Shivalingaiah Vs Smt. Lakshmamma & Ors. (Karnataka High Court)
Summary: The Karnataka High Court dismissed Regular First Appeal No.1669 of 2019 filed by defendant No.2 against the judgment and decree dated 31.01.2018 passed by the Senior Civil Judge and JMFC, Nagamangala, in Original Suit No.10 of 2013. The trial Court had partly decreed the suit for partition and separate possession and granted the plaintiffs 1/7th share each in the suit schedule properties, except Item Nos.23 and 24 of ‘A’ Schedule. The appeal was filed under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure.
The plaintiffs were the daughters of defendant Nos.1 and 6 and sisters of defendant Nos.2 to 5. They claimed that the parties constituted an undivided Hindu joint family and sought partition and separate possession of their 2/7th share. According to them, Item Nos.1 to 8 and 25 of ‘A’ Schedule were ancestral and joint family properties; Item Nos.9 to 16 were purchased out of the income of those properties; and Item Nos.17 to 22 and 26 to 28 of ‘A’ Schedule and the ‘B’ Schedule properties had been acquired in the name of defendant No.2 out of joint family funds. Item Nos.23 and 24 of ‘A’ Schedule were claimed to be the separate property of defendant No.6.
Defendant Nos.1 and 3 to 6 admitted the relationship of the parties and the joint family character of the properties, except Item Nos.23 and 24 of ‘A’ Schedule. They contended that Item Nos.17 to 22 and 26 to 30 had been purchased in the name of defendant No.2 from joint family funds while he was managing the affairs of the joint family. Defendant No.2, however, contended that Item Nos.17 to 22 and 26 to 28 of ‘A’ Schedule and Item Nos.29 and 30 of ‘B’ Schedule were his self-acquired properties. He relied upon his status as a Class-I Contractor, Income-Tax assessee and person carrying on coconut business, and claimed that the acquisitions were made from his independent income.
The trial Court framed issues concerning whether the disputed properties had been acquired from the income of the ancestral properties, whether defendant No.2 had established self-acquisition, whether Item Nos.23 and 24 were the self-acquired properties of defendant No.6, and whether the plaintiffs were entitled to partition and mesne profits. Additional issues concerned alleged partial partition and non-joinder of necessary parties. After considering the oral and documentary evidence, the trial Court answered the relevant issues in favour of the plaintiffs and granted each plaintiff a 1/7th share, excluding Item Nos.23 and 24 of ‘A’ Schedule.
Before the High Court, defendant No.2 argued that the trial Court had failed to properly consider the documents produced by him to establish that the disputed properties were purchased from his personal income. He also contended that Item No.26 of ‘A’ Schedule had been allotted by the Government of Karnataka in his favour and that this aspect had not been properly appreciated.
The respondents maintained that the disputed properties were joint family properties acquired in defendant No.2’s name from joint family income. They also contended that there had been no family partition and that defendant No.2 had failed to establish his alleged separation from the joint family.
The High Court considered the burden of proof applicable to a claim that property standing in the name of an individual was actually joint family property. It referred to Randhi Appalaswami v. Randhi Suryanarayanamurti and Others, reported in AIR 1947 PC 189, and to the Supreme Court decision in D.S. Lakshmaiah and Another v. L. Balasubramanyam and Another, reported in (2003) 10 SCC 310. The Court noted the principle that mere existence of a joint Hindu family does not create a presumption that every property is joint family property. The person asserting the joint family character must initially establish the existence of a joint family nucleus capable of funding the acquisition. Once such nucleus is established, the burden shifts to the person claiming self-acquisition to establish that the property was purchased from independent funds.
The High Court therefore applied a twofold test: whether the plaintiffs had established a joint family nucleus of sufficient value to fund the disputed acquisitions and, if so, whether defendant No.2 had established that the acquisitions were made from his independent means.
On the evidence, the Court found that PW1’s testimony that the disputed properties were joint family properties remained substantially unshaken in cross-examination. Defendant No.4, examined as DW1, also stated that the suit schedule properties were joint family properties except Item Nos.23 and 24 of ‘A’ Schedule. His testimony was likewise not materially discredited.
Defendant No.2, examined as DW2, claimed that the disputed properties were acquired from his own income as a Class-I Contractor and through his coconut business. However, in cross-examination, he admitted several matters concerning the family properties and alleged partitions. He admitted that Item Nos.9 to 16 of ‘A’ Schedule and ‘B’ Schedule had been purchased in the name of defendant No.1 from joint family income. He also admitted that there was no written partition deed between himself, his father and brothers and asserted that he had separated from the joint family in 1983 through an oral partition.
The Court further noted DW2’s evidence concerning an alleged partition in 1995. Although he stated in chief-examination that there had been partition between defendant Nos.1 to 5 regarding Item Nos.1 to 16, no partition deed was produced. The Khata of Item Nos.1 to 16 continued to stand in the name of defendant No.1, which the Court considered significant while examining the claim that the alleged partition had actually been given effect.
The High Court also observed that defendant No.2 had failed to furnish sufficient material demonstrating that he possessed adequate independent funds to acquire Item Nos.17 to 22 and 26 to 28 of ‘A’ Schedule and the ‘B’ Schedule properties. The Income-Tax returns relied upon did not, according to the Court, demonstrate that he had sufficient income during the relevant years. He had also not produced a licence establishing that he was a Class-I Contractor or documentary material showing the income derived from contractual work.
The Court emphasised the principle that a party cannot travel beyond its pleadings. It held that facts not specifically pleaded in the written statement could not be established merely through documents or oral evidence and that evidence could not be read on a plea that had not been raised in the pleadings.
The Court also considered the evidence relating to defendant No.2’s transactions and found that the documents relied upon by him did not establish that he had sufficient independent income to acquire the disputed properties. The Court found that defendant No.2 had access to and control over the joint family properties and that the evidence supported the conclusion that he was managing the joint family affairs.
The High Court further found that sufficient family funds had been generated from Item Nos.1 to 8 and 25 of ‘A’ Schedule and that Item Nos.9 to 16 had been purchased out of joint family funds. Item Nos.17 to 22 and 26 to 28 were purchased in the name of defendant No.2 while he was managing the joint family as its Karta. In the absence of specific proof establishing self-acquisition, the Court held that defendant No.2 had failed to establish that the disputed properties were his separate properties.
The Court additionally held that, although certain documents were in the custody of defendant No.2, he had not furnished them. It therefore held that an adverse inference could be drawn against him under Section 114(g) of the Indian Evidence Act, 1872.
The High Court then considered the rights of the plaintiffs as daughters and coparceners. It referred to Section 6 of the Hindu Succession Act, 1956, as amended by the Hindu Succession (Amendment) Act, 2005. The Court relied upon the Supreme Court’s decision in Vineeta Sharma v. Rakesh Sharma and Others, reported in (2020) 9 SCC 1, under which the rights of daughters in coparcenary property were recognised as equivalent to those of sons and the right was held to arise by birth. TaxGuru has also published material specifically discussing the interpretation of Section 6 of the Hindu Succession Act, 1956.
The High Court held that the plaintiffs, though married daughters, were entitled to their rights in the coparcenary property. Physical possession of the joint family properties was not necessary to establish their status as co-owners, and there was no pleading or evidence showing that they had been ousted from the joint family properties by express conduct within their knowledge.
Consequently, the Court held that Item Nos.1 to 22, 25 and 26 to 28 of ‘A’ Schedule and the ‘B’ Schedule properties were joint family properties, except Item Nos.23 and 24 of ‘A’ Schedule. In view of the amended Section 6 and the principles laid down in Vineeta Sharma, the plaintiffs and defendants were entitled to 1/7th share each in the suit schedule properties.
The Court also rejected the contention that the suit was barred by limitation. Since the properties were treated as coparcenary properties and the plaintiffs were in constructive possession along with the defendants, and there was no pleading or evidence of ouster, the suit was not barred by limitation.
Accordingly, the High Court found no error in the findings of the trial Court. It held that the plaintiffs were entitled to the decree of partition and mesne profits and that the trial Court had rightly granted the relief. The appeal was dismissed and there was no order as to costs.
Cases Discussed
- Randhi Appalaswami v. Randhi Suryanarayanamurti and Others, AIR 1947 PC 189 — referred to for the burden of proof concerning the joint family character of property and the effect of establishing a joint family nucleus.
- D.S. Lakshmaiah and Another v. L. Balasubramanyam and Another, (2003) 10 SCC 310 — relied upon for the principle that there is no presumption that property is joint family property merely because a joint Hindu family exists, but that proof of a sufficient joint family nucleus shifts the onus to the person claiming self-acquisition.
- Vineeta Sharma v. Rakesh Sharma and Others, (2020) 9 SCC 1 — relied upon for the proposition that daughters have the same coparcenary rights as sons by birth under the amended Section 6 of the Hindu Succession Act.
FULL TEXT OF THE JUDGMENT/ORDER OF KARNATAKA HIGH COURT
1. The appellant-defendant No.2 has filed this appeal challenging the judgment and decree passed by the learned Senior Civil Judge and Judicial Magistrate First Class, Nagamangala, dated 31.01.2018 in Original Suit No.10 of 2013, wherein the suit of the plaintiffs was partly decreed and the plaintiffs are granted 1/7th share each in the suit schedule properties, except Item Nos.23 and 24.
2. For the sake of convenience, the parties are referred to as per their rankings before the trial Court. The appellant is defendant No.2 and respondent Nos.1 to 6 are plaintiff Nos.1 and 2 and defendant Nos.3 to 6, respectively.
3. The brief facts of the case of the plaintiffs before the trial Court are as under:
The suit was filed by the daughters of defendant Nos.1 and 6 against the defendants for partition and separate possession of their 2/7th share in the suit schedule properties by metes and bounds. The plaintiffs are the daughters of defendant Nos.1 and 6. Defendant Nos.2 to 5 are the brothers of the plaintiffs. The plaintiffs and the defendants constitute an undivided Hindu joint family. The suit schedule properties at Item Nos.1 to 8 and 25 are the ancestral and joint family properties. Item Nos.9 to 16 of ‘A’ Schedule were purchased out of the income of Item Nos.1 to 8 and 25. Item Nos.9 to 16 of ‘A’ Schedule and properties under ‘B’ Schedule are acquired in the name of defendant No.1. The properties at Item Nos.17 to 22 and 26 to 28 are acquired in the name of defendant No.2. The properties at Item Nos.23 and 24 of ‘A’ Schedule are acquired in the name of defendant No.6. ‘B’ Schedule property i.e. tractor and trailer and Bullock cart were purchased in the name of defendant No.2. The income derived from the properties was sufficient to maintain the joint family. Earlier, defendant No.1 was manager or Karta of the joint family. As defendant No.1 set to be aged, defendant No.2 was managing the entire affairs of the family. Defendant Nos.1 and 3 to 6 were supporting defendant No.2 in the joint family business. Hence, the plaintiffs, being the daughters of defendant Nos.1 and 6 and the sisters of defendant Nos.2 to 5, have equal rights in the suit schedule properties as they are coparceners in the Hindu undivided joint family.
4. Prior to institution of the suit, the plaintiffs requested the defendants to make partition in the suit schedule properties. However, the defendants failed to make the partition. Therefore, the daughters/plaintiffs filed a suit for partition and separate possession of their 2/7th share in the suit schedule properties.
5. After institution of the suit, the defendants appeared through their counsel, defendant Nos.1 and 3 to 6 filed their written statement, admitting the relationship of the parties, nature of the suit schedule properties. They have specifically stated that except Item Nos.23 and 24 of ‘A’ Schedule, remaining properties are joint family properties of both the plaintiffs and the defendants. Item Nos.23 and 24 of ‘A’ Schedule are self-acquired properties of defendant No.6. It is further contended that item Nos.17 to 22 and 26 to 30 were purchased in the name of defendant No.2 out of the joint family fund as he was managing the affairs of the joint family. The joint family property in Survey No.32/3P measuring 10 acre and 35 guntas was sold by defendant Nos.1 to 5 under a registered Sale Deed dated 09.05.2005 for a consideration of Rs.2,83,000/- and Item No.17 of ‘A’ Schedule was acquired from this consideration amount in the name of defendant No.2.
Hence, all are entitled for share in the suit schedule properties, except Item Nos.23 and 24 of ‘A’ Schedule.
6. The contesting defendant No.2 filed his written statement contending that properties at Item Nos.17 to 22 and 26 to 28 of ‘A’ Schedule and Item Nos.29 and 30 of ‘B’ Schedule are his self-acquired properties, as he was a Class-I Contractor, Income-Tax assessee and he had his independent source of income. He further contended that he has been carrying on business in coconuts since 1986 by borrowing loan from Sri Veerappa. Hence, he prayed to dismiss the suit.
7. On the basis of the pleadings of the parties, the trial Court framed the following issues and additional issues:
“i. Whether the plaintiffs prove that Item No.9 to 24, 26 to 28 of ‘A’ schedule and suit ‘B’ schedule properties were acquired out of the income of Item No.1 to 8 and 25 of the suit ‘A’ schedule properties?
ii. Whether defendant No.2 proves that suit Item No.17 to 22 and 26 to 30 of ‘A’ Schedule and suit ‘B’ schedule properties are his self acquired properties?
iii. Whether defendant Nos.1 and 3 to 6 prove that Item No.23 and 24 are the self acquired properties of defendant No.6?
iv. Whether the plaintiffs are entitled for partition in mesne profits as prayed for?
v. What order or decree?
Additional Issues:
i. Whether 2nd defendant proves that the suit is bad for partial partition for non-inclusion of properties stated in the written statement?
ii. Whether 2nd defendant proves that the suit is bad for non-joinder of necessary parties?”
8. The plaintiffs, in order to prove their case, examined plaintiff No.2 as PW1 and marked documents as per Exs.P1 to P6. In order to rebut the claim of the plaintiffs, defendant No.4 was examined as DW1, defendant No.2 (appellant) was examined as DW2 and marked documents as per Exs.D1 to D53.
9. The trial Court, after examination of the pleadings, issues, oral evidence of the parties and documentary evidence on record, answered Issue Nos.1, 3 and 4 in the affirmative, Issue No.2 in the negative, and Additional Issue Nos.1 and 2 in the negative and decreed the suit of the plaintiffs in-part and granted 1/7th share each in the suit schedule properties, except Item Nos.23 and 24 of ‘A’ Schedule.
10. Being aggrieved by the judgment and decree passed by the trial Court, the appellant-defendant No.2 has filed this appeal.
11. Heard Sri V. Manjunath, learned counsel for the appellant, Sri Maruthi G.B., learned counsel for respondent Nos.1 to 6, and perused the records.
12. Learned counsel for the appellant-defendant No.2 has vehemently contended that the daughters had filed the suit for partition against their father, mother and brothers. In fact, defendant No.2 is the absolute owner of Item Nos.17 to 22 and 26 to 28 of ‘A’ Schedule and Item Nos.29 and 30 of ‘B’ Schedule as the same was acquired by defendant No.2 out of his personal income. However, this aspect is not properly considered by the trial Court and the trial Court has not all examined any documents furnished and marked by defendant No.2 in order to prove the self-acquisition of the suit schedule properties by defendant No.2, as he was a Civil Contractor and later, a Class-I Contractor and he was carrying on business in coconuts and he is an Income-Tax assessee. He has further contended that the trial Court committed an error in holding that Item No.26 of ‘A’ Schedule was a joint family property. In fact, Item No.26 of ‘A’ Schedule was allotted by the Government of Karnataka in favour of defendant No.2 and this factual aspect was not appreciated by the trial Court. Hence, the learned counsel prays to allow the appeal.
13. Learned counsel for the respondents-plaintiff Nos.1 and 2 and defendant Nos.3 to 6 has vehemently contended that, except Item Nos.23 and 24 of ‘A’ Schedule, the other properties are the joint family properties of both the plaintiffs and the defendants. In fact, Item Nos.17 to 22 and 26 to 28 of ‘A’ Schedule and Item Nos.29 and 20 of ‘B’ Schedule were acquired by the joint family in the name of defendant No.2 out of the income derived from Item Nos.1 to 16 of ‘A’ Schedule. Further, there was no family partition and defendant No.2 failed to prove that he was separated from the joint family in the year 1983. Hence, the learned counsel prays to dismiss the appeal.
14. After hearing the learned counsel for both parties, perusing the impugned judgment and appeal memo, the following points arise for our consideration:
i. Whether the appellant-defendant No.2 has proved that Item Nos.17 to 22 and 26 to 28 of ‘A’ Schedule and Item Nos.29 and 30 of ‘B’ Schedule are his self-acquired properties, as contended?
ii. Whether the appellant-defendant No.2 has made out sufficient grounds that the judgment and decree passed by the trial Court requires interference at the hands of this Court?
15. In the present case, the plaintiffs, being the daughters of defendant Nos.1 and 6, and sisters of defendant Nos.2 to 5, had filed the suit for partition claiming that Item Nos.1 to 22 and 26 to 28 of ‘A’ Schedule and Item Nos.29 and 30 of ‘B’ Schedule are the joint family properties. On the other hand, defendant No.1 (father of the plaintiffs and defendant Nos.2 to 5) and defendant Nos.3 to 6 admits the relationship of the parties, nature of the properties, location of the properties, and conceded that all the properties are joint family properties, except Item Nos.23 and 24 of ‘A’ Schedule. However, the appellant/defendant No.2 contended that Item Nos.17 to 22 and 26 to 28 of ‘A’ Schedule and ‘B’ Schedule are his self-acquired properties. Thereby, he denied share in respect of Item Nos.17 to 22 and 26 to 28 of ‘A’ Schedule and ‘B’ Schedule.
16. Since defendant No.2 disputed share of the plaintiffs, who are daughters of defendant Nos.1 and 6, and sisters of defendant Nos.2 to 5, it is just and necessary to analyse the rights of the daughters under Section 6 of the Hindu Succession (Amendment) Act, 2005.
17. On the question of whether defendant No.2 has established that Item Nos.17 to 22 and 26 to 28 of ‘A’ Schedule and ‘B’ Schedule properties are his self-acquired properties, we notice that the law governing the burden of proof in disputes of this character has been settled in Randhi Appalaswami v. Randhi Suryanarayanamurti and Others reported in AIR 1947 PC 189. The Privy Council observed that the party asserting the joint character of a property bears the initial burden of establishing it, but once a joint family nucleus capable of funding an acquisition is proved, the burden shifts to the party alleging self-acquisition to prove that the property was acquired without the aid of the joint family property. This position has been reaffirmed by the Apex Court in D.S. Lakshmaiah and Another v. L. Balasubramanyam and Another reported in (2003) 10 SCC 310, at paragraph No.18, which reads as under:
“18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.”
18. In the instant case, the test for determining the character of the properties is twofold: first, whether the plaintiffs have proved the existence of a joint family nucleus of sufficient value to have funded the disputed acquisitions, if so, whether defendant No.2 has established that those acquisitions were made from his independent means.
19. There is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is joint family property. However, if the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.
20. In the present case, the appellant-defendant No.2 contended that Item Nos.17 to 22 and 26 to 28 of ‘A’ Schedule and ‘B’ Schedule are his self-acquired properties. Since the appellant has admitted the relationship between the parties, and nature of the properties in so far as Item Nos.1 to 16, 23 and 24 are concerned, there is no dispute as to these properties. The dispute is only with regard to Item Nos.17 to 22 and 26 to 28 of ‘A’ Schedule and ‘B’ Schedule.
21. Hence, let us examine the oral evidence of the parties adduced before the trial Court:
The plaintiffs, in order to prove their case, got examined plaintiff No.2-Smt. Neelamma as PW1. In her chief-examination, she has reiterated the averments made in the plaint. She has contended that Item Nos.1 to 8 and 25 of ‘A’ Schedule are the ancestral joint family properties. Item Nos.9 to 16 of ‘A’ Schedule were purchased in the name of defendant No.1 and Item Nos.17 to 22 and 26 to 28 of ‘A’ Schedule were purchased in the name of defendant No.2 out of the joint family funds. Item Nos.23 and 24 of ‘A’ Schedule are the separate property of defendant No.6 and it is her Stridhana property.
22. The ownership of defendant No.6 in respect of Item Nos.23 and 24 of ‘A’ Schedule are not disputed by the plaintiffs and defendant Nos.1 to 5. Hence, no much relevance has been given in respect of Item Nos.23 and 24 of ‘A’ Schedule.
23. PW1 was cross-examined. In the cross-examination, nothing worthwhile has been elicited from her mouth to discredit her oral testimony in so far as Item Nos.1 to 22 and 26 to 28 of ‘A’ Schedule and ‘B’ Schedule properties. She has, in categorical terms, stated that the aforesaid properties are joint Hindu family properties and they have equal share as that of defendant Nos.2 to 5.
24. To rebut the claim of the plaintiffs, defendant No.4-Sri Eregowda was examined as DW1. In his evidence, he has stated that all the suit schedule properties are joint family properties of the plaintiffs and the defendants, except Item Nos.23 and 24 of ‘A’ Schedule. DW1 was cross-examined by the learned counsel for defendant No.2, however, nothing worthwhile has been elicited from his mouth to discredit his testimony. Therefore, the oral testimony of DW1 stands corroborated with the oral testimony of PW1 in so far as Item Nos.1 to 22 and 26 to 28 of ‘A’ Schedule and ‘B’ Schedule.
25. Defendant No.2-appellant was examined as DW2. In his examination-in-chief, he has stated that Item Nos.17 to 22 and 26 to 28 of ‘A’ Schedule and ‘B’ Schedule are his self-acquired properties, purchased out of his own income. He has further stated that he was a Class-I Contractor, Income-Tax assessee and he was carrying the business in coconuts. Hence, he has reiterated the averments made in his written statement.
26. DW2 was cross-examined. In the cross-examination, he admits that during the lifetime of defendant No.1, father of the plaintiffs and defendant Nos.2 to 5, Item Nos.9 to 16 of ‘A’ Schedule and ‘B’ Schedule were purchased in the name of defendant No.1 out of the joint family income derived from Item Nos.1 to 8 and 25 of ‘A’ Schedule. He further admitted that there was oral partition between defendant Nos.1 to 5 in respect of the suit schedule properties and he also admitted that there was no written partition deed amongst himself, father and his brothers. He further admitted that in the year 1983, he got separated from joint family and there was oral partition amongst the family members.
27. Further, in the chief-examination itself, DW2 has categorically stated that in the year 1995, there was partition amongst defendant Nos.1 to 5 in respect of Item Nos.1 to 16, but no such partition deed is placed on record. In the cross-examination, he admits that when defendant No.1-father was alive, Item Nos.9 to 16 were purchased out of Item Nos.1 to 8 and 25. He further admits that soon after alleged partition, Khata in respect of Item Nos.1 to 16 of ‘A’ Schedule were not effected and those lands still stand in the name of defendant No.1, which shows that the alleged partition held in the year 1995 has not given effect.
28. In the present case, the appellant-defendant No.2 vehemently contended that he had independent income to purchase Item Nos.17 to 22 and 26 to 28 of ‘A’ Schedule and ‘B’ Schedule, but defendant No.2 has not stated in his written statement that his father, i.e. defendant No.1, gifted Item Nos.23 and 24 of ‘A’ Schedule to his sister and after the death of his sister, her son executed registered Sale Deed in favour of defendant No.1 and in turn, defendant No.1 gifted the said property in favour of defendant No.6, who is his wife.
29. It is pertinent to note that these factual aspects were not included in the written statement. Further, the appellant has failed to furnish sufficient material to show that he was possessing amount for purchase of Item Nos.17 to 22 and 26 to 28 of ‘A’ Schedule. He also admitted that after alleged partition held in the year 1995, Khata in respect of Item Nos.1 to 16 of ‘A’ Schedule were not effected. He also admitted that he has not furnished the Income-Tax returns for all years. He has only furnished Income-Tax returns in respect of 1987 to 2015, but same was not issued by the Income-Tax Department. DW2 also admitted that he has not furnished any license to establish that he was a Class-I Contractor. It shows that the appellant-DW2 failed to establish sufficient income he had in order to purchase Item Nos.17 to 22 and 26 to 28 of ‘A’ Schedule and ‘B’ Schedule. Though he relied on the Income-Tax returns, which cannot demonstrate that he had sufficient income during the relevant years. DW2 claims that he was a Class-I Contractor and he was carrying on business in coconuts, which also do not inspire confidence that the appellant alone purchased the properties, which he claims as that of his self-acquired properties. All his contentions are nothing but oral statement in the absence of documentary proof. Therefore, a party cannot travel beyond his pleadings. The facts that are not explicitly stated in the written statement cannot be established by simply providing documents or oral evidence. Therefore, no evidence can be read on plea, which is not raised in the pleadings.
30. DW2 (appellant-defendant No.2) specifically admitted that he has not produced any documents to show the income derived from the existence of work under the contract. The earlier transactions made by defendant No.2 was on 03.05.1989 and he sold a property in favour of one Ramalingegowda in respect of the lands bearing Survey Nos.57/1, 57/2 and 57/3 and thereafter, on 06.08.1998, some properties were purchased by defendant No.2 on consideration of Rs.2,50,000/-. Therefore, defendant No.2 has not specifically stated as to the amount received for execution of work. Thus, the documents relied on by defendant No.2 cannot be inferred that defendant No.2 had sufficient income to purchase the properties, which he claims as his self-acquired properties.
31. Therefore, obviously, the other inference that could be drawn is that defendant No.2 was managing the joint family of the plaintiffs and the defendants. Ex.D6-Sale Deed would reveal that defendant No.2 had control over the affairs of joint family. DW2 also specifically admitted and he has not placed any material to show that he had income from other independent source during the year 1989 enabling him to purchase the properties. On the contrary, it is established that defendant No.2 had access to the joint family properties and in fact, he has dealt with the joint family properties.
32. DW1 has admitted that defendant No.2 was the eldest son in the family and the properties were acquired by him in such a capacity as a Karta of the family. It is also established that there was sufficient family fund, which were generated from Item Nos.1 to 8 and 25 of ‘A’ Schedule. Therefore, Item Nos.9 to 16 were purchased out of the joint family funds.
33. It is also evident that Item Nos.17 to 22 and 26 to 28 of ‘A’ Schedule were purchased in the name of defendant No.2, as he was managing the joint family as a Karta. Therefore, in the light of absence of any specific proof regarding the assertion of defendant No.2, it cannot be said that Item Nos.17 to 22 and 26 to 28 of ‘A’ Schedule and ‘B’ Schedule are his self-acquisition. Absolutely, there is no material to that effect and defendant No.2 has failed to establish this aspect. Further, though there were certain documents in the custody of defendant No.2, he has not furnished the same. Therefore, an adverse inference could be drawn against defendant No.2 under Section 114(g) of the Indian Evidence Act, 1872.
34. If at all, defendant No.2 was carrying on business in coconuts or as a Contractor, he could have easily produced the details of such business or his contractor licence for the relevant period, which he has failed to do.
35. From the evidence of the plaintiffs and DW1, it is established that the plaintiffs are married daughters and they cannot be in physical possession of joint family properties. Mere physical possession of joint family properties is not the requirement of law to hold that they are co-owners in respect of the properties and it is not the case of defendant No.2 or defendant Nos.1 and 3 to 6 that the plaintiffs were ousted from the joint family properties by express conduct and within the knowledge of the plaintiffs. The oral testimony of PW1, pleadings and the exhibited documents on record would clearly demonstrate that Item Nos.1 to 22, 25 and 26 to 28 of ‘A’ Schedule and ‘B’ Schedule are joint family properties of the plaintiffs and the defendants, except Item Nos.23 and 24 of ‘A’ Schedule. Therefore, the plaintiffs have a share in the suit schedule properties.
36. When the Hindu Succession Act is amended in the year 2005 and by virtue of the judgment of the Hon’ble Apex Court in Vineeta Sharma v. Rakesh Sharma and Others reported in (2020) 9 SCC 1, the rights of the daughters are made equivalent as to that of the son, the amendment being held to be retroactive by birth. In view of the aforesaid judgment, the plaintiffs also got the same rights in the coparcenary property by birth and the properties are, therefore, available for partition among all the coparceners. Thus, the plaintiffs and the defendants are entitled to 1/7th share each in the suit schedule properties.
37. In view of our findings that the suit schedule properties are the Hindu undivided joint family properties, the contention of the appellant-defendant No.2 that Item Nos.17 to 22 and 26 to 28 of ‘A’ Schedule and ‘B’ Schedule properties are self-acquired properties of defendant No.2 does not have merit consideration. Once the property is considered as coparcenary and since the plaintiffs are in constructive possession along with the defendants, and since there is no pleading or evidence regarding ouster, the suit was not barred by limitation.
38. In view of the foregoing discussions on the above points, we answer that the plaintiffs are entitled for the decree of partition and mesne profits and same is rightly granted by the trial Court. Hence, there is no merit in the contentions of the appellant. We do not find any errors in the findings recorded by the trial Court. Accordingly, the appeal is dismissed.
No order as to costs.
