published in http://judis.nic.in/supremecourt/helddis.aspx
NON REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 6714-6715 OF 2002
Y. Nagaraj ........Appellant
Versus
Smt. Jalajakshi and others .......Respondents
J U D G M E N T
G. S. Singhvi, J.
1. These appeals filed against judgment dated 22.2.1999 of the
learned Single Judge of the Karnataka High Court represent
culmination of the dispute among the heirs of Shri D. Yellappa,
who died intestate on 27.03.1978, in relation to his properties.
2. Appellant, Y. Nagaraj, is the son of the deceased and
respondent Nos.1 to 3 - Smt. Jalajakshi, Smt. Y. Susheela and
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Smt. Y. Nirmalakumari are his daughters.
They are governed by
Mitakshara School of Hindu Law as also the provisions of the
Hindu Succession Act, 1956 (for short, `the Act'),
for the sake of
convenience, they shall hereinafter be referred to with the same
description.
3. Respondent No. 1 filed O.S. No. 286 of 1979 (renumbered
as O.S. No. 4528 of 1980) impleading the appellant and
respondent Nos. 2 and 3 as defendants for partition of the
properties specified in Schedules `A' and `B' into four equal
shares by metes and bound and for allotment of one share to her
with absolute title and possession. She further prayed that the
appellant be directed to give account of the income of the suit
schedule properties with effect from 27.3.1978 and pay 1/4th
share to her. In the alternative, she prayed that an inquiry be
ordered under Order XXIX Rule 12 of the Code of Civil Procedure
(for short, `the CPC') for determination of mesne profits. The
schedules appended to the plaint are extracted below:
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" :Schedule `A':
(1) Vacant land bearing Kaneshumari No. 130, of
Dommasaacha Village, Surjapura Hobli, Anekal Taluk
bounded on the
East by : Nagi Reddy House
West by : Konda Reddy House
North by : Road
South by : Erappa's land
Measuring East West about 42' North-South about
45'.
:Schedule `B':
(1) S. No. 96/1, measuring 2 acres and 5 guntas
(2) S. No. 108/2, measuring 1 acre 28 guntas
(3) S. No. 79/2, measuring 3 acres 35 guntas
all these properties situated at Thigala,
Chowdadenahalli, Sarjapur Hobli, Anekla Tq,
Bangalore Distt.,
(4) S.No. 205, measuring 1 acre 22 guntas situated at
Dommasandra village, Anekla, Taluk.
(5) A house bearing D.No. 100, and new Nos. 100/1
and 100/2, measuring about 82' x 21' situated at
Susheela Road Doddamavalli, Bangalore.4
(6) Any other property standing in the name of late D.
Yellappa, or any of his family members.
(7) Jewels worth about Rs. 10,000/-
(8) Household utensils worth about Rs. 10,000/-
(9) Bank deposits."
(As extracted from the judgment of XVII Additional
City Civil Judge, Bangalore.)
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4. The claim of respondent No. 1 was founded on the following
assertions:
(a) That late Shri D. Yellappa, who retired as Revenue
Inspector from the Corporation of the City Bangalore,
was an affluent person and possessed some ancestral
properties (described in Schedule `A') and self-acquired
movable and immovable properties (described in
Schedule `B').
(b) That Shri D. Yellappa died intestate on 27.3.1978 and
being his Class II heirs, the parties are entitled to share
in his estate.
(c) That respondent Nos. 2 and 3 are unmarried and by
taking advantage of his position as the son of the
deceased, the appellant is wasting the property and
trying to alienate the same.
5. In the written statement filed by him, the appellant denied
that Shri D. Yellappa had only a bit of ancestral property.
He pleaded that the suit properties are joint family
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properties because the same had been acquired out of joint
family income and respondent No. 1 had erroneously
characterized the same as self-acquired properties of the
deceased.
The appellant further pleaded that his father had
sold some properties to one Papaiah;
that the agricultural
lands shown in the plaint schedule were subject matter of
the proceedings pending before Land Tribunal, Anekal for
grant of occupancy rights; that Item No. 3 of plaint
Schedule `B' had been purchased in his name vide sale deed
dated 29.4.1961 and he was absolute owner thereof and
that the jewellery, utensils, bank accounts, etc., mentioned
at Item Nos. 7 to 9 of Schedule `B' were not available for
partition because after the death of the mother, the
deceased had divided the same among three sisters. In
paragraph 6 of the written statement, the appellant averred
that Item No.5 of Schedule `B' properties is an ancestral
property and respondent No.1 has no right to claim any
share in it.
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6. Since the High Court has, while disposing of the appeals
filed by the appellant and respondent No. 2 relied upon
some of the averments contained in the written statement
and made observations adverse to the interest of the
appellant, it will be appropriate to notice the contents of
paragraphs 2, 4 and 6 of the written statement which are
extracted below:
"2. Late Sri. D. Yellappa had ancestral properties.
It is incorrect to say that he has only a bit of ancestral
property. He was getting a meagre salary, while he
was in service, but he was having sufficient income
from the joint family properties and out of the
income-from joint family properties he purchased
properties in his name as he was the head of the
family. It is absolutely false that items mentioned in
`A' Schedule are the ancestral properties and the
items mentioned in `B ' schedule are the separate
properties of the father of this defendant. The
plaintiff is put to strict proofs of the same. The
plaintiff with a view to claim larger share in the
properties has characterised the ancestral properties
as self acquired properties. The plaintiff in her
anxiety to claim a larger share in the properties has
included the items which are already sold by the
father of the defendant. Thus it is clear that the
plaintiff is not at all in joint possession of the
properties. The item mentioned in `A' schedule was
sold to one Papaiah by the father of the defendant
during his life time and put him in possession.
Inspite of it, the plaintiff has claimed this property
which is in possession of Sri Papaiah. Hence, the
said Papaiah is a necessary and a proper party. The
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suit is bad for non-joinder of proper parties and the
suit is liable to be dismissed.
4 . There is no self-acquired property of Sri
Yellappa, for the plaintiff to claim any share in the
property. The plaintiff is not entitled to any share in
the properties detailed in the schedule and further
the plaintiff has not brought the entire joint family
properties for the purpose of division, though she is
fully aware of the same. The pretentions ignorance
of the plaintiff is a make believe one and is
deliberately made to appear as such only to help the
plaintiff's uncle against whom the suit has been filed
for the recovery of this defendant's share in the
property. The plaintiff is actively supporting her
uncle in the said litigation in O.S.31/1979 on the file
of the M u n s i f f, A n e k a l . Thus the suit as brought is
not maintainable and liable to be dismissed in limine.
6. Item No.5 of the `B' Schedule properties is
an ancestral property. The plaintiff has no manner of
right, title or interest to claim any share therein."
7. Respondent Nos. 2 and 3 filed separate written statement.
They admitted the claim of respondent No. 1 qua the
properties specified in Schedules `A' and `B' except Item No.
5 of `B' Schedule, i.e., house No. 100 (new nos. 100/1 and
100/2). Respondent Nos. 2 and 3 pleaded that the house
was purchased by their father in the name of the mother by
registered sale deed dated 20.12.1943; that, subsequently,
the mother transferred the house to the father, who
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executed Will dated 28.3.1977 and bequeathed a portion of
the house to them but, later on, he cancelled the Will and
executed registered Settlement Deed dated 18.7.1977 in
their favour.
8. The trial Court took cognizance of the pleadings of the
parties and framed the following issues (the issues have
been extracted from the impugned judgment):
"1. Whether plaintiff proves that the `A'
schedule properties are the ancestral
properties and the `B' schedule property
were self acquired property of late D.
Yellappa?
2. Whether defendant nos.2 and 3 proves that they
are the absolute owners in possession and
enjoyment of a portion of item no.5 of schedule
`B' property by virtue of a registered settlement
deed dated 18.7.1977 executed by late D.
Yellappa?
3. Whether the defendants further prove that the
plaintiff is not entitled to claim a share in
items no.1 to 5 of the `B' schedule property as
contended in their written statement?
4. Whether defendants further prove that the jewels
in item no.7 of `B' schedule was divided in
between defendants 1 and 2 and after the
death of their mother as contended?
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5. Whether defendant no.1 proves that item no.8 in
`B' schedule was taken away by the plaintiff
and the utensils now in his possession belong
to him exclusively?
6. To what share is the plaintiff entitled to and in
what all properties?
7. Whether the plaintiff is entitled to the mesne
profits and if yes, at what rate?
8. What relief and what order?
9. Whether the defendants prove that the 3rd item of
`B' schedule is the self acquired property of
defendant no.1 as contended in para 6(b) of
the written statement?
10. Whether the defendants prove that item
nos.1,2 and 4 of `B' schedule property are the
subject matter of tenancy rights pending
before the Land Tribunal and that the plaintiff
cannot claim anything in them?"
9. In support of her claim, respondent No. 1 appeared as PW-1
and produced 13 documents, which were marked as Ex. P1
to P13. The appellant examined himself as DW-1 and
produced one document, which was marked as Ex. D1.
10. After considering the pleadings of the parties and evidence
produced by them, the trial Court partly decreed the suit.
The trial Court answered issue Nos. 1 and 7 in the negative
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and issue Nos. 2, 4, 5, 9 and 10 in the affirmative. It held
that Item Nos. 6 to 9 of Schedule `B' were not available for
partition and respondent No.1 has miserably failed to prove
her case qua those items. The trial Court further held that
Item No.3 of Schedule `B' is also not available for partition
because the same had been purchased in the name of the
appellant vide sale deed Ex. P6 and mistake in the
boundaries specified therein was rectified vide Ex. P7.
Issue No.3 was answered by the trial Court by declaring
that respondent No.1 will be entitled to 1/8th share in the
compensation in lieu of agricultural land which was subject
matter of the proceedings pending under the Land Reforms
Act. The relevant portions of the judgment of the trial Court
except those relating to Item Nos. 6 to 9 of Schedule `B'
about which no controversy survives between the parties
are extracted below:
"Though the plaintiff claims her 1/4th share in the
agricultural lands being Item Nos. 1 to 4 of schedule
`B' of the plaint, admittedly by the parties during the
course of evidence, item Nos. 1 & 2 are the ancestral
properties of this D. Yellappa and this D. Yellappa
has purchased item No. 4 by a registered sale deed as
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per Ex. P8 in the year 1966 and only because this D.
Yellappa purchased that land, it cannot be classified
as self-acquired property of Yellappa unless there is
material or evidence produced by the plaintiff to show
that he treated that property as self-acquired and
separate property and was never meant for enjoyment
of the joint family during his life time. Therefore,
when there is material to show that D. Yellappa had
some agricultural and being the ancestral property
measuring 4 5 acres in Anekal Taluk and in addition
to the same, he has retired in the year 1961 and got
some retirement benefits and similarly, he had
purchased some house properties in Bangalore and
sold them for the benefit of the family for a sum of Rs.
26,000/- or so as admitted by DW1 himself and
which is not disputed by the plaintiff, it can be safely
said that item No. 4 was purchased by D Yellappa,
out of the joint family funds and it was for the benefit
of the family and it cannot be self-acquired and
separate property of Yellappa. Similarly, he has
purchased item No. 5 being the house property
bearing Door No. 100 which is re-numbered as 100/1
and 100/2 in the name of his wife only in the year
1950 and the same was subsequently transferred in
the name of D. Yellappa and thereafter, he has
mortgaged the same by Ex. P13 and therefore, the
plaintiff cannot contend that the said property
belonged to her mother and therefore, she is entitled
to a share in the same. The recitals of the mortgage
deed in Ex. P13 go to show that D. Yellappa had
purchased that property in Bangalore in the name of
his wife and that fact is clinched by the fact that he
has subsequently treated the same as joint family
property and not as of his wife. With these
observations, I hold that it is a joint family property
and not self-acquired property of D. Yellappa and
about the settlement of the property in favour of
defendants 2 & 3, I will discuss later.
1
So far as the item No. 3 of `B' schedule property is
concerned, it can be seen that it was purchased in
the name of the first defendant by a sale deed Ex. P6
and there has been a rectification deed also regarding
some mistake in the boundaries etc., as per Ex. P7
and this land is also said to be the subject matter of
occupancy right before the Tribunal. But all the same,
there is no material to show that it is a joint family
property and the plaintiff has not produced any
material to show that as to whether her father
financed this first defendant to purchase this item no.
3 of schedule `B' nor is it the case of the plaintiff that
it was actually purchased by D. Yellappa in his own
name. As already pointed out, the land was
purchased by the first defendant somewhere in the
year 1961 and he got rectification deed in the year
1967 and therefore, in the absence of any evidence
produced by the plaintiff to show that it was
purchased out of the income of the ancestral
properties, it can be safely said that the first
defendant has treated that property as his self-
acquired property because, there was no joint family
as such after the death of his father. Because, the
first defendant is the only son and the other issues of
this D. Yellappa all are daughters and are married
and staying with their husbands. Therefore, this item
No. 3 will have to be treated as self-acquired property
of defendant No 1.
Admittedly item Nos. 1 and 2 of schedule `B' are
agricultural lands and were ancestral properties of D.
Yellappa and if at all the plaintiff or defendants Nos. 2
and 3 are entitled to any share in those 2 lands
(illegible) in the compensation to be awarded by the
land tribunal, under the Hindu Succession Act and
not under the General Hindu Law.
If these two lands are agricultural properties, the
plaintiff as well as the defendants 2 and 3 would get
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their share either in the compensation or by metes
and bounds only in = share of the deceased-father of
Yellappa because he has died somewhere in the year
1978 after coming into force of the Hindu Succession
Act. In that undecided = share of properties they
cannot claim 1/4th share as of right by birth. In the
notional partition it is only the coparceners under the
General Hindu Law who get a share each and the
ladies cannot be co-parceners of the Joint Hindu
Family and therefore in the notional partition, it is
this D. Yellappa and Nagaraj alone get half and this
1/ share of Yellappa goes to the plaintiff and
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defendants 2 and 3 under the Hindu Succession Act
as their mother had pre-deceased this Yellappa
having died in the year 1960. Thus, I hold that the
plaintiff cannot claim 1/4th share. But they can claim
only 1/8th share each in the entire item Nos. 1 and 2
either by metes and bounds or by way of
compensation if any by the land tribunal.
Though the plaintiff has claimed share in item No. 5
the residential house of Bangalore Town, on the
ground that it was her mother's property, her own
document Ex. P. 13 negatives her contention because,
as per the recitals, the finance has flowed from this
Yellappa himself though it was purchased in the
name of his wife. But it was subsequently transferred
in the name of joint family and he treated it as his
own property and mortgaged the same to some
person by Ex. P. 13 and subsequently gifted the
portions of those properties in favour of plaintiff
herself and also defendants 2 and 3 and defendants 2
and 3 so also the first defendant stayed in those
houses till they got married and therefore, at the most
it can be said that house No. 100/1 and 100/2 alone
are available for partition between the plaintiff and
defendants except the settled properties in favour of
the plaintiff and defendants 2 and 3. Thus, the
plaintiff cannot claim share in the portions that are
1
settled in favour of defendants 2 and 3 and there has
been a settlement deed by Yellappa himself between
defendants 2 and 3 by a registered deed dated
18.7.77 as this fact is admitted by PW1 as well as
DW1 though there is no evidence produced by the
plaintiff and therefore, I am persuaded to answer
issue No. 2 in the affirmative.
Now coming to `A' schedule property which according
to the plaintiff is ancestral property and is a grame
tana area and a residential house bearing
Khaneshumari No. 130 in Anekal Taluk. This PW1
during the course of cross-examination admits that
her father had gifted half of schedule property in
favour of his own brother-Veerappa and also admits
that her father might have sold remaining half
schedule property in favour of one Papaiah. But,
however, a suggestion is made that this first
defendant took possession of half of `A' schedule
property from Papaiah by filing suits. But the
plaintiff has not produced any judgment copy of such
suit nor is there any evidence produced to show that
this defendant-1 has taken possession of the half of
the `A' schedule property that was sold by D. Yellappa
himself during his life time.
So therefore, if that is the position, it cannot be said
that the plaintiff has proved the facts that `A'
schedule property is available for partition and also
that she is entitled for mesne profit also. There is no
material to show that `A' schedule is in the possession
of the first defendant and they cannot also contend
that the first defendant has got income from the
agricultural lands because, in view of the Land
Reforms Act, tenanted lands vest in Govt. with effect
from 1974 and when there is material to show that
the matter of occupancy rights in respect of
agricultural lands at item -1 to 4 of schedule `B' is
pending before the Land Tribunal, the plaintiff cannot
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seek accounting from the first defendant. But
however, the contentions of the defendant-1 in the
written statement that the plaintiff has not produced
the record of rights and index of lands etc., in respect
of agricultural land and that if partition is allowed,
the same would hit provisions of Prevention of
Fragmentation Act etc., are devoid of any merit and
thus, in view of my discussions, I am persuaded to
answer issue No. 1 in the negative."
11. The operative portion of the judgment passed by the trial
Court (as contained in the paper book of the special leave
petitions) is extracted below:
"The suit of the plaintiff is hereby partly decreed. The
suit of the plaintiff for partition and actual possession
in `A' schedule property and also for partition and
possession of item Nos. 1 to 9 of schedule `B' by
metes and bounds is hereby dismissed. It is hereby
declared that the plaintiff is entitled to 1/8th share in
the compensation to be paid by the Govt, in respect of
item Nos. 1, 2 and 4 and she is also entitled to 1/8 th
share in the un-sold portion of item No. 5 in as much
as there are entitlement deeds of vacant sites in
favour of plaintiff herself and also in favour of
defendants 2 and 3. The plaintiff shall get her share
partitioned by appointing a Commissioner in the Final
Decree Proceedings in item No. 5. Similarly, the suit
of the plaintiff for mesne profits is hereby dismissed.
But costs of the suit shall come out of the assets of
the joint family properties. It is hereby declared that
defendants 2 and 3 are also entitled to 1/8th share
like the plaintiff in all the properties that are available
for partition as discussed above. Draw a preliminary
decree accordingly."
1
12. During the pendency of the suit filed by respondent No. 1,
respondent No. 2 filed O.S. No. 2062 of 1981 for declaration
of title in respect of house bearing No. 100/2, Susheela
Road, Doddamavalli, Bangalore and possession thereof and
also for mesne profits. Respondent No.2 relied upon
registered Settlement Deed dated 18.7.1977, which is said
to have been executed by Shri D. Yellappa giving separate
portions to her and respondent No.3, and pleaded that she
was residing in the portion allotted to her and was paying
taxes etc. but the appellant was trying to interfere with her
possession.
13. The appellant contested the suit filed by respondent No. 2.
He pleaded that the suit property was joint family property
and the deceased had no right to execute settlement deed in
respect of the joint family property. He further pleaded that
the settlement deed was a fabricated document and the
same cannot be relied upon for declaring respondent No.2
as owner of the suit property. He also raised an objection of
1
limitation and pleaded that the suit filed by the respondent
No.2 was barred by time.
14. In the second suit, the trial Court framed nine issues and
one additional issue. The same (as contained in para 10 of
the impugned judgment) are extracted below:
"1. Whether the plaintiff proves that during
the suit schedule property was the self
acquired property of D. Yellappa?
2. Whether the plaintiff proves that during
the lifetime of D. Yellappa, D. Yellappa has
executed a registered settlement deed dated
18.7.1977 and registered Will dated 28.3.1977
in her favour pertaining to the suit schedule
property as alleged in the plaint?
3. Whether the plaintiff proves that the
defendant trespassed into the suit schedule
property and proves further that she is entitled
for possession as alleged?
4. Whether the plaintiff proves that she is
entitled for Rs.1,440/- and also for mesne
profits with costs thereon?
5. Whether the defendant proves that the
alleged Will is a got up one when Yellappa was
not in a fit condition to execute in favour of the
plaintiff?
6. Whether the defendant proves that the
suit schedule property is not self acquired
property of D. Yellappa?
1
7. Whether the defendant proves that he is
in possession of the property in his own right
and not as a trespasser?
7(a) Whether the defendant proves that the
suit is not maintainable in law?
8. To what relief the parties are entitled?
9. Whether the plaintiff is entitled for the
declaration claimed?
Additional Issues :
1. Whether the defendant proves that the
suit is barred by time as he had taken a plea
in O.S. No.151 of 1978 itself denying the title
of the plaintiff as alleged?"
15. Respondent No.2 examined herself as PW-1 and produced 8
documents marked Ex. P1 to P8. The appellant examined
himself as DW-1 and produced 16 documents marked Ex.
D1 to D16.
16. The trial Court answered issue Nos. 1 to 4, 7(a), 9 and
additional issue No.1 in the negative and issue Nos. 6 and 7
in the affirmative. As regards issue No.5, the trial Court
observed that the same does not survive for consideration.
1
In conclusion, the trial Court dismissed the suit by
observing that respondent No.2 has failed to prove that the
suit property was purchased in the name of the mother vide
Sale Deed dated 1.2.1950 and she had transferred the same
to her father. The trial Court also held that respondent
No.2 has failed to prove that the suit property was the self-
acquired property of her father and he had the right to
settle the same in her favour. The relevant portions of the
judgment rendered by the trial Court in O.S. No. 2062 of
1981 are extracted below:
"It is elicited in the cross examination of PW-1 that
the suit property was transferred by her mother to
her father but she does not know by what mode it
was transferred. She does not know when her mother
had purchased the property. There must be document
of title regarding the purchase made by her mother
and the plaintiff has denied ignorance about the mode
under which the property was transferred by her
mother to her father. The contents of Ex.P.l show that
the property was purchased by sale deed dated
1.2.1950. The said sale deed dated 1.2.1950. The said
sale deed has not been produced by the plaintiff and
therefore the plaintiff has failed to prove that it is
belong to her mother and her mother has transferred
the property to her father.
On the other hand, the evidence of the defendant and
the documentary evidence produced by him show
2
that the property was the joint family property as it
was purchased out of the amount received by
mortgaging the family properties to Salem Bank
under Ex.D-7. DW-l has stated in his evidence that
the suit schedule property was purchased out of the
joint family funds. The property was purchased in
the name of his mother during December 1943.
In December 1943 joint family property was
mortgaged to Salem Bank for purchasing the property
and he has produced Ex.D-7 the mortgage deed
and he has further stated that the said amount
obtained by mortgaging was repaid out of the
income derived from the suit house. Nothing has
been elicited in the cross-examination of DW.1 to
disbelieve his evidence that the suit property was
purchased out of the amount received by mortgaging
the joint family properties. Ex. D-7 shows that on
17.12.1943 D. Yellappa and his brother Erappa
mortgaged the properties for borrowing Rs.600/- for
the purpose of purchasing a house at Siddegowda
Lane, Lalbagh, Doddamavalli Bangalore City in the
name of the wife of D. Yellappa and the schedule to
the said mortgage deed reads as follows:
I. All the piece and parcel of land with
the dwelling houses and outhouses, wells, trees
and drains thereon built and planted and
situated together with all rights and easements
appertaining thereto now and hereafter enjoyed
and acquired bearing Municipal Door No. Old 8
and New No. 13. Chintala Venkatappa Lane,
Lalbagh, Doddamavalli, Bangalore City, bounded
on the North by Sarambigamma's house and
Chinnayya's backyard, South by Municipal
Road, East b y Ratnakka and her b r o t h e r
Anjariappa's house and open space and West by
land with public water t a p , measuring East to
West 3 5 1 /2 feet and North to South 1 2 ' x 1 2 '
and admeasurements 4 4 3 square feet. Chintala
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Venkatappa Lane is now called Siddegowda
Lane.
II. And house bearing Municipal Door No. 2
(Old) New No. 3 . Aliraju Munisumappa Road,
Thigalarpet, Bangalore City, bounded on North
b y Jaragana-halli Muniswamy's house and
Yellamma Temple, South by Lane and
Yengatappa Gowda's house and Rangamma's
house, East by Municipal Road and Muni
Siddappa's house and West by Waste land
belonging to choultry, measuring East to West
2 4 ' . 4 " , North to South 25 ' . 1 0 " b y
admeasurements 6 2 6 square feet and which are
at present in possession of the said mortgagors,
1. D. Yellappa and 2 . Erappa.
It is clear from the above said evidence of DW-1 and
Ex. D-7 which clearly corroborates his evidence
that the suit schedule property was purchased
out of the money obtained by mortgaging the joint
family properties. PW-1 has feigned ignorance as
to whether her father had any other source of
income except salary and as to whether the family
had any other joint family property at the time of
purchase of the suit schedule property. Therefore,
it is clear that plaintiff has failed to prove that the
suit schedule property was the self acquired property
of her father and that her father had right to settle
the property in favour of the plaintiff. On the
other hand, the above said evidence on record clearly
shows that the suit property was the joint family
property of D. Yellappa and the defendant.
I have already given a finding that plaintiff has
failed to prove that the suit schedule property
was the self acquired property of D. Yellappa and
defendant has proved that the suit schedule property
was the joint family property. Therefore, the
burden is upon the plaintiff to prove the execution
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of the Settlement Deed. PW-1 has stated in her
cross-examination that she does not know who were
the witnesses that have signed Ex. P.l as they were
acquaintance of her father. She does not know
who was the scribe of the Settlement Deed. It is
further elicited that she found some corrections in
the Settlement Deed but she does not know who
wrote it. The witnesses have not signed in her
presence and she does not know if her father
had intimated the defendant about the Settlement
Deed. The plaintiff has not signed the Settlement
Deed and the and the witnesses who have attested
the Settlement Deed have not been examined by the
plaintiff. The scribe who wrote the Settlement
Deed has also not been examined by the
plaintiff. There are some corrections in the
Settlement Deed and PW-1 has stated that she does
not know who had carried out the said corrections
and she does not know who wrote the contents of
the Settlement Deed as she has feigned ignorance as
to who was the scribe of the Settlement Deed. Even
the contents of the Settlement Deed have not been
proved and the evidence on record clearly proba-
bilities the version of the defendant that the Set-
tlement Deed has been concocted by the plaintiff.
It is mentioned in the Settlement Deed Ex. P.l that the
property was the self acquired property of D.
Yellappa. I have already held that suit property was
not the self-acquired property of D. Yellappa."
17. The appellant filed RFA No. 189 of 1990 and prayed for
setting aside the decree passed in O.S. No. 4528/1980
insofar as the trial Court upheld the claim of partition made
by respondent No.1 qua Item No.5 of Schedule `B'
2
properties. Respondent No. 2 also filed RFA No. 476 of 1991
and challenged the dismissal of the suit for declaration filed
by her.
18. Learned counsel for the appellant argued that the impugned
judgment is liable to be set aside because the learned Single
Judge of the High Court committed grave error by granting
substantive relief to respondent No.1 despite the fact that
she had not filed appeal or cross-objections to question the
findings recorded by the trial Court on various issues. She
further argued that the learned Single Judge committed an
error by passing a decree in favour of respondent No.2 on
the basis of Settlement Deed dated 18.7.1977 ignoring that
she had failed to prove that the suit property was self-
acquired property of the father and that in O.S. No. 4528 of
1980 the trial Court had ruled that Item No.5 of `B'
Schedule properties was joint family property.
19. Learned counsel for the respondents supported the
impugned judgment and argued that the High Court did not
commit any error by granting relief to respondent Nos. 1
2
and 2. She submitted that even though respondent No.1
had neither filed an appeal against the judgment and decree
passed by the trial court in O.S. No. 4528 of 1980 nor she
filed cross-objections in RFA No. 189 of 1990, the learned
Single Judge had rightly invoked the principle underlying
Order 41 Rule 33 CPC for the purpose of doing full justice
to the parties. She also defended the decree passed in
favour of respondent No.2 and argued that the learned
Single Judge did not commit any error by relying upon the
recital in the settlement deed for the purpose of recording a
finding that Item No.5 of Schedule `B' properties was self-
acquired property of the deceased.
20. Before adverting to the arguments of the learned counsel for
the parties and the reasons recorded by the learned Single
Judge, we consider it proper to take cognizance of some of
the additional documents filed by the counsel for the
respondents which include copy of the plaint in O.S. No.
286 of 1979 (renumbered as O.S. No.4528 of 1980), written
statement filed in that suit, the issues framed by the trial
2
Court, depositions of respondent No.1 and the appellant,
copy of Settlement Deed dated 18.7.1977, orders passed by
the Karnataka High Court in Writ Petition Nos. 11401 of
1981, 20067 of 1991 and 20068 of 1991 and order passed
by the Land Tribunal. These documents show that
respondent Nos. 1 to 3 had filed Writ Petition No. 11401 of
1981 for quashing order dated 9.6.1981 passed by the Land
Tribunal whereby occupancy rights were granted to N.
Bhadraiah in respect of land comprised in survey Nos.
79/2, 108/2 and 205. By an order dated 28.5.1985, the
Division Bench of the High Court allowed the writ petition,
quashed the order of the Land Tribunal and remitted the
matter for fresh disposal of the application filed by N.
Bhadraiah after giving opportunity to the parties. After
remand, the Land Tribunal passed order dated 29.10.1988
and again accepted Bhadraiah's claim for occupancy rights.
The second order of the Land Tribunal was challenged by
respondent Nos. 1 to 3 in Writ Petition Nos. 20067 and
20068 of 1991, which were allowed by the Division Bench of
the High Court on 20.1.1994 and the matter was again
2
remitted to the Land Tribunal for fresh consideration. Of
course, learned counsel for the parties did not inform the
Court whether the application filed by N. Bhadraiah for
grant of occupancy rights has been finally disposed of.
21. The learned Single Judge first considered the issue raised in
RFA No.476 of 1991, i.e., whether Settlement Deed dated
18.7.1977 executed by Shri D. Yellappa was valid. He
referred to a portion of the settlement deed in which the
executant has mentioned that the house property is a self-
acquired property purchased by him on 01.02.1950 and
proceeded to observe:
"In the light of the above recital in Ex. P.1 the
settlement deed which is extracted above it is too
late for the son to come and contend that it is not
the self acquired property of their father. The
recital coupled with the evidence available on
record and the further fact that Susheela the
plaintiff has been enjoying the property
exclusively would go to show that the plea that
the property in question is ancestral property, set
up by the son, is not acceptable or believable.
This aspect of the case has not been considered
by the trial Court and as rightly found by the trial
court in the other suit and I have also no
hesitation to hold that, the suit property is self
acquired property of their father and
2
consequently, the settlement deed executed by
her father in valid and binding on the parties."
22. While recording the aforesaid finding, the learned Single
Judge did not even refer to the detailed reasons recorded by
the trial Court for holding that respondent No.2 has failed
to prove that the suit property was self-acquired property of
the executant because Sale Deed dated 01.02.1950 was not
produced by her. The learned Single Judge also omitted to
consider the statement of respondent No. 2 that the suit
property was purchased by her father in the name of the
mother and she had transferred the same in the name of
the father, which enabled him to execute Will dated
28.3.1977 and Settlement Deed dated 18.7.1977. Not only
this, the learned Single Judge failed to take note of the fact
that the recital contained in the settlement deed was
contrary to the evidence of the parties which, as mentioned
above, was to the effect that the property had been
purchased by the father in the name of the mother and the
latter had transferred it to the father after some time and
2
that in the judgment of O.S. No. 4528 of 1980 it was
categorically held that Item No. 5 of Schedule `B' properties
was joint family property and respondent No.1 was entitled
to a share in it. We are surprised that the learned Single
Judge ignored the patently contradictory findings recorded
by the trial Court in the two suits on the issue of nature of
Item No. 5 of Schedule `B' properties and decreed the suit
filed by respondent No. 2 by assuming that she had
succeeded in proving that her father Shri D. Yellappa was
competent to execute the settlement deed. In the process,
the learned Single Judge completely overlooked the detailed
reasons recorded by the trial Court in O.S. No. 4528 of
1980 after considering the mortgage deed Ex. P13 executed
by Shri D. Yellappa and Erappa in favour of the Salem Bank
Ltd. for the purpose of taking loan. Therefore, it is not
possible to sustain the finding and conclusion recorded by
the learned Single Judge in RFA No.476 of 1991.
23. We shall now deal with the appellant's challenge to the
decree passed in favour of respondent No.1. It is not in
2
dispute that respondent No.1 had not challenged the
findings recorded by the trial Court on various issues
framed by it. She also did not file cross-objections in the
appeal preferred by the appellant. Though, it is possible to
take the view that even in the absence of an appeal having
been preferred by respondent No.1, the learned Single
Judge could have exercised power under Order 41 Rule 33
CPC, as interpreted by this Court in Nirmala Bala Ghose v.
Balai Chand Ghose (1965) 3 SCR 550, Giani Ram and
others v. Ramjilal and others (1969) 3 SCR 944 and Banarsi
and others v. Ram Phal (2003) 9 SCC 606, after having
carefully examined the entire record, we are convinced that
the impugned judgment cannot be sustained by relying
upon Order 41 Rule 33. In the impugned judgment, the
learned Single Judge has included Item No. 3 of Schedule
`B' properties in the pool of joint family property despite the
fact that the same had been purchased by D. Yellappa by
registered sale deed in 1961 in the name of the appellant.
The learned Single Judge overturned the finding on this
issue by adverting to some portions of the averments
3
contained in para 2 of the written statement filed by the
appellant, while ignoring the remaining averments
contained in that paragraph as also paragraph Nos. 4 and
6. The learned Single Judge also failed to take note of the
fact that the claim made by N. Bhadraiah for grant of
occupancy rights in respect of agricultural land was
pending before the Land Tribunal. It is not possible for us to
approve the approach adopted by the learned Single Judge
in dealing with the claim of respondent No. 1 for partition of
the suit properties despite the fact that she had failed to
prove the case set up in the plaint. A substantial portion of
the judgment of the trial Court as well as the learned Single
Judge is based on pure conjectures. The learned Single
Judge appears to have been unduly influenced by the fact
that N. Bhadraiah was the father-in-law of the appellant
and both seem to have conspired to deprive the three
daughters of the deceased of their shares in the suit
properties.
3
24. We may have remanded the matter to the High Court for
fresh disposal of the appeals filed by the appellant and
respondent No. 2 but keeping in view the fact that the
findings recorded in the two suits regarding Item No. 5 of
Schedule `B' properties specified in the plaint of O.S. No.
4528 of 1980 are contradictory and substantial portion of
the judgment of O.S. No. 4528 of 1980 is based on surmises
and conjectures, we feel that ends of justice would be met
by setting aside the impugned judgment and remitting the
matter to the trial Court for fresh disposal of the suits filed
by respondent Nos. 1 and 2.
25. In the result, the appeals are allowed. The impugned
judgment is set aside. The judgments of the trial Court in
O.S. Nos. 4528 of 1980 and 2062 of 1981 are also set aside
and the matter is remitted to the trial Court for fresh
disposal of the suits. With a view to avoid the possibility of
conflicting findings regarding Item No.5 of Schedule `B'
properties specified in the plaint of O.S. No.4528 of 1980,
we direct the trial Court to club the two suits and dispose of
3
the same by one judgment. The parties shall be free to file
applications for additional evidence and bring on record the
orders passed by the Land Tribunal and the High Court in
relation to Item Nos. 1 to 4 of Schedule `B' appended to the
plaint of O.S. No.4528 of 1980.
.....................................J.
[G.S. Singhvi]
.....................................J.
[Asok Kumar Ganguly]
New Delhi,
January 05, 2012.
NON REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 6714-6715 OF 2002
Y. Nagaraj ........Appellant
Versus
Smt. Jalajakshi and others .......Respondents
J U D G M E N T
G. S. Singhvi, J.
1. These appeals filed against judgment dated 22.2.1999 of the
learned Single Judge of the Karnataka High Court represent
culmination of the dispute among the heirs of Shri D. Yellappa,
who died intestate on 27.03.1978, in relation to his properties.
2. Appellant, Y. Nagaraj, is the son of the deceased and
respondent Nos.1 to 3 - Smt. Jalajakshi, Smt. Y. Susheela and
2
Smt. Y. Nirmalakumari are his daughters.
They are governed by
Mitakshara School of Hindu Law as also the provisions of the
Hindu Succession Act, 1956 (for short, `the Act'),
for the sake of
convenience, they shall hereinafter be referred to with the same
description.
3. Respondent No. 1 filed O.S. No. 286 of 1979 (renumbered
as O.S. No. 4528 of 1980) impleading the appellant and
respondent Nos. 2 and 3 as defendants for partition of the
properties specified in Schedules `A' and `B' into four equal
shares by metes and bound and for allotment of one share to her
with absolute title and possession. She further prayed that the
appellant be directed to give account of the income of the suit
schedule properties with effect from 27.3.1978 and pay 1/4th
share to her. In the alternative, she prayed that an inquiry be
ordered under Order XXIX Rule 12 of the Code of Civil Procedure
(for short, `the CPC') for determination of mesne profits. The
schedules appended to the plaint are extracted below:
3
" :Schedule `A':
(1) Vacant land bearing Kaneshumari No. 130, of
Dommasaacha Village, Surjapura Hobli, Anekal Taluk
bounded on the
East by : Nagi Reddy House
West by : Konda Reddy House
North by : Road
South by : Erappa's land
Measuring East West about 42' North-South about
45'.
:Schedule `B':
(1) S. No. 96/1, measuring 2 acres and 5 guntas
(2) S. No. 108/2, measuring 1 acre 28 guntas
(3) S. No. 79/2, measuring 3 acres 35 guntas
all these properties situated at Thigala,
Chowdadenahalli, Sarjapur Hobli, Anekla Tq,
Bangalore Distt.,
(4) S.No. 205, measuring 1 acre 22 guntas situated at
Dommasandra village, Anekla, Taluk.
(5) A house bearing D.No. 100, and new Nos. 100/1
and 100/2, measuring about 82' x 21' situated at
Susheela Road Doddamavalli, Bangalore.4
(6) Any other property standing in the name of late D.
Yellappa, or any of his family members.
(7) Jewels worth about Rs. 10,000/-
(8) Household utensils worth about Rs. 10,000/-
(9) Bank deposits."
(As extracted from the judgment of XVII Additional
City Civil Judge, Bangalore.)
4
4. The claim of respondent No. 1 was founded on the following
assertions:
(a) That late Shri D. Yellappa, who retired as Revenue
Inspector from the Corporation of the City Bangalore,
was an affluent person and possessed some ancestral
properties (described in Schedule `A') and self-acquired
movable and immovable properties (described in
Schedule `B').
(b) That Shri D. Yellappa died intestate on 27.3.1978 and
being his Class II heirs, the parties are entitled to share
in his estate.
(c) That respondent Nos. 2 and 3 are unmarried and by
taking advantage of his position as the son of the
deceased, the appellant is wasting the property and
trying to alienate the same.
5. In the written statement filed by him, the appellant denied
that Shri D. Yellappa had only a bit of ancestral property.
He pleaded that the suit properties are joint family
5
properties because the same had been acquired out of joint
family income and respondent No. 1 had erroneously
characterized the same as self-acquired properties of the
deceased.
The appellant further pleaded that his father had
sold some properties to one Papaiah;
that the agricultural
lands shown in the plaint schedule were subject matter of
the proceedings pending before Land Tribunal, Anekal for
grant of occupancy rights; that Item No. 3 of plaint
Schedule `B' had been purchased in his name vide sale deed
dated 29.4.1961 and he was absolute owner thereof and
that the jewellery, utensils, bank accounts, etc., mentioned
at Item Nos. 7 to 9 of Schedule `B' were not available for
partition because after the death of the mother, the
deceased had divided the same among three sisters. In
paragraph 6 of the written statement, the appellant averred
that Item No.5 of Schedule `B' properties is an ancestral
property and respondent No.1 has no right to claim any
share in it.
6
6. Since the High Court has, while disposing of the appeals
filed by the appellant and respondent No. 2 relied upon
some of the averments contained in the written statement
and made observations adverse to the interest of the
appellant, it will be appropriate to notice the contents of
paragraphs 2, 4 and 6 of the written statement which are
extracted below:
"2. Late Sri. D. Yellappa had ancestral properties.
It is incorrect to say that he has only a bit of ancestral
property. He was getting a meagre salary, while he
was in service, but he was having sufficient income
from the joint family properties and out of the
income-from joint family properties he purchased
properties in his name as he was the head of the
family. It is absolutely false that items mentioned in
`A' Schedule are the ancestral properties and the
items mentioned in `B ' schedule are the separate
properties of the father of this defendant. The
plaintiff is put to strict proofs of the same. The
plaintiff with a view to claim larger share in the
properties has characterised the ancestral properties
as self acquired properties. The plaintiff in her
anxiety to claim a larger share in the properties has
included the items which are already sold by the
father of the defendant. Thus it is clear that the
plaintiff is not at all in joint possession of the
properties. The item mentioned in `A' schedule was
sold to one Papaiah by the father of the defendant
during his life time and put him in possession.
Inspite of it, the plaintiff has claimed this property
which is in possession of Sri Papaiah. Hence, the
said Papaiah is a necessary and a proper party. The
7
suit is bad for non-joinder of proper parties and the
suit is liable to be dismissed.
4 . There is no self-acquired property of Sri
Yellappa, for the plaintiff to claim any share in the
property. The plaintiff is not entitled to any share in
the properties detailed in the schedule and further
the plaintiff has not brought the entire joint family
properties for the purpose of division, though she is
fully aware of the same. The pretentions ignorance
of the plaintiff is a make believe one and is
deliberately made to appear as such only to help the
plaintiff's uncle against whom the suit has been filed
for the recovery of this defendant's share in the
property. The plaintiff is actively supporting her
uncle in the said litigation in O.S.31/1979 on the file
of the M u n s i f f, A n e k a l . Thus the suit as brought is
not maintainable and liable to be dismissed in limine.
6. Item No.5 of the `B' Schedule properties is
an ancestral property. The plaintiff has no manner of
right, title or interest to claim any share therein."
7. Respondent Nos. 2 and 3 filed separate written statement.
They admitted the claim of respondent No. 1 qua the
properties specified in Schedules `A' and `B' except Item No.
5 of `B' Schedule, i.e., house No. 100 (new nos. 100/1 and
100/2). Respondent Nos. 2 and 3 pleaded that the house
was purchased by their father in the name of the mother by
registered sale deed dated 20.12.1943; that, subsequently,
the mother transferred the house to the father, who
8
executed Will dated 28.3.1977 and bequeathed a portion of
the house to them but, later on, he cancelled the Will and
executed registered Settlement Deed dated 18.7.1977 in
their favour.
8. The trial Court took cognizance of the pleadings of the
parties and framed the following issues (the issues have
been extracted from the impugned judgment):
"1. Whether plaintiff proves that the `A'
schedule properties are the ancestral
properties and the `B' schedule property
were self acquired property of late D.
Yellappa?
2. Whether defendant nos.2 and 3 proves that they
are the absolute owners in possession and
enjoyment of a portion of item no.5 of schedule
`B' property by virtue of a registered settlement
deed dated 18.7.1977 executed by late D.
Yellappa?
3. Whether the defendants further prove that the
plaintiff is not entitled to claim a share in
items no.1 to 5 of the `B' schedule property as
contended in their written statement?
4. Whether defendants further prove that the jewels
in item no.7 of `B' schedule was divided in
between defendants 1 and 2 and after the
death of their mother as contended?
9
5. Whether defendant no.1 proves that item no.8 in
`B' schedule was taken away by the plaintiff
and the utensils now in his possession belong
to him exclusively?
6. To what share is the plaintiff entitled to and in
what all properties?
7. Whether the plaintiff is entitled to the mesne
profits and if yes, at what rate?
8. What relief and what order?
9. Whether the defendants prove that the 3rd item of
`B' schedule is the self acquired property of
defendant no.1 as contended in para 6(b) of
the written statement?
10. Whether the defendants prove that item
nos.1,2 and 4 of `B' schedule property are the
subject matter of tenancy rights pending
before the Land Tribunal and that the plaintiff
cannot claim anything in them?"
9. In support of her claim, respondent No. 1 appeared as PW-1
and produced 13 documents, which were marked as Ex. P1
to P13. The appellant examined himself as DW-1 and
produced one document, which was marked as Ex. D1.
10. After considering the pleadings of the parties and evidence
produced by them, the trial Court partly decreed the suit.
The trial Court answered issue Nos. 1 and 7 in the negative
1
and issue Nos. 2, 4, 5, 9 and 10 in the affirmative. It held
that Item Nos. 6 to 9 of Schedule `B' were not available for
partition and respondent No.1 has miserably failed to prove
her case qua those items. The trial Court further held that
Item No.3 of Schedule `B' is also not available for partition
because the same had been purchased in the name of the
appellant vide sale deed Ex. P6 and mistake in the
boundaries specified therein was rectified vide Ex. P7.
Issue No.3 was answered by the trial Court by declaring
that respondent No.1 will be entitled to 1/8th share in the
compensation in lieu of agricultural land which was subject
matter of the proceedings pending under the Land Reforms
Act. The relevant portions of the judgment of the trial Court
except those relating to Item Nos. 6 to 9 of Schedule `B'
about which no controversy survives between the parties
are extracted below:
"Though the plaintiff claims her 1/4th share in the
agricultural lands being Item Nos. 1 to 4 of schedule
`B' of the plaint, admittedly by the parties during the
course of evidence, item Nos. 1 & 2 are the ancestral
properties of this D. Yellappa and this D. Yellappa
has purchased item No. 4 by a registered sale deed as
1
per Ex. P8 in the year 1966 and only because this D.
Yellappa purchased that land, it cannot be classified
as self-acquired property of Yellappa unless there is
material or evidence produced by the plaintiff to show
that he treated that property as self-acquired and
separate property and was never meant for enjoyment
of the joint family during his life time. Therefore,
when there is material to show that D. Yellappa had
some agricultural and being the ancestral property
measuring 4 5 acres in Anekal Taluk and in addition
to the same, he has retired in the year 1961 and got
some retirement benefits and similarly, he had
purchased some house properties in Bangalore and
sold them for the benefit of the family for a sum of Rs.
26,000/- or so as admitted by DW1 himself and
which is not disputed by the plaintiff, it can be safely
said that item No. 4 was purchased by D Yellappa,
out of the joint family funds and it was for the benefit
of the family and it cannot be self-acquired and
separate property of Yellappa. Similarly, he has
purchased item No. 5 being the house property
bearing Door No. 100 which is re-numbered as 100/1
and 100/2 in the name of his wife only in the year
1950 and the same was subsequently transferred in
the name of D. Yellappa and thereafter, he has
mortgaged the same by Ex. P13 and therefore, the
plaintiff cannot contend that the said property
belonged to her mother and therefore, she is entitled
to a share in the same. The recitals of the mortgage
deed in Ex. P13 go to show that D. Yellappa had
purchased that property in Bangalore in the name of
his wife and that fact is clinched by the fact that he
has subsequently treated the same as joint family
property and not as of his wife. With these
observations, I hold that it is a joint family property
and not self-acquired property of D. Yellappa and
about the settlement of the property in favour of
defendants 2 & 3, I will discuss later.
1
So far as the item No. 3 of `B' schedule property is
concerned, it can be seen that it was purchased in
the name of the first defendant by a sale deed Ex. P6
and there has been a rectification deed also regarding
some mistake in the boundaries etc., as per Ex. P7
and this land is also said to be the subject matter of
occupancy right before the Tribunal. But all the same,
there is no material to show that it is a joint family
property and the plaintiff has not produced any
material to show that as to whether her father
financed this first defendant to purchase this item no.
3 of schedule `B' nor is it the case of the plaintiff that
it was actually purchased by D. Yellappa in his own
name. As already pointed out, the land was
purchased by the first defendant somewhere in the
year 1961 and he got rectification deed in the year
1967 and therefore, in the absence of any evidence
produced by the plaintiff to show that it was
purchased out of the income of the ancestral
properties, it can be safely said that the first
defendant has treated that property as his self-
acquired property because, there was no joint family
as such after the death of his father. Because, the
first defendant is the only son and the other issues of
this D. Yellappa all are daughters and are married
and staying with their husbands. Therefore, this item
No. 3 will have to be treated as self-acquired property
of defendant No 1.
Admittedly item Nos. 1 and 2 of schedule `B' are
agricultural lands and were ancestral properties of D.
Yellappa and if at all the plaintiff or defendants Nos. 2
and 3 are entitled to any share in those 2 lands
(illegible) in the compensation to be awarded by the
land tribunal, under the Hindu Succession Act and
not under the General Hindu Law.
If these two lands are agricultural properties, the
plaintiff as well as the defendants 2 and 3 would get
1
their share either in the compensation or by metes
and bounds only in = share of the deceased-father of
Yellappa because he has died somewhere in the year
1978 after coming into force of the Hindu Succession
Act. In that undecided = share of properties they
cannot claim 1/4th share as of right by birth. In the
notional partition it is only the coparceners under the
General Hindu Law who get a share each and the
ladies cannot be co-parceners of the Joint Hindu
Family and therefore in the notional partition, it is
this D. Yellappa and Nagaraj alone get half and this
1/ share of Yellappa goes to the plaintiff and
2
defendants 2 and 3 under the Hindu Succession Act
as their mother had pre-deceased this Yellappa
having died in the year 1960. Thus, I hold that the
plaintiff cannot claim 1/4th share. But they can claim
only 1/8th share each in the entire item Nos. 1 and 2
either by metes and bounds or by way of
compensation if any by the land tribunal.
Though the plaintiff has claimed share in item No. 5
the residential house of Bangalore Town, on the
ground that it was her mother's property, her own
document Ex. P. 13 negatives her contention because,
as per the recitals, the finance has flowed from this
Yellappa himself though it was purchased in the
name of his wife. But it was subsequently transferred
in the name of joint family and he treated it as his
own property and mortgaged the same to some
person by Ex. P. 13 and subsequently gifted the
portions of those properties in favour of plaintiff
herself and also defendants 2 and 3 and defendants 2
and 3 so also the first defendant stayed in those
houses till they got married and therefore, at the most
it can be said that house No. 100/1 and 100/2 alone
are available for partition between the plaintiff and
defendants except the settled properties in favour of
the plaintiff and defendants 2 and 3. Thus, the
plaintiff cannot claim share in the portions that are
1
settled in favour of defendants 2 and 3 and there has
been a settlement deed by Yellappa himself between
defendants 2 and 3 by a registered deed dated
18.7.77 as this fact is admitted by PW1 as well as
DW1 though there is no evidence produced by the
plaintiff and therefore, I am persuaded to answer
issue No. 2 in the affirmative.
Now coming to `A' schedule property which according
to the plaintiff is ancestral property and is a grame
tana area and a residential house bearing
Khaneshumari No. 130 in Anekal Taluk. This PW1
during the course of cross-examination admits that
her father had gifted half of schedule property in
favour of his own brother-Veerappa and also admits
that her father might have sold remaining half
schedule property in favour of one Papaiah. But,
however, a suggestion is made that this first
defendant took possession of half of `A' schedule
property from Papaiah by filing suits. But the
plaintiff has not produced any judgment copy of such
suit nor is there any evidence produced to show that
this defendant-1 has taken possession of the half of
the `A' schedule property that was sold by D. Yellappa
himself during his life time.
So therefore, if that is the position, it cannot be said
that the plaintiff has proved the facts that `A'
schedule property is available for partition and also
that she is entitled for mesne profit also. There is no
material to show that `A' schedule is in the possession
of the first defendant and they cannot also contend
that the first defendant has got income from the
agricultural lands because, in view of the Land
Reforms Act, tenanted lands vest in Govt. with effect
from 1974 and when there is material to show that
the matter of occupancy rights in respect of
agricultural lands at item -1 to 4 of schedule `B' is
pending before the Land Tribunal, the plaintiff cannot
1
seek accounting from the first defendant. But
however, the contentions of the defendant-1 in the
written statement that the plaintiff has not produced
the record of rights and index of lands etc., in respect
of agricultural land and that if partition is allowed,
the same would hit provisions of Prevention of
Fragmentation Act etc., are devoid of any merit and
thus, in view of my discussions, I am persuaded to
answer issue No. 1 in the negative."
11. The operative portion of the judgment passed by the trial
Court (as contained in the paper book of the special leave
petitions) is extracted below:
"The suit of the plaintiff is hereby partly decreed. The
suit of the plaintiff for partition and actual possession
in `A' schedule property and also for partition and
possession of item Nos. 1 to 9 of schedule `B' by
metes and bounds is hereby dismissed. It is hereby
declared that the plaintiff is entitled to 1/8th share in
the compensation to be paid by the Govt, in respect of
item Nos. 1, 2 and 4 and she is also entitled to 1/8 th
share in the un-sold portion of item No. 5 in as much
as there are entitlement deeds of vacant sites in
favour of plaintiff herself and also in favour of
defendants 2 and 3. The plaintiff shall get her share
partitioned by appointing a Commissioner in the Final
Decree Proceedings in item No. 5. Similarly, the suit
of the plaintiff for mesne profits is hereby dismissed.
But costs of the suit shall come out of the assets of
the joint family properties. It is hereby declared that
defendants 2 and 3 are also entitled to 1/8th share
like the plaintiff in all the properties that are available
for partition as discussed above. Draw a preliminary
decree accordingly."
1
12. During the pendency of the suit filed by respondent No. 1,
respondent No. 2 filed O.S. No. 2062 of 1981 for declaration
of title in respect of house bearing No. 100/2, Susheela
Road, Doddamavalli, Bangalore and possession thereof and
also for mesne profits. Respondent No.2 relied upon
registered Settlement Deed dated 18.7.1977, which is said
to have been executed by Shri D. Yellappa giving separate
portions to her and respondent No.3, and pleaded that she
was residing in the portion allotted to her and was paying
taxes etc. but the appellant was trying to interfere with her
possession.
13. The appellant contested the suit filed by respondent No. 2.
He pleaded that the suit property was joint family property
and the deceased had no right to execute settlement deed in
respect of the joint family property. He further pleaded that
the settlement deed was a fabricated document and the
same cannot be relied upon for declaring respondent No.2
as owner of the suit property. He also raised an objection of
1
limitation and pleaded that the suit filed by the respondent
No.2 was barred by time.
14. In the second suit, the trial Court framed nine issues and
one additional issue. The same (as contained in para 10 of
the impugned judgment) are extracted below:
"1. Whether the plaintiff proves that during
the suit schedule property was the self
acquired property of D. Yellappa?
2. Whether the plaintiff proves that during
the lifetime of D. Yellappa, D. Yellappa has
executed a registered settlement deed dated
18.7.1977 and registered Will dated 28.3.1977
in her favour pertaining to the suit schedule
property as alleged in the plaint?
3. Whether the plaintiff proves that the
defendant trespassed into the suit schedule
property and proves further that she is entitled
for possession as alleged?
4. Whether the plaintiff proves that she is
entitled for Rs.1,440/- and also for mesne
profits with costs thereon?
5. Whether the defendant proves that the
alleged Will is a got up one when Yellappa was
not in a fit condition to execute in favour of the
plaintiff?
6. Whether the defendant proves that the
suit schedule property is not self acquired
property of D. Yellappa?
1
7. Whether the defendant proves that he is
in possession of the property in his own right
and not as a trespasser?
7(a) Whether the defendant proves that the
suit is not maintainable in law?
8. To what relief the parties are entitled?
9. Whether the plaintiff is entitled for the
declaration claimed?
Additional Issues :
1. Whether the defendant proves that the
suit is barred by time as he had taken a plea
in O.S. No.151 of 1978 itself denying the title
of the plaintiff as alleged?"
15. Respondent No.2 examined herself as PW-1 and produced 8
documents marked Ex. P1 to P8. The appellant examined
himself as DW-1 and produced 16 documents marked Ex.
D1 to D16.
16. The trial Court answered issue Nos. 1 to 4, 7(a), 9 and
additional issue No.1 in the negative and issue Nos. 6 and 7
in the affirmative. As regards issue No.5, the trial Court
observed that the same does not survive for consideration.
1
In conclusion, the trial Court dismissed the suit by
observing that respondent No.2 has failed to prove that the
suit property was purchased in the name of the mother vide
Sale Deed dated 1.2.1950 and she had transferred the same
to her father. The trial Court also held that respondent
No.2 has failed to prove that the suit property was the self-
acquired property of her father and he had the right to
settle the same in her favour. The relevant portions of the
judgment rendered by the trial Court in O.S. No. 2062 of
1981 are extracted below:
"It is elicited in the cross examination of PW-1 that
the suit property was transferred by her mother to
her father but she does not know by what mode it
was transferred. She does not know when her mother
had purchased the property. There must be document
of title regarding the purchase made by her mother
and the plaintiff has denied ignorance about the mode
under which the property was transferred by her
mother to her father. The contents of Ex.P.l show that
the property was purchased by sale deed dated
1.2.1950. The said sale deed dated 1.2.1950. The said
sale deed has not been produced by the plaintiff and
therefore the plaintiff has failed to prove that it is
belong to her mother and her mother has transferred
the property to her father.
On the other hand, the evidence of the defendant and
the documentary evidence produced by him show
2
that the property was the joint family property as it
was purchased out of the amount received by
mortgaging the family properties to Salem Bank
under Ex.D-7. DW-l has stated in his evidence that
the suit schedule property was purchased out of the
joint family funds. The property was purchased in
the name of his mother during December 1943.
In December 1943 joint family property was
mortgaged to Salem Bank for purchasing the property
and he has produced Ex.D-7 the mortgage deed
and he has further stated that the said amount
obtained by mortgaging was repaid out of the
income derived from the suit house. Nothing has
been elicited in the cross-examination of DW.1 to
disbelieve his evidence that the suit property was
purchased out of the amount received by mortgaging
the joint family properties. Ex. D-7 shows that on
17.12.1943 D. Yellappa and his brother Erappa
mortgaged the properties for borrowing Rs.600/- for
the purpose of purchasing a house at Siddegowda
Lane, Lalbagh, Doddamavalli Bangalore City in the
name of the wife of D. Yellappa and the schedule to
the said mortgage deed reads as follows:
I. All the piece and parcel of land with
the dwelling houses and outhouses, wells, trees
and drains thereon built and planted and
situated together with all rights and easements
appertaining thereto now and hereafter enjoyed
and acquired bearing Municipal Door No. Old 8
and New No. 13. Chintala Venkatappa Lane,
Lalbagh, Doddamavalli, Bangalore City, bounded
on the North by Sarambigamma's house and
Chinnayya's backyard, South by Municipal
Road, East b y Ratnakka and her b r o t h e r
Anjariappa's house and open space and West by
land with public water t a p , measuring East to
West 3 5 1 /2 feet and North to South 1 2 ' x 1 2 '
and admeasurements 4 4 3 square feet. Chintala
2
Venkatappa Lane is now called Siddegowda
Lane.
II. And house bearing Municipal Door No. 2
(Old) New No. 3 . Aliraju Munisumappa Road,
Thigalarpet, Bangalore City, bounded on North
b y Jaragana-halli Muniswamy's house and
Yellamma Temple, South by Lane and
Yengatappa Gowda's house and Rangamma's
house, East by Municipal Road and Muni
Siddappa's house and West by Waste land
belonging to choultry, measuring East to West
2 4 ' . 4 " , North to South 25 ' . 1 0 " b y
admeasurements 6 2 6 square feet and which are
at present in possession of the said mortgagors,
1. D. Yellappa and 2 . Erappa.
It is clear from the above said evidence of DW-1 and
Ex. D-7 which clearly corroborates his evidence
that the suit schedule property was purchased
out of the money obtained by mortgaging the joint
family properties. PW-1 has feigned ignorance as
to whether her father had any other source of
income except salary and as to whether the family
had any other joint family property at the time of
purchase of the suit schedule property. Therefore,
it is clear that plaintiff has failed to prove that the
suit schedule property was the self acquired property
of her father and that her father had right to settle
the property in favour of the plaintiff. On the
other hand, the above said evidence on record clearly
shows that the suit property was the joint family
property of D. Yellappa and the defendant.
I have already given a finding that plaintiff has
failed to prove that the suit schedule property
was the self acquired property of D. Yellappa and
defendant has proved that the suit schedule property
was the joint family property. Therefore, the
burden is upon the plaintiff to prove the execution
2
of the Settlement Deed. PW-1 has stated in her
cross-examination that she does not know who were
the witnesses that have signed Ex. P.l as they were
acquaintance of her father. She does not know
who was the scribe of the Settlement Deed. It is
further elicited that she found some corrections in
the Settlement Deed but she does not know who
wrote it. The witnesses have not signed in her
presence and she does not know if her father
had intimated the defendant about the Settlement
Deed. The plaintiff has not signed the Settlement
Deed and the and the witnesses who have attested
the Settlement Deed have not been examined by the
plaintiff. The scribe who wrote the Settlement
Deed has also not been examined by the
plaintiff. There are some corrections in the
Settlement Deed and PW-1 has stated that she does
not know who had carried out the said corrections
and she does not know who wrote the contents of
the Settlement Deed as she has feigned ignorance as
to who was the scribe of the Settlement Deed. Even
the contents of the Settlement Deed have not been
proved and the evidence on record clearly proba-
bilities the version of the defendant that the Set-
tlement Deed has been concocted by the plaintiff.
It is mentioned in the Settlement Deed Ex. P.l that the
property was the self acquired property of D.
Yellappa. I have already held that suit property was
not the self-acquired property of D. Yellappa."
17. The appellant filed RFA No. 189 of 1990 and prayed for
setting aside the decree passed in O.S. No. 4528/1980
insofar as the trial Court upheld the claim of partition made
by respondent No.1 qua Item No.5 of Schedule `B'
2
properties. Respondent No. 2 also filed RFA No. 476 of 1991
and challenged the dismissal of the suit for declaration filed
by her.
18. Learned counsel for the appellant argued that the impugned
judgment is liable to be set aside because the learned Single
Judge of the High Court committed grave error by granting
substantive relief to respondent No.1 despite the fact that
she had not filed appeal or cross-objections to question the
findings recorded by the trial Court on various issues. She
further argued that the learned Single Judge committed an
error by passing a decree in favour of respondent No.2 on
the basis of Settlement Deed dated 18.7.1977 ignoring that
she had failed to prove that the suit property was self-
acquired property of the father and that in O.S. No. 4528 of
1980 the trial Court had ruled that Item No.5 of `B'
Schedule properties was joint family property.
19. Learned counsel for the respondents supported the
impugned judgment and argued that the High Court did not
commit any error by granting relief to respondent Nos. 1
2
and 2. She submitted that even though respondent No.1
had neither filed an appeal against the judgment and decree
passed by the trial court in O.S. No. 4528 of 1980 nor she
filed cross-objections in RFA No. 189 of 1990, the learned
Single Judge had rightly invoked the principle underlying
Order 41 Rule 33 CPC for the purpose of doing full justice
to the parties. She also defended the decree passed in
favour of respondent No.2 and argued that the learned
Single Judge did not commit any error by relying upon the
recital in the settlement deed for the purpose of recording a
finding that Item No.5 of Schedule `B' properties was self-
acquired property of the deceased.
20. Before adverting to the arguments of the learned counsel for
the parties and the reasons recorded by the learned Single
Judge, we consider it proper to take cognizance of some of
the additional documents filed by the counsel for the
respondents which include copy of the plaint in O.S. No.
286 of 1979 (renumbered as O.S. No.4528 of 1980), written
statement filed in that suit, the issues framed by the trial
2
Court, depositions of respondent No.1 and the appellant,
copy of Settlement Deed dated 18.7.1977, orders passed by
the Karnataka High Court in Writ Petition Nos. 11401 of
1981, 20067 of 1991 and 20068 of 1991 and order passed
by the Land Tribunal. These documents show that
respondent Nos. 1 to 3 had filed Writ Petition No. 11401 of
1981 for quashing order dated 9.6.1981 passed by the Land
Tribunal whereby occupancy rights were granted to N.
Bhadraiah in respect of land comprised in survey Nos.
79/2, 108/2 and 205. By an order dated 28.5.1985, the
Division Bench of the High Court allowed the writ petition,
quashed the order of the Land Tribunal and remitted the
matter for fresh disposal of the application filed by N.
Bhadraiah after giving opportunity to the parties. After
remand, the Land Tribunal passed order dated 29.10.1988
and again accepted Bhadraiah's claim for occupancy rights.
The second order of the Land Tribunal was challenged by
respondent Nos. 1 to 3 in Writ Petition Nos. 20067 and
20068 of 1991, which were allowed by the Division Bench of
the High Court on 20.1.1994 and the matter was again
2
remitted to the Land Tribunal for fresh consideration. Of
course, learned counsel for the parties did not inform the
Court whether the application filed by N. Bhadraiah for
grant of occupancy rights has been finally disposed of.
21. The learned Single Judge first considered the issue raised in
RFA No.476 of 1991, i.e., whether Settlement Deed dated
18.7.1977 executed by Shri D. Yellappa was valid. He
referred to a portion of the settlement deed in which the
executant has mentioned that the house property is a self-
acquired property purchased by him on 01.02.1950 and
proceeded to observe:
"In the light of the above recital in Ex. P.1 the
settlement deed which is extracted above it is too
late for the son to come and contend that it is not
the self acquired property of their father. The
recital coupled with the evidence available on
record and the further fact that Susheela the
plaintiff has been enjoying the property
exclusively would go to show that the plea that
the property in question is ancestral property, set
up by the son, is not acceptable or believable.
This aspect of the case has not been considered
by the trial Court and as rightly found by the trial
court in the other suit and I have also no
hesitation to hold that, the suit property is self
acquired property of their father and
2
consequently, the settlement deed executed by
her father in valid and binding on the parties."
22. While recording the aforesaid finding, the learned Single
Judge did not even refer to the detailed reasons recorded by
the trial Court for holding that respondent No.2 has failed
to prove that the suit property was self-acquired property of
the executant because Sale Deed dated 01.02.1950 was not
produced by her. The learned Single Judge also omitted to
consider the statement of respondent No. 2 that the suit
property was purchased by her father in the name of the
mother and she had transferred the same in the name of
the father, which enabled him to execute Will dated
28.3.1977 and Settlement Deed dated 18.7.1977. Not only
this, the learned Single Judge failed to take note of the fact
that the recital contained in the settlement deed was
contrary to the evidence of the parties which, as mentioned
above, was to the effect that the property had been
purchased by the father in the name of the mother and the
latter had transferred it to the father after some time and
2
that in the judgment of O.S. No. 4528 of 1980 it was
categorically held that Item No. 5 of Schedule `B' properties
was joint family property and respondent No.1 was entitled
to a share in it. We are surprised that the learned Single
Judge ignored the patently contradictory findings recorded
by the trial Court in the two suits on the issue of nature of
Item No. 5 of Schedule `B' properties and decreed the suit
filed by respondent No. 2 by assuming that she had
succeeded in proving that her father Shri D. Yellappa was
competent to execute the settlement deed. In the process,
the learned Single Judge completely overlooked the detailed
reasons recorded by the trial Court in O.S. No. 4528 of
1980 after considering the mortgage deed Ex. P13 executed
by Shri D. Yellappa and Erappa in favour of the Salem Bank
Ltd. for the purpose of taking loan. Therefore, it is not
possible to sustain the finding and conclusion recorded by
the learned Single Judge in RFA No.476 of 1991.
23. We shall now deal with the appellant's challenge to the
decree passed in favour of respondent No.1. It is not in
2
dispute that respondent No.1 had not challenged the
findings recorded by the trial Court on various issues
framed by it. She also did not file cross-objections in the
appeal preferred by the appellant. Though, it is possible to
take the view that even in the absence of an appeal having
been preferred by respondent No.1, the learned Single
Judge could have exercised power under Order 41 Rule 33
CPC, as interpreted by this Court in Nirmala Bala Ghose v.
Balai Chand Ghose (1965) 3 SCR 550, Giani Ram and
others v. Ramjilal and others (1969) 3 SCR 944 and Banarsi
and others v. Ram Phal (2003) 9 SCC 606, after having
carefully examined the entire record, we are convinced that
the impugned judgment cannot be sustained by relying
upon Order 41 Rule 33. In the impugned judgment, the
learned Single Judge has included Item No. 3 of Schedule
`B' properties in the pool of joint family property despite the
fact that the same had been purchased by D. Yellappa by
registered sale deed in 1961 in the name of the appellant.
The learned Single Judge overturned the finding on this
issue by adverting to some portions of the averments
3
contained in para 2 of the written statement filed by the
appellant, while ignoring the remaining averments
contained in that paragraph as also paragraph Nos. 4 and
6. The learned Single Judge also failed to take note of the
fact that the claim made by N. Bhadraiah for grant of
occupancy rights in respect of agricultural land was
pending before the Land Tribunal. It is not possible for us to
approve the approach adopted by the learned Single Judge
in dealing with the claim of respondent No. 1 for partition of
the suit properties despite the fact that she had failed to
prove the case set up in the plaint. A substantial portion of
the judgment of the trial Court as well as the learned Single
Judge is based on pure conjectures. The learned Single
Judge appears to have been unduly influenced by the fact
that N. Bhadraiah was the father-in-law of the appellant
and both seem to have conspired to deprive the three
daughters of the deceased of their shares in the suit
properties.
3
24. We may have remanded the matter to the High Court for
fresh disposal of the appeals filed by the appellant and
respondent No. 2 but keeping in view the fact that the
findings recorded in the two suits regarding Item No. 5 of
Schedule `B' properties specified in the plaint of O.S. No.
4528 of 1980 are contradictory and substantial portion of
the judgment of O.S. No. 4528 of 1980 is based on surmises
and conjectures, we feel that ends of justice would be met
by setting aside the impugned judgment and remitting the
matter to the trial Court for fresh disposal of the suits filed
by respondent Nos. 1 and 2.
25. In the result, the appeals are allowed. The impugned
judgment is set aside. The judgments of the trial Court in
O.S. Nos. 4528 of 1980 and 2062 of 1981 are also set aside
and the matter is remitted to the trial Court for fresh
disposal of the suits. With a view to avoid the possibility of
conflicting findings regarding Item No.5 of Schedule `B'
properties specified in the plaint of O.S. No.4528 of 1980,
we direct the trial Court to club the two suits and dispose of
3
the same by one judgment. The parties shall be free to file
applications for additional evidence and bring on record the
orders passed by the Land Tribunal and the High Court in
relation to Item Nos. 1 to 4 of Schedule `B' appended to the
plaint of O.S. No.4528 of 1980.
.....................................J.
[G.S. Singhvi]
.....................................J.
[Asok Kumar Ganguly]
New Delhi,
January 05, 2012.
