Mallesappa Bandeppa Desai & Ors Vs.
Desai Mallappa & Ors  INSC 39 (9 February 1961)
GUPTA, K.C. DAS
CITATION: 1961 AIR 1268 1961 SCR (3) 779
CITATOR INFO :
R 1970 SC1722 (6) RF 1977 SC2230 (16)
Hindu Law--Doctrine of blending--If applies
to property held by female in limited right.
The rule of blending in Hindu Law as evolved
by judicial decisions can have no application to a property held by a Hindu
female as a limited owner. That rule postulates a coparcener deliberately and
intentionally throwing his independently acquired property into the joint
family stock so as to form a part of it.
Although it is unnecessary now to investigate
whether there is any other text on which that rule could be founded, it is
quite clear that the text of Yagnavalkya in a different context and the
commentary thereupon by Vijnyaneshwara, relied on by the Privy Council in this
connection, can have no relation to the said rule.
Shiba Prasad Singh v. Rani Prayag Kumari Debi
59 I.A. 331, disapproved.
Rajanikanta Pal v. Jaga Mohan Pal (1923) L.R.
50 I.A. 173, relied on.
Consequently, where in a partition suit
certain immovable properties acquired by a Hindu female from her father as a
limited owner were claimed to form part of the joint family property of her
husband by virtue of the said rule:
Held, that the claim must fail.
Held, further, that a Hindu female owning a
limited estate cannot circumvent the rules of surrender and allow the members
of her husband's family to treat her limited estate as part of the joint family
property of her husband.
Before the said rule can be invoked, it must
be shown that the owner wanted to extinguish his title to the property in question
and impress upon it the character of joint family property.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 263 of 1956.
Appeal from the judgment and decree dated
January 6, 1953, of the Madras High Court in A. S. Appeal No. 7 of 1949.
M. C. Setalvad, Attorney-General of India and
Naunit Lal, for the appellants.
100 780 A....V. Vimanatha Sastri and B. K.
B.Naidu, for respondent No. 1.
M. B. K. Pillai, for respondent No. 2.
1961. February 9. The Judgment of the Court
was delivered by GAJENDRAGADKAR,J.-This appeal has been brought to this Court
with a certificate granted by the Madras High Court and it arises from a suit
filed by the appellants Mallesappa and Chenna Basappa against their uncle
Mallappa, respondent 1 and granduncle Honnappa, respondent 2, for partition.
According to the plaint, the family of the
appellants and respondent 1 was an undivided Hindu family until the date of the
suit, and respondent 1 was its manager. The ancestor of the family was Desai
Mallappa. He had three sons, Kari Ramappa who died in 1933, Virupakshappa who
died long ago and Honnappa, respondent 2. Kari Ramappa had four sons Guru-
shantappa (died 1913), Bandappa (died 1931), Mallappa (respondent 1) and
Veerabhadrappa (died 1927).
Gurushantappa married Parvathamma; the two
appellants are the sons of Bandappa, their mother being Neelamma. They were
born in 1926 and 1929 respectively. Their case was that respondent 1 who has
been the manager of the family for many years has been trying to deprive them
of their legitimate share in the property and refused their request for
partition, and so they had to file the present suit.
According to them, in the property of the
family they and respondent 1 were entitled to half share each. To the plaint
were attached the schedules describing the several items of property. Schedule
A consisted of items 1 to 163 which included houses and lands at Jonnagiri.
Schedule B described the movables while Schedule C included items 1 to 35 all
of which had been acquired by the family under a document Ex. B-32. It is in
respect of all these properties that the appellants claimed their half share
and asked for a partition in that behalf.
This claim was resisted by respondent 1
principally on the ground that in 1929 Ramappa, the father of 781 respondent 1
and the grandfather of the appellants had effected a partition of the joint
family properties between respondent 1 and his elder brother Bandappa who is
the appellants' father. That is how, according to respondent 1, the appellants'
claim for partition was untenable. In this way he pleaded separate title to all
the properties in suit.
On these pleadings the learned District
Judge, who tried the suit, framed eight issues; two of these related to the
question regarding the status of the family. He found that the plea of
partition made by respondent 1 was not proved, and accordingly he declared that
the appellants were entitled to half share in the properties of the family and
passed a preliminary decree for partition. According to the learned judge, the
appellants were entitled to their half share in the items of property described
in Schedule A excluding items 63, 64, 65, 86 and 151 and items in paragraph
14(d) of the written statement of respondent 1 as well as items of property
described in Schedules B and C.
This decree was passed on November 22, 1948.
The said decree was challenged by respondent
1 by his appeal before the Madras High Court. He urged that the trial court's
finding as to the status of the family was erroneous, and he pleaded that in
any case the appellants were not entitled to any share in the properties at
Jonnagiri, items 4 to 61, as well as the properties acquired under Ex. B-32.
The first argument was rejected by the High Court, but the second was upheld.
In the result the decree passed by the trial court was confirmed except in
regard to the said two categories of properties. It is this appellate decree
which is challenged before us by the learned Attorney-General on behalf of the
In order to appreciate the contentions raised
before us it would be necessary to recapitulate briefly the findings
concurrently recorded by the courts below in respect of the plea of partition
set up by respondent 1. These findings afford a background in the light of
which the pleas raised before us would have to be considered. It appears that
respondent 1 relied on several documents in support of his plea that there 782
was a partition effected by Ramappa in 1929. The trial court repelled this
argument and observed that from 1937 respondent began to do mischief. The
transfer of patta in 1937 on which respondent 1 relied was entirely his work
and the appellants' mother Neelamma had not been consulted and had given no
consent to it. In the opinion of the trial court respondent 1 through his agents
whom he examined as witnesses in the suit (D. Ws. 2 and 14) managed the family
lands, arranged to pay cist for them and manipulated entries in the revenue
record purporting to show that Neelamma had paid the said cist as pattadar.
Neelamma was an illiterate and Gosha woman and it appeared that a certain
amount of coercion had been practised on her as well as deception in persuading
her to execute the original of Ex.
B-10 which contained the recital that the
house there described had fallen to the share of Neelamma's husband at a prior
partition. The trial court was satisfied that the said recital had been
fraudulently made and the 'document had not been read to Neelamma at all. The
demeanour of respondent 1 in the witness box was also criticised by the trial
judge when he observed that he did not impress the trial judge as a truthful
witness, and in his opinion he was a powerful and influential man in the
village who was able to do a number of things as he wished and so it was not
surprising that he was able to get a number of witnesses to speak to separate
enjoyment of a few items of land by the appellants' mother.
When the question of status of the family was
reagitated before the High Court it felt no hesitation in confirming the
conclusions of the trial court in regard to the general conduct of respondent
1, the documents brought into existence by him, and the unfair manner in which
he had dealt with the appellants' mother. For the reasons set out by the High
Court in its judgment " and also for the various reasons put forward by
the learned District Judge in his exhaustive judgment " the High Court
agreed with the learned judge that the alleged partition of 1929 had not been
proved. Thus the dispute between the parties has to be considered 783 on the basis
that until the date of the institution of the suit the family was an undivided
Hindu family with respondent I as its manager.
The first point which has been raised before
us by the learned Attorney-General relates to items 4 to 61 at Jonnagiri. These
properties originally belonged to Karnam Channappa. He died in 1904, and in
due' course they said property devolved upon his widow Bassamma who died in
Bassamma left behind her three daughters
Channamma, Nagamma and Veeramma. Channamma married Ramappa, and as we have
already indicated the couple had four sons including the appellants father
Bandappa and the first respondent Mallappa. It is common ground that the
properties at Jonnagiri had been obtained by Channamma by succession from her
father and were held by her as a limited owner. The appellants' case was that
after Channamma obtained these properties by ,succession she allowed the said
properties to be thrown into the common stock of other properties belonging to
her husband's family, and so by virtue of blending her properties acquired the
character of the properties belonging to her husband's family; in other words,
the appellants' claim in respect of this property is based on the principle of
blending or throwing into the com- mon stock which is recognised by Hindu law.
The trial court relied on some transactions adduced by the appellants and
upheld the plea that Channamma's properties had become joint family properties
in which the appellants had a half share.
The High Court has reversed this finding, and
it has held that the transactions on which the appellants relied do not prove
blending as known to Hindu law. That is why the appellants' claim to these
properties has been rejected by the High Court.
Before considering the appellants' case in
regard to ,/these properties it is necessary to enquire whether the doctrine of
blending can be invoked in such a case. Is this doctrine based on any Sanskrit
Text of Hindu Law? According to the decision of the Privy Council in Shiba
Prasad Singh v. Rani Prayag Kumari Debi (1).
(1) (1932) L.R. 59 I.A. 331.
784 this doctrine is based on the text of
Yagnavalkya and the commentary of Mitakshara; the text of Yagnavalkya reads
thus: " In cases where the common stock undergoes an increase, an equal
division is obtained " (1). In his commentary on this text Vijnyaneshwara
has observed as follows: " Among unseparated brothers, if the common stock
be improved or augmented by any one of them through agriculture, commerce or
similar means, an equal distribution nevertheless takes place; and a double
share is not allotted to the acquirer " (2). Sir Dinshah Mulla, who
delivered the judgment of the Privy Council in the case of Shiba Prasad Singh
(3) has observed that the words of Yagnavalkya mean that " if a member of
a joint family augments joint property, whatever may be the mode of
augmentation, the property which goes to augment the joint family property
becomes part of the joint family property, and he is entitled on a partition to
an equal share with the other members of the family, and not to a double share,
as in some other cases dealt with in the preceding verses.
This is the placitum on which the whole
doctrine of merger of estates by the blending of income is founded " (p.
It would thus be seen that according to this
decision the doctrine of blending or throwing into the common stock is based on
the text just quoted.
With very great respect, however, the text of
Yagnavalkya and the comments made by Vijnyaneshwara on it do not appear to have
any relation to the doctrine of blending as it has been judicially evolved. The
context of the discussion both in the text of Yagnavalkya and in the commentary
clearly shows that what is being discussed is the acquisition of property by a
coparcener with the use of the family stock;
in other words, taking the benefit of the
family stock and making its use if a coparcener through trade, agriculture or
any other means augments the initial or original family stock, the augmentation
thus made is treated as forming part of the original stock and an accretion to
it, and in this augmentation the acquirer is not given any extra share for his
(1) Ch. 1, sect. 4, 30.
(2) Mitakshara, ch. 1. sect. 4, Pl. 31.
(3) (1932) L.R. 59 I.A. 331.
785 This position is clarified by the
comments made by Sulapani.
Says Sulapani: " that an equal division
is here specifically ordained; for in a partnership with a common stock, the
difference in the gains of each individual member is not to be taken into
account at the time of partition. " Vijnyaneshwara observes that this text
is intended to be an exception to the text of Vasishtha which allows two shares
to the acquirer and which is cited in the Mayukha (1). It would thus be clear
that the relevant text and the commentary are not dealing with a case where the
separate property of a coparcener independently acquired by him is thrown into
the common stock with the deliberate intention of extinguishing its separate
character and impressing upon it the character of the joint family property.
The subject- matter of the discussion is addition to the common stock made by
the efforts of a coparcener with the assistance of the common stock itself.
Therefore, in our opinion, the said text cannot be treated as the basis for the
doctrine of blending as it has been judicially evolved.
It is, we think, unnecessary to investigate
whether any other text can be treated as the foundation of the said doctrine
since the said doctrine has been recognised in several decisions and has now
become a part of Hindu law.
In Rajani Kanta Pal v. Jaga Mohan Pal (2) the
Privy Council held that " Where a member of a joint Hindu family blends
his self-acquired property with property of the joint family, either by
bringing his self-acquired property into a joint family account, or by bringing
joint family property into his separate account, the effect is that all the
property so blended becomes a joint family property." The question which
falls for our decision is: Does this principle apply in regard to a property
held by a Hindu female as a limited owner? In our opinion, it, is difficult to
answer this question in favour of the; appellants. The rule of blending
postulates that a;, coparcener who is interested in the coparcenary property
and who owns separate property of his own may, (1) The Vyavahara Mayukha, Pt.
1, by Vishvanath Narayan Mandlik, 215.
(2)(1923) L.R. 50 I.A. 173.
786 by deliberate and intentional conduct
treat his separate property as forming part of the coparcenary property. If it
appears that property which is separately acquired has been deliberately and
voluntarily thrown by the owner into the joint stock with the clear intention
of abandoning his claim on the said property and with the object of
assimilating it to the joint family property, then the said property becomes a
part of the joint family estate ; in other words, the separate property of a
coparcener loses its separate character by reason of the owner's conduct and
get thrown into the common stock of which it becomes a part. This doctrine
therefore inevitably postulates that the owner of the separate property is a
coparcener who has an interest in the coparcenary property and desires to blend
his separate property with the coparcenary property. There can be no doubt that
the conduct on which a plea of blending is based must clearly and unequivocally
show the intention of the owner of the separate property to convert his
property into an item of joint family property. A mere intention to benefit the
members of the family by allowing them the use of the income coming from the
said property may not necessarily be enough to justify an inference of
but the basis of the doctrine is the
existence of coparcenary and coparcenary property as well as the existence of
the separate property of a coparcener. How this doctrine can be applied to the
case of a Hindu female who has acquired immovable property from her father as a
limited owner it is difficult to understand. Such a Hindu female is not a
coparcener and as such has no interest in coparcenary property. She holds the
property as a limited owner, and on her death the property has to devolve on
the next reversioner. Under Hindu law it is open to a limited owner like a
Hindu female succeeding to her mother's estate as in Madras, or a Hindu widow
succeeding to her husband's estate, to efface herself and accelerate the
reversion by surrender; but, as is well known, surrender has to be effected
according to the rules recognised in that behalf.
A Hindu female owning a limited estate cannot
circumvent the rules of surrender 787 and allow the members of her husband's
family to treat her limited estate as part of the joint property belonging to
the said family. On first principles such a result would be inconsistent with
the basic notion of blending and the basic character of a limited owners' title
to the property held, by her. This aspect of the matter has apparently not been
argued before the courts below and has not been considered by them. Thus, if
the doctrine of blending cannot be invoked in regard to the property held by
Channamma, the appellants' claim in respect of the said property can and must
be rejected on this preliminary ground alone.
However, we will briefly indicate the nature
of the evidence on which the plea of blending was sought to be supported.
It appears that in 1921 a deed of maintenance
was executed in favour of Gurushantappa's widow Parvathamma by the three
surviving brothers of Gurushantappa. This deed was attested by their father
Kari Ramappa. It is clear that this deed includes some of the lands which
Channamma had acquired by succession to her father (Ex. A-10). Subsequently, on
July 5, 1923, some additional properties belonging to Channamma were charged to
the said maintenance (Ex. A-11). It also appears that pattas in respect of the
same lands belonging to Channamma were obtained in the names of the members of
the family; and consequently, the said pattas were shown in the relevant
revenue papers. Broadly stated, that is the nature of the evidence on which the
plea of blending rests.
It is obvious that even if the doctrine of
blending were applicable it would be impossible to hold that the transactions
on which it is sought to be supported can lead to the inference that Channamma
did any act from which her deliberate intention to give up her title over the
properties in favour of the members of her husband's family can be inferred. It
is not difficult to imagine Channamma's position in the family. If her husband
and her sons dealt with her property as they thought fit to do Channamma may
not know about it, and even if she knew about it, may not think it necessary to
object 788 because she would not be averse to giving some income from her
property to her sons or to her widowed daughter-in-law.
As we have already pointed out, the conduct
of the owner on which the plea of merger can be invoked must be clear and
unequivocal, and the evidence about it must be of such a strong character as to
justify an inference that the owner wanted to extinguish his title over the property
and impress upon it the character of the joint family property.
Besides, as we will later point out,
Channamma executed a deed of surrender in 1938 and the said document is wholly
inconsistent with the plea that she intended to give up her title to the
property in favour of her husband's joint family. However, this discussion is
purely academic since we have already held that the principle of blending
cannot be invoked in respect of the limited estate held by Channamma.
Therefore, we must hold that the High Court was right in rejecting the
appellants' claim in respect of the properties in Jonnagiri.
That takes us to the properties in Schedule C
in respect of which the trial court had decreed the appellants' claim and the
High Court has rejected it. This property has been obtained by respondent 1 as
a result of the decree passed in O. S. No. 5 of 1940. The property originally
belonged to Virupakshappa, and in O. S. No. 5 of 1940 respondents 2 and 1
claimed a declaration against the two widows of Virupakshappa, their daughter
and certain alienees. The declaration claimed was that the wills of
Virupakshappa therein specified were invalid and inoperative and that the
respondents had reversionery right to Virupakshappa's estate after the lifetime
of his widows and daughter. A further declaration was also claimed that
alienations and gifts specified in the plaint were invalid beyond the lifetime
of the widows and the daughter of Virupakshapna. This suit ended in a
compromise decree, and it is common ground that the properties in Schedule C
came to the share of respondent 1 by this compromise decree. The question which
has been argued before us in respect of these properties is whether or not the
appellants 789 are entitled to a share in these properties. The appellants
contend that respondent 1 had joined respondent 2 in the said suit as
representing their undivided family and the properties acquired by him under
the compromise decree passed in the said suit has been allotted to him as
representing the whole of the family. On the other hand, respondent 1 contends
that he joined respondent 2 in his individual character and the decree must
inure for his individual benefit.
It is clear that at the time when the said
suit was filed respondent 2 was a presumptive reversioner and not respondent 1
; but it appears that respondent 2 wanted the help of respondent 1 to fight the
litigation, and both of them joined in bringing the said suit. It is common
ground that respondent 2 asked Neelamma whether she would like to join the
litigation. Respondent 2 has stated in his evidence that Neelamma was not
willing to join the said litigation and respondent 1 has supported this
version. The High Court thought that the evidence of Neelamma was also
consistent with the story set up by respondent 1. That is one of the main
reasons why the High Court held that the decree passed in the said suit did not
enure for the benefit of the family. In assuming that Neelamma supported the
version of respondent 1 the High Court has obviously misread her evidence. This
is what Neelamma has stated in her evidence: " Defendants 1 and 2 came to
me at the time of filing their suit and said that the expenses are likely to be
heavy and that minors' properties would not be wasted. 1 said 1 had no objection
and gave my consent." The High Court has read her evidence to mean that
she was not prepared to waste the properties of her minor sons and so she
refused to join the adventure, and in doing so it thought that the statement of
respondent 2 was that the minors' properties should not be wasted, whereas
according to the witness the said statement was that the minors' properties
"would" not be wasted. It would be noticed that it makes substantial
difference whether the words used were " would not " or " should
not." 790 We have no doubt that on the evidence as it stands the inference
is wholly unjustified that Neelamma refused to join respondents 1 and 2.
Besides, as we have already pointed out, the evidence of respondents 1 and 2
have been disbelieved by both the courts, and in fact the conduct of respondent
1 whereby he wanted to defeat the claims of his nephews has been very strongly
criticized by both the courts. Therefore, we feel no hesitation in holding that
the trial court was right in coming to the conclusion that respondents 1 and 2
consulted Neelamma and with her consent the suit was filed and was intended to
be fought by the two respondents not for themselves individually but with the
knowledge that respondent 1 represented the undivided family of which he was
the manager. If that be so, then it must follow that the decree which was
passed in favour of respondent 1 was not for his personal benefit but for the
benefit of the whole family.
In this connection it is necessary to bear in
mind that respondent 1 has not shown by any reliable evidence that the expenses
for the said litigation were borne by him out of his pocket. It is true that
both the courts have found that respondent 1 purchased certain properties for
Rs. 600/- in 1925 (Ex. B-4). We do not know what the income of the said
properties was; obviously it could not be of any significant order; but, in our
opinion, there is no doubt that where a manager claims that any immovable
property has been acquired by him with his own separate funds and not with the
help of the joint family funds of which he was in possession and charge, it is
for him to prove by clear and satisfactory evidence his plea that the purchase
money proceeded from his separate fund. The onus of proof must in such a case
be placed on the manager and not on his coparceners. But,, apart from the
question of onus, the evidence given by respondent 1 in this case has been
disbelieved, and in the absence of any satisfactory material to show that
respondent 1 had any means of his own it would be idle to contend that the
expenses incurred for the litigation in question were not borne by the joint
791 family income. Therefore, apart from the fact that Neelamma was consulted
and agreed to join the adventure on behalf of her sons, it is clear that the
expenses for the litigation were borne by the whole family from its own joint
This fact also shows that the property
acquired by respondent 1 under the compromise decree was acquired by him as
representing the family of which be was the manager. The result is that the
view taken by the High Court in respect of the properties in Schedule C must be
reversed and that of the trial court restored.
That leaves a minor point about three items
of property, Serial Nos. 63, 64 and 65, in Schedule A. These items of property
form part of Jonnagiri property, and we have already held that the appellants
cannot make any claim to the whole of this property. It appears that though the
trial judge passed a decree in favour of the appellants in respect of Serial
Nos. 4 to 61 in Schedule A, he did not recognise the appellants' share in the
three serial numbers in question because he held that they were not part of the
joint family property but belonged exclusively to respondent
1. It also appears that these properties
originally belonged to the joint family of the parties but they were sold by
Kari Ramappa and his two brothers to Channappa as long ago as 1898. That is how
they formed part of Channappa's estate. Both the courts have found that the
sale deed in question was a real and genuine transaction, and they have
rejected the appellants' case to the contrary. Respondent 1 claims these items
under a deed of surrender executed in his favour by Channamma (Ex. B. 3) on
December 5, 1938. This document is accepted as genuine by both the courts and
it is not disputed that the surrender effected by it is valid under Hindu law.
Indeed this document is wholly inconsistent with the appellants' case that
Channamma wanted to convert her separate properties into properties of the
joint family of her husband. Therefore, there is no substance in the
appellants' argument that they should be given a share in these three items of
792 The result is the appeal is partly
allowed and the decree passed by the High Court is modified by giving the
appellants their half share in the properties described in Schedule C. The rest
of the decree passed by the High Court is confirmed. In the circumstances of
this case the parties should bear their own costs.' Appeal allowed in part.