Back
2023 Supreme(Online)(KAR) 14103
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
R.F.A.NO.1172/2010(PAR)
BETWEEN
K N NARESH
S/O NARASAPPA
AGED ABOUT 40 YEARS,
R/A NO.293, 60 FEET ROAD,
SHIVANAGAR, RAJAJINAGAR,
BANGALORE-560010
...APPELLANT
(BY SRI VINAYAKA.B, ADVOCATE)
AND
1 .
SRI NARASAPPA
SINCE DEAD REPRESENTED BY LR'S
1(a) MAYAMMA
ALLEGED TO BE THE
2ND WIFE OF LATE NARASAPPA
AGED ABOUT 58 YEARS
R/O NO.293, 60 FEET ROAD
SHIVANAGAR, RAJAJINAGAR
BENGALURU - 560 010
2 .
SRI K N MAHESH
S/O NARASAPPA
AGED ABOUT 33 YEARS,
2
R/O NO.293, 60 FEET ROAD,
SHIVANAGAR, RAJAJINAGAR,
BANGALORE-560010
3 .
SRI K N NAGESH
S/O NARASAPPA
AGED ABOUT 28 YEARS,
R/O NO.293, 60 FEET ROAD,
SHIVANAGAR, RAJAJINAGAR,
BANGALORE-560010
…RESPONDENTS
(BY SRI N.NANJUNDASWAMY, ADVOCATE
FOR R1(A), R2 AND R3)
THIS RFA IS FILED U/S 96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 05.03.2010 PASSED IN
O.S.5747/2003 ON THE FILE OF THE I-ADDL. CITY CIVIL
AND SESSIONS JUDGE, BANGALORE, DISMISSING THE
SUIT FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 03.11.2022, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
In order to establish that a property is a joint family property, the person asserting must prove that there was a nucleus with which the joint family property could be acquired.
Headnote:
PARTITION - JOINT FAMILY PROPERTY - SUIT FOR - PLAINTIFF CLAIMING SHARE IN SUIT PROPERTY AS A MEMBER OF JOINT HINDU FAMILY - DEFENDANTS DENYING THE CLAIM - HELD, PLAINTIFF FAILED TO PROVE THAT SUIT PROPERTY WAS JOINT FAMILY PROPERTY - SUIT DISMISSED.
Fact of the Case:
Plaintiff filed a suit for partition and separate possession of his 1/4th share in the suit property, alleging that he is a member of a joint Hindu family consisting of himself, his father (defendant 1), and his two brothers (defendants 2 and 3). The defendants denied the plaintiff's claim, asserting that the suit property was the self-acquired property of defendant 1.
Finding of the Court:
The court found that the plaintiff failed to prove that the suit property was a joint family property. The court noted that the plaintiff had not provided any evidence to establish that the suit property was purchased from the joint family nucleus or that the first defendant had acquired the property with his own funds.
Issues: 1. Whether the plaintiff has successfully established that the suit property is a joint family property and he has made contribution for construction of the four shops and four houses in the suit property and thus, he is entitled for share in the suit property as claimed?2. Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference?
Ratio Decidendi: The court relied on the principle that there is no presumption of a property being joint family property only on account of the existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was a nucleus with which the joint family property could be acquired, there would be a presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of the joint family nucleus that was available.
Final Decision: The court dismissed the plaintiff's suit, holding that he had failed to prove that the suit property was a joint family property.
JUDGMENT
1. The present appeal is filed by the plaintiff challenging the validity of the judgment and decree passed in O.S.No.5747/2003 dated 05.03.2010 on the file of I Additional City Civil and Sessions Judge, Bengaluru, whereby the suit of the plaintiff came to be dismissed.
2. Parties are referred to as plaintiff and defendants as per their original ranking before the Trial Court for the sake of convenience.
3. Brief factual matrix for disposal of the present appeal are as under:
Plaintiff filed a suit against the defendants seeking for partition and separate possession of his 1/4 share and also for rendering of the accounts and mesne profits and also for an order of permanent injunction restraining the defendants from alienating, encumbering and creating any charge over the property bearing No.293, situated at 60 feet road, Shivanagar, Rajajinagar, Bengaluru, consisting of four dwelling houses, four shop portions constructed in a site measuring 25x48 feet situated at Shivanagar, Rajajinagar, Bengaluru, bounded on; East by Subbaiah's property, west by road, North by Krishnamurthy's property and South by Gundamma's property (hereinafter referred to as the "suit property" for short).
4. Plaint averments reveals that first defendant Narasappa is the father of the plaintiff and defendant Nos.2 and 3. It is further contended that being the son of first defendant born through his first wife and defendant Nos.2 and 3 are the sons born to the first defendant through his second wife Smt. Mayamma. Plaint averments further reveal that the first defendant originally hails from Kennenahalli village, Bellur Hobli, Nagamangala Taluk, Mandya District and he is the only son of his father Narasaiah. First defendant was married to Smt.Sannamma and from the wedlock, plaintiff was born. Smt. Sannamma passed away during the year 1965 when plaintiff was in tender age and subsequently first defendant married Smt.Mayamma. Out of the wedlock of first defendant and Mayamma, defendant Nos.2 and 3 were born. Thus, plaintiff and defendants constitute Hindu undivided joint family and all are residing in the suit property.
5. It is further contended that the first defendant was working in Bengaluru City Corporation and the family of the first defendant had succeeded to 0.5 acres of land at Kennenahalli village and it is in the continuation joint possession of the plaintiff and defendants. It is further contended that grand father of the plaintiff was an employee working in Mysuru and was getting handsome salary in those days and it is further contended that grand father of the plaintiff retired from his service in the year 1970. It is also contended that first defendant was employee in Bengaluru City Corporation and he was residing in Bengaluru with plaintiff and defendant Nos.2 and 3 and therefore, grand father of the plaintiff after his retirement settled in the suit property. Further it is contended that plaintiff grand father after his retirement, out of his retirement benefits, and out of the income of the Kennenahalli property, purchased the suit site and thereafter construction has been made in the suit property. Therefore, it is case of the plaintiff that the suit property is joint family property.
6. It is also contended that plaintiff joined the service in Education department in Government of Karnataka in the year 1981 and he contributed his salary to the family of first defendant and out of the joint family income of the plaintiff and the first defendant, on the remaining portion of the suit property, the first defendant constructed four shops and one house in the first floor and the plaintiff has spent Rs.90,000/- to Rs.1,00,000/- towards the construction from his own savings and therefore, he has right in the suit property.
7. Further it is contended that he got married in the year 1993, till then he spent his entire earnings for the improvement of the joint family property. He also contended that due to misunderstanding, the plaintiff and his wif
