P.S. Sairam
& Anr Vs. P.S. Rama Rao Pisey & Ors [2004] Insc 73 (4 February 2004)
Y.K.
Sabharwal & B.N. Agrawal B.N. Agrawal, J.
In
this appeal by special leave, appellants, who were defendant nos. 1(e) and 2,
have assailed the judgment rendered by Karnataka High Court in appeals whereby
it has been directed that plaintiff is entitled to 11/30th share in the
properties described as item Nos. 1,2 and 3 in the Schedule appended to the
plaint and thereby modifying the decree of the trial court which directed that
the plaintiff shall be entitled to 1/8th share in the said properties.
Plaintiff
filed a suit for partition claiming 1/7th share in the properties described as
item Nos. 1 to 4 in the Schedule and for rendition of accounts in relation to
joint family business carried on by defendant no. 1 in the name and style of
M/s Pissey and Sons and his case, in short, was that one P.Eswar Rao had three
marriages and from the second marriage, he had two sons, namely, P.E.Sadasiva Rao
(defendant No.1) and P.E.Panduranga Rao. From other two marriages also, P.Eswar
Rao had children and he acquired various properties during his life time which
were his self acquisitions but the same were put in common hotchpotch. On 29th
November, 1947, P.Eswar Rao executed a deed of family arrangement whereby
properties bearing holding No. 35 in Commercial Street in the city of Bangalore
(described as item no. 1 in the Schedule) and holding No. 262 situate in
Cavalry Road within the same city were jointly allotted to P.E.Sadasiva Rao (defendant
No.1) and his brother P.E.Panduranga Rao.
Subsequently,
a suit was filed by P.E.Panduranga Rao in which a compromise was arrived at and
item No. 1 property was allotted to defendant No.1 whereas the other property
was allotted to P.E.Panduranga Rao under a compromise decree dated 22nd January, 1963 passed in OS No. 56 of 1961. P.E.Sadasiva
Rao had two marriages. From his first wife -Godavari Bai, he had a son P.S.Ramarao
Pissey, who is the plaintiff, besides four daughters viz., P.Asha Devi [defendant
no. 1(a)], P.Jayalakshmi [defendant no. 1(b)], P.S. Lalitha [defendant no.
1(c)] and P.S.Shantha [defendant no. 1(d)]. From second wife- Sumitra Bai
[defendant no. 1(e)], P.E.Sadasiva Rao had a son, namely, P.S. Sai Ram
[defendant no. 2] besides three daughters, namely, Rekha [defendant no. 1(f)], Mala
[defendant no. 1(g) and Prabha [defendant no. 1(h)]. Defendant No.1 started a
joint family business of textiles and tailoring in a portion of item No.1
property and out of the income of the said business, he acquired item Nos. 2,3
and 4 properties. Further case of the plaintiff was that even though the suit
properties belonged to joint family of defendant No.1 and his two sons, namely,
the plaintiff and defendant No.2, defendant No.1 executed a deed of settlement
on 23rd February, 1978 whereunder he settled item no. 1 property in favour of
defendant No. 2. Thereafter, defendant No.2 obtained a Will executed by
defendant No.1 on 29th
January, 1993
bequeathing thereunder item No.3 property in favour of defendant nos. 1(e) and
2 which was fabricated one. As the parties were having difficulty in joint
enjoyment of the properties, the same necessitated filing of the present suit.
In the
said suit, the defendants filed written statement contesting the case of the
plaintiff. According to them, item No.1 property was self acquisition of P.Eswar
Rao and, consequently, of defendant no. 1, who, after raising funds from the
market, started his separate business of tailoring in the said property with
which the joint family had absolutely no connection whatsoever, more so when
the joint family was neither possessed of any fund nor any fund was at all
invested in the said business by it at any point of time. According to them,
out of the income from the said business, defendant No.1 acquired other
properties which are described as item Nos. 2,3 and 4 in the Schedule and,
therefore, the same are also his self acquisitions, consequently, he had every
right to deal with it. Accordingly, deed of settlement dated 23rd February,
1978 and the Will dated 29th January, 1993 executed by defendant no. 1 were
genuine and valid and, consequently, the plaintiff was not entitled to claim
any share in the suit properties. It may be stated that during pendency of
suit, defendant No.1 died in February, 1994 and as his first wife predeceased
him, four daughters from her were impleaded as defendant Nos. 1(a) to 1(d),
second wife as defendant No.1(e) and three daughters from her as defendant Nos.
1(f) to 1(h).
During
trial, both the parties led evidence in support of their respective cases and
upon conclusion of trial, the learned Civil Judge recorded findings that
property described as item No.1 in the Schedule was a joint family property,
business started therein by defendant No.1 was joint family business and as out
of its income, item Nos. 2,3 and 4 properties were acquired, it also became the
joint family property. The deed of family settlement dated 23rd February, 1978 was held to be invalid. It was
further held that the defendants failed to prove due execution of the Will. The
court held that Section 6A of Hindu Succession (Karnataka Amendment) Act, 1990
[hereinafter referred to as 'the Karnataka Amendment',] which conferred equal
right to a daughter in co-parcenary property, was applicable in the present
case, but defendant Nos. 1(a) and 1(b), two of the daughters of defendant No.1
from his first wife, were not entitled to any share in the suit properties,
they having married before the coming into force of the Karnataka Amendment. In
view of the aforesaid findings, the trial court decreed suit for partition in
relation to item Nos. 1, 2 and 3 properties in which it was directed that
plaintiff was entitled to 1/8th share. No decree for partition was passed in
relation to item No. 4 property as the same was not available for partition in
view of the fact that prior to the date of filing of the suit, it had already
been sold by defendant No.1 to one Smt. Adilaxmi, who was not made party to the
suit. It was further directed that plaintiff was entitled to a decree for
rendition of accounts in relation to business and the amount shall be
ascertained at the time of passing of final decree.
Challenging
the decree of trial court, two appeals were preferred, one by the plaintiff and
another by defendant No.2 and his mother-defendant No.1(e) before the High
Court of Karnataka. The High Court confirmed the findings of the trial court on
all the issues, excepting applicability of Section 6A of the Karnataka
Amendment in relation to which it has been categorically held that it shall
have no application in the case in hand and accordingly daughters of defendant
no. 1 could not claim right in coparcenery property as a coparcener and in view
of this, the judgment and decree of the trial court granting 1/8th share to the
plaintiff in the properties described as item Nos. 1 to 3 in the Schedule have
been modified and it has been held that the plaintiff and defendant No.2 will
be entitled to 11/30th share each in the properties described as item Nos. 1 to
3 in the Schedule and each of the seven daughters and widow of defendant no. 1
shall be entitled to 1/30th share therein. Hence, this appeal by special leave.
Mr. U.U.Lalit,
learned counsel, in support of the appeal submitted that the High Court was not
justified in affirming findings of the trial court that the business which
defendant No.1 was carrying on was not his separate business but the same
belonged to joint family. It was further submitted that as the business was
separate one of defendant no. 1, item Nos. 2,3 and 4 properties acquired out of
income of the said business, became his separate properties in which the
plaintiff had no right to claim partition. Further, it was submitted that the
finding that the defendants failed to prove due execution of the Will is
vitiated as the same was arrived at without properly considering the evidence
adduced on behalf of the parties and consequently, the plaintiff was not
entitled to any share in item No.3 property. Lastly, it was submitted that upon
the death of defendant No.1, the plaintiff was entitled to only 11/40th share
in item No. 1 property in terms of Section 6 of the Hindu Succession Act, 1956
(hereinafter referred to as 'the Act') and 1/10th share in item no. 2 property,
but the High Court committed an error in holding that he was entitled to
11/30th share. On the other hand, learned counsel appearing on behalf of the
plaintiff/respondent submitted that the courts below were justified in holding
that the business belonged to joint family and the properties acquired out of
its income became joint family properties and the plaintiff was entitled to
claim partition therein. So far as the Will is concerned, it was submitted that
the two courts below recorded the finding after duly considering the evidence
adduced on behalf of the parties and no interference is called for. Lastly, it
was submitted that the High Court was not justified in reversing decision of
the trial court regarding applicability of Karnataka Amendment holding the same
to be not applicable and thereby reducing share of the plaintiff and his
sisters in the suit properties.
Crucial
question in the present appeal is as to whether business which was conducted by
defendant No.1 was his separate business or it belonged to joint family,
consisting of himself and his sons. It is well settled that so far as immovable
property is concerned, in case the same stands in the name of individual
member, there would be a presumption that the same belongs to joint family,
provided it is proved that the joint family had sufficient nucleus at the time
of its acquisition, but no such presumption can be applied to business.
Reference
in this connection may be made to a decision of this Court in the case of G.Narayana
Raju v.G.Chamaraju & Others 1968(3) SCR 464 wherein in a suit for partition
defence was taken that business of Ambika Stores was separate business of
defendant as the business did not grow out of joint family funds or at least by
efforts of members of joint family which was accepted by the trial court as well
as the High Court. When the matter was brought to this Court in appeal,
upholding the judgment of the High Court, the Court observed thus at page 466:-
"It is well established that there is no presumption under Hindu Law that
a business standing in the name of any member of the joint family is a joint
family business even if that member is the manager of the joint family. Unless
it could be shown that the business in the hands of the coparcener grew up with
the assistance of the joint family property or joint family funds or that the
earnings of the business were blended with the joint family estate, the
business remains free and separate. " In the case of M/s Piyare Lal Adishwar
Lal v. The Commissioner of Income Tax, Delhi (1960) 3 SCR 669, similar question
had arisen before this Court while hearing an appeal arising out of order
passed by Punjab High Court on a reference made under Section 66(1) of the
Indian Income Tax Act, 1922. In that case, one Adishwar Lal was Treasurer of a
bank who had two sons and they were members of Hindu Undivided Family. One of
his sons, namely, Sheel Chandra, was employed as Overseer in the bank during
the life time of his father and upon father's death, he was appointed as
Treasurer in the bank on a monthly salary of Rs. 1,750/-. Sheel Chandra
furnished, by way of security to the bank, certain properties belonging to
Hindu Undivided Family consisting of himself and his younger brother and in the
accounting year 1950-51, he received from the bank a sum of Rs. 23,286/- as a
Treasurer. The Income-tax Authorities considered that this sum was not the
individual income of Sheel Chandra as salary but was part of income of the
Hindu Undivided Family and taxed it as such on account of the fact that he was
appointed as a Treasurer because his father was Treasurer in the bank before
him and joint family property was furnished by way of security. The Assessing
Authority came to the conclusion that as the emoluments could not be said to
have been earned without detriment to the family property, the same could be
taxed as income in the hands of Hindu Undivided family. The decision of the
Assessing Authority was upheld by the Income-tax Appellate Tribunal as well as
the High Court on a reference. On appeal being preferred before this Court, the
decision was reversed and it was laid down that giving joint family property in
security for the good conduct of a member of the family employed on a post was
sufficient to make the emoluments of the post to be income in the hands of
joint family only if it were shown that the said act was detrimental to the
family property. In the said case, as the act of furnishing security was not
found to be detrimental to the family property, the Court held that the income
received by Sheel Chandra was not income of the Hindu Undivided Family but was
his individual income.
In the
case of V.D.Dhanwatey v. The Commissioner of Income Tax, M.P.Nagpur (1968) 2
SCR 62, a Constitution Bench of this Court was also considering an appeal
arising out of an order passed by the High Court on a reference. In that case,
joint family funds were invested in a partnership business which enabled karta
of the joint family to become a partner and when the remuneration was paid to
him, it was assessed as income of the joint family and the view taken was
upheld by this Court holding that as investment of the joint family funds in
the partnership enabled a karta to become a partner and there being real and
sufficient connection between that investment and the remuneration paid to the karta,
the same has to be treated as income of the joint family. The Constitution
Bench noticed the decision of this Court in the case of M/s Piyare Lal Adishwar
Lal (supra) and, while approving the ratio of that case observed that as the
remuneration earned by the karta was detrimental to the Hindu Joint Family
funds, the High Court was justified in answering the reference against the assessee
and in favour of the Revenue by holding that remuneration received by the karta
was taxable in the hands of Hindu Undivided Family.
The
question to be examined in the present case is as to whether mere user of the
joint family property (item no. 1 property), as a business premises by
defendant No.1, who was karta of the joint family, for running his separate
business can be said to be in any manner detrimental to the joint family
property? Undisputably, the joint family had not invested a single farthing in
the business at any point of time as it was started by defendant No.1 by
raising loans from the market. Even according to the plaintiff, only a portion
of said property was leased to one Md. Sharif in the year 1948 who vacated it
in the year 1952. But it is not known during this period what was the rental of
the said portion. There is no evidence to show whether after 1952, the said
portion which was vacated by Md. Sharif was
let out to anybody or remained vacant. So far as the other portion of the said
property is concerned, undisputedly, in one part only, defendant No.1 was
carrying on business. Apart from that, the trial court found that defendant
No.1 along with his first wife and children from her, including the plaintiff,
resided therein till the year 1969 when his first wife died and the plaintiff
was also carrying on his separate business in the very same property. It
further found that as in the year 1970, the defendant No.1 married Sumitra Bai-defendant
No.1(e), differences cropped up between the plaintiff and his father as a
result of which defendant No.1 shifted to another house and resided therein
with his second wife. These facts amply prove that joint family property was
being used as business premises not only by karta but also by junior member of
the joint Hindu family. There is no material whatsoever to show that user of
the same as business premises by defendant no. 1 was in any manner detrimental
to the joint family property. This being the position, we have no option but to
hold that the business carried on by defendant No.1 in the property described
as item No.1 in the Schedule cannot be treated to be joint family business and
the same remained his separate business throughout, especially in view of the
fact that there was neither any case nor evidence to show any blending. In view
of our conclusion aforementioned that the business was separate one of defendant
No.1, properties enumerated as item Nos. 2,3 and 4 in the Schedule acquired out
of income of the said business, have got to be treated self acquisitions of
defendant No.1.
Turning
now to the second submission of learned counsel appearing on behalf of the
appellants, it has to be seen as to whether the findings recorded by the two
courts below to the effect that item no. 3 property being joint family
property, defendant no. 1 Sadasiva Rao had no right to execute the Will in
question and defendants failed to prove the due execution of the Will by Sadasiva
Rao were vitiated. In view of our conclusion aforesaid that item no. 3 property
was self-acquisition of defendant no. 1, we have no difficulty in holding that
both the courts below were not justified in coming to the conclusion that
defendant no. 1 had no right to execute the Will.
The
courts below have recorded finding against the defendants regarding execution
of the Will, principally, on two grounds; defendant no. 1, though he was
literate, did not put his signature, but put his Left Thumb Mark [LTM] on the
Will in question and out of the three attesting witnesses, only K.S. Panduranga
Rao was examined as DW.3 and the other two witnesses, namely, Vittal Rao and Rajanna,
were not examined. It is true that Sadasiva Rao was a literate person, but he
put his LTM on the Will reason therefor finds mention in the Will, Ext. D.13
itself, wherein it was specifically mentioned that as hands of Sadasiva Rao
were shaking due to nervous weakness, he was putting his LTM on the Will.
Even
on the Vakalatnama (Ext. P.28) defendant no. 1 put his LTM, but did not sign
it. DW.3 stated in his evidence that as Sadasiva Rao was diabetic patient and
his hands were shivering, he did not sign the Will but put his LTM thereon.
The
testator, who died during the pendency of the suit, as stated above, was
examined as DW.1 and in his evidence he had stated that because of nervous
disability he was not in a position to put his signature on the Will. Thus, the
reason assigned in the Will for the testator's not signing it and putting his
LTM is not only corroborated by the evidence of DWs.1 and 3, but also by the
fact that he put his LTM on the Vakalatnama [Ext. P/28] as well. These facts
show that the first ground which weighed with the courts below for holding that
the defendants failed to prove due execution of the Will was unwarranted.
So far
as the other ground is concerned, it was stated by DW.3 that on being called by
the testator, he went with him to the office of lawyer along with the other two
witnesses, namely, Vittal Rao and Rajanna, and there, in his presence and in
the presence of other attesting witnesses, contents of the Will were not only
read over to the testator, but he himself also had gone through its contents.
He further stated that the testator was keeping good health and was mentally
sound. The witness then stated that the testator put his LTMs on each and every
page of the Will in his presence which were marked as Exts. D.13(a) to D.13(j)
and he attested the same and put is signature on the Will which was marked as
Ext. D.13(k). He thereafter stated that other two attesting witnesses also put
their signatures on the Will and he identified them which were marked as Exts. D.13(l)
and D.13(m). DW.3 lastly stated that he was instructed to go to the
Sub-Registrar's office two days after the execution of the Will where he
presented himself before the Sub-Registrar and there in his presence the
testator put his LTM, which was marked as Ext. D.13(n), and he attested the same
and his signature was marked as Ext. D.13(p). In our view, there is no
infirmity in the evidence of this witness and the courts below were not
justified in drawing an inference against the defendants for not examining the
other two attesting witnesses. In the case on hand, neither the LTMs of the
testator on the Will have been denied nor any case has been made out or
evidence led to the effect that LTMs of the testator were taken on blank papers
and same were converted into Will. As the plaintiff had filed a suit for
partition against his father, who was the testator, there was nothing unnatural
in the testator bequeathing item no. 3 property to his second wife, defendant
no. 1(e), creating life estate in her favour and thereafter to her son,
defendant no. 2. It may be stated that in the Will it has been recited that the
testator had already purchased a house in the name of his first wife where his
children from her, including the plaintiff, were residing and he gave the said
house to his four daughters from the first wife. This shows that conduct of the
testator in bequeathing item no. 3 property under the Will in favour of his
second wife and his son from her cannot be said to be unnatural.
In
view of the foregoing discussion, we hold that the defendants succeeded in
proving that Sadasiva Rao duly executed the Will in question and, consequently,
the plaintiff shall not be entitled to claim any share in the property
described as item no. 3 in the Schedule.
Lastly,
learned counsel for the appellants submitted that the High Court was not
justified in holding that the plaintiff was entitled to 11/30th share in the
joint family property as under the provisions of Section 6 of the Act, interest
of a male Hindu in the Mitakshara coparcenary property shall not devolve by
survivorship upon the surviving members of coparcenary in case he died leaving
behind a female relative specified in class I of the Schedule of the Act or a
male relative specified therein claiming through such female, in which event
the said interest shall be inherited by his heirs. Explanation I to Section 6
lays down that for the purposes of this Section, the interest of a Hindu Mitakshara
coparcener shall be deemed to be the share in the property that would have been
allotted to him if a partition of the property had taken place immediately
before his death, irrespective of the fact whether he was entitled to claim
partition or not. This shows that for determining the interest of a male Hindu,
a notional partition has to be assumed and the share in the joint family
property, which could have been allocated to him in the notional partition,
would devolve upon his heirs. Learned counsel appearing on behalf of the
plaintiff-respondent submitted that as daughters of Sadasiva Rao, defendant no.
1, by virtue of coming into force of Section 6A of the Karnataka Amendment
became coparceners and acquired right equal to son in the coparcenary property,
the High Court was not justified in holding that the Karnataka Amendment shall
not be applicable and thereby reducing share of the plaintiff-respondent and
his sisters. In our view, in the absence of any appeal against the decision of
the High Court reducing the share of the plaintiff and his sisters after
holding that the Karnataka Amendment was not applicable, it is not open to the
plaintiff to challenge the said decision as by its reversal, the share of
plaintiff and his sisters would be enhanced. Therefore, it is not possible for
this Court to go into correctness of decision of the High Court regarding applicability
of the Karnataka Amendment in this appeal, and, consequently, we refrain
ourselves from expressing any opinion thereon. Thus, the shares of the parties
in the joint family property have to be determined in accordance with the
provisions of Section 6 of the Act. In the present case, if a partition would
have taken place, in view of the fact that defendant no. 1 had, besides his
second wife, two sons, he would have been allotted 1/4th share in the joint
family property and 1/4th share each would have gone to the two sons plaintiff
and defendant no. 2, and defendant no. 1(e), who was mother of defendant no. 2.
In view of the fact that defendant no. 1 died during the pendency of suit, his
1/4th share, which he would have got in the notional partition, would devolve
by inheritance upon his ten heirs, who are plaintiff and defendants. Thus the
share of the plaintiff, defendant no. 2 and defendant no. 1(e) in the property
described as item no. 1 in the Schedule, which belonged to the joint family,
would be 11/40th each and so far as the seven daughters, namely, defendant nos.
1(a) to 1(d) and 1(f) to 1(h) are concerned, each one of them would be entitled
to 1/40th share therein. In the separate property described as Item No. 2 in
the Schedule, each one of the ten heirs, including the plaintiff, would be
entitled to 1/10th share.
In the
result, the appeal is allowed in part, impugned judgments and decrees are
modified to this extent that the plaintiff shall be entitled to 11/40th share
in the property described as item no. 1 and 1/10th share in the property
described as item no. 2, but he shall not be entitled to any share in the
property described as item no. 3 in the Schedule. In the facts and
circumstances of the case, there shall be no order as to costs.
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