Mudigowda Gowdappa Sankh & Ors Vs.
Ramchandra Ravagowda Sankh & ANR  INSC 5 (9 January 1969)
09/01/1969 RAMASWAMI, V.
CITATION: 1969 AIR 1076 1969 SCR (3) 245 1969
SCC (1) 386
Hindu Law--Partition-Partition deed sham and
nominal-Effect of Joint family, having nucleus-Later acquisitions-Income from
nucleus adequate for making acquisitions-If can be presumed to be joint family
properties-Alienation-Challenge of in plaint.
A joint family consisting of two brothers G
and A and their wives, sons and daughters was possessed of joint family
properties. Between 'the years 1911 and 1940 several other properties were
acquired. In 1930, the son of A was taken in adoption by G. The adopted son
died in 1944, and both the brothers denied the adoption and purported to effect
a partition. In the partition deed the lands were unequally divided between the
brothers, G getting twice as much as A, but the brothers continued to be in
joint possession of the lands. There was no division of their house at all and
the brothers had a joint mess even after the date of partition.
After the partition-deed was executed the two
brothers executed various alienations. The first respondent, claiming to be the
adopted son of another son of A, filed a suit in 1954 after the death of G and
A, challenging the partition deed as fraudulent, that it was never acted upon
and was only intended to defeat the rights of two widows-in A's family. The
appellant-, contested the suit and supported all the alienations.
The trial court decreed the suit except with
respect to one sale deed, and the High Court, in appeal, held in favour of the
first respondent even with respect to that item.
In appeal to this Court, it was contended
that : (1) The partition deed was not a sham transaction; (2) 'Even if the
partition deed was bogus, there was in law a severance of joint family status;
(3) The later acquisitions between the years 1911 and 1940 were not joint
family properties but belonged exclusively to G; and (4) The High Court should
not have reversed the decree of the trial court with respect to the sale deed,
because it was not challenged in the plaint.
HELD : (1) The scheme of the partition was to
deprive the widows-. in A's family of any claim for maintenance out of the
joint family properties but to limit their rights to the smaller share :given
to A. In view of the state of law before the decision in Anant v. Shankar,
A.I.R. 1943 P.C.
196 the two brothers decided to execute a
bogus deed of partition in order to avoid any legal consequences which may
follow if either of the widows should take a son in adoption. Therefore, the
deed was not genuine. [249 D-G;
250 F-G] 246 (2)In order to operate as a
severance of joint status, it is necessary that the expression of intention to
separate himself, by the 'particular member must be definite and unequivocal.
If the expression of the intention is a mere pretence or sham, there is, in the
eye of law, no separation of the joint family status. [251 C-D] Merla Ramanna
v. Chelikani Jagannadha Rao, A.I.R. 1941 P.C.
(3)There is no presumption that a joint Hindu
family, because it is joint, possesses any joint family property or if there
was a nucleus, any acquisition made by any member of the joint family is joint
family property. It is only after the possession of an adequate nucleus is
shown that such a presumption is drawn and the onus shifts on to the person who
claims the property as a self-acquisition to make out his claim. In the present
case, the income from the nucleus was more than sufficient for the purchase of
the various items acquired later, and there was no proof that G had any
separate income of his own out of which he could have: acquired those items.
Therefore, the later acquisitions were also joint family properties. [251 E G
252 C-D, E-F] Appalaswami v. Suryanaravanamurti, I.L.R.  Mad. 440, (P.C.)
(4)The first respondent challenged all the
alienations in the plaint and the High Court was right in holding that the sale
without consideration and hence was not genuine and was not binding on the
first respondent. [253 D-E]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 339 of 1966.
Appeal by special leave from the judgment and
order dated December 12, 1962 of the Bombay High Court in First Appeal No. 436
G. L. Sanghi, and A. G.Ratnaparkhi, for the
S. T. Desai and I. N. Shroff, for the
The Judgment of the Court was delivered by
Ramaswami, J. This appeal is brought by special leave from the judgment of the
Bombay High Court dated 12th December, 1962 in First Appeal No. 436 of 1958 by
which the High Court dismissed the appeal and allowed the cross-objections
filed by the respondents in the said appeal.
247 The relationship of the parties will
appear from the following pedigree Neneppa Gowdwppa=1. Kashibai
Apparaya=Sidgangawa II 2.Sigangawa I (died on (Widows of Gowdappa) 20-12-53)
(wife of Apparaya time of Apparaya Gangabai Neneppa II Neneppa II Revgowda
Subhadra- (widoed daughter (adopted in =Sidgangawa bai(daug- of Gowdappa) 1930
died in III(wife of Reveg- ter of Appellant No. 1944) owda Respodent No.
Apparaya 5in 1944) 2 Appellant No. 3.
Neelagangawa=Mudigowda (daughter of (alleged
to Neneppa II) have been Ramchandra(adopted Appellant No. adopted by to
2. Gowdappa in Sidgangawa III) 1948; and
became Respodent No. the husband of 1. since deceased.
Neelagangawa Appellant No.1.
Goudappa had one daughter by name Gangabai,
while Apparaya had three children (i) Nenappa II, (ii) Ravagowda and (iii)
Subhadrabai.In 1930 Nenappa 11 was given in adoption to Goudappa. He had two
wives Kashibai and Sidgangawa.
Revagowda 'Married another Sidgangawa. In
1938 Revagowda was murdered. Thereafter Goudappa and Apparaya purported to effect
a partition between themselves. At the time of the death of Nenappa 1, six
plots of lands belonged to the joint family. Five of these plots are survey
Nos. 43, 59, 65, 66 and 69 measuring 137 acres and 15 gunthas and assessed at
Rs. 126/12/- and are located in Borgi Khurd. The other plot survey No. 77 which
was in Borgi Budruk measured 14 acres and 24 gunthas and was assessed at Rs.
16/14/-. The total area of the ancestral lands was, therefore, 151 acres and 27
gunt has assessed at Rs. 143/. Between 1911 and 1940, 12 other pieces of lands
in both these villages measuring 137 acres and 39 gunthas and assessed at Rs.
18/10/- were acquired in various names. After Nenappa II 248 was murdered in
1944, both the brothers denied his adoption by Goudappa and purported to effect
a partition on 28th April, 1944. After the partition deed was executed various
alienations were made by the two. brothers. On 25th September, 1944 by Ex. 161
Goudappa gifted S. Nos. 61 and 62 of Borgi Budruk and Survey No. 45 of Borgi Khurd
to defendant No. 4, Subhadrabai. By Ex. 162, dated 1st October, 1946 Goudappa
made a gift of plot survey Nos. 62 and 63 of Borgi Khurd and Survey No. 11/3 of
Borgi Budruk to defendant No. 3 who is the daughter of Nenappa H. On 20th
April, 1948 by Ex. 159 Apparaya sold survey Nos. 77 and 43 to defendant No. 3
for a sum of Rs. 50001. On the same day by Ex. 160 Goudappa sold survey No. 79
for Rs. 1,000/- to Apparaya. Again on 17th May, 1948, by Ex. 158 Goudappa made
a gift of plot survey Nos. 59 and 60 of Borgi Khurd to defendant No. 3. By Ex.
117, dated 7th December 1948 Gou- dappa by a Vardi transferred survey No. 66 of
Borgi Khurd, to defendant No. 6 his widowed daughter. On 15th December, 1948
Goudappa gave a portion of plot No. 96 to Sidgangawa, wife. of Apparava for
maintenance.. By Ex. 166, dated 25th May, 1950, Goudapa and defendant No. 1
together sold to defendant No.. 5 portion of survey No. 23 for a sum of Rs. 3,000/.
Finally on 19th November, 1953, Apparaya executed his last will which is Ex.
168 whereby he bequeathed survey No. 79 to, defendant No. 4 and one house to
his daughter defendant No. 4. The plaintiff 'claimed to be the adopted son of
Revagouda and brought the present suit on 10th June, 1954 challenging the
partition deed as fraudulent. He alleged that it was intended to defeat the
rights of the widows, that it was never acted upon and that the family
continued to be joint. The defendants contested the suit on the ground that the
partition deed Ex. 157 was a genuine transaction and was acted upon, that
Apparaya and Goudappa became separate in status and managed their properties
separately. The defendants supported all the alienations as being genuine and
effective. The trial court came to the conclusion that the 12 pieces of lands
which were acquired between 1911 and 1940 formed part of the joint family
properties, that the partition deed Ex. 157 was not intended to be acted upon
but was executed to defeat the rights of the widows. The trial court held that
none of the alienations except the sale deed Ex. 159 executed by Apparaya in
respect of survey plots Nos. 43 and 77 in favour of defendant No. 3 was binding
on the plaintiff. The trial court accordingly made a decree for partition with
appropriate directions. The defendants took the matter in appeal to the High
Court. The plaintiff also filed a cross.-objection with regard to the sale-deed
Ex. 159. By its judgment dated 12th December, 1962, the High Court dismissed
the appeal of the defendants and allowed the cross-objection of the. plaintiff
holding that the sale-deed Ex. 159 regarding survey plots Nos. 43 and 77 was
also not binding upon the plaintiff.
249 The first question to be considered-in
this appeal is whether the partition. deed executed by Goudappa and Apparaya on
28th April, 1944 was a sham transaction and not intended to be effective. Both
the trial court and the High Court have reached a concurrent finding after an
elaborate examination of the evidence that the partition deed was not genuine,
and that it was effected for an ulterior purpose in order to defeat the rights
of the widows in the joint family. It is manifest that the finding of the lower
courts upon this question is essentially a finding upon a question of fact, and
in an appeal by special leave it is the normal practice of this Court to accept
such a concurrent finding of fact as correct. It was, however, contended by Mr.
sanghi that the finding of the lower courts is vitiated in law because there
was no evidence in support of that finding. In our opinion, there is no
justification for this argument. In the partition deed it is recited that the
lands were partitioned with the help of Panchas but the names of Panchas are
not mentioned in the document and none of the Panchas has signed it. As to the
division of the- properties, Goudappa has been given 101 acres and 39 gunthas
while Apparaya has been given 50 acres and 10 gunthas only.
The total assessment of lands given to
Goudappa is Rs. 82/3/- while the assessment of the lands given to Apparaya is
Rs. 61/7/-. There appears to be no division of the house at all, since nothing
is mentioned in the partition deed about the house. The unequal division of the
lands in the so called partition deed is a strong circumstance which indicates
that the transaction was not genuine. It should also be noticed that at the
time of the partition deed there were widows of two sons in the family, Nenappa
the second and Revagouda. At about this time, after Nenappa's death, the
adoption of Nenappa by Goudappa was denied. The scheme of the partition was,
therefore, to deprive the two widows of any claim for maintenance out of the
joint family properties but to limit their rights to about 50 acres of land
given to Apparaya. There is also evidence that after the partition deed, the
two brothers continued to be in joint possession of the lands and they lived
joint in the same house as before. It appears that the two brothers had a joint
mess even after the date of partition. It was contended by Mr. Sanghi that
there,was no evidence that the two brothers continued to be in joint possession
of the lands. But if is not possible to accept this argument as correct. On a
perusal of the evidence it is apparent that P.Ws. 1 to 4 all supported the case
of the joint possession of the two brothers and their evidence has been
believed by both the lower courts. There is another circumstance which strongly
lends support of the plaintiff's case on this point. It was at one time
supposed that the doctrine of Mitakshara law was that if the last surviving
coparcener died and the property passed to his heir, such as a widow or a
collateral, the power of the widow of a predeceased Sup. CI/69-17 250
coparcener to. adopt was at an end. (Chandra v. Gojarabai and Adivi
Suryapnakasarao v. Nidamarty Gangaraju (2). The cases on this point were
considered in 1936 by the Full Bench of the Bombay High Court in Balu Sakharam
Lahoo Sambhaji Tetgura(3). It was 'held in
that case that where a coparcenary exists at the date of the adoption the
adopted son becomes a member of the coparcenary, and takes his share in the
joint property, but where the partition takes place after the termination of
the coparcenary by the death, actually or fictionally, of the last surviving
coparcener, the adoption by a widow of a deceased coparcener has not the effect
of reviving the coparcenary and does not divest property from the heir of the
last surviving coparcener (other than the widow) or those claiming through him
or her. But the decision of the Full Bench of the Bombay High Court was expressly
over-ruled by the Judicial Committee in Anant V. Shankar(4) It was held that
the power of a Hindu widow does not come to an end on the death of the sole
surviving coparcener. Neither does it depend upon the vesting or divesting of
the estate, nor can the right to adopt be defeated by partition between the
coparceners. The rights of the adopted son relate back to the date of the
adoptive I father's death and the adopted son must be deemed by a fiction of
law to have been in existence as the son of the adoptive father at the time of
the latter's death. If, therefore, there was a coparcenary in existence when
the adoptive father then whether it came to an end by the death of the last
surviving coparcener or by subsequent partition among the remaining members, an
adoption validly made by the widow of the deceased coparcener would have the
effect of divesting the estate in the hands of the heir to the last surviving
coparcener in the first case and of putting an end to the partition in the
second case and enabling the adopted son to claim a share in the family
properties as if they were still joint. The decision of the Judicial Committee
in Anant v. Shankar(4) was unexpected and revolutionary in character. It is
likely that in view of the fluid and un- certain state of the law on this point
the two brothers Goudappa and Apparaya decided to execute a bogus deed of
partition in order to avoid any legal consequence which may follow if either of
the widows should take a son in adoption. We are accordingly of 'the view that
there is proper evidence to support the concurrent finding of the lower courts
and there is no reason to disturb that finding.
it was also contended on behalf of the
appellants that even though the partition deed was bogus there was in law a
severance of joint family status and the family could not continue to be joint
(1) I.L.R. 14 Bom. 463. (3) A.I.R. 1937 Bom. 279.
(2) I.L.R. 33 Mad. 228. (4) A.T.R. 1943 P.C.
251 after 20th April, 1944 which was the date
of the partition deed. In other words, the argument was that there was a
declaration by the coparceners of their intention to separate and that
declaration was sufficient to put an end to the joint family. status of the two
brothers. In our opinion, there is no substance in this argument. It is now
well established that an agreement between all the copar- ceners is not
essential to the disruption of the joint family status, but a definite and
unambiguous indication of intention by one member to separate himself from the
family and to enjoy his share in severalty will amount in law to a division of
status. It is immaterial in such a case whether the other members assent or
not. Once the decision is unequivocally expressed, and clearly intimated to his
co- sharers, the right of the coparcener to obtain and possess the share to
which he admittedly is entitled, is un impeach- able. But in order to operate
as a severance of joint status, it is necessary; that the expression of
intention by the member separating himself from the joint family must be
definite and unequivocal. If, however., the expression of intention is a mere
pretence or a sham, there is in the eye of law no separation of the joint
family status. See for instance the decision of the Judicial Committee in Merla
Ramanna v. Chelikani Jagannadha Rao & Ors.'(1).
We pass on to consider the next question
arising in this appeal,, viz. whether the High Court was right in holding that
the 12 pieces of lands were joint family properties and were not the self
acquisition of Goudappa. The case of the appellants was that these lands were
self-acquisition of Goudappa, but the respondents contended that they were
joint family properties. The law on this aspect of the case is well settled. of
course there is no presumption that a Hindu family merely because, it is joint,
possesses any joint property. The burden of proving that any particular
property is joint family property, is, therefore, in. the first instance upon
the person who claims it as coparcenary property. But if the possession of a
nucleus of the joint family property is either admitted or proved, any
acquisition made by a member of the joint family is presumed to be joint family
property. This is. however, subject to the limitation that the joint family
property must be such as with its aid the property in question could have been
acquired. It is only after the possession of an adequate nucleus is shown, that
the onus shifts on to the person who claims, the property as self acquisition
to affirmatively make out that the property was acquired without any aid from
the 'family estate. In Appalaswami v. Suryanarayanamurti(2), Sir John Beaumont
observed as follows "The Hindu law upon this aspect of the case is well
settled. Proof of the existence of a joint family does (1) A.I.R. 1941 P.C. 48.
(2) I.L.R.(1948)Mad..440.(P.C.) 252 not lead
to the presumption that property held by 'any member of the family is joint,
and the burden rests upon anyone asserting that any item of property was joint
to establish the fact. But where it is established that the family possessed
some joint property which from its nature and relative value may have formed
the nucleus from which the property in question may have been acquired, the
burden shifts to the party alleging self-acquisition to establish affirmatively
that the property was acquired without the aid of the joint family property.
See Babubhai Girdharlal v. Ujamlal Hargovandas(1), Venkataramayya v. Seshamma(2)
and Vythianatha v. Varadaraja(3).
In the present case, both the lower courts
have found that there was an adequate nucleus of joint family properties from
which the acquisitions could have been made. It is admitted that when Nenappa I
died, the joint family was possessed of 151 acres and 27 gunt has of land
assessed at Rs. 143. It is further admitted by defendant No. 1 that out of the
four ancestral lands, one land was Bagayat land.
Witnesses on behalf of 'the plaintiff
assessed the income between Rs. 5,000 to Rs. 6,000 before the first world war.
It is also conceded that the family had
between 8 to 12 bullocks for the purposes of cultivation and most of the lands
were cultivated personally by-the family members.
Between 1911 and 1940 12 other pieces of
lands measuring 137 acres and 39 gunt has assessed at Rs. 18/10/- were acquired
in various names. The total price of the sale deeds is Rs. 4800 spread over a
period of 30 years. In view of this evidence, we see no reason to differ from
the finding of the lower courts that the income from the nucleus was more than
sufficient for the purchase on the different dates. The respondents alleged
that these properties belonged to the joint family, and unless it is shown by
the appellants that Goudappa carried on any other business and that these pro-
perties were acquired out of that income, the appellants must fail. The case of
defendant N6. 1 was that Goudappa made these acquisitions out of his business.
D.W. 1 did not however state the nature of the business. In cross- examination
he said that Goudappa was trading in cotton and this information he had got from
Goudappa after his adoption. D.W. 1 was however unable to say with whom
Goudappa had dealings in cotton. If Goudappa was doing cotton business it
should not have been difficult for the ,defendants to have produced more direct
evidence of persons with whom he had business dealings. The High Court has
rejected the evidence of D.W. 3, Imamsaheb as worthless. It is manifest that
there is no proof that Goudappa had any separate income of his (1) I.L.R.
Born.708. (2) I.L.R. Mad. 1012.
(3) I.L.R.  Mad. 696.
253 own out of which he could have acquired
the 12 pieces of land. 'Me lower courts were, therefore,right in reaching the
conclusion that the 12 pieces of lands belonged to joint family and that the
plaintiff was entitled to a share thereof in the partition.
It was lastly contended on behalf of the
appellants that in any case the High Court should not have allowed the cross-
objection of the respondents with regard to 'survey plots Nos. 43 and 77.
Reference was made to paragraph 5 of the plaint in which there was no specific
mention of the sale deed executed by Apparaya in favour of defendant No. 3 of
survey plots Nos. 77 and 43. But paragraph 4 should be read along with
paragraph 7 of the plaint in which the plaintiff challenged the alienations made-in
favour of the several parties to the suit and had claimed relief in respect of
all the lands mentioned in the schedule to the plaint. Survey plots Nos. 77 and
43 are expressly mentioned in the schedule. It is, therefore, not possible to
accept the contention of the appellants that the plaintiff had not challenged
the sale deed Ex. 159 with respect to survey plots Nos. 77 and 43. The High
Court has pointed out that defendant No. 3 was a minor at the time of sale,
that Goudappa had acted as her guardian and that defendant No. 3 had no
property of her own. The High Court therefore rightly held that the sale must
be held to be without consideration and not genuine and was, therefore, not
binding on the plaintiff.
For these reasons we hold that the, judgment
of the Bombay High Court dated 12th December, 1962 is correct and this appeal
must be dismissed with costs.
V.P.S. Appeal dismissed.