1. The appeal by the plaintiff is directed against the judgment and decree dated Aug. 6, 1973, made by the Additional Civil Judge, Bijapur, in O. S. No. 37 of 1967.
2. The material facts leading to the appeal are as below:-
One Jakkappa had two sons, Balappa and Shivappa. Balappa predeceased Shivappa who died on March 5, 1945. Shivappa had left behind him his widow Bhimavva, Defendant-1. She took Ningappa in adoption on June 15, 1955. The plaintiff Neelavva was married to Ningappa. But their married life ended in a disaster. In Sept, 1960, Ningappa disappeared once for all never to return. He has not been heard of since then. In 1967, the plaintiff Neelavva filed a suit claiming half share in the suit properties(which) were the joint family properties.
3. Defendant-1 who is the mother of Ningappa and defendant-2 who is the father of defendant-1 together filed a written statement resisting the suit contending inter alia that S. Nos. 223, 225 and 408 did not belong to the plaintiff's husband and thus she could not lay any claim to them. They also disputed the quantum of share claimed by the plaintiff.
4. Defendants 3 to 5 were impleaded since they claimed to be some of the properties.
5. The trial Court framed amongst others, the following issues :-
'(2) Does plaintiff prove that the suit properties belonged to her husband?
(3) Does defendant No. 1 prove that the lands bearing S. Nos. 223, 225 and 407 and 408 are her self-acquired properties?'
The trial Court recorded the evidence of the plaintiff and of her two witnesses and defendant-1 and of her two witnesses and marked Exhibits P-1 to P-53 and D-1 to D-26 and decreed the suit awarding 1/4th share to the plaintiff in suit A and B Schedule properties holding that the three lands in question were also the joint family perties.
6. The plaintiff being aggrieved by the award of Ith share only has come up with this appeal. Defendant-1 being aggrieved by the latter finding of the trial Court has filed cross-objection.
7. The principal point that arise for consideration is as follows:-
What is the quantum of share to which the plaintiff is entitled to; and in respect of what properties ?
8. It is undisputed that Ningappa had been adopted by defendant-1 Bhimavva in June, 1955. It is also undisputed that the plaintiff is the wife of the said Ningappa. It is taken for granted by both sides that as Ningappa was unheard of for more than 7 years, he shall be deemed to be dead.
9. Shri K. S. Savanur, learned counsel for the appellant, contended that the plaintiff is entitled to half share, while, on the other hand, Shri S. K. Kulkarni for defendant-1 contended that the plaintiff is entitled to not more than Ith share. It seems to us that the contention of Shri Kulkarni appears to be well founded and must be accepted as correct. In the notional partition that will have to be considered under Expln. (1) to Section 6 of the Hindu Succession Act, Ningappa would have half share and his adoptive mother Bhimavva would have half share. When Ningappa is deemed to be dead, his half share will have to be divided equally between Bhimavva and his own widow Neelavva. Half of that would come to Ith. The trial Court, therefore, was justified in holding that the plaintiff Neelavva has only 1/4th share in the suit Schedule A and B properties and defendant-1 on the whole has 3/4th share.
10. The next question is as to which are the properties in which a share has to be awarded to the plaintiff. There is no dispute That all the suit A and B Schedule properties except Revision S. Nos. 223, 225 and 408 belong to the joint family and therefore the plaintiff is legitimately entitled to 1/4th share in them.
11. The dispute is in regard to three lands, Revision S. Nos. 223, 225 and 408. At this stage, it is necessary to narrate the history pertaining to these three lands. They originally belonged to Shivappa and Balappa. They together sold these lands under Exhibit D-26 dated Sept. 30, 1940, for Rupees 6,500/- in favour of one Lesappa Biradar. It was an outright sale. They were thus lost to the family. But on July 3, 1951, defendant-I purchased them for the very same amount of Rs. 6,500/- under the sale deed Ext. D-25 from the original purchaser Lesappa Biradar. Her case, however, was that, her father defendant-2 sold his own house some 4 or 5 months before under, Ext. D-24 dated Dec. 29, 1950 for Rupees 6,000/- to Shri Malappa Talikote and he paid that amount for purchasing the properties under Ext. D-25. The trial Court has disbelieved this story regarding the consideration paid by defendant-2. It has held that upon the death of Shivappa, Bhimavva came into possession of the vast area belonging to the joint family which yielded more than sufficient income to purchase the properties in question.
12. It is true that Bhimavva came into possession of about 96 acres of land. The evidence on record clearly indicates that these 96 acres were yielding considerable income. There was hardly any expense to be met by defendant-1 out of this income. Defendant-I was the only soul to be maintained out of that income till she adopted Ningappa in 1955. There is no doubt that Bhimavva was saving a good deal of income. But, even if the surplus income was utilised for purchasing the three lands in question under Ext. D-25, there is no law known to us that the said properties should be treated as joint family properties. The law bearing on the question is this:-
In Sitaji v. Bijendra Narain Choudhary : AIR1954SC601 the Supreme Court has observed thus:
'It is admitted here that the widow purchased them out of the savings made by her from the income of her husband's estate but that does not necessarily make it an accretion because a Hindu widow has an absolute right to the income and is not bound to save any of it for the reversioners. She can, if she so chooses, add it to the estate and augment it or she can, if she wants, keep it separate and deal with it as her own:- Venkatadri Appa Rao v. Parthasarathi Appa -Rao . The question is one of intention:- Babu Sheo Lochun Singh v. Babu Shaeb, Singh ((1887) 14 Ind App, 63 (PQ). But the question is one of fact and must be decided as such:- Raja of Ramand v. Sundara Pandiyasami Tevar (AIR 1918 PC 156).'
In view of the statement of law above stated, the conclusion reached by the trial Court that there was enough surplus income from the joint family properties and therefore, the purchase made under Ext. D-25 cannot be regarded as self-acquisition of Bhimavva, is not sound and cannot be accepted. It is immaterial whether the income from the joint family properties was sufficient or not or available for purchasing the properties by the widow. The widow has got unlimited power to spend all the income either for her own use or for purchasing any property. The fact that Bhimavva has purchased the same Properties which were once sold by Balappa and Shivappa, does not make any difference in this position of law. She purchased the three lands under Exhibit D-25 and prima facie it should be regarded as her own self-acquisition.
13. If the plaintiff wants to claim a share in those properties, she has to prove that those properties were treated as an acquisition, or accretion to the estate of the joint family. There appears to be a lot of misconception in regard to this question of law. There is neither sufficient pleading nor there is a correct issue framed by the Court below. The relevant issue framed by the Court below was issue No. 3 which puts the entire burden upon Bhimavva to prove that the properties were her self-acquired properties. That is wholly wrong. So also it is wrong for the Court below to hold that the acquisitions shall be deemed to be the joint family properties on the ground that there were enough surplus income from the joint family estate. In view of the misconception of law both by the parties and also by the Court, we have no other alternative but to direct the trial Court to reconsider that question.
14. In order to make the question further clear, we direct the trial Court to frame an issue as follows:-
'Whether Bhimavva intended that the lands Revision S. Nos. 223, 225 and 408 should be an accretion to the joint family estate?'
If the trial Court determines this issue on the material produced by the parties and also on the material on record in favour of the plaintiff, then the plaintiff shall be allotted 1/4th share even in those three lands. If the issue is determined in the negative, it is needless to say that the suit in respect of those lands will have to be dismissed.
15. In order to avoid further delay in giving a share to the plaintiff out of the undisputed properties, we confirm the decree of the trial Court in regard to the suit properties except the lands revision S. Nos. 223, 225 and 408 and direct the trial Court to transmit the decree to the Deputy Commissioner for dividing those properties by metes and bounds and for putting the plaintiff in possession of her 1/4th share.
16. The trial Court also shall proceed with the trial of the issue as suggested above by affording an opportunity to the parties to amend their pleadings if they so desire and also to produce additional evidence.
17. In the result, the appeal fails and is dismissed. The cross-objection to the extent indicated above succeeds and is accordingly allowed. The matter pertaining to Revision S. Nos. 223, 225 and 408 is remitted to the Court below for disposal in the light of the observations made above.
The parties to appear before the trial Court on May 26, 1982 to receive further order.
18. In the circumstances, there will be no order as to costs in this appeal.
19. It was brought to our notice that the plaintiff has been paid Rs. 1,5001- per year from the date of the suit up-to-date. It is needless to state that if such a payment has been made, it should be given deduction from the mesne profits payable to her.
20. Order accordingly.