THE COMMISSIONER OF INCOME TAX vs. M/S STATE BANK OF MYSORE

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NC: 2024:KHC:15415 RSA No. 48 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2024 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 48 OF 2013 (PAR) BETWEEN: 1. PRAVALIKA AGED ABOUT 28 YEARS, D/O SMT. N SHOBHA, 2. SANJUKTHA AGED ABOUT 30 YEARS, D/O SMT. N SHOBHA APPELLANT No.1 AND 2 ARE REP. BY THEIR POWER OF ATTORNEY HOLDER SMT. N. SHOBHA, AGED ABOUT 55 YEARS, NO. 2890, 6TH MAIN, 9TH CROSS, V.V.MOHALLA, MYSORE-570 002. …APPELLANTS (BY SRI. H.T. NATARAJ, ADVOCATE) AND: 1. DR C BANDIGOWDA S/O LATE CHIKKANNEGOWDA, SRIRANGAPATNA TOWN (NOW DEAD) SRI. B PREMKUMAR AGED 65 YEARS, S/O DR. C BANDIGOWDA, ADVOCATE AND NOTARY, SRIRANGAPATNA, MANDYA DIST. Digitally signed by KORLAHALLI BHARATHIDEVIKRISHNACHARYA Location: High Court of Karnataka

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NC: 2024:KHC:15415 RSA No. 48 of 2013 2. DR. B SUJAY KUMAR AGED 54 YEARS, S/O DR. C BANDIGOWDA, OPP. KPTCL OFFICE, MYSORE-BANGALORE ROAD, SRIRNGAPATNA, MANDYA-571 438 3. SMT. JYOTHSNA AGED 51 YEARS, W/O H ANIL KUMAR, LAWYERS COLONY, SHUBHASHNAGAR, MANDYA-571 401. …RESPONDENTS (BY SRI. H.C. SHIVARAMU, ADVOCATE FOR R2 & R3 R1 SERVED) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 6.9.2012 PASSED IN R.A.NO.182/2011 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT, SRIRANGAPATNA, PARTLY ALLOWING, PARTLY DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 30.8.2011 PASSED IN OS.NO.14/2009 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE, SRIRANGAPATNA.

THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT This Regular second appeal is filed by the appellants challenging the judgment and decree dated 06.09.2012, passed in R.A.No.182/2011 by the District Judge, Fast Track Court, Srirangapatna.

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NC: 2024:KHC:15415 RSA No. 48 of 2013 2. For the sake of convenience, parties are referred to as per their ranking before the trial Court. The appellants are the plaintiffs and respondents are the defendants. 3. The brief facts leading rise to filing of this appeal are as under: Plaintiffs filed a suit for partition and separate possession in respect of suit schedule properties. It is the case of the plaintiffs that, the defendant No.1 is the grandfather of the plaintiffs and defendant No.2 is the father of the plaintiffs. Defendant Nos.3 and 4 are the paternal uncle and aunt of plaintiffs. The defendant No.1 is the manager of the joint family. Since more than 4 years, the plaintiffs are living separately with their mother and the defendants are enjoying the suit schedule properties on their own, without providing any maintenance. It is contended that suit schedule properties are the joint family properties of plaintiffs and defendants and no partition is effected between them. The plaintiffs

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NC: 2024:KHC:15415 RSA No. 48 of 2013 demanded for partition and separate possession, but the defendants refused to effect a partition. Hence cause of action arose for the plaintiffs to file a suit for partition and separate possession. 4. Defendant No.1 filed written statement denying the averments made in the plaint. It is contended that, the suit is not maintainable. He admits the relationship between himself and defendants and also he is the kartha of the family. He admits that the plaintiffs are having a share in the share of defendant No.2. It is contended that suit schedule properties are the wet land. It is contended that defendant No.1 is doing medical practice since 1944 and he is also a member of Legislative Council and also paying Income Tax to the Government. It is contended that out of the income derived from the ancestral properties, he could not maintain the family. He acquired item Nos.9 to 12 of the suit schedule properties out of his medical profession. Item No.13 is the self-acquired property of defendant No.2. It is contended that the

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NC: 2024:KHC:15415 RSA No. 48 of 2013 plaintiffs are not entitle for share in suit item Nos.9 to 12 and prayed to dismiss the suit. 5. Defendant Nos.2 and 3 jointly filed a written statement admitting the relationship as well as defendant No.1 is the kartha of the family and also admitted that the plaintiffs are the daughters of defendant No.2 and they are entitle for share in the share of defendant No.2. Hence prayed to dismiss the suit insofar as suit item Nos.9 to 12 are concerned. 6. The Trial Court, on the basis of the above said pleadings, framed the following issues: (1) Whether the plaintiffs prove that suit properties are the ancestral and joint family properties and are amenable for partition? (2) Whether the defendants prove that item Nos.9 to 12 are the self-acquired properties of defendant No.1 and item No.13 is the self- acquired property of defendant No.2 and are in exclusive possession of defendant Nos.1 and 2? (3) Whether the suit is bad for non-joinder of necessary parties? (4) Whether the suit is properly valued for the purpose of Court fee and jurisdiction?

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NC: 2024:KHC:15415 RSA No. 48 of 2013 (5) Whether the plaintiffs are entitled for 2/3rd share out of 1/4th share in the suit schedule properties and for mesne profits as claimed in the plaint? (6) What order or decree? 7. In order to substantiate their case, plaintiffs have examined their mother, who is the Power of Attorney holder, as PW.1 and got marked 12 documents as Exs.P1 to P12. In rebuttal, defendant No.1 was examined as DW-1 and defendant No.2 was examined as DW.2 and got marked 11 documents as Exs.D1 to D11. The trial Court after assessing the oral and documentary evidence of the parties, answered issue Nos.1, 2 and 5 partly in the affirmative, issue No.3 in the negative, issue No.4 in the affirmative, issue No.6 as per the final order. The suit of the plaintiffs was decreed in part. It is ordered and decreed that the plaintiffs are entitled for 2/3rd share out of 1/4th share of defendant No.2 in the suit item Nos.1 to 12 by metes and bounds and also ordered that the defendant Nos.1 to 4 are entitled for 1/4th share each in

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NC: 2024:KHC:15415 RSA No. 48 of 2013 suit item Nos.1 to 12 by metes and bounds and further ordered that there shall be an enquiry in respect of mesne profits under Order XX Rule 12 of CPC. 8. The defendant No.1, aggrieved by the judgment and preliminary decree dated 30.08.2011, passed in O.S.No.14/2009 filed an appeal in R.A.No.182/2011 on the file of District Judge, Fast Track Court, Srirangapatna. The First Appellate Court, after hearing the parties, has framed the following points for consideration: (1) Whether the pleading and proof is sufficient to uphold the plea of the plaintiffs that the suit properties are joint family properties of the plaintiffs and defendants and they are entitle for legitimate share in it? (2) Whether the pleading and proof is sufficient to uphold the plea of the defendant No.1 that suit item Nos.9 to 12 are his self-acquired properties, therefore the plaintiffs have no share in it? (3) Whether the judgment and decree of the trial Court require interference in the appeal? (4) What order? 9. The First Appellate Court, on re-assessing the oral and documentary evidence, answered point No.1 and

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NC: 2024:KHC:15415 RSA No. 48 of 2013 3 partly in the affirmative and partly in the negative, Point No.2 in the affirmative, point No.4 as per final order. The appeal was partly allowed and partly dismissed. The First Appellate Court confirmed the judgment and decree passed by the trial Court in respect of item Nos.1 to 8 by metes and bounds and dismissed the suit in respect of item Nos.9 to 12. 10. The plaintiffs, aggrieved by the dismissal of suit in respect of item Nos.9 to 12, have filed this Regular second appeal. 11. This court vide order dated 01.06.2016, has admitted the appeal on the following substantial question of law : (1) Whether the Lower Appellate Court is justified in reversing the judgment and decree passed by the trial Court in coming to the conclusion that item Nos.9 to 12 of the suit schedule properties are the self acquired properties of the deceased first respondent? (2) Whether the Lower Appellate Court is justified in reversing the judgment and decree of the trial Court without noticing that item Nos.9 to 12 of the suit schedule properties are joint

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NC: 2024:KHC:15415 RSA No. 48 of 2013 family properties acquired in the name of 1st respondent out of joint family nucleus? (3) Whether the Lower Appellate Court is justified in reversing the judgment and decree of the trial Court in the facts and circumstances of the present case? 12. Heard learned counsel for the parties. 13. Learned counsel for the plaintiffs submits that, the First Appellate Court has committed an error in dismissing the suit in respect of item Nos.9 to 12 on the ground that the plaintiffs have not produced any records to show that the family was having a joint nucleus. He submits that item Nos.1 to 8 are the joint family properties and defendant No.1 out of the income derived from the joint family properties purchased item Nos.9 to 13. He submits that the First Appellate Court dismissed the suit in respect of item Nos.9 to 12 is only on the assumption and presumption and not on the basis of proper appreciation of evidence. Hence on these grounds, he prays to allow the appeal.

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NC: 2024:KHC:15415 RSA No. 48 of 2013 14. Learned counsel for the defendants submits that admittedly defendant No.1 is a doctor and he was practicing and having independence source of income. Hence, he has purchased item Nos.9 to 12 out of his own earnings. He submits that the said properties are the self acquired properties of defendant No.1. The plaintiffs have no right to claim share over item Nos.9 to 12. he submits that the plaintiffs have not produced any records to establish that the family was possessing surplus funds. He submits that in a suit for partition and separate possession the initial burden is on the plaintiffs to establish that there was a nucleus for purchasing item Nos.9 to 12. The plaintiffs failed to discharge the burden of proof. The First Appellate Court was justified in dismissing the suit in respect of item Nos.9 to 12. Hence judgment and decree passed by the First Appellate Court is just and proper and does not call for any interference. Accordingly he prays to dismiss the appeal.

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NC: 2024:KHC:15415 RSA No. 48 of 2013 15. Perused the records and considered the submissions of learned counsel for the parties. 16. Substantial question of law Nos.1 to 3:As these questions are interlinked with each other, they are taken together for common discussion in order to avoid repetition of facts. The mother of the plaintiffs, who is the Power of attorney holder of the plaintiffs was examined as PW.1. She has reiterated the plaint averments in the examination-in-chief and in order to establish that the suit schedule properties are the ancestral and joint family properties of the plaintiffs and defendants produced the documents, Ex.P1 is the Power of Attorney executed by the plaintiffs in favour of PW.1 to depose on behalf of plaintiffs, Ex.P2 is the RTC extract of land bearing Sy.No.310/1A, Ex.P3 is the RTC extract in respect of land bearing Sy.No.32/1, Ex.P4 is the RTC extract in respect of land bearing Sy.No.305/A, Ex.P5 is the RTC extract of land bearing Sy.No.312/1. Ex.P6 is RTC extract of land in Sy.No.128/1, Exs.P2 to 6 stands in the name of defendant

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NC: 2024:KHC:15415 RSA No. 48 of 2013 No.1, Exs.P9 to 11 are the tax assessment extracts in respect of residential and commercial property wherein the defendant No.1 was running his clinic, Ex.P8 is the tax demand register in respect of property No.10, said property stands in the name of defendant No.1, Ex.P12 is the record of rights in respect of land bearing Sy.Nos.129/1 and 129/3. The said lands stands in the name of defendant No.1. 17. In rebuttal, the defendant No.1 was examined himself as DW.1 and he has reiterated the written statement averments in the examination-in-chief and in order to prove that item Nos.9 to 12 are the self acquired properties of defendant No.1, he has deposed that he had purchased the property out of the income derived from the medical profession and further he was the member of Legislative council. In order to prove that the said lands are purchased, produced Ex.D1 is the Special Power of Attorney executed by plaintiff No.2 in favour of PW.1. Ex.D2 is an Interlocutory application filed in suit in

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NC: 2024:KHC:15415 RSA No. 48 of 2013 O.S.No.37/2000 on the file of Family Court, Mysuru, wherein plaintiff No.2 filed a suit for maintenance against defendant No.2, Ex.D2(a) is the certified copy of the sale deed dated 24.09.1945 which discloses that defendant No.1 purchased the property, Ex.D3 is the certified copy of the deposition, Ex.D3(a) is the registered sale deed wherein defendant No.1 has purchased the property, Ex.D4 is the certified copy of the sale deed which discloses that defendant No.1 has purchased land bearing Sy.No.957/1, Exs.D5 and 6 are the certified copy of the sale deeds dated 08.03.1954 and 20.06.1959, Exs.D7 and 8 are the katha exchange endorsements, Ex.D9 is the certificate from Town Municipal, Srirangapatna, Exs.D10 and 11 are RTC extracts. In the course of cross examination nothing has been elicited from the mouth of this witness. Defendant No.2 was examined as DW.2. He has deposed in the same terms of DW.1. From the perusal of the records produced by both the parties, the suit schedule properties stands in the name of defendant No.1, as the defendant No.1 has admitted in the written

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NC: 2024:KHC:15415 RSA No. 48 of 2013 statement as well as in the course of cross examination that item Nos.1 to 8 of the suit schedule properties are the ancestral and joint family properties of plaintiffs and defendants. The defendant No.1 has taken a defence that the defendant No.1 is a doctor and was practicing and earned money out of his profession. He had purchased item Nos.9 to 12 of the suit schedule properties and also produced the registered sale deeds marked as Ex.D2(a) to 3(a), 4 to 6. It is the case of the plaintiffs that defendant No.1 purchased item Nos.9 to 12 of the suit schedule properties out of joint nucleus. The plaintiffs have not produced any records to establish what was the income derived from item Nos.1 to 8 of the suit schedule properties. Further, the defendant No.1 has pleaded in the written statement that the income derived from item Nos.1 to 8 was not sufficient for maintaining the joint family, the said fact has not been denied by the plaintiffs by filing rejoinder.

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NC: 2024:KHC:15415 RSA No. 48 of 2013 18. It is the case of the plaintiffs that, the suit schedule properties item Nos.9 to 12 are the joint family properties of plaintiffs and defendants and same were purchased out of joint family nucleus. In order to prove the nature of suit item Nos.9 to 12 of the properties, the burden lies on the plaintiff to prove that item Nos.9 to 12 of the suit schedule properties were purchased from joint family funds. The plaintiffs except the oral testimony of PW.1 has not produced any records to show that the family was possessing surplus fund for purchasing suit item Nos.9 to 12. On the facts the First Appellate Court recorded its finding that, plaintiff has failed to prove that there was a joint nucleus and out of the nucleus the defendant No.1 purchased suit item Nos.9 to 12. Further there is a presumption in regard to the joint family, but there is no presumption in regard to the joint family property. The defendant No.1 on the contrary, has produced records to show that the defendant No.1 was practicing as a medical practitioner and had a source of income and further defendant No.1 was also a member of

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NC: 2024:KHC:15415 RSA No. 48 of 2013 Legislative Council and had a sufficient source of income for purchasing suit item Nos.9 to 12. The First Appellate Court on re-appreciation of material evidence on record has rightly held that the plaintiffs have failed to prove that item Nos.9 to 12 are the joint family properties of plaintiffs and defendants and rightly passed the impugned judgment, by reversing the judgment and decree of the trial Court. In view of the above discussion, I answer substantial question Nos.1 to 3 in the affirmative. 19. Accordingly, I proceed to pass the following: ORDER The appeal is dismissed. The judgment and decree passed by the First appellant Court is hereby confirmed. No order as to the costs. SD/- JUDGE sks