Marabasappa (D) by LRS.
& Ors. Vs. Ningappa (D) by LRS. & Ors.
J U D G M E N T
H.L. DATTU, J.
appeal is directed against the Judgment and Order of the High Court of Karnataka
at Bangalore, dated 30th March 1999 in R.F.A. No. 385 of 1993, R.F.A. No. 258
(sic.) of 1994 and R.F.A. No. 775 of 1995 (sic.), wherein the High Court has
modified the Decree of the Trial Court and has held that the properties described
in `A' Schedule to the suit are joint family properties and the parties to the suit
are entitled for 1/3rd share in those properties. The other observations and
directions of the Court is not relevant for the purpose of this appeal.
question that is contested by the parties and has fallen for our consideration
is whether the properties in dispute are the personal acquisitions of
Parwatevva, or, as held by the High Court, a part of the joint family property.
factual matrix in brief is as follows:- Siddappa and Parwatevva got married in
1924 and at the time of the marriage, the father of Parwatevva gifted her land in
Survey No. R.S. No. 271/1 measuring 8 Acres 16 Guntas under registered Gift
Deed dated 30th April 1924 ["A7"]. Siddappa, after his marriage, continued
to reside in his in-laws house. During his life time, Siddappa had no other source
of income except from the tenanted lands which was only a small extent and was totally
dry lands. Parwatevva purchased lands in R.S. No. 91 measuring 19 Acres 13 Guntas
under a registered Sale Deed from the income of the land that was gifted to her
by her father on 5th October, 1944 [A(4) - A(6)]. Thereafter, on 2nd June, 1951,
with the income from the above two lands, Parwatevva purchased another land being
R.S. No. 143 measuring 28 Acres 23 Guntas [A(8)-A(12)]. Siddappa died in the year
1951. The couple had four sons and one daughter - Marabasappa (appellant-defendant),
Ningappa (respondent-plaintiff), Bhimappa (deceased - legal heirs are on record),
Sangawwa and Channappa (pre-deceased without any heirs).
her life time Parwatevva relinquished her share in R.S. No. 91 in favour of the
present appellant (Marabasappa). Thereafter, subsequent to an oral partition,
she gave one part of the other property bearing R.S. No. 143/1 and R.S. No. 143/2
to the respondent (Ningappa) and the heirs of Bhimappa respectively. In June 1984,
Parwatevva executed a will of `stridhana' land to her daughter, Sangawwa. Parwatevva
died on 08.07.1984. The present dispute is between her children and their
respondents-plaintiffs filed a suit bearing O.S. No. 40/1990 before the Court
of the Civil Judge, Gadag [hereinafter referred to as "the Trial Court"],
inter alia alleging that the entire property mentioned above is the joint
family property and the same was not the personal property of Parwatevva, and
hence, a prayer for partition and separate possession of 1/3rd share was made
in respect of Schedule `A' to `C' properties. Schedule `A' properties consist of
agricultural lands, Schedule `B' properties consist of houses and open places
and Schedule `C' properties consist of movables of all the properties held by the
defendants-appellants except the plaintiffs' properties. The Trial Court
negatived this contention of the respondents-plaintiffs on the basis of the
oral and documentary evidence and found, inter alia, that the said properties were
self acquired properties of Parwatevva, accordingly, has partly decreed the suit
in favour of the plaintiffs- respondents.
aggrieved, the parties to the suit preferred Regular First Appeals. The High
Court, by the impugned Judgment and Order, set aside the Judgment of the Trial Court
and took the view that apart from the stridhana land, the rest of the property
was a part of the joint family property purchased from the income and funds of the
joint family property and, therefore, the decree, as sought by the plaintiffs, requires
to be granted. Against this finding and the conclusion reached by the High
Court, the appellants-defendants are before us.
Rajesh Mahale, learned counsel, appears for the appellants and Shri. Gireesh Kumar,
learned counsel, appears for the respondents.
original appellants and respondents have all died during the pendency of the Suit
and the Regular First Appeal and their legal representatives have been brought on
record with the permission of the Court. Since, it is a family dispute between
the brothers and their heirs, it was suggested to the parties through their
learned counsel that the course of mediation be adopted to settle the dispute. This
Court [G.S. Singhvi and A.K. Ganguly, JJ.] passed the following order on the
9th of December, 2010: "During the midst of arguments, learned counsel for
the parties agreed that their clients may be given an opportunity to make an
attempt to amicably settle their dispute by negotiations. In view of the
statement made by the learned counsel, we direct both the parties to appear before
the Mediation Centre, Karnataka High Court, Principal Bench at Bangalore, on 17.01.2011.
The Incharge, Mediation Centre, Karnataka High Court, Principal Bench, Bangalore,
shall send a report to this Court within next four weeks. List the case in the
first week of March 2011."
learned counsel for the parties has reported to us that there is no settlement
reached between the parties.
Mahale, learned counsel, submitted that the Trial Court, after appreciating the
evidence on record, had reached the conclusion that the properties in question are
the self acquired properties of Parwatevva. It is submitted that the High
Court, while considering the evidence on record and the conclusion reached by
the Trial Court, has erroneously come to the conclusion that the property in
dispute is a joint family property and therefore, the findings of the High
Court are perverse and further, the High Court has committed serious error in law
in holding that the disputed property is a joint family property. Shri. Gireesh
Kumar, learned counsel for the respondents, has supported the findings of the
sum and substance of the allegations in the suit are that out of the tenanted
land, 2 Acres, 10 Guntas, late Siddappa acquired all the other properties
including the land in R.S No. 271/1 and R.S. No. 91 and R.S. No. 143. Therefore,
all the properties are joint family properties, though they stand in the name
of Parwatevva. The Trial Court has relied upon the registered Gift Deed [Ex. D.60]
and has come to the conclusion that the property marked A7 was the stridhana property
of Parwatevva, and by virtue of Section 14(1) of the Hindu Succession Act, 1955
read with the Explanation, was the absolute property of Parwatevva and could
not be blended in the joint family property.
The Trial Court,
while considering the nature of the lands A(4) to A(6), has taken into consideration
the certified copy of the sale deed in respect of that land [Ex.D.8], and has come
to the conclusion that there is no evidence adduced by the respondents- plaintiffs
to deny the fact that the lands A(4) to A(6) were not purchased from the independent
income of the Parwatevva, and hence, negatived the contention of the
respondents-plaintiffs that the lands were joint family property, and has also held
that these lands were purchased by Parwatevva from the income derived from the stridhana
lands, i.e., A7.
With regard to the
lands A(8) to A(12), the Trial Court, relying on the certified copy of the sale
deeds of the said lands [Ex.D. 45], has again found that there was no proof
that the said property was acquired out of the income of the joint family
property as asserted by the respondents-plaintiffs, and concluded that the same
was purchased from the income derived from the aforementioned two properties by
High Court has found fault with the finding of the Trial Court and has held: "21.
Coming to the properties said to have been purchased in the name of Parvatewwa under
the registered sale deed dated 5-10-1944, twenty years after the Gift deed, the
learned Judge find that R.S. No. 91 which lands in A(4) to A(6) was purchased under
Ex.D. 8. Now the reasoning given by the learned Judge that if Siddappa is the protected
7tenant of the said land, there is no reason for him to purchase the said land under
Ex.D. 8 cannot be appreciated.
In any event, whenever
a mother is there and the properties are purchased in the name of the mother, the
presumption is that it is for the benefit of the family. It is nobody's case that
the lands purchased is for the intention and for the benefit of the mother alone
and she also did not differentiate between her sons and daughters. This is a natural
and human aspect which has not been considered by the trail court. The finding that
Siddappa do no continued (sic.) as tenant or protected tenant of all the lands as
mentioned in Ex.P. 20 except 1 acre 20 guntas of land in R.S. 274/3 and A(3) land
in R.S. No.:9/3A is not sustainable.
Why should valuable tenancy
rights given up and then the purchase made in the name of the mother is not understandable
nor it is not explained; probably in confirmation of tenancy rights and make it
clear that the properties does not go out of the family. The sale is taken in
the name of the mother. Therefore, in my opinion, the purchase made by the mother
is only from and out of the income from the family and there is no evidence to show
that she had any independent or individual income from the gifted property to purchase
irresistible inference shall be drawn that the property purchased in the name of
the mother is for the benefit of all the members of the family. Now no doubt
the plaintiff came forward with the case that suit lands A(4) to A(6) and A(8) to
A(12) were purchased from and out of the family income and the income from the
A(1) to A(3) lands. But once it is seen that the 1st defendant was managing the
affairs of the family as `karta', the burden shifts on him to prove that the properties
purchased was not for the benefit of the family, but they were exclusively
belong to the mother. In those days income from 3 acres 30 guntas cannot be considered
as thin nucleus as has been wrongly held 8by the trial court.
Having held that applying
the dictum in I.L.R. 1990 Kar Pg-1182, the initial burden lies upon the
plaintiff. But once such burden is discharged and shifts on the defendant, the trial
court should have considered that whether the defendant has proved that the purchase
was made from any other source of income excepting the income from A(1) to A(3).
In the absence of any positive evidence spoken to by D.W. 2 or the witnesses examined
on behalf of the defendant that the mother was trying to save the property
either for herself or not for the benefit of the everybody, the irresistible conclusion
is that the mother is always mother and the properties purchased in her name shall
be the properties of the family.
There is a clear evidence
adduced by the plaintiff that the suit lands in A(1) to A(3) were the basis the
income of which was utilized for acquisition of the lands in A(4) to A(6) and
A(8) to A(12) lands. But the trial court has relied upon the gift in question
and left it not been considered on erroneous approach. The mere fact that the
mother has the son and ip-so-facto that the mother is cultivating the land when
there admittedly sons who is professional agriculturist and whether it is mother
alone or father himself cultivating the lands; everybody contri-butes (sic.) their
right and labour to cultivate the land.
It is nobody's case
that Parwatevva kept her income separately or that income was not occrued (sic.)
by the father Siddappa. When it is found by the court below that the plaintiff
was only 16 years of age in 1944, and defendant no. 1 was about 22 or 23 years
of age, the burden should have been shifted to 1st defendant to explain as to
what really happened and what is the necessity for purchase of the property in
the name of the mother. This has not been done. Having been found that during the
lifetime of Siddappa, Parwatevva could not have being (sic.) the karta of the family.
That defendant-1 alone
would have become `karta' of the family, the court below ought to have placed
the burden on the defendant and the defendant has not proved or discharged that
burden at all. The learned judge would embarked upon the surmises and
imagination regarding the income and came to wrong conclusion that the family did
not have nucleus to acquire the properties mentioned in `B' and `C'
is clear from the above conclusion, the High Court has not accepted the
findings and conclusion reached by the Trial Court. The High Court has, in our
opinion, wrongly shifted the burden of proving that the said lands were a part of
the self acquired property of Parwatevva and not a part of the joint family property
of the appellants-defendants, when there was no affirmative proof of anything
contrary. In our view, the High Court has erred in shifting the burden of proof
on the appellants-defendants, especially when there was nothing on record either
by way of oral or documentary evidence produced by the respondents-plaintiffs
before the trial court.
genealogical relation between the parties is not in dispute. Propositor
Siddappa died in the year 1951 and he was survived by his wife Parwatevva,
plaintiffs and defendants. He was the tenant of the suit lands A(1) to A(3). It
is claimed that Siddappa had purchased lands in R.S. No.91 under a Registered
Sale Deed dated 05.10.1944 10 out of the joint family income and funds but in
the name of his wife Parwatevva.
The lands in R.S. No.
91 is further divided as A(4) to A(6). It is also claimed that lands in R.S.
No.143 was purchased out of joint family funds in the name of Parwatevva. These
lands are sub- divided as Serial Numbers A(8) to A(12). Lands in R.S. No.271/1,
which was gifted to Parwatevva by her father, was claimed that it got blended
and treated with the other joint family property. Marbasappa, defendant No.1,
being the eldest in the family had applied to the Land Tribunal for grant of
occupancy rights of tenanted lands A(1) to A(3) and the same has been granted in
his name and conferment of occupancy rights would enure to the benefit of the joint
family. Plaintiffs assert that the Suit Schedule properties are joint family properties
and, therefore, the same requires to be partitioned according to their shares by
a decree of partition and separate possession. The claim of the plaintiffs is denied
by the contesting defendants. Parties have led in copious oral and documentary evidence.
present, we are mainly concerned with `A' Schedule properties. The parties to the
appeal have no grievance so far as decree passed in respect of `B' and `C' Schedule
properties are concerned.
so far as lands shown as A(1) to A(3) are concerned, it is claimed by the
plaintiffs that the propositor Siddappa was a tenant of the lands and continued
as such till his death in the year 1951. Thereafter, the HUF continued to be
the tenants of the lands and the defendant No.1, being the head of the family,
had applied for grant of occupancy rights in respect of those tenanted lands and
the Land Tribunal had granted occupancy rights in his favour. On the death of Siddappa,
the tenancy lands A(1) to A(3) were mutated in the name of his sons. It is claimed
that the occupancy rights so granted would enure to the benefit of the whole
joint family. Therefore, it is a joint family property and requires to be
partitioned among the members of the joint family. The defendants have denied
that the lands A(1) to A(3) are the joint family tenancy lands.
perusing the records and the order passed by the Land Tribunal, Gadag, it
appears to us that defendant No. 1 had applied to the Land Tribunal for grant
of occupancy rights in respect of land in Survey No. R.S. No. 9/3A and R. S.
No. 274/3 measuring an extent of 2 Acres and 10 Guntas and 1 Acre and 20 Guntas
respectively. Land Tribunal had granted occupancy rights in favour of the applicant-
defendant No. 1 in respect of the said two lands. Shri Mahale, learned counsel
for the appellants, does not contend contrary to the findings and conclusion reached
by the Trial Court. He admits that though occupancy rights are granted by the
Land Tribunal in the individual name of the appellant-defendant No.1, the said
occupancy rights enure to the benefit of all the members of the Joint family.
Land A(7) bearing R.S. No.271/1 was `stridhana' property of Parwatevva. This
property was gifted to her by her father under a registered Gift Deed dated
30th April, 1924. She was the owner of the said land. She continued to be in
possession of the said land till she bequeathed the same in favour of defendant
No.5 under a will dated 30.06.1984. On the death of Parwatevva and on the basis
of the said Will, the legatee-defendant No.5 claims she has become owner of the
said land. The same has been noted in the Revenue Records. The Will and the
Revenue entries made are questioned by the plaintiffs and has successfully proved
that the said Will was not executed by Parwatevva.
No.5 cannot claim title over A(7) under a Will Ex. D-51. Accordingly, this
property cannot be brought into the hotchpotch of the joint family property and
would not be available for partition. Stridhana belonging to a woman is a property
of which she is the absolute owner and which she may dispose of at her
pleasure, if not in all cases during coverture, in all cases during widowhood. Since
the plaintiffs have proved that Parwatevva had not alienated the property by executing
a Will in favour of defendant No. 5 during her lifetime, the property is the absolute
property of Parvatevva and would not be available for partition among the members
of joint family since it does not partake the character of joint family
coming to Suit Schedule properties Item No.A(4) to A(6), it is the case of the
plaintiffs that the said properties were purchased by Siddappa, father of the
plaintiffs and the defendants under a Sale Deed dated 05.10.1944, but, in the
name of his wife Parwatevva from and out of the income of the tenancy lands A(1)
to A(3) for the purpose of the joint family for which he was also the Karta of the
family. However, it is the case of the contesting defendants that the said
property is the self acquired property of Parwatevva from and out of her income
derived from the property gifted to her by her father in the year 1924. The
defence that is also put up by the defendants is that
Siddappa was the
tenant of the property A(1) to A(3) only from the 14 year 1947 and, therefore,
plaintiffs cannot claim that from out of the income of the property A(1) to
A(3), lands in item A(4) to A(7) were purchased. It has come in evidence of the
contesting defendants that propositor Siddappa was the tenant of the lands A(1)
to A(3) only from the year 1947. The same is not disputed by the plaintiffs by leading
any other cogent evidence to prove that Siddappa was the tenant of the lands A(1)
to A(3) even prior to 1944, the date of the Sale Deed. In the absence of any evidence,
much less cogent and reliable evidence, it is difficult to accept the version
of the plaintiffs that the suit schedule A(4) to A(6) should be put into common
hotch potch and partitioned by meters and bounds.
may also notice the observations made by the Trial Court, which we also agree,
in the course of its judgement. "61. Now let us firstly take up A(4) to A(6)
lands. Ex.D.8 is the certified copy of the sale deed in respect of said land, dated
05-10-1944. It is necessary to emphasize that according to the plaintiffs, Shiddappa
was protected tenant of the lands mentioned therein as per Ex.P.20, which pertains
to 1947. They have obviously, not produced any records, such as R.O.Rs. or mutation
entries to show that Shiddappa was the tenant of those lands, mentioned in
Ex.P.20 even prior to 1947. It is essential because, we are assessing the productivity
of nucleus as on the date of Ex.D.8. Ex.D.8 is admittedly of 1944.
Since no document is
produced 15by plaintiffs to show that Shiddappa was the tenant even prior to
1947 of the lands referred to in Ex.P.20, it cannot be said that he had no
`independent source of income at the relevant time of 1944 (Ex.D.8). Evidence
on record justified that at the relevant time of Ex.D.8, Parvatewwa was already
owner and possessor of A(7) land, extent of which is 8 acres 16 guntas. Excepting
this land, the family of the parents of plaintiff No.1, defendant No.1 and
Bheemappa, is not shown to have had any other source of income. Hence, it follows
that the land in Ex.D.8 could not have been acauired at all by Shiddappa, out of
his income, since he is not shown to have had any income at all. It is too much
to say that the income of the lands at A(1) to A(3) was the source of income
for acquisition of the lands A(4) to A(6) (Ex.D.8).
pre-supposes that Shiddappa was a tenant of A(1) to A(3) lands even prior to 1944
(Ex.D.8). Absolutely there is no evidence. Hence, it cannot be said that Shiddappa
had purchased A(4) to A(6) lands, which is land in Ex.D.8, out of the income of
the joint family. Indeed, he was living in the house of his parents-in-law with
Parvatewwa and Ex.D.60 of 1924 shows that he had no financial strength. Hence, I
am of the definite opinion that the land in Ex.D.8 must have had been acquired
by Parvatewwa out of the income she had derived from A(7) land.
It cannot be said and
it is not acceptable that Shiddappa had purchased the land mentioned in Ex.D.8
in the name of his wife Parvatewwa. I make it clear that it was purchased by
her only out of her income derived from A(7) land.Plaint shows that plaintiff No.1
and defendant No.1 were of 62 and 70 years respectively on the date of 16 suit.
It shows that in 1944, the year of Ex.D.8, plaintiff No.1 was about 16 years of
age, and defendant No.1 was about 22 or 23 years of age. I am emphasizing these
facts to show that neither of them had independent source of income. It must mean
that Parvatewwa was the absolute owner of the suit lands A(4) to A(6) mentioned
in Ex.D.8. Hence, it cannot be said as joint family property. Joint family did
not have at all, any nucleus to acquire the land in Ex.D.8. Hence, said finding
is recorded." Therefore, the findings contrary to the above view by the
High Court are erroneous and cannot be sustained.
14 of the Hindu Succession Act, 1956 clearly mandates that any property of a
female Hindu is her absolute property and she, therefore, has full ownership. The
Explanation to sub-section (1) further clarifies that a Hindu woman has full ownership
over any property that she has acquired on her own or as stridhana. As a consequence,
she may dispose of the same as per her wish, and that the same shall not be treated
as a part of the joint Hindu family property.
Court has time and again held that there is no presumption that of joint family
property, and there must be some strong evidence in favour of the same. In the case
of Appasaheb Chamdgade v. Devendra Chamdgade and Ors., (2007) 1 SCC 521, after
examining the decisions of this Court, it was held: "17. Therefore, on
survey aforesaid decisions, what emerges is that there is no presumption of a
joint Hindu family but on the evidence if it is established that the property was
joint Hindu family and the other properties were acquired out of that nucleus, if
the initial burden is discharged by the person who claims joint Hindu family, then
the burden shifts to the party alleging self-acquisition to establish affirmatively
that property was acquired without the aid of the joint family property by
cogent and necessary evidence."
as lands at Item A(8) to A(12) are concerned, it is the case of the plaintiffs that
on the death of propositor Siddappa, joint family continued and during its
continuance, agricultural lands in R.S. No.143, which is now sub-divided as
items A(8) to A(12) came to be purchased out of the joint family funds, but, in
the name of Parwatevva, since she was eldest member of the joint family at the relevant
point of time. The oral evidence was led in support of the assertion made in the
plaint. The plaintiffs have not produced any other evidence in support of the
claim so made. The defence pleaded by the defendants, apart from others, is that
Parwatevva had her independent source of income from A(7) lands. She, with the
aid of 18the said income, acquired not only A(4) to A(6) but also A(8) to A(12)
lands and the tenancy lands was held by joint family.
It is also contended by
them that propositor Siddappa, after marrying Parwatevva, lived in the paternal
house of his wife Parwatevva, which fact is not denied by the plaintiffs, and Siddappa
had no personal income nor agricultural income which he could utilize for
purchase of any property, much less A(8) to A(12) properties. The Trial Court, after
considering the entire evidence on record has come to the conclusion that lands
A(8) to A(12) is the absolute self acquired properties of Parwatevva . The
findings and the conclusion so arrived is based on the proper appreciation of
the evidence on record and the respondents have not brought to our notice
anything contrary to make a different view.
agreeing with the findings and the conclusion reached by the Trial Court, we reject
the contention canvassed by learned counsel for the respondents. Therefore,
lands in R.S. No. 143, which is now sub-divided as A(8) to A(12) of the suit Schedule
is not the joint family property but the absolute property of Parwatevva, which
she has purchased/acquired from the income and funds from the lands A(7) and A(4)
to A(8). Accordingly, `A' Schedule properties requires to be partitioned among the
family members in accordance with law.
the light of above discussion, we are unable to accept with the reasoning given
by the High Court. We are in agreement with the reasoning and conclusion
reached by the Trial Court.
the result, the appeal is allowed and the Judgment and Order passed by the High
Court in RFA No. 385 of 1993 dated 30.03.1999 is set aside and Judgment and decree
passed by the Trial Court in O.S.No. 40 of 1990 dated 15.07.1993 is restored. Parties
are directed to bear their own costs.