Anand Byrareddy, J. - (1.) THIS appeal and the cross objections are taken up and decided together.
(2.) THE brief facts as are necessary for the disposal of this case are as follows. The parties are referred to by their rank before the trial court for the sake of convenience. The appellants were the plaintiffs before the trial court and appellant No. 2 having died during the pendency of these proceedings, her legal representatives have been brought on record. The respondents were the defendants. The plaintiffs had filed a suit for partition and separate possession and injunctory reliefs against the defendants in respect of the suit schedule property. Chandrappa was the ancestor of the appellants and the respondents. He had four sons, Malleshappa, Basawanappa, Sharanabasappa and Shamaraya. Chandrappa and his wife had died long ago and the four sons survived him as his legal heirs. Malleshappa is said to have died leaving behind him defendants 2 to 6 as his legal heirs. Basawaneppa is said to have died 20 years prior to the suit leaving behind him the appellants - plaintiffs as his legal heirs. Sharanabasappa also had died long ago and was survived by defendants 7 and 8. It was claimed by the plaintiffs that all the suit schedule items are ancestral properties and that late Malleshappa was the karta and manager of the family till his death in the year 1994. After his death, Shamaraya, defendant No. 9 became the Karta and manager of the joint family. It was the further contention of the plaintiffs that plaintiffs 1 and 2, defendant Nos. 7,8 and 16 were living jointly. It is claimed that the land bearing Survey Nos. 206/A and 206/B were the subject matter of acquisition proceedings by the State. The same measured about 12 acres out of 15 acres 14 guntas of Sedam village. It was acquired for a public purpose to wit, the Karnataka State Road Transport Corporation and the compensation amount having been awarded, the plaintiffs claimed a share in the said compensation amount and the same has been appropriated by defendant No. 9. It was the further contention of the plaintiffs that after the death of Malleshappa, Shamaraya became the karta and the appellants demanded that there be a partition and allotment of their shares in the said suit schedule properties. Since there was refusal to effect partition, the plaintiffs filed the suit. All the defendants contested the suit and the relationship was admitted. However, it was claimed that in the year 1990 there was an oral partition in the family and hence the question of division of properties further did not arise. On a consideration of the evidence tendered by both the parties, the trial court had decreed the suit and granted Va share in all the suit schedule properties shown in plaint - A, B and C and held that the plaintiffs were entitled to Va share in the compensation amount as well. The same having been challenged in a regular appeal before the lower appellate court by the defendants 9 to 16, the judgment has been set aside insofar as it relates to the suit properties bearing Survey Nos. 190, 206A and 206B, wherein the lower appellate court has held that these items of properties are the self acquired properties of defendants 9 to 16 and therefore could not be subject matter of any division and has restricted the decree of partition of other items of the suit properties. It is this which is under challenge in the present appeal. The substantial questions of law framed are, whether the lower appellate court was justified in holding that the suit properties bearing Survey Nos. 190, 206A and 206B were the self acquired properties of respondents 9 to 16. Even without there being any additional evidence or variance with the evidence that was tendered before the trial court, whether the lower appellate court can proceed on the basis of the self -serving statements made by respondents 9 to 16 in the course of the appeal.
(3.) IN this regard, the learned Counsel for the appellants would draw attention to the circumstance that during the pendency of the appeal before the lower appellate court, the respondents 9 to 16 chose to file a memo dated 12.4.2010 in the course of the hearing of the appeal through his advocate, which reads as follows: "MEMO The appellant herein submits as under: In the suit under appeal, the appellant has contended that all the properties situated at Sedam and also the land Sy. No. 155 of place Kalkamb sold to defendant Udaykumar s/o Malleshappa are his self acquired properties, acquired out of his independent income and that the appellant had not received any money or share out of the ancestral joint family properties at any time. Even now, in this appeal the appellants submits that he is not claiming any share in the ancestral properties which are in the possession of the respondents, and that the properties situated at Sedam including the acquired by the Government and the land sold to Udaykumar are his self acquired properties in which none of the respondents have any share, right, title or interest. Hence, this memo. Gulbarga 10.4.2010 -Sd/ -" Appellant. It is apparent from the judgment of the court below that the lower appellate court has found much force in the contention and has expressed an opinion that from the documentary evidence on record it was clear that the defendant No. 9 - Shamaraya had left the family when he was aged 10 or 15 and that he did not seek any assistance from the joint family and that he had willfully left the family and had engaged himself in a commission agency business as an accountant at Sedam and later on, he himself had become a commission agent and thereafter is shown to have purchased the properties spread over a period of time, which are claimed to be his self -acquired properties and has also accepted his case that on account of a large amount of compensation having been received by the said respondents, the plaintiffs were inclined to claim his self -acquired properties as well as the amount of compensation, as also being part of the joint family properties and have sought for division of the same and accordingly has thought it fit to vary the judgment and decree while placing reliance on several authorities and after noticing that the plaintiffs had not tendered convincing evidence on their part, to demonstrate that the family was possessed of sufficient income to have purchased the properties, which were clearly in the name of Shamaraya and the same having been acquired much after he left the family and settled down at Sedam and carried on his avocation as an accountant initially and thereafter as a common agent on his own and hence has held that the plaintiffs have not discharged the burden of establishing that the suit items bearing Survey Nos. 190, 206A and 206B, which were claimed to be the self -acquired properties of respondents 9 to 16, were acquired through the joint family funds and has therefore thought it fit to reverse the findings insofar as this particular items of properties concerned. The learned Counsel would submit that the oral partition that was claimed not having been established, the presumption would be that the family continued to be joint and any acquisition of properties when it continued to be joint, could be presumed to have been acquired out of joint family funds. To establish that they were self acquired properties of Shamaraya, the burden was clearly on the respondents to establish that he had the income by way of his business to acquire the same and that burden not having been discharged, the court below having held that since the evidence tendered by the plaintiffs was not sufficient to establish that the properties claimed by Shamaraya were his self acquired properties, which were acquired through the funds generated by the joint family income, is not acceptable and is clearly contrary to the established principles.;