COMMON JUDGMENT

A. The Appeals:

These Appeal Suits and Cross Objection arise out of the common judgment and decree, dated 04.08.1997, passed by the learned Subordinate Judge, Hosur in O.S.No.471 of 1996 and in O.S.No.141 of 1996 and as such, are taken up for disposal together by this Common Judgment.

B. The brief facts leading to the litigation are :

2. (i) One Ramayya, Lakshmanayya and Narayanappa were brothers. Their parents died at a very young age. Ramayya, the eldest in the family was the kartha of the family. It is admitted that suit ‘A’ Schedule properties are their ancestral properties. ‘B’Schedule properties are purchased in the name of Ramayya, the Kartha. ‘C’Schedule properties are purchased in the name of his son, Ellappa. The siblings, lived truly as a Joint Hindu Undivided Family, for a long time and finally, a dispute arose in the year 1991 – 1992, when properties were purchased in the name of Ellappa, son of Ramayya, the Kartha, when they were all aged more than

70 years.

(ii) The three brothers agreed that the partition be effected by appointing Panchayatars and a Muchalika was also written on 16.06.1992 to leave the disputes to their decision.

(iii) It is at this stage, the elder brother Ramayya, the Kartha of the family, filed O.S.No.471 of 1996 (Originally O.S.No.326 of 1992) by stating that 'A' Schedule properties alone are the joint family properties and he, as a kartha, is managing the same and his brothers should not interfere in his managerial rights and other properties, namely, 'B' Schedule properties are his self-acquired properties by running the business of selling goats and the brothers have no right in the same and hence claimed for a permanent injunction. In the said suit, while the younger brothers filed a written statement while admitting the position as to 'A' Schedule property, it is claimed by them that other properties are also joint family properties having been purchased out of the joint family nucleus.

(iv) Thereafter, the younger brothers Lakshmanayya and Narayanappa filed a Suit in O.S.No.141 of 1996 (originally O.S.No.226 of rd

1993) for partition and separate possession of 2/3 share in the 'A' Schedule properties which are ancestral properties, 'B' Schedule properties which are properties standing in the name of Ramayya, the Kartha, purchased out of the joint family nucleus and enjoyed in common, 'C' Schedule properties which are standing in the name of the son of the Kartha, R.Ellappa, purchased out of the joint family nucleus and enjoyed in common.

(v) The said suit is resisted by the elder brother Ramayya and his son Ellappa by stating that 'B' and 'C' Schedule properties are their self- acquired properties purchased from the income out of the business of selling goats by the said Ramayya and buying and selling bullocks by the said Ellappa.

(vi) Thus, it can be seen that the narrow compass of the dispute to be determined between the parties is as to whether 'B' and 'C' Schedule properties are purchased out of the joint family nucleus and hence will be available for partition?

C. The Issues and the Trial:

3. The Trial Court framed six issues each in both suits essentially revolving around the above question and were taken up together for joint trial.

3.1 The Youngest brother Naryanappa was examined as P.W1, and one Sanjevappa, Mottappa and Muniappa were examined as P.Ws.2 to 4 and Exs.A-1 to A-4 were marked. The Elder brother Ramayya was examined as D.W.1 and Ellappa was examined as D.W.2. One Munivenkatappa and Muniamma were examined as D.Ws.3 and 4. Exs.B-

1 to B-15 were marked on their behalf.

D. The Findings of the Trial Court :

4. Thereafter, the Trial Court proceeded to consider the case of the parties and held that the case of the elder brother that immediately after the marriage, his younger brothers got separated from the family and went to their in-law's house, was not believable, since the same was not part of the pleading and secondly, his own averments that he only performed the mar