IMPORTANT POINT
Person who claims that property standing in name of a member of joint family is purchased out nucleus by joint family property has to prove existence of such joint family property.

Mrs. K.S. Mudagal, J.—This first plaintiff’s appeal arises out of judgment and decree dated 19.01.2011 passed by the XXII Additional City Civil Judge, Bengaluru in O.S. No. 6906/2006. By the impugned judgment, the trial Court has dismissed the suit of the appellant/plaintiffs for partition and separate possession of their legitimate share in the suit schedule property, for mesne profits and for permanent injunction against the defendants from interfering with the possession of the properties of their shares.

2. For the purpose of convenience, the parties will be referred to hereafter with their ranks before the trial Court. The subject matter of the suit is site bearing old No. 10, new Municipal No. 15/1 PID No. 82-41-15/1 situated at LBS Nagar, 3rd Cross, Indiranagara, Bengaluru measuring 20 x 30 feet with a building situated thereon.

3. The plaintiffs case in brief is as follows:

The plaintiffs and defendants No. 2 and 3 are the sons and daughters of first defendant. Plaintiffs, defendants and their father J.V.Somanath constituted joint family and J.V.Somanath was the kartha of the joint family. They owned ancestral property bearing Sy. No. 233/1B situated at Irunampattu village, Vaniyambadi Taluk, Thirupathur Sub Division, Tamilnadu measuring 4.11 cents. J.V. Somnath was employeed in KSRTC as driver. He purchased the suit site on 29.11.1969 in the name of first defendant out of the income of the joint family property and his own salary income. Their father and themselves sold the ancestral property on 13.03.1986 and out of the said sale proceeds and the other joint family income, they constructed the suit house. The first defendant was managing the suit schedule property and off late, she started to mismanage the property. They issued notice to the first defendant demanding for their share in the suit schedule property, which is not complied. Thus the suit.

4. The defendants filed their written statement. The gist of the same is as follows:

It is denied that the suit schedule property was purchased out of the alleged income of the joint family and defendant No. 1 was only a name lender purchaser. It is also denied that there was any income from any joint family properties. Though J.V.Somanath was employed as driver in KSRTC, he was very unsteady in the service and he used to abscond frequently. Ultimately he disappeared since 26.02.1996. Due to such conduct of J.V.Somanath, the first defendant shouldered the responsibility of the family. She maintained the family by doing tailoring work and saree vending business and she acquired the suit property out of such income. Thus, she is the absolute owner of the suit schedule property. As the second defendant suffered physical disability due to accident and out of her love for defendants No. 2 and 3, the first defendant has gifted the suit schedule property to them. The suit is hit by theprovisions of Benami Transactions (Prohibition) Act, 1988 and not properly valued and the Court fee paid is insufficient.

5. On the basis of the above pleadings of the parties, the trial Court framed the following:

Issues:

1. Whether the plaintiffs prove that the suit property is joint family property having acquired in the name of defendant No. 1 out of joint family funds ?

2. Whether plaintiffs have a share in the suit property?

3. Whether plaintiffs are entitled for mesne profits ?

4. Whether plaintiffs are entitled for permanent injunction sought for?

5. Whether Court fee paid is insufficient?

6. Whether defendant No. 1 proves that suit property is self acquired property of defendant No. 1 ?

7. Whether defendants prove that registered gift deed dated 04.05.2006 is valid?

8. Whether defendants prove that the suit is hit by Benami Transactions Prohibition Act?

9. What Decree or Order?

6. In support of their case, the first plaintiff got examined as PW-1 and got marked Exs.P.1 to P.6. The defendants did not lead any evidence.

7. The trial Court after hearing both sides, dismissed the sui