Back
KARNATAKA HIGH COURT
Ram Mohan Reddy, J.
Vasantha P. Suvarna —Appellant
versus
Smt. Vasanthi Suvarana and Ors. —Respondents
Regular Second Appeal No. 995 of 2009
Decided on 1.3.2014
For the Appellant:Sri Bipin Hegde and Sri K. Manjunath, Advocates.
IMPORTANT POINT
Proof of existence of a joint family does not lead to presumption that it possess joint property.
Headnote:(i) Hindu Law—Joint Family Property—Joint and undivided family is normal condition of Hindu Society—An undivided family is not only joint in estate but also in food and worship—Existence of joint estate is not essential requisite to constitute a joint family and a family which does not own any property may nevertheless be joint—Presumption of union is the greatest in case of father and sons—Strength of presumption necessarily varies in every case—But presumption is strong in case of brothers. (Para 7(i))
(ii) Hindu Law—Partition—Proof of existence of a joint family does not lead to presumption that it possess joint property—Property held by a member of a joint family cannot also be presumed to be joint family property—In a suit for partition, a party who claims that any item of suit property is joint family property, burden of proving that it is so, rests on party who asserts it—However, in a case where it is established that joint family possessed some joint property which from its nature and relative value may have formed the nucleus from which property claimed to be joint family property may have been acquired, presumption arises that it was joint family property and burden shifts to party alleging self acquisition to establish affirmatively that property was acquired without aid of joint family—When at the date of acquisition of a particular property, joint family had sufficient nucleus for acquiring it, property in name of any member of joint family should be presumed to be acquired from out of family funds and was to form part of joint family property unless contrary is shown. (Para 7(ii))
(C) Hindu Law—Partition—Where there was no partition in family, fact that anyone of members of family enjoyed these properties would not be construed as adverse to other members of family there being no overt act of ousting other members and enjoyment of properties to exclusion of other family members. (Para 7(iii))
Result: Second Appeal dismissed.
Ram Mohan Reddy, J.—This is plaintiff’s second appeal calling in question concurrent findings of fact of the Trial Court and that of the lower Appellate Court to dismiss the suit.
2. Plaintiff instituted O.S. No. 61 of 2005 on the file of the Principal Civil Judge (Senior Division), Udupi on 1.6.2005 for declaration, partition and separate possession of the suit Schedules ‘A’ and ‘B’ properties, being agricultural lands with tiled house, fruit bearing trees and a well, arraigning respondents as defendants. According to the plaintiff, his mother by name Ummakka and his father by name Pijina Poojary had two sons, the plaintiff and the husband of first defendant, since deceased. The suit Schedule ‘A’ property is said to have been purchased in the name of the mother who was in actual possession and enjoyment, while the plaintiff being her younger son looked after her and being in possession and enjoyment made improvements over the said property. The mother is said to have died on 11.7.1990, intestate, leaving behind the two siblings, while the deceased brother had left to Mumbai during his younger days. Plaintiff being younger of the siblings stayed back and tended to the immovable property. It is alleged that the defendants being none other than the widow and children of the deceased brother Leeladhar P. Suvarna came to plaintiff’s residence during second week of November 2004 and asked him to vacate the premises and on enquiry it revealed that plaintiff’s brother had his name recorded in the RTC pahanis in respect of ‘A’ Schedule properties on the basis of a registered settlement deed dated 13.1.1969 executed by the mother. On the said information, plaintiff got issued a lawyer’s notice to his brother on 1.12.2004 which was responded to by a reply denying the assertions. Thereafter wards, it is claimed that the plaintiff’s brother sold a portion of ‘A’ Schedule property to 5th defendant on 26.6.2002 alleging that the gift/settlement deed executed by the mother in favour of plaintiff’s mother was illegal, fabricated and not binding on the plaintiff, as he was entitled to one half share, instituted the suit.
3. The suit was not resisted by filing written statement of the defendants, who despite service of summons, remained absent and placed ex parte.
4. Plaintiff was examined as PW1 and marked Exs.P1 to P22. The Trial Court framed points for consideration and having regard to the material on record, more appropriately the fact that there was neither pleadings nor proof of purchase of ‘A’ Schedule property in the name of Ummakka out of joint family income, nor a challenge to the settlement deed dated 13.1.1969 executed by his mother in favour of his brother nor material to establish the allegations of fabrication and forgery of documents, declined to accept the contentions of the plaintiff. In addition the contention that the continuation of the name of the plaintiff’s mother in the revenue records till the year 2001 hence the settlement deed dated 13.1.1969, was not binding on the plaintiff, was not accepted to return findings in the negative over the points for consideration. The suit was accordingly dismissed by judgment and decree dated 19.4.2008.
5. R.A. No. 32 of 2008 filed by the plaintiff before the District Judge, Udupi was dismissed by judgment and decree dated 20.3.2009 on a re-appreciation of the material on record to concur with the reasons, findings and conclusion arrived at by the Trial Court.
6. Having heard the learned Counsel for appellant, the submission, that, since defendants were placed ex parte, the plaint averments having remained unchallenged the plaintiff was not required to prove that the suit schedule property was the joint family property. This submission in the fact, circumstance and evidence on record, cannot be countenanced.
7. The principles of law relating to Hindu joint family and joint family property may be summarised thus:
“(i) The legal position is that the joint and undivided family
