THE PRINCIPAL COMMISSIONER OF INCOME TAX vs. M/S ADARSH COOPERATIVE CREDIT SOCIETY LIMITED

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 14TH DAY OF FEBRUARY 2024 PRESENT THE HON'BLE MR JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR JUSTICE RAJESH RAI K REGULAR FIRST APPEAL NO. 100009 OF 2016 (PAR) C/W RFA CROSS OBJ NO. 100010 OF 2017

IN RFA NO.100009 OF 2016:

BETWEEN:

AND:

MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2024.02.22 16:00:32 +0530

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R/O: SOMANAKATTI, TQ: RON, DIST: GADAG-561102.

THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 02.11.2015 PASSED IN O.S.NO.15/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, RON DECREEING PARTLY THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

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IN RFA CROB. NO.100010 OF 2017: BETWEEN:

SHAKUNTALA @ SHEKAMMA W/O. VEERUPAKSHAPPA SOMARADDI, AGE: 57 YEARS, OCC: AGRICULTURE, R/O: TALAKAL, TQ: YALABURGA, DIST: KOPPAL-583201. …CROSS-OBJECTOR

(BY SRI.PRASHANT S.HOSMANI, ADVOCATE) AND:

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AGE: 31 YEARS, OCC: AGRICULTURE, R/O: SAVADI, NOW R/O: NEAR GOVERNMENT HOSPITAL, KOPPAL, DIST: KOPPAL-583201.

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THIS RFA.CROB IS FILED UNDER ORDER 41 RULE 22 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 02.11.2015 PASSED IN O.S.NO.15/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JUDICIAL MIGISTRATE FIRST CLASS, RON, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

THESE RFA AND CROSS OBJECTION COMING ON FOR ORDERS, THIS DAY, ASHOK S. KINAGI, J., DELIVERED THE FOLLOWING:

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JUDGMENT

This appeal and cross objections are filed by the appellants and the cross-objector challenging the judgment and preliminary decree dated 02.11.2015 passed in O.S. No.15/2013 by the learned Senior Civil Judge and JMFC Ron. 2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court in O.S.No.15/2013. In RFA No.100009/2016, appellants are defendants No.1 and 2 in and respondent No.1 is the plaintiff and respondents No.2 to 16 are defendants No.3 to 17. In Crob.No.100010/2017, cross-objector is the plaintiff and respondents No.1 to 17 are defendants No.1 to 17. 3. Brief facts leading rise to filing of these appeal and cross objections are as under: The plaintiff filed a suit for partition and separate possession of her legitimate share in the suit properties. It is the case of the plaintiff that Tippanagouda is the

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propositus of the family. Yallavva is the wife of Tippanagouda. Tippanagouda had two sons by name Yallappagouda and Ramanagouda. The plaintiff and defendant No.4 are the daughters and defendant Nos.1 to 3 are the sons of Ramanagouda. Hanamavva is the wife of Ramanagouda. Defendant Nos.1 to 4 and the plaintiff represent the branch of Ramanagouda and defendant Nos.5 to 13 represent the branch of Yallappagouda. It is contended that suit ‘A’ schedule properties are situated at Sulla village in Badami Taluk and all the properties are the ancestral properties of the plaintiffs and defendant Nos.1 to 4. The branch of Yallappagouda is having half share and the branch of Ramanagouda is having the remaining half share. It is contended that, some of the properties described in schedule ‘B’ and ‘D’ are the properties inherited by Smt. Yallavva who is the wife of propositus Tippanagouda and after her demise, her son Yallappagouda and Ramanagouda got divided the properties inherited by Yallavva from her parents. In the said partition, 40 acres of land each fell to the share of

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Ramanagouda and Yallappagouda and under that partition, one house and one open space each were allotted to the share of Ramanagouda and Yallappagouda. After the demise of Ramanagouda, defendant No.2 started to manage the affairs of the joint family properties consisting of the plaintiff, himself and defendants Nos.1, 3 and 4. Defendant No.2 purchased some of the properties shown in ‘B’ and ‘D’ schedule and entire properties shown in ‘C’ schedule by using the joint family nucleus. Hence, it is stated that the suit schedule properties are the joint family properties of the plaintiffs and the defendants. It is contended that the plaintiffs and defendants are members of the joint family. The plaintiffs demanded for partition and separate possession but the defendants denied to effect partition. Hence, cause of action arose for the plaintiffs to file a suit for partition and separate possession. 4. The trial Court issued summons. Defendant Nos.1 to 4 and 14 to 17 appeared through their counsel.

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Defendant Nos.5 to 8 and 11 to 13 remained absent and they were placed exparte. Defendant Nos.9 and 10 were minors. 5. Defendant Nos.1, 2 and 4 filed written statement denying the averments made in the plaint. It is contended that Ramanagouda and Yallappagouda have inherited certain properties from their parents and admitted partition in those properties between Yallappagouda and Ramanagouda and they also admitted that in the said partition, 39-40 acres of land, one house and one vacant site each were allotted to the share of Ramanagouda and Yallappagouda. It is contended that all the ancestral properties were divided by metes and bounds in the year 1996 itself and defendant Nos.1 to 3 are in possession of their respective properties as absolute owners. For such partition, the plaintiff and defendant No.4 have given their consent. Hence, the plaintiff and defendant No.4 have no right, title and interest in the ancestral properties. It is contended that defendant No.3

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has purchased item Nos.21 to 23 in schedule ‘B’ property from his own earnings and therefore those properties are the self-acquired properties of defendant No.3. Hence, prayed to dismiss the suit. 6. The trial Court on the basis of the pleadings of the parties, framed the following issues: “ISSUES 1. Whether the plaintiff proves that, she has got 1/5th share out of her fathers ½ share in the suit schedule A properties and 1/5th share in the remaining suit schedule B, C and D properties?

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1/5th share in Item No.i to vii, xiv, xv, xvii, xviii of schedule-D properties. The suit in respect of VPC No.630 described in schedule-D is dismissed as the property extract has not been produced. So also, the defendants No.1 to 4 are having 1/5th share each out of ½ share in schedule-A properties. So also, the defendants No.1 to 4 are having 1/5th share each in Item No.ii to xiii, xv to xvii, xx and xiv in schedule-B properties. So also, the defendants No.1 to 4 are having 1/5th share in Item No.i to vii, xiv, xv, xvii, xviii of schedule-D properties. The partition in landed properties shall be effected U/s.54 of CPC. The partition in house and vacant sites shall be effected through Court Commissioner. 9. Defendant Nos. 1 and 2 aggrieved by the judgment and preliminary decree passed in the aforesaid suit preferred appeal in RFA No.100009/2016. The plaintiff aggrieved by the judgment and preliminary decree dismissing the suit in respect of item Nos.i, xiv, xviii, xix, xxi to xxiii in ‘B’ schedule properties and all properties in

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‘C’ schedule and item Nos.viii to xiii and xvi in Schedule-D properties and house property in VPC No.680 described in Schedule-D property, has filed cross-objections in Crob.No.100010/2017. 10. Heard the learned counsel for defendant Nos.1 and 2 and also learned counsel for the plaintiff. 11. The learned counsel for defendant Nos.1 and 2 submits that there was a prior partition in the year 1996 and the parties have acted upon and effected Mutation Entry No.553. She submits that the trial Court has committed an error in decreeing the suit of the plaintiff. She also further submitted that defendant Nos.1 and 2 have purchased some of the properties out of their self income. She submits that the trial Court has committed an error in not properly considering Mutation Entry No.553 and further submitted that the plaintiff has been excluded from the joint family possession of ancestral properties and further, after the marriage of the plaintiff and defendant No.4, they are residing in their respective

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husband’s house. She further submits that the trial Court was justified in dismissing the suit of the plaintiff in respect of the aforesaid properties. Hence, the judgment and decree passed by the trial Court is arbitrary and erroneous. Hence, on these grounds she prays to allow the appeal filed by defendant Nos.1 and 2 and dismiss the cross-objections filed by the plaintiff. 12. The learned counsel for the plaintiff submitted that the trial Court has committed an error in dismissing the suit in respect of the aforesaid properties. He submits that the said properties were purchased out of the joint family nucleus. Hence, the suit properties are the joint family properties of the plaintiff and the defendants. He submits that the trial court has committed an error in dismissing the suit of the plaintiff. Hence, he prays to dismiss the appeal and to allow the Cross-objection. 13. Perused the records and considered the submissions of the learned counsel for the parties.

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iv) Whether the defendants prove that the judgment and decree passed by the trial Court is arbitrary and erroneous? v) What order or decree?

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share in the partition. On the strength of the application submitted by defendant No.1, the names of the defendants were entered in the Revenue Records as per Ex.P-25. Further, during the course of cross-examination of PW-1, it is elicited that she do not know which of the properties have been purchased from the joint family income including the boundaries of the properties and further she is not able to state the names of the vendors, year of purchase and total consideration paid for the purchase of the properties and further also admitted that from 1996 till today, defendant Nos.1 to 3 are residing separately and defendant No.1 was a High School teacher, defendant No.2 was doing Kirana business and defendant No.3 was doing agricultural work independently. She also admitted that defendant No.1 was getting salary for his service and retired about six years back and also admitted that defendant No.1 had purchased a site from Sri.Sangameshwara High School Committee and it is further elicited that defendant No.2 was working in a kirana shop and thereafter he started kirana business

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independently at Savadi village and defendant No.2 was getting surplus income from his business and thereafter he started ginning mill from his income and savings and defendant No.2 raised loan from KSFC for establishing a ginning mill and admitted that the ginning mill was established in the year 1990 and defendant No.2 alone is running the said mill. She also further admitted that in the year 2002, the defendant started fertilizer and pesticide shop and obtained insurance policy from LIC and received maturity amount. Defendant No.2 purchased land bearing Sy.No.309/1+2/2 measuring 7 acres 35 guntas of Savadi village by using the maturity amount of LIC policy for consideration of Rs.1,78,000/- and also admitted that defendant No.2 purchased Sy.No.220/3+4A measuring 2 acres 27 guntas for consideration of Rs.8,80,000/- by utilizing LIC policy amount and also admitted that defendant No.2 received a sum of Rs.2,09,228/- in the year 2000 and by utilising the said amount, defendant No.2 purchased plot Nos.1438/1, 1438/2 and TMC No.419/1B/74 and 419/1B/79 and also

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purchased plot Nos.1438/7 and 1438/2 for consideration of Rs.6,000/- and admitted that the properties shown in the sale deeds have been purchased after 1996 in the name of different persons. From the perusal of the cross- examination of PW-1, she has clearly admitted that the properties at Item Nos.1, 14, 18, 19, 21 to 23 in Schedule ‘B’ and all properties in respect of Schedule ‘C’ and property Item Nos.8 to 13 and 16 in Schedule ‘D’ are not the ancestral properties of the plaintiff and the defendants and further, the plaintiff has failed to prove that there was nucleus in the joint family for purchasing the said items. Except the oral testimony of PW-1, the plaintiff has not examined any witness to establish that there was surplus fund for purchasing the aforesaid items in the names of different persons in the family. 17. The defendants have admitted that in regard to property Item Nos.ii to xiii, xv to xvii, xx and xxiv in Schedule ‘B’ and Item Nos.i to vii, xiv, xv, xvii and xviii of Schedule ‘D’ are the ancestral and joint family properties.

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The plaintiff has produced the documents in respect of the aforesaid properties which disclose that the said properties are the ancestral properties of the plaintiff and the defendants. 18. In rebuttal, defendant Nos.1 and 2 were examined as DWs.1 and 2 and they have reiterated the written statement averments in their examination-in-chief and contended that the aforesaid properties i.e. Item Nos. Nos.i, xiv, xviii, xix, xxi to xxiii in Schedule ‘B’ and all properties in Schedule ‘C’ and Item Nos.viii to xiii and xvi in Schedule ‘D’ are purchased by their own earnings. In order to prove that they have purchased the aforesaid properties out of their self earnings, DW-1 has clearly admitted in the course of his cross-examination that defendant No.1 was working as a High School teacher and was getting salary. He was retired from service and defendant No.2 was initially working in a kirana shop and subsequently, he started his own kirana shop, earned money and purchased the properties and he was getting

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surplus income from his business and started a ginning mill and defendant No.2 has raised loan from KSFC for establishing the ginning mill; defendant No.2 had LIC policy and the said LIC policy matured and out of the maturity amount received by defendant No.2, he has purchased the said properties under registered sale deeds and further in order to establish that the suit properties are the self-acquired properties of defendant Nos.1 to 3, the defendants have produced the records whereunder Exs.D-1 to D-10 are Khata extracts, Exs.D-11 to D-29 are the extract of house and open space, Exs.D-30 & D-31 are the property register cards, Exs.D-32 to D-45 are the record of Rights in respect of the suit schedule properties, Exs.D-46 to D-78 are the Panchayat receipts, Exs.D-79 to D-82 are the copy of the mutation extract, Ex.D-83 is the resolution passed by the Gram Panchayat, Exs.D-84 to D- 88 are the receipts issued by APMC, Ex.D89 is the copy of the letter issued by the KSFC which disclose that defendant No.2 had obtained loan from KSFC for establishing the ginning mill, Ex.D-90 is the reconveyance

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deed executed by KSFC in favour of defendant No.2, Ex.D- 91 is the copy of the letter dated 14.03.2000 addressed by defendant No.2 to the Labour Department intimating the number of labourers working in the ginning mill, Exs.D-92 to D-382 are the Records of Right, Exs.D-383 & D-384 are the Mutation extracts, Exs.D-385 & 386 are the applications submitted to the Village Accountant, Exs.D- 387 & D-388 are the copy of the notices issued by the Village Accountant, Exs.D-389 to D-404 are the original registered Sale deeds which discloses that defendant No.2 purchased the properties under the said registered sale deeds, Ex.D-405 is the Panchayat resolution, Ex.D-406 is the LIC letters which disclose that defendant No.2 was holding LIC policies and the same were matured and defendant No.2 has received the maturity amount, Ex.D- 407 is the Registration Certificate of income tax, Ex.D-408 is the Registration certificate of VAT, Exs.D-409 is the acknowledgement of the Agricultural Officer, Ex.D-410 is the certificate issued by the Income Tax Officer, Exs.D-411 and D-412 are the passbooks. Further, in order to

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establish that the defendants have purchased the properties out of their own income, they have also examined DWs.3 and 4. 19. From the perusal of the said records, it discloses that defendant No.1 was working as a teacher in High School and was getting salary and further defendant No.2 was, initially, working in a kirana shop and subsequently he started a kirana shop independently and was getting surplus fund from the said business and out of the said business earnings, defendant No.2 has purchased the properties under the registered sale deeds and further defendant No.2 has also established a ginning mill by obtaining loan form KSFC and later on defendant No.2 has repaid the loan amount and the KSFC has reconveyed the said property to defendant No.2. 20. From the perusal of the records produced by the parties, it discloses that the properties at item Nos. Nos.i, xiv, xviii, xix, xxi to xxiii in Schedule ‘B’ and all properties in Schedule ‘C’ and the properties in item

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Nos.viii to xiii and xvi in Schedule ‘D’ are the self-acquired properties of defendant Nos.1 to 3. The plaintiff has failed to establish that the aforesaid schedule properties are the joint family properties of the plaintiff and the defendants. The plaintiff has established that Item Nos.ii to xiii, xv to xvii, xx and xxiv in Schedule ‘B’ properties, item Nos.i to vii, xiv, xv, xvii and xviii in Schedule ‘D” properties are ancestral joint family properties of the plaintiff and the defendants. Insofar as the other remaining properties in Schedule ‘B’ and ‘D’ and ‘C’ properties are concerned, the plaintiff has failed to establish that they are acquired out of joint family nucleus. 21. In view of the above discussion, we answer point No.(i) partly in the affirmative and partly in the negative holding that the plaintiff has proved that Item Nos.ii to xiii, xv to xvii, xx and xxiv in Schedule ‘B’ property, item Nos.i to vii, xiv, xv, xvii and xviii in Schedule ‘D’ are the ancestral joint family properties of the plaintiff and the defendants and the plaintiff has failed

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to prove the rest other properties are the joint family properties of the plaintiff and the defendants. 22. Point No.(ii): It is the case of the defendants that there was prior partition in the year 1996 and the parties have acted upon. In order to substantiate their defence, the defendants, except producing M.E. No.553, have not produced any other records. However, the defendants, in order to prove prior partition, examined two witnesses as DWs.3 and 4 who have deposed that there was a partition effected between the parties in the year 1996 and further in the course of cross-examination, they have admitted that they were not present at the time of effecting partition between defendant Nos.1 to 3 and DW- 3 has admitted that till today, the family of defendant Nos.1 to 3 are residing jointly and further the plaintiff has denied about prior partition. From the evidence of DWs.3 and 4, they have clearly admitted that they were not present at the time of partition effected between defendant Nos.1 to 3. The defendants have failed to prove

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that there was a prior partition between defendant Nos.1 to 3 and DW-3 has also clearly admitted in his cross- examination that defendant Nos.1 to 3, till today, are residing jointly. 23. From the perusal of the evidence of the defendants, the defendants have failed to prove that there was a prior partition between defendant Nos.1 to 3 and further, except producing Mutation Entry No.553 and the evidence of defendant Nos.3 and 4, does not help the defendants in proving prior partition. The defendants have failed to prove that there was a prior partition between defendant Nos.1 to 3. 24. In view of the above discussion, we answer point No.(ii) in the negative. 25. Point No.(iii): As we have already observed in Point No.(i) that the plaintiff has failed to prove that Item Nos.1, 14, 18, 19, 21 to 23 in Schedule ‘B’ and all properties in Schedule ‘C’ and the properties in item Nos.8

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to 13 and 16 in Schedule ‘D’ are the joint family properties of the plaintiff and the defendants, the Trial Court, on the basis of the oral and documentary evidence, has rightly held that the plaintiff has failed to prove the aforesaid properties are the joint family properties of the plaintiff and the defendants. The trial Court has rightly dismissed the suit in respect of the aforesaid items. Hence we answer point No.iii in negative. 26. Point No.(iv): As we have already observed that the plaintiff and the defendants are the members of Hindu undivided family and there is no partition effected between the plaintiff and defendants, the trial court considering the oral and documentary evidence placed on record, was justified in recording a finding that the properties shown in Item Nos.ii to xiii, xv to xvii, xx and xxiv in Schedule ‘B’ properties and item Nos.i to vii, xiv, xv, xvii and xviii in Schedule ‘D’ properties are the ancestral joint family properties of the plaintiff and the defendants and rightly decreed the suit and awarded 1/5th

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share to the plaintiff out of ½ share in Schedule ‘A’ properties and defendant Nos.1 to 4 are entitled to 1/5th share each out of ½ share in Schedule ‘A’ property; the plaintiff is entitled to 1/5th share and so also defendants Nos.1 to 4 are entitled to 1/5th share each in item Nos. ii to xiii, xv to xvii, xx and xxiv in Schedule ‘B’ properties; and the plaintiff is entitled for 1/5th share and defendant Nos.1 to 4 are entitled to 1/5th share in item Nos.i to vii, xiv, xv, xvii and xviii in Schedule ‘D’ properties. The trial Court was justified in passing the impugned judgment. Hence, we do not find any error in the impugned judgment. In view of the above discussion, we answer Point No.iv the negative. 27. Point No.(v): in view of the above discussion, we proceed to pass the following: ORDER The appeal filed by the defendant Nos.1 and 2 and the Cross objections filed by the plaintiff are dismissed.

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The judgment and decree dated 02.11.2015, passed by the learned Senior Civil Judge and JMFC, Ron, in O.S. No.15/2013 is confirmed. In view of dismissal of the appeal and cross-objections, pending I.As., if any, does not survive for consideration and are accordingly disposed of. No order as to the costs.

Sd/- JUDGE

Sd/- JUDGE

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