IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL R.S.A.NO.2244 OF 2017 (PAR-SP) BETWEEN SRI CHANNAPPA S/O LATE UGREGOWDA AGED ABOUT 69 YEARS R/AT PADUVAGERE VILLAGE AMRUTHUR HOBLI, KUNIGAL TALUK TUMAKURU DISTRICT – 572 130 …APPELLANT (BY SRI N.SURENDRA KUMAR, ADVOCATE) AND 1. SMT.CHANNAMMA D/O LATE UGREGOWDA AGED ABOUT 69 YEARS R/AT PADUVAGERE VILLAGE AMRUTHUR HOBLI, KUNIGAL TALUK TUMAKURU DISTRICT – 572 130 2. SMT.CHENNAMMA W/O NARASIMAHAIAH AGED ABOUT 84 YEARS R/AT ADANAGERE VILLAGE NAGAMANGALA TALUK MANDYA DISTRICT – 571 432 3. SRI ARASAMMA W/O PUTTASWAMY AGED ABOUT 81 YEARS R/AT YALANAHALLI VILLAGE CHANNARAYAPATNA TALUK – 573 116 …RESPONDENTS (BY SRI V.RAJAIAH, ADVOCATE FOR R1 AND R3; VIDE ORDER DATED 21.02.2019 NOTICE TO R2 IS HELD SUFFICIENT) THIS RSA IS FILED UNDER SECTION 100 R/W ORDER XLII OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 11.07.2017 PASSED IN R.A.NO.62/2013 ON THE FILE OF THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMKUR, PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 19.2.2013 PASSED IN O.S.NO.30/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, KUNIGAL.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This second appeal of the first defendant arises out of the Judgment and Decree dated 11.07.2017 in R.A.No.62/2013 passed by the I Addl. District and Sessions Judge, Tumakuru.
2. The first respondent filed O.S.No.30/2007 against the appellant and Respondent Nos.2 and 3 arraying them as Defendant Nos.1 to 3 seeking partition and separate possession of her share in the suit schedule properties.
3. By the impugned Judgment and Decree, the first appellate court partly allowed the appeal of the present appellant and modified the Judgment and Decree dated 19.02.2013 passed by the Senior Civil Judge and JMFC, Kunigal in O.S.No.30/2007 modified the share awarded to plaintiff and the defendants. The trial court had decreed the suit of the present first respondent for partition and separate possession of her 5/12 share and 1/12 share of Defendant Nos.2 and 3 out of 1/4th share of their father.
4. For the purpose of convenience, the parties will be henceforth referred with their ranks before the trial Court.
5. Initially item Nos.1 to 3 alone were shown as suit schedule properties. Subsequently, by an amendment, plaintiff included plaint schedule Item Nos.4 to 17. Subject matter of suit where 16 agricultural lands shown as Item Nos.1 to 16 and the house property shown as Item No.17.
6. Some of the admitted facts of the case are as follows:
That plaintiff, Defendant Nos.2 and 3 were the married daughters and Defendant No.1 was the son of one Ugregowda. In a partition between Ugregowda and his brother’s sons and the 1st defendant on 15.07.1967, suit schedule Item Nos.1 to 14 and 17 were allotted to the branch of Ugregowda. Ugregowda died leaving behind the plaintiff and defendant Nos.1 to 3 as his legal heirs.
7. Plaintiffs filed the suit contending that the suit schedule properties were the ancestral joint family properties and suit schedule Item nos.16 and 17 were acquired by joint family nucleus in the name of the first defendant. She further contended that on the death of Ugregowda, she is entitled to equal share in the said property and first defendant is denying her share.
8. First defendant in his written statement contended that in the partition of the year 1967, plaintiff was given her share. He further contended that suit schedule Item Nos.15 and 16 are his self-acquired properties and not partible. Defendant Nos.2 and 3 filed written statement supporting the claim of the plaintiff.
9. On the basis of such pleadings, the trial Court framed the following issues:
1) Whether the plaintiff proves that the suit schedule properties are the joint family properties of the plaintiff and defendants No.1 to 3 and plaintiff and defendant No.1 are in joint possession and enjoyment of the same?
2) Whether the 1st defendant proves that suit items No.15 and 16 and 0-06 guntas in Sy.No.6/1 are the self-acquired properties of the 1st defendant?
3) Whether the 1st defendant proves that the remaining suit schedule properties are the ancestral properties of the 1st defendant only and the 1st defendant alone entitled to claim share as against his deceased father?
4) Whether the 1st defendant proves that the suit is not valued properly?
5) Whether the 3rd defendant proves that she is entitled for partition and separate possession of her share in the suit schedule properties as prayed in her written statement?
6) Whether the plaintiff is entitled for partition and separate possession of his share in the suit schedule properties?
7) Whether the plaintiff is entitled for mesne profits?
8) To what order or decree?
Additional Issues 1. Whether the 1st defendant proves that there was a panchayath parikath dated 15.07.1967 between the 1st defendant and his brothers?
2. Whether the 1st defendant proves that the suit schedule property fell to the share of 1st defendant in the panchayath parikath dated 15.07.1967?
3. Whether the 1st defendant proves that the father of the plaintiff had given a tiled roof house in suit item No.2 and 20 guntas of land in suit item No.1 to the plaintiff prior to the partition dated 15.07.1967?
4. Whether the 1st defendant proves that the plaintiff was born prior to the year 1956 and hence she is not entitled for any share in the suit schedule properties?
5. Whether the plaintiff proves suit schedule item No.17 is their joint family property?
10. The parties adduced evidence. In support of claim of the Plaintiff, P.Ws.1 to 6 were examined and Exs.P.1 to P.21 were marked. On behalf of the first defendant, D.Ws.1 to 6 were examined and Exs.D.1 to D.4 were marked. By duplication, genealogical tree was again marked as Ex.P.5.
11. Trial Court, after hearing the parties, held that the plaintiff has proved that the suit schedule properties are the joint family properties of plaintiff and Defendant Nos.1 to 3. The trial Court further held that suit schedule Item Nos.15 and 16 were acquired out of the income generated from suit schedule Item Nos.1 to 14 properties and first defendant failed to prove that he had any independent source of income to acquire those properties where as they were acquired in his name out of the joint family nucleus.
12. Trial Court applied the benefit of Section 6 of the Hindu Succession Act as amended by the amending act Karnataka Act No.23/1994 and awarded her 5/12 share and 1/12 to defendant Nos.2 and 3 each.
13. The first defendant challenged the said Judgment and Decree before the I Addl. District Judge, Tumakuru in R.A.No.62/2013. The first appellate Court concurred with the reasonings and findings of the trial Court with reference to the nature of the property and joint status of the parties. However, the first appellate court held that Hindu Succession (Amendment) Act, 2005 does not apply to the plaintiff and therefore, modified the plaintiff’s share to ¼ share in her father’s share applying the notional partition theory.
14. Sri.N.Surendra Kumar, learned counsel for the first defendant/appellant seeks to assail the impugned Judgment and Decree of the first appellate court on the following grounds:
i) The plaintiff included plaint Item Nos.4 to 17 of the properties subsequent to filing of the suit and there were no averments with regard to those properties being joint family properties?
ii) Under Ex.D.4, plaintiff was given share. Therefore, there was already a division in the family.
iii) The Courts below failed to appreciate the evidence of the parties properly.
15. Per contra, Sri.V.Rajaiah, learned counsel for Respondent No.1/plaintiff seeks to sustain the Judgment and Decree of the first appellate court on the following grounds:
a) First defendant himself admitted that suit schedule Item Nos.1 to 14 and 17 were ancestral joint family properties.
b) It was not his case that those properties were not yielding any income.
c) Plaint schedule Item No.8 property was shown as a farm land of 4 acres 21 guntas consisting of 250 fruit yielding coconut trees.
d) The first defendant failed to prove that he was trading in tamarind fruits and cattle business and had independent income.
e) The first defendant failed to prove his source of income. Under such circumstances, the Courts below rightly drew presumption of acquisition of property out of joint family nucleus.
16. Having regard to the rival contentions, the question that arises for consideration is:
Whether the case involves any substantial question of law for hearing?
17. The Hon’ble Supreme Court in SANTOSH HAZARI v/s. PURUSHOTTAM TIWARI (DEAD) BY L.Rs (AIR 2001 SC 965) with regard to substantial question of law has held as follows:
“14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be ‘substantial’ a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law ‘involving in the case’ there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.”
18. Thus it is clear that on questions of fact, the first appellate court is the last court. Even so far as the question of law, all questions of law are not the substantial questions of law. To call as a substantial question of law, that must be debatable which has a bearing on the case and which goes to the root of the case.
19. The copies of the pleadings, depositions and exhibits were made available for the perusal of the Court. In the case on hand, defendant No.1 admitted that suit schedule Item Nos.1 to 14 were the ancestral joint family properties. He urged two-fold contentions. Firstly in the partition of 1967, the plaintiff had taken her share. His second contention was that suit schedule Item Nos.15 and 16 were acquired out of his income derived from his alleged tamarind fruits and cattle business.
20. According to Defendant No.1 himself, the partition under Ex.D.4 in 1967 was between the branch of his uncles and his father. Thus, Courts below rightly held that the partition under Ex.D.4 was between the branches of his father and paternal uncles.
21. So far as plaintiff taking her share, plaintiff in her pleadings contended that she is in joint possession of plaint schedule Item Nos.1 to 3 properties. Merely because she is in occupation of those properties, no inference of partition can be drawn.
22. 1st defendant was in possession of plaint schedule Item Nos.3 to 15 and 17 properties. There was no division in those properties and they are the ancestral joint family properties. It is the settled position of law that amongst the joint tenants, the possession of one co-owner is the possession of other co-owners. Therefore, the alleged possession of plaintiff of plaint Item Nos.1 to 3 properties itself does not lead to any inference of partition and separate possession of her share and therefore, the Courts below have rightly rejected that contention.
23. So far as plaint schedule Item Nos.15 and 16, plaintiff contended that those properties were acquired in the name of the first defendant out of the nucleus generated by plaint schedule Item Nos.1 to 14 properties. Though defendant No.1 contended that he was trading in tamarind fruits and cattle business, he did not produce any piece of paper in proof of such business or the income from such business. He did not deny the nature and description of the plaint schedule properties as shown in the RTCs. Plaint schedule Item Nos.1 to 14 properties were all assessed to land revenue.
24. As rightly pointed out by the learned counsel for the plaintiff, suit schedule Item No.8 property was shown to be an orchard consisting of 250 fruit yielding coconut trees. Ex.P.5 and Ex.P.16-RTC of the suit lands showed that in the suit lands, paddy, ragi, horsegram and coconut were cultivated and most of them were wet lands. Those documents have presumptive value under Section 133 of the Karnataka Land Revenue Act. Under such circumstances, the Courts below were justified in holding that the first defendant failed to prove his source of income or the independent income, whereas the plaintiff proved that the joint family properties were generating nucleus to acquire plaint schedule Item Nos.15 and 16 properties.
25. The error committed by the trial court in awarding share applying Hindu Succession (Amendment) Act, 2005, was rectified by the first appellate court. However, the plaintiff and defendants 2 and 3 have accepted that finding.
26. Having regard to these facts and circumstances, this Court is satisfied that the case does not involve any substantial question of law to admit the appeal.
27. Therefore, the appeal is dismissed.
Having regard to the disposal of the appeal, I.A.No.2/2017 does not survive for consideration and disposed of, accordingly.
Sd/- JUDGE bnv*