book No.1, volume No.2830, Pages 1 to 10 registered in the office of the Sub Registrar, Shivajinagar, Bangalore registered on 4/5/1989 and re-open the same and direct 4/5/1989 and re-open the same and direct fresh petition in accordance with law as per clause (a) above." Initially, the suit in O.S. No.8523/2002 was filed by the plaintiff for partition and separate possession of item Nos.1 to 4 properties. The defendant No.2 filed an application in I.A. No.12 for deleting item Nos.1 to 3 properties and the same was rejected by the Trial Court in terms of the Order dtd. 14/3/2019 against which defendant No.2 preferred W.P. No.13289/2019 before this Court, which was allowed by this Court in terms of the Order dtd. 5/10/2021 and consequently, the application of the plaintiff for deletion of suit schedule item Nos.1 to 3 properties was allowed. Thus, the suit was only in respect of suit item No.4 (referred supra) which shall henceforth be referred to as 'suit property'.

3. The plaintiff claimed that the suit property was purchased by the defendant No.2 from out of the funds generated from the joint family properties which was the subject matter of the suit in O.S. Nos.5240/1988 and 154/1989. The plaintiff claimed that after preliminary decree was passed in the said two suits, defendant No.2 had utilized the funds of the joint family and had purchased the suit property in his name and therefore, they were entitled for an undivided share in the suit property.

4. The defendant No.2 contested the suit by claiming that the suit property was his self acquisition and that he had not utilized the funds of the joint family to purchase the same.

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

"1. Whether the plaintiff proves that the suit properties are the joint family properties as pleaded? 2. Whether the contesting defendant proves the family partition referred to in the para 4 of the Written Statement? 3. Whether the contesting defendant proves that the suit item No.4 property is the self acquired property as contended ?

4. Whether the plaintiff is entitled for the 1/8th share in the suit schedule property ? 5. To what relief?" Additional Issues: "1. Whether the suit is not maintainable for the reasons stated in para 3 of the written statement?

2. Whether the suit is barred by principles of res judicata?" Amongst the issues so framed, on an application in I.A. No.18 filed by the defendant No.2, issue Nos.1 and 2 and additional issues were struck off by the Trial Court in terms of the Order dtd. 21/7/2022 and issue No.3 was modified as follows: "Whether the Plaintiff proves that the 2nd defendant purchased the suit schedule property by utilizing the joint family funds ?"

6. Based on these issues, the plaintiff adduced his evidence and was cross-examined. Later, when the case was listed for evidence of the defendants, the plaintiff filed an application under Order XIV Rule 5 of the CPC., to recast the issue No.3 and frame an additional issu