In a partition suit, the initial burden lies on the plaintiff to prove the existence of a joint family and that the suit properties are joint family assets; mere evidence of relationship or joint living is insufficient to discharge this burden or create a presumption of joint character.

ORAL JUDGMENT

Challenging judgment and decree dated 31.10.2006 passed by Civil Judge (Sr. Dn.) Kudligi, (‘Trial Court’ for short), in OS no.56/2005, this appeal is filed.

2. Sri SS Yadrami, learned Senior Counsel appearing for Girish V. Bhat, advocate for appellants submitted that appeal was by defendants no.1 to 4 in a suit for partition filed by respondents no.1 to 3 herein. It was submitted, in plaint plaintiffs claimed that one Hanumanthappa (propositous) had four sons, namely (1) Chowdappa, (2) Mallappa, (3) Ningappa and (4) Basappa. All of whom had died; but, Chowdappa was survived by four sons namely (1) Dodda Hanumanthappa, (2) Channappa, (3) Sanna Hanumanthappa and (4) Ramanna (defendants no.1 to 4 respectively). While, Mallappa had a son by name Shanmukappa, who was plaintiff no.1, Ningappa was married to Lakshmamma and had a son by name Swamy @ Ramaswamy, who were plaintiffs no.2 and 3. Last son-Basappa had married Basamma (defendant no.5), who was issueless. In plaint, it was stated that suit properties were ancestral joint family properties of plaintiffs and defendants, who had inherited them from Hanumanthappa. After death of Hanumanthappa, Chowdappa acted as kartha of joint family and got mutated revenue entries in respect of joint family properties in his name. That plaintiff no.1 had left village to earn livelihood. In his absence and after death of defendant no.1-Chowdappa, defendants no.3 and 4 had got their names mutated without consent and knowledge of plaintiffs and by taking advantage of absence of plaintiffs in village. Subsequently, defendants alienated 1 Acre 50 cents in favour of third party who was arrayed as defendant no.6. Even said alienation was without knowledge or consent of plaintiffs. Subsequently, as there was dispute between womenfolk, plaintiffs demanded partition and separation of their share in joint family properties. On denial, suit was filed.

3. Despite service of suit summons, defendant no.6 did not enter appearance and was placed ex parte. Defendants no.1 to 5 entered appearance. Defendant no.3 filed return statement denying plaint averments in toto. Said written statement was adopted by defendants no.2 and 4. In his written statement defendant no.3 admitted relationship between plaintiffs and defendants no.1 to 5. However, he specifically denied plaintiffs and defendants constituted a Hindu undivided joint family and after expiry of Hanumanthappa, Chowdappa had acted as kartha and got his name mutated in revenue records in respect of joint family properties. He denied allegation that there was no partition of joint family properties that after death of Chowdappa and defendants no.3 and 4 had illegally got their names entered in revenue records and assertion of plaintiffs that plaintiffs had a share in joint family properties and they having demanded partition and about its refusal by defendants. It was asserted that Chowdappa had married Beemakka and who had four sons, i.e., defendants no.1 to 4 and that during his lifetime Chowdappa had purchased land bearing Sy.no.42, item no.1 of suit schedule under registered sale deed dated 25.07.1940 and as such it was his self acquired property. Recitals in sale deed and encumbrance certificate corroborated same. He further asserted that Chowdappa was in possession and enjoyment of said property from date of purchase till his death. After death of Chowdappa about 15 years prior to suit, property devolved upon defendants no.1 to 4, who succeeded to their estate. As such, defendants no.1 to 4 were only legal heirs of deceased Chowdappa and name o