IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.F.A.No.1080/2010 BETWEEN:
BALAIAH S/O ROSAIAH AGED 37 YEARS REIDING AT No.1989, 1ST CROSS, OPP: PAI BUILDING CHANDRASHEKAR LAYOUT RAMAMURTHYNAGAR, BANGALORE – 560 016. ...APPELLANT (BY SRI JAVEED S, ADVOCATE) AND:
1. SRI ROSAIAH SINCE DEAD BY LRs.
2. SMT. KONDAMMA W/O ROSAIAH AGED 52 YEARS.
3 . SRI VENKATA PRASAD S/O SRI ROSAIAH AGED 30 YEARS.
4. SRI SRINIVASALU S/O SRI ROSAIAH AGED 28 YEARS.
5. SRI VENKATAKRISHNAIAH S/O ROSAIAH AGED 26 YEARS ALL ARE RESIDING AT No.450, GANDHIJI ROAD, RAMAMURTHYNAGAR BANGALORE - 560 016. …RESPONDENTS (BY SRI DAYANANDA K G, ADVOCATE FOR R2 R-1, R-3, R-4 AND R-5 ARE SERVED-UNREPRESENTED) THIS RFA IS FILED U/S 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED:05.03.2010 PASSED IN OS. No.5219/2008 ON THE FILE OF THE XXXVIII-ADDL. CITY CIVIL JUDGE, BANGALORE, DISMISSING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.
THIS RFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Appeal is directed against the judgment and decree dated 05.03.2010 passed by the learned XXXVIII Additional City Civil and Sessions Judge, Bangalore City, in O.S.No.5219/2008 2. Suit for partition and separate possession of his 1/5th share in the suit schedule property and for mesne profits filed by the plaintiff in O.S.No.5219/2008 came to be dismissed on 6.3.2010. Being aggrieved of the said judgment and decree, the plaintiff is before this court in this appeal.
The schedule property is all the piece and parcel of the site No.10, Katha No.88/10, property No.88 measuring East-West on northern side 44.0 feet, on southern side 39.0 feet and North to South: 18 ½ feet situated at Kowdenahalli village, now Ramamurthy Nagar, K.R. Puram, Hobli.
3. In order to avoid confusion and overlapping, the parties are addressed in accordance with their rankings and status before the trial court.
4. The suit as it stands was filed by one Sri.
Balaiah against Sri. Rosaiah, Smt. Kondamma, Sri. Venkata Prasad, Sri.Srinivasalu and Sri. Venkata Krishnaiah. 1st defendant is the natural father of the plaintiff and 2nd defendant –Kondamma is the second wife of 1st defendant, as such, the step mother of the plaintiff. Insofar as 3rd, 4th and 5th defendants are concerned, they are the sons of 1st defendant through his second wife Kondamma. That pre supposes that 3rd, 4th and 5th defendants are step brothers of the plaintiff.
5. The contention of the plaintiff before the trial Court is that, plaint schedule property is the joint family property and plaintiff is in joint possession and enjoyment of the property and accordingly, he is entitled for 1/5th share in the same reckoning that he is the only son born though one late Thirupathamma. At this stage, it is necessary to mention that the said Thirupathamma, the natural mother of the plaintiff reported dead during the year 1974 when the plaintiff was two years old and 1st defendant married for the second time during the year 1978 and 3rd , 4th and 5th defendants were born through the wedlock between 1st defendant and 2nd defendant-Kondamma. The further contention of the plaintiff is that, 1st defendant is his father, defendants and plaintiff constitutes members of undivided Hindu family.
6. The defendants denied the contentions of the plaintiff by filing written statement.
7. The learned trial Judge was accommodated with the oral evidence of plaintiff-Balaiah as PW1 and evidence of Kondamma as DW1. The documentary evidence that were produced on behalf of plaintiff are Exs.P1 to P15 and oral.
8. The learned counsel Sri.Javeed S., appearing for appellant would submit that the admitted facts themselves prove the existence of the joint family. The present suit schedule property was purchased on 27.9.2001 in the name of 2nd defendant. Regard being had to the fact that it remains as joint family property. Learned counsel would further submit that there was sufficient nucleus for the family to purchase the schedule property during the year 2001. In this background, learned counsel would submit that on 21.05.2001 as per Ex.P2 the property that belonged to the entire joint family was sold for a consideration of Rs.90,000/- and that stood in the name of defendants 1 and 2. However, on 27.9.2001, the suit schedule property was purchased exclusively in the name of 2nd defendant. Thus, the assertions and denials by the parties remain regarding the existence of joint family property by the plaintiff and it is flat denial by the defendants.
Submissions of defendants/respondent to be 9. In the overall circumstances of the case, nodobut, there is presumption regarding the jointness of family. Family itself is considered as Unit. But the presumption of jointness does not go with automatic presumption of joint family owning the property. The joint family property consists of ancestral properties, properties earned by the other e members of the joint family. Thus earned through the accretions from the ancestral property and the separate property of members into the hatchpot of the joint family. In this connection, plaintiff, admittedly is the son of defendant No.1. Plaintiff claim that till his marriage he was in the family and thereafter residing separately. The documents available is that, he was getting the salary from an enterprise in the name and style of Kamadhenu Travels Private Limited. There must be unequivocal document having probative force inspiring the confidence to the existence of joint family property either in any one of the manner as stated above. In the entire context and circumstances of the case, the plaintiff claims that he was getting salary and contributing. Insofar as date of birth and year of birth of the plaintiff as admitted is 15.02.1972. The purchase of first property is 1990. It is not necessary that when once the nucleus of joint family property is there, the proportion of contribution need not be equal. However, there is no document or circumstances or materials to endorse the existence of nucleus of the joint family property. Nor factors probablizing the existence of joint family with properties.
10. Insofar as the schedule property is conserved, it was purchased in the name of 2nd defendant. Thus, either regarding existence of ancestral property or joint family property acquired in any one of the manner as stated above, there is no material or circumstances to believe that the schedule property is ancestral. I find that there does not appear any infirmity or illegality or lapses in the conclusion of the learned trial Judge. Hence, the appeal fails and accordingly, it is dismissed. No costs.
Sd/- JUDGE tsn*