IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.S.A.No.570/2009 C/W R.S.A.No.569/2009 R.S.A.No.570/2009:
BETWEEN:
SRI B MUNIKRISHNAPPA S/O SRI BYANNAPPA AGED ABOUT 64 YEARS R/AT NO.1820/12, `C’ BLOCK SAHAKARANAGARA BANGALORE -560 092 ..APPELLANT (BY SRI K R KRISHNAMURTHY, ADVOCATE FOR M/s.LAWYERS INC) AND:
1.SRI BYANAPPA S/O LATE KARIYAPPA AGED ABOUT 88 YEARS R/AT HANABE VILLAGE HOBLI DODDABALLAPURA TALUK BANGALORE RURAL DISTRICT.
2.SRI B KARIYAPPA S/O LATE BYANAPPA AGED ABOUT 57 YEARS R/AT D.NO.857, DILIP NILAYA HOORINA HANUMAIAH ROAD, 3RD CROSS, NEAR RAILWAY STATION, KODIGEHALLI, SAHAKARANAGARA POST BANGALORE-560092.
3.SRI MUNIRAJU S/O SRI GOPALAPPA DEAD BY LRS 3(a) SMT JALAJA W/O LATE MUNIRAJU G AGED ABOUT 38 YEARS R/O D.No.97/2, 2ND CROSS NEAR THIMMAIAH GENERAL STORES BHOOPASANDRA MAIN ROAD, NAGASHETTIHALLI, BANGALORE – 560 094. ..RESPONDENTS (BY SRI H PAVANA CHANDRA SHETTY, ADVOCATE FOR R-2 & 3(a), APPEAL AGAINST R-1 IS DISMISSED AS ABATED VIDE ORDER DATED 29.11.2012) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED: 20.02.2009 PASSED IN R.A.NO.148/2008 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, BANGALORE RURAL DISTRICT, BANGALORE, ALLOWING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED: 18.01.2008 PASSED IN O.S.NO.154/2005 ON THE FILE OF THE CIVIL JUDGE (SR.DN.), DODDABALLAPUR.
R.S.A.No.569/2009: BETWEEN:
1.SRI B MUNIKRISHNAPPA S/O SRI BYANNAPPA AGED ABOUT 64 YEARS R/AT NO.1820/12, `C’ BLOCK SAHAKARANAGARA BANGALORE -560092 ..APPELLANT (BY SRI K R KRISHNA MURTHY, ADVOCATE FOR M/s.LAWYERS INC) AND:
1.SRI BYANAPPA S/O LATE KARIYAPPA AGED ABOUT 88 YEARS R/AT HANABE VILLAGE HOBLI DODDABALLAPURA TALUK BANGALORE RURAL DISTRICT.
2.SRI B KARIYAPPA S/O LATE BYANAPPA AGED ABOUT 57 YEARS R/AT D.NO.857, DILIP NILAYA HOORINA HANUMAIAH ROAD, 3RD CROSS, NEAR RAILWAY STATION, KODIGEHALLI, SAHAKARANAGARA POST BANGALORE-560092.
3.SRI MUNIRAJU S/O SRI GOPALAPPA DEAD BY LRS 3(a) SMT JALAJA W/O LATE MUNIRAJU G AGED ABOUT 38 YEARS R/O D.No.97/2, 2ND CROSS NEAR THIMMAIAH GENERAL STORES BHOOPASANDRA MAIN ROAD, NAGASHETTIHALLI, BANGALORE – 560 094. ..RESPONDENTS (BY SRI H PAVANA CHANDRA SHETTY, ADVOCATE FOR R-2 AND 3(a) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED: 20.02.2009 PASSED IN R.A.NO.97/2008 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, BANGALORE RURAL DISTRICT, BANGALORE, DISMISSING THE APPEAL (EXCEPT IN REGARD TO ITEM NO.6) FILED AGAINST THE JUDGMENT AND DECREE DATED:18.01.2008 PASSED IN O.S.NO.154/2005 ON THE FILE OF THE CIVIL JUDGE (SR.DN.), DODDABALLAPUR.
THESE RSAs COMING ON FOR DICTATION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT These two appeals are directed against the Judgment and decree dated 20.02.2009 passed in R.A.Nos.97/2008 and 148/2008 wherein the claim of the plaintiff with regard to item No.6 alone was allowed and claim with regard to item Nos.1 to 5 came to be rejected by setting aside the Judgment and decree dated 18.01.2008 passed in O.S.No.154/2005 for partition and separate possession wherein plaintiff claim for 1/3rd share in all the six items of the suit schedule properties therein came to be decreed in part granting 1/4th share in all the suit schedule item Nos.2 to 6 properties.
2. The relationship between the parties with reference to plaintiff: Plaintiff-eldest son of Byannappa –defendant No.1. Defendant No.2 second son of Byannappa (defendant No.1), younger brother of plaintiff and defendant No.3 –G Muniraju, maternal grandson of defendant No.1- predeceased sister’s son of plaintiff. Item Nos.1 to 5 of the suit schedule are agricultural properties and item No.6 is residential house.
3. In order to avoid confusion and overlapping, the parties are addressed with reference to their respective ranking before the trial court.
4. B. Munikrishnappa, plaintiff filed O.S.No.154/2005 seeking 1/3rd share in the suit schedule item Nos.1 to 6 properties arraying his father Byannappa, brother Kariyappa and sister’s son G.Muniraju as defendants. Incidentally the reason attributed in the plaint for arraying 3rd defendant Muniraju, sister’s son is stated to be that said 3rd defendant was gifted 3 acres of land by defendant No.1- Byannappa. Regard being had to the fact that defendant No.2-Kariyappa was also gifted 5 acres of land. In the context of the matter the plaintiff filed the suit as soon as the second gift was made by defendant No.1 as stated above. The plaintiff claims joint possession of the suit schedule properties and claims that all of them are ancestral and joint family properties wherein the plaintiff is in joint possession and enjoyment along with defendants. It is also stated that defendant No.1- Byannappa, father of plaintiff and defendant No.2 and grandfather of defendant No.3 died during the proceedings and naturally plaintiff, defendant Nos.2 and 3 are shown as legal representatives of deceased defendant No.1. Defendants filed written statement and also counter claim. Counter claim was made by defendant No.1 stating that nine properties are held in the name of plaintiff and plaintiff has not included the said properties and hence suit is incomplete and bad for not including said properties. Further it is also the claim of the defendant No.1 that suit schedule items are his self acquired properties being earned without any contribution from the plaintiff or other defendants. Suit schedule properties did not belong to joint family for the very reason that the entity of joint family did not exist.
5. Learned trial Judge was accommodated with oral evidence of PW-1 and documentary evidence Exs.P-1 to P-32 on behalf of plaintiff and oral evidence of DW- 1 to DW-3 and documentary evidence Exs.D-1 to D-47 on behalf of the defendants.
6. Learned trial Judge considers the aspects of joint family properties, properties gifted by defendant No.1 in favour of defendants 2 and 3, entitlement of the plaintiff for partition and value of the subject matter and came to conclusion that plaintiff, defendant No.1 defendant No.2 are entitled for 1/4th share each in suit schedule item Nos.2 to 6 properties along with mother of defendant No.3 as she is dead, it is defendant No.3 being her son. Defendant No.1 Byanappa died on 04.08.2011 during the proceedings. Defendant No.1 claimed relief of counter claim in the form of partition of all the nine items of properties forming agricultural land in Sy.No.75/5, 50/3A, 50/7A, 23/2A, 59/2A, 43/2, 79/3B, 79/4B, 96/2B and a site bearing No.1820/12 situated at Sahakaranagar, Bengaluru North Taluk. Insofar as schedule item Nos.1 to 5 are agricultural lands at Shravanoor Village, Hanabe Village, Doddabelavagala Hobli, Doddaballapur Taluk, Bangalore Rural District. Trial court decreed the suit in part and granted 1/4th share each to the respective parties. Incidentally there is no whisper regarding the verdict on the counter claim in the Judgment passed by trial court. Thus, both plaintiff and defendants preferred appeal before the Principal District Judge, Bangalore Rural District in R.A.No.97/2008 and R.A.No.148/2008 wherein R.A.No.97/2008 was filed by the plaintiff B.Munikrishnappa seeking partition of all the six items of schedule properties. Similarly R.A.No.148/2008 was filed by defendant No.1- Byannappa seeking dismissal of the suit in entirety.
7. Learned appellate Judge disposed of the matter on 20.02.2009 wherein R.A.No.97/2008 filed by the plaintiff was dismissed in respect of item Nos.1 to 5 except in respect of item No.6 and R.A.148/2008 was allowed. It is seen what has happened in case of trial court even the appellate court failed to pass verdict on the counter claim, but no appeal was preferred by the defendants.
8. Insofar as RSA No.569/2009 is directed against the Judgment and decree passed in R.A.No.97/2008 dated 20.02.2009 preferred by Munikrishnappa wherein partition of item No.6 alone was allowed and R.S.A.No.570/2009 is directed against the Judgment and decree passed in R.A.No.148/2008 claiming partition in respect of all items of suit schedule properties. It is in this connection two regular appeals have come into existence. Thus in relationship wise eldest son- Munikrishnappa-plaintiff sought partition of schedule item Nos.1 to 6 (item No.6 is admitted to be joint family property) and father-defendant No.1- Byannappa sought for rejecting the relief of partition.
9. Learned counsel for appellant in RSA No.569/2009 Sri K.R.Krishnamurthy would submit that though the trial court was right in ordering partition of item Nos.2 to 6 (item No.6 admitted to be joint family property) erred in not granting partition in respect of item No.1.
10. Learned counsel Sri Krishnamurthy would submit that the appellate court erred in denying partition in respect of item Nos.2 to 5. Learned counsel for appellant would submit that all the suit schedule properties bear the features of joint family properties invariably there was no embargo for decreeing the suit as prayed for. He would further submit that the gift deed executed by defendant No.1 in favour of defendant No.3 dated 21.11.2003 and defendant No.2 dated 14.11.2005 in the form of Ex.D-31 and Ex.D-39 respectively has no enabling legal efficacy and was liable to be ignored.
11. Learned counsel for respondent would submit that the partition suit filed by plaintiff did not possess the texture of joint family and they were all self acquired properties of defendant No.1-Byannappa. They were absolutely available and at the disposal of defendant No.1 and there was no fetters for defendant No.1 in executing gift in favour of defendants 2 and 3. He would further submit the element of absence of joint family and question of partition would be apparent when nine items of properties in the name of Munikrishnappa being not included in the schedule property. Thus, the plaintiff cannot blow both hot and cold at the same time. Apart from this learned counsel would submit that in his oral evidence plaintiff admits that the properties were purchased by defendant No.1-Byannappa who is father of the plaintiff and defendant No.2 and of course grandfather of defendant No.3. Non-mentioning of the verdict on counter claim is concerned, the order was necessary.
12. Learned trial Judge framed additional issues on 17.09.2007 on non joinder of legal representatives of deceased sister Smt.Lakshmamma and non-joinder of ten other items of properties as stated in the written statement and whether defendants 1 and 2 were entitled to get counter claim relief of 1/3rd share in ten items of the properties. It is necessary to mention the findings given by learned trial Judge in substance is dismissal of the claim for partition in respect of item No.1 and has not considered the counter claim. However, no issue regarding counter claim was urged in the appeal. Insofar as the schedule properties are concerned they form six items consisting of five items of agricultural property and one item of residential property. Insofar as item No.6 is concerned there is no dispute between the parties regarding nature of the same as in unequivocal terms plaintiff and defendants stamp item No.6 as joint family property which is available and agreeable for partition. Thus, insofar as item No.6 is concerned finding is closed here. Insofar as item No.1 schedule property is concerned it consists of 8 acres of land in Sy.No.27/2 of Shravanoor Village, Doddabelavangala Hobli, Doddaballapur Taluk, Bangalore Rural District.
13. Insofar as substantial questions of law, it is reframed as under:
a. Whether there could be separate properties and joint family properties in a joint family?
b. What is the effect of gift made by the head of the family in favour of another member of the family claiming that property is self- acquired property and without indicating the purpose?
c. Whether the assertion regarding possessing of properties by the plaintiff, not included in the properties list, is established?
14. It is established principles under the joint family that every joint family member need not possess property or there may be joint family which consists of earning members separately and each of such member may purchase property through his skill, merit or labour in which event any property purchased by such member without the help of the joint family can still be possessed by such person as a separate property. There can be so many joint families which do not possess any joint family property. Further, properties acquired by a person through his special skill, awards cannot be referred as joint family properties. It is upto a member holding his separate property to put the same into the common stock. However, the same is to be evidenced by precise material and reliable circumstances.
15. At the same time, what are the properties which is separate or joint family properties cannot be considered because of the name or brand given by the plaintiff or the defendant, which invariably at their convenience.
16. Independent assessment will have to be taken in a suit for partition and the manner of acquisition and contribution of the member or the members to purchase the property.
17. It is thus, the property is not the main criteria in the joint family wherein all the members or any of them may possess their own property and then, they may gather together for the reasons which are beyond the scope of properties. In the present case, no doubt, relationship is admitted, defendant No.1 is the head of the family and Kartha or the Manager of the family. However, there are different view looking at the properties standing in the name of Byannappa and also that of the plaintiff. According to the plaintiff, he earned the properties through salary as he was serving as a teacher, without any help from the joint family.
18. Ironically, defendant No.1 also contends that plaintiff was never a participant in the joint family activities for its development. Further, he has not looked after the first defendant or the other members of the family.
19. Insofar as the properties are concerned, regarding item No.1 is stated to be land measuring 8 acres 38 guntas of land, out of which, he has gifted 3 acres to his grandson-defendant No.3, who is the son of predeceased daughter and 5 acres and 38 guntas (including 38 guntas karab land) is executed in favour of defendant No.2, who is none other than the son of the plaintiff. It is not that a Hindu is disentitled to gift the property. However, even a joint family property could be gifted provided purpose and the circumstance is justifiable. But it shall be entirely in the interest of the family. As submitted, daughter died that cannot become a ground to gift the property to defendant No.3. More over, where gift deed is executed in favour of his son Kariappa and grandson Muniraju, the donor does not whisper a single sentence regarding the purpose for which he has gifted.
20. No doubt, mere relationship is not only the criteria for gifting the property nor the love and affection are exclusive factor for mere relationship or otherwise. It is only the donor to be mindful of the property while gifting the same to his other son or grandson. Thus, the gift runs like a casual document stating the source of purchase. The property cannot be purchased without an owner. Ownership of a property is its primary concept. It is not necessary that every ownership to emanate only from a title deed or from instruments.
21. There can be properties that they are acquired or conferred by the act of the parties, operation of law or such related. Thus, properties may exist without title deeds also, more particularly in revenue scheme or agricultural properties. It is necessary to mention that except item No.1 of the schedule properties there are no sale deeds or any deeds or act of the parties that intervenes. On the other hand, they are evidenced by RTC, index of land records and related. In none of the documents source of acquisition is mentioned. It could be gathered from Ex.P-7 which contains the name of defendant No.1 – Byanna in column No.9 and in the related column No.10 of the RTC, the reference is shown as ‘Krayada Moolaka’ dated 30.01.2004, that means, having acquired through registered sale deed.
22. Insofar as item Nos.2 to 6 are concerned, they are revenue records by themselves. The presumption is in respect of the entries and presumption is not a conclusive title. Regard being had to the fact that the property granted by a person and when no member or members of the family has self-acquired property. In the circumstances of the case, there are no documents furnished by the defendant to conclude that properties at item Nos.2 to 6 are self acquired properties and has right of alienation. In the circumstances and facts there is no concrete evidence or the documents or circumstances to hold that item No.1 was his self-acquired property. Thus, I do not find that there is an occasion to consider and accept item No.1 as the separate property.
23. As could be seen from the oral and documentary evidence defendant No.1 –Byannappa executed a registered gift deed dated 21.11.2003 Ex.D-31 in favour of defendant No.3 and 14.11.2005 Ex.D-39 in favour of defendant No.2. Thus total extent of agricultural land gets exhausted and it is the claim of the plaintiff that it was not within the powers of defendant No.1 to take decision for disposing of portion of property in item No.1 of the schedule property to defendant No.3 for the very reason that there was no occasion for gifting the property nor was there compelling or religious circumstances paving way for gifting the property that to a young grandson. It is not the case of tradition or custom to gift a property to a son or grandson. However gift is made voluntarily by the Donor and accepted by the Donee. Insofar as Ex.D-31 is concerned it is gift deed dated 21.11.2003 wherein defendant No.1- Byannappa has executed an instrument in favour of G.Muniraju- defendant No.3 the grandson of defendant No.1. In the said gift deed the donor defendant No.1 states that the property was purchased by him under registered sale deed dated 05.11.1957 registered as document No.2636/1957-58, Book-I, Volume 1924 at pages 200-202 in the office of the Sub-Registrar at Doddaballapur. Similarly in the registered gift deed dated 14.11.2005 wherein defendant No.1- Byannappa has executed an instrument in favour of Kariyappa-defendant No.2, stated to be self acquired property of defendant No.1 having purchased the same under the registered sale deed dated 05.11.1957 registered as document No.2636/57-58, Book-I, Volume 1924 pages 200-202 in the office of the Sub-Registrar at Doddaballapur, to an extent of 5 acres in Sy.No.27/2 wherein 38 guntas of land stated to be Kharab land. Thus, under both the gift deed, defendant No.1 states that being the absolute owner of the property having purchased under the registered sale deed stated therein he executed the gift. In this connection insofar as normal circumstances what is primarily required for gifting the property to the Donor he should have competency or authority to gift the property and it is voluntarily made declaration accepted by Donee followed by delivery of possession. It means by the head of a family in favour of a person may be excepting obsequies and other circumstances. When it is gift simplicitor reasons have to be explained. The enabling reason for gifting the schedule property is not stated except followed. In the circumstances I can understand the emotion over defendant No.3 because his mother had died long back and as a grandfather of the son of a predeceased daughter he expressed emotion. But insofar as second one is concerned it is in favour of full-fledged son. Institution of joint family as conducted and practiced required accountability by the head of the family usually he is called Kartha. In this connection another significant factor to be observed both defendant Nos.2 and 3 had pre existing interest in the undivided share over the schedule property and were entitled for a share when partition was effected and were not disentitled to get their legitimate legal share because of disqualification by virtue of a special act. It was only a matter of time even if the partition was effected in a joint family in the normal circumstances even in the life time of Kartha when partition is effected son of predeceased daughter has a share, likewise the very son. Unawareness of the legal position or provision and making it in advance only suggest that there was no calculation or result of the events that were compulsory in a joint family. Thus, in the circumstances item No.1 of the suit schedule property was available for partition. However like any other members defendants 2 and 3 also had definite interest for partition therein.
24. Insofar as nature of the properties are concerned the presumption is in respect of joint family properties. It is not that every member of a joint family contributes in terms of currency note, extortion, hard work preventing trespass and various acts in the interest of joint family in bringing up a joint family making it more resourceful preventing wastage of properties and if thus properties are branded as self acquired property it may not be inconsonance with the established principles of joint family where sons, grandsons, basically as members of joint family are entitled for a share in the capacity of co-parcener. Though the scenario is not applicable it is also to be considered upon the death of Byannappa if the properties are to be reckoned as self acquired properties of deceased Byannappa-defendant No.1, plaintiff, defendants 2 and 3 are nothing but son, son and son of a predeceased daughter. All the three happened to be class I heir in the schedule annexed to the Hindu Succession Act, 1956. Of course insofar as defendant Nos.2 and 3 are concerned gifted properties under Ex.D-31 Ex.D-39 available as bonus apart from the share. However, in the circumstances in either way parties are entitled for a share but when the properties fall under the category of self acquired property there shall be variation in the share of defendants 1 and 3. However I find that the properties had the texture of joint family properties rather than except the averment that they are self acquired property of defendant No.1 no further substantial evidence is forthcoming. Further insofar as the title deeds being documents of title already in the name of Byannappa-defendant No.1 is concerned it cannot be read too much when once joint family is established, joint family properties recognized, then name of the member in whose name the properties are identified, documents a formality and statistics. Self acquired properties are to be established under identified circumstances wherein there was no contribution by members in the form of cash and kind or extortion. It is also submitted that plaintiff was working as a school teacher and started earning but neglected the family. Very often a non co-operating son who does not help the joint family incidentally is a member and disqualification cannot be made because of his non-co-operation. However, in case of wastage of property or meddling, causing substantial loss he is accountable along with his share. In the circumstances of the case there are no circumstances to declare that there are instructions that plaintiff is liable for reduced share, denial of equal share along with others in respect of item Nos.2, 3, 4 and 5 are concerned. Insofar as item No.2 of the schedule RTC in Column No.10 it is mentioned as RR-646 to the extent of 1 acre 6 guntas in the name of Byanna, S/o Kariyappa and item No.3 of the Schedule RTC in Column No.10 it is mentioned as RR-648 to the extent of 1 acre 1 gunta in the name of Byanna, S/o Kariyappa. Insofar as Ex.P-5 index of land the name of the person in possession is shown as Byanna, S/o Kariyappa. Insofar as Ex.P-7 item No.1 it is purchased in the name of Byanna. Ex.P-11 in respect of item No.4, Sy.No.16/3 to the extent of 14 guntas, in column No.10 it is mentioned as RR-33.
25. Thus, there are no foolproof documents or circumstances to hold that the schedule properties irrespective of item No.1 acquired through registered sale deed and others were self acquired property of Byannappa. Thus, they are liable for partition. In the overall circumstances of the case the incident of joint Hindu family as recognized has to be considered and same is done.
26. Further insofar as item No.1 is concerned when it is standing in the name of head of the family the circumstances available are towards joint family than to claim it as self acquired property. Nodoubt in a joint family its properties concerned are self acquired and separate property of the members but they are all to be divided with acceptance of separate title evidenced by documents, certified by circumstances in the absence of which they are not categorized as separate property. In the result considering evidence, materials on record and submissions of the learned counsel for appellant and respondent I am of the considered view that item Nos.1 to 6 are joint family properties and they are to be partitioned and they are ordered to be partitioned without any impact of gift deed. There are no justifiable circumstance present favoring the gift. The said gift deeds are hereby ignored. Learned trial Judge identified item No.1 of the schedule property as not available for partition at the same time first appellate court was not right in not considering item No.1 as joint family property.
27. Learned counsel for respondents would submit that defendant No.3-Muniraju is the son of Lakshmamma who is the daughter of defendant No.1 –Byannappa. It is in respect of this Muniraju the gift of three acres of land is made by defendant No.1 under gift deed dated 21.11.2003 and said document is marked as Ex.D-31. It is brought to the notice of the court that there are grounds to believe that Lakshmamma, mother of defendant No.3 who is also daughter of defendant No.1 has left behind other children who are not parties to the suit nor the details are provided. In such a case it is made clear that defendant No.2 or defendant No.3 are not beneficiaries under the gift as the same is considered to be the joint family property. However the extent of property to be treated as the share of deceased Lakshmamma daughter of defendant No.1- Byannappa. Thus, it is the right of branch of Lakshmamma that is recognized for the share under this Judgment and it is law relating to procedure as contemplated under Section 54 of C.P.C to take effect in calculation and partition by metes and bounds.
28. Learned counsel for respondent would submit that there is admission by the plaintiff that the schedule properties belong to his father-defendant No.1. Regard being to the fact that item No.1 was purchased by his father (the deposition of PW-1 which is in Kannada, is translated by me as I am acquainted in Kannada language). PW-1 has deposed it is true that suit schedule item No.1 was purchased by his father on 05.11.1957 and stated that he does not know about item No.2 being purchased by his father during 1940 but has stated that he has furnished documents to show that they are ancestral properties and the name of his grandfather is Kariyappa.
29. In the circumstances, this submission has been urged as admission. The said portion by itself do not come out as admission. An admission or stray sentence cannot be delinked from the contrast to extract the meaning convenient to the parties. Insofar as the contention of the defendant No.1 that there are 9 properties annexed to written statement in the name of plaintiff that are purchased through joint family funds.
30. In this connection, the trial Court has perused the written statement and has given a finding to the effect as to said properties cannot be considered as joint family properties. Further, there is no appeal by the defendant against the said finding.
31. Thus, in the over all circumstances of the case and over all discussions made above, I find that the learned trial Judge erred in respect of item No.1 and the appellate Judge in respect of item Nos.1 to 5 to declare them as self-acquired properties and not available for partition. Both judgments are erroneous and not sustainable. Hence, they are liable to be set aside.
32. Insofar as appellate court is concerned I do not find there is application of proper legal provisions regarding treatment of schedule properties and applicability of personal law. Appellate Judge erred in declaring item Nos.2 to 5 as not available for partition. Judgment and decree dated 20.02.2009 passed in R.A.Nos.97 and 148/2008 by First Appellate Judge is liable to be set aside as it is not in consonance with the established principles of Hindu Joint Family and its properties.
Accordingly the substantial questions of law are answered.
In the result, appeals are allowed. Judgment and decree dated 20.02.2009 passed in R.A.Nos.97 and 148/2008 by Principal District Judge, Bangalore Rural District, Bangalore and Judgment and decree dated 18.01.2008 passed in O.S.NO.154/2005 on the file of the Civil Judge (Sr.Dn.), Doddaballapur are set aside.
Plaintiff, defendant No.1, defendant No.2 and defendant No.3 claiming under the branch of deceased Lakshmamma are entitled for 1/4th share in respect of item Nos.1 to 6 and insofar as the share of deceased defendant No.1 to be reckoned with reference to his 1/4th share in which the property gifted shall be allotted subject to calculation and remaining if any shall be appropriated between plaintiff and defendants 2 and 3.
Sd/- JUDGE SBN/nvj