We may only mention that learned counsel for Craig Mcleod submitted that the order dated 07.01.2011 is in violation of the order passed by this Court on 29.11.2010.Therefore, without going into the larger issues raised before us, we grant liberty to Craig Mcleod to revive W.P.(C) No. 890 of 2012 filed (and subsequently withdrawn) by him in the High Court challenging the office order dated 07.01.2011 passed by the Vice Chancellor of the University. We expect the High Court to permit revival of the Writ Petition and decide it expeditiously since it is stated that Craig Mcleod has already lost two years of his education as result of this litigation.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.5889  OF 2012
            (@ SPECIAL LEAVE TO APPEAL (CIVIL) NO. 32358 OF 2010)


VICE CHANCELLOR, GURU GHASIDAS
UNIVERSITY                                   …..Appellant

                             Versus

CRAIG MCLEOD                                  …..Respondent

                               J U D G M E N T

Madan B. Lokur, J.

1.    Leave granted.


2.    The Vice Chancellor, Guru  Ghasidas  University  is  aggrieved  by  an
interim order dated 09.08.2010 passed by the High Court of  Chhattisgarh  at
Bilaspur in W.P.(C) No. 694 of 2010 filed by Craig Mcleod.

3.    The subject matter of the impugned interim order, is three  directions
given by the University on  02.02.2010.  These  three  directions  are:  (1)
suspending Craig Mcleod from attending classes in the  University  of  which
he is a student, (2) stopping  him  from  availing  the  facilities  of  the
University till final orders are passed in  respect  of  his  alleged  gross
misbehavior, and (3) restraining from entering the University premises.

4.    All three directions were stayed by the High  Court  by  the  impugned
interim order till the disposal of the Writ Petition. The interim  stay  was
subject to the condition that  Craig  Mcleod  gives  an  undertaking,  inter
alia, of good behaviour.  The  impugned  interim  order  also  directed  the
University not to pass a  final  order  in  respect  of  the  alleged  gross
misbehaviour of Craig Mcleod.

5.    In our opinion the impugned  interim  order  is  not  sustainable  and
while passing final orders,  we  have  taken  subsequent  developments  into
consideration.
The facts:
6.    It is alleged that on 02.02.2010 Craig Mcleod  grossly  misbehaved  on
campus with two Professors of the University.  As a result of the  incident,
a First Information Report was lodged with the  police  and  the  Proctorial
Board of the University took an emergent decision  to  expel  him  from  the
University  for  violating  the  code  of  conduct  and  for   beating   and
threatening a teacher. Pending a final decision on the  allegations  against
him, Craig Mcleod was suspended from attending  his  classes,  stopped  from
availing facilities of the  University  and  restrained  from  entering  the
University premises by an order dated 02.02.2010.

Proceedings in the High Court:
7.    Feeling aggrieved, Craig Mcleod challenged the said  order  by  filing
Writ Petition (C) No. 694 of 2010 in the High  Court  of  Chhattisgarh.   On
17.02.2010 notice was issued in the Writ Petition and in  the  interim,  the
passing of an order of rustication  was  stayed.   This  interim  order  was
continued for a couple of months.

8.    On 17.06.2010, the High Court granted liberty  to  the  University  to
take a final decision in the matter of the  alleged  gross  misbehaviour  of
Craig Mcleod within a week. In  other  words,  the  interim  order  was  not
extended.

9.    Soon thereafter, some developments appear  to  have  taken  place  but
they are not clear from the record  before  us.   Be  that  as  it  may,  on
22.07.2010 the High Court recorded that Craig Mcleod had filed an  affidavit
dated 21.07.2010 in the High Court tendering  an  unconditional  apology  to
the teacher concerned for the incident, which he stated  was  unintentional.
The order passed by the High Court also recorded that  Craig  Mcleod  stated
that he would go to the University on 26.07.2010 and  personally  tender  an
apology  to  the  concerned  teachers.   The  case  was  then  adjourned  to
06.08.2010.

10.   When the matter was  taken  up  on  06.08.2010,  the  High  Court  was
informed by the University and the concerned Professors  that  Craig  Mcleod
did come to the University to tender an apology but he  was  accompanied  by
several persons.  It appears that an apology was not tendered by him and  in
any event the apology, if tendered, was not sincere in  view  of  the  above
situation.  This was, of course, contested by Craig Mcleod.


11.   Based, however, on the affidavit  of  apology  dated  21.07.2010,  the
impugned interim order dated 09.08.2010  came  to  be  passed  by  the  High
Court.

Proceedings in this Court and pendent lite developments:

12.   Feeling aggrieved by the impugned interim order dated  09.08.2010  the
University preferred a Petition for Special Leave to  appeal  (now  a  Civil
Appeal).  On 29.11.2010, this Court passed the following order :
            “Issue Notice.
           Interim stay of the impugned order of  the  High  Court  to  the
           extent  it  stays  the  passing  of  the  final  order  in   the
           disciplinary enquiry against the respondent.  Consequently,  the
           Enquiry Authority  may  submit  his  report,  subject  to  final
           decision.”



13.   When we took up the matter for final  disposal,  learned  counsel  for
the parties brought to our notice certain developments that had taken  place
during the pendency of this appeal.  Firstly, on 07.01.2011 an office  order
was passed by the  Vice  Chancellor  of  the  University  rusticating  Craig
Mcleod from the University for a period of 5 years.   It  was  also  ordered
that he was not entitled to get admission in any course  in  the  University
or any affiliated college of University during this period of 5 years.   The
operative portion of the order  passed  by  the  Vice  Chancellor  reads  as
follows:-
          “The Shri Craig Mcleod S/o Shri Rodney Mcleod, a student  of  B.E.
          (Computer Science and Engineering) is hereby rusticated  from  the
          University for a period of 5 years w.e.f.  today  and  further  he
          will not be entitled  to  get  admission  in  any  course  in  the
          University or any affiliated college of the University during this
          period of 5 years.”



14.   Thereafter, Craig Mcleod challenged  the  order  dated  07.01.2011  by
filing W.P.(C) No. 890 of 2012 in the  High  Court  of  Chhattisgarh.   This
Writ Petition came up for hearing on 10.05.2012 when  it  was  withdrawn  by
him with liberty to move an appropriate  application  in  this  Court  since
this appeal was still pending.  The  order  passed  by  the  High  Court  on
10.05.2010 reads as follows:-
           “In view of the order passed by the  Hon’ble  Supreme  Court  on
      29/11/2010 in SLP(C) No. 32358/2010 arising out of  an  interim  order
      passed by this court on 09/08/2010 in W.P. (C) No.  694/2010,  wherein
      the Hon’ble Supreme Court directed that  “the  Enquiry  Authority  may
      submit his report, subject to final decision”, learned counsel for the
      petitioner seeks permission of the Court to withdraw the Writ Petition
      with liberty to move appropriate application  before  Hon’ble  Supreme
      Court.


            Accordingly, the writ petition is dismissed  as  withdrawn  with
      the liberty aforesaid.”


15.   We may note that despite liberty having been  granted  to  him,  Craig
Mcleod has not filed any application in this Court. We have, however,  heard
learned counsel for the parties.

Discussion:
16.   It is only in an atypical case that this Court entertains  a  petition
against a discretionary interim order passed by  the  High  Court  (Southern
Petrochemical Industries Corpn. Ltd. v. Madras  Refineries  Ltd.,  (1998)  9
SCC 209, Maharashtra SEB v. Vaman, (1999) 3 SCC  132,  and  United  Bank  of
India v. Satyawati Tondon,  (2010)  8  SCC  110)  where,  for  example,  the
repercussions are grave or the legal basis for  passing  the  interim  order
are obscure (Union of India v. Swadeshi Cotton Mills Co.Ltd., (1978)  4  SCC
295); or there is a miscarriage of justice (Joginder Nath  Gupta  v.  Satish
Chander Gupta, (1983) 2 SCC 325);  or  it  is  imperative  that  this  Court
exercises its corrective jurisdiction (Kishor Kirtilal  Mehta  and  Ors.  v.
Lilavati Kirtilal Mehta Medical Trust, (2007) 10 SCC 21).

17.    There  is,  therefore,  a   self-imposed   limited   discretion   for
interference available to this Court,  and  it  would,  generally,  be  more
appropriate for an  aggrieved  litigant  to  approach  the  High  Court  for
rectifying any error that may have been committed in passing  (or  declining
to pass) an interim order.   Of  course,  in  an  emergent  and  appropriate
situation it is always open to a litigant to  approach  this  Court  in  its
remedial jurisdiction.

18.   Insofar as the present case is concerned, Craig Mcleod was alleged  to
have assaulted a professor on campus.  This by itself is  a  rather  serious
allegation. While appreciating  this,  the  High  Court  had,  on  7.6.2010,
permitted the University to take a final decision in respect of the  alleged
gross misbehaviour of Craig Mcleod. About two months later, the  High  Court
completely changed its view apparently because in the meantime Craig  Mcleod
had tendered an apology to the High Court  (which  was  not  necessary)  and
then tendered or offered to tender an apology to  the  concerned  Professor,
which he did not accept since it was not sincere.

19.   The turn of events, given the lapse of time,  did  not  form  a  legal
basis for interdicting completion  of  the  inquiry  against  Craig  Mcleod.
While the High Court may have intended to bring  a  quietus  to  the  entire
episode, it should have kept in mind that maintenance of discipline  in  the
University is equally important for a  conducive  academic  environment  and
that the larger interests of the academic community are  more  central  than
the  individual  interests   of   a   student.    In   Varanaseya   Sanskrit
Vishwavidyalaya and Another v. Rajkishore Tripathi (Dr.), (1977) 1  SCC  279
it was observed that in matters  of  discipline  or  administration  of  the
internal affairs of a University, the courts should  be  most  reluctant  to
interfere.


20.   It is under these circumstances that we have entertained  this  appeal
against an interim order.

Conclusion:
21.   Now, several significant developments have taken place overtaking  the
‘cause of action’ for approaching this Court, particularly  the  passing  of
the office order dated 07.01.2011 by Vice Chancellor of the  University.  In
our opinion, it is not necessary or even appropriate at this stage to  judge
the validity of the office order dated  07.01.2011.   We  may  only  mention
that learned counsel  for  Craig  Mcleod  submitted  that  the  order  dated
07.01.2011 is in violation of the order passed by this Court on 29.11.2010.

22.   Therefore, without going into the larger issues raised before  us,  we
grant liberty to Craig Mcleod to revive W.P.(C) No. 890 of 2012  filed  (and
subsequently withdrawn) by him in the  High  Court  challenging  the  office
order dated 07.01.2011 passed by the Vice Chancellor of the University.   We
expect the High Court to permit revival of the Writ Petition and  decide  it
expeditiously since it is stated that Craig  Mcleod  has  already  lost  two
years of his education as result of this litigation.

23.   Under the circumstances, the impugned interim order is set  aside  and
this appeal is accordingly disposed of.

                                      ….…….……………………..J.
                                        (A.K. Patnaik)


                                                           ….…….……………………..J.
                                        (Madan B. Lokur)


New Delhi;
August 16, 2012

the application of the provisions of Order 2 Rule 2 CPC to a winding-up proceeding under the Companies Act that may be filed for recovery of the dues payable by the Respondent-tenant to the Appellant-landlord. We are, however, ad idem with the Division Bench that the relief of the Appellant-landlord, if any, in this case, will not lie in a winding-up petition, but in a suit filed for the said purpose, particularly when the said relief is not available under the rent laws which only deal with protection of tenants from eviction and the right of the landlords to recover the tenanted premises on the grounds specified therein.

|REPORTABLE          |


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NO.5886       OF 2012
                   (Arising out of SLP(C)No.10362 of 2007)



1 Raju Jhurani                       … Appellant



           Vs.





           2 M/s Germinda Pvt. Ltd.             … Respondent





                               J U D G M E N T



ALTAMAS KABIR, J.


   1. Leave granted.


2.    An interesting point has been raised in this Appeal as to whether  the
provisions of Order 2 Rule 2 of the Code  of  Civil  Procedure  (CPC)  would
have any impact on a proceeding under Sections  433,  434  and  439  of  the
Companies Act, 1956.

3.    This Appeal is directed against the  judgment  and  order  dated  14th
August, 2006, passed by the Calcutta  High  Court  in  A.C.  No.54  of  2005
dismissing the Appeal on the ground that in  the  absence  of  any  specific
finding whatsoever as to  the  rate  of  rent  and  the  period  of  default
committed by the respondent-tenant,  the  proceedings  under  the  Companies
Act, 1956, for winding-up was not maintainable.

4.    The Appellant herein as landlord filed a  suit  for  eviction  against
the respondent company on the ground of default in  making  payment  of  the
rents and also on grounds of  reasonable  requirement,  in  the  City  Civil
Court at Calcutta, under the provisions of the West Bengal Premises  Tenancy
Act, 1956.  The same was registered as Ejectment Suit No.201 of  1999.   The
said suit was  decreed  only  on  the  ground  of  default,  but  only  upon
recording that notice under Section 13(6) of  the  aforesaid  Act  had  been
duly served and that the ground of default had been proved, the Trial  Court
decreed the suit. There was no  finding  whatsoever  as  to  the  period  of
default in the said judgment.

5.    After the passing of the decree, as the Respondent did not  hand  over
vacant possession of the suit premises, the Appellant put  the  decree  into
execution and pursuant thereto vacant possession  of  Flat  No.10-D  in  the
10th Floor and car parking space No.4 in the ground floor  of  the  premises
No.28-B, Shakespeare Sarani,  Calcutta,  was  made  over  to  the  Appellant
through Court Bailiff  on  22nd  February,  2002.   Having  obtained  vacant
possession of  the  suit  premises,  the  Appellant  issued  notice  to  the
Respondent Company demanding payment of arrears of rent, Corporation  taxes,
etc. but without yielding any result.  Consequently, the  Appellant  had  no
other option, but  to  file  a  winding-up  petition  before  the  concerned
Company Court for payment of arrears  of  rent  amounting  to  Rs.7,22,381/-
from the month of June, 1998, till August, 2004 at the rate  of  Rs.12,650/-
per month, together with interest amount of Rs.8,92,211/-  at  the  rate  of
18% per annum. The learned Single  Judge  (Company  Affairs)  dismissed  the
winding-up petition on the ground of the alleged bar of Order 2 Rule  2  CPC
as well as the observations made  that  the  Appellant  could  approach  any
other appropriate forum with regard to  the  claim  raised  by  him  in  the
winding-up petition and that no summary order  could  be  passed  since  the
relationship between the parties had already been terminated.

6.    The Division Bench dismissed the Appeal filed by the Appellant  herein
on the ground that the winding-up petition was  not  maintainable  as  there
was no admitted arrears of rent for any particular period and there  was  no
ascertained amount due in respect of  which  a  winding-up  order  could  be
passed. The Appellate Court, however, also observed that  the  Appellant  as
the petitioning creditor would be entitled to claim the  amount  of  arrears
claimed by him in an appropriate proceeding before the appropriate forum.

7.    Questioning the said  order  of  the  Division  Bench  dismissing  the
appeal, learned Advocate, Ms. Shobha, urged that  both  the  learned  Single
Judge,  as  well  as  the  Division  Bench,  proceeded   on   an   erroneous
interpretation of the provisions of Order 2 Rule 2  CPC  and  Sections  433,
434 and 439 of the Companies Act,  1956.   Ms.  Shobha  contended  that  the
eviction suit had been decreed only on the ground of  default,  since  under
the West Bengal Premises Tenancy Act, 1956, there  is  no  provision  for  a
decree for recovery of rents.  In fact, in the absence of any  provision  in
the Act, the Court could not have made any decree towards the rents  payable
by the Respondent-tenant to the Appellant-landlord. However,  although,  the
default period or the rate of rent  had  not  been  computed  by  the  Trial
Court, the Trial Court had found  that  the  Respondents  had  defaulted  in
payment of rent from the month of June, 1998.   It  was  submitted  that  in
order to ascertain the dues on the basis of the aforesaid finding, was  only
a matter of calculation and mathematics and could be easily ascertained.   A
proceeding for winding-up would, therefore, be maintainable  in  respect  of
the debts, which the Company was unable to pay.

8.    On the question of the bar under  Order  2  Rule  2  CPC,  Ms.  Shobha
submitted that the same relates to suits which were required to include  the
whole of the claim which the Plaintiff was entitled to make  in  respect  of
the cause of action, with liberty to relinquish any portion of his claim  to
bring the  suit  within  the  jurisdiction  of  any  Court,  but  having  so
relinquished such claim or portion thereof, the Plaintiff  would  no  longer
be entitled to sue in respect of the portion  so  omitted  or  relinquished.
Ms. Shobha also pointed out that Clause (3)  of  Rule  2  of  Order  2  also
prohibits a person from suing for any relief which may have been omitted  by
the Plaintiff, except with the leave of the Court.  In contradistinction  to
the above, the provisions  of  Section  439  of  the  Companies  Act,  1956,
provide for an application to be made to the Court  for  the  winding-up  of
the Company to be  presented  by  a  petition,  subject  to  the  provisions
indicated in the Section. Ms. Shobha pointed out that the proceedings  under
Section 439 not being a suit, but a Petition,  the  provisions  of  Order  2
Rule 2 CPC would not be attracted since the bar indicated  therein  is  with
regard to suits. On the basis of  such  distinction,  Ms.  Shobha  submitted
that the learned Single Judge had  wrongly  interpreted  the  provisions  of
Order 2 Rule 2 CPC in holding that the  winding-up  petition  filed  by  the
Appellant for recovery of its arrear  rents/dues  was  not  maintainable  in
law.

9.    On the question of the findings of the  Division  Bench  that  in  the
absence of any finding regarding the rate of rent and  the  arrears  due,  a
procedure under Section 439 of the Companies Act was not  maintainable,  Ms.
Shobha urged that such an interpretation  was  erroneous  and  based  on  an
incorrect understanding of the provisions of Section 439  of  the  Companies
Act, 1956, in relation to Order 2 Rule 2 CPC.  Ms.  Shobha  reiterated  that
once it had been held by the Court that the Respondent-tenant had  defaulted
in payment of rent for a particular month, viz. June 1998,  it  was  only  a
matter of calculation and mathematics  to  ascertain  the  dues  which  were
payable by the Respondent-tenant to the Appellant-landlord.  The  relief  in
the winding-up petition being ascertainable, the Division Bench of the  High
Court erred in law in holding otherwise.

10.   Ms. Shobha further  submitted  that  recognizing  the  fact  that  the
Respondent-tenant was in default of payment  of  rent  since  the  month  of
June, 1998, the Division Bench had observed that the Appellant would  be  at
liberty to enforce his rights to the arrear rentals before  the  appropriate
forum.  In  other  words,  according  to  Ms.  Shobha,  the  Division  Bench
recognized the  right  of  the  Appellant  to  recover  its  dues  from  the
Respondent-tenant, though not  by  means  of  a  winding-up  petition  under
Section 439 of the Companies Act, 1956.

11.   On the other hand, Mr. Gaurav Mitra, learned Advocate,  appearing  for
the Respondent Company, reiterated the submissions which  had  found  favour
both with the learned Single Judge as also the Division Bench  of  the  High
Court.   It  was  reiterated  that  the  Appellant-landlord  ought  to  have
included all the reliefs in the eviction suit and having omitted to sue  for
the arrear rents, he was no longer entitled to claim the same on account  of
the bar imposed under Order 2 Rule 2 CPC.   Mr.  Mitra  also  supported  the
view expressed by the Division Bench  of  the  High  Court  holding  that  a
winding-up  proceeding  was  not  a  proper  remedy  for  the  recovery   of
undetermined  dues,  particularly  when  so  many  different  criteria  were
involved in ascertaining the amount due and/or payable  by  the  Respondent-
tenant to  the  Appellant-landlord.   Learned  counsel  submitted  that  the
judgment and order of the learned Single Judge and  the  Division  Bench  of
the Calcutta High Court did not require  any  interference  and  the  Appeal
was, therefore, liable to be dismissed.

12.   Having considered the submissions made on  behalf  of  the  respective
parties, we are inclined to accept Ms. Shobha’s submissions as  far  as  the
provisions of Order 2 Rule 2 CPC are concerned.  Order 2 CPC deals with  the
frame of suits and the various rules contained therein also refer  to  suits
for obtaining the  reliefs  of  a  civil  nature.   On  the  other  hand,  a
proceeding under Sections 433, 434 and 439 of the Companies  Act,  1956,  is
not a suit, but a Petition which does not attract the provisions of Order  2
Rule 2 CPC, which deals with suits. Ms. Shobha has submitted that  the  West
Bengal Premises Tenancy Act, 1956, does not make any provision for  recovery
of arrear rents and provision has only been made  under  the  provisions  of
Section 17 for deposit of the arrear rents which are admitted by the  tenant
at the time of entering appearance and filing Written Statement in the  suit
for eviction.  Provision has also been made for payment of such  arrears  in
instalments, but there is no provision for recovery of the arrear rents  for
which a separate suit has  to  be  filed,  as  has  been  indicated  by  the
Division Bench of the Calcutta High Court.

13.   Viewed in the context of what has  been  stated  hereinabove,  we  are
unable to accept the second limb of Ms.  Shobha’s  submissions.   There  are
various stages involved in deciding the amount  of  rents  payable  and  the
periods of default and also  the  amount  to  be  ultimately  calculated  on
account of such default and the same cannot  be  tried  in  a  summary  way,
without adducing proper evidence.  It is,  therefore,  necessary  that  such
issues be heard and tried in a properly constituted  suit  for  recovery  of
such dues, in which the issue relating to the actual  dues  payable  by  the
Respondent-tenant to the Appellant-landlord can be decided.

14.   We, therefore, set aside the findings of the learned Single Judge,  as
also the Division Bench, in regard to the application of the  provisions  of
Order 2 Rule 2 CPC to a winding-up proceeding under the Companies  Act  that
may be filed for recovery of the dues payable by  the  Respondent-tenant  to
the Appellant-landlord.  We are, however, ad idem with  the  Division  Bench
that the relief of the Appellant-landlord, if any, in this  case,  will  not
lie in a winding-up petition, but in a suit  filed  for  the  said  purpose,
particularly when the said relief is  not  available  under  the  rent  laws
which only deal with protection of tenants from eviction and  the  right  of
the landlords to recover the tenanted  premises  on  the  grounds  specified
therein.

15.   The Appeal is, therefore, allowed in part to the aforesaid extent.

16.   Having regard to the facts of the case, the parties shall  bear  their
own costs throughout.




                                                     ………………………………………………………J.
                                     (ALTAMAS KABIR)





                                                     ………………………………………………………J.
                                     (J. CHELAMESWAR)
New Delhi
Dated:16.8.2012

-----------------------
14

Hindu Succession Act, 1956 - s. 14 - Rights of female Hindu under - Held: Any property of a female Hindu is her absolute property - She has full ownership over any property that she has acquired on her own or as stridhana - She may dispose of the same as per her wish, and the same shall not be treated as a part of the joint Hindu family property - There is no presumption that of joint family property, and there must be some strong evidence in favour of the same - On facts, propositor after marriage lived in the paternal house of his wife (`P') - `P' was gifted a property by her father by a gift deed at the time of marriage, and continued to be in possession and purchased more properties from the income of the land gifted to her - Propositor except having some income from tenanted land had no personal income nor agricultural income which he could utilize for purchase of any property - Suit for partition by son of `P' alleging that the entire property was a joint family property - Trial court rightly held that lands other than the tenanted portion as occupied by propositor, were the absolute self acquired properties of `P' which she had purchased/acquired from the income and funds from the lands gifted by `P', whereas the order of the High Court that the properties to the suit were joint family properties and the parties to the suit were entitled for 1/3rd share in those properties, set aside. `S' and `P' got married in 1924 and at the time of the marriage, the father of `P' gifted her land A7 under a Gift Deed. `S' after his marriage, continued to reside in his in-laws house and during his life time, he had no other source of income except from the tenanted lands. `P' purchased certain lands A(4)-A(6) under a Sale Deed from the income of the land gifted to her by her father. Thereafter, with the income from the said two lands, `P' purchased another land A(8)-(12). `S' died in the year 1951 leaving behind four sons and one daughter-`M' (appellant-defendant), `N' (respondent-plaintiff), `B' (deceased); and `SN' and `C' (pre-deceased). In her life time `P' relinquished her share in land A(4)-A(6) in favour of the appellant. Thereafter, subsequent to an oral partition, she gave one part of the property A(8)-A(12) to the respondent and other to legal heirs of `B'. In 1984, `P' executed a will of `Stridhana' land to her daughter, `SN'. Thereafter `P' died. The respondents filed a suit for partition seeking separate possession of 1/3rd share each alleging that the entire property is the joint family property and not the personal property of `P'. The trial court held that except tenanted portion the said properties were self acquired properties of `P'. The High Court held that the properties described in the suit are joint family properties and the parties to the suit are entitled for 1/3rd share in those properties. Therefore, the appellant filed the instant appeal. Allowing the appeal, the Court HELD: 1. Section 14 of the Hindu Succession Act, 1956 clearly mandates that any property of a female Hindu is her absolute property and she, therefore, has full ownership. The Explanation to sub-section (1) further clarifies that a Hindu woman has full ownership over any property that she has acquired on her own or as stridhana. As a consequence, she may dispose of the same as per her wish, and that the same shall not be treated as a part of the joint Hindu family property. There is no presumption that of joint family property, and there must be some strong evidence in favour of the same. [Paras 21 and 22] [451-E-G] Appasaheb Chamdgade v. Devendra Chamdgade and Ors. (2007) 1 SCC 521 - referred to. 2.1 The High Court did not accept the findings and conclusion reached by the trial court. The High Court wrongly shifted the burden of proving that the said lands were a part of the self acquired property of `P' and not a part of the joint family property of the appellants-defendents, when there was no affirmative proof of anything contrary. The High Court erred in shifting the burden of proof on the appellants, especially when there was nothing on record either by way of oral or documentary evidence produced by the respondents-plaintiffs before the trial court. [Para 13] [446-F-H] 2.2 Suit Land A(7) was `stridhana' property of `P'. This property was gifted to her by her father under a registered Gift Deed in 1924. She was the owner of the said land. She continued to be in possession of the said land till she bequeathed the same in favour of defendant No.5 under a Will dated 30.06.1984. On the death of `P' and on the basis of the said Will, the legatee-defendant No.5 claims she became owner of the said land which was noted in the Revenue Records. The Will and the Revenue entries made were questioned by the plaintiffs and successfully proved that the said Will was not executed by `P'. Therefore, defendant No.5 cannot claim title over A(7) under the Will and this property cannot be brought into the hotchpotch of the joint family property and would not be available for partition. Stridhana belonging to a woman is a property of which she is the absolute owner and which she may dispose of at her pleasure, if not in all cases during coverture, in all cases during widowhood. Since the plaintiffs proved that `P' had not alienated the property by executing a Will in favour of defendant No. 5 during her lifetime, the property is the absolute property of `P' and would not be available for partition among the members of joint family since it does not partake the character of joint family property. [Para 18] [448-E-H; 449-A-B] 2.3 As regards the Suit Schedule properties Item No.A(4) to A(6), it is the case of the plaintiffs that the said properties were purchased by `S', father of the plaintiffs and the defendants under a Sale Deed dated 05.10.1944, but, in the name of his wife `P' from and out of the income of the tenancy lands A(1) to A(3) for the purpose of the joint family for which he was also the Karta of the family. However, it is the case of the contesting defendants that the said property is the self acquired property of `P' from and out of her income derived from the property gifted to her by her father in the year 1924; that `S' was the tenant of the property A(1) to A(3) only from the year 1947 and, therefore, plaintiffs cannot claim that from out of the income of the property A(1) to A(3), lands in item A(4) to A(7) were purchased. It has come in evidence of the contesting defendants that propositor `S' was the tenant of the lands A(1) to A(3) only from the year 1947. The same was not disputed by the plaintiffs by leading any other cogent evidence to prove that `S' was the tenant of the lands A(1) to A(3) even prior to 1944, the date of the Sale Deed. In the absence of any evidence, much less cogent and reliable evidence, it is difficult to accept the version of the plaintiffs that the suit schedule A(4) to A(6) should be put into common hotch potch and partitioned by meters and bounds. [Para 19] [449-C-G] 2.4 As regards the lands at Item A(8) to A(12), it is the case of the plaintiffs that on the death of propositor `S', joint family continued and during its continuance, agricultural lands which is now sub-divided as items A(8) to A(12) came to be purchased out of the joint family funds, but, in the name of `P', since she was eldest member of the joint family at the relevant point of time. The oral evidence was led in support of the assertion made in the plaint. The plaintiffs did not produce any other evidence in support of the claim so made. The defence pleaded by the defendants, apart from others, is that `P' had her independent source of income from A(7) lands. She, with the aid of the said income, acquired not only A(4) to A(6) but also A(8) to A(12) lands and the tenancy lands was held by joint family. It is also contended by them that propositor `S', after marrying `P', lived in the paternal house of his wife `P', which fact is not denied by the plaintiffs, and `S' had no personal income nor agricultural income which he could utilize for purchase of any property, much less A(8) to A(12) properties. The trial court, after considering the entire evidence on record came to the conclusion that lands A(8) to A(12) is the absolute self acquired properties of `P'. The findings and the conclusion so arrived is based on the proper appreciation of the evidence on record and the respondents did not bring anything contrary to make a different view. Therefore, lands A(8) to A(12) of the suit Schedule is not the joint family property but the absolute property of `P', which she purchased/acquired from the income and funds from the lands A(7) and A(4) to A(8). [Para 23] [452-C-H; 453-A-B] 3. The reasoning given by the High Court cannot be accepted. Thus, the reasoning and conclusion reached by the trial court is concurred with. Thus, the judgment and order passed by the High Court is set aside and that of the trial court is restored. [Paras 24 and 25] [453-C-D] Case Law Reference: (2007) 1 SCC 521 Referred to Para 22 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3495 of 2001. From the Judgment and Order dated 30.03.1999 of the High Court of Karnataka in RFA no. 385 of 1993. Rajesh Mahale and Giri K., for the Appellants. Gireesh Kumar (for Khwairakpam Nobin Singh), M.A. Chinnasamy and Ankur S. Kulkarni for the Respondents.

                                                                       REPORTABLE


                  IN THE SUPREME COURT OF INDIA


                   CIVIL APPELLATE JURISDICTION


                      CIVIL APPEAL NO. 3495 OF 2001





Marabasappa (D) by LRs. & Ors.                                    .............. Appellants




                                           versus




Ningappa (D) by LRs. & Ors.                                       ..............Respondents




                                  J U D G M E N T




H.L. DATTU, J.




1.           This appeal is directed against the Judgment and Order of the


      High   Court   of   Karnataka   at   Bangalore,   dated   30th  March   1999   in


      R.F.A. No. 385 of 1993, R.F.A. No. 258 (sic.) of 1994 and R.F.A. No.


      775 of 1995 (sic.), wherein the High Court has modified the Decree of


      the   Trial   Court   and   has   held   that   the   properties   described   in   `A'


      Schedule to the suit are joint family properties and the parties to the


      suit   are   entitled   for   1/3rd  share   in   those   properties.     The   other


      observations and directions of the Court is not relevant for the purpose


      of this appeal.  




                                                                                          1


2.            The question that is contested by the parties and has fallen for


      our consideration is whether the properties in dispute are the personal


      acquisitions of Parwatevva, or, as held by the High Court, a part of the


      joint family property.




3.            The factual matrix in brief is as follows:-




              Siddappa and Parwatevva got married in 1924 and at the time


      of   the   marriage,   the   father   of   Parwatevva   gifted   her   land   in   Survey


      No.   R.S.   No.   271/1   measuring   8   Acres   16   Guntas   under   registered


      Gift Deed dated 30th April 1924 ["A7"].  Siddappa, after his marriage,


      continued   to   reside   in   his   in-laws   house.     During   his   life   time,


      Siddappa   had   no   other   source   of   income   except   from   the   tenanted


      lands   which   was   only   a   small   extent   and   was   totally   dry   lands.


      Parwatevva   purchased   lands   in   R.S.   No.   91   measuring   19   Acres   13


      Guntas under a registered Sale Deed from the income of the land that


      was   gifted   to   her   by   her   father   on   5th  October,   1944   [A(4)   -   A(6)].


      Thereafter,   on   2nd  June,   1951,   with   the   income   from   the   above   two


      lands,   Parwatevva   purchased   another   land   being   R.S.   No.   143


      measuring   28   Acres   23   Guntas   [A(8)-A(12)].     Siddappa   died   in   the


      year   1951.     The   couple   had   four   sons   and   one   daughter   -


      Marabasappa   (appellant-defendant),   Ningappa   (respondent-plaintiff),




                                                                                               2


      Bhimappa   (deceased   -   legal   heirs   are   on   record),   Sangawwa   and


      Channappa (pre-deceased without any heirs).




4.           In her life time  Parwatevva  relinquished  her  share in R.S. No.


      91   in   favour   of   the   present   appellant   (Marabasappa).   Thereafter,


      subsequent to an oral partition, she gave one part of the other property


      bearing   R.S.   No.   143/1   and   R.S.   No.   143/2   to   the   respondent


      (Ningappa)   and   the   heirs   of   Bhimappa   respectively.   In   June   1984,


      Parwatevva   executed   a   will   of   `stridhana'   land   to   her   daughter,


      Sangawwa.     Parwatevva   died   on   08.07.1984.   The   present   dispute   is


      between her children and their heirs.




5.           The respondents-plaintiffs filed a suit bearing O.S. No. 40/1990


      before the Court of the Civil Judge, Gadag [hereinafter referred to as


      "the   Trial   Court"],  inter   alia  alleging   that   the   entire   property


      mentioned above is the joint family property and the same was not the


      personal property of Parwatevva, and hence, a prayer for partition and


      separate possession of 1/3rd share was made in respect of Schedule `A'


      to   `C'   properties.     Schedule   `A'   properties   consist   of   agricultural


      lands, Schedule `B' properties consist of houses and open places and


      Schedule `C' properties consist of movables of all the properties held


      by   the   defendants-appellants   except   the   plaintiffs'   properties.     The




                                                                                       3


       Trial Court negatived this contention of the respondents-plaintiffs on


       the basis of the oral and documentary evidence and found, inter alia,


       that the said properties  were self acquired properties  of Parwatevva,


       accordingly,   has   partly   decreed   the   suit   in   favour   of   the   plaintiffs-


       respondents.  




 6.            Being aggrieved, the parties to the suit preferred Regular First


       Appeals.  The High Court, by the impugned Judgment and Order, set


       aside   the   Judgment   of   the   Trial   Court   and   took   the   view   that   apart


       from the stridhana land, the rest of the property was a part of the joint


       family   property   purchased   from   the   income   and   funds   of   the   joint


       family property and, therefore, the decree, as sought by the plaintiffs,


       requires   to   be   granted.     Against   this   finding   and   the   conclusion


       reached by the High Court, the appellants-defendants are before us.




7.             Shri. Rajesh Mahale, learned counsel, appears for the appellants


       and   Shri.   Gireesh   Kumar,   learned   counsel,   appears   for   the


       respondents.




8.             The original appellants and respondents have all died during the


       pendency   of   the   Suit   and   the   Regular   First   Appeal   and   their   legal


       representatives   have   been   brought   on   record   with   the   permission   of





                                                                                              4


       the Court.  Since, it is a family dispute between the brothers and their


       heirs, it was suggested to the parties through their learned counsel that


       the  course  of  mediation  be  adopted  to settle  the  dispute.  This  Court


       [G.S. Singhvi and A.K. Ganguly, JJ.] passed the following order on


       the 9th of December, 2010:




                    "During   the   midst   of   arguments,   learned

                    counsel   for   the   parties   agreed   that   their

                    clients   may   be   given   an   opportunity   to   make

                    an attempt to amicably settle their dispute by

                    negotiations.


                    In view of the statement made by the learned

                    counsel,  we direct both the parties to appear

                    before the Mediation Centre, Karnataka High

                    Court,   Principal   Bench   at   Bangalore,   on

                    17.01.2011.


                    The   Incharge,   Mediation   Centre,   Karnataka

                    High   Court,   Principal   Bench,   Bangalore,

                    shall   send   a   report   to   this   Court   within   next

                    four weeks.


                    List the case in the first week of March 2011."





9.            The learned counsel for the parties has reported to us that there


       is no settlement reached between the parties.




10.           Shri.   Mahale,   learned   counsel,   submitted   that   the   Trial   Court,


       after appreciating the evidence on record, had reached the conclusion


       that   the   properties   in   question   are   the   self   acquired   properties   of




                                                                                           5


       Parwatevva. It is submitted that the High Court, while considering the


       evidence on record and the conclusion reached by the Trial Court, has


       erroneously  come to the conclusion  that the property in dispute  is a


       joint family property and therefore, the findings of the High Court are


       perverse  and  further,  the  High Court has   committed  serious  error  in


       law   in  holding   that  the   disputed   property   is  a   joint   family   property.


       Shri.   Gireesh   Kumar,   learned   counsel   for   the   respondents,   has


       supported the findings of the High Court.




11.            The sum and substance of the allegations in the suit are that out


       of the tenanted land, 2 Acres, 10 Guntas, late Siddappa acquired all


       the other properties including the land in R.S No. 271/1 and R.S. No.


       91   and   R.S.   No.   143.     Therefore,   all   the   properties   are   joint   family


       properties, though they stand in the name of Parwatevva.    The Trial


       Court   has   relied   upon   the   registered   Gift   Deed   [Ex.   D.60]   and   has


       come to the conclusion that the property marked A7 was the stridhana


       property of Parwatevva, and by virtue of Section 14(1) of the Hindu


       Succession   Act,   1955   read   with   the   Explanation,   was   the   absolute


       property of Parwatevva and could not be blended in the joint family


       property.  The  Trial  Court, while  considering  the  nature  of  the  lands


       A(4)   to   A(6),   has   taken   into   consideration   the   certified   copy   of   the





                                                                                               6


       sale   deed   in   respect   of   that   land   [Ex.D.8],   and   has   come   to   the


       conclusion   that   there   is   no   evidence   adduced   by   the   respondents-


       plaintiffs   to   deny   the   fact   that   the   lands   A(4)   to   A(6)   were   not


       purchased   from   the   independent   income   of   the   Parwatevva,   and


       hence, negatived the contention of the respondents-plaintiffs that the


       lands   were   joint   family   property,   and   has   also   held   that   these   lands


       were   purchased   by   Parwatevva   from   the   income   derived   from   the


       stridhana lands, i.e., A7.  With regard to the lands A(8) to A(12), the


       Trial Court, relying on the certified copy of the sale deeds of the said


       lands [Ex.D. 45], has again found that there was no proof that the said


       property was acquired out of the income of the joint family property


       as asserted by the respondents-plaintiffs, and concluded that the same


       was purchased from the income derived from the aforementioned two


       properties by Parwatevva.




12.            The   High   Court   has   found   fault   with   the   finding   of   the   Trial


       Court and has held:




                    "21.   Coming   to   the   properties   said   to   have   been

                    purchased   in   the   name   of   Parvatewwa   under   the

                    registered   sale   deed   dated   5-10-1944,   twenty   years

                    after the Gift deed, the learned Judge find that R.S.

                    No.   91   which   lands   in  A(4)  to   A(6)  was  purchased

                    under   Ex.D.   8.   Now   the   reasoning   given   by   the

                    learned   Judge   that   if   Siddappa   is   the   protected




                                                                                              7


tenant of the said land, there is no reason for him to

purchase   the   said   land   under   Ex.D.   8   cannot   be

appreciated.   In   any   event,   whenever   a   mother   is

there and the properties are purchased in the name

of   the   mother,   the   presumption   is   that   it   is   for   the

benefit   of   the   family.   It   is   nobody's   case   that   the

lands   purchased   is   for   the   intention   and   for   the

benefit   of   the   mother   alone   and   she   also   did   not

differentiate between her sons and daughters. This is

a   natural   and   human   aspect   which   has   not   been

considered   by   the   trail   court.   The   finding   that

Siddappa   do   no   continued   (sic.)   as   tenant   or

protected   tenant   of   all   the   lands   as   mentioned   in

Ex.P.   20   except   1   acre   20   guntas   of   land   in   R.S.

274/3   and   A(3)   land   in   R.S.   No.:9/3A   is   not

sustainable.   Why   should   valuable   tenancy   rights

given up and then the purchase made in the name of

the   mother   is   not   understandable   nor   it   is   not

explained;   probably   in   confirmation   of   tenancy

rights and make it clear that the properties does not

go out of the family.  The sale is taken in the name of

the  mother.  Therefore,  in  my  opinion,  the  purchase

made   by   the   mother   is   only   from   and   out   of   the

income from the family and there is no evidence to

show   that   she   had   any   independent   or   individual

income   from   the   gifted   property   to   purchase   these

properties. Therefore, irresistible inference shall be

drawn   that   the   property   purchased   in   the   name   of

the mother is for the benefit of all the members of the

family. Now no doubt the plaintiff came forward with

the   case   that   suit   lands   A(4)   to   A(6)   and   A(8)   to

A(12)   were   purchased   from   and   out   of   the   family

income and the income from the A(1) to A(3) lands.

But   once   it   is   seen   that   the   1st  defendant   was

managing   the   affairs   of   the   family   as   `karta',   the

burden   shifts   on   him   to   prove   that   the   properties

purchased was not for the benefit of the family, but

they were exclusively belong to the mother. In those

days   income   from   3   acres   30   guntas   cannot   be

considered as thin nucleus as has been wrongly held




                                                                              8


by   the   trial   court.   Having   held   that   applying   the

dictum   in   I.L.R.   1990   Kar   Pg-1182,   the   initial

burden lies upon the plaintiff. But once such burden

is   discharged   and   shifts   on   the   defendant,   the   trial

court   should   have   considered   that   whether   the

defendant   has   proved   that   the   purchase   was   made

from   any   other   source   of   income   excepting   the

income   from   A(1)   to   A(3).   In   the   absence   of   any

positive   evidence   spoken   to   by   D.W.   2   or   the

witnesses   examined   on  behalf   of  the   defendant   that

the mother was trying to save the property either for

herself   or   not   for   the   benefit   of   the   everybody,   the

irresistible   conclusion   is   that   the   mother   is   always

mother   and   the   properties   purchased   in   her   name

shall be the properties of the family. There is a clear

evidence adduced by the plaintiff that the suit lands

in A(1) to A(3) were the basis the income of which

was   utilized   for   acquisition   of   the   lands   in   A(4)   to

A(6) and A(8) to A(12) lands. But the trial court has

relied upon the gift  in question and left it not been

considered   on   erroneous   approach.   The   mere   fact

that the mother has the son and ip-so-facto that the

mother is cultivating the land when there admittedly

sons who is professional agriculturist and whether it

is   mother   alone   or   father   himself   cultivating   the

lands;   everybody   contri-butes   (sic.)   their   right   and

labour to cultivate the land. It is nobody's case that

Parwatevva   kept   her   income   separately   or   that

income   was   not   occrued   (sic.)   by   the   father

Siddappa. When it is found by the court below that

the plaintiff was only 16 years of age in 1944, and

defendant no. 1 was about 22 or 23 years of age, the

burden should have been shifted to 1st  defendant to

explain as to what really happened and what is the

necessity for purchase of the property in the name of

the   mother.   This   has   not   been   done.   Having   been

found   that   during   the   lifetime   of   Siddappa,

Parwatevva could not have being (sic.) the karta of

the   family.   That   defendant-1   alone   would   have

become `karta' of the family, the court below ought




                                                                            9


                    to have placed the burden on the defendant and the

                    defendant has not proved or discharged that burden

                    at all. The learned judge would embarked upon the

                    surmises and imagination regarding the income and

                    came   to   wrong   conclusion   that   the   family   did   not

                    have nucleus to acquire the properties mentioned in

                    `B' and `C' Schedule."





13.            As is clear from the above conclusion, the High Court has not


       accepted the findings and conclusion reached by the Trial Court.  The


       High Court has, in our opinion, wrongly shifted the burden of proving


       that   the   said   lands   were   a   part   of   the   self   acquired   property   of


       Parwatevva   and   not   a   part   of   the   joint   family   property   of   the


       appellants-defendants,   when   there   was   no   affirmative   proof   of


       anything contrary.   In our view, the High Court has erred in shifting


       the   burden   of   proof   on   the   appellants-defendants,   especially   when


       there   was   nothing   on   record   either   by   way   of   oral   or   documentary


       evidence produced by the respondents-plaintiffs before the trial court.




14.            The genealogical relation between the parties is not in dispute.


       Propositor Siddappa died in the year 1951 and he was survived by his


       wife Parwatevva, plaintiffs and defendants.  He was the tenant of the


       suit   lands   A(1)   to   A(3).     It   is   claimed   that   Siddappa   had   purchased


       lands in R.S. No.91 under a Registered Sale Deed dated 05.10.1944





                                                                                             10


       out of the joint family income and funds but in the name of his wife


       Parwatevva.    The  lands in R.S. No. 91 is further divided as A(4)  to


       A(6).  It is also claimed that lands in R.S. No.143 was purchased out


       of joint family funds in the name of Parwatevva.  These lands are sub-


       divided  as  Serial  Numbers  A(8)   to  A(12).   Lands  in R.S.  No.271/1,


       which was gifted to Parwatevva by her father, was claimed that it got


       blended and treated with the other joint family property.  Marbasappa,


       defendant No.1, being the eldest in the family had applied to the Land


       Tribunal for grant of occupancy rights of tenanted lands A(1) to A(3)


       and   the   same   has   been   granted   in   his   name   and   conferment   of


       occupancy   rights   would   enure   to   the   benefit   of   the   joint   family.


       Plaintiffs   assert   that   the   Suit   Schedule   properties   are   joint   family


       properties   and,   therefore,   the   same   requires   to   be   partitioned


       according   to   their   shares   by   a   decree   of   partition   and   separate


       possession.     The   claim   of   the   plaintiffs   is   denied   by   the   contesting


       defendants.     Parties   have   led   in   copious   oral   and   documentary


       evidence.




15.            At   present,   we   are   mainly   concerned   with   `A'   Schedule


       properties.     The   parties   to   the   appeal   have   no   grievance   so   far   as





                                                                                            11


       decree   passed   in   respect   of   `B'   and   `C'   Schedule   properties   are


       concerned.      




16.            In   so   far   as   lands   shown   as   A(1)   to   A(3)   are   concerned,   it   is


       claimed by the plaintiffs that the propositor Siddappa was a tenant of


       the   lands   and   continued   as   such   till   his   death   in   the   year   1951.


       Thereafter, the HUF continued to be the tenants of the lands and the


       defendant No.1, being the head of the family, had applied for grant of


       occupancy   rights   in   respect   of   those   tenanted   lands   and   the   Land


       Tribunal had granted occupancy rights in his favour.  On the death of


       Siddappa, the tenancy lands A(1) to A(3) were mutated in the name of


       his   sons.     It   is   claimed   that   the   occupancy   rights   so   granted   would


       enure to the benefit of the whole joint family.  Therefore, it is a joint


       family property and requires to be partitioned among the members of


       the joint family.   The defendants have denied that the lands A(1) to


       A(3) are the joint family tenancy lands.




17.            After   perusing   the   records   and   the   order   passed   by   the   Land


       Tribunal, Gadag, it appears to us that defendant No. 1 had applied to


       the Land Tribunal for grant of occupancy rights in respect of land in


       Survey No. R.S. No. 9/3A and R. S. No. 274/3 measuring an extent of


       2 Acres and 10 Guntas and 1 Acre and 20 Guntas respectively.  Land




                                                                                                  12


       Tribunal   had   granted   occupancy   rights   in   favour   of   the   applicant-


       defendant No. 1 in respect of the said two lands.  Shri Mahale, learned


       counsel for the appellants, does not contend contrary to the findings


       and   conclusion   reached   by   the   Trial   Court.     He   admits   that   though


       occupancy rights are granted  by the Land Tribunal in the individual


       name of the appellant-defendant No.1, the said occupancy rights enure


       to the benefit of all the members of the Joint family.  




18.           Suit Land A(7) bearing R.S. No.271/1 was `stridhana' property


       of Parwatevva.  This property was gifted to her by her father under a


       registered Gift Deed dated 30th April, 1924.  She was the owner of the


       said land.   She continued to be in possession of the said land till she


       bequeathed the same in favour of defendant No.5 under a will dated


       30.06.1984.  On the death of Parwatevva and on the basis of the said


       Will, the legatee-defendant No.5 claims she has become owner of the


       said land. The same has been noted in the Revenue Records.  The Will


       and the Revenue entries made are questioned by the plaintiffs and has


       successfully   proved   that   the   said   Will   was   not   executed   by


       Parwatevva.   Therefore, defendant No.5 cannot claim title over A(7)


       under a Will Ex. D-51.  Accordingly, this property cannot be brought


       into   the   hotchpotch   of   the   joint   family   property   and   would   not   be





                                                                                          13


       available for partition.   Stridhana belonging to a woman is a property


       of which she is the absolute owner and which she may dispose of at


       her pleasure,  if not in all cases during  coverture, in all cases during


       widowhood.  Since the plaintiffs have proved that Parwatevva had not


       alienated   the   property   by   executing   a   Will   in   favour   of   defendant


       No.   5   during   her   lifetime,   the   property   is   the   absolute   property   of


       Parvatevva   and   would   not   be   available   for   partition   among   the


       members of joint family since it does not partake the character of joint


       family property.    




19.            Now coming to Suit Schedule properties Item No.A(4) to A(6),


       it is the case of the plaintiffs that the said properties were purchased


       by Siddappa, father of the plaintiffs and the defendants under a Sale


       Deed dated 05.10.1944, but, in the name of his wife Parwatevva from


       and   out   of   the   income   of   the   tenancy   lands   A(1)   to   A(3)   for   the


       purpose   of   the   joint   family   for   which   he   was   also   the   Karta   of   the


       family.   However, it is the case of the contesting defendants that the


       said property is the self acquired property of Parwatevva from and out


       of her income derived from the property gifted to her by her father in


       the year 1924. The defence that is also put up by the defendants is that


       Siddappa was the tenant of the property A(1) to A(3) only from the





                                                                                               14


       year 1947 and, therefore, plaintiffs cannot claim that from out of the


       income of the property A(1) to A(3), lands in item A(4) to A(7) were


       purchased.   It has come in evidence of the contesting defendants that


       propositor   Siddappa   was   the   tenant   of   the   lands   A(1)   to   A(3)   only


       from   the   year   1947.     The   same   is   not   disputed   by   the   plaintiffs   by


       leading   any   other   cogent   evidence   to   prove   that   Siddappa   was   the


       tenant of the lands  A(1)  to A(3) even prior  to 1944, the  date of the


       Sale   Deed.     In   the   absence   of   any   evidence,   much   less   cogent   and


       reliable evidence, it is difficult to accept the version of the plaintiffs


       that the suit schedule A(4) to A(6) should be put into common hotch


       potch and partitioned by meters and bounds.




20.            We may also notice the observations made by the Trial Court,


       which we also agree, in the course of its judgement.




                   "61.     Now   let   us   firstly   take   up   A(4)   to   A(6)  lands.

                   Ex.D.8   is   the   certified     copy   of   the   sale   deed   in

                   respect   of   said   land,   dated   05-10-1944.     It   is

                   necessary   to   emphasize   that   according   to   the

                   plaintiffs,   Shiddappa   was   protected   tenant   of   the

                   lands   mentioned   therein   as   per   Ex.P.20,   which

                   pertains to 1947.  They have obviously, not produced

                   any  records,   such   as   R.O.Rs.   or   mutation   entries   to

                   show   that   Shiddappa   was   the   tenant   of   those   11

                   lands, mentioned in Ex.P.20 even prior to 1947.  It is

                   essential   because,   we   are   assessing   the   productivity

                   of   nucleus   as   on   the   date   of   Ex.D.8.     Ex.D.8   is

                   admittedly of 1944.   Since no document is produced




                                                                                                 15


by   plaintiffs   to   show   that   Shiddappa   was  the   tenant

even prior to 1947 of the lands referred to in Ex.P.20,

it cannot be said that he had no `independent source

of   income   at   the   relevant   time   of   1944   (Ex.D.8).

Evidence on record justified that at the relevant time

of   Ex.D.8,   Parvatewwa   was   already   owner   and

possessor of A(7) land, extent of which is 8 acres 16

guntas.  Excepting this land, the family of the parents

of plaintiff No.1, defendant No.1 and Bheemappa, is

not  shown  to  have  had  any  other   source  of  income.

Hence,   it   follows   that   the   land   in   Ex.D.8   could   not

have   been   acauired   at   all   by   Shiddappa,   out   of   his

income,   since   he   is   not   shown   to   have   had   any

income at all.  It is too much to say that the income of

the lands at A(1) to A(3) was the source of income for

acquisition of the lands A(4) to A(6) (Ex.D.8).   This

argument pre-supposes that Shiddappa was a tenant

of   A(1)   to   A(3)   lands   even   prior   to   1944   (Ex.D.8).

Absolutely there is no evidence.   Hence, it cannot be

said   that   Shiddappa   had   purchased   A(4)   to   A(6)

lands, which is land in Ex.D.8, out of the income of

the joint family.  Indeed, he was living in the house of

his parents-in-law  with Parvatewwa  and Ex.D.60  of

1924 shows that he had no financial strength.  Hence,

I  am  of   the  definite   opinion  that   the  land   in  Ex.D.8

must have had been acquired by Parvatewwa out of

the income she had derived from A(7) land.  It cannot

be said and it is not acceptable that Shiddappa had

purchased the land mentioned in Ex.D.8 in the name

of his wife Parvatewwa.   I make it clear that it was

purchased by her only out of her income derived from

A(7) land.


Plaint  shows  that  plaintiff   No.1  and  defendant  No.1

were of 62 and 70 years respectively on the date of





                                                                           16


                     suit.     It   shows   that   in   1944,   the   year   of   Ex.D.8,

                     plaintiff   No.1   was   about   16   years   of   age,   and

                     defendant No.1 was about 22 or 23 years of age.   I

                     am   emphasizing   these   facts   to   show   that   neither   of

                     them   had   independent   source   of   income.     It   must

                     mean that Parvatewwa was the absolute owner of the

                     suit lands A(4) to A(6) mentioned in Ex.D.8.   Hence,

                     it   cannot   be   said   as   joint   family   property.     Joint

                     family did not have at all, any nucleus to acquire the

                     land in Ex.D.8.  Hence, said finding is recorded."





       Therefore, the findings contrary to the above view by the High Court


       are erroneous and cannot be sustained.




21.            Section 14 of the Hindu Succession Act, 1956 clearly mandates


       that any property of a female Hindu is her absolute property and she,


       therefore,   has   full   ownership.   The   Explanation   to   sub-section   (1)


       further   clarifies   that   a   Hindu   woman   has   full   ownership   over   any


       property   that   she   has   acquired   on   her   own   or   as   stridhana.   As   a


       consequence, she may dispose of the same as per her wish, and that


       the   same   shall   not   be   treated   as   a   part   of   the   joint   Hindu   family


       property.




22.            This Court has time and again held that there is no presumption


       that of joint family property, and there must be some strong evidence


       in   favour   of   the   same.   In   the   case   of  Appasaheb   Chamdgade   v.





                                                                                               17


       Devendra Chamdgade and Ors., (2007) 1 SCC 521, after examining


       the decisions of this Court, it was held:




                    "17. Therefore, on survey aforesaid decisions,

                    what emerges is that there is no presumption

                    of a joint Hindu family but on the evidence if it

                    is   established   that   the   property   was   joint

                    Hindu   family   and   the   other   properties   were

                    acquired   out   of   that   nucleus,   if   the   initial

                    burden   is   discharged   by   the   person   who

                    claims   joint   Hindu   family,   then   the   burden

                    shifts  to  the  party   alleging   self-acquisition   to

                    establish   affirmatively   that   property   was

                    acquired   without   the   aid   of   the   joint   family

                    property by cogent and necessary evidence."





23.            Insofar as lands at Item A(8) to A(12) are concerned, it is the


       case  of  the  plaintiffs  that  on  the   death  of propositor   Siddappa,  joint


       family continued and during its continuance, agricultural lands in R.S.


       No.143, which is now sub-divided as items A(8) to A(12) came to be


       purchased   out   of   the   joint   family   funds,   but,   in   the   name   of


       Parwatevva,   since   she   was   eldest   member   of   the   joint   family   at   the


       relevant point of   time.   The oral evidence was led in support of the


       assertion   made   in   the   plaint.     The   plaintiffs   have   not   produced   any


       other evidence in support of the claim so made.  The defence pleaded


       by   the   defendants,   apart   from   others,   is   that   Parwatevva   had   her


       independent source of income from A(7) lands.   She, with the aid of




                                                                                           18


the said income, acquired not only A(4) to A(6) but also A(8) to A(12)


lands   and   the   tenancy   lands   was   held   by   joint   family.     It   is   also


contended   by   them   that   propositor   Siddappa,   after   marrying


Parwatevva, lived in the paternal house of his wife Parwatevva, which


fact   is   not   denied   by   the   plaintiffs,   and   Siddappa   had   no   personal


income nor agricultural income which he could utilize for purchase of


any property, much less A(8) to A(12) properties.    The Trial Court,


after   considering   the   entire   evidence   on   record   has   come   to   the


conclusion   that   lands   A(8)   to   A(12)   is   the   absolute   self   acquired


properties of Parwatevva .  The findings and the conclusion so arrived


is based on the proper appreciation of the evidence on record and the


respondents have not brought to our notice anything contrary to make


a different view.  Therefore, while agreeing with the findings and the


conclusion   reached   by   the   Trial   Court,   we   reject   the   contention


canvassed   by learned counsel for the respondents.   Therefore, lands


in R.S. No. 143, which is now sub-divided as A(8) to A(12) of the suit


Schedule is not the joint family property but the absolute property of


Parwatevva, which she has purchased/acquired  from the income and


funds   from   the   lands   A(7)   and   A(4)   to   A(8).     Accordingly,   `A'


Schedule   properties   requires   to   be   partitioned   among   the   family





                                                                                      19


        members in accordance with law.  




24.             In the light of above discussion, we are unable to accept with


        the reasoning given by the High Court. We are in agreement with the


        reasoning and conclusion reached by the Trial Court.




25.             In the result, the appeal is allowed and the Judgment and Order


        passed by the High Court in RFA No. 385 of 1993 dated 30.03.1999 is


        set   aside   and   Judgment   and   decree   passed   by   the   Trial   Court   in


        O.S.No. 40 of 1990 dated 15.07.1993 is restored.  Parties are directed


        to bear their own costs.




                                                                .............................J.

                                                                           [G.S. SINGHVI]





                                                                .............................J.

                                                                           [H.L. DATTU]


 New Delhi,

 September 08, 2011.





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Income Tax Act, 1961-s. 260A-Assessee purchasing land for Rs 4.10 lakhs-Notes on loose sheets recovered in the course of raid from assessee-Department on basis of statement of seller though contrary that sale was for a higher price and making assessment on basis thereof-CIT and Tribunal holding in favour of assessee-Appeal under s. 260A raising substantial questions of law pertaining to actual sale price of the property, implications of statements and counter statements made by seller, reliance on notes on loose sheets recovered-Dismissed by High Court-Interference with-Held: Order of High Court suffers from no infirmity-Questions so raised were all questions of fact and not substantial question of law. Judgment/Order-Writing of-Quoting from an order of some authority particularly a specialized one-Propriety of-Held: Cannot per-se be faulted as this procedure can often help in making for brevity and precision, but any 'borrowed words' used in a judgment must be acknowledged as a courtesy to the true author. Respondent-assessee purchased certain land. The sale deed showed Rs 4.10 lakhs as sale price. During search of certain premises, the Department found certain notes on loose sheets allegedly in the hands of the respondent and the respondent could not give any explanation for the same. The Department recorded the statement of the seller that he had received Rs 34.85 lakhs as sale consideration. Thereafter, seller gave a contradictory statement and then again reverted to the earlier statement. The Assessing Officer took Rs 34.85 lakhs as sale consideration for assessment and made an addition of Rs 3,75,005 as undisclosed income. Both the Commissioner of Income Tax and the Tribunal held in favour of assessee. Appellant-Revenue filed appeal under section 260A of the Income Tax Act 1961 raising substantial questions of law that whether the revenue was justified in fixing higher sale consideration amount than what was declared; that when the assessee did not give any explanation to the notings found and revenue was able to corroborate the same with the statement of seller for determination of actual sale value, whether the lower authority was justified in interfering; and when consistent sworn were taken into consideration along with evidence found at the time of search, would all be liable to be rejected on basis of one statement in between the contradicting the earlier ones. High Court dismissed the appeal on the basis that no substantial question of law arose for consideration. Hence the present appeal. Dismissing the appeal, the Court HELD: It is true that the Division Bench of the High Court has borrowed extensively from the orders of the Tribunal and the Commissioner and passed them off as if they were themselves the author's. Quoting from an order of some authority particularly a specialized one cannot per-se be faulted as this procedure can often help in making for brevity and precision, but any 'borrowed words' used in a judgment must be acknowledged as such in any appropriate manner as a courtesy to the true author(s). Even then, the questions raised can in no way be called substantial questions of law. The fact as to the actual sale price of the property, the implication of the contradictory statements made by vendor or whether reliance could be placed on the loose sheets recovered in the course of the raid are all questions of fact. Therefore, there is no infirmity in the order of the High Court. [Para 6] [953-B, C, D, E] G.E. Vahanvati, Solicitor General, Hrishikesh Baruah and B.V. Balaram Das for the Appellant. K. Swami, Yousa Lachenpa and Prabha Swami for the Respondent. , 2007(9 )SCR949 , 2007(10 )SCC487 , 2007(11 )SCALE110 , 2007(11 )JT290

CASE NO.:
Appeal (civil)  4262 of 2007

PETITIONER:
Commissioner of Income Tax,Salem

RESPONDENT:
P.V.Kalyanasundaram

DATE OF JUDGMENT: 14/09/2007

BENCH:
S.B.SINHA & HARJIT SINGH BEDI

JUDGMENT:
J U D G M E N T


CIVIL APPEAL NO 4262 / 2007
(arising out of SLP) No. 16462/2006)


HARJIT SINGH BEDI,J.

1. Leave granted.

2. This appeal by way of special leave is directed
against the judgment of the Division Bench of the Madras High
Court dated 08th February 2006 whereby the appeal filed by
the Revenue under section 260 A of the Income-tax Act 1961
(hereinafter called the "Act") against the order of the Income-
tax Tribunal allegedly raising questions of law has been
dismissed on the premise that no substantial question of law in
fact arose for consideration.  The facts leading to the appeal
are as under:-
3. The respondent-assessee vide a registered sale deed dated
26.10.1998 purchased certain land at Brindavan Road,
Fairlands, Salem for a sum of Rs.4.10 lakhs.  During a search
of the office and residential premises of Polimer Net Work,
certain notes on loose sheets allegedly in the hands of the
respondent were found and seized by the department.  In his
statement recorded on 8.12.1998, the assessee submitted that
he could not remember as to why the notings had been made.
The statement was further confirmed by another statement on
11.12.1998.  The department also recorded the statement of the
vendor Rajarathinam on 8.12.1998 which too was confirmed
on 11.12.1998 in which he admitted that he had in fact received
a total consideration of Rs. 34.35 lakhs and that the sum of Rs.
4.10 lakhs reflected in the sale deed had been received by him
by way of a demand draft and the balance in cash.
Rajarathinam however retracted from his statement on
8.1.1999 and filed an affidavit deposing that the sale price was
Rs.4.10 lakhs only and that his statements earlier given to the
authorities were incorrect.  In a subsequent statement
recorded on 20.11.2000 Rajarathinam again reverted to his
earlier portion and deposed that the sale price was Rs.34.85
lakhs.  The Assessing Officer concluded that the sale
consideration was actually Rs. 34.85 lakhs and not Rs.4.10
lakhs as had been recited in the sale deed.  He accordingly
adopted the aforesaid enhanced figure for the purpose of
assessment and made an addition of Rs.3.75.005/- as
undisclosed income for the broken period 1.4.1998 to
8.12.1998.  The matter was thereafter taken to the
Commissioner of Income-tax (Appeals), who after examining
the entire matter, observed that the statements given by
Rajarathinam could not be relied upon more particularly as
the floor price fixed by the authorities for such property was
much lower than the value which would result if the sale deed
had been registered at Rs.34.85 lakhs.  The Commissioner
accordingly deleted the addition made.  An appeal was
thereafter preferred by the Revenue against the order of the
Commissioner before the Income-tax Appellate Tribunal.  The
Tribunal in its order dated   6th July 2005 held that the notings
on the loose pieces of paper on the basis of which  the initial
suspicion  with regard to the under valuation had been raised
were vague and could not be relied upon  as it appeared that
the total area with respect to the sale deeds and that reflected
in the loose sheet was discrepant.  It was also observed that as
per the guidelines for registration the fair value for
registration on the relevant date was Rs.244/- to Rs.400/- per
s.ft. and the sale consideration for Rs.850/- per s.ft.  claimed by
the Revenue was unrealistic and ignored the ground situation.
It was further held that the tax of approximately Rs. 1.84,000/-
determined on the basis of the addition would not show that
the assessee had acquiesced in the addition made by the
department or that it was conclusive evidence  of the sale price
as the deposit had been made  in an obvious effort to save
himself from further harassment from the revenue and to
escape a much higher liability to the payment of tax on
undisclosed income should proceedings under section 158 BD
of the Act be initiated.  On these findings, the Tribunal
dismissed the appeal.  It is in these circumstances that an
appeal under section 260-A was filed in the High Court.
Before the High Court the following substantial questions of
law were raised:-
(a)Whether or not when the Returns and the 
Statements of the seller admit higher sale 
consideration actually received, the revenue is 
justified in fixing the sale consideration at the higher 
amount than what has been declared?
(b)When the assessee did not give any explanation to 
the notings found and at the same time the revenue 
is able to corroborate the same with the statement of 
the seller for the purpose of determination of actual 
sale value, would the lower authority be justified in 
interfering with the same?
  )When consistent sworn were taken into 
consideration along with evidences found at the time 
of search, would all be liable to be rejected on the 
basis of one statement in between contradicting the 
earlier ones which was also explained away as a 
result of intimidation?

4. The High Court relying heavily on the order of the
Commissioner and the Tribunal held that no substantial
questions of law had been raised and accordingly dismissed
the appeal.  It is this situation that the present matter is here
before us.
      5. Mr. G.N. Vahanvati, the learned Solicitor General
has at the very outset raised serious objection to the order of
the High Court pointing out that Division Bench had merely
plagiarized substantial portions from the order of the
Commissioner and Tribunal in arriving at its conclusion and
no independent assessment on the questions of law that arose
for consideration, had been made.  He also pointed out that
several questions of law pertaining to the implications of the
statements and the counter statements made by
Rajarathinam did arise in the case and the matter had not
been dealt with by the High Court in that perspective and it
was therefore appropriate that the matter be remitted for
fresh decision.  The learned counsel representing the assessee
respondent has however pointed out that the Commissioner
of Income-tax in particular, had after a very elaborate
discussion of the matter, concluded on a finding of fact with
regard to the nature of the transaction and this view had been
accepted by the Tribunal as well.  He has accordingly
submitted that no substantial questions of law have been
raised in this matter and the issues raised were purely
questions of fact.                                      
6. We have heard the learned counsel for the parties and
have gone through the record.  It is true that the Division
Bench of the High Court has borrowed extensively from the
orders of the Tribunal and the Commissioner and passed
them off as if they were themselves the author's.  We feel that
quoting from an order of some authority particularly a
specialized one cannot per-se be faulted as this procedure can
often help in making for brevity and precision, but we agree
with Mr. Vahanavati to the extent that any 'borrowed words'
used in a judgment must be acknowledged as such in any
appropriate manner as a courtesy to the true author(s).  Be
that as it may, we are of the opinion that the three questions
reproduced above can, in no way, be called substantial
questions of law.  The fact as to the actual sale price of the
property, the implication of the contradictory statements
made by Rajarathinam or whether reliance could be placed
on the loose sheets recovered in the course of the raid are all
questions of fact.   We therefore find no infirmity in the order
of the High Court.  Accordingly, we dismiss the appeal.