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M.R. Rajasekharappa Vs. H.N. Siddananjappa - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKarnataka High Court
Decided On
Case NumberR.F.A. No. 132 of 1976
Judge
Reported inILR1990KAR2303
ActsHindu Law
AppellantM.R. Rajasekharappa
RespondentH.N. Siddananjappa
Appellant AdvocatePadubidri Raghavendra Rao, Adv.
Respondent AdvocateG.S. Visweswara, Adv. for ;M.S. Gopal, Adv.
Excerpt:
hindu law - hindu joint family & joint family property - concept & principles - burden of proof on party claiming property to be joint family property - where existence of nucleus established, presumption property acquired therefrom and joint family property: onus shifts to person alleging self-acquisition to prove property acquired without aid of joint family - property acquired in the name of any member or in the name of kartha, where family has sufficient nucleus, presumed to be joint family property unless contrary shown - with no partition, enjoyment of property by anyone member of family not adverse to other members in the absence of overt act of ousting and enjoyment thereof to the exclusion of others. ; (i) the legal position is that the joint and undivided family is the.....held:(i) the legal position is that the joint and undivided family is the normal condition of hindu society. an undivided family is not only joint in estate but also in food and worship. the existence of joint estate is not essential requisite to constitute a joint family and a family which does not own any property may nevertheless be joint. the presumption of union is the greatest in the case of father and sons. the strength of presumption necessarily varies in every case. but the presumption is strong in the case of brothers.(ii) it is settled law that the proof of existence of a joint family does not lead to the presumption that it possesses joint property. the property held by a member of a joint family cannot also be presumed to be the joint family property. in a suit for partition,.....
Judgment:
Held:

(i) The legal position is that the joint and undivided family is the normal condition of Hindu Society. An undivided family is not only joint in estate but also in food and worship. The existence of joint estate is not essential requisite to constitute a joint family and a family which does not own any property may nevertheless be joint. The presumption of union is the greatest in the case of father and sons. The strength of presumption necessarily varies in every case. But the presumption is strong in the case of brothers.

(ii) It is settled law that the proof of existence of a joint family does not lead to the presumption that it possesses joint property. The property held by a member of a joint family cannot also be presumed to be the joint family property. In a suit for partition, a party who claims that any item of suit property is joint family property, the burden of proving that it is so, rests on the part, who asserts it. However, in a case where it is established that the joint family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property claimed to be the joint family property may have been acquired, the presumption arises that it was joint family property and the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family...It is also well established that where at the date of acquisition of a particular property, the joint family had sufficient nucleus for acquiring it, the property in the name of any member of the joint family should be presumed to be acquired from out of the family funds and was to form part of the joint family property unless the contrary is shown. It is more so in the case of a kartha of a joint family possessing sufficient nucleus at the time of acquisition of the property in his name to prove that he acquired it independent of, and without the aid of, the joint family funds.

(iii) Where there was no partition in the family, the fact that any one of the members of the family enjoyed these properties would not be construed as adverse to other members of the family there being no overt act of ousting the other members and enjoyment of the properties to the exclusion of the other family members.

ON FACTS:

Admittedly, late Hundi Nagappa - father of defendant-1 and H.N. Rudrappa - father of plain -tiffs-1 and 2 - owned 5 items of suit properties described at Items 3, 4, 5, 7 and 13 in Schedule A. However in Ex.D-20 [Sale Deed] and in the evidence of defendant-1, it is tried to be contended that these properties were the self-acquired properties of Hundi Nagappa. But defendant-1 ultimately admitted in his evidence that he did not know how his father acquired these properties. There is no sale deed produced to show that Hundi Nagappa purchased these properties nor there is any other document produced to show that these properties were owned by a person other than the ancestor of Hundi Nagappa. In the absence of any specific evidence to show as to how these five properties came to stand in the name of Hundi Nagappa, the same could be construed only as ancestral properties...It is clear that Ex.D-20 came to be created only to protect the properties mentioned in Ex.D-20 from the creditors of Hundi Nagappa. This goes to show that the transaction evidenced by Ex.D-20 was only a sham and nominal one and it was intended to ensure that the properties mentioned in Ex.D-20 continue with the joint family and to keep them beyond the reach of the creditors of Hundi Nagappa...It is clear that small bits of properties were purchased as and when the funds were available in the name of defendant-1 or in the joint names of defendant No. 1 and late H.N. Rudrappa. This would clearly establish the fact that the acquisition of the properties made at different intervals either in the name of defendant No. 1 or in the joint name of defendant-1 and his brother H.N. Rudrappa were acquired by the joint, family from out of the family funds...Defendant-1 was the kartha of the family. The business was carried on by the family from the time of the original prepositus Hundi Nagappa. In fact, Hundi Nagappa incurred debts because of the business he carried on and in order to save the ancestral properties, he had created a sham and nominal Sale Deed Ex.D-20 in favour of wife - mother of defendant-1 and the father of plaintiffs 1 and 2. After the death of Hundi Nagappa, the evidence on record, also goes to show that the father of plaintiffs 1 and 2 and defendant-1 carried on the business as joint family business. It was only after the death of the father of plaintiffs 1 and 2, defendant-1 started doing business in partnership with G.K. Basavarajappa under the name and style of H.N. Siddananjappa and G.K. Basavarajappa, Nut Merchants and Commission Agents, Bangarpet. As there was no partition in the family, the business that was carried on by defendant-1 in partnership with G.K. Basavarajappa to the extent of the share of defendant-1 in the partnership, it was a joint family business... Defendant-1 was the kartha of the joint family and as such he was in control and possession of the assets and the income of the joint family. So the burden was upon him to prove that the partnership business carried on by him with G.K. Basavarajappa had nothing to do with the joint family funds and joint family business and that it was carried on by the income available to him from a source different from the joint family funds. The 1st defendant has failed to discharge this burden. Therefore, to the extent of the share of defendant-1 in the partnership business was a joint family business...As the suit Schedule-A properties are the joint family properties, the crops standing on items of 'A' Schedule on the date of suit would also become the joint family properties.

JUDGEMENT

D.R. Vithal Rao, J.

1. This Regular First Appeal by the Appellant-Plaintiffs is directed against the Judgment and decree dated 12-4-1976 passed by the learned Civil Judge, Kolar, in O.S.No. 18/1966 dismissing the suit of the plaintiffs for partition and separate possession of their one-half share in the joint family properties including those properties comprised in Schedules-A and B annexed to the plaint. In this Judgment, the parties herein will be referred to as plaintiffs and defendants respectively.

1.1. On the date the Karnataka Act 13 of 1989 came into force, this Appeal was heard and reserved for Judgment. A memo dated 12-3-1990 was filed by the respondents stating that in the light of the provisions contained in Section 4 of Karnataka Act No. 13 of 1989, the appeal has stood transferred to the District Court. On the memo, both the sides were heard. Both the sides agreed that as the appeal has been heard earlier to coming into force of Karnataka Act 13 of 1989 and as it is a very old matter, though the appeal has statutorily stood transferred to the District Court, it may be withdrawn and be decided by this Court. Accordingly, we passed an order on 14-3-1990 treating this appeal as statutorily transferred to the District Court, Kolar and withdrew it in exercise of our power under Section 24(1)(b) of the C.P. Code, in the interest of justice and to avoid further delay. Both the sides also further submitted that they had no further arguments to advance. Hence we proceed to decide this appeal.

2.1. It is the case of the plaintiffs that the father of plaintiffs Nos. 1 and 2 - the late H.N. Rudrappa was the alder brother of defendant No. 1. Plaintiff No. 3 is the mother of the plaintiffs Nos. 1 and 2 and the widow of the late H.N. Rudrappa. Defendants 2 and 3 are the sons of defendant No. 1. The late H.N. Rudrappa and defendant No. 1 were the sons of Hundi Nagappa who passed away long back.

2.2. The further case of the plaintiffs is that they and the defendants constituted a joint family even during the life time of their father late H.N. Rudrappa and even after his death the family continued to be joint; that defendant No. 1 was the Manager of the family; that the joint family was engaged both in agriculture and Nut Business; that moveable and immoveable properties, as described in Schedules-A and 3 are the joint family properties and are in joint possession and enjoyment of the plaintiffs and the defendants.

2.3. It is the further case of the plaintiffs that defendant No. 1 who is the Manager of the family has been controlling and managing all the joint family properties as described in Schedules-A and B; that he has been carrying on the joint family business in partnership with one G.K. Basavarajappa under the name and style 'Messrs. H.N, Siddananjappa and G.K. Basavarajappa, Nut Merchants and Commission Agents, Bangarpet'; that the plaintiffs are entitled to half share in the joint family properties described in Schedules-A and B to the plaint.

2.4. The plaintiffs have further averred that defendant No. 1 has been attempting to conceal the assets of the family and is ill-treating them and as such they do not deem it proper to continue as members of a joint family with the defendants any further. The plaintiffs, on the basis of these averments, have sought partition of the properties referred to in Schedules-A and B to the plaint and separate possession of their half share.

3.1. Defendant No. 1 has filed his separate written statement. It is the case of defendant-1 that the plaintiffs and defendants did not constitute as the members of a joint family; that he was not the Manager of the joint family after the death of his brother Rudrappa; that his brother Rudrappa also was not a member of a joint family; that the alleged joint family was neither engaged in agriculture nor nut business nor did it possess any properties described in Schedules 'A' and 'B'; that the partnership business of Messrs. H.N. Siddananjappa and G.K. Basavarajappa was not a joint family business; that there was absolutely no nucleus of the joint family to enable it to acquire any property and the properties acquired under Schedules-A and B were not acquired from and out of the joint family funds.

3.2. Defendant No. 1 admitted that Items 3, 4, 5, 7 and 13 of Schedule-A were the properties acquired by his father late Hundi Nagappa out of his own labour without any ancestral nucleus. He further averred that the said properties were sold away by Hundi Nagappa to his wife Smt. Parvathamma - the mother of H.N. Rudrappa and defendant No. 1 through a registered sale deed dated 10-3-1932; that after the death of Parvathamma, the said properties were being enjoyed by her daughters and defendant No. 1 exclusively.

3.3. Defendant No. 1 further contended that the father of the plaintiffs late H.N. Rudrappa had a money-lending business and had acquired properties separately and had left huge sums of money to the plaintiffs.

3.4. Defendant No. 1 further asserted that he acquired the properties i.e., Item Nos. 1, 2, 6, 8, 10 to 12 and 14 to 16 of 'A' Schedule from his own labour and without any aid from any source much less from the alleged joint family funds and he has been in exclusive possession and enjoyment of the same.

3.5. That the suit was bad for non-joinder of necessary parties and non-inclusion of all the properties. He also averred that he had dug up wells, installed pump-sets in the land and constructed houses at huge cost by borrowing money from different persons.

3.6. On the basis of these averments, defendant No. 1 contended that the suit of the plaintiff was liable to be dismissed.

4. Though defendants Nos. 2 and 3, through Court-guardian, have filed a separate written statement, but their defence accords with the stand taken by their father - defandant-1. Therefore, it need not be referred to in detail.

5. The plaintiffs have also filed the reply statement to the written statements filed by defendant No. 1, 2 and 3. They have reiterated their case as set up in the plaint.

6. The trial Court, on the basis of the pleadings of the parties, raised the issues as under:

1. Whether the Court fee paid is sufficient?

2. Whether the parties are not members of a joint Hindu family?

3. Whether the 1st defendant is the Manager of the said joint Hindu family?

4. Whether the plaint 'A' and 'B' Schedule properties are the joint family properties of the parties?

5. Whether the 1st defendant's father owned item Nos. 3, 4, 5, 7 and 13 of 'A' Schedule that he sold away the said properties to his wife Parvathamma under to registered sale deed dated 10-3-1932, that Parvathamma died 13 years ago leaving behind the said properties as her stridhana properties and that since then, the first defendant has been in possession thereof as full owner?

6. Whether item Nos. 1, 2, 6, 8, 10 to 12 and 14 to 16 of 'A' Schedule are self-acquired properties of the first defendant?

7. Whether item Nos. 9, 17, 18, 5, 6, 10, 11, 13 and 18 of 'A' Schedule and items 2(a) to (n), 3 and 6 of 'B' Schedule and moveables found in items 3 and 4 of Mugalabele are in the possession of the 1st defendant and liable for partition?

8. Are Muneppa, Pillappa, Basavaraj, C.N. Sadashivappa, Thoti Charavappa, Neeyanappa, Krishnappa and Muneppa, necessary parties to the suit and is the suit bad for non-joinder of the said persons?

9. Have the defendants made improvements at a cost of Rs. 50,000/- by incurring debts to that extent as stated in para 19 of the written statement?

10. Axe the plaintiffs not liable to share the said debts?

11. Is the suit defective for non-joinder of the properties mentioned in para 11 of the written statement and para 4 of the reply?

12. Is the suit barred by adverse possession?

13. Is the suit bad for multifariousness as contended in para 21 of the written statement?

14. Is the suit barred by time?

15. Are the plaintiffs entitled to the reliefs sought?

16. What order?

7. The plaintiffs during the course of trial, examined plaintiff No. 1 as P.W.6 and 5 other witnesses as P.Ws.1 to 5 and got Exhibits P-1 to P-12 marked. The defendants examined defendant No. 1 as D.W.22 and 21 other witnesses as D.Ws.1 to 21 and got Exhibits D-1 to D-86 marked.

8. The trial Court, on appreciating the oral and documentary evidence on record, has answered issues 1, 2, 5, 6, 10 and 11 in the affirmative and rest of the issues in the negative. It has accordingly dismissed the suit. Thus the trial Court has held that the plaintiffs have failed to establish that they and the defendants were the members of a Hindu joint family and defendant No. 1 was the Manager of the said joint family; that the alleged joint family possessed sufficient nucleus for acquiring the properties.

9. Having regard to the contentions urged on both sides, the following points arise for consideration:

1) Whether, on facts and in law, the trial Court is justified in holding that the plaintiffs have failed to establish that the plaintiffs and defendants constituted members of a Hindu joint family and defendant No. 1 was the Manager of the same?

2) Whether the trial Court is justified in holding that there was no sufficient nucleus possessed by the joint family to enable it to acquire properties which were claimed by defendant No. 1 as his self-acquired properties and that those properties were acquired by defendant No. 1 without the aid of the joint family funds?

3) Whether the findings of the trial Court on issue Nos. 4, 5, 6 and 7 are correct and are valid in law?

4) Whether the suit is bad for non-joinder of necessary parties and non-inclusion of all the joint family properties ?

5) Whether the finding of the trial Court on issue No. 15 is correct and valid?

POINT NO.1

10. It is the specific case of the plaintiffs that the plaintiffs and the defendants constituted members of an undivided Hindu family and defendant-1 was the Manager of the said joint family. The relationship between the parties is not in dispute. The original propositus was one Hundi Nagappa. He had a wife by name Parvathamma. Parvathamma died on 10-5-1953. Hundi Nagappa had two, sons by name H.N. Rudrappa and H.S. Siddananjappa. Plaintiffs 1 and 2 are the sons of H.N. Rudrappa and plaintfff-3 is the widow of H.N. Rudrappa and the mother of plaintiffs 1 and 2. H.S. Siddananjappa was defendant-1. Defendants 2 and 3 are his children, Defendant-1 died on 11-12-1983 during the pendency of the appeal. His legal representatives apart from defendants-2 and 3, his widow and a minor daughter are also brought on record, H.N. Rudrappa, father of plaintiffs 1 and 2 and the husband of plaintiff-3 died on 26-7-1951. At the time of his death, the 1st plaintiff was aged about 9 years and the 2nd plaintiff was aged about 7 years and the plaintiff-3 was aged about 25 years.

11. The trial Court has held that the plaintiffs have failed to prove that they and the defendants constituted members of a joint Hindu family. It has further held that defendant-1 was not the Manager of the joint Hindu family. It discarded the evidence of P.Ws.1 to 4 and also that of plaintiff-2 who is examined as P.W.6 and the documentary evidence having a bearing on the point. The evidence of P.Ws.1 and 2 has been discarded on the ground that some stigma was attached to them when they were in service. The evidence of P.W.3 has been rejected on the ground that he was suspended and that a case filed by the 1st defendant against P.W.3 for recovery of rent was pending. In this connection the trial Court has not stated anything about the evidence of P.Ws.4 and 6 and also the documentary evidence comprised in Exhibits P-6, P-7, P-12, D-1, D-83 and D-84 and also the admission of defendant-1 who is examined as D.W.22 and Ex.D-57.

12. D.W.22 (defendant-1) has specifically stated thus:

'There is no partition deed between my elder brother and myself. We have not effected any division between ourselves.'

In addition to this, P.W.1, who was the Village Accountant of Moogalabele village, has specifically stated that at the time of death of Sri Rudrappa - (father of plaintiffs-1 and 2 and husband of plaintiff-3) Rudrappa and the 1st defendant were living jointly and at that time, the 1st defendant was managing the family. The plaintiffs were doing agriculture and were assisting the 1st defendant in trade. The family had ample properties. It was engaged in agriculture and trade. The 1st defendant and his brother were trading jointly.

13. P.W.1 has also deposed to the effect that the 1st defendant gave an application for loan as per Ex.P-1. Exs.P-2, P-3 and P-4 were prepared in connection with the loan application. Ex.P-4 is the genealogy of the family. P.W.1 has also further stated that the shara found on Ex.P-4 marked as Ex.P-4(c) was written by him as per the instructions of the 1st defendant. The 1st defendant (D.W.22) deposed that he had applied for loan for growing grapes as per Ex.P-1 and furnished the genealogy. However, he stated that Ex.P-4 was not the genealogy given by him. In addition to this, there is also another document prepared in connection with the loan application marked as Ex.D-32. It is also the genealogical tree of the family. It contains the name of Hundi Nagappa as the original prepositus. The names of the father of plaintiffs 1 and 2 and the 1st defendant and also the names of plaintiffs 1 and 2 being the sons of Rudrappa and the name of the son of the 1st defendant by name H.S. Manjunath are found in Ex.D-82. There is a shara written below the genealogy stating that the genealogical tree is true. However there is a further shara in Ex.P-82 marked as Ex.P-82(b) to the effect that all are residing together as members of the joint family. The 1st defendant has admitted that he had signed Ex.D-82 on 26-10-1960 and it was prepared when his application for loan was being processed. However he further stated that he did not know who had written the words . The trial Court has rejected this document on the ground that the aforesaid shara is written in a different ink. However, it was not disputed by the 1st defendant that Ex.D-82 was prepared in connection with the loan application, Ex.P-1 and it contained the genealogical tree showing Rudrappa, the father of plaintiffs-1 and 2 and the 1st defendant as the sons of Hundi Nagappa.

14. P.W.2, Thimmaraje Gowda, the Patel of Moogabele village was also a signatory to Ex.P-4. He has deposed that the plaintiffs and the defendants were living jointly. Hundi Nagappa had house property and wet and dry lands as his ancestral property. He also gave the survey numbers of suit items 5, 7 and 13 comprised in Schedule-A. He had also stated that he had seen suit Items 5, 7, 9, 10 and 12. Ex.P-4 contains a shara that all persons mentioned in the genealogy are members of a joint family.

15. P.W.3, D.M. Pillappa who also worked as Patel of Moogabele village for some time, deposed that the plaintiffs and the defendant were joint and they also owned properties jointly and they were trading in arecanut. They had a Mandi and operated the Mandi jointly. There was no partition between Rudrappa and defendant-1. There was also no partition between the plaintiffs and defendant-1. The 1st defendant was looking after the lands and the trade in arecanut. He used to live at Moogabele and carry on trade at shandies in arecanut. Defendant-1 was also at Moogabele and carried on trade in arecanut. Later on both of them started a Mandi at Bangarpet. P.W.3 has further stated that the Mandi was in the name of Rudrappa and Sidda-nanjappa. He also further deposed that Rudrappa and Siddananjappa resided in the same house at Bangarpet.

16. P.W.4, L.P. Nanjunda Setty, who was the owner of shop-premises which was leased to Rudrappa and Siddananjappa, has deposed that he knew the 1st defendant and his brother Rudrappa. When Rudrappa was alive, both the brothers - Rudrappa and Siddananjappa - were trading in arecanut. They had their shop in the building leased to them by his father. That both the brothers traded jointly; that they carried on the trade till the death of Rudrappa for about 8 years in the shop premises leased to them. P.W.4 identified the handwriting of defendant-1 - Siddananjappa - on Exs.P-6 and P-7 - the bills issued in the name of the shop, named as H.N. Rudrappa and Siddananjappa, Nut Merchants, Boweringpet of Madamangala. Ex.P-6 and P-7 contained the signatures of the 1st defendant and the same were issued by the 1st defendant. P.W.4 was acquainted with the hand-writing of the 1st defendant because the 1st defendant had executed the lease deeds in respect of the shop premises leased by the father of P.W.4 for carrying on trade in the name of H.N. Rudrappa and Siddananjappa, Nut Merchants, Boweringpet of Madamangala. P.W.4 further deposed to the fact of execution of the lease deeds by the first defendant which were marked as Ex.D-1 dated 11-12-1946 and Ex.D-83 dated 1-8-1950; and Ex.D-84 dated 1-6-1948. These lease deeds were marked during the course of cross-examination of P.W.4 at the instance of the defendants. In addition to this, D.W.3 B.G. Chikka Siddappa has also deposed that he had a Mandi opposite to the mandi of the 1st defendant situated 4-5 mandies away on the opposite side; that he had written the lease deed Ex.D-1 and attested Ex.D-2. He has deposed that he did not know whether Rudrappa and the 1st defendant were doing nut business in the name and style of H.N. Rudrappa and Siddananjappa, nut merchants, Boweringpet of Madamangala.

17. D.W.7 also feigned ignorance that he did not know whether Rudrappa and Siddananjappa were divided or not. The 1st defendant in his written statement-which is adopted by defendants 2 and 3 - admitted that items 3, 4, 5, 7 and 13 of the plaint 'A' Schedule were the properties of Hundi Nagappa, father of himself and Rudrappa. He also further pleaded that those properties were the self-acquired properties of Hundi Nagappa and he sold the same to his wife Smt. Parvathamma under the sale deed dated 10-3-1932. Parvathamma was no other than the mother of Rudrappa and the 1st defendant. It has also come in evidence that suit item No. 7 was hypothecated by Rudrappa and Parvathamma together on 13-4-1936 under Ex.P-5. Further suit item No. 11 was purchased jointly by Rudrappa and Siddananjappa on 4-4-1942; that there was a defect in the sale deed; and it was got rectified under the Rectification Deed Ex.D-57 dated 6-3-1944. Further, in Ex.P-1 dated 8-3-1966, the application given by the 1st defendant for raising the loan, the lands bearing S.Nos. 86, 87 and 45/1 were offered as security. In this connection, it is relevant to notice that S.No. 87 which is suit item No. 11 of 'A' Schedule. It was purchased by defendant-1 and Rudrappa together and S.No. 45/1 which is suit item No. 7 was admitted to be the ancestral property. If really, the plaintiffs and the defendants were not the members of the joint family and the 1st defendant was not the manager of the joint family, the 1st defendant could not have offered S.Nos. 87 and 45/1 as security for the loan and item No. 11 would not have been purchased jointly by defendant No. 1 and Rudrappa.

18. Ex.P-12 is the extract of the demand register of the Municipality for the year 1947 to 1950-51. It shows that the building leased by the father of P.W.4 was occupied by H.N. Rudrappa and Siddananjappa.

19. The trial Court has laid stress on Ex.D-65(b). Ex.D-85 is the objection dated 26-10-1966 filed by the 1st plaintiff to the application for loan made by the 1st defendant before the President, Grape Growers Cooperative Society. No doubt the 1st plaintiff has stated in Ex.D-85 as per Ex.D-85(b); but he has also further stated that his father H.N. Rudrappa and the 1st defendant had not divided the properties; that all the properties were joint; that the 1st defendant with a view to defraud the plaintiffs had given the application for loan without the consent of the plaintiffs; that the plaintiffs have equal share in all the properties. The trial Court ought to have read the entire Ex.D-85 and considered it as a whole.

20. The lands purchased in the name of plaintiff No. 1 under Exs.D-3 and Ex.D-10 are also admitted by the plaintiffs that the same are the joint family properties. Even if the endorsement Ex.D-82(a) to the extent it states that' is excluded from consideration, there is ample evidence on record to establish that the plaintiffs and the defendants were members of a joint family and defendant No. 1 was the manager.

21. For the reasons stated above, the trial Court is not justified in discarding the evidence of P.Ws.1 to 4 and 6. P.Ws.1 and 2. were concerned with the document Ex.P-1 to P-4 and they were also in the know of the status of the family consisting of the plaintiffs and the defendants. P.W.4 deposed regarding the business carried on, by the 1st defendant and his brother Rudrappa. P.W.4 being the owner of the shop premises leased to Rudrappa and the 1st defendant was a person competent to speak to the nature of the business carried on by Rudrappa and the 1st defendant. In addition to this, the 1st defendant himself admitted that there was no partition between himself and his brother Rudrappa.

22. The contention of Sri Visweswara, learned Counsel for the defendants is that the plaintiffs and the defendants were not the members of the joint family and the 1st defendant was not the manager of the joint family. It has already been pointed out that the evidence of P.Ws. 1, 3, 4 and 6 discloses that the plaintiffs and the 1st defendant were the members of the joint family and the 1st defendant was the manager of the family in addition to this, the 1st defendant (D.W.22) himself has not stated that he was not the manager of the joint family. The contention of Sri Visweswara, learned Counsel for the respondents is that there is no evidence to establish that after the death of Hundi Nagappa, the 1st defendant acted as manager of the family. It is proved by the evidence of P.Ws.1, 3, 4 and 6 that the 1st defendant was the manager of the joint family. The lease deeds Ex.D-1, D-83 and D-84 and the bills Ex.P-6 and P-7 also establish the fact that it was defendant No. 1 who acted as the manager of the family and conducted the joint family business as a Manager. Therefore, it was he who executed the lease deads Ex.D-1, D-83 and D-84 during the life-time of Rudrappa. Even Exhibits P-6 and P-7 the bills, were issued by defendant-1. As far as the period subsequent to the death of Rudrappa, who died on 26-7-1951, is concerned, the 1st defendant was the only person to act as manager being the brother of Rudrappa and the uncle of plaintiffs 1 and 2 who were then the minors.

23. The trial Court has failed to see that the 1st defendant and the father of plaintiffs 1 and 2 were the brothers. The 1st defendant admitted in his evidence that there was no partition between himself and the father of plaintiffs 1 and 2. The legal position is that the joint and undivided family is the normal condition of Hindu Society. An undivided family is not only joint in estate but also in food and worship. The existence of joint estate is not essential requisite to constitute a joint family and a family which does not own any property may nevertheless be joint. The presumption of union is the greatest in the case of father and sons. The strength of presumption necessarily varies in every case. But the presumption is strong in the case of brothers (See Paras 212(2) and 233(1) of Mulla's Hindu Law, 15th Edition). This being the legal position, the trial Court, in the light of the admission of the 1st defendant that there was no partition between himself and his brother - the father of plaintiffs 1 and 2 and there being no further evidence to show that there was a division between the plaintiffs and the defendants after the death of Rudrappa, erred in holding that the plaintiffs and the defendants were not members of a joint Hindu family and the 1st defendant was not the manager of the said joint Hindu family. Therefore, it is not possible to sustain the findings recorded by the trial Court on issues 2 and 3. Accordingly, on Point No. 1, it is held that the plaintiffs and defendants constituted members of the Hindu joint family and defendant-1 was the manager of the same. The findings of the trial Court on issues 2 and 3 are hereby reversed.

POINT NO. 2

24. Now it is settled law that the proof of existence of a joint family does not lead to the presumption that it possesses joint property. The property held by a member of a joint family cannot also be presumed to be the joint family property. In a suit for partition, a party who claims that any item of suit property is joint family property, the burden of proving that it is so, rests on the party who asserts it. However, in a case where it is established that the joint family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property claimed to be the joint family property may have been acquired, the presumption arises that it was joint family property and the burden shifts to the party alleging self acquisition to establish affirmatively that the property was acquired without the aid of the joint family.

25. Admittedly, late Hundi Magappa - father 01 defendant-1 and H.N. Rudrappa - father of plaintiffs-1 and 2 - owned 5 items of suit properties described at items 3, 4, 5, and 13 in Schedule-A. However in Ex.D-20 and in the evidence of defendant-1, it is tried to be contended that these properties were the self-acquired properties of Hundi Nagappa. But defendant-1 ultimately admitted in his evidence that he did not know how his father acquired these properties. There is no sale deed produced to show that Hundi Nagappa purchases these properties nor there is any other document produced to show that these properties were owned by a person other than the ancestor of Hundi Nagappa. In the absence of any specific evidence to show as to how these five properties came to stand in the name of Hundi Nagappa the same could be construed only as ancestral properties.

Item Nos. 3 and 4 are the tiled-roof houses situated at Moogalabele village bearing Khata No. 18. Item Nos. 5, 7, and 13 are agricultural lands. Out of them item No. 5 bearing S.No. 4/5 measuring 7 guntas and item No. 7 bearing S.No. 45/1 measuring 22 guntas, both situated at Moogalabele village are wet and bagayat lands. Item No. 7 has a stone-revitted irrigation well with a pump-house and J.P. Set. Stem No. 13 is S.No. 93/2. It measures 4-23 acres. It is situated at Moogalabele village. It is a dry land. According to the case of the defendants, these five items were sold by Hundi Nagappa on 10-3-1932 under a registered deed of sale Ex.D-20 to his wife Smt. Parvathamma. It has already been pointed out that Parvathamma was no other than the mother of defendant-1 and late H.N. Rudrappa - father of plaintiffs-1 and 2 and the husband of plaintiff-3. The further case of the defendants is that Parvathamma enjoyed these properties as her Streedhana properties, and after her death, the 1st defendant and her daughters Rudramma, Siddananjamma and Nanjamma are in possession of the same as full owners thereof. Therefore, the plaintiffs have no title whatsoever. According to the case of the plaintiffs, Ex.D-20 was a sham and nominal deed and it was never acted upon; that these five items of properties were enjoyed as joint family properties and they continued to be joint family properties.

The circumstances which belie the case of the defendants in respect of these five items of properties and prove the case of the plaintiffs that the Sale Deed Ex.D-20 dated 10-3-1932 was a sham and nominal one are:

i) Ex.P-5 is a Deed of Mortgage dated 13-4-1936 executed by Parvathamma and H.N. Rudrappa, the father of plaintiffs-1 and 2, mortgaging suit item No. 7 along with another portion of the same S.No. 45 totally measuring 1.14 acres, (f really the said deed Ex.0-20 was intended to be acted upon and it was not a sham and nominal document, there was no question of Rudrappa joining Parvathamma for mortgaging item No. 7 along with another portion of the same survey number.

ii) D.W.22 (Defendant-1) has not denied the transaction of mortgage evidenced by Ex.P-5 dated 13-4-1936. In his evidence, the 1st defendant (D.W.22) has stated thus:

'....I do not know whether my mother and elder brother had mortgaged this survey No. 45/1 to one Nagappa under a deed dated 13-4-1936. I hear the copy now read out at Ex.P-5. I do not know whether the transaction under the original of Ex.P-5 is true. After the sale, my mother and I have paid the amount... 'The 1st defendant, however, deposed with reference to the sale of suit items 3, 4, 5, 7 and 13 under Ex.0-20 by Hundi Nagappa in favour of his wife thus:

'My father has sold the land under the original of Ex. D-20. I do not know when and how the original of Ex.D-20 was lost. I do not know who the scribe is. I did not try even to know who the scribe was, My mother sold her jewels to others and purchased the lands under Ex.D-20. I did not know to whom she sold the jewels and for how much and when. I know the properties which my mother has purchased. They are S.No. 45/1 wet 0.45 guntas. S.No. 93/2 dry 4-28 guntas two houses at Mugalabele. I do not know when my father acquired these properties but he might have acquired them by himself. As my father had debts he sold these properties. He had dealing with Chattaram Puttappa & Sons and G.S. Kappanna, it was sale of arecanut. They have filed the suits and obtained the decree. It was when my father was sick about 30-40 years ago, it was few days earlier to the sale in favour of my mother. Under the original of Ex.D-20. I do not know the number of the suits and the date of decrees. These decree debts were discharged when those lands were sold. I have not tried to obtain any copies of the decree etc. I do not know whether the debts could have been discharged by selling the jewels of my mother. My elder brother might be about 20 or 21 years and I was about 15 to 17 years when those properties were sold under Ex.D-20.'Thus it is clear that Ex.D-20 came to be created only to protect the properties mentioned in Ex.D-20 from the creditors of Hundi Nagappa. This goes to show that the transaction evidenced by Ex.D-20 was only a sham and nominal one and it was intended to ensure that the properties mentioned in Ex.D-20 continue with the joint family and to keep them beyond the reach of the creditors of Hundi Nagappa. Consistent with it, these properties were continued in the name of Parvathamma only.

At this stage itself, the contention urged by the learned Counsel for the appellants that Ex.D-20 is not admissible in evidence because it is not the original document, can be disposed of.

No doubt Ex.D-20 is a certified copy of the sale deed. At the time it was produced and marked in the case, the plaintiffs objected to it. As the execution of Ex.D-20 by Hundi Nagappa in favour of his wife Smt. Parvathamma is not disputed, non-production of the original does not assume much importance. Therefore, the contention is rejected.

iii) P.W.6 (plaintiff-1) has also deposed that the suit items 3, 4, 5, 7 and 13 of A Schedule are ancestral properties. They were not sold by Hundi Nagappa to Parvathamma, the grand mother of plaintiffs-1 and 2. Parvathamma did not reside separately at any time and did not enjoy these properties separately. During her life-time, she was living jointly. He also further deposed that the properties of his grand-father - Hundi Nagappa - were 4.25 acres of dry land and 11 acres of wet lands.

iv) One land bearing S.No. 117 of Hanchalli and another land bearing S.No. 15/7 of Moogalabele were purchased in the name of the 1st plaintiff under Ex.D-3 dated 8-4-1960 and Ex.D-10 dated 11-10-1973 respectively. The 1st plaintiff has deposed in this connection that he had not purchased any properties after the death of his father. He had not purchased any land under Ex.D-3 and D-10. His uncle (defendant-1) asked him to come to Sub-Registrar's Office and to sign the documents. Accordingly, he signed them. These properties were not included in the suit land because they were not purchased by him. However, in the reply statement, the plaintiffs have stated that these two properties should also be treated as part of the joint family properties as they were omitted from the plaint schedule by inadvertence and these two properties were also liable for partition.

The case of the defendants with reference to these properties was that these two properties were the joint family properties and they should have been also included in the suit properties and failure to include them has affected the maintainability of the suit as the suit for partial partition is not maintainable.

It is not the case of the plaintiffs or the defendants that the 1st plaintiff had any different source of income and from that source, the 1st plaintiff purchased these properties. D.W.22 (defendant-1) has not stated in his evidence that the lands purchased under Ex.D-3 and D-10 were not at his instance as stated by plaintiff-1 in his evidence.

v) Land bearing S.No. 87 measuring 2-01 acres of Moogalabele village (suit item No. 11) was purchased on 4-4-1942 jointly in the name of the father of plaintiffs-1 and 2 and the 1st defendant. There was a mistake in the Sale Deed inasmuch instead of S.No. 87, it was mentioned as S.No. 86. Therefore, a Rectification Deed was got executed on 6-3-1944 which is produced as Ex.D-57. This document also indicated that the family continued to be joint and enjoyed the properties as joint family properties as otherwise there was no reason for purchasing the lands jointly: in the name of the 1st defendant and Rudrappa.

26. The trial Court did not attach due importance to these circumstances. It proceeded on the basis that the properties sold under Ex.D-20 in favour of Parvathamma by Hundi Nagappa became her properties. It was of the view that Ex.P-5, the Mortgage Deed dated 13-4-1936 and the Rectification Deed Ex.D-57 dated 6-3-1944 were not sufficient to out-weigh the other evidence which was over-whelming against the plaintiffs. It also took a view that Ex.D-58 dated 20-3-1944 was executed by the 1st defendant under which he agreed to reconvey the land bearing S.No. 86 which is item No. 10 of suit Schedule 'A'. It has failed to see that it was the 1st defendant who was managing the joint family properties and the business, and suit item No. 10, according to the evidence of the 1st defendant, was purchased in his name. There is no record produced to show that suit item No. 10 of 'A' Schedule which was purchased on 6-3-1944 under Ex.D-57 was reconveyed to the vendor.

27. In addition to the aforesaid properties mentioned at item Nos. 5, 7 and 13 and also Item Nos. 10 and 11 which were agricultural lands capable of yielding sufficient income, especially item Nos. 5 and 7 which were wet and bagayat lands, the family had business also. The plaintiffs have averred that the business run by defendant No. 1 was a joint family business which was started in about the year 1944, long before the death of Hundi Nagappa. Respondents have not denied the existence of the business but have asserted that the business carried on by defendant No. 1 was not the joint family business. The evidence on record discloses that Hundi Nagappa was carrying on trade. D.W.22 has admitted in his evidence that his father Hundi Nagappa had debts. He had dealings in arecanut with Chatram Puttappa & Sons and G.S. Kappanna. They had filed suits and obtained decrees 30 to 40 years ago, a few days prior to the sale in favour of his mother under Ex.D-20. Thus the evidence of D.W.22 establishes that Hundi Nagappa, father of the 1st defendant and Rudrappa was a trader. The evidence on record further discloses that the trade was continued by the 1st defendant and H.N. Rudrappa together after the death of their father. Thus it is a case where the father of defendant-1 and H.N. Rudrappa were carrying on business in arecanut and the same was carried on by the 1st defendant and his brother. That being so, it is not a case where the business was started afresh by the 1st defendant as such it could be considered as the business of the 1st defendant and not of the joint family. This is a case in which Hundi Nagappa died leaving him the business which descended like other heritable properties on the 1st defendant and his brother H.N. Rudrappa - father of plaintiffs-1 and 2. In the hands of the 1st defendant and his brother Rudrappa, the business descended upon them by their father Hundi Nagappa became a joint family business. It was continued jointly in the name of the 1st defendant and H.N. Rudrappa. The evidence of P.W.1 is to the effect that the family was engaged in agriculture and trade. Formerly, the 1st defendant and his brother were jointly trading and now the 1st defendant trades with another. P.W.2 also has stated that Rudrappa and the 1st defendant lived together and carried on agriculture and trade. They had an arecanut mandi at Bangarpet. P.W.3 also has deposed that the plaintiffs and the defendants were joint and they had a mandi. They carried on trade in arecanut. Thus trade was the Kulachara of the family. The Mandi was in the name of Rudrappa and Siddananjappa. P.W.4, the son of Lakku Papalah Setty, who had leased the shop to the 1st defendant and Rudrappa, has deposed that the 1st defendant and Rudrappa carried on the trade in arecanut in the shop building leased to them. They carried on the trade jointly. He has also proved Ex.P-6 and P-7 the bills issued by the 1st defendant. A detailed reference has already been made to these documents while discussing point No. 1. These bills are of the year 1946. They establish the fact that the father of plaintiffs-1 and 2 and defendant-1 were running the shop in the name and style referred to in those bills. Defendant-1 has simply denied that such a shop was in existence. The lease deeds are also proved by P.W.4 which are marked as Exs.D-1, D-83 and D-84. They were executed by defendant-1 as he was the manager of the joint family.

28. The evidence also discloses that the family had sufficient income from the trade as well as from the agricultural lands.

Ex.P-12, the extract of Demand Register maintained in the Municipality, Bangarpet for the years 1947-48, 1949-50 and 1950-51 shows that the shop was standing in the name of H.N. Rudrappa and defendant-1 as the occupier of the same. P.W.4 L.P. Nanjundarama Setty, owner of the shop building has stated that Rudrappa and defendant No. 1 had taken the said shop on lease and were carrying on the business jointly in the said shop. P.W.4 has referred to the bills Ex.P-6 and P-7 and has stated that they are in the hand of defendant No. 1. He has also proved the lease deeds Exs.D-1, D-83 and D-84 executed by defendant-1 in respect of the shop in question. All this material would unmistakably show that both the brothers were carrying on the business jointly.

D.W.22 has admitted that the business was run by him since 35-40 years and he had maintained accounts. D.W.22 in this regard has stated thus:

'I am trading since 35-40 years. We have maintained accounts. I am paying income tax since 20-25 years. It is a partnership business...'

D.W.22 has not produced those account books or the income tax assessment records to show that the said nut business was not the joint family business. All this material would show that the joint family possessed considerable property in the shape of lands and nut business.

29. The learned Counsel for the respondents-defendants, submitted that there is no material on record to show that the joint family had sufficient nucleus on the date of acquisition of the properties for acquiring the same by such joint funds.

30. P.W.6, the plaintiff has stated with regard to the income from the landed properties and the business thus:

'....The properties of my grand-father were 4 acres 25 guntas of dry land and one and a half acre of wet land. In the wet land, the paddy would yield 15 to 30 quintals of paddy depending on the season. In the dry lands, about 5/6 quintals of ragi was to be grown. My grand-father was living and maintaining himself and his children.'

He has further stated thus:

'During my father's time, there was an annual income of Rs. 30,000/- and there was savings of Rs. 10,000/- per year. All the accounts are with the 1st defendant who is our uncle...'

As P.W.6 was very young during the life-time of his father, this piece of evidence of the plaintiff cannot be accepted on its face value. But defendant-1, admittedly was in possession of the account books and the income-tax assessment records, has not produced the same. He has also, not produced any material to show what actually was the income from the landed properties and the business. Having regard to the evidence on record, it is clear that the plaintiffs have established the fact that the family had sufficient nucleus for acquiring the properties.

31. Admittedly item Nos. 3, 4, 5, 7 and 13 of Schedule-A are the ancestral properties in the hands of defendant No. 1 and H.N. Rudrappa. Item Nos. 1 and 2 of Schedule-A, a house and an open site - were purchased in the name of defendant No. 1 during the life-time of H.N. Rudrappa on 16-10-1947 under Ex.D-2 for an amount of Rs. 2,000/-. Item No. 6 of Schedule-A, an agricultural land measuring 7 guntas was purchased in the name of defendant No. 1 on 21-4-1952 under Ex.D-54 for an amount of Rs. 200/-, Item No-8 of Schedule-A, an agricultural land was purchased under Ex.D-15 on 26-4-1956 for an amount of Rs, 200/-. Item No. 9 of Schedule-A, another agricultural land was purchased for an amount of Rs. 500/-under Ex.D-14 on 23-4-1952. Item No. 10 in Schedule-A was purchased in the name of defendant-1. Under Ex.D-58 dated 20-3-1944, defendant No. 1 had agreed to reconvey the same to the vendor if the amount is paid within four years from the date of Ex.D-58; but no evidence is placed on record to show that the vendor paid the amount and got the land reconveyed.

Item No. 11 in Schedule-A, an agricultural land was purchased in the name of both the brothers on 24-4-1942 for an amount of Rs. 50/-. Item No. 12 in 'A' Schedule is the property purchased under Ex.D-85 on 21-4-1952 in the name of defendant-1 for an amount of Rs. 350/-. Item No. 14 in Schedule-A was purchased in the year 1959 under Ex.D-56 dated 5-8-1959 for an amount of Rs. 300/- in the name of defendant No. 1. Item Nos. 15 and 16 of Schedule-A were purchased under Ex.D-12 on 30-9-1959 for an amount of Rs. 500/- in the name of defendant-1.

Defendant-1 (D.W.22) in respect of Item Nos. 17 and 18 has stated that they were reconveyed to the parties as he had purchased them with a condition to reconvey the same on payment of the amount but no document of reconveyance is produced. Admittedly, the father of plaintiff Nos. 1 and 2 died in 1950-51. The properties item Nos. 1, 2, 10 and 11 were acquired during the life-time of H.N. Rudrappa. Out of them item Nos. 1, 2 and 10 in the name of defendant-1 and item No. 11 in the joint name of defendant-1 and Rudrappa were acquired. The other item of proper ties were acquired after the death of Rudrappa.

32. From the above, it is clear that small bits, of properties were purchased as and when the funds were available in the name of defendant-1 or in the joint names of defendant No. 1 and late H.N. Rudrappa. This would clearly establish the fact that the acquisition of the properties made at different intervals either in the name of defendant No. 1 or in the joint name of defendant-1 and his brother H.N. Rudrappa were acquired by the joint family from out of the family funds,

33. Defendant-1 though averred that he had spent huge amount for developing the landed properties and for constructing the house, but he has failed to establish this fact of improving the lands and spending huge amount on the construction of the house. The trial Court has rejected this case. It has considered these different acquisition of properties at paras 24, 25 and 26 of its Judgment. The reasoning adopted by the trial Court is that as the documents are in the name of defendant-1, these properties must be considered to be self-acquired properties of defendant-1. This reasoning is clearly erroneous and unsustainable. The trial Court has also failed to consider the proper effect of Exhibits P-6, P-7, P-12 and the lease deeds Ex.D-1, D-3 and D-84 and the evidence of P.W.4 and thereby has erroneously held that the plaintiffs failed to establish that the business was a Joint family business.

34. The 1st defendant in para 12 of his written statement has pleaded that suit item Nos. 9, 17 and 13 of 'A' Schedule are not in his possession but they are in the possession of Monappa, son of Venkatappa, Hosur Venkatappa and Pillappa respectively. He has also further pleaded that suit item Nos. 10, 11 and 13 of 'A' Schedule are in the possession of Narayanappa son of Venkataramanappa and item No. 8 is leased to one Krishnappa. In his evidence, the 1st defendant has stated that item Nos. 7, 9, 12, 15 and 16 of plaint 'A' Schedule are in his possession and he is personally cultivating them. Similarly he has further stated that item Nos. 1, 2, 6, 8, 10 to 12 and 14 to 16 of plaint 'A' Schedule are also in his possession. Ex.D-60, the Record of Rights extract for the years 1965 to 1969 relates to the land bearing S.No. 5/1 of Moogalabele village. It is item No. 6 of plaint 'A' Schedule. According to the evidence of D.W.22, he is in possession of the same. Therefore, Ex.D-60 which shows one Chikka Cheluva son of Kodappa has cultivated the land on wara basis for the years 1965 to 1969 cannot be accepted as recording true and correct facts. The presumption as to the entries in Ex.D-60 to be true until the contrary is proved under Section 133 of the Karnataka Land Revenue Act, 1964, is rebutted as it is admitted by D.W.22 (1st defendant) that he is in possession of the land bearing S.No-5/1 of Moogalbele village. Added to this no evidence is adduced to show that an application in Form-7 under Section 4S-A of the Karnataka Land Reforms Act, 1961 is filed by Chikka Cheluva in respect of S.No. 5/1 of Moogalbele village and other persons in respect of items 8, 9, 10, 11, 13, 17 and 13 of plaint 'A' Schedule.

35. For the reasons stated above, point No. 2 is answered in the negative and it is held that the trial Court is not justified in holding that there was no sufficient nucleus possessed by the joint family to enable it to acquire the properties which were claimed by defendant-1 as his self-acquired properties. It is also further held that the properties which were claimed to have been acquired by defendant-1 were acquired with the aid of the joint family funds and as such they are not his self-acquired properties.

POINT NO. 3

36. While considering point No. 2, it has already been held that plaint 'A' schedule properties and S.No. 117 of Hanchalll village and S.No. 15/7 of Moogalbele village are the joint family properties, it has also been held that trade was the 'Kulachara' of the family of Hundi Nagappa, the propositus of the family who carried on the trade. After his death, it was continued by the father of plaintiffs-1 and 2 and defendant-1. After the death of the father of plaintiffs-1 and 2, the 1st defendant carried on the trade. It is also admitted by D.W.1 as D.W.22 that there was no partition in the family. Issue No. 4 framed by the trial Court was as to 'whether plaint 'A' and 'B' Schedule properties were the joint family properties of the parties'. On this issue, a finding has already been recorded as indicated above in the affirmative. It has also been held that in addition to 'A' Schedule properties, other two lands viz., S.No.117 of Hanchalli village and S.No. 15/7 of Moogalbele village purchased by defendant-1 in the name of plaintiff No. 1 are also the joint family properties. Therefore, we shall now consider whether 'B' Schedule properties are the joint family properties.

37. 'B' Schedule consists of three parts - Item No. 1, item No. 2 and item No. 3. Item No. 3 relates to moveables. Item No. 2 relates to standing crops and item No. 1 relates to partnership business. While recording the finding on point No. 2, it has been held that the business carried on by defendant-1 was the joint family business. There is no evidence adduced by defendant-1 to prove that he had a different source of income and he started the business from the income he had from the different source and that the business carried on by him was not the joint family business. It is relevant to bear in mind that defendant-1 was the kartha of the family. The business was carried on by the family from the time of the original prepositus Hundi Nagappa. In fact, Hundi Nagappa incurred debts because of the business he carried on and in order to save the ancestral properties, he had created a sham and nominal Sale Deed Ex.D-20 in favour of his wife - mother of defendant-1 and the father of plaintiffs 1 and 2. After the death of Hundi Nagappa, the evidence on record, as already pointed out, also goes to show that the father of plaintiffs 1 and 2 and defendant-1 carried on the business as joint family business. It was only after the death of the father of plaintiffs-1 and 2, defendant-1 started doing business in partnership with G.K. Basavarajappa under the name and style of H.N. Siddananjappa and G.K. Basavarajappa, Nut Merchants and Commission Agents, Bangarpet. As there was no partition in the family, the business that was carried on by defendant-1 in partnership with G.K. Basavarajappa to the extent of the share of defendant-1 in the partnership, it was a joint family business.

38. It is not a case in which business was started by defendant-1. It is a case in which business was carried on by the ancestor of defendant-1 and continued by defendant-1 and the father of plaintiffs-1 and 2. There is no evidence on record to show that the business carried on by defendant-1 in partnership with G.K. Basavarajappa under the name and style of H.N. Siddananjappa and G.K. Basavarajappa, Nut Merchants and Commission Agents, Bangarpet, was a separate business and had no connection with the business of the joint family. Defendant-1 was the kartha of the joint family and as such he was in the control and possession of the assets and the income of the joint family. So the burden was upon him to prove that the partnership business carried on by him with G.K. Basavarajappa had nothing to do with the joint family funds and joint family business and that it was carried on by the income available to him from a source different from the joint family funds. The 1st defendant has failed to discharge this burden. Therefore, it is held that item No. 1 of 'B' Schedule, to the extent of the share of defendant-1 in the partnership business conducted under the name and style of H.N. Siddananjappa and G.K, Basavarajappa, Nut Merchants and Commission Agents, Bangarpet, was a joint family business.

39. As already pointed out, item No. 2 of 'B' Schedule relates to the crops standing on the date of suit on the lands described at items 5 to 18 of 'A' Schedule. The trial Court has held that item Nos. 2(a) to 2(n) and item Nos. 3 and 6 of 'B' Schedule are not in the possession of the 1st defendant. No reasons are assigned by the trial Court. In papa 33 of the Judgment, the trial Court has held thus:

'I am of the opinion, plaintiffs have failed to prove the existence of any nucleus. For the reasons stated in paras above, I hold issue No. 4 in the negative against the plaintiffs. I hold issue No. 5 and 6 in the affirmative, in favour of the first defendant. I also hold issue No. 7 in the negative, against the plaintiffs.'

In this regard, the trial Court appears to have been swayed away by the fact that it had held that the Schedule-A properties were not the joint family properties. As it is held by us that the suit Schedule-A properties are the joint family properties, the crops standing on suit items 5 to 18 of 'A' Schedule on the date of suit would also become the joint family properties. However, we keep it open to be decided in the final decree proceedings as to the extent, nature and the value of the crops in suit items 5 to 18 of 'A' Schedule.

40. Item No. 3 of 3 Schedule relates to moveables. It consists of sixtyfive items i.e., items Nos. 3 to 67. We do not propose to go into this question. We keep it open to be decided in the final decree proceedings. It is open to the parties to canvass before the Court in the final decree proceedings and prove the existence and value of the moveables as mentioned in item No. 3 of 'B' Schedule. Accordingly, the finding recorded by the trial Court on issue No. 4 is reversed and issue No. 4 is answered in terms of the findings recorded above.

41. Issue No. 5 framed by the trial Court reads thus:

'Whether the first defendant's father owned item Nos. 3, 4, 5, 7 and 13 of 'A' Schedule that he sold away the said properties to his wife Parvatharama under the registered sale deed dated 10-3-1932, that Parvathamma died 13 years ago leaving behind the said properties as her Stridhana properties and that since then, the first defendant has been in possession thereof as full owners.'

It has already been held by us that suit items 3, 4, 5, 7 and 13 of 'A' Schedule were the ancestral properties. The Sale Deed executed by Hundi Nagappa in favour of his wife Smt. Parvathamma in respect of the aforesaid items of properties on 10-3-1932 was a sham and nominal document intended to protect the aforesaid ancestral properties from the creditors and save them for the family. It has also been pointed out while considering point No. 2 that the Sale Deed dated 10-3-1932 was not treated as real and effective and the properties were dealt with by the parties as though the said alienation had no effect. When the very Sale Deed dated 10-3-1932 was a sham and nominal document, it cannot be construed to have conveyed any title to Smt. Parvathamma in suit items 3, 4, 5, 7 and 13 of 'A' Schedule and as such those properties could not become her Stridhana properties. As there was no partition in the family, the fact that any one of the members of the family enjoyed these properties would not be construed as adverse to other members of the family since there was no overt act of ousting the other members and enjoyment of the properties to the exclusion of the other family members. The trial Court has answered issue No. 5 in the affirmative. In the light of the aforesaid discussion, neither Smt. Parvathamma would become the owner of the properties nor the 1st defendant could be construed to be full owner of those properties. Therefore, the trial Court is not justified in answering issue No. 5 in the affirmative. Accordingly, the finding of the trial Court on issue No. 5 is reversed and it is answered in the negative.

42. Issue No. 6 relates to suit item Nos. 1, 2, 6, 8, 10 to 12 and 14 to 16 of 'A' Schedule. These properties were claimed by the 1st defendant as his self-acquired properties. The trial Court has answered this issue in the affirmative. Consequently, it has held that these items of properties are the self-acquired properties of the 1st defendant. While recording a finding on point No. 1, it has been held that there was a joint family consisting of the plaintiffs and defendant-1 and his children and defendant-1 was the kartha of the joint family. While discussing point No. 2, it was also held that the joint family had sufficient nucleus.

42.1. It is a settled position of law that when once it is established that the joint family possessed sufficient nucleus, the onus shifts on to the person who claims the property as self-acquired, to affirmatively make out that the property was acquired without any aid from the family estate (See MUDIGOWDA v. RAMACHANDRA and APPALASWAMI v. SURYA NARAYANAMURTI AIR 1947 PC 189. It is also well established that where at the date of acquisition of a particular property, the joint family had sufficient nucleus for acquiring it, the property in the name of any member of the joint family should be presumed to be acquired from out of the family funds and was to form part of the joint family property unless the contrary is shown (See K.V. NARAYANASWAMI IYER v. K.V. RAMAKRISHNA IYER AND ORS. . It is more so in the case of a kartha of a joint family possessing sufficient nucleus at the time of acquisition of the property in his name to prove that he acquired it independent of, and without the aid of, the joint family funds. In the instant case, as already pointed out, the joint family possessed sufficient nucleus and the 1st defendant was the kartha of the joint family. He has failed to prove that the properties acquired in his name were acquired by him independent of and without the aid of the joint family funds. Therefore, it has to be held that the suit items 1, 2, 6, 8, 10 to 12 and 14 to 16 of 'A' Schedule properties are the joint family properties and they are not the self-acquired properties of the 1st defendant.

43. Issue No. 7 framed by the trial Court reads thus:

'Whether items Nos. 9, 17, 18, 5, 6, 10, 11, 13 and 8 of 'A' Schedule and items 2(a) to (n) 3 and 6 of 'B' Schedule and moveables found in items 3 and 4 of Mudalabele are in the possession of the first defendant and liable for partition.'

While discussing point No. 2, it has already been held that the 1st defendant was in possession of suit items 9, 17, 18, 5, 6, 10, 11, 13 and 8 of 'A' Schedule. Therefore, no further discussion is necessary in this regard.

44. Regarding suit items 2(a) to (n) of 'B' Schedule, it has already been held that the crops standing on the lands described at items 5 to 18 of 'A' Schedule properties would be the joint family properties. However, the nature, extent and the value of the crops are left open to be proved in the final decree proceedings. Moveables described in items 3 and 6 of 'B' Schedule are also left open to be decided in the final decree proceedings. Accordingly, the finding on issue No. 7 is reversed and it is answered in the aforesaid terms.

45. Thus on point No. 3, it is held that the findings recorded by the trial Court on Issues 4, 5, 6 and 7 are not correct and the findings of the trial Court on those issues are reversed and those issues are answered as indicated above.

POINT NO. 4

46. The trial Court has held that the 1st defendant has failed to prove that the suit was bad for non-joinder of necessary parties and non-inclusion of the joint family properties. Two items of properties viz., S.No. 15/7 of Moogalabele village and S.No. 107 of Hanchalli village, which were purchased in the name of plaintiff-1, were not included in the plaint. In the reply statement filed by the plaintiffs, they have stated that the aforesaid two lands may also be included for partition. Therefore, the contention as to non-inclusion of the joint family properties did not survive.

47. No foundation is laid as to how the suit was bad for non-joinder of necessary parties. In this regard, the trial Court in para 23 of the Judgment has held thus:

'The khirdi extracts referred to above show that the first defendant has paid kandayam to the lands standing in the khata of h'is mother Parvathamma. The only inference that flows, if the recitals in Ex.D-20, are read conjointly with Exhibits D-21 to D-37 is that items 3, 4, 5, 7 and 13 of the plaint 'A' schedule were the separate Stridhana properties of the first defendant's mother Parvathamma. It should be mentioned here that once it is held that these items are the stridhana properties of Parvathamma, the suit is defective since the three daughters of Parvathamma viz., Rudramma, Siddananjamma and Nanjamma are not made parties. The non-impleading of these three daughters is fatal to the plaintiffs' suit. The case of the first defendant is that these properties were given to him and his three sisters. Ex.D-38 to D-42 are the katha extracts for the years 1958-59, 1959-60, 1960-61, 1961-62 and 1963-64 showing that the katha has been changed to the name of the first defendant. Exhibits B-43 to D-52 are the pahani extracts for the years 1955-56, 1956-57, 1958-59, 1963-64, 1964-65, 1957-58, 1959-60, 1961-62 and 1962-63. The pahani extracts Exhibits D-49 to D-51 clearly show that the first defendant was in possession of the items which formerly stood in the name of his mother Parvathamma. What is stated so far leads me to the conclusion that after the death of Parvathamma, her properties came to the possession of the first defendant.'

48. From the aforesaid finding it is clear that suit items 3, 4, 5, 7 and 13 were in the possession of the 1st defendant. As to how the other persons viz,, Rudramma, Siddananjamma and Nanjamma were entitled to any interest in the suit items 3, 4, 5, 7 and 13 of 'A' Schedule has not been established. In para 10 of the written statement it has been asserted that these properties were the stridhana properties of Parvathamma as the same were sold by Hundi Nagappa - husband of Parvathamma - to Parvathamma under/a registered Sale Deed dated 10-3-1932, therefore, the said properties became the stridhana properties of Parvathamma and the daughters of Parvathamma were the full owners thereof. In this regard, it has already been held by us that the Sale Deed dated 10-3-1932 executed by Hundi Nagappa in favour of his wife Smt. Parvathamma was a sham and nominal document in tended to save the aforesaid properties from the clutches of the creditors. Further it was not treated as real and actual sale and the properties were enjoyed jointly by all the family members. Therefore, these items did not become the Stridhana properties of Parvathamma. As such there was no question of her daughters inheriting the same ON the death of Parvathamma. Accordingly, the daughters of Parvathamma are not necessary parties. Hence point No. 4 is answered in the negative. It is held that the suit is not bad either for non-joinder of necessary parties or for non-inclusion of all the joint family properties.

POINT NO.5

49. In view of the findings recorded on point Nos. 1 to 4, the plaintiffs are entitled to the reliefs sought for in terms of the findings recorded above.

50. For the reasons stated above, the Judgment and decree of the trial Court are reversed. The suit of the plaintiffs is decreed. It is held thus:

1) Plaint items 1 to 18 of 'A' Schedule and S.No. 117 of Hanchalli village and S. No. 15/7 of Moogalabele village are the joint family properties. They are available for partition.

2) Item No. 1 of plaint 'B' Schedule, to the extent of the share of defendant-1 in the aforesaid partnership is held to be joint family property;

3) Items 2(a) to 2(n) of 'B' Schedule are the joint family properties. However, the nature and extent of the value of the crops standing on items 5 to 18 of 'A' Schedule lands are kept open to be proved in the Final Decree Proceedings;

4) Moveables described in item No. 3 of 'B' Schedule consisting of 65 items being items 3 to 67 are also kept open to be proved in the final decree proceedings;

5) The plaintiffs (appellants) are entitled to one half share in all the joint family properties as indicated above. They be put in possession of the half-share by the Court and the Deputy Commissioner according to the nature of the properties;

6) The accounts of the partnership firm run under the name and style of H.N. Siddananjappa and G.K. Basavarajappa, Nut Merchants and Commission Agents, Bangarpet, be taken and the value of the share of the 1st defendant therein be determined and in that, one half share of the plaintiffs be awarded to the plaintiffs . The amount payable to the plaintiffs will carry interest at 12% from the date of the suit till the date of the decree of the trial Court and from the date of the decree of the trial Court till the date of payment at 6% p.a.

7) There shall be an enquiry into the profits relating to one half share of the plaintiffs from the date of suit till the date of delivery of possession.

8) The plaintiffs are also entitled to costs throughout.


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