The presumption of joint family property exists unless the self-acquiring party proves acquisition from separate funds, reaffirming the shifting burden of proof.

JUDGMENT :

R.DEVDAS, J.

1. This regular first appeal is filed under Section 96 of the Code of Civil Procedure by the plaintiff whose suit for partition and separate possession was dismissed by the trial Court.

2. For the sake of convenience, the parties shall be referred to in terms of their ranking before the trial Court.

3. The plaintiff Smt. Gangi Mallavva contended that the prepositus of the joint family were Sri Bhimappa and his wife Hanumavva. They had six children. However since the first daughter Smt.Savantravva and her husband Sri Adiveppa died issueless and the first son Sri Tippanna was given on adoption during his childhood and went out to the family, the dispute remains between four of the children and their family members. It is enough to say that claim remains with four branches of the family, namely, Gangavva, Ningappa, Neelavva and Gundappa. The plaintiff is the wife of Gundappa. It is another matter that the plaintiff is also a daughter of Gangavva. The suit schedule property is agricultural land measuring 10 acres 14 guntas in Sy. No. 57/2/1 situated at Siranahalli village, Mundaragi Taluka, Gadag District. After the demise of Sri Bhimappa, the prepositus, his widow Smt. Hanumavva purchased the suit schedule property in the name of one of her sons Ningappa, under registered sale deed dated 05.03.1968, for a sum of Rs.7,000/-. Smt. Hanumavva died on 03.08.1979 and Sri Ningappa, in whose name the suit schedule property was purchased, also died on 16.01.1987. After his demise, his sons Koteppa (defendant No.4) and Sri Goneppa (defendant No.5) got the khata mutated in their name under Mutation Order bearing M.R. No. 20/2010-11. The suit was filed in the year 2019 seeking partition and separate possession of 1/4^th share on the ground that the suit schedule property belongs to the joint family and there being four branches, the suit schedule property has to be divided into four shares. It was contended by the plaintiff that when admittedly Sri Ningappa was only 12 years old when the property was purchased in his name, the children of Ningappa cannot contend that the suit schedule property is the self acquired property of Sri Ningappa. It was contended that Smt. Hanumavva who was the head of the family after the demise of her husband, purchased the suit schedule property from out of the funds belonging to the joint family. It was contended that Smt. Hanumavva had no separate source of income.

4. On the contrary, the suit was contested by defendants No.3 to 5, namely, the wife and two sons of Sri Ningappa. The daughter of Sri Ningappa, namely, Gangavva, defendant No.6 did not contest the matter. Similarly, defendants No.1 and 2, the other children of Gangavva (also sister and brother of the plaintiff) did not contest the suit. Similarly, Smt. Neelavva, defendant No.7, one of the daughters of Bhimappa and Hanumavva, did not contest the suit. Written Statement was filed at the hands of defendants No.3 to 5 contending that although the suit schedule property was purchased in the name of Sri Ningappa, when he was a minor, nevertheless since Hanumavva did not seek such declaration that she is the owner of the property and since the other children of Hanumavva also did not claim any share in the suit schedule property, and since Ningappa, during his lifetime enjoyed the suit schedule property to the exclusion of all the other members of the family and since the revenue entries always stood in the name of Sri Ningappa and thereafter transferred the khatha in the name of his two sons, the suit schedule property is the self acquired property of Sri Ningappa and therefore the same is not available for partition.

5. Based on the pleadings of the parties, the following issues were framed by the trial Court.

ISSUES

1. Whether the plaintiff proves that, she is the member of Hindu Undivided family and the suit schedule property is their ancestral and joint family property and available for partition?

uit schedule property is the self acq