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Bhimavarapu Subba Reddy and anr. Vs. B. Nagireddy and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAndhra Pradesh High Court
Decided On
Case NumberLetter Patent Appeal No. 216 of 1971
Judge
Reported inAIR1973AP184
ActsHindu Law
AppellantBhimavarapu Subba Reddy and anr.
RespondentB. Nagireddy and anr.
Appellant AdvocateP. Raja Rao, Adv. for ;Y.V. Narayana, Adv. and ;B. Ramalingeswara Rao, Adv.
Respondent AdvocateY. Suryanarayana, Adv.
Excerpt:
.....by their mother and guardian - appellants claimed that property sold by respondent no. 1 was joint family property even though bought by respondent no. 1 - person who alleges that property is joint family property must show that owner had voluntarily thrown property into joint stock with intention of abandon all separate claims - same was not proved in this case - held, property was self acquired property. - - 8,000 /-.it is well settled that there is no presumption that any property purchased by the manager of a joint hindu family is joint family property. it is well settled that the respondent is entitled to support the judgment appealed against, of any ground, including a particular ground which has been decided against him. 15. it is well settled that a property acquired..........subsequently discharged by selling away ancestral property that the plaint a schedule property was joint family property of the plaintiffs. the plaintiffs further submitted that the sales under exs. b-1 and b-2 were not supported by the legal necessity, nor were they made for the benefit of the joint family. the lands were sold for a grossly inadequate price. the recitals in the sale-deeds that the property was not convenient for cultivation was false and no other property was intended to be purchased or purchased as recited in the sale-deeds. the property was merely sold with a view to invest the amounts in speculation and gambling.4. the father who was the first defendant remained ex parte. the alienees, defendants 2 and 3 contended that the a schedule property was the self acquired.....
Judgment:

Alladi Kuppuswami, J.

1. Defendants 2 and 3 in O. S. No. 41 of 1964 on the file of the Sub Court, Gudivada are the appellants. The suit was brought by respondents 1 and 2 herein who were minors, represented by their mother and guardian, for partition and separate possession of the plaint ' A ' Schedule property into three equal shares and for allotment of two such shares to the plaintiffs after setting aside the alienation of the A Schedule property by their father to the extent of the plaintiffs' share and for other reliefs. The plaintiffs' father, Bhimavarapu Nagireddy, was the first defendant in the suit, and the alienees Defendants 2 and 3.

2. Nagireddi and his two minor sons constituted a joint Hindu family. The family owned ancestral property of an extent of Ac. 2-64 cents of wet land and 0-04 cents of house site in the village of Pamarru, Krishna District. Nagireddi was also carrying on business on fertilisers and was plying motor vehicles. He purchased the plaint A Schedule property under three sale-deeds, Exs. B-3, B-4 and B-5 dated 4-7-58 for Rs. 2,000 /-, Rs. 4,000 /- and Rs. 2,000 /- respectively. He sold these properties under two sale-deeds, Exs. B-1 and B-2 dated 9-8-1962. The first sale-deed was in respect of Ac. 2-95 cents for a sum of Rs. 9,000 /- in favour of the second defendant in the suit and the second sale-deed was in respect of Ac. 1-00 for a sum of Rs. 3,000 /- in favour of the third defendant in the suit. In both the sale-deeds it was stated that the lands sought to be sold were far away and inconvenient for cultivation and they were being sold for the purpose of purchasing other property which would be within easy reach and as it was profitable to sell the properties. The executants were Nagireddy and his two minor sons, represented by their father and guardian, Nagireddy, and the property was described as their property. Under the sale-deeds one third of the sale price was paid and for the balance, namely Rs. 6,000 /- in regard to Exs. B-1 and Rs. 2,000 /- in regard to Ex. B-2, promissory notes were executed by the purchasers and it was stipulated that the amounts due under the promissory notes would be paid when the other property proposed to be purchased was actually purchased. The purchasers were given possession of the property on the date of the execution of the sale-deeds.

3. The two minor sons of Nagireddy, represented by their mother filed the suit questioning the alienation made by the father under Exs. B-1 and B-2. In the plaint it was stated that their father was indulging in gambling in clubs and the A Schedule property was purchased by contracting debts which were subsequently discharged by selling away ancestral property that the plaint A Schedule property was joint family property of the plaintiffs. The plaintiffs further submitted that the sales under Exs. B-1 and B-2 were not supported by the legal necessity, nor were they made for the benefit of the joint family. The lands were sold for a grossly inadequate price. The recitals in the sale-deeds that the property was not convenient for cultivation was false and no other property was intended to be purchased or purchased as recited in the sale-deeds. The property was merely sold with a view to invest the amounts in speculation and gambling.

4. The father who was the first defendant remained ex parte. The alienees, defendants 2 and 3 contended that the A Schedule property was the self acquired property of the first defendant and he had absolute rights to dispose of the property. Their case was that he earned considerable income by plying motor vehicles and the A Schedule property was purchased with the said amount. Even assuming that the property was joint family property, the sales by the first defendant in favour of defendants 2 and 3 were supported by legal necessity and for the benefit of the family. The price fetched was the maximum that could be paid for the lands. The allegation that the first defendant was indulging in gambling was false. The suit lands were situate far away in Pedamaddali village at a distance from Pamarru where the family was residing and could be conveniently cultivated. It was therefore, in the interests of the family to buy other property which would be more convenient for cultivation than the lands sold.

5. The learned Subordinate Judge framed necessary issues. He held under issues 1 and 2 that A Schedule properties were the joint family properties of the first defendant and the plaintiffs. Under issue 4 he held that the sale of the suit property was supported by consideration, but it was not binding on the minor plaintiffs as it was not for necessity or for benefit. He also held that the alienees did not make any bona fide enquiries whether the lands which the first defendant intended to purchase were of superior quality and whether they would be more beneficial to the joint family than the lands sold to them. He also held that jeopardising property which is already owned by the joint family for the mere purchase of another property can under no circumstances be considered as benefit to the joint family. He also held that there was no difficulty in cultivating the existing lands. In the result, he passed a preliminary decree for partition and separate possession of the Plaint A Schedule property into three equal shares and for allotment of two such shares to the plaintiffs. He directed that the plaintiffs were entitled to Rs. 2,000 /- towards past profits together with interest and the future mesne profits should be determined in separate proceedings.

6. Defendants 2 and 3 preferred A. S. 404 of 1966 to this Court. Our learned brother, Chinnappa Reddy, J., allowed the appeal. He held that out of the A Schedule properties, the properties purchased by the first defendant under Exs. B-3 and B-5 and approximately half the property purchased under Ex. B-4 was his self-acquired property and the other half purchased under Ex. B-4 was the joint family property. It was sought to be contended before him that at any rate the property purchased under those documents acquired the character of joint family property by being voluntarily thrown by the first defendant in to the joint stock. He observed that such a case was not pleaded by the plaintiffs, nor any evidence was adduced to substantiate such a case and therefore negatived that contention. He further held that the prices fetched under Exs. B-1 and B-2 were fair, that the lands were sold because they were not convenient for cultivation and with a view to invest the sale price in the purchase of other lands more conveniently located and the mere fact that such lands were not purchased with the amount would not vitiate the sale. In the result he held that the alienations under Exs. B-1 and B-2 were valid. As the first defendant died before the appeal was disposed of and the plaintiffs became entitled to the entire balance of consideration. Chinnappa Reddy, J. Directed the alienees to deposit the balance of Rs. 8,000 /- due from both of them with interest from 9-8-62 at the stipulated rate of 12 % per annum and the trial court was directed to issue appropriate directions to invest the money or its payment to the plaintiffs on an application filed by the plaintiffs. It was further provided that the plaintiffs would be entitled to recover money in execution, if it was not deposited.

7. The plaintiffs have preferred this Letters Patent Appeal against the judgment and decree of this Court in A. S. No. 404 of 1966.

8. The two questions for consideration are :

(1) Whether the A Schedule property or any part of it is the self-acquired property of the first defendant or the joint family property of defendant 1 and plaintiffs 1 and 2 ?

(2) If the plaint A Schedule property or any part of it is the joint family property, whether the alienation of such property, under Exs. B-2 and B-3 is valid and binding on the plaintiffs?

1st Question :

9. As stated earlier, the plaint A Schedule property was purchased on 4-7-1958 under Exs. B-3, B-4 and B-5 for a total consideration of Rs. 8,000 /-. It is well settled that there is no presumption that any property purchased by the manager of a joint Hindu family is joint family property. Where in a suit for partition, a party claims any property as joint family property, the burden of proving that it is so is on the party asserting it. The plaintiffs must prove that the family was possessed of some property with the income of which the property could have been acquired, or that it was purchased with joint family funds, such as the proceeds of sale of ancestral property or by joint labour. If it is established that the family possessed some property which from its nature and value may have formed the nucleus from which the property in question may have been acquired, the presumption arises that it was joint 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 property. But no such presumption would arise if the nucleus is such that with its help the property claimed to be joint could not have been acquired. An important element for consideration is the income which the nucleus yielded. The existence of some nucleus is not the sole criterion. The nucleus should yield sufficient surplus income from which the subsequent acquisitions could be made. In this case the joint family was holding 2-641/2 cents of wet land. The income from this land could have been just sufficient for the maintenance of the first defendant and his family. It is not established that this yielded a surplus income which could have been utilised for the purpose of purchase of the plaint A Schedule property. In this context, the case of the plaintiffs as stated in the plaint is significant. It is not stated that the property was purchased out of the surplus income from the joint family property. On the other hand, the case is that the first defendant contracted debts and he discharged the debts by the sale of ancestral property. Therefore, this is a case where the property is claimed to be joint family property, not by reason of the fact that it was purchased out of the income from a joint family property, but because the acquisition is traceable to the sale of joint family property. It is therefore, necessary to see whether this specific case has been made out.

10. It was contended that the defendant contracted debts under Exs. A-1 to A-3. Ex A-1 is a promissory note dated 4-7-58 for Rs. 4,500 /- in favour of Rangamma, wife of P. W. 2. Ex. A-2 is a promissory note D /- 19-6-1958 for Rs. 2,270 /- in favour of P. W. 5 and Ex. A-3 is a promissory note D /- 14-11-58 for Rs. 4,700 /- in favour of the father of P. W. 3. It was plaintiffs case that these amounts were utilised for the purchase of the plaint A Schedule property under Exs. B-3 to B-5 and the amounts due under these promissory notes were discharged by the sale of ancestral property under Exs. A-4 to A-6 dated 6-2-59, 23-6-1959 and 23-6-1959 respectively. It was found by the trial Court that Exs. A-1 and A-3 are not genuine and there is nothing either in those documents or in exhibits A-5 and A-6 to show that they were discharged with the help of the amounts received by the sale of the ancestral property under Exs. A-4 and A-6. The trial Court therefore, held that Exs. A-1 and A-3 were created to impress on the Court that the first defendant purchased the suit properties by incurring debts and discharging them by the amounts received by the sale ancestral properties. This finding was not questioned before our learned brother Chinnappa Reddy, J., or even before us. Hence, it follows that there is nothing to show that the amounts received by the sale of ancestral property went directly or indirectly towards the purchase of property under Exs. B-3 and B-5. We therefore, agree with Chinnappa Reddy J., that the properties covered by Exs. B-3 and B-5 are not shown to be joint family properties. It is in evidence that the first defendant was carrying on business of plying buses and in fertilisers. Though the plaintiffs contended that the first defendant indulged in gambling, their mother admitted that he had no such vices. Hence it is apparent that the defendant has his own source of income. The properties purchased under Exs. B-3 and B-5 are therefore his self-acquired properties.

11. There remains the extent of Ac. 1.95 cents purchased under Ex. B-4 dated 4-7-58 for Rs. 4,000 /-. It is the plaintiffs case that the first defendant borrowed Rupees 2,270 under a promissory note, Ex. A-2 dated 19-6-58 in favour of P. W. 5 and this sum was utilised in part for the purchase of the property under Ex. B-4,. This promissory note was ultimately discharged by an endorsement, Ex. A-16 dated 6-2-1959 which shows that an amount of Rs. 2,441-12-8 was paid and the promissory note was cancelled. On the same day the first defendant sold Ac. 1-33 1/2 cents of wet land Ac. 0.041/2 cents of house site for Rs. 3,000 /- under Ex. A-4. It was recited in that sale-deed that the sale was executed for the purpose of discharging the debt under Ex. A-2. In view of the recital and the endorsement of cancellation it was held by the trial Court and Chinnappa Reddy J., that Ex. A-2 was true. It was also held that the amount borrowed under Ex. A-2 namely Rs. 2,270/- was utilised in part for the purchase of the property under Ex. B-4. As this represented nearly half the consideration under Ex. B-4, Chinnappa Reddy, J., held that half the property purchased under Ex. B-4 can be regarded as joint family property and the other half his self acquired property. We have no reason to disagree with the findings of the trial Court and of Chinnappa Reddy, J., that Ex A-2 is true and that Ex. A-2 was discharged by the sale of ancestral property under Ex. A-4.

12. Even on the above facts it is argued by Mr. Raja Rao learned counsel for the appellants that as a substantial part of the sale price under Ex. B-4 was obtained by the first defendant under a promissory note Ex. A-2 which was discharged by the sale of the ancestral property, the entire land purchased under Ex. B-4 should be treated as joint family property. On the other hand, it is contended by Mr. Suryanarayana, the learned counsel for the respondent that though the conclusion that Ex. A-2 is true may be correct, it is not shown that the amount borrowed under Ex. A-2 went towards the purchase of lands under Ex. B-4 and therefore, the property covered by Ex. B-4, cannot be regarded as joint family property.

13. We shall first take up the contention of Mr. Suryanarayana. Though Chinnappa Reddy, J., has found that the amount borrowed under Ex. A-2 was utilised for the purchase of the land under Ex. B-4, we agree that it is open to the respondent in this appeal to question the correctness of that finding. It is well settled that the respondent is entitled to support the judgment appealed against, of any ground, including a particular ground which has been decided against him. The case of the appellants that the amount borrowed under Ex. A-2 was utilised for the purchase of land under Ex. B-4 rests on the evidence of P. W. 5, who is the promisee under Ex. A-2. He stated that Nagi Reddy borrowed money for purchasing the land from Seetha Reddy, that is, P. W. 2. This obviously refers to Ex. B-4. But P. W.2 who is the vendor under Ex. B-4 says in his evidence that Nagi Reddy paid him the sale consideration by borrowing money from his wife and executing a promissory note, Ex. A-1 in her favour. When the vendor under Ex. A-4 himself says that the amount paid to him as self-consideration was obtained by executing a promissory note in his wife's favour, the plaintiffs case has to stand or fall on that evidence. As it has now been held that Ex. A-1 is not a genuine document and that finding has not been questioned, the plaintiffs cannot now be permitted to contend that the sale consideration was obtained by Nagi Reddy not by executing Ex. A-1, but by execution of Ex. A-2 in favour of P. W. 5. In the circumstances, it has to be held that there is no proof that the amount borrowed under Ex. A-2 went towards the purchase of land under Ex. B-4. It would therefore, follow that the plaintiffs have not established even in regard to the property covered by Ex. B-4 that it is joint family property.

14. In this view it will not be necessary for us strictly to consider the question whether if the amount of Rupees 2,270 /-borrowed under Ex. A-2 was utilised for the purchase of land under Ex. B-4 for a sum of Rupees 4,000 /- whether all the properties covered by Ex. B-4 could be said to be joint family properties, or whether as held by Chinnappa Reddy, J., only a proportionate part could be said to be joint family property. Anyhow, as considerable arguments have been advanced on this point and decisions cited we consider it desirable to discuss this question also.

15. It is well settled that a property acquired by causing detriment to the ancestral property would be joint family property. If, for instance, ancestral property is sold and with the proceeds thereof property acquired, the said property would be joint family property. But what would be the position if the property is acquired partly with the aid of the joint family property and partly from the manager's own funds It is contended on behalf of the appellants that in such a case, as there is detriment to the joint family property, the entire property acquired would become the joint family property. In support of this contention reliance is placed on Mangal Singh v. Harkesh, : AIR1958All42 . In that case it was found that both the ancestral property of the family and the self acquired properties were utilised for acquiring the properties in dispute. It was held that whatever may be the extent of the contribution of the acquiring member himself out of his self-acquired fund, if he takes the aid of any portion of joint or ancestral property in acquiring the property, however small that aid may be, the property so acquired assumes the character of joint family property and cannot be claimed by him as self-acquisition. It was observed that the extent of his contribution or that of the family property it is enough to make the self-acquired property, the property of the joint family.

16. It was argued that if this view is accepted as correct, even if a very insignificant portion of the joint family property is sought in aid for a acquiring the property in question, the whole property would become the joint family property which would be an unreasonable result. Though we may not be willing to go so far as to say that the extent of the contribution of the two funds is totally immaterial, we are inclined to take a view that if a fairly reasonable portion of the amount has been found to come out of the joint family property it will not be open to split up the property purchased into two parts in proportion to the amounts representing the two funds and holding that one part is joint family property and the other is self-acquisition. In such cases we are inclined to agree with the Allahabad High Court that the entire property must be taken as joint family property. In this connection it is necessary to consider the original text of Yajnavalkya . Dealing with the property not liable to partition he states as follows :................ ............... ............ ................. .................... ..................... ............... ................. ......

(Sanskrit text omitted ---- Ed. )

'Whatever else is acquired by the coparcener himself, without detriment to the father's estate, as a present from a friend or a gift at nuptials, does not appertain to co-heirs ' ( underlining is ours ).

17. Thus it is seen that property can be self-acquired property only if it is obtained without detriment to the father's estate.

Manu lays down the same thing when he says :.......... ....................... ........................... ....................... ................ ...

(Sanskrit text omitted ---- Ed. )

'What one member acquires by his exertions without using paternal wealth, with acquisition of his own effort, he shall not share unless by his own will. ' ( Manu, Ch. IX, Verse 208 )

18. Thus it is clear from these texts that the property can be self-acquired property only if it is acquired without detriment to the ancestral property or without using the ancestral property. If there is detriment to the property or it was used, the property acquired will take the character of joint family property. Whether there has been a detriment would depend on the facts of the case. If the detriment is so insignificant as not to amount to real detriment, then the property acquired will not be joint family property.

19. The decision in Venkataramayya v. Tandava Krishna Rao, : AIR1963AP305 is to the effect that if the property is acquired by detriment to the joint family property, the property so acquired is the joint family property. This Court followed the decision of the Madras High Court in Sivaramakrishna v. Kaveri Ammal, : AIR1955Mad705 . In those two cases however, it was not considered whether if a part of the amount by which the property was purchased was of the joint family funds and the other part purchased come out of the self-acquisitions, the entire property would be the joint family property.

20. If, therefore, we had been of the view that the amount borrowed under Ex. A-2, namely, Rs. 2,270 /- was utilised for the purpose of purchasing property under Ex. B-4, we would have been inclined to hold that the whole of the property covered by Ex. B-4 would have been the joint family property. But as we have already held that it is not proved that the amount borrowed under Ex. A-2 was utilised for the purpose of purchasing property under Ex. B-4, this question will not arise.

21. It was further argued by Mr. Raja Rao that even assuming that the properties covered by Exs. B-3, B-4 and B-5 are self-acquired properties they were subsequently treated as joint family properties by Nagi Reddy and therefore, acquired the character of joint family properties. In Mallesappa v. Mallappa, : [1961]3SCR779 it was held that in order to prove that self-acquired property was converted into joint family property either by treatment or blending, the conduction on which the plea of blending is based must clearly and unequivocally show the intention of the owner of the separate property to convert his property into an item of joint family property. In Naina Pillai v. Daivanai Ammal, AIR 1936 Mad 117 it was pointed out that by merely being dealt with as joint family property the self-acquired property of the person who deals with it as such does not necessarily lose its character of separate property. The person who alleges that the property is joint family property must show that the owner has voluntarily thrown the property into the joint stock with the intention of abandoning all the separate claims on it. In this case, the properties were purchased on the 4th July, 1958 under Exs. B-3 to B-5. Admittedly, the ancestral properties were sold away under Exs. A-4 to A-6 on 6-2-1959 and 23-6-59. Thus, there was not even an interval of one year during which the properties acquired could have been blended with the joint family properties. As all the joint family properties were sold away by 23-6-1959 there was no question of blending after that date. It is practically conceded by Mr. Raja Rao that there is no evidence to prove blending during the period from 4-7-58 and 23-6-1959. He relied merely on the recital in the impugned sale-deeds, Ex. B-1 and B-2. Both the sale-deeds were executed not only by Nagi Reddy for himself, but also as representing his two sons. It was also recited that the property was ' our property ' thereby meaning the property of Nagi Reddy and his sons. Further recitals are that the property was not convenient for their agricultural work and was being sold for the purpose of purchasing other property which would be within their easy reach. It was therefore, argued that this recital clearly shows that the property was treated as property belonging to all the three members of the family. We donot think that this circumstance alone would be sufficient to convert what was the self-acquired property of Nagi Reddy into joint family property. The circumstance that the purchasers paid only 1/3rd share of Nagi Reddy and retained the other 2/3rds share in the hands and executed only promissory notes in favour of Nagi Reddy and his two sons for the balance was also relied upon to show that the purchasers also regarded the property as joint family property. This can be explained on the footing that by way of auction, as minors were involved, the purchasers chose to retain the amount and executed merely the promissory notes agreeing to pay the amounts as and when fresh properties were purchased.

22. We are not satisfied that these facts are sufficient to convert the self-acquired property of Nagi Reddy into joint family property.

23. As we have held that the property is the self-acquired property, the further question whether the sale is for the benefit of the family need not be considered. We need not also consider the questions whether the purchasers made bona fide enquiries in this connection and satisfied themselves as to whether the vendor really intended to purchase another property and if so, whether that property was more conveniently located than the property which was sold to them.

24. We, therefore, agree with the conclusion of Chinnappa Reddy, J., though for different reasons. The appeal is dismissed, but in the circumstances without costs.

25. Appeal dismissed.


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