Karnataka High Court
P C Manjula vs Smt Jayamma on 2 September, 2025
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NC: 2025:KHC:34340
RFA No. 1704 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
REGULAR FIRST APPEAL NO.1704 OF 2023 (PAR)
BETWEEN:
1. P.C. MANJULA W/O K. NARAYAN,
AGED ABOUT 42 YEARS,
2. MAHANTESH .N
S/O K. NARAYAN,
AGED ABOUT 19 YEARS,
R/O NO.21, SREERAMA NILAYA,
MUNESHWARANAGARA,
HOSAKEREHALLI,
BANASHANKARI III STAGE,
BENGALURU-560085.
NOTE: THE PLAINTIFF NO.2 WHO IS
APPELLANT NO.2 HEREIN WAS A MINOR
AT THE TIME OF FILING OF THE ORIGINAL
SUIT, NOW HE HAS ATTAINED
MAJORITY HENCE HE HAS NOT BEEN
Digitally signed by REPRESENTED BY HIS NATURAL
MAHALAKSHMI B M GUARDIAN / HIS MOTHER APPELLANT NO.1.
Location: HIGH
COURT OF 3. AMRUTHA
KARNATAKA D/O K. NARAYAN,
AGED ABOUT 14 YEARS,
(REPRESENTED BY HER NATURAL
GUARDIAN / MOTHER P.C.MANJULA)
PLAINTIFFS/APPELLANTS NO.1 TO 3 ARE
R/O NO.21, SREERAMA NILAYA,
MUNESHWARANAGARA,
HOSAKEREHALLI,
BANASHANKARI III STAGE,
BENGALURU - 560085. ... APPELLANTS
(BY SRI SHIVAREDDY K.N., ADVOCATE)
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NC: 2025:KHC:34340
RFA No. 1704 of 2023
HC-KAR
AND:
SMT. JAYAMMA
W/O LATE KALLAIAH,
NOTE: (DEFENDANT NO.1 JAYAMMA DIED ON
02-08-2021) THE DEFENDANTS NO.2 TO 4 /
RESPONDENT NOS.1 TO 3 HEREIN ARE
THE LEGAL HEIRS OF DECEASED JAYAMMA)
1. SMT. K. RADHA,
D/O LATE KALLAIAH,
AGED ABOUT 52 YEARS,
NO.34, NANJAPPA LAYOUT,
YELACHANEHALLI,
KONANAKUNTE POST,
BANGALORE-560062.
2. SMT. GEETHA .K
D/O LATE KALLAIAH,
AGED ABOUT 50 YEARS,
NO.122, 16TH MAIN,
BANASHANAKRI I STAGE,
II BLOCK, BANGALORE-560050.
3. SMT. K. PANKAJA
D/O LATE KALLAIAH,
AGED ABOUT 49 YEARS,
NO.122, 16TH MAIN,
BANASHANKARI I STAGE,
II BLOCK, BANGALORE-560050.
...RESPONDENTS
(BY SRI VENUGOPAL M.S., ADVOCATE FOR R-1 TO R-3)
THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1
OF CPC AGAINST THE JUDGMENT AND DECREE DATED 18.07.2023
PASSED IN O.S.NO.2161/2012 ON THE FILE OF THE VII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU, PARTLY DECREEING
THE SUIT FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR ORDER, THIS DAY, JUDGMENT
WAS DELIVERED THEREIN AS UNDER:
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NC: 2025:KHC:34340
RFA No. 1704 of 2023
HC-KAR
CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA
ORAL JUDGMENT
The present appeal is preferred by the plaintiffs assailing the judgment and decree dated 18.07.2023 in O.S.No.2161/2012 on the file of the VII Additional City Civil and Sessions Judge (CCH-19), Bengaluru ('trial Court' for short) in so far as rejecting their claim over suit item Nos. 2 to 5 of the suit schedule properties. By the judgment and decree, the trial Court decreed the suit of the plaintiff seeking relief of partition and separate possession in respect of item No.1 of the suit schedule properties.
Plaint averments
2. Plaintiff No.1 is the wife of Late K Narayan, plaintiffs 2 and 3 are their children. Narayan was the son of Late Kallaiah and Jayamma (defendant No.1). Defendants 2 to 4 (Radha, Geetha and Pankaja) are the daughters of Kallaiah and Jayamma. It is averred that Kallaiah had acquired several properties from joint family -4- NC: 2025:KHC:34340 RFA No. 1704 of 2023 HC-KAR nucleus. Item No.1 was purchased in his name and is claimed to be the joint family property. Kallaiah died intestate, leaving behind his widow-defendant No.1 and four children (including Narayan) as his legal heirs. That item No.2 was sold by defendant No.1 under a registered sale deed dated 13.12.2006 in favour of defendant No.2 (Radha). Item No.3 was purchased in the name of defendant No.3 (Geetha) under a registered sale deed dated 16.10.2003, acquired from joint family income. Item No.4 was gifted by defendant No.1 to defendant No.4 (Pankaja) under a registered gift deed dated 11.12.2006. Plaintiffs assert that item Nos. 1 to 4 were all purchased from the income of joint family nucleus, and were enjoyed by Narayan along with defendants 1 to 4 as joint family properties. After Narayan's death, plaintiffs and defendants 1 to 4 continue to enjoy them as joint family properties, and the plaintiffs are entitled to partition and separate possession of their share. -5-
NC: 2025:KHC:34340 RFA No. 1704 of 2023 HC-KAR Written statement averments
3. The relationship between the parties is admitted. It is averred that Kallaiah died intestate in 1992, leaving behind his widow-Jayamma, his son Narayan (husband of plaintiff No.1), and daughters-Radha, Geetha and Pankaja (defendants 2 to 4). It is averred that at the time of death of Kallaiah, daughters were minors. Further, that except item No.1 property, there was no other immovable or movable properties left by Kallaiah. It is averred that defendant No.1 bore the entire responsibility of the family, she was working in household, raised her daughters and supported the family without any financial or mental support from others. That Narayan worked as an auto driver, but after his marriage, did not contribute a single paise to support defendant No.1 or the household. The relations between Narayan and plaintiff No.1 was strained, they lived separately near plaintiff No.1 mother's house. That the plaintiffs are making false claim over the suit property. It is averred that item No.1 is -6- NC: 2025:KHC:34340 RFA No. 1704 of 2023 HC-KAR Kallaiah's property and item Nos. 2 and 3 are the self acquired property purchased from the own earnings of defendant No.2 and defendant No.3, defendant No.4 acquired item No.4 by a gift deed executed in her favour by defendant No.1. The defendants specifically averred that item Nos.2 to 4 do not form joint family estate, maintaining that they are self acquired by the defendants.
4. The trial Court held that,
(i) item No.1 was self acquired property of Kallaiah, devolving on his heirs under Section 8 of the Hindu Succession Act, 1956 ('HSA' for short) and the plaintiffs are entitled for 1/5th share therein.
(ii) item Nos. 2 to 4 were held not to be the joint family properties since plaintiffs failed to prove joint family nucleus.
(iii) item No.5 were also disbelieved for want of proof.
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NC: 2025:KHC:34340 RFA No. 1704 of 2023 HC-KAR
(iv) Mesne profits in respect of item No.1 were reserved for final decree enquiry.
Accordingly, the suit was partly decreed only in respect of item No.1.
5. Aggrieved, the plaintiffs are before this Court in so far as rejection of claim in respect of item Nos. 2 to 5.
6. Learned counsel appearing for the appellant submits that,
(i) the trial Court has erred in holding that item No.2 of the suit schedule property was the self acquired property of defendant No.1. It is submitted that undisputedly Kallaiah died in the year 1992, leaving behind his wife-Jayamma, K.Narayan and minor daughters (defendants 2 to 4) and at that relevant point of time, Jayamma was only a home maker doing household/tailoring work occasionally, and had no independent substantial source of income. Further it is submitted that DW1 herself admitted in her cross- -8-
NC: 2025:KHC:34340 RFA No. 1704 of 2023 HC-KAR examination that the family survived on rental income from item No.1 and benefits received on death of Kallaiah, hence it is submitted that the presumption ought to have been drawn that the acquisition were from joint family nucleus.
(ii) that the trial court failed to appreciate that there is contradiction regarding item No.2. Ex.P2-the sale deed in favour of defendant No.2 is not supported by valid consideration. Recitals show that it was given under 'Arisina-kumkuma' (customary gift) without monetary exchange. However, in the cross-examination, DW1 (defendant No.2) claimed she paid Rs.1,50,000/-, which is inconsistent with the registered sale deed. It is the submission that such contradiction itself shows the transaction is a colourable device to defeat the rights of the plaintiffs and when defendant No.2 was still young and without independent income in 2006, the sale in her favour only could be out of the joint family funds. -9-
NC: 2025:KHC:34340 RFA No. 1704 of 2023 HC-KAR
(iii) that the trial court erroneously recorded finding on item No.3 property purchased in the name of defendant No.3. It is submitted that defendant No.3 contended that she purchased item No.3 from her own earnings, claiming to be running a gas agency, however DW1 admits in cross-examination that the gas agency was established only in 2017, long after the purchase of item No.3 in 2003. Thus, the plea of self acquisition is false and unsustainable. With no independent income established, and the admitted receipt of rents and death benefits from Kallaiah, item No.3 also stands as a property acquired from joint family funds.
(iv) It is submitted that the trial Court recorded erroneous findings in respect of item No.4 gift in favour of defendant 4 under Ex.P4 dated 11.12.2006. The property itself was purchased in the name of Jayamma (defendant No.1) without proof of her separate funds. Once the plaintiffs showed the existence of rental income and death benefits forming a joint family nucleus, the burden shifted
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NC: 2025:KHC:34340 RFA No. 1704 of 2023 HC-KAR on defendants to prove separate income. This burden was never discharged and thus the gift in favour of defendant No.4 cannot defeat the plaintiffs legitimate right.
(v) That the trial court has erroneously rejected the plaintiffs claim over item No. 5-the movable properties and non-consideration of this aspect renders the decree incomplete.
(vi) The trial Court misapplied the decision in the cases of D.S.Lakshmaiah and Another vs. L.Balasubramanyam and Another1 (Lakshmaiah) and Shrinivas Krishnarao Kango vs. Narayan Devji Kango and others2 (Shrinivas Krishnarao). Learned counsel places reliance on the decision of this Court in the case of V.K.Thimmaiah and Others vs. Smt. V.K.Parvathi3 (Thimmaiah) to contend that when acquisition are made soon after the propositus death and 1 AIR 2003 SC 3800 2 (1954) 1 SCC 544 3 AIR 2003 KAR 245
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NC: 2025:KHC:34340 RFA No. 1704 of 2023 HC-KAR no independent income is proved, they are to be treated as joint family funds.
7. Per contra, learned counsel for the respondents first and foremost contend that
(i) the plaintiffs themselves are inconsistent in pleadings. In para 3 of the plaint the plaintiffs admit that Kallaiah acquired 'several properties' while para 7 of the plaint is contradictory which avers that item Nos. 1 to 4 were purchased from joint family funds. This contradiction itself according to the learned counsel shows absence of clear pleadings. It is submitted that inconsistent pleadings about the character of the properties cannot support a claim of joint family property.
(ii) On Kallaiah's death in the year 1992, item No.1 devolved under Section 8 of HSA by succession, and heirs hold as tenants-in-common under Section 19 of HSA. Thus it is submitted that there is no concept of joint family property/nucleus qua item No.1 post succession. The
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NC: 2025:KHC:34340 RFA No. 1704 of 2023 HC-KAR plaintiffs case of 'joint family nucleus' after 1992 is legally untenable.
(iii) The burden lies squarely on the plaintiffs to establish that the properties were purchased from joint family nucleus. The evidence of PW1 is general and vague. Her cross-examination admits lack of documentary proof of income from item No.1 at the relevant period. It is submitted that PW2 and PW3 are interested witnesses 'brought only to support the plaintiffs case', their testimony has no independent corroboration, while on the other hand DW1 in her cross-examination clarified that defendant No.1-Jayamma was managing with tailoring/household earnings and later defendant No.3 had her own independent means.
(iv) Nowhere in the plaint it is specifically pleaded what was the rental income, how much was derived, and how it constituted sufficient nucleus. Vague averment of 'joint family funds' cannot discharge the burden. It is
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NC: 2025:KHC:34340 RFA No. 1704 of 2023 HC-KAR submitted that there is no presumption of joint family merely because a family is joint. The learned counsel places reliance on the decision of Shrinivas Krishnarao Kango (supra) and Commissioner of Wealth Tax, Kanpur and others vs. Chandra Sen and others4 (Chandra Sen). Placing reliance on the decisions it is contended that succession under Section 8 of HSA does not revive the concept of coparcenary, heirs inherit as individuals, not as joint family property.
8. Having heard the learned counsel for the parties, the points that arise for consideration are:
"(i) Whether item No.1 of the suit schedule property was the self acquired property of Kallaiah, and if so, whether upon his intestate death in 1992, the said property devolved on heirs under Sections 8 and 19 of the HSA Act as tenants in common?4
(1986) 3 SCC 567
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NC: 2025:KHC:34340 RFA No. 1704 of 2023 HC-KAR
(ii) Whether the plaintiffs have established whether there existed a sufficient joint family nucleus consisting of the rental income from item No.1 and death-cum-service benefits of late Kallaiah, which was utilized for acquisition of item Nos. 2 to 4 and movables?
(iii) Whether the defendants have proved that item Nos.2, 3 and 4 are the self acquired properties of defendants, purchased out of their own independent earnings?
(iv) Whether the judgment and decree of the trial Court warrants interference by this Court?"
9. Before answering the points for consideration, the family genelogical tree is culled out as under :
KALLAIAH (DIED) JAYAMMA (WIFE) 1ST DEFENDANT K.Narayan K.Radha K.Geetha K.Pankaja (Died on 15-12-2011) 2nd Defendant 3rd Defendant 4th Defendant P.C.Manjula Mahanthesh Amrutha (1st Plaintiff) (2nd Plaintiff) (3rd Plaintiff)
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NC: 2025:KHC:34340 RFA No. 1704 of 2023 HC-KAR Point Nos. (i) and (ii) Point Nos.(i) and (ii) are taken up together as they are co-related.
10. It is admitted that item No.1 was the self acquired property of Late Kallaiah purchased under Ex.P1- a registered sale deed dated 26.10.1990. On his intestate death in 1992, succession opened under the Hindu Succession Act, 1956.
11. Section 8 provides that the property of a male Hindu dying intestate devolves upon the heirs specified in clause 1 of the Schedule. Thus, on Kallaiah's death, his widow Jayamma (D-1), his son Narayan, and his daughters Radha (D-2), Geeta (D-3), and Pankaja (D-4), succeeded as class I heirs.
12. Section 19 prescribes that if two or more heirs succeed together under Section 8, they take as tenants-in- common. This means that each heir acquires a definite undivided share, which is heritable and transferable, and
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NC: 2025:KHC:34340 RFA No. 1704 of 2023 HC-KAR there is no right of survivorship. This legal position is well settled in Chandrasen's case and it is held at paragraph No.19 as under:
"19. The Andhra Pradesh High Court in the case of CWT v. Mukundgirji had also to consider the aspect. It held that a perusal of the Hindu Succession Act, 1956 would disclose that Parliament wanted to make a clear break from the old Hindu law in certain respects consistent with modern and egalitarian concepts. For the sake of removal of any doubts, therefore, Section 4(1)(a) was inserted. The High Court was of the opinion that it would, therefore, not be consistent with the spirit and object of the enactment to strain provisions of the Act to accord with the prior notions and concepts of Hindu law. That such a course was not possible was made clear by the inclusion of females in Class I of the Schedule, and according to the Andhra Pradesh High Court, to hold that the property which devolved upon a Hindu under Section 8 of the Act would be HUF property in his hands vis-a-vis his own sons would amount to creating two classes among the heirs mentioned in Class I. viz. the male heirs in whose hands it would be joint family property vis-a- vis their sons : and female heirs with respect to whom no such concept could be applied or
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NC: 2025:KHC:34340 RFA No. 1704 of 2023 HC-KAR contemplated. The intention to depart from the pre- existing Hindu law was again made clear by Section 19 of the Hindu Succession Act which stated that if two or more heirs succeed together to the property of an intestate, they should take the property as tenants-in-common and not as joint tenants and according to the Hindu law as obtained prior to Hindu Succession Act two or more sons succeeding to their father's property took as joint tenants and not tenants-in-common. The Act, however, has chosen to provide expressly that they should take as tenants-in-common. Accordingly the property which devolved upon heirs mentioned in Class I of the Schedule under Section 8 constituted the absolute properties and his sons have no right by birth in such properties. This decision, however, is under appeal by certificate to this Court. The aforesaid reasoning of the High Court appearing at pages 23 to 26 of Justice Reddy's view in CWT v. Mukundgirji appears to be convincing.
22. In view of the preamble to the Act, i.e., that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in class I and only includes son and does not include son's son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by section 8 he takes it as karta of his own undivided family. The
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NC: 2025:KHC:34340 RFA No. 1704 of 2023 HC-KAR Gujarat High Court's view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under section 8 to inherit, the latter would by applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in section 8. Furthermore as noted by the Andhra Pradesh High Court that the Act makes it clear by section 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu law. It would be difficult to hold today the property which devolved on a Hindu under section 8 of the Hindu Succession Act would be HUF in his hand vis-a-vis his own son; that would amount to creating two classes among the heirs mentioned in class I, the male heirs in whose hands it will be joint Hindu family property and vis-a-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in class I of Schedule under section 8 of the Act included widow, mother, daughter of predeceased son ..."
(emphasis supplied)
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NC: 2025:KHC:34340 RFA No. 1704 of 2023 HC-KAR
13. Further, in Yudhishter vs. Ashok Kumar5 (Yudhishter)(supra) at paragraph No.10, the Apex Court reiterated as under:
"10. This question has been considered by this Court in CWT v. Chander Sen, where one of us (Sabyasachi Mukharji, J.) observed that under the Hindu law, the moment a son is born, he gets a share in father's property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as karta of his own undivided family but takes it in his individual capacity. At pages 577 to 578 of the report, this Court dealt with the effect of Section 6 5 (1987) 1 SCC 204
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NC: 2025:KHC:34340 RFA No. 1704 of 2023 HC-KAR of the Hindu Succession Act, 1956 and the commentary made by Mulla, 15th edn., pages 924- 26 as well as Mayne's Hindu Law, 12th edn. pages 918-19. Shri Banerji relied on the said observations of Mayne on 'Hindu Law', 12th edn., at pages 918-
19. This Court observed in the aforesaid decision that the views expressed by the Allahabad High Court, the Madras High Court, the Madhya Pradesh High Court and the Andhra Pradesh High Court appeared to be correct and unable to accept the views of the Gujarat High Court. To the similar effect is the observation of learned author of Mayne's Hindu Law, 12th edn., page 919. In that view of the matter, it would be difficult to hold that property which devolved on a Hindu under Section 8 of the Hindu Succession Act, 1956 would be HUF in his hand vis-à-vis his own sons. If that be the position then the property which devolved upon the father of the respondent in the instant case on the demise of his grandfather could not be said to be HUF property. If that is so, then the appellate authority was right in holding that the respondent was a licensee of his father in respect of the ancestral house."
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NC: 2025:KHC:34340 RFA No. 1704 of 2023 HC-KAR
14. The Apex Court, later in Uttam vs. Saubhag Singh and Others6 (Uttam) at paragraph No.19 summarized as under:
"18. Some other judgments were cited before us for the proposition that joint family property continues as such even with a sole surviving coparcener, and if a son is born to such coparcener thereafter, the joint family property continues as such, there being no hiatus merely by virtue of the fact there is a sole surviving coparcener. Dharma Shamrao Agalawe v. Pandurang Miragu Agalawe (1988) 2 SCC 126, Sheela Devi v. Lal Chand, (2006) 8 SCC 581, and Rohit Chauhan v. Surinder Singh (2013) 9 SCC 419, were cited for this purpose. None of these judgments would take the appellant any further in view of the fact that in none of them is there any consideration of the effect of Sections 4, 8 and 19 of the Hindu Succession Act. The law, therefore, insofar as it applies to joint family property governed by the Mitakshara School, prior to the amendment of 2005, could therefore be summarized as follows:-
(i) When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, 6 (2016) 4 SCC 68
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NC: 2025:KHC:34340 RFA No. 1704 of 2023 HC-KAR having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary (vide Section 6).
(ii) To proposition (i), an exception is contained in Section 30 Explanation of the Act, making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property is property that can be disposed of by him by will or other testamentary disposition.
(iii) A second exception engrafted on proposition (i) is contained in the proviso to Section 6, which states that if such a male Hindu had died leaving behind a female relative specified in Class I of the Schedule or a male relative specified in that Class who claims through such female relative surviving him, then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession, and not by survivorship.
(iv) In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso, a partition is effected by operation of law immediately before his death. In this partition, all
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NC: 2025:KHC:34340 RFA No. 1704 of 2023 HC-KAR the coparceners and the male Hindu's widow get a share in the joint family property.
(v) On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self- acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship.
(vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants.
19. Applying the law to the facts of this case, it is clear that on the death of Jagannath Singh in 1973, the joint family property which was ancestral property in the hands of Jagannath Singh and the other coparceners, devolved by succession under Section 8 of the Act. This being the case, the ancestral property ceased to be joint family property on the date of death of Jagannath Singh, and the other coparceners and his widow held the property as tenants-in-common and not as joint tenants. This being the case, on the date of the birth of the
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NC: 2025:KHC:34340 RFA No. 1704 of 2023 HC-KAR appellant in 1977 the said ancestral property, not being joint family property, the suit for partition of such property would not be maintainable. The appeal is consequently dismissed with no order as to costs."
15. From these authorities, it is clear that item No.1 devolved upon the heirs as tenants-in-common and not as coparcenary property. However, Hindu Law also recognizes that even after devolution, the family can remain joint in fact. If heirs continue to live together, pool resources, and treat the property as common, the income from such tenants-in-common property may form a joint family nucleus. Subsequent acquisition from that nucleus can assume the character of joint family property. This principle is founded in Shrinivas Krishnarao Kango stated supra, way back in the year 1954, where the Court observed at paragraph No.9 as under:
"9. Coming next to the acquisitions, on 21-5- 1871, Siddopant purchased under Ext. D-36 a house for Rs.200 from his mother-in-law. On 11-5- 1885, he purchased under Ext. D-61, Sl. No.23,
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NC: 2025:KHC:34340 RFA No. 1704 of 2023 HC-KAR Ukamnal Village for a sum of Rs.475. On 23-7- 1890, he purchased under Ext. D-64 lands bearing Sl. Nos.2025 and 2140 for Rs.2400. In this suit, we are concerned only with Sl. No.2025. Apart from these purchases, he constructed two houses, one on Sl. Nos.639, 640 and 641, and another on Sl. Nos.634 and 635. DWs 2 and 3 have deposed that these constructions would have cost between Rs.20,000 and Rs.25,000, and both the courts have accepted this evidence. It was argued for the appellant that these witnesses had no first-hand knowledge of the constructions, and that their evidence could not be accepted as accurate. But making all allowances for inexactitude, there cannot be any doubt that the buildings are of a substantial character. After 1901, Devji built a house on Sl. Nos.642, 644 and 645 at a cost estimated between Rs.2000 and 4000. Thus, sums amounting to about Rs.30,000 had been invested in the acquisition of these properties and construction of the houses. Where did this money come from? The evidence is that Siddopant was a Tahsildar in the State of Hyderabad, and was in service for a period of 40 years before he retired on pension. Though there is no precise evidence as to what salary he was drawing, it could not have been negligible, and salary is the least of the income which Tahsildars generally make. The lower courts
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NC: 2025:KHC:34340 RFA No. 1704 of 2023 HC-KAR came to the conclusion that having regard to the smallness of the income from the ancestral lands and the magnitude of the acquisitions made, the former could not be held to be the foundation for the latter, and on the authority of the decision of the Privy Council in Randhi Appalaswami v. Randhi Suryanarayanamurti held that the initial burden which lay on the plaintiff of establishing that the properties of which a division was claimed were joint family properties had not been discharged. The law was thus stated in that case : (LW p. 416) "... 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 is joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property. (See Babubhai Girdharlal v. Ujamlal Hargovandas, Kotikelapudi Venkataramayya v.
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NC: 2025:KHC:34340 RFA No. 1704 of 2023 HC-KAR Digavalli Seshamma and C.V. Vythianatha v. C.V. Varadaraja."
It is argued for the appellant that in that case the father had obtained under the partition deed, Ext. A, properties of the value of Rs.7220, that he acquired properties of the value of Rs.55,000, and that nevertheless, it was observed by the Privy Council that "the acquisition by the appellant of the property under Ext. A, which as between him and his sons was joint family property, cast upon the appellant (the father) the burden of proving that the property which he possessed at the time of the plaint was his self-acquired property"; and that therefore on proof that there existed ancestral lands of the extent of 56 acres, the burden was shifted on to the defendants to establish self- acquisition."
16. The Apex Court held that the burden rests initially upon the person asserting that any item of property is joint family to establish that fact. But if the possession of a nucleus of joint family property is either admitted or proved, any acquisition made by the member of the joint family is presumed to be the joint family property, unless it is proved by that member to have been
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NC: 2025:KHC:34340 RFA No. 1704 of 2023 HC-KAR acquired without aid of the joint family property. The Apex Court further at paragraph No.11 has held as under:
"11. In Randhi Appalaswami v. Randhi Suryanarayanamurti, in holding that the father had discharged the burden of proving that the acquisitions were his own, the Privy Council observed : (LW p. 416) "... The evidence establishes that the property acquired by the appellant under Ext. A is substantially intact, and has been kept distinct. The income derived from the property and the small sum derived from the sale of part of it have been properly applied towards the expenses of the family, and there is no evidence from which it can be held that the nucleus of joint family property assisted the appellant in the acquisition of the properties specified in the schedule to the written statement."
Likewise, in the present case all the ancestral watan lands are intact, and are available for partition, and the small income derived from them must have been utilised for the maintenance of the members of the family. Whether we hold, as did the learned Judges of the High Court, that the plaintiff had failed to discharge the burden which lay on him of establishing sufficient nucleus, or that the
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NC: 2025:KHC:34340 RFA No. 1704 of 2023 HC-KAR defendants had discharged the burden of establishing that the acquisitions were made without the aid of joint family funds, the result is the same. The contention of the appellant that the findings of the courts below are based on a mistaken view as to burden of proof and are in consequence erroneous, must fail."
17. This doctrine was reaffirmed in Lakshmaiah (supra), where the Court observed at paragraph Nos.17, 18 and 19 as under :
"17. In view of the aforesaid discussion, the respondents having failed to discharge the initial burden of establishing that there was any nucleus in the form of any income whatsoever from Item No.2 property and no other nucleus was claimed, the burden remained on the respondents to establish that Item No.1 property was joint family property. In this view, the fact that the first appellant has not led any evidence to establish his separate income is of no consequence insofar as the claim of the respondents is concerned. Under these circumstances, for failure to lead evidence, the respondents' claim of Item No.1 to be joint family property would fail as rightly held by the first appellate court.
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NC: 2025:KHC:34340 RFA No. 1704 of 2023 HC-KAR
18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.
19. Another contention urged for the respondents was that assuming Item No.1 property to be self-acquired property of Appellant No.1, he blended the said property with the joint family property and, therefore, it has become joint family property. Assuming the respondents can be permitted to raise such a plea without evidence in support thereof, the law on the aspect of blending is well settled that property separate or self-acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his
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NC: 2025:KHC:34340 RFA No. 1704 of 2023 HC-KAR separate claim therein but to establish such abandonment a clear intention to waive separate rights must be established. From the mere fact that other members of the family were allowed to use the property jointly with himself, or that the income of the separate property was utilised out of generosity to support persons whom the holder was not bound to support, or from the failure to maintain separate accounts, abandonment cannot be inferred, for an act of generosity or kindness will not ordinarily be regarded as an admission of a legal obligation (see Lakkireddi Chinna Venkata Reddi v. Lakkireddi Lakshmama (1964 (2) SCR 172) and K.V.Narayanan v. K.V.Ranganathan and others (1977) 1 SCC 244)."
18. The Apex Court in the aforesaid Lakshmaiah's case observed that there is no presumption that the property held by a member of Hindu joint family is joint, the burden lies on the party asserting it. However, if it is shown that the family possess property sufficient to form a nucleus, the burden shifts to the party alleging self acquisition. It must be shown that the nucleus was of such
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NC: 2025:KHC:34340 RFA No. 1704 of 2023 HC-KAR value that it could reasonably have contributed to the acquisition.
19. On the evidence, in the instant case, it stands established that item No.1 yielded rental income, as admitted by DW.1, the trial Court also directed mesne profits enquiry. Death-cum-service benefits of Rs.3,00,000/- were received upon Kallaiah's death. The family continued to reside jointly without proof of severance of status. This constituted a sufficient nucleus, discharging the plaintiffs initial burden. The onus then lay upon the defendants to show that item Nos.2, 3 and 4 were funded entirely from their independent income. That burden will be analyzed under Point Nos.(iii) and (iv). Point No. (iii)
20. Ex.P2 is the sale deed dated 13.12.2006 in respect of item No.2 executed by defendant No.1 in favour of defendant No.2. The recital in Ex.P2 itself shows the transfer was for 'Arisina-Kumkuma' which means there
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NC: 2025:KHC:34340 RFA No. 1704 of 2023 HC-KAR was no consideration. Yet DW1 in her cross-examination stated that she has paid Rs.1,50,000/-. This contradiction undermines the defence that defendant No.2 purchased item No.2 from her own income. No proof of defendant No.2's earning in 2006 was produced. With the nucleus established by the plaintiffs, the presumption is that item No.2 was purchased from family fund.
21. Item No.3 stands in the name of defendant No.3 purchased under the registered sale deed dated 16.10.2006, the defendants claim that this was purchased from defendant No.3's independent income as a gas agency owner. However, Exs.D6 to D8 show that gas agency business commenced only in 2017, long after the purchase in the year 2006 relied upon. Thus, the plea of independent income is unsubstantiated and item No.3 has to be also held to be acquired from family nucleus.
22. Item No.4 is purchased in the name of defendant No.1-Jayamma in the year 1998 and later under
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NC: 2025:KHC:34340 RFA No. 1704 of 2023 HC-KAR Ex.D3 dated 11.12.2006, defendant No.1 gifted the property to defendant No.4. Defendant No.1 has not demonstrated any independent source of income. Thus, the acquisition by defendant No.1 is traced from the rents and benefits forming the family fund. Therefore the gift does not bind the plaintiffs' share.
23. The appellants contention that there existed a joint family nucleus is supported by admissions and evidence. Item Nos. 2 to 4 were from the joint family nucleus and the respondents/defendants failed to prove that items No. 2 to 4 was out of self acquisition. The trial Court has totally fell in error in dismissing the plaintiffs claim for partition of item Nos. 2 to 4 and the movables. In these circumstances, the points framed for consideration is answered accordingly and this Court pass the following :
ORDER
(a) Appeal is allowed.
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NC: 2025:KHC:34340 RFA No. 1704 of 2023 HC-KAR
(b) The judgment and decree dated 18.07.2023 in O.S.No.2161/2012 on the file of the VII Additional City Civil and Sessions Judge (CCH-
19), Bengaluru, is hereby set aside and modified.
(c) The plaintiffs suit is decreed in entirety.
(d) Plaintiffs 1 to 3 together are entitled for 1/4th share, defendants 2 to 4 are entitled for 1/4th share each in item Nos. 1 to 5 of the suit schedule properties..
(e) Mesne profits as directed by the trial Court stands confirmed.
Decree to be drawn, accordingly.
Sd/-
_____________________ JUSTICE K.S. HEMALEKHA ckl List No.: 1 Sl No.: 26