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.
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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),
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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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