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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 01ST DAY OF FEBRUARY 2019
PRESENT
THE HON’BLE MR. JUSTICE L. NARAYANA SWAMY ACTING CHIEF JUSTICE
AND
THE HON’BLE MR. JUSTICE B.M. SHYAM PRASAD
R.F.A. NO.100148 OF 2014 BETWEEN:
NAGARAJA SON OF NARAHARI RAIKER AGE 48 YEARS, OCC: BUSUNESS RESIDENT OF NEAR TIMMASAGAR TEMPLE VIDYANAGAR, HUBLI, DIST: DHARWAD. ... APPELLANT
(BY SRI. S.D. HOSAMANI, SRI S.S. PATIL & SRI. P.S. HOSAMANI, ADVOCATES)
AND:
RAMESH SON OF NARAHARI RAIKER AGE 67 YEARS, OCC: BUSINESS RESIDENT OF HOSUR, HUBLI DIST: DHARWAD.
SURESH SON OF NARAHARI RAIKER AGE: 65 YEARS, OCC: BUSINESS RESIDENT OF KESHWAPUR, HUBLI DIST: DHARWAD.
2 3. HARSHA SON OF PRAKASH SHET AGE 32 YEARS, OCC: GOLDSMITH RESIDENT OF SINDHANUR, DIST: RAICHUR.
DR. PRAKASH D. SHET AGE 66 YEARS, OCC: DOCTOR RESDENT OF SINDHANUR, DIST: RAICHUR
SMT. KALPANA WIFE OF RAMESH SHET AGE 51 YEARS, OCC: HOUSEHOLD WORK RESIDENT OF OPP TO DR. G.V. BHAT CLINIC DANDELI, DIST: NORTH KANARA.
SMT. LATA WIFE OF RAVI REVANKAR AGE 36 YEARS, OCC: BUSINESS RESIDENT OF HINDWADI, BELGAUM DIST: BELGAUM.
SMT. NEETA, WIFE OF INRAJEET KEMBHAVI AGE 34 YEARS, OCC: ARCHITECT RESIDENT OF DESHPANDENAGAR, HUBLI DIST: DHARWAD.
SMT BINA WIFE OF VARAD VERNEKAR AGE 34 YEARS, OCC: HOUSEHOLD WORK RESIDENT OF PUNE.
SAMARTH SON OF RAMESH RAIKER AGE 33 YEARS, OCC: BUSINESS RESIDNET OF HOSUR, HUBLI DIST: DHARWAD.
SUREKHA ALIAS REKHA, WIFE OF RAMESH RAIKER, AGE 60 YEARS, OCC: HOUSEHOLD WORK
3 RESIDNET OF KESHWAPUR, HUBLI, DIST: DHARWAD.
KISHORE, SON OF SURESH RAIKER AGE 36 YEARS, OCC: BUSINESS RESIDENT OF KESHWAPUR, HUBLI DIST: DHARWAD.
SMT. KANCHANA DAUGHTER OF SURESH RAIKER AGE 31 YEARS, OCC: HOUSEHOLD WORK RESIDENT OF KESHWAPUR, HUBLI DIST: DHARWAD.
AMRUTHA, DAUGHTER OF SURESH RAIKER AGE 28 YEARS, OCC: HOUSEHOLD WORK RESIDENT OF KESHWAPUR, HUBLI DIST: DHARWAD.
SMT. KUSUMA WIFE OF SURESH RAIKER AGE 50 YEARS, OCC: HOUSEHOLD WORK RESIDENT OF KESHWAPUR HUBLI, DIST: DHARWAD. ... RESPONDENTS
(BY SRI. ASHOK HARNAHALLI , SENIOR ADV., FOR SRI. R.V. ITAGI, SRI. S.C. HARTHI ADV., FOR R-1, 2, 6, 7 & 9 - 14; R-3, 4 AND 5 ARE SERVED; NOTICE TO R-8 IS DISPENSED WITH)
THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER XLI RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 28.07.2014 PASSED IN O.S.NO.189 OF 2006 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, HUBLI, DISMISSING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION, MESNE PROFITS AND FOR COURT COST.
4 THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 11.07.2018 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, B.M. SHYAM PRASAD J., DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiff, whose suit in OS. No.189/2006 for partition on the file of the II Additional Senior Civil Judge, Hubballi - (for short, ‘learned Civil Court Judge’) is dismissed by the impugned judgment and decree dated 28.07.2014, has filed this appeal.
The parties to the appeal are referred to as they are arrayed in the suit in OS. No.189/2006 on the file of the learned Civil Court Judge. 3. The plaintiff has filed the suit in OS. No.189/2006 inter alia for decree of partition and separate possession of the asserted 1/4th share in the different immovable and movable properties described in the Schedules ‘A’ to ‘L’ appended to the plaint, for taking of accounts of the firms/entities described in
5 schedule ‘I’ appended to the plaint and for other consequential relief/s.
Late Narahari Raiker and Smt. Ramabai Raiker, the deceased defendant No.3, are the parents of the plaintiff, defendant Nos.1 and 2, defendant No.6 and the deceased Smt. Usha. Late Narahari Raiker died on 4.10.1982 and Smt. Ramabai Raiker died on 16.11.2013 during the pendency of the suit in O.S.No.189/2006. The plaintiff is the younger brother and the defendant Nos.1 and 2 are the elder brothers. The defendant Nos.5 and 6 are the son and husband of the deceased sister, Smt. Usha. The defendant Nos.7 to 9, defendant No.10 and defendant No.11 are the daughters, son and wife of defendant No.1 respectively. The defendant Nos.13 and 14, defendant No.12 and defendant No. 15 are the daughters, son and wife of
6 defendant No.2 respectively.
The undisputed Genealogical Tree is as follows:
Note: The deceased Unmarried daughter of Mr. Narahari Raiker and Mrs. Ramabai, Ms. Sudha is not shown in the Genealogical Tree
The plaintiff, Sri. Nagaraj Raiker, contended that his grandfather, Sri Rama Raiker, held some agricultural lands as ‘Mulagenidar’ and these agricultural properties yielded good income. His Rama Raiker Krishna Raiker Narahari Raiker Ramesh - D1 Suresh-D2 Nagaraj - P Kalpana - D6 Surekha @ Rekha - D11 Kusuma - D15 Shantha Bai Ramabai - D3 Kishore - D12 Kanchana - D13 Amruta - D 14 Neeta -D8 Lata - D7 Beena - D9 Samarth - D10 Late Usha Prakash - D5 Harsha - D 4 Venkatesh Sundarabai
7 grandfather, Sri Rama Raiker, utilizing the income from the aforesaid agricultural lands commenced a successful Touring Cinema Business. The income from the aforesaid agricultural lands and business constituted joint family income, and therefore the said lands as well as the Touring Cinema Business continued as joint family properties when his grandfather, Sri Rama Raiker died on 25.08.1942. Sri. Narahari Raiker i.e., the plaintiff’s father, was aged about 19 - 22 years when Sri. Rama Raiker died, and Sri Narahari Raiker continued the Touring Cinema Business. The joint family owned a house at Kumta. Sri Narahari Raiker sold this residential property and brought the sale proceedings into joint family hotchpotch. Sri Narahari Raiker was a shrewd and an effective business man, and with the assistance of a nephew, Sri Vigneshwar Pawaskar (sister’s son), developed the Touring Cinema Business left behind by his father Sri Rama Raiker. Sri
8 Narahari Raiker, as the kartha of the undivided family, purchased and acquired leasehold rights to run cinema theatres viz., Apsara Theatre at Hubli, Nataraja Talkies at Sirsi, Ashoka Theatre at Dandeli and Samartha Talkies at Ankola. In addition, the joint family also obtained possession of Shakthi Talkies at Hubli and Sangam Talkies at Dharwad. From the aforesaid initial joint family nucleus and the wealth and capital from the aforesaid cinema businesses, Sri Narahari Raiker, for and on behalf of the joint family, acquired different cinema theatres, lands and buildings. However, as a matter of managing tax liability, some of the joint family properties/businesses were held in the name, M/s. Raiker Entertainments, a partnership firm constituted by Sri Narahari Raiker. Though Sri Narahari Raiker and his two elder sons viz. defendant Nos.1 and 2 were partners of this firm, the firm was for all purposes a joint family asset and every member of the joint family
9 was entitled to a share in the firm as well as the different properties held in the name of the firms and its partners.
Sri Narahari Raiker died on 4.10.1982. He had executed Will dated 30.8.1982. But, revoking this Will dated 30.8.1982, he executed the subsequent Will dated 12.9.1982. Sri Narahari Raiker admitted in these Wills that the properties bequeathed were joint family properties. The plaintiff was a minor as on the date of demise of his father, Sri Narahari Raiker. Though Sri Narahari Raiker executed these Wills, he did not have any right to bequeath the properties under the Will/s, and in any event the Will/s have to be read down to the extent of Sri Narahari Raiker’s share in the joint family properties.
10 7. After the demise of Sri. Narahari Raiker, the defendant Nos.1 and 2 were overseeing the businesses viz. Exhibition Finance and accounts, while the plaintiff, after attaining majority, was looking after the Distribution Business. The defendant Nos.1 and 2, with the intention of evolving tax management modus, started different partnership firms viz., (1) M/s. Ashoka Enterprises, (2) M/s. Raiker Theatres, (3) M/s. Raiker Theatre Trust and (4) M/s. Raiker Cinema Trust. The assets of these firms are also assets of the joint family as no individual investments are made. After the institution of the suit, the defendants constituted two more firms viz., M/s. Sri Ashta Vinayaka Enterprises and M/s. Raiker Ventures utilizing the joint family business.
Similarly, the defendant Nos.1 and 2, utilizing joint family funds, have acquired absolute rights to Item No.2 of the Schedule B Property. Initially,
11 a partnership under the name and style, M/.s Fernandese Braganza and Raiker Company was constituted by the defendant Nos.1 and 2 along with the owner of the property. However, the owner of the property later retired from the firm and defendant Nos.1 and 2 have continued to be the owners of the property as partners of the aforesaid firm. It is based on these assertions, the plaintiff has inter alia sought for a decree of partition and separate possession of the properties described in the Schedules A to I appended to the plaint.
On 2.11.2006, the defendant No. 1 filed Written Statement denying the plaint assertions. The other defendants viz, defendant Nos. 2 and 3 and defendants Nos. 10 to 15 filed a Memo on the same date adopting the Written Statement filed by the defendant No.1. The other defendants viz., defendant No.4 and 5
12 (Legal representatives of the deceased daughter) did not file any written statement. The other defendants, while pointing out that Sri Rama Raiker (the original propositus) was also married to Shanthabai and they had a son by name Sri. Venkatesh who died unmarried on 4.2.1968, contended that the plaintiff had failed to mention these details. However, these defendants (referred to as “the defendants”) otherwise admitted the relationship.
The defendants admitted that Sri Narahari Raiker inherited certain agricultural lands and a residential house at Kumta from his father, Sri. Rama Raiker. But, the defendants denied the plaint assertions that Sri. Rama Raiker started Touring Cinema Business from the joint family nucleus and that after Sri Rama Raiker's demise, his son, Sri Narahari Raiker continued the joint family business. The defendants denied that Sri Narahari Raiker sold the residential
13 house at Kumta and brought the sale proceeds therefrom into the joint family hotchpotch and that Sri Narahari Raiker, from out of the proceeds/profits/income from the joint family Touring Cinema Business, purchased/acquired cinema theatres, land and buildings as detailed in the plaint. The defendants denied these assertions stating that they were denying these assertions for want of knowledge. The defendants also denied the assertion that Sri Narahari Raiker, in order to reduce tax liability, constituted the partnership firm, M/s. Raiker Entertainments, as asserted by the plaintiff. Further, the defendants denied that Sri Narahari Raiker had executed either the Will dated 30.8.1982 or the Will dated 12.9.1982.
The defendants specifically contended that Sri Narahari Raiker, with an intention to provide livelihood for himself and for his family, entered into partnership
14 with one V. K. Pawaskar. Sri Narahari Raiker wanted his children to be educated. The defendant No. 1 pursued education and completed his education. But, the defendant No. 2 could not complete education because of the family circumstances and became independent at the age of 18 years. The defendant No. 2 set up his own businesses and resided separately. The defendants further took up the specific contention that Sri Narahari Raiker effected partition in the year 1965, and in this partition, the defendant Nos. 1 and 2 separated from their father. With this partition in the year 1965, the joint family in its essence was severed. There was another partition, a partial partition, in the year 1972 when the plaintiff was yet a minor and his share was set apart in such partial partition. After the plaintiff started living separately, an act of acceptance of the partition effected by his father, the plaintiff carried on his own life, and also as a partner with the
15 defendants in certain firm. The plaintiff filed his own income and wealth tax returns. The plaintiff appropriated amounts accumulated in his account and constructed residential house and bought immovable property. These properties have not been included in the plaint schedule. M/s Raiker Entertainment, a partnership firm constituted by Sri Narahari Raiker and other partnership firms between defendant No. 1 and 2 and inter se other defendants are entirely contractual and they are not joint family property assets. The defendants also took up specific defense as against the plaintiff's assertions insofar as the different properties described in the plaint Schedules A to I appended to the plaint.
Initially, the learned Civil Court only framed three issues which required the plaintiff to establish that the plaintiff and the defendant's constituted an
16 Undivided Joint Hindu Family, the suit schedule properties were ancestral properties and that the plaintiff was entitled for one-fourth share in the suit schedule properties. The plaintiff examined himself as PW.1 and marked on his behalf Exhibit P-1 to Exhibit P- 67. However, the defendants neither lead evidence nor marked any document. The learned Civil Court dismissed the suit in OS No.189 of 2006 vide its judgment and decree dated 29.11.2011. The plaintiff, and defendant No. 4, 5 and 6, filed appeal in RFA No.4030/2012 before this Court. This Court set aside the judgment and decree dated 29.11.2011 and the suit in OS No. 189/2006 was remanded back for fresh disposal after framing proper issues and providing opportunity to both the parties. The defendant No.1 impugned the judgment and decree of remand in RFA No. 4030/2012 before the Hon'ble Apex Court in Special Leave to appeal (Civil) 16402/2013. The Hon'ble Apex
17 Court directed the learned Civil Court to confine to the examination of the matter remanded and not to record fresh evidence.
The learned Civil Court vide its order dated 22.6.2013 re-cast the issues. This order dated 22.6.2013 was impugned by the defendant No. 1 and 2 in writ petition in WP No. 80947/2013. The said petition was rejected by the Writ Court. The defendant No. 1 and 2 impugned orders in WP No. 80947/2013 before the Hon'ble Apex Court in Special Leave Appeal
(Civil) No. 2516/2014. The Hon'ble Apex Court directed the learned Civil Court to provide an opportunity to both the plaintiff and defendants to lead necessary evidence on any of the issues depending on the burden of proof of the issues concerned.
The learned Civil Court, after the orders of the Hon'ble Apex Court on 10.2.2014 in Special Leave to
18 Appeal (Civil) No.2516/2014, listed the suit for evidence by the plaintiff. When the matter was listed for evidence, the parties to the proceedings filed different applications for amendment of the respective pleadings as also for treating the Issue No. 10 (as regards payment of Court Fee) as a Preliminary Issue. The learned Civil Court vide its separate orders allowed the applications for amendment, and insofar as the request to treat Issue No. 10 as a Preliminary Issue, the application was allowed. Further, the learned Civil Court vide its order dated 14.7.2014, on Issue No. 10, held that the defendants had failed to establish that the court fee paid by the plaintiff on the plaint was insufficient. Thus, Issue No. 10 was held in the negative against the plaintiff.
On 15.7.2014, a Memo was filed on behalf of the plaintiff stating that the plaintiff has already lead evidence, and that he has no further evidence. The
19 defendants took time for leading evidence. However the learned Civil Court on 24.7.2014 recorded that the defendants were not cooperating with the disposal of the suit by leading evidence. The request for adjournment to lead evidence was rejected and evidence on the defendant's side was taken as nil. The defendants, even thereafter, filed applications inter-alia for re-opening of the case and permission to cross-examine the plaintiff, who is examined as PW.1. The learned Civil Court rejected these applications, and later by the impugned judgment dated 28.7.2014 dismissed the plaintiff suit.
The learned civil court considered the following recasted issues. The burden of proof on the plaintiff were as per the following first six Issues: (1) whether the plaintiff proves that the suit schedule properties are ancestral joint family properties, (2) whether the plaintiff is in joint possession and enjoyment of the suit properties, (3) whether the plaintiff proves that
20 the amount invested in M/s Raiker Entertainment was out of the income of the ancestral joint family properties, (4) whether the plaintiff proves that the deceased Narahari Raiker bequeathed only his right, title and interest under the two Wills adverted to by the plaintiff, (5) whether the plaintiff is entitled for a share in the suit Schedule Properties, and if he is entitled to a share, what share and (6) whether the plaintiff is entitled to mesne profits. As regards the defendants, the burden of proof was on them as per the following next four issues i.e., (7) whether the defendant No. 1 proves that there was a partial partition between himself, defendant No. 2 and his father in the year 1965 and another partial partition in the year 1972, and thereafter the plaintiff started to reside separately from 1988, (8) whether the defendant No.1 proves that cinema theatres are self acquired properties of M/s Raiker Entertainment, (9) whether the property in CTS No.388/1A1 of Keshavapur, Hubbali is
21 the self-acquired property of defendant No.1, and (10) whether the defendant No.1 proves that the court fee paid by the plaintiff is insufficient. The learned Civil Court has held all the Issues in the negative.
The learned Civil Court has concluded that it is settled law that though there is a presumption about existence of a joint family, there is no presumption about the existence of joint family properties. Therefore, the onus of establishing the existence of joint family properties was on the plaintiff, but the plaintiff has failed to prove the existence of sufficient joint family nucleus and acquisition of immovable properties/businesses from such joint family nucleus. The reasons assigned by the learned Civil Court could be capsuled as follows: (i) Though the plaintiff's case is that the propositus, Sri Rama Raiker, did possess agricultural lands as well as a residential property that was sold by his
22 son (and plaintiff's father) Sri Narahari Raiker, the plaintiff has not been able to establish that such agricultural lands yielded income and such income was sufficient so as to constitute nucleus for commencement of joint family business. (ii) The plaintiff has listed twelve agricultural lands in the plaint Schedule A describing them as owned and possessed from the time of the propositus, Sri Rama Raiker. But, these lands are smaller extents, and in the absence of definite proof as regards the nature of use of/cultivation in these lands, the ownership of such lands by themselves cannot constitute requisite evidence for the purposes of establishing joint family nucleus. (iii) The evidence on record inter alia Exhibit No.59, a certified copy of the sale deed dated 21.3.1994 executed jointly by the plaintiff and the defendant No. 1 and 2 (along with their deceased mother, Defendant No.3) transferring one of the aforesaid agricultural lands described in the plaint Schedule A, indicates that plaintiff has himself admitted that the agricultural lands did not yield income.
23 (iv) Though the plaintiff has contended that the agricultural lands described as item Nos. 4 to 12 of the plaint schedule A were transferred and utilized for family business, the plaintiff has not furnished the details of the income from these lands, nor furnished copies of the sale deeds executed by the plaintiff/defendant No. 1 and 2 for these lands. On the other hand, the plaintiff has admitted in evidence that some of the lands described in Schedule A were lost because of the tenancy laws, and again the plaintiff has not been able to place on record the details of the lands lost under the tenancy law and the income from these lands. (v) Though it was canvassed on behalf of the plaintiff that the sale proceeds received under the sale deeds as per Exhibits P.58 to 60 (for transfer of 3 properties mentioned in Schedule A) were invested for acquisition of the other properties mentioned in the plaint schedules, the total sale consideration received under these sale deeds was only in a sum of `4,80,000/-. This amount of `4,80,000/- was too marginal a sum for acquisition of the different properties mentioned in
24 the plaint schedule. Even otherwise, according to the plaintiff, the plaintiff's grandfather, Sri Rama Raiker purchased the properties/commenced business way back in the year 1942, and Exhibits P.58 to 60 executed in the year 1994 cannot be proof, by themselves, of the existence of joint family nucleus for acquisition of different properties/commencement of businesses.
vi) The plaintiff's specific case is that his grandfather, Shri Rama Raiker started Touring Cinema Business and his business was extremely prosperous. The income from the agricultural lands and the said touring Cinema business was utilized for the purposes of starting other businesses and purchase of different immovable properties. However, the plaintiff has not furnished the name of the Touring Cinema business, the place of commencement of such business and income from such business.
(vii) The plaintiff has adverted to his father executing Wills dated 30.8.1982 and 12.9.1982 admitting to the existence of joint family properties
25 and business, but the plaintiff has not produced the same. Therefore, the reliance on the aforesaid wills is of no use to the plaintiff.
(viii) The plaintiff, despite orders on 12.9.2010, has not produced his Income Tax and Wealth Tax Returns. The plaintiff has not included properties purchased by him. The plaint suffers from fatal anomalies inasmuch as the plaintiff has not explained why he did not mention that his grandfather was married to Ms. Shantha Bai, the schedule properties are not identified as required in law, the plaintiff though has referred to 8 Cinema theatres and different movables, has not explained specifically which movables belong to which Cinema theatres and the plaintiff has not mentioned the account numbers but has only mentioned bank's names alleging that the firm has accounts with these banks.
Insofar as the plaintiff's case that M/s Raiker Enterprises is a joint family asset, the learned Civil Court concluded that the plaintiff has failed to
26 establish that M/s Raiker Enterprises was a joint family business and therefore, different Cinema theatres/properties, which even according to the plaintiff's documents stand in the name of other family members, or M/s Raiker Enterprises, cannot be construed as joint family properties.
Sri. S.S. Patil, the learned counsel for the plaintiff contended that the impugned judgement and decree are untenable for the following reasons. The Issues framed comprise of two sets of Issues: one set of Issues require the plaintiff to prove that the suit properties are ancestral/joint family properties, plaintiff is in joint possession of these properties (Issue No.2) and the amount invested in M/s Raiker Entertainment is out of the income from the joint family asset (Issue No.3), the other set of Issues require the defendants to prove there was partial partition/s in the years 1965 and 1972, the plaintiff started to reside separately from
27 1988 (Issue No.7) and the properties standing in the name of M/s Raiker Entertainments are self acquired properties of the partners thereof (Issue No.8). Further, the defendants are required to prove that the plaintiff is not in joint possession and therefore, the court fee paid is insufficient (Issue No.10). There is interplay in the burden cast by these Issues both on the plaintiff and the defendants respectively. The learned Civil Court has held both these sets of Issues in the negative.
Elaborating, the learned Counsel for the plaintiff contended that the finding by the learned Civil Court on Issue No.2 that is akin to Issue No.10, and on Issue No.3 that is akin to Issue No.8 are findings in contradiction. Issue No.2 requires the plaintiff to establish that he is in joint possession and enjoyment of the suit schedule properties while Issue No. 10 requires the defendants to establish that because the plaintiff is not in joint possession and enjoyment of the suit
28 schedule properties, the court fee paid by the plaintiff is insufficient. The learned Civil Court by its order dated 14.7.2014 while considering Issue No.10, has rendered a categorical finding that the plaintiff was in joint possession of the properties, and as such, court fee paid was sufficient. However, while answering Issue No. 2, the learned Civil Court has concluded that the plaintiff has failed to establish that he is in joint possession of the suit schedule properties.
Similarly, the plaintiff, in discharge of the burden under Issue No.3, is required to establish that income from joint family/ancestral properties was invested in M/s Raiker Enterprises, and the defendants, in discharge of the burden under Issue No.8, are required to establish that Cinema theatres/properties purchased in the name of M/s Raiker Enterprises are self acquired properties of the partners thereof. The
29 learned Civil Court has held both these Issues in the negative, thereby concluding that the Cinema Theatres/properties in the name of Raiker Enterprises are neither joint family nor self acquired properties. It cannot be that the suit schedule properties are neither joint/ancestral nor self acquired properties. These kind of conclusions are anomalous and self-destructive, and therefore, the impugned judgement is no judgement in the eye of law.
The learned Civil Court should have based on the evidence available, concluded that the suit schedule properties were either joint family properties or self acquired properties. The plaintiff has placed on record sufficient material to establish that the plaint schedule properties were indeed joint family properties, and the defendants, despite their specific defense, had not even tendered evidence. The learned Civil Court, instead of refusing to decide on whether the plaint
30 schedule properties were either joint family or self acquired properties, ought to have concluded, based on the evidence on record, that the plaint schedule properties were joint family properties.
The learned Civil Court has erred in relying upon only certain parts of the ocular evidence by the plaintiff as PW.1. It is settled law that the evidence by a witness will have to be read and appreciated as a whole and there cannot be selective reading of parts of evidence. However, the learned Civil Court has not read the entire evidence organically, and if the ocular evidence is so read conjointly with the documentary evidence, it is obvious that the plaintiff has been able to establish his case that the joint family nucleus was used to commence cinema business, and in later years, the different properties, including cinema theatres, were acquired under different names from out of the same joint family income.
The plaintiff in discharge of the burden required under the relevant Issues had placed sufficient material to establish his case namely the plaintiff is able to establish that Item No. 3 of Schedule B was purchased by the defendant Nos. 1 and 2 in the name of the plaintiff under the sale deed dated 28.1.1993 for a consideration of `4,00,000/-. Exhibit P.27 - Extract from the Property Register Card in the name of the plaintiff for the aforesaid property is also marked. This could not have been, if the defendants’ case as regards partial partitions in the year 1965 and 1978 and the cessation of joint family were indeed true. Further, to establish the existence of joint family and the properties mentioned in the plaint schedule were joint family properties, the plaintiff has produced • Exhibit P.43 - Application submitted by defendant No. 3 for mutation of Khata in the joint names of the plaintiff, defendant Nos.1, 2 and 3.
32 • Exhibits P.58 to P.60 - Certified copy of the sale deeds executed in the year 1994 by the plaintiff, defendant Nos.1, 2 and 3 referring to the properties conveyed thereunder as ancestral properties and receipt of sale consideration by way of instrument drawn in favour of 'Ramesh Raiker HUF Big', and • Exhibits P.64 to P.66 - Application submitted by the deceased defendant No.3 on 9.12.1982, for herself and as guardian of the plaintiff (was minor as of that date) referring to the Will executed by Shri Narahari Raiker and the subsequent Khata Change Notice issued by the office of the Land Surveyor, Hubballi.
The learned counsel for the plaintiff contended that these documents establish not only the existence of joint family but also joint family properties and joint family nucleus from which the other properties are purchased either in the name of the other family members or in the name of the firms constituted with certain members of the family as partners. The
33 learned Civil Court has not considered any of these Exhibits in proper perspective. Further, Exhibits P.64 and P.43 not only establish the execution of Will by Sri Narahari Raiker, they also establish that the family members had acted upon such Will. But, the defendants were deliberately withholding such evidence. The defendants, when called upon by the learned Civil Court vide its order dated 16.11.2009 to produce the Will executed by Sri Narahari Raiker, which is also referred to in Exhibits P.64 and P.43, the defendants simply filed a Memo dated 9.12.2009 stating that such Will was searched but not found. The learned Civil Court ought to have drawn adverse inference as against the defendants as contemplated under Section 114(g) of the Indian Evidence Act. But, in a very highly irregular and impermissible manner, the learned Civil Court has held that the plaintiff should have produced such Will.
Sri Ashok Haranahalli, the learned Senior Counsel for the defendants, refuted the canvas by the learned counsel for the plaintiff with the following submissions. It is settled law that though there is a presumption about the existence of a joint family, there is no presumption about the properties being joint family properties. Therefore, a plaintiff has to place necessary material to establish that the properties mentioned in the plaint schedule were joint family properties, and only if the plaintiff discharges such burden, the defendants would be required to place rebuttal evidence. In the present case, as the plaintiff himself failed to place necessary material on record to establish the existence of a joint family and the suit schedule properties were indeed joint family properties, the defendants need not have led in any evidence. The plaintiff cannot succeed asserting that the defendants have not led in evidence. Adverse inference, if any,
35 could be drawn against the defendants only if the plaintiff had established his case. Further, the impugned judgment rendered by the learned Civil Court upon proper appreciation of the inadequate material placed by the plaintiff, does not suffer from any infirmity or irregularity.
The learned Senior Counsel further contended that the plaintiff's specific case is that the income from the agricultural lands held by the family constituted joint family nucleus for the commencement of the Touring Cinema Business by the plaintiff's grandfather (Sri Rama Raiker) and that the plaintiff's father (Sri Narahari Raiker) continued the Touring Cinema Business started by Sri Rama Raiker, and also brought the sale proceeds from the sale of the ancestral residential house at Kumta into the joint family hotch- pot. Therefore, the plaintiff was required to establish not only the sufficiency of the income from the agricultural
36 lands to constitute joint family nucleus in the hands of Sri Rama Raiker, but also the continuation of the Touring Cinema Business by Sri Narahari Raiker after the demise of Sri Rama Raiker and utilization of the income there from and the sale proceeds from the sale of the residential property for the purposes of commencing business of running Cinema Theaters. But, there is no evidence at all in this regard. Therefore, the plaintiff cannot take any exception with the impugned judgment and decree.
Furthermore, the learned Senior Counsel contended that the plaintiff has categorically admitted in cross-examination that Sri Narahari Raiker commenced business of running Cinema Theaters with his nephew, Sri V.K. Pawaskar, who commenced proceeding in Miscellaneous No. 6/1993 seeking for appointment of an arbitrator asserting that he was entitled for a share in the partnership. This proceeding
37 in Miscellaneous No.6/1993 was dismissed, and an appeal was filed as against such dismissal. The defendant No.3, mother of the plaintiff and defendant Nos.1 and 2, joined the firm M/s Raiker Enterprises after the demise of Sri Narahari Raiker. Further, the plaintiff has also admitted that he is filing Income Tax/Wealth Tax as an individual. The jointly held agricultural lands at Ankola was sold only in the year 1994 by the plaintiff, defendant Nos.1 and 2 along with their mother, the defendant No. 3. The plaintiff has received the amount accumulated in the Firm/s, and utilized the same for construction of a residential premises in the year 2000 in the property purchased by defendant Nos.1 and 2 in the plaintiff’s name from out of the amount accumulated to his credit in the firm, M/s Raiker Enterprises. The plaintiff is a partner in M/s Ashok Enterprises and M/s R.K.Enterprises as well as M/s Raiker Theatres. These admissions, when read
38 in consonance with the failure on the part of the plaintiff to establish the existence of joint family nucleus in the hands of Shri Rama Raiker and continuation of Touring Cinema Business by Shri Narahari Raiker, demonstrates that the plaintiff's case is wholly untenable and false.
As regards the case law, Sri, S. S. Patil, the learned counsel for the plaintiff relied upon multiple decisions of the Hon'ble Apex Court as well as the decisions of this Court. These decisions are pressed into service by the learned Counsel for the plaintiff to emphasize the propositions listed hereinafter; and out of the different decisions relied upon by the learned counsel for the plaintiff, the following are referred to avoid repetition. • On burden of proof/ proof in a suit for partition: i. In a suit for partition, there is initial burden on the plaintiff to show that the properties
39 were joint Hindu family properties, and after the discharge of this initial burden, the onus shifts on to the defendants to show the property claimed by them was purchased by them independent of the joint family nucleus1. ii. If the members of joint family had no source of income except the income from the joint family properties, then the properties acquired by the Kartha or other members of the joint family should be presumed to be out of the joint family income: if such Kartha or the other family members assert that the concerned properties are self acquired properties, the burden is on them to establish the same2. iii. A property acquired by a Kartha or a co- parcener or member of a joint family, is impressed with the character of joint family. The test to decide whether the property acquired by a Kartha or a co-parcener or a member of a joint family, is that such
1 AIR 2007 SC Page 218 2 Kar.L.J 1990 (2) Page 147
40 property is purchased without any assistance or aid from the ancestral/joint family property: and the burden thereof is on the member/co-parcener/Kartha who asserts that the property is a self acquired property distinct and separate from being joint family/co-parcenery property3.
• On probative value of Assessment Orders as regards Joint Family Business: A joint family often carries on joint family business under different names and styles, and quite often constitutes different companies or partnerships for better handling of the business or to keep it manageable or for various other reasons. Therefore, mere correspondence with Income Tax Department/Authorities, or Assessment Orders passed by Income Tax Authorities, will not constitute proof of separation or that the properties are owned by such
3 AIR 1968 SC Page 683
41 companies/partnership firms de hors the joint family4. • On joint Possession of the members of a joint family: A co-owner has an interest in the whole of the property and also in every parcel thereof: possession of joint property by one co-owner is, in the eyes of law, possession of all even if one co- owner is not in actual possession of the subject properties5. • Burden of Proof of establishing Oral Partition: Merely because the members of a joint family are living separately, it cannot be presumed there was an oral partition. It is for such members of the joint family, who assert oral partition, to establish the same by placing necessary attendant circumstances6. • Adverse Inference against the party does not enter evidence:
4 AIR 2003 SC page 1880 5 2009 AIR SCW page 365 6 AIR 2006 Karnataka 31
42 When a party to the suit does not enter the witness box and states his case offering himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct and therefore, adverse inference will have to be drawn7.
On the other hand, Shri Ashok Haranahalli, the learned Senior Counsel, canvassed the following propositions relying upon the decisions as mentioned hereinafter: • It is settled law that a joint family as such cannot enter into a partnership. However a joint family member or the Kartha of a joint family can enter into a partnership within their own rights or on behalf of the joint family. The question when a kartha or a joint family member who was a member of partnership dies is, whether such kartha, or member of the joint family, entered into partnership firm within his own rights or on behalf of the joint family. This question is question of
7 Vidhyadhar vs. Manikrao - 1999 LAWSUIT (SC) 316
43 fact to be decided on the facts and circumstances of each case8.
• When a managing member of a joint family enters into a partnership with a stranger, the other members of the family do not ipso facto become partners unless there is reliable evidence to establish that the managing member of the joint family entered in to partnership with a stranger on behalf of, and for the benefit of, the joint family9. • Where certain properties stand in the name of the manager of a joint family, and there is sufficient nucleus for the joint family property from out of which those properties might have been acquired, and apart from those properties the manager had no other source of income, the presumption arises that the newly acquired properties were the properties of the joint family. In the converse, if the plaintiff is unable to establish the existence of nucleus of joint family, or the sufficiency thereof, there can't be any presumption that the properties
8 AIR 1954 Madras page 282 9 Privy Council Appeal No 122/1931, and referred to by the Hon'ble Apex Court in its decision reported in AIR 1960 SC Page 910
44 standing in the name of the manager of the joint family are joint family properties10. • Some of the decisions have been commonly relied upon on behalf of both the plaintiff and the defendants which are AIR 2003 SC page 1880 & AIR 2007 SC page 218.
In view of the rival contentions, the questions that arise for consideration are: a. Whether the impugned judgment is no judgment in the eye of law because the learned Civil Court has found in the 'Negative' on the two sets of Issues, which require the plaintiff and defendants to prove their respective contradictory cases as regards the existence of a joint family, joint possession and enjoyment of the suit schedule properties and the nature of properties held in the name of M/s Raiker Enterprises. b. Whether the learned Civil Court has erred in concluding that the plaintiff had failed to discharge the burden of establishing, in terms of
10 AIR 1959 SC 906.
45 the Issues re-cast, that the suit schedule properties are joint family properties. c. Whether the impugned judgement recalls for any interference by this court. d. What order?
The impugned judgment is premised in the understanding that it is settled law that though there is presumption as regards the existence of a joint family, there is no presumption about properties being joint family properties and therefore, a plaintiff, who commences a suit contending that properties listed in the plaint are joint family properties must necessarily prove the same. Indeed it is settled that proof of the existence of a joint family does not lead to the presumption that properties held by any member of the family is a joint family property, and the burden shifts upon anyone asserting that certain properties are joint family properties to establish such fact. However, where
46 it is established that the joint family possessed some income yielding properties which from its nature and relative value may have formed the nucleus for the purchase of properties in question, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family nucleus. The Hon'ble Supreme Court in the decision of Appasaheb Peerappa Chamdgade vs. Devendra Peerappa Chamdgade and others reported in (2007) 1 SCC 521 has clearly enunciated this proposition after reference to its earlier decisions in the similar lines. In fact, this proposition has also been reiterated by the Hon'ble Supreme Court in its subsequent decision in Marabasappa (dead) by LRs and others versus Ningappa (dead) by LRs and others reported in (2011) 9 SCC 451. There cannot be any quarrel with the proposition that the initial burden is on the person, who claims that the properties are joint family properties to establish the
47 same. But, after the discharge of this initial burden, the burden shifts onto the party who claims that the properties have been purchased by him through his own source and not from the joint family nucleus. Therefore, it imperatively follows that the plaintiff who asserts that certain properties are joint family properties, must establish (a) existence of joint family properties and (b) such properties yielded income of value; of course, as regards sufficiency of income, the plaintiff would be entitled to the benefit of presumption from the nature and value of the properties/income. If these requirements are established, the initial burden is discharged and the burden shifts onto the defendants, who assert that such properties are self acquired properties. This would be in line with the settled proposition that the burden of proof is not static and it shifts during the course of the evidence. Initial burden rests on the party who would fail if no evidence is given,
48 and after such evidence is recorded, the burden shifts upon the party against whom judgement would be given if no further evidence is recorded.
The plaintiff's case as against the impugned judgment will have to be examined in the light of these settled propositions of law. Therefore, the learned Civil Court was, in the first place, required to examine whether the plaintiff had discharged the initial burden i.e., the plaintiff had established the existence of joint family properties and income from such properties. If the plaintiff discharged this initial burden, the plaintiff would be entitled to the benefit of presumption as regards the sufficiency of income from the nature and value of the jointly held properties and also income. If the learned Civil Judge could, upon consideration of the plaintiff's evidence, enter conclusion that the plaintiff did not discharge this initial burden of proof, the
49 learned Civil Court had no choice but to dismiss the suit. Further, the learned Civil Court need not have embarked upon further enquiry to find out whether the defendants had lead evidence to establish their defence in discharge of the burden on them, because such burden would rest upon the defendants only if the plaintiff could discharge the initial burden.
The learned Civil Court, upon appreciation of evidence placed on record by the plaintiff, has rendered an opinion that the plaintiff, obliged in law to discharge the initial burden, was not able to discharge the burden cast upon by the first set of Issues which required him to establish that suit schedule properties were joint family properties, that plaintiff was in joint possession of the suit schedule properties and that investments were made in M/s Raiker Enterprises from out of the joint family nucleus. The learned Civil Court based on such finding could have, without committing any
50 infirmity, dismissed the suit without embarking upon any finding on those Issues which required the defendants to establish their case. The burden would rest on the defendants only if the plaintiff was able to discharge the initial burden. In fact, as no evidence is led in by the defendants, the learned Civil Court could not have rendered a finding in the negative on the second set of Issues on merits. Therefore, merely because the learned Civil Court has rendered a finding in the negative, though erroneously, even insofar as the Issues that cast the burden on the defendants, it cannot be held that the impugned judgement is erroneous or irregular or perverse. Therefore, the canvas on behalf the plaintiff that the findings in the negative by the learned Civil Court on two sets of contradictory Issues are findings in contradiction and as such, the impugned judgement is no judgement in the eyes of law cannot be
51 accepted. Accordingly, question No. 1 framed for consideration is answered.
The evidence placed on record is examined, in the light of the submissions made on behalf of the plaintiff in consideration of the second question formulated. The plaintiff’s case is essentially three pronged i.e., ancestral agricultural lands (which are described in schedule A) yielded income and Sri Rama Raiker utilized such income to commence Touring Cinema Business; after the demise of Sri Rama Raiker, his son Sri Narahari Raiker (Plaintiff’s father) continued the said business and also started business of running Cinema Theatre utilizing the income from the Touring Cinema Business and ancestral agricultural lands and the proceeds from the sale of ancestral residential property in Kumta; Sri Narahari Raiker, for better tax management, constituted a partnership firm, M/s Raiker Entertainments and the different suit schedule
52 properties have been acquired from the profits/income from such business. As such, in view of the law on the 'Initial Burden' in a partition suit on the plaintiff as discussed supra, and encapsulated in Issue Nos.1 to 7, the plaintiff will have to establish by way of cogent evidence the aforesaid three prongs.
The plaintiff, apart from his ocular evidence, has marked Exhibits P.1 to P.67. These exhibits comprise of certified copies of the different sale deeds, revenue records and correspondences. Insofar as the ancestral agricultural properties, which are described in Schedule-A to the plaint, the plaintiff has produced the initial Exhibits viz., Ex.P.1 to Ex.P.11, Ex.P.13, Ex.P.16, Ex. P 20, Ex. P 21 and Ex. P 22. These are in addition exhibits as Ex. P.57 to P.59. The first set of exhibits are Mutation Register Extracts/RTC. Generally stated these documents establish that the Khatha for these agricultural lands were made in the name of Sri Rama
53 Raiker and later in the name of Sri. Narahari Raiker on behalf of the joint family, and in the name of Smt. Rama Bai Narahari Raiker after the demise of Sri Narahari Raiker. The plaintiff, has admitted in cross examination that some of these lands are sold by the plaintiff and defendant Nos. 1 and 2 (along with their mother – defendant no.3) in the year 1994 vide the sale deeds as per Exhibits P.58, 59 and 60. The plaintiff has also admitted that some of the lands mentioned in Schedule A were lost to the family because of the tenancy laws.
Therefore, it can be concluded from these documents that Sri Rama Raiker held agricultural lands, and such lands devolved on Sri Narahari Raiker and thereafter to his wife and children viz., plaintiff and defendant 1, 2 and 6. Thus, the plaintiff on the basis of the Exhibits viz., Ex.P.1 to Ex.P.11, Ex.P.13, Ex.P.16, Ex. P 20 Ex. P 21 and Ex. P 22, is successful in
54 establishing the existence of the agricultural lands as ancestral properties. However, the plaintiff’s case is that Sri Rama Raiker commenced Touring Cinema Business using agricultural lands and Sri Narahari Raiker improved the wealth of the family from out of the income from the agricultural lands and Touring Cinema Business commenced by Sri Rama Raiker. The afore said exhibits cannot be accepted as establishing the existence of joint family business in the hands of Sri. Rama Raiker, or continuation thereof by Sri. Narahari Raiker. The plaintiff has not placed any material as regards the Touring Cinema Business commenced by, or income therefrom to, Sri Rama Raiker and the benefit of such business being available to Sri Narahari Raiker after the demise of Sri. Rama Raiker.
The other exhibits viz., Exhibits P 24 to Exhibits P 42 onwards are either Extracts from the
55 Property Register Card or Mutation Extracts/notice for affecting changes in the mutation for the different properties described in schedules appended to the plaint. These exhibits show current ownership of the properties described in the plaint schedule. Similarly, the Exhibits P.46 to P.60 are different current deeds of conveyance for the properties described in the different plaint schedules. These exhibits viz., title transfer deeds and the corresponding Extract of the Property Register Card, or the Extract of Property Register Card, do not contain any material from which the joint family nucleus or the sufficiency thereof for the commencement and continuation of joint family business can be inferred. In fact, these documents relate to the period post 1990-91. The plaintiff's case is that Rama Raiker, who died in 1942, commenced the business in Touring Cinema and Shri Narahari Raiker, with the advantage of such business, commenced
56 business and running Cinema Theatres. Shri Narahari Raiker died in the 1982. The plaintiff ought to have produced some corresponding documents to establish his case. The aforesaid exhibits indicate the present ownership/rights, and the manner in which such ownership/rights was/were acquired. Therefore the aforesaid exhibits cannot be taken as evidence of the plaintiff's case. These exhibits have been considered in detail by the learned civil court judgement vide paragraphs 65 to 71. The learned civil court has rightly not accepted these exhibits as proof of the plaintiff's case in so far as commencement of businesses by Sri Narahari Raiker for and on behalf of the joint family, or continuation of such businesses after the demise of Sri Narahari Raiker.
The plaintiff from the material available on record is able to establish only co-parcenary ownership
57 to certain agricultural lands described in schedule A. Therefore, the next question would be whether income from such agricultural lands alone would have been sufficient for Sri Narahari Raiker to commence the business of running Cinema Theatres. As discussed above, the plaintiff will have to necessarily establish, before the defendants are called upon to prove in the affirmative their specific defence, the requirements of existence of joint family/ancestral properties and the value/income from such joint family/ ancestral properties to be entitled to the presumption that such income/ value would constitute sufficient nucleus for the purchase of the other properties.
The learned Civil Court has considered the extent of the ancestral agricultural lands as listed in plaint schedule A, and the learned Civil Court has concluded that the total extent of such lands is not vast and is rather marginal. Further, the learned Civil Court
58 has also considered the plaintiff's own admission that some of these agricultural lands were lost to the family because of the change in tenancy laws and some of the other lands were transferred by the plaintiff and defendant Nos.1 and 2, along with their mother- defendant No.3 in the year 1994 under Exhibit P.58 to P.60. The recitals of these sale deeds, as rightly appreciated by the learned Civil Court, are crucial and significant to ascertain the probative value insofar the plaintiff's case that the income from these properties constituted joint family nucleus. These sale deeds have been executed inter alia stating that the lands are situated far from the place where the plaintiff and defendants reside, the lands do not fetch income and the plaintiffs and defendants were also struggling to find buyers for true value. There is categorical evidence by the plaintiff in his deposition that Sri Narahari Raiker was not into cultivation and he was involved in the
59 business of running Cinema Theatres in a partnership commenced with Sri Narahari Raiker, along with his nephew Sri V.K.V. K. Pawaskar. These circumstances render, in the considered opinion of this court, the plaintiff's case as regards the income from such ancestral properties constituting joint family nucleus difficult to accept.
The plaintiff and defendant Nos.1 and 2 along with their mother, have executed Exh.P.58 to P.60 transferring aforesaid agricultural lands, which are described in the Schedule A in the year 1994. It is stated in these sale deeds that the sale considerations are received in the name of “Narahari BIG HUF”, the properties transferred under these sale deeds are ancestral properties, the plaintiff and defendants have common interest, Sri Narahari Raiker had executed Will bequeathing limited life interest in favour of Smt. Rama
60 Bai. The learned counsel for the plaintiff has relied upon these statements in Ex.P58 to P60 to contend that the plaintiff has been able to establish the existence of joint family properties, funds from joint family properties, and therefore, joint family nucleus. Further, the learned counsel for the plaintiff also relies upon Exhibit P 43 and Exhibit P 64, 65, 66 and 67 to bolster his argument that Sri Narahari Raiker had executed Will bequeathing only a limited interest life interest in Smt. Rama Bai. But, the Will/s have been deliberately not produced by the defendants despite orders of the learned civil court. If the aforesaid Will/s was/were produced, the fact that Sri Narahari Raiker commenced and continued joint family business would be established. The learned counsel for the plaintiff also laid emphasis on exhibit P 67 to contend that Sri Narahari Raiker had secured lease of property in Hubli. The Katha for this property was made in the name of
61 Smt. Rama Bai after the demise of Shri Narahari Raiker, and she had gifted the lease in favour of defendant No. 1 and 2. The corresponding Gift Deed dated 31.3.2000 is marked as Exhibit P 46.
However, the reference to 'Narahari Big HUF', ancestral properties, execution of Will/s by Sri Narahari Raiker, request for Katha in the joint names for one of the properties (out of the many properties described in the plaint Schedules), and which is obtained on lease by Sri Narahari Raiker, and a request for transfer of Katha after his demise referring to the bequeath made by him, cannot by themselves reasonably lead to the larger conclusion as pleaded by the plaintiff. The properties claimed as joint family properties are too many and the common stock of properties are a few and the plaintiff has not established income even therefrom. The plaintiff and defendant
62 Nos.1 and 2, along with others - even as admitted by the plaintiff, are partners of certain firms which continue to do business. The yawning difference between the vast list of properties held by the defendants and the tenuous circumstances relied upon on behalf of the plaintiff do not render themselves to a reasonable conclusion that the plaintiff has been able to establish necessary value/income of the joint nucleus. The question whether the circumstances relied upon on behalf of the plaintiff viz., income from the ancestral agricultural lands, and possibly even from one of the Cinema Theatres which is taken on lease, refer to a much smaller entity of a coparcenary distinct from a joint family as claimed by the plaintiff looms large and unanswered. Therefore, the circumstances relied upon by the learned counsel for the plaintiff would not be sufficient to conclude that the plaintiff has been able to establish the necessary circumstances for this court to
63 presume that the different businesses and the properties (as mentioned in the plaint Schedule) are joint family assets, and that the income from the agricultural income, and possibly even from Cinema Theatre run from leased premises, would constitute sufficient joint family nucleus for the defendant No. 1 and 2, and others, to have acquired the multiple businesses and properties described in the plaint over a period of three to four decades. .
Furthermore, the plaintiff in his cross- examination has in unequivocal terms admitted certain facts, and these admissions have a vital bearing insofar as the plaintiff's case. The plaintiff has admitted that he has received amounts accumulated to his account and utilized the same for construction of residential property and to purchase land in Keshavapura. He purchased the land at Keshavapur in the year 1985-86,
64 and though he constructed the residential premises in the year 2000 the property upon which such construction is made was purchased in the year 1984- 85 in his name by defendant Nos.1 and 2. But, he has not included such properties in the plaint. He has been filing Income –Tax/Wealth Tax returns. The plaintiff has not produced the Income Tax/Wealth Tax returns despite the orders of the learned civil court, on an application, to produce those income tax returns. The plaintiff in his evidence has admitted the transfers under these sale deeds in favour of third party purchasers, but contends that he has nevertheless included these properties seeking a share in these properties because the defendant No. 1 and 2 have not given him a share in the sale proceeds; difficult as this explanation is to accept, it also brings about a difficult discord in the plaintiff’s case, and in fact, it probablizes that Sri Narahari Raiker and his family members
65 continued to hold agricultural lands as their ancestral properties and dealt with the businesses as their individual businesses. Therefore, it is held that the plaintiff has failed to discharge the initial burden as required in law to establish that such schedule properties are joint family properties and as such, the impugned judgment and decree does not call for any interference. Accordingly, the appeal is dismissed. No costs.
Sd/- ACTING CHIEF JUSTICE
Sd/- JUDGE
nv/SA*