Karnataka High Court
Smt Vijayalakshmi vs Sri Dyavaiah on 13 January, 2020
Equivalent citations: AIRONLINE 2020 KAR 137
Author: B.M.Shyam Prasad
Bench: B. M. Shyam Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY 2020
BEFORE
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
REGULAR SECOND APPEAL NO. 1383 OF 2016 (PAR)
BETWEEN:
1. SMT. VIJAYALAKSHMI
AGED ABOUT 54 YEARS,
WIFE OF CHENNA,
R/AT D.NO.68,
3RD CROSS,
RAMAKRISHNANAGAR,
MYSURU - 570 004.
2. SMT SAROJA
AGED ABOUT 47 YEARS
R/AT 13,NO.1953,
7TH CROSS,
JANATHANAGARA,
MARUTHI TEMPLE ROAD,
MYSURU - 570 004.
3. SMT. SAVITHA
AGED ABOUT 40 YEARS,
WIFE OF KRISHNA,
R/AT D.NO.2796/1,
JAYANAGARA
MYSURU - 570 004.
... APPELLANTS
(BY SRI.K. SREEDHAR., ADVOCATE FOR
APPELLANT Nos.1 & 3;
SRI. R.P. SOMASHEKARAIAH., ADVOCATE FOR
APPELLANT NO.2)
2
AND:
SRI DYAVAIAH
SON OF LATE MADAIAH,
SINCE DEAD ON 28.01.2015
THE RESPONDENTS NO.2 TO 5 AND
THE APPELLANTS ARE
ALREADY ON RECORD AS LRS'
1. SRI NAGARAJU,
AGED ABOUT 49 YEARS
SON OF DYAVAIAH.
2. SRI RAMU
AGED ABOUT 41 YEARS
SON OF DYAVAIAH.
3. SRI ARAVINDA
AGED ABOUT 49 YEARS
SON OF DYAVAIAH.
RESPONDENT NOS. 1 TO 3 ARE
R/AT D.NO.2796/1,
II MAIN ROAD, JAYANAGAR
MYSURU - 570 004.
4. SMT. SUNITHA
AGED ABOUT 31 YEARS
WIFE OF NAGARAJU,
DAUGHTER OF DYAVAIAH,
R/AT GUTHALU COLONY,
MANDYA TOWN - 571 426.
5. SRI M. RAMAKRISHNA REDDY
AGED ABOUT 72 YEARS
SON OF LATE VENKATA SUBBA REDDY,
R/AT CHANNAYAGARIPALLI,
LEBAKA POST, NANDALUR MANDAL,
KADAPA DISTRICT
ANDHRA PRADESH -01.
3
6. SRI B. RAVINDRANATH REDDY
AGED ABOUT 53 YEARS,
R/AT D.NO.414,
1ST BLOCK, 8TH E-MAIN,
KALYAN NAGAR,
BENGALURU - 560 043.
... RESPONDENTS
(BY SRI. ARAVIND SHARMA ALONG WITH
SRI. SANGAMESH R.B., ADVOCATE FOR
RESPONDENT NOS.5 & 6;
SMT. ANNAPURNA S., ADVOCATE FOR
RESPONDENT NOS.1 T0 4)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED 01.07.2016 PASSED IN R.A. NO. 221/2013
ON THE FILE OF THE IV ADDL. DISTRICT JUDGE,
MYSURU, PARTLY ALLOWING THE APPEAL AND
MODIFYING THE JUDGMENT AND DECREE DATED
23.03.2013 PASSED IN O.S. NO. 261/2009 ON THE FILE
OF THE IV ADDL. SENIOR CIVIL JUDGE, MYSURU .
THIS APPEAL HAVING BEEN HEARD AND RESERVED
ON 19.12.2019 AND COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, THIS COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed by the plaintiffs in OS No.261/2009 on the file of the IV Additional Senior Civil Judge, Mysore (for short, 'the civil Court'). The appellants, with their suit in OS No.261/2009 being only partly decreed by the civil Court by its judgment 4 and decree dated 23.3.2013, have filed the first appeal in RA No.221/2013 on the file of the IV Additional District Judge, Mysore (for short, 'the appellate Court'). While the civil Court partly decreed the suit for partition declaring that the appellants-plaintiffs would be entitled for 3/24th share only in the suit item No 3 property viz., land measuring 1 acre 8 Guntas in Survey No. 8/1A of Lingambudipalya Village, Kasaba Hobli Mysore, the appellate Court has partly allowed the appeal modifying the civil Court's judgment declaring that the appellants would be entitled for 3/24th share even insofar as suit item No.2 properties viz., a residential property in Jayanagar, Mysore. However, the appellants' claim for partition of the lands described as suit item No. 1 properties viz., the land in Survey No. 142 (measuring 4 acres 20 Guntas) and land in Survey No. 143 (measuring 1 acre) of Lingambudipalya Village, Kasaba Hobli, Mysore is concurrently dismissed. As such, the 5 appellants have filed this second appeal impugning the respective judgments and decrees of the civil Court and the appellate Court insofar as the dismissal of the suit as against the suit item No.1 properties.
2. The parties are referred to as they are arrayed in the suit in OS No.261/2009 for reasons of convenience.
3. The plaintiffs have filed the suit in OS No.261/2009 for declaration that they are entitled for 3/24th share in the aforesaid properties against their father (the defendant No.1), their brothers (the defendant Nos.2 to 4), their sister (the defendant No.5), and the purchasers (the defendant Nos.6 and 7) of suit item No.1 properties. The plaintiffs' case is that they along with the defendant Nos.1 to 5 are members of a Hindu undivided joint family, and their father is the Kartha of such family managing and supervising the 6 suit schedule properties which are joint family - ancestral properties. The plaintiffs and the defendant Nos.1 to 5 are in joint possession and enjoyment of the suit schedule properties. Their father and siblings, in collusion, have transferred the suit item No.1 properties in favour of the defendant No.6. The defendant No.7 has transacted on behalf of the defendant No.6 in the purchase of the suit schedule item No.1 properties.
4. The plaintiffs were not aware of this transfer of the suit schedule item No.1 properties on 9.2.2005 in favour of the defendant No.6 until the month of April 2009, and on coming to know about the transfer, the plaintiffs approached the defendant No.1 for partition. The defendant No.1 refused the same. The sale of the suit schedule item No.1 properties could not be for any family necessity and the sale deed dated 9.2.2005 would not bind them. Initially the suit was filed only as against suit schedule item No.1 properties, but later the suit 7 schedule item Nos.2 and 3 properties were included by way of amendment. The plaintiffs specifically asserted that each of them would be entitled for 1/8th share in the suit schedule properties.
5. The father, the defendant No.1, filed his written statement denying the plaint averments but admitting the relationship. He contended that when the suit item No.1 properties was transferred in favour of the defendant No.6 on 9.2.2005, he had informed the plaintiffs and requested them to join in the execution of the sale deed. They did not turn up at the Sub- Registrar's office. He transferred the suit item No.1 properties for family necessities. The other suit properties are his self-acquired properties, and he has transferred these properties under a gift deed in favour of his daughters.
6. The purchaser, the defendant No. 6, filed his written statement denying that the suit item No.1 8 properties were ancestral properties. The defendant No.6 contended that the suit schedule item No.1 properties were owned by Sri Madaiah, the father of the defendant No.1. On the death of Sri Madaiah, the suit schedule item No.1 properties and other properties devolved on his wife and children. These properties, including the suit schedule item No.1 properties, were later partitioned with the defendant No.1 being allotted the suit schedule item No.1 properties. The defendant No.1 having thus acquired the suit schedule item No.1 properties, absolutely owned these properties, and none of his children, during his lifetime, could claim any right, title or interest. Further, the defendant No.6 contended that the plaintiffs, who were aware of the sale of the suit item No.1 properties under the sale deed dated 9.2.2005, filed the suit only because of the steep increase in the prices of the immovable properties in and around Mysore.
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7. The civil Court initially framed 5 Issues, and the Issue Nos.1 and 2 required the plaintiffs to prove that the suit schedule properties are joint family - ancestral properties in the joint possession and enjoyment of the plaintiffs and the defendant Nos.1 to 5 and that the sale of the suit item No.1 properties by the defendant No.1, along with defendant Nos.2 to 5, in favour of defendant No.6 is null and void. The defendant Nos.6 and 7, the purchasers, in discharge of the burden on them as per Issue Nos.3 and 4 were required to establish that the suit was barred by limitation and the court fee paid is not proper. Later, the civil Court framed additional Issues which required the defendant No.1 to prove that the suit item No.3 property is his self-acquired property.
8. The first of the plaintiffs, Smt.Vijayalakshmi, is examined as PW.1 and Exhibits P1 to P23 are marked. These exhibits include RTC (Exhibit P.1-P.19), 10 Encumbrance Certificate (Exhibit P.20), Mutation Register Extract (Exhibit P.21), a certified copy of the Sale Deed dated 9.2.2005 (Exhibit P.22) and a copy of the Partition Deed dated 13.5.1978 (Exhibit P.23). On behalf of the defendants, the defendant No.7 is examined as DW.1 and the defendant No.4 is examined as DW-2. In fact the defendant No.4 has examined himself as the power of attorney of his father, the defendant No.1. The defendants have marked copies of the sale deed dated 9.2.2005 (Exhibit D.1), the Agreement dated 14.2.20051 (Exhibit D.2), the Agreement dated 2.11.20072 (Exhibit D.3), the 1 This agreement is executed by the defendant No.6 (represented by defendant No.7) in favour of defendant Nos.1 to 5 agreed to transfer 7 sites measuring 30 feet x 40 feet as part of the consideration for the sale of the suit schedule item No.1 properties with the defendant No.1 agreeing to resolve claims that could be made by any member of the family. 2 This agreement is again between the defendant No.6 and the defendant Nos.1 to 5 where under the defendant Nos.1 to 5 have acknowledged to receive a total sum of Rs. 47,25,000 (at the rate of Rs.66,75,000 per site) in view of the 7 sites assured under Exhibit D2 and also acknowledged having received a sum of Rs.5 lakhs as part of the sale consideration. 11 Conversion Order dated 15.1.2009 permitting the use of the suit item No.1 properties for non-agricultural uses (Exhibit D.4), the Endorsement issued by MUDA and the Challan for remittance of prescribed fee for grant of approval of layout plan for development of the suit schedule item No.1 properties (Exhibits D.5 and D.6), the Partition Deed dated 13.5.1978 (Exhibit D.7), the RTC for the suit item No.1 properties for the years commencing from 2001-2002 (Exhibits D.8 to D.17), the Demand Drafts drawn in favour of defendant Nos.2 to 4 for a sum of Rs.2,50,000/- each (Exhibits P.18 and P.19), and the Encumbrance Certificate (Exhibit D.20).
9. The civil Court, on appreciation of the oral and documentary evidence, has opined that the evidence on record is that the suit schedule item Nos.1 and 2 properties were owned by Sri Madaiah, and on his demise, his legal representatives i.e., his wife and children, including the defendant No.1, partitioned the 12 properties left behind by him under the registered Partition Deed dated 13.05.1978. In such partition, the suit schedule item No.1 properties are allotted to the defendant No.1. The suit schedule item No.1 and item No.2 properties, because the defendant No.1 has acquired these properties from his father and pursuant to a subsequent partition concluded amongst the legal heirs of the deceased father, and in view of the provisions of Section 8 of the Hindu Succession Act, 1956, would be the self-acquired properties of the defendant No.1. The civil Court has also opined that with the plaintiffs admittedly living separately from the date of their marriage, they would not be acquainted with the circumstances under which the sale deed dated 9.2.2005 is executed by the defendant No.1, along with his other children and therefore, the evidence that the sale deed dated 9.2.2005 is executed for family necessities will have to be accepted. Thus, the civil 13 Court has refused to validate the plaintiffs' claim for a share in the suit schedule item No.1 properties.
10. The civil Court for similar reasons, as would be obvious from its judgement though there could be some error in referring to the suit item No.2 property (a residential property), has concluded that the plaintiffs would not be entitled for a share even in this property. But, insofar as the suit item No.3 property, the civil Court has observed that though the defendant No.1 contended that this property is his self-acquired property, he has not placed on record any evidence to substantiate such claim. The civil Court has therefore opined that the suit item No.3 property would be ancestral property in which the plaintiffs would be entitled for a share and has accordingly decreed the suit insofar as this property declaring that the plaintiffs are entitled for 3/24th share.
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11. The plaintiffs being aggrieved by the civil Court's judgement refusing a share in the suit schedule item Nos.1 and 2 properties, filed the first appeal in RA No.221/2013, and they also filed an application under Order XLI Rule 27 of the Code of Civil Procedure,1908 short, 'the CPC') seeking leave to produce old RTCs for the suit schedule item No.1 properties and family's Genealogical Tree. The appellate Court framed multiple points for its determination with the first of such points being whether the plaintiffs have made out a case for granting leave to produce additional documents. The other points for determination formulated by the appellate Court could be summarised, for the purposes of the grounds urged in this appeal, as follows: (a) Whether the suit item Nos.1 and 2 properties acquired by the defendant No.1 under the partition deed dated 13.5.1978 would be the individual properties of the defendant No.1 or would be co-parcenery properties, (b) 15 Whether the plaintiffs would be co-parceners because of the provisions of the Hindu succession (Amendment) Act, 2004, and (c) Whether the alienation of the suit item No.1 properties under the sale deed dated 9.2.2005 is for family necessities.
12. The appellate Court allowing the appeal partly, has opined that the documents proposed by the plaintiffs as additional evidence would not be necessary in view of the admitted relationship and the evidence already on record, including the Partition Deed dated 13.5.1978 relied upon both by the plaintiffs and the defendants. The appellate Court has consequentially, concluded that the proposed additional evidence would not be necessary. The appellate Court has examined the other questions in the light of the admitted facts that the suit item Nos.1and 2 properties were owned by Sri Madaiah, the father of the defendant No.1. On the demise of Sri Madaiah, his legal representatives 16 (including his wife and sons) entered into a partition vide the Partition Deed dated 13.5.1978. In this partition, the suit item Nos.1 and 2 properties are allotted to the defendant No.1. The plaintiffs and the defendant Nos.2 to 4 were born as of the date of demise of Sri Madaiah.
13. The appellate Court, in the light of these admitted facts, relying upon the decision of the Hon'ble Supreme Court in Rohit Chauhan v. Surinder Singh3 has concluded that the suit item Nos.1 and 2 properties would be ancestral properties. The appellate Court has opined that the property allotted to a person in a partition would be his separate property until the birth of his children, and after the birth of the children, the person will hold the property as a co-parcener and he can alienate such property only as a Kartha. The appellate Court has held that because the defendant 3 AIR 2013 SC 3525 17 No.1 acquired the suit schedule item No.1 properties in a partition and his children were born as of the date of the demise of his father, the suit schedule Item Nos.1 and 2 properties would be ancestral properties. The appellate Court has also concluded that with the Hindu Succession (Amendment) Act, 2004, the plaintiffs, even though married, would be coparceners because the father, the defendant No.1, is alive relying upon the decision of the Hon'ble Supreme Court in Prakash and others v.Phulavathi and others4.
14. However, the appellate Court, on the question whether the plaintiffs are able to establish that the sale of suit item No.1 properties is for legal necessities, has held against the plaintiffs holding that though the plaintiffs contend that the sale of the suit item No. 1 properties was not for family necessities, they have not alleged that the defendant No.1, their father, 4 (2016) 2 Supreme Court Cases 36 18 was addicted to vices or that the sale consideration has been misused by the defendant No.1. The recitals in the sale deed dated 9.2.2005 clearly indicates that the sale deed is executed for discharge of hand loan and domestic expenses. This recital in the sale deed dated 9.2.2005 is corroborated by the oral evidence of DW.1. Further, the plaintiffs being married and residing separately would not be aware of the reasons for the sale, and the children who were residing with the father would be aware of such reasons and accordingly they have consented for the sale. The defendant Nos.6 and 7 are thus able to establish that the sale of the suit item No.1 properties was for family necessities. The appellate Court has modified the civil Court's judgement holding that the plaintiffs would not be entitled for a share in the suit item No.1 properties, but would be entitled for a share in suit item Nos.2 and 3 properties. 19
15. This appeal is admitted for consideration of the following questions:
(a) Whether the lower appellate Court is justified in dismissing the suit in respect of item No.1 of the plaint schedule property on the ground that sale made by the defendant No.1 is for family necessities even though sale is not made by defendant No.1 alone.
(b) Whether the lower appellate Court is justified in rejecting the application under Order XLI Rule 27 of CPC.
(c) Whether the lower appellate Court is justified in not properly considering the amended Section 6 of the Hindu Succession Act which gives absolute right even for married daughters to claim share in the property even if it is sold to third parties after 20.12.2004 when the amended Act was introduced in the Parliament.20
16. The learned counsel for the plaintiffs, at the very outset, submitted that the plaintiffs do not want to pursue the application filed under Order XLI Rule 27 of CPC and therefore, the second question framed would not survive for consideration in this appeal. The learned counsel for the parties also submitted that the dispute in the present appeal being essentially between the plaintiffs and the defendant Nos.6 and 7, (the purchasers of the suit Schedule Item No.1 properties), the dispute is confined only to the plaintiffs' rights in these properties and therefore, this Court should consider only the first and the third questions framed insofar as the suit schedule item No.1 properties.
17. The learned counsel for the plaintiffs argued that the settled law is that the onus of establishing that the sale of an ancestral property 21 is for legal necessities is on the transferee. As such, the transferees, the defendant Nos.6 and 7, have to discharge the burden of establishing that the sale of the suit schedule item No.1 properties by the defendant Nos.1 to 5 under the sale deed dated 9.2.2005 is for legal necessities. But, the defendant Nos. 6 and 7 have neither pleaded the necessary details nor established the same to succeed in their case that the sale of the suit schedule item No. 1 properties is for legal necessities. The learned counsel for the plaintiffs next contended that the recitals in the sale deed executed in favour of transferee/s would never by itself suffice in law to establish that the sale of the joint family - ancestral properties is for legal necessities. As such, the appellate Court could not have, based on the recitals in the sale deed dated 9.2.2005, concluded 22 that the sale of the suit schedule item No.1 properties is for family necessities.
18. The learned counsel for the plaintiffs also contended that once it is concluded that the suit schedule item No. 1 properties are ancestral properties, and the sale thereof in favour of defendant No. 6 under the sale deed dated 9.2.2005 is not for legal necessities, in view of the now settled law that daughters would be entitled to a share in the ancestral properties if the father is alive as of the date of the Hindu Succession (Amendment) 2005 coming into effect, the plaintiffs would be entitled for an equal share in the suit schedule item No.1 properties. Therefore, both the questions of law will have to be answered in favour of the plaintiffs.
19. The learned counsel for the defendant Nos. 6 and 7 refuted the afore submissions 23 asserting that the appellate Court, being the final arbiter of the questions of fact, on appreciation of the pleadings and evidence on record, (including both ocular and documentary) has concluded that the sale of the suit schedule item No. 1 properties is for legal necessities. The appellate Court's finding on the question of fact, which is based on proper appreciation of the pleadings and evidence on record, cannot be re-visited in a second appeal, and the plaintiffs have not made out exceptional circumstances for such revisiting.
20. Further, the learned counsel for these defendants argued that the plaintiffs can succeed on the third question only if the plaintiffs are able to demonstrate that the suit schedule item No.1 properties are ancestral properties. The learned counsel for the defendant Nos.6 and 7 submits that the question whether the suit schedule item No.1 24 properties are ancestral properties remains open for consideration in this appeal in view of the third question framed though the defendants have not filed a separate appeal or cross- objections calling in question the finding by the appellate Court in this regard. It must be stated here that the defendant Nos. 6 and 7 filed appeal in RSA No.1720/2019 belatedly, but later filed memo seeking withdrawal of such appeal as not pressed. The memo is allowed and the appeal is dismissed as withdrawn.
21. The learned counsel for these defendants in support of the contention that without a separate appeal or cross objection, it could be argued on behalf of the defendant Nos.6 and 7 that the appellate Court could not have found, in the facts and circumstances of the case, that the suit schedule item No.1 properties are joint 25 family-ancestral properties, relied upon the decision of the Hon'ble Supreme Court in Mahant Dhangir V. Madan Mohan and others5.
22. The learned counsel for defendant Nos.6 and 7 in support of a finding in favour of these defendants on the question whether the suit schedule item No.1 properties is joint family - ancestral properties of the defendant No.1, canvassed firstly that the plaintiffs have sought for partition of the suit schedule item No.1 properties asserting that these properties are joint family - ancestral properties, but no evidence is placed on record to establish this assertion. In the absence of evidence in this regard, there could not have been a finding that the suit schedule item No.1 properties are joint family-ancestral properties. The documentary evidence viz., the partition deed dated 5 AIR 1988 Supreme Court Page 54 26 13.5.1978, the RTC and the sale deeds dated 9.2.2005 by themselves do not establish that the suit schedule item No.1 properties are joint family - ancestral properties. Further, the learned counsel argued that merely because the defendant No.1 has acquired title to these properties in a partition as per the partition deed dated 13.5.1978, which is concluded after the demise of the father of the defendant No.1, by itself cannot lead to any presumption that the suit schedule item No.1 properties are joint family - ancestral properties. If the suit schedule item No.1 properties were absolutely owned by the father of the defendant No.1 as his personal property, the rights therein, on his demise would devolve under Section 8 of the Hindu Succession Act, and in that event, the suit schedule properties would be the self-acquired properties of the defendant No.1.
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23. The learned counsel for the defendant Nos. 6 and 7 secondly contended that the Hon'ble Supreme Court in Uttam v. Saubhag Singh6 has declared that the law, prior to the Hindu Succession (Amendment) Act, was that when a male Hindu died after the commencement of the Hindu Succession Act, his interest in Mitakshara co-parcenery property devolve by succession upon the surviving members of the co-parcenery, but for two exceptional circumstances. The two exceptions explicated by the Hon'ble Supreme Court are (a) when a male Hindu has disposed of his interest in the co-parcenary by a Will or other testamentary disposition, or (b) if the male Hindu is survived by a female relative specified in class-I or by a male relative specified in that class claiming through such female relative. In the above two exceptional 6 (2016) 4 Supreme Court Cases 68 28 circumstances, the interest of the deceased male Hindu in a co-parcenery would devolve by testamentary or intestate succession. If it is intestate succession, the interest of the dying male Hindu would devolve subject to the provisions of Section 8 of the Hindu Succession Act.
24. The learned counsel for the defendant Nos.6 and 7 argued that the aforesaid proposition would squarely apply in the admitted facts and circumstances of the case emphasizing that the suit schedule item No.1 properties were admittedly held by Sri Madaiah until he died intestate when his wife and children (including the defendant No.1) partitioned the different properties left behind by him, including the suit schedule item No.1 properties. In view of the intestate succession in favour of the defendant No.1, his mother and his siblings, because of the second exception referred 29 to above the provisions of Section 8 of the Hindu Succession Act would apply and the suit schedule item No.1 properties could only have been the self- acquired properties of the defendant No.1. Therefore, the learned counsel submitted that the appellate court is not justified in its conclusion that the suit schedule item No.1 properties are joint family - ancestral properties.
25. In rejoinder, the learned counsel for the plaintiffs did not seriously contest that this Court could, while deciding the third question, revisit, at the instance of the defendant Nos. 6 and 7, the question whether the suit schedule item No.1 properties are joint family-ancestral properties. The learned counsel for the plaintiffs argued that undisputedly the revenue records for the suit schedule item No.4 properties were in the name of Sri Madaiah and as of the date of his demise, the 30 children of the defendant No.1, including the plaintiffs, were born. As such, the rights in the properties held by Sri Madaiah accrued in favour of the defendant No.1 and other children of Sri Madaiah on the date of his demise. In executing the partition deed dated 13.5.1978 such rights are identified by metes and bounds per stripes for the family of the defendant No.1. As such, the suit schedule item No.1 properties are ancestral properties. The decision of the Hon'ble Supreme Court in Uttam v. Saubhag Singh supra is based on the earlier decision in Commissioner of Wealth Tax, Kanpur and others vs. Chander Sen and Others7.
26. The learned counsel for the plaintiffs relying upon para 15 of the decision in Commissioner of Wealth Tax, Kanpur and others supra argued that the Hon'ble Supreme Court has 7 (1986) 3 Supreme Court Cases 567 31 declared that the moment a son is born, he gets a share in the father's property and becomes part of the co-parcenery. The right in the co-parcenery property accrues not on the death of the father or inheritance from the father but from the very fact of his birth. Therefore whenever a 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 property and it will become part of the joint family of his sons and grandson and other members who form joint family. This exposition by the Hon'ble Supreme Court in Commissioner of Wealth Tax, Kanpur and others supra, and in the later decisions in Sheela Devi and others v. Lal Chand and another8 and Rohit Chauhan v. Surinder 8 (2006) 8 Supreme Court Cases 581 32 Singh and others9 is not altered in the latter decision in Uttam vs. Saubhag Singh supra. Therefore, it cannot be reasonably held in the facts of this case namely that on the intestate death of Sri Madaiah leaving behind his mother, a class-I female legal heir, the provisions of Section 8 of the Hindu Succession Act would apply and the property/ies left behind by such male Hindu would become his self-acquired property. The learned counsel for the plaintiffs thus justified the decision of the appellate Court insofar as the finding that the suit schedule item No.1 properties are ancestral properties.
27. The plaintiffs' case as canvassed in the appeal memorandum is that the defendant No.7, who is examined as DW.1, has stated in his cross- examination that enquiries were made about the 9 (2013)9 Supreme Court Cases 419, and relied upon by the appellate Court.
33children of the defendant No.1, and the purchaser was aware that the plaintiffs are also the children of the defendant No.1. The sale deed dated 9.2.2005 is executed in favour of defendant No.6 representing that the defendant Nos. 2 to 5 along with the plaintiffs are the only major sons and daughters of the defendant No.1 and they are all necessary parties to the sale deed. Nevertheless, the sale deed dated 9.2.2005 is executed excluding the plaintiffs. These circumstances demonstrate that the defendants acknowledge that the plaintiffs, being the daughters of defendant No.1, are entitled for a share in the suit schedule item No.1 properties. In view of the amendment to Section 6 of the Hindu Succession Act after the Hindu Succession (Amendment) Act, they would be entitled for an equal share with the defendant Nos.1 to 5, and as a corollary, they contend that 34 the sale of the suit schedule item No.1 properties is not for legal necessities. Therefore, the two questions framed at the time of admission.
28. The Hon'ble Supreme Court in Shyam Narayan Prasad vs. Krishna Prasad and other10 in a dispute raised by the plaintiffs against the exchange of certain properties between their father and his brother which they had undisputedly acquired in a partition on 31.7.1987 has validated the claim of the plaintiffs for partition holding inter alia as follows:
"It is settled that the property inherited by a male Hindu from his father, father's father or father's father's father is an ancestral property. The essential feature of ancestral property, according to Mitakshara Law, is that the sons, grandsons, and great grandsons of the person who inherits it, acquire an interest 10 (2018) 7 Supreme Court Cases 646 35 and the rights attached to such property at the moment of their birth. The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. After partition, the property in the hands of the son will continue to be the ancestral property and the natural or adopted son of that son will take interest in it and is entitled to it by survivorship."
The Hon'ble Supreme Court has also referred to the earlier decision in Rohit Chauhan vs. Surinder Singh supra. Further, a Hon'ble Division Bench of this court in Pushpalatha N V vs. V Padma and others11, after referring to the decision of the Hon'ble Supreme Court in Shyam Narayan Prasad vs. Krishna Prasad and other supra has held as follows:
"Therefore from the above referred decisions, it becomes quite clear that whenever a partition of ancestral property takes place, the share that the co-parcener 11 HCR 2019 Kant. 60 36 gets continues to be ancestral if on the date of partition he has a son. He holds such property as absolute property if no son exists on the date of partition, but if a son is born subsequently, the ancestral character revives. After commencement of the Hindu succession (Amendment) act of 2005, the presence of a daughter or birth of a daughter subsequently has the same effect, but the entitlement to a share is subject to the riders found in the amended Section 6 and the ratio laid down by the Supreme Court in Prakash and others vs. Phulvathi and others,(2016) 2 SCC
36. If succession to self acquired property of a male Hindu takes place among his heirs in accordance with section 8 of the Hindu succession act, the share that every member takes will be held by each of them as his or her separate property12."
In the case before the Hon'ble Division Bench in the aforesaid decision, it was found that the plaintiff's 12 The emphasis by underlining by this Court 37 grandfather had obtained the subject property in a partition concluded in the year 1944, and after the demise of the grandfather, the plaintiff's father had got the subject property in a subsequent partition in the year 1967. Therefore, the plaintiff's claim is allowed by the Hon'ble Division Bench with the aforesaid enunciation. In the considered opinion of this Court, in cases of the present kind where the nature of succession prior to Hindu Succession (Amendment) Act is examined because it is asserted that the properties acquired by their father in a partition with his father/siblings are ancestral properties, it would be necessary to examine whether the grandfather held such properties as his absolute property or as joint family - ancestral properties. If the grand father held the properties as his absolute properties, undoubtedly, the 38 succession would be under Section 8 of the Hindu Succession Act if the grandfather dies intestate.
29. In the light of the afore discussion, this Court while deciding on the third question of law, would have to essentially examine whether the finding by the appellate Court that the suit schedule item No.1 properties are ancestral properties is justified in law, and if this Court concludes that the appellate Court's finding in this regard is justified, then this Court will have to examine whether the appellate Court is justified in its conclusion that the sale of the suit schedule item No.1 properties is for legal necessities. Therefore, an elaborate discussion on the canvass by the learned counsel for the defendant Nos.6 and 7 based on the decision of the Hon'ble Supreme Court in Mahanta Dhangir V. Madan Mohan and others supra is not necessitated.
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30. The parties do not dispute that the revenue records for the suit schedule item No.1 properties were in the name of Sri Madaiah, and four years after his intestate demise, his widow and children (including the defendant No.1) entered into partition vide the partition deed dated 13.5.1978 partitioning the suit schedule item No.1 properties and the other properties left behind by him. They also do not dispute that the plaintiffs are the daughters of the defendant No.1 whilst the defendant No. 2 to 4 are the sons and defendant No. 5 is another daughter of the defendant No.1. Further, they do not dispute that the defendant Nos.1 to 5 have alienated the suit schedule item No.1 properties in favour of the defendant No.6 under the sale deed dated 9.2.2005 without the plaintiffs. Furthermore, they do not dispute that the defendant Nos.2 to 5 (described as joint owners) 40 have joined the defendant No.1 in executing the sale deed dated 9.2.2005 as necessary parties. It is also possible that the indubitable reference to the plaintiffs in the sale deed dated 9.2.2005 is because the defendants 1 to 5 expected the plaintiffs to join in the execution of the said sale deed.
31. However, the dispute is because the plaintiffs contend that the suit schedule item No.1 properties are ancestral properties and they, in view of the provisions of Section 6 of the Hindu Succession Act as amended by the provisions of Hindu Succession (Amendment) Act, would be coparceners entitled for equal shares, and the purchasers - the defendant Nos. 6 and 7 - contend that the plaintiffs cannot assert that the suit schedule item No.1 properties are ancestral properties only because the defendant No.1 is allotted these properties in a partition vide the 41 partition deed dated 13.5.1978. In fact, the defendant Nos.6 and 7 specifically assert that the children don't get any right in the suit schedule item No. 1 properties only because these properties devolved on the defendant No.1 from his father, Sri Madaiah. Insofar as the defendant Nos. 1 to 5, the defendant No.1 has filed his written statement stating that the suit schedule item No.1 properties are self acquired properties and he had informed the plaintiffs about his intention to sell the suit schedule item No.1 properties and requested the plaintiffs to join him by subscribing their signatures. But defendant No.4, one of the sons of the defendant No.1 who is examined as his Power of Attorney, has stated in his chief examination that these properties are joint family properties. Therefore, the merits of the rival claims is examined in the light of the admitted facts and circumstances 42 of the case and the discussion in Para-28 of this judgment independent of the canvass based on the exposition by the Hon'ble Supreme Court in Uttam vs. Saubhag Singh supra.
32. The civil Court has opined that the suit schedule item No.1 properties are the self acquired properties of the defendant No.1 because the defendant No.1 along with his mother and siblings acquired rights to these properties on the demise of his father and the properties are allotted to him in a subsequent partition inter se his mother and brothers, including himself. The appellate Court, on the other hand, has concluded that the suit schedule item No.1 properties are ancestral properties on the premise that when a son acquires right to properties in a partition, unless he is the sole male member, he acquires it per stripes, and even if he is the sole male member at the time of 43 partition, with the birth of a son (now with the amendment to section 6 of the Hindu Succession Act, even a daughter) the co-parcenery is revived and the properties becomes co-parcenery properties. The appellate Court has opined that this proposition would apply to the facts of the case because undisputedly some of the children of the defendant No.1 were born as of the date of the demise of Sri.Madaiah.
33. It is settled law that whenever a suit is filed alleging that properties are joint family or ancestral properties, the plaintiff/s must discharge the initial burden of establishing the same as a question of fact, and if the plaintiff/s place on record cogent evidence to establish the same, the onus would be on the defendants to rebut the same. A useful reference in this regard could be made to the decision of the Hon'ble Supreme Court 44 in Appasaheb Peerappa Chandgade vs. Devendra Peerappa Chandgade13. However, the appellate Court has not examined whether the plaintiffs are able to discharge this burden of establishing that the suit schedule item No.2 properties are joint family - ancestral properties with reference to the evidence of record. The appellate Court, in deciding the points for determination viz., whether the suit item No. 1 and 2 properties acquired by the defendant No.1 under the partition deed dated 13.5.1978 would be the individual properties of the defendant No.1 or would be co-parcenery properties should have examined the evidence on record and decided the question with reference to the same.
34. The RTC (Ex.P.1 to P.19), Mutation Extract (Ex.P.21), the partition deed dated 13.5.1978 (Ex. P.23) and the sale deed dated 13 AIR 2007 Supreme Court 218 45 9.2.2005 (Ex. P.22) are the only evidence placed on record by the plaintiffs to substantiate their case that the suit schedule item No.1 properties (and the suit item Nos. 2 and 3 properties) are ancestral properties. A conjoint reading of these documentary evidence, which are undisputed, only show that the revenue records are mutated in favour of the defendant No.1 insofar as the suit item No.1 properties, after the partition deed dated 13.5.1978 and the revenue records continued in his name until the execution of the sale deed dated 9.2.2005. The question whether the suit schedule item Nos. 1 and 2 properties would be joint family - ancestral properties would depend upon whether Sri Madaiah absolutely owned the property, or he held these properties as joint family - ancestral properties. If Sri Madaiah held suit schedule item No.1 properties as his absolute self-acquired 46 properties, undisputedly the succession i.e., intestacy succession would be under Section 8 of the Hindu Succession Act, and in that event, the suit item No.1 properties would be the absolute properties of the defendant No.1. As such, the plaintiffs had to establish by cogent evidence the nature of ownership of the suit schedule item No.1 properties in the hands of Sri Madaiah.
35. But, the plaintiffs have not produced any material in that regard despite the burden on them in law. Neither the civil court nor the appellate court has examined this aspect. The appellate Court could not have proceeded to decide the rival claims without examining this question. Therefore, the appellate Court's finding that the suit schedule item No.1 properties are ancestral properties cannot be sustained.
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36. Even otherwise, the appellate Court, on appreciation of the evidence on record, including the undisputed circumstances such as the plaintiffs residing separately from the parents after their marriage, the lack of allegations of vices against the father and the oral evidence of the purchaser, DW.1 and the recital in the sale deed dated 9.2.2005 has concluded, as a question of fact, that the sale of the suit schedule item No.1 properties is for necessities of the family. The defendant Nos.1 to 5 do not deny the plaintiffs' claim for share in the suit schedule item Nos.2 and 3 properties.
37. The circumstances discussed would not justify interference either as regards the sale of suit schedule item No.1 properties being for legal necessities or as regards the plaintiffs being entitled to the benefit of the amended provisions of Section 48 6 of the Hindu Succession Act in these properties because such properties are ancestral properties, and the learned counsel for the defendant Nos. 6 and 7 is justified in canvassing that no substantial question is involved in these regards.
For the foregoing, the appeal is dismissed. No costs.
The pending interlocutory application does not survive for consideration.
SD/-
JUDGE nv* ct:sr