Karnataka High Court
T.S. Subbaraju vs T.A. Shivarama Setty And Ors. on 1 April, 2004
Equivalent citations: AIR2004KANT479, 2004(7)KARLJ190, AIR 2004 KARNATAKA 479, 2004 AIR - KANT. H. C. R. 2900 (2004) 3 KCCR 1421, (2004) 3 KCCR 1421
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
JUDGMENT Ram Mohan Reddy, J.
1. The unsuccessful plaintiff has preferred this appeal under Section 96 of the Code of Civil Procedure, 1908, calling in question the legality and validity of the judgment and decree dated 8-11-2001 dismissing O. S. No. 3618 of 1985 on the file of the Court of XXII Addl. City Civil and Sessions Judge, Bangalore (for short Civil Court).
2. Facts in brief, as noticed, for decision-making in this appeal are :
The relationship of the parties are not in dispute. The appellant-plaintiff is the second son of the 1st defendant, father and 2nd defendant, mother, while the 3rd defendant is the elder brother and 4th defendant is the younger. Defendant No. 5 is the purchaser of Item No. 1 of plaint Schedule 'A' immovable properties conveyed by the 1st defendant. The appellant and respondents 1 to 4 constitute a joint Hindu Undivided Family.
3. The appellant instituted O. S. No. 3618 of 1985 for partition and separate possession of his 1/4th share in plaint 'A' and 'B' Schedule properties and amongst other reliefs, the relief of declaration that the Sale Deed dated 24-7-1985 executed by the 1st defendant in favour of 5th defendant, as not binding on him. The case put forth by the appellant is that his paternal grandfather Adinarayana Setty by name, had ancestral properties and was a businessman. That the said late Adinarayana Setty along with his sons of which, eldest son is the 1st defendant, jointly conveyed by way of sale of the ancestral properties at Doddahalahalli village, separated themselves from the joint family and shifted to Bangalore, for the purpose of business. The appellant specifically avers that his grandfather and his father, the 1st defendant, started business, jointly, at Riseldar street utilising proceeds of the sale of the ancestral properties, constituting the joint family nucleus as and by way of capital for the said business. It is also averred that the said business is continued by the joint family and out of labour and toil of the members of the joint family, they acquired several movable and immovable properties, more fully described in plaint 'A' and 'B' Schedule. The 2nd defendant being a name lender, the properties at items 2 and 3 of Schedule 'A' were acquired in her name. It is the further case of the appellant that from his childhood, he contributed to the joint family by assisting in the business, and that, after his marriage due to differences among womenfolk, he had to make a separate living in the suit Item No. 1 of plaint Schedule 'A' properties. It is this immovable property which is sold to the 5th defendant by the 1st defendant. The appellant also alleges that the Fair Price Shop run by the 1st defendant and other Provision Stores run by 3rd respondent are joint family business. With regard to the family jewels, it is alleged that the defendants have secreted the same, to defeat the legitimate claims of the plaintiff.
4. The 1st and 2nd defendants filed separate written statement, while defendants 3 and 4 filed a joint written statement.
5. The 1st defendant denied the existence of the ancestral property or joint family nucleus at any point of time much less a joint family business. He denied that his father and himself started a business in joint at Bangalore, after leaving Doddahalahalli and that it was the 1st defendant on his own, who commenced and is continuing the business at Riseldar street without any contribution either from the plaintiff or defendants 3 and 4. The 1st defendant claimed to be the absolute owner of the immovable properties being item No. 1 of 'A' Schedule to the plaint having acquired the same from out of his self exertion. He claimed that the immovable properties 2 and 3 to the, plaint 'A' Schedule belong to the 2nd defendant having acquired the same from out of the jewels gifted to her at her marriage. With regard to Schedule 'B' movable properties, the 1st defendant claimed, to be jointly owned and possessed by himself and the 2nd respondent. According to the 1st defendant, the business at item No. 2 is carried on by the 3rd defendant, on his own. While the 1st defendant would admit of the execution of the Sale Deed conveying Item No. 1 of Schedule 'A' property in favour of 5th defendant, he specifically denies that the property belongs to the joint family or acquired from out of joint family nucleus.
6. The second defendant in her written statement supported the case of her husband, the 1st defendant and denied the claims of the plaintiff. Contrary to the claims made in the plaint, the 2nd defendant claimed to be the absolute owner of the immovable properties at item Nos. 2 and 3 of plaint 'A' Schedule and in joint ownership of the movable properties at plaint Schedule 'B', having acquired the immovable properties from out of sale proceeds from the gold and silver articles given to her at her marriage and also from the rental income of one immovable property.
7. The 3rd and 4th defendants in the written statement, apart from denying the plaint averments reiterated and supported the claims of their parents. They assert that the business at item No. 2 to the Schedule 'B' carried on by the 3rd defendant is his own business.
8. In the premise of the pleadings of the parties, the Civil Court framed the following 13 issues :
1. Whether the plaintiff proves that 1st defendant had ancestral properties and they were sold for the joint family business at Bangalore ?
2. Whether the plaintiff proves that the suit properties are the ancestral joint family properties of himself and defendants ?
3. Whether the plaintiff proves that himself and defendants have been in joint possession of the suit properties ?
4. Whether the 1st defendant proves that Item No. 1 of Schedule 'A' of the suit properties was his self-acquired property and as an absolute owner thereof has sold it to 5th defendant ?
5. Whether the 1st and 2nd defendants prove that the properties in Schedule 'B' are their self-acquisitions ?
6. Whether the 1st defendant proves that the Court fee paid is insufficient ?
7. Whether the 1st defendant proves that there is no cause of action for this suit ?
8. Whether the 3rd defendant proves that the business carried out by him is his separate business ?
9. Do the defendants 3 and 4 prove that this suit is not maintainable ?
10. Whether the plaintiff proves that the sale dated 24-7-1985 by 1st defendant to 5th defendant does not bind his share in suit Item No. 1 of Schedule 'A' ?
11. Whether the plaintiff proves that he is entitled to 1/4th share in the suit properties and entitled to partition and separate possession by metes and bounds ?
12. Whether an enquiry under Order 20, Rule 12 of Civil Procedure Code is to be ordered for future mesne profits ?
13. What relief or Order ?
9. The Civil Court recorded the evidence of the plaintiff as PW. 1 and one witness as PW. 2 and marked 7 documents as Ex. P. 1 to P. 7. For the defendants, 1st, 2nd, 3rd and 5th defendants examined themselves as DW. 1, DW. 3, DW. 4 and DW. 5 and one an other witness was examined as DW. 2 and marked one document as Ex.D. 1. The civil Court appreciating the evidence both oral and documentary laid before it by the parties answered issues 1, 2, 3, 6, 10, 11 and 12 in the negative and issues 5, 7, 8 and 9 in the affirmative and issue No. 13, as per the order dismissing the suit. The plaintiff aggrieved by the dismissal of the suit has preferred this appeal.
10. Smt. Geetha Menon, learned counsel appearing for the appellant would contend that the plaintiff discharged the initial burden of establishing the joint family nucleus for acquisition of all other properties described in Schedule 'A' and 'B' to the plaint, by the admission of the 1st defendant that the sale deed Ex.P. 1 dated 31-7-1950 was jointly executed by the paternal grandfather of the plaintiff along with his sons which included the 1st defendant, for valuable consideration of Rs. 2,000/-. She would point out with reference to the covenants in the sale deed, to contend, that they are clear and precise as regards the purpose of sale in that it is said that the consideration was for the purpose of raising necessary capital for the business of the 1st defendant and his brothers. In addition, she would contend that the use of the words (Vernacular matter omitted) meaning thereby that the construction of the building alone was out of self-exertion of the paternal grandfather of the plaintiff. It is her further contention that there is nothing in the said document to show how the immovable property was acquired, hence, it should be presumed that the same was ancestral. She would also contend that the defendants having failed to discharge their burden, the claim of the plaintiff needs to be accepted and the suit decreed. With regard to acquisition of the immovable properties at item Nos. 2 and 3 In Schedule 'A' to the plaint, she would contend that the 2nd defendant was only a name lender, as admittedly she was one among 11 daughters to her parents and the evidence disclosed that her parents were not financially well off so as to make gifts of gold and silver ornaments at her wedding. She would further contend that evidence marshalled was sufficient to establish that the 2nd defendant was a housewife and did not possess any separate income of her own to enable her to purchase the aforesaid immovable properties. The learned counsel would support her contentions by placing reliance on two reported decisions of the Apex Court-- (i) AIR 1959 SC 906, Mallappa Girimallappa Betgeri v. R. Yellappagouda Patil (ii) , K.V. Narayana Swami Iyer v. K.V. Ramakrishna Iyer.
11. Per contra Sri Aravind Kumar, learned counsel for respondent Nos. 1 to 4 would contend that the plaintiff failed to discharge the initial burden of establishing that the immovable properties conveyed under Ex. P1 Sale Deed executed by the grandfather of the plaintiff was ancestral property so as to constitute joint family nucleus of all other business and acquisition of properties. He would point out to the admission of the plaintiff in his cross-examination that his grandfather had told him that the property conveyed under Ex. P. 1 was self acquired. In addition, he would also point out to the contents of EX. P. 1 sale deed to make two-fold submissions (i) that the 1st defendant along with his brothers having joined in the execution of deed of sale along with their father did not mean that the said property was ancestral, more particularly, in the absence of any statement of fact in the sale deed and that the property being ancestral, all the executants had a share in it, (ii) the mere mention that the sale consideration was for capital of the business of his children was not conclusive proof of having made use of the consideration for joint family business. The learned counsel would further contend that although the plaintiff averred the existence of joint family nucleus, he failed to establish as to what was the amount from out of sale consideration that fell to the share of the 1st defendant, as also as to when his grandfather and his father migrated to Bangalore to commence the alleged joint business. In the alternative, he would contend that assuming, without conceding, that some amount was received by the 1st defendant as his share from the sale consideration under Ex. P. 1, at best, the same would amount to a gift and cannot constitute a joint family nucleus. He would also contend that the so-called claims at paragraph 4 of the plaint are based on hearsay evidence since, admittedly the plaintiff was of 3 years age at the time of execution of the sale deed Ex. P1. Lastly, he would support the finding of the Civil Court on all issues, as well merited, justified and not warranting our interference. He would place reliance on the following authorities:
(1) AIR (35) 1948 PC 108, Peary Lal v. Nanak Chand (2) AIR (37) 1950 Mys 33 (FB), Rukn-Ul-Mulk Syed Abdul Wajeed v. R. Vishwanathan (3) , C.N. Arunachal Mudaliar v. C.A. Muruganath Mudaliar (4) AIR 1961 Mys 64 G.B. Mallakarjunaiah v. J.S. Kanniah Setty (5) AIR 1962 Mys 38, Sidramappa Veerabhadrappa v. Babajappa Balappa (6) , Bhagavan Dayal (since deceased) by his LRs v. Mst. Reoti Devi (Deceased) by LRs.
(7) , G. Narayana Raju (Dead) by His LRs. v. G. Chamaraju (8) , Laxmi Ammal v. Meenakshi Ammal (9) ILR 1989 Kant 169, Gopal Purshotham Bichu v. Purushotham Govinda Bichu (10) , Vimal Bai (Dead) by LR. v. Hiralal Gupta (11) ILR 1990 Kant 336, Mallappajaiah v. Muddanna (12) Dandappa Rudrappa Hampali v. Renukappa alias Revannappa
12. Sri M.R. Rajagopal, learned counsel for 5th respondent would seek to sustain the findings of the civil Court and being a purchaser of the immovable property at item No. 1 of Schedule 'A to the plaint, from the 1st defendant, would adopt the contentions advanced by Sri Aravind Kumar.-
13. Smt. Geetha Menon, learned counsel for the appellant, by way of reply, would place reliance on the ruling of the Supreme Court in the case of Surjit Chhabda v. C. I. T. .
14. Having heard the learned counsel for the parties, perused the impugned judgment and decree, the evidence both oral and documentary, the only question for decision making in this appeal is, "Whether the findings of the Civil Court culminating in the dismissal of the suit in OS. No. 3618/1985, in the facts, circumstances of the case and evidence on record, is legal and valid."
15. The fundamentals of Hindu Law requiring a study of the Text, Digest, Commentaries need not be undertaken, in view of the judicial pronouncements. A co-ordinate Division Bench of this Court having considered all important earlier pronouncements of the Apex Court which have a bearing on the decision making recorded its summary of findings in the case of Dandappa Rudrappa Hampali (supra) which in the circumstances is apposite.
"15. All properties inherited by a male Hindu from his father, father's father or fathers paternal grandfather, is 'ancestral property'. A person may possess ancestral property as well as his self acquired property, it is permissible for a coparcener to blend his self acquired property with that of the ancestral or joint family property. A property acquired with the aid of the joint family property also becomes joint family property. The person acquiring a property if has command over sufficient joint family property, with the aid of which the new property could be acquired, there is a presumption that the acquired property belongs to the joint family. In such a case, the acquirer has to show that his acquisition was without the aid of any joint family assets. However the initial burden is on the person who asserts, that the newly acquired asset is of the joint family to prove, that the acquirer had command over sufficient joint family assets with the aid of which he could have acquired the new asset.
16. Existence of a joint family does not lead to the inference that property held by any member of the family is joint. In Appalaswami v. Suryanarayanamurti, AIR 1947 PC 189 at p. 192, the Privy Council held:
"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".
17.1: Therefore the initial burden is to establish the existence of some joint family property, capable of being the nucleus from which new property or asset could have been acquired; it is not sufficient to show that the joint family possessed some assets; it is necessary to prove that the assets of the joint family may have formed the nucleus from which the disputed assets may have been acquired. Whether joint family assets could have formed the nucleus, again, depends upon their nature and relative value. Existence of such joint family property which could have formed the nucleus for the acquisition of new assets, by itself would not lead that the new assets acquired by any member of the family would be joint family property, because, such a member may not have control or command over the joint family assets. The idea is that the member who acquired the new assets may have utilised the joint family assets to acquire further assets; this is possible only if the said member was in a position to utilise the joint family asset to acquire further asset or assets.
17.2 : In the case of the manager of the joint family or any other member who was in management of the family affairs or in possession of sufficient joint family assets, it is likely that the Joint family property or part thereof, formed the nucleus from which he acquired other assets and in such a case, burden will be on him to prove that the acquisition by him was without the aid of the joint family property".
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35. The initial burden to prove the existence of sufficient family property which could form a nucleus for other acquisition or for the business carried on by the brothers, is on the plaintiff.
36. Existence of sufficient family asset so as to form a nucleus for further acquisition is a question of fact. Such a fact can be proved by direct evidence should be clear, unequivocal and clinching, as otherwise, there is every danger of the self acquisitions of a person being lost to another who claims a share in it, based on the past prosperity of the family".
16. The Privy Council in the case of Peary Lal (AIR 1948 PC 108) (supra) held where the father inherited nothing and there was no nucleus of ancestral property, in a joint family consisting father and son, the onus on the son to show that he was associated in the business started by the father's initiative and carried on mainly or wholly under the father's direction, in such a manner as to raise a reasonable inference that the father intended to make and did make the business a joint family business. This onus is heavy where there is no ancestral property.
17. In the case of Rukn-Ul-Mulk Syed Abdul Wajid (AIR 1950 Mys 33(FB)) (supra) what fell for consideration for the Full Bench of this Court was whether the business carried on by a member of a Joint Hindu Family was begun or carried on with the assistance of the joint family property is a question of fact upon which burden of proof lies upon the plaintiff who claims a share in the business. The burden of proving that the business was separate at its inception cannot be cast upon the defendant who asserts it. The Full Bench further held that the mere fact that a member of a joint family meets the expenses of the family and employs his brothers in his business and pays them for their services or pays some money to each of the brothers out of generosity or kindness cannot show that the property acquired by him was not his self acquired property or what was paid by him to his brothers should be regarded as their joint family property.
18. The Supreme Court in the case of C. N. Arunachala Mudaliar (supra) held that the father is not only competent to sell the self acquired immovable property to a stranger without the-concurrence of his sons but he can make a gift of such property to one of his own sons to the detriment of another and he can make even an unequal distribution amongst his heirs.
19. A coordinate Division Bench of this Court in G.B. Mallakarjunaiah's case (AIR 1961 Mys 64) (supra), addressing the question as to whether the burden of proving self acquisition of properties by a member of the family would arise, held that it must be shown that the family was possessed of such joint family funds or joint family properties which would enable the acquisition of the properties in question.
20. In the case of Sidramappa Veera-bhadrappa (AIR 1962 Mys 38) (supra), the subject matter was in relation to a gift by a father to a son and the question was whether the same could constitute an ancestral property. This authority cannot come to the aid of the defendants since it is nobody's case that there was a gift of joint family property.
21. The reliance is placed on the ruling of the Supreme Court in the case of Bhagawan Dayal (supra) for the proposition that one or more members of the joint family can start a business or acquire a property without the aid of the joint family property, but such business or acquisition would be his or their acquisition and succession to such property would be governed not by the law of joint family but only by the law of inheritance.
22. The Apex Court in G. Narayana Raju's case (supra) held thus :
"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."
23. In the case of Lakshmi Ammal (supra), the Apex Court following the decision in the case of Srinivas Krishnarao held that the mere existence of ancestral property is not enough to conclude that the business carried on by a member was joint family business. There must be proof that the ancestral property was sufficient and productive enough and the income from the property was utilised for the purpose of the business.
24. A co-ordinate Division Bench of this Court in the case of Gopal Purushotham Bichu (ILR 1989 Kant 169) (supra) held that a new business started by the kartha or manager of a joint family is not considered to be the business of a joint family, unless it is started or carried on with the express or implied consent of adult coparceners or it is proved that the joint family funds are utilised for the business to the advantage of the joint family.
25. The authority in the case of Vimala Bai (supra) is in relation to migration and application of personal branch of law. In the present facts of the case, the above judgment can be of no assistance to the defendants.
26. A single Bench of this court in Mallappajaiah's case (ILR 1990 Kant 336) (supra) considered the question of blending of self acquired property with the joint family properties. This judgment does not apply to the facts of this case since it is not a case of any of the parties that there was blending of properties.
27. In the case of K.V. Narayanaswamy Iyer v. Ramakrishna relied upon by the appellant in support of her contention that on the date of acquisition of the properties, the joint family had sufficient nucleus for acquiring it and that the properties in the names of 1st and 2nd respondents members of the joint family should be presumed to be acquired from out of the family funds and so to form part of the joint family properties.
28. In Mallappa Girirnalappa Betgeri v. R. Yellappagouda Patil, AIR 1959 SC 906, the Supreme Court, in the light of the undisputed fact that certain properties belong to the joint family and having restrained itself from interfering with the finding of sufficiency of nucleus, recorded by the civil court, held that there arose a presumption that the properties acquired by the manager, as Kartha, were joint family properties.
29. The decision in the case of Surjit Lal Chhabda v. The Commissioner of Income Tax, Bombay relied upon by Smt. Geetha Menon, is in respect of a case where the father, the manager of the Hindu Undivided Family, by a declaration, in wilting, sworn to before the Presidency Magistrate, did throw his separate property into "family hotchpot" in order to impress the property with the character of joint family property.
30. The Apex Court in the case of Mudigowda Gowdappa Sankh v. Ramachandra Revagowda Sankh held thus :
"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 properly 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 Appalaswamy v. Suryanarayanamurti, ILR (1948) Mad 440 : (AIR 1947 PC 189) Sri 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 property was acquired without the aid of the joint family property."
31. In Muhammed Hussain Khan v. Babu Kishva Nahdan Sahai, AIR 1937 PC 233 (at P. 239), the Privy Council observed:
"The word 'ancestor' in its ordinary meaning includes an ascendant in the maternal as well as the paternal, line; but the 'ancestral' estate, in which, under the Hindu Law, a son acquires jointly with his father an interest by birth, must be confined, as shown by the original text of Mitakshara, to the property descending to the father from his male ancestor in the male line. Hence, the estate, which is inherited by father from is maternal grandfather, cannot be held to be ancestral property in which his son has an interest jointly with him".
32. Having perused the pleadings of the parties, it is clear that, while the plaintiff claims that all the movable and immovable properties as well as the business are joint family properties, having acquired all of them by virtue of the joint family nucleus secured by the sale of ancestral property as at Ex. P-1, defendants-1 to 4 assert that the properties standing in their respective names belong to them exclusively so also that of the business.
33. In the context of the facts and circumstances and evidence on record, the moot question would be, "Whether the 1st defendant did have the benefit of the joint family property or nucleus from which he could have acquired several properties and whether the properties standing in the name of defendants 1 to 4 do belong to the joint family of the 1st defendant, the plaintiff and his brothers-defendants-3 and 4?"
34. We may now apply the aforesaid principles of law to the facts of this case. The specific case of the plaintiff is that his paternal grandfather by name Adinarayana Setty was a businessman hailing from Doddahalahalli having ancestral properties. He claims that the said grandfather along with his sons of whom the 1st defendant is the eldest, jointly conveyed by way of sale the immovable property at Dodahalahalli for a valuable consideration so as to raise necessary capital for the business for the sons. Having sold the immovable property, the grandfather and his sons shifted their families to Bangalore, where two brothers of 1st defendant went separate, while the 1st defendant and his father commenced a joint business at Rasildar street deploying the sale consideration from out of the joint family nucleus. The said business, according to the plaintiff, was" carried on as joint family business and with the exertions of the members of the joint family, plaint 'A' and 'B' schedule properties were acquired. Though items 2 and 3 stand in the name of 1st defendant's mother who admittedly had no independent source of income to purchase the property. The plaintiff avers that he is in possession and enjoyment of the immovable property at item No. 1 of plaint 'A' Schedule ever since his marriage having made a separate residence, due to differences amongst woman folk of the family. The said immovable property being the joint family property, the 1st defendant had no authority to convey the same and on that premise, he sought to have the sale deed declared as hull and void. He also claims that the business carried on by the 3rd defendant in running a Provisions Stores is also joint family business though it is in the name of 3rd defendant. Nothing more is said in the plaint.
35. Defendants filed their written statement denying the case put forth by the plaintiff and have set up independent title to the plaint Schedule properties claiming them to be the self-acquisition of the 1st and 2nd defendants. The 3rd and 4th defendants have supported the defence set up by the 1st and 2nd defendants.
36. In the trial of the suit, the plaintiff examined himself as PW-1 and reiterated the statements set out in the plaint. In his evidence, he states that his mother, the 2nd defendant was one among 11 daughters and 3 sons being the children of his maternal grandparents who were in dire straits and not in a position to extend any financial assistance to the 1st defendant. He would also testify to the fact that as a child he assisted the 1st defendant in the business of running a Kerosene and Fair Price Depot, Provision stores and milk booth. He also states from 1979 onwards, he started his own business in frame works in the name and style of Vinayaka Frame Works, in suit Item No. 1 of Schedule 'A' to the plaint which was said to be purchased in the year 1974 in the name of the 1st defendant. He further deposes that during the year 1971, the said shop premises was taken on lease and the family was running the business in the name of Sreekanteshwara Stores and Coffee Works and during the subsistence of the lease, the family purchased the building. As regards suit Item No. 2, PW-1 states that it is a commercial-cum-residential premises purchased in the year 1962 in the name of his mother, the 2nd defendant, from out of joint family funds. It is in this building he states that the 1st defendant is running a fair price shop in one of the shop premises, while the 3rd defendant Nanjundaswamy is running a provision stores in the name of 'Srikanteswara Stores', and the residential portion, he states, is where defendant Nos. 1 to 4 are residing jointly. Suit Item No. 3 is said to be a house property situated at Srirampura, standing in the name of 2nd defendant having purchased it in the year 1958 from out of joint family funds. PW. 1 produced the certified copy of the sale deed dated 31-7-1950 conveying the ancestral property sold by his paternal grandfather jointly with the 1st defendant and his brothers. This witness states that Srikanteswara provision Stores is being run, ever since business commenced in the year 1950 as a joint family business. PW. 1 also speaks of the various movable properties described in Schedule 'B' to the plaint stating that they are all joint family properties. His evidence is to the effect that the sale of suit Item No. 1 of 'A' Schedule to the plaint is deliberate and is with an intention to harass the plaintiff. In the cross-examination of this witness, it is elicited that when Ex. P. 1 was executed in the year 1950 he was a child and that his grandfather did tell him that the house conveyed under Ex. P. 1 was his self acquisition. He also admits that he did not know as to what business his grandfather was carrying on when they were residing at Murugesha Modaliyar Galli. This witness would further state that it was his grandfather who told him that he had started Provision stores in 1950 and that thereafter they had diversified and developed separate business. He claims that the kerosene license was standing in his name.
37. The plaintiff examined one witness by name Lakshminarayana as PW. 2 This witness is none other than the younger brother of the 2nd defendant. In his examination-in-chief, he states at the time of marriage of the 2nd defendant, his father was not economically well off and did not possess any property of his own. In his cross-examination, he admits that along with his brothers all of them have sold a Stridhan property belonging to their mother and out of the sale proceeds, nothing was given as share to the 2nd defendant nor her consent was taken for the sale. He also admits that at the time of marriage of the 2nd defendant, he was 10 years of age, did not have any worldly knowledge, and is unable to say as to what gifts and presents that were given by his parents to the 2nd defendant, on her marriage. With the evidence of this witness the plaintiff closed his side.
38. Defendant No. 1 examined himself as DW. 1. This witness reiterated the statement made by him in the written statement filed in the said suit. He testified to the fact that his wife i.e. defendant No. 2 received a number of gold ornaments and silver articles from his in-laws at the time of their marriage. He states that his father sold the house property at Doddahalahalli in the year 1950 and out of the sale consideration of Rs. 2,000/-, a sum of Rs. 850/- was adjusted towards mortgage debt of his father and the balance was with his father alone who did not make over any sum of money to him, He asserts that along with his younger brothers, he made contribution of Rs. 1,500/- towards the marriage of his sister Padmavathi. He states that he purchased the residential house at Sheshadripuram from out of loan availed from Vysya Co-operative Bank. In the cross-examination of this witness, it is elicited, after coming to Bangalore in the year 1950, this witness secured employment in Panduranga Jewellery Mart, and that, the plaintiff was 3 years of age. His coming to Bangalore was because there was no convenience for carrying on business in the said village and that by the said time, his maternal grand parents were already residing at Murugesha Modaliyar Galli at Bangalore, where they resided for a period of 7 to 8 months. Having secured employment as a salesman in the jewellery mart, he claims to have earned a monthly salary of Rs. 80/- and served the said employer for a period of 3 years. Along with his family he is said to have shifted to a residential house at Ulsoor having taken the same on rent. He states that he commenced his own business of Provision stores in the name and style 'Srikanteswara Stores' at Sheshadripuram in a premises which he took on rent. He further states his father though sold the residential house at Doddahalahalli, continued to reside along with his younger sister as he had sold the property to the said sister. He claims that his father came to Bangalore sometime during December, 1953 or January, 1954 with intention to stay with him. The purpose of selling the house at Doddahalahalli, according to him was in order to repay the debts of his father. He has denied the suggestion that his father had brought the sale proceeds and commenced the business in joint, along with the 1st defendant. He further states that he purchased the building in which he commenced business in the name of 'Srikanteswara Stores' from one V. Narayana Rao. In the said building, the 3rd defendant Nanjundaswamy is carrying on his business in the name and style 'Srikanteswara Provision Stores'. He testifies to the fact that the licenses for the said Provision stores and the fair price depot are in his name. The witness was cross-examined at length with regard to the business, its stocks and purchase of the movables. No admissions or contradictions are elicited in the cross-examination except for denying the suggestions. Very strangely, what is suggested to this witness is that his father was running a business and was owner of a house which he had acquired personally. The said portion of cross-examination is extracted as under:
"But it is true that the said business and house were standing in his name as he had acquired them personally."
39. This witness admits the contents of EX.P. 1 to be true and correct, but denies the suggestion that the sale consideration was used for the capital of commencing business. The 1st defendant in his cross-examination states that during his marriage gold jewellery totally weighing 90 to 95 tolas were presented to his wife by his father-in-law and describes some of the jewels so gifted to his wife. After having said so, he retracted from his statement and states that the total weight of the jewels presented to his wife was 95 grams and not 95 tolas. This witness also states about the purchases of immovable properties made by his wife during the years 1958 and 1960. The sale consideration for both properties, according to him, was not from out of the joint family funds but from the sale of jewellery of his wife. With regard to the business of Srikanteshwara Provision Stores, he testified to the fact that he commenced business and continued the same until 1964, when he handed over the business to his son, the defendant No. 3 before securing a licence for a fair price depot.
40. The 2nd defendant examined himself as DW-2 and deposed that during her marriage, she received certain golden ornaments and silver articles from her father which she carried with her to Bangalore, after leaving Doddahalahalli. Having come to Bangalore, her husband took a job in a jewellery shop in order to eke out his livelihood and maintain the family. She claims to have purchased the plaint 'A' schedule items 2 and 3, immovable properties, from out of the sale proceeds of the silver articles and gold jewellery and also from accumulated rents received from one of the properties. She denies that the sale consideration for the said purchase was out of joint family funds. In her cross-examination she admits to be one among 11 daughters to her parents.
41. The defendants examined one K.L. Narayana Rao, a tailor by profession as DW-3. This witness claims to have been a neighbour of Ramanna Setty, the father-in-law of the 1st defendant, and former resident of Kadur. He speaks about the nature of business carried on by the said Ramanna Setty and the number of children the said Ramanna Setty had, which included the 2nd defendant. In his cross-examination, he admits that he was aged 6 years at the time of marriage between 1st and 2nd defendants.
42. Defendant No. 3 examined himself as DW-4 and reiterated the statements made in the written statement. He claims that prior to 1964, his father was running the Provision Stores in the name and style of Srikanteshwara Provision Stores, at Risaldar street, and that this witness was assisting him in the said business. After his father commenced the fair price depot, he states that he is carrying on the business of Srikanteshwara Provision Stores all by himself. He testifies that after the marriage of the plaintiff, his brother, commenced business in Provisions at Subedar Chatram road. He denies that the plaint Schedule 'A' properties at items 2 and 3, were purchased in the name of his mother from out of the joint family funds. In the cross-examination, this witness admits the suggestion that his grandfather and his father were residing together at Bangalore. He also admits to the fact that in the year 1964 his father secured a licence for running a fair price depot, after transferring the licence of the provision stores in his favour. He admits that his father is managing the joint family as the kartha.
43. Defendant No. 5 is examined as DW-5. This witness is the purchaser of the immovable property at item No. 1 to Schedule 'A' of the plaint from the 1st defendant. He admits to be a family friend and a childhood friend of 4th defendant Prakash Gupta. This witness deposes with regard to the legal action taken by him to evict the plaintiff from the immovable property purchased by him.
44. Having noticed the facts, as pleaded, and the oral as well as documentary evidence placed by the parties, we proceed to record our finding.
45. It is by now well established in law that the initial burden to prove the existence of ancestral property which forms a nucleus for other acquisitions or for business of the brothers squarely lies on the plaintiff. This being a pure question of fact, can be proved by direct or circumstantial evidence. However, the circumstantial evidence should be clear, unequivocal and clinching, as otherwise, there is every chance of self-acquisition of a person being lost to another who claims a share in it.
46. The claims of ancestral property, joint family nucleus and the commencement of joint business at Bangalore, stems from paragraph-4 of the plaint. The plaint averments are bereft of details such as dates on which the so-called ancestral immovable properties were purchased, the date on which it was sold, the date on which the joint family of his grandfather separated and migrated to Bangalore and the date on which the alleged joint business was said to have commenced at Bangalore, between the plaintiffs grandfather and the 1st defendant. In addition, the plaint averments are as bald as can be and do not state as to what was the exact sum of money that was brought by the grandfather and applied as capital for the joint business. There is also no pleading as to where, when and in what name the said joint family business was commenced.
47. The main thrust of the plaintiffs case is the existence of ancestral property at Doddahalahalli belonging to his paternal grandfather. That the said immovable property at Doddahalahalli was ancestral property is the say of plaintiff only. The plaintiff did not produce any document or adduce any evidence to establish that the property at Doddahalahalli was ancestral property at the hands of his grandfather. The grandfather and his sons having jointly conveyed the immovable property at Doddahalahalli by execution of sale deed dated 31-7-1950 as at Ex. P-1 and the receipt of the sale consideration is claimed by the plaintiff to constitute joint family nucleus. Undisputedly, the plaintiffs grandfather and his sons constitute a joint Hindu Undivided Family. The fact that the grandfather and his sons jointly executed a sale deed at Ex. P-1 and the covenant in the said Deed that the purpose of sale was to secure capital for the business of the sons, coupled with the admission of contents of the said Deed by the 1st defendant, according to the plaintiff, leads to an inevitable conclusion that it was ancestral property which constitutes joint family nucleus. Admittedly, the plaintiff was 3 years old at the time of execution of Ex. P-1 sale deed. It is his version that his grandfather was doing business at Doddahalahalli in the year 1950, he too came down to Bangalore with the amount received from out of the sale of immovable property and commenced a joint business along with the 1st defendant. All these statements are the self serving testimony of the plaintiff which is the only evidence available on record. The plaintiff examined one witness as PW 2 who is none other than the maternal uncle of the plaintiff, that is to say, the 2nd defendant's brother. This witness has not corroborated the version of the plaintiff with regard to the ancestral property and joint family nucleus. Thus the self interested testimony of PW-1 remains uncorroborated by evidence of independent uninterested witness.
48. The contents of Ex. P-1 no doubt states the reason for sale, to be, to muster, capital for the business of the sons of Adinarayana Setty as also for repayment of the debts of the said Adinarayana Setty. The sale deed does not anywhere covenants that the immovable property conveyed therein was ancestral property. Quite contrary to the claim of the plaintiff, the document contains recitals that the immovable property was the self-acquired property of Adinarayana Setty Amongst Hindus, it is common knowledge for the children of the vendor to join the execution of the sale deed of immovable property for and by way of abundant caution. Merely, because the sons of Adinarayana Setty joined in the execution of Ex. P-1 sale deed, it cannot be inferred that the immovable property conveyed under the said Deed was ancestral, property. The fact that Ex. P-1 sale deed recites that it is a self-acquired property of Adinarayana Setty is not controverted by the plaintiff but however, he would admit, in his cross-examination, that his grandfather did tell him that the suit property was his self-acquired property. Whatever may be the ambiguity in the document Ex. P-1, it is dispelled by one important admission of the plaintiff that the property was self-acquired property of the grandfather. The plaintiff having failed to discharge the initial burden, the civil Court was justified in recording a finding to that effect. If this is the correct view to take which we think it, is it would furnish a complete answer to the contentions of the plaintiff.
49. The dates on which the grandfather of the plaintiff came away from Doddahalahalli and commenced alleged joint business along with 1st defendant are not forthcoming from the evidence of PW-1. In addition, what was the sum of money that the grandfather had invested into capital of the said business lacks both in pleading as well as proof. The plaintiff has also failed to establish that there was joint family nucleus which in fact, was made use of by the 1st defendant for the purpose of commencing business in establishing the Provisions at Bangalore. It is also important to note that under Ex. P-1 sale deed the total consideration was Rs. 2,000/- out of which a sum of Rs. 850/- was paid towards the debt of the grandfather of the plaintiff. Though in the said document, it is mentioned that the sale consideration was for raising necessary capital for the business of the 1st defendant and his brothers, from out of the balance of a sum of Rs. 1,150/-, there is absolutely no evidence either oral or documentary to substantiate as to how much of that sale consideration came to the hands of the 1st defendant. Although Sri Aravind Kumar, learned counsel for R-1 to R-4 would contend that even if some amount had been paid to the 1st defendant, at best it would amount to a gift by his father, we are not inclined to accept the said statement, since it is not the case set up by the 1st defendant before the civil Court.
50. The plaintiff having pleaded joint business, did not produce an iota of evidence in support of such claim. The plaintiff ought to have secured at least the licence or other such documents issued by the statutory authorities to carry on Provision Store's business in order to prove the commencement of the joint business. It has come in evidence that the plaintiff was 3 years of age in the year 1950 and therefore, he could not have had any personal knowledge of any of the facts asserted by him. It is in his evidence that the grandfather of the plaintiff did not accompany 1st defendant or his family members to Bangalore when the family shifted to Bangalore during 1950. In this view of the matter, the civil Court did come to a correct conclusion that the claim of the plaintiff of joint business was false.
51. The plaintiff having failed at the threshold itself to establish any of the allegations set out in the plaint, with regard to ancestral property and joint family nucleus, mere allegation bereft of proof of purchase of plaint Schedule movable and immovable properties from out of the joint family funds, as a consequence, will have to necessarily fail. Keeping in mind the principles of law enunciated by the Apex Court, this Court and other Courts in this country, with regard to ancestral property and applying the same to the facts of this case, we are of the considered opinion that the joint family of the 1st defendant and his children had no nucleus from which the disputed acquisitions could have been made. It is not in dispute that the 1st defendant and his family members are Hindu Undivided Family which does not necessarily mean that the family possessed joint family properties. No such presumption is available for the plaintiff, in law, and on facts also, there is no legal evidence worth the while, to raise any presumption.
52. The contentions put forth before us are identical to those which were urged before the civil Court. There is no material to show that the property was joint or the family possessed joint fund or that there was a nucleus to augment or add movable or immovable properties to the same. There is also no material to show that the plaintiff had in fact made any contribution thereof. The respondents placed sufficient material before the civil Court that the purchase of immovable properties were out of their own funds and that the 1st defendant being an absolute owner of item No. 1 of 'A' Schedule property was entitled, in law, to dispose of the same in the manner he desires. Except for the self serving statement of the plaintiff which we find to be self contradictory, there is nothing placed on record either oral or in writing to establish the case of the plaintiff, mere assertions will not suffice. The civil Court having thoroughly examined the pleadings and the evidence both oral and documentary and having adverted to all the circumstances, arrived at a correct conclusion.
53. In our considered opinion, the judgment and decree of the civil Court, dismissing the suit is well merited, fully justified on the materials available on record and they are neither shown to suffer from any infirmity in law nor substantiated to be based on no evidence or vitiated on account of perversity.
54. In the result and for the foregoing reasons, the appeal must necessarily fail and is accordingly dismissed, without an order as to costs.