Karnataka High Court
Ramappa Basappa Palled vs Smt. Basava on 7 April, 1993
Equivalent citations: ILR1993KAR1865, 1993(2)KARLJ573, 1995 A I H C 861, (1993) 2 HINDULR 318 (1993) 2 KANT LJ 573, (1993) 2 KANT LJ 573
JUDGMENT Shivashankar Bhat, J.
1. This Appeal is by the two sons of the original defendant, who died after the suit was decreed. 1st respondent is the plaintiff; she sought partition and claimed half share in the properties described in the schedules to the plaint. According to the plaintiff, her husband died as an undivided member of the joint family which possessed the suit properties and that she was entitled to a share in respect of which her husband had a right.
2. Basappa was the common ancestor; Ramappa and Shivappa are his sons; Ramappa is a defendant; plaintiff is the widow of Shivappa. Ramanna has two sons and five daughters. The two sons are the present appellants and respondents 2 to 6 are the daughters of the said defendant, Plaintiff has a daughter who is not a party to these proceedings. Ramappa died on 27.2.1991. According to the plaint case, the joint family of Basappa had a family house and leasehold agricultural lands and his eldest son Ramappa was managing the family affairs; the family had good income; savings were with the defendant which were utilised by him to acquire further properties. Defendant contended that except the family house all the suit properties belonged to him as they are his self-acquired properties.
3. The trial Court framed the following issues:-
(i) Does the plaintiff prove that suit properties are the joint family properties of plaintiff and defendant?
(ii) Does the plaintiff prove that suit properties are in joint possession and enjoyment of plaintiff and defendant?
(iii) Does the defendant prove that suit properties are the self acquired properties?
(iv) Whether plaintiff is entitled for any share in suit property? If so, what share?
(v) Whether plaintiff is entitled for mesne profits? (vi) What order or decree?
4. The trial Court held that the properties were acquired by Ramappa who was the manager of the family and therefore presumption is that the properties belonged to the joint family. Shivappa died on 12.1.1954 leaving behind his wife, the plaintiff and a daughter. The trial Court's decree is dated 26.2.1991 and the Appeal Memo states that the defendant died on 27.2.1991.
5. It was contended before us that in a suit for partition all the co-sharers ought to be impleaded as parties; since the plaintiff failed to implead the children of the defendant and the daughter of the plaintiff, suit was not maintainable. It was farther contended that the burden was entirely on the plaintiff to prove that the properties acquired by the defendant belonged to the undivided family of the defendant and his brother and this burden was not discharged in the instant case. The case as pleaded by the plaintiff has to fail because the basic facts asserted in the plaint were not proved at all.
6. In this Appeal two questions arise for our consideration:
(1) Whether the suit is not maintainable for non-joinder of necessary parties? and (2) Whether the suit properties belong to the undivided family of the defendant and his brother or they are the self-acquired properties of the defendant?
7. RE. QUESTION NO.1:
Defendant's children (two sons and five daughters) were not impleaded as defendants. The two sons of the defendants are admittedly co-sharers even on the basis of plaintiff's case. But no plea is found in the written statement as to the maintainability of the suit on the ground of non-joinder of necessary parties; no issue is framed involving this question. Further, on the death of the defendant, the present appeal was filed by his two sons and the daughters were impleaded as respondents 2 to 6. In these circumstances the question whether non-impleading of the appellants as parties in the Trial Court would affect the maintainability of the suit need not be considered, especially in the background of our Decision on the merits of the plaintiff's claim.
8. RE. QUESTION NO.2:
Sri G.S.Visveswara, the learned Counsel for the appellant argued that in the absence of evidence as to any joint family nucleus available with the defendant from which he could have acquired, the acquisitions ought to be held as the self-acquired properties of the defendant. Mr. Umesh Malimath, the learned Counsel for the first respondent-plaintiff, on the other hand contended that the defendant was the eldest member of the family after the death of his father Basappa, and as such, was the manager of the undivided family; therefore, any property acquired by the defendant is presumed to belong to the joint family; the burden of proving that the property belonged to him exclusively, lies on him.
9. The of referred proposition in support of Mr. Malimath's contention is, "the case of the manager however is somewhat different from that of an ordinary coparcener. Where there is an acquisition by the manager in his own name and there is no independent source of income the presumption arises that the new acquisition was joint family property. Where the manager claims that what is acquired is his separate property he should prove 'that he acquired it with his separate funds."
(i) SRINIVAS KRISHNARAO KANGO v. NARAYAN DEVJI KANGO AND ORS., ;
(ii) MALAPPA GIRIMALLAPPA BETGERI AND ORS. v. R.YELLAPPAGOUDA PATIL AND ORS., AIR 1959 SC 906;
(iii) MALLESAPPA BANDEPPA DESAI AND ANR. v. DESAI MALLAPPA alias MALLESAPPA AND ANR., ;
(iv) MUDIGOWDA GOWDAPPA SANKH AND ORS. v. RAMACHANDRA REVGOWDA SANK (dead) by HIS LEGAL REPRESENTATIVES AND ANR., are cited in support of the above proposition.
10. Therefore, can it be said, that in the absence of evidence as to other circumstances, such as the mode of joint living, combined cultivation and an open treatment of the acquired property as of the joint family, the property acquired by a member of a joint family belongs to the joint family, solely because, the acquirer was the manager of the joint family, even though, the joint family had no income yielding property or any income which could have constituted a sufficient nucleus from which the property could have been acquired?
We find no such absolute proposition being laid down by the Supreme Court in any one of the Decisions cited before us.
11. The basic idea is that the benefit of acquisition should go to the joint family, if it was acquired by a person in possession of other joint family properties or joint family funds from which he could have acquired the new property, unless, he proves that the joint family property or funds were not utilised to acquire the new property. It is the user of the joint family assets (which could have formed a sufficient nucleus to acquire the new property), that makes the acquisition, the joint family property.. If the joint family was not possessed of any sufficient nucleus from which the new property was acquired, the acquirer of the property cannot be denied the benefit of acquisition, solely because, the acquirer happened to be the manager of a joint family, in the absence of proof as to other circumstances, such as, the acquirer treating the acquired property as of the joint family, or other members of the family considering it as a joint family property by participating in its cultivation and development.
12. A joint family is, presumably "joint in food, worship and estate". However, such a presumption does not inevitably lead to the conclusion that every joint family possesses joint family properties.
13. In Srinivas Krishnarao Kango v. Narayan Devji Kango & Others, Siddopant was the eldest Member of the branch; he had purchased a house and lands and constructed substantial houses. Siddopants younger brother died an year prior to the death of Siddopant, leaving behind an adopted son. This adopted son sued for partition, claiming a share in the properties acquired by Siddopant; evidence on record also proved that the joint family had watan lands. The contention of the plaintiff was not accepted by the Supreme Court. At page 382 the Supreme Court observed:
"On the question of the nucleus, the only properties which were proved to belong to the joint family were the Watan lands of the extent of about 56 acres, bearing an annual assessment of Rs. 49. There is no satisfactory evidence about the income which these lands were yielding at the material period.
As to the nature of-evidence required, it was held, at page 383:
"Whether the evidence adduced by the plaintiff was sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and the extent of the nucleus. The important thing to consider is the income which the nucleus yields. A building in the occupation of the members of a family and yielding no income could not be a nucleus out of which acquisitions could be made, even though it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small might conceivably produce substantial income, which may well form the foundation of the subsequent apquisitions. These are not abstract questions of law, but questions of fact to be determined on the evidence in the case."
It was further pointed out that if there was a small income from the joint family property, that would have gone for the maintenance of the family, without leaving anything to constitute a nucleus from which new property could have been acquired.
14. In KUPPALA OBUL REDDY v. BONALA VENKATA NARAYANA REDDY (dead) THROUGH LRs, AIR1984 SC 1171 one of the contentions was that the property gifted by one Thimma Reddy, belonged to joint family of which Thimma Reddy was the manager and therefore, the gift was invalid. The Supreme Court held that there was no pleading that property was a joint family property and no issue was framed involving the said question. Thereafter, the Supreme Court observed at page 1176:
"There may be presumption that there is a Hindu Joint Family but there can be no presumption that the joint family possesses joint family properties."
Several Decisions of the Supreme Court relied upon by the learned Counsel for the plaintiff, nowhere, lay down any absolute proposition in the manner submitted by the learned Counsel for the plaintiff.
15. In Mallappa Girimallappa Betgeri and Ors. v. R. Yellappagouda Patil and Ors. it was held that where the manager of a joint Hindu family acquired certain properties in his own name and there was sufficient nucleus of joint family property out of which those properties might have been acquired and apart from those properties the manager had no other source of income, the presumption arises that the newly acquired properties were the properties of the joint family, unless the presumption is rebutted.
16. Therefore, two conditions require to be satisfied before holding the newly acquired property by the manager as of the property of the joint family: (i) There was sufficient nucleus of joint family property out of which the new property could have been acquired and (ii) apart from the said joint family property, the manager had no other source of income.
17. The observations in Mallesappa Bandeppa Desai and Anr. v. Desai Mallappa Alias Mallesappa and Anr. in no way advances the proposition placed before us by the learned Counsel for the plaintiff. At page 1273, it was observed:
"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."
The onus shifts on the manager, when it is shown that he was in possession and charge of the joint family funds, which necessarily implies that, the said joint family funds could have formed a sufficient nucleus to acquire the new property. Finding in the said case, was that the manager possessed joint family funds and he fought a litigation representing the joint family in which there was a decree in his favour, whereunder the property in question came to him; finding was that expenses for the litigation were borne by the whole family from its own funds.
18. The same principle is found in Mudigowda Gowdappa Sankh and Ors. v. Ramchandra Revgowda Sank (dead) By His Legal Representatives and Anr. At page 1080 it was held:
"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 coparcenery 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 ILR (1948) Mad 440 = (AIR 1947 PC 189) 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 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 properly was acquired without the aid of the joint family property. See Babubhai Girdharla! v. Ujamlal Hargovandas, ILR (1937) Bom 708 = (AIR 1937 Bom 446), Venkatramayya v. Seshamma, ILR (1937) Mad 1012 - (AIR 1937 Mad 538) and Vythianatha v. Varadaraja, ILR (1938) Mad 696 = (AIR 1938 Mad. 841)."
19. Emphasis is always on the nucleus to be formed out of family property or joint family funds, as the basis to lead to the presumption that the benefit of acquisition would be for the joint family.
20. Burden is cast on the kartha to prove that property acquired by him is his self-acquired property, when it is shown that the joint family possessed sufficient nucleus of which he had the control. This is also the indication found in the Decision of M.R. RAJASEKHARAPPA v. H.N.SIDDANANJAPPA, 6. .
21. Therefore, it cannot be said that in the absence of other circumstances, property acquired by a person belongs to the joint family, solely because, the acquirer was the manager of the family at the relevant point of time. In the absence of any evidence that the family had no sufficient assets or funds and similarly, the evidence also is insufficient to trace the source of funds from which the property was acquired by the then manager of a joint family, Court shall have to examine other circumstances such as the way the undivided members of the family lived and treated the newly acquired property and whether there is any indication that the manager conducted himself in such a manner as giving an impression that the acquired property belonged to the family; the probability of other members contributing either labour or their earnings for the acquisition also has to be examined, for which purpose, Court may have to find out whether other members were in fact earning and handing over their earnings or savings to the manager.
22. While appreciating the evidence, necessarily the Court has to look into the pleadings of the parties, because, the basic facts are to be pleaded by the parties. When a definite case is pleaded by the plaintiff, normally, Court will be disinclined to give relief to the plaintiff on the basis of a different set of facts not pleaded by the plaintiff, unless the plaintiff is entitled to any relief, even on the basis of the case pleaded or proved by the defendant.
23. In the plaint it is stated that Basappa was the common ancestor, and Ramanna (defendant) and Shivappa (husband of the plaintiff) are his sons. Even after the death of Basappa, his children were living together and the family was joint; suit properties were being cultivated jointly by Basappa and his two sons during the life time of Basappa; after his death, the two sons continued to cultivate the suit properties jointly. During the life time of Basappa his eldest son, the defendant, was functioning as the manager. There was sufficient income left with the family even after meeting the family expenses; this continued even after Basappa's death. The income saved during the life time of Basappa from the suit lands and the savings till the death of Shivappa, were with the defendant. After the death of Shivappa, defendant and his children continued to cultivate, the lands, paying the rents. Thereafter, the defendant purchased Sy.Nos.185/1, 185/2, 510/1, 11/1 and 194/2; these were purchased by the defendant out of the savings with him; the savings during the life time of Basappa and the savings earned jointly by Basappa and Shivappa. The two houses acquired in the name of the defendant were also similarly acquired out of such savings with the defendant; one of the suit houses was with the family even during the life time of Basappa. In May 1988, plaintiff sought her half share in the family properties, but he failed to effect the partition.
24. The substance of the above pleading is to emphasise that the family had properties held on lease even during the life time of Basappa and there was surplus income and that the entire savings of the family were with the defendant.
25. Evidence discloses that during the life time of Basappa, there was only one house with him, and the said house did not yield any income; obviously Basappa was living in the said house TMC.No. 1228. The lands described in Schedule 'A' to the plaint were obtained on lease long after the death of Basappa and the earliest evidence on this aspect shows that lease was obtained by the defendant in the year 1949. Shivappa died on 12.1.1954. The leaseholds were purchased in the name of the defendant on different dates in the year 1960; 1972 and 1973; one item was registered in the name of the defendant as an occupant under the provisions of the Karnataka Land Reforms Act, by the Land Tribunal; this could have been only after the year 1974.
26. Therefore, the assertion of the plaintiff that these lands were held on lease by the family even during the life time of Basappa, is on the face of it, not correct. One house was purchased by the defendant in the year 1962 as per Ex.D.5 for Rs. 800/- and another in the year 1982 as per Ex.D.4 for Rs. 80,000/-. The agricultural lands purchased by the defendant were:
(i) Ex.D.1 of the year 1960 for Rs. 8,000/-;
(ii) Ex.D.2 of the year 1972 for Rs. 8,000/-; and
(iii) Ex.D.3 of the year 1973 for Rs. 10,000/-.
27. Plaintiff examined herself as P.W.1. She asserted that suit lands were the leasehold of the family and there was excess income and according to her:
"During the life time of Basappa also these lands were being cultivated by our family; out of the family funds, the defendant purchased the house as well as the landed properties."
In para-3 of the deposition, she said that she was cultivating the suit land and was staying with the defendant till the date of filing the suit. She admitted that her husband died in the house of his sister (at a different village). She had cast her vote in the suit village, Kundalgad and produced the voters' list of the years 1970 and 1983. She denied the suggestion that her husband was living in the house of her parents. As per para-9 of her deposition she stated that it was "false to suggest all the documents produced in this case stand in the name of Ramappa but not in the name of my husband"; she was not aware of the amount for which lands were purchased. She is being assisted by her son-in-law in this case and his name is given as Shankarappa. According to her she had produced documents to show that suit lands stood in the name of her father-in-law. Again, she said,-
"The defendant has taken the land for cultivating from others... I do not know how these lands were acquired by Ramappa from whom and how much amount he acquired. It is true 10 or 12 years after the death of my husband Ramappa acquired those lands. I again say they were acquired three years after the death of my husband. I do not know after how many years of the death of my husband another land were purchased, I do not know for how much amount the lands were purchased. I am staying in my parents house. My brother and his sons are living there. I do not know for how much amount and when two houses were purchased. After the death of my husband I demanded for maintenance, but I have not received any amount. I demanded my share in the property and they told that they will give my share- Before filing the suit I demanded my share. After the dispute arose I started to live in my brother's house."
This deposition of P.W.1 in no way advances her case. At one stage she stated that she demanded maintenance after her husband's death; but it was not paid. If so, between 1954 and 1988, she did not assert her right at all; in spite of an adverse reaction from the defendant, she did not take action to seek her share, all these years.
If actually her husband was living with the defendant, there must be some documentary evidence to prove the same; admittedly he died in his sister's house at a different village. Defendant was able to show her name in the Voter's list, in the suit village, only during 1970 and 1983. No clinching evidence is forthcoming to show that she was living in the family house all along.
28. P.W.2 is a daughter of the defendant. She was married to the family of the plaintiff's parents. In her evidence recorded in November 1990 she gave her age as 35 years, which means, she was born in or about the year 1955; Shivappa died in January 1954. This witness cannot speak from her personal knowledge; obviously she was pursuaded to depose against her father, in view of her marriage into the family of the plaintiff's parents. She admitted that she was not aware whether suit lands were leasehold or of ownership of the family. She, quite strangely, says, both Ramappa and Shivappa were doing coolie work.
29. P.W.3 seems to be the son of plaintiff's brother; he calls plaintiff as his paternal aunt. His age was only 30 years in the year 1990, which means, he was born in or about the year 1960. He is also the son-in-law of the defendant. According to him, plaintiff was residing, earlier, with the defendant and shifted to Shuda Shettikoppa and Allapur about 3 years prior to the date of deposition. P.W.2 is the wife of the brother of this witness. P.W.3 was married in the year 1972 and he had not seen Shivappa. His evidence does not help plaintiff in any manner, except to indicate that both P.Ws 2 and 3 were obliged to favour the plaintiff in view of their close connection with her.
30. Defendant's son was examined as D.W.1. D.W.1. himself was aged 61 years at the time of evidence. In view of the old age and ill-health, defendant was not examined. D.W.1 must have been born in or about the year 1929 and therefore his knowledge of the family affairs would not be mere hearsay. He says that after Basappa's death, Shivappa went to reside at Shuda Shettikoppa. D.W.1 was doing cooli work earlier; his father was also doing cooli work; D.W.1 was earning by Jeetha and so was his younger brother. He speaks to the leasehold cultivated by the defendant. The leases were taken in the year 1951 or 1952.
31. Oral evidence in this case is not at all helpful to conclude that the family had lands at the time of Basappa. It is also not helpful to findout as to how the lands were being cultivated after defendant obtained them on lease. No definite evidence is forthcoming to hold that Shivappa was living with the defendant and was helping him in the cultivation of the lands.
32. In the written statement, the defendant had stated that during Basappa's life time the family had only one house and no land was being cultivated and that Shivappa and defendant were doing cooli work in the lands of others and that Shivappa was residing in the parental house of his wife at Shuda Shettikoppa; he gave the details of his purchases after the death of Shivappa and asserted that he acquired them out of his own earnings.
33. The trial Court assumes that the lands were taken on lease by the defendant as manager of the family, because, admittedly, the family owned one house and there was no partition between the two brothers. Since defendant's name is found in the voters' list of the year 1970 and 1983 and she voted at Kundgol, she was residing all along with the defendant, without noting the age of P.W.2, trial Court infers that her evidence supports the case of plaintiff; evidence of D.W.1 was discarded on the ground that he had no personal knowledge, ignoring the fact that his age was almost the same as that of the plaintiff. Trial Court's assumption that because the family was joint, all acquisitions by the eldest member also belonged to the family, cannot be accepted as a correct proposition of law. If defendant and his sons were earning through 'Jeetha', said earnings cannot be considered as the earnings of the joint family of Shivappa and of the defendant. Independent evidence as to the joint living and earnings by the defendant and his brother, could have been adduced by the plaintiff, if that was the true fact; same villagers could have been examined; old documents, including voter's list of the year 1951 and census details could have added strength to the plaintiff's case; atleast those documents would have paved the way for the Court to appreciate the facts. Shivappa died in the year 1954; till the year 1988 plaintiff did not make any claim, though at one stage of her deposition P.W.1 stated that she demanded maintenance immediately on the death of her husband. It was not the case pleaded in the plaint that lands were obtained on lease after Basappa's death, and that leases were obtained by the efforts of the two brothers. In the circumstances, it is impossible to hold that the plaintiff has made out a case for a share in the properties described in the plaint (except the one family house). Absolutely no evidence is forthcoming to show the assets or funds of the joint family available with the defendant from which he could have acquired the properties. If leases were obtained by paying premiums, sufficient joint family nucleus from which premiums must have been paid, ought to be proved. If no premium was paid, it will be a case, where, initial assets were acquired without expending any funds. There is no acceptable evidence justifying the conclusion that Shivappa lived with his brother, assisting him in the cultivation of the leasehold; nothing on record to indicate that defendant held out the properties possessed by him belong to the joint family of himself and of his brother. Passivity of the defendant all those years, till the year 1988, is a pointer to her earlier understanding that she had no claim over these properties.
34. In these circumstances, we disagree with the view taken by the trial Court and reverse its finding. However, plaintiff is entitled to a share in the family house. Mr. Visveswara, the learned Counsel for the appellants stated before us that the entire family house could be given to the plaintiff without dividing it and the appellants would not claim any share in it; this submission is recorded and it is ordered that the appellants shall handover possession of the said house TMC.No. 1228 to the plaintiff without reserving any right in themselves.
35. In the result, this appeal is allowed; however, there shall be a decree in favour of the plaintiff, directing the appellants to handover possession of the house TMC.No. 1228 in Kundgol, to the, plaintiff.
Parties to bear their respective costs throughout.
ORDER DATED 23.4.1993 The matter was placed before us for clarification to facilitate the drawing up the decree. We have reversed the finding of the trial Court and held that the plaintiff is not entitled to any share in the properties described in the plaint. However, the family house was agreed to be given to the plaintiff without the defendants claiming any share in it. it is the only family property available for partition. The decree shall be accordingly framed stating that the suit for partition is dismissed except regarding the family house bearing No. TMC 1228. The decree shall direct the defendants to hand over the aforesaid house TMC 1228 to the plaintiff, absolutely.
The name of the Counsel for the appellants is wrongly typed. The same shall be corrected as Sri S.C.Angadi.