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Gundlapalli Mohan Rao and ors. Vs. Gundlapalli Satyanarayana and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal No. 430 of 1965 (with cross-objections), Tr. Appeal No. 254 of 1966 (with cross-objections) a
Judge
Reported in[1972]84ITR685(AP)
ActsIncome Tax Act - Sections 66(1)
AppellantGundlapalli Mohan Rao and ors.
RespondentGundlapalli Satyanarayana and ors.
Appellant AdvocateC. Poornaiah and ;M. Venkateswarlu, Advs.
Respondent AdvocateN. Subba Reddy, Adv. for respondent No. 1 and ;Jagannadha Rao, Adv. for respondents Nos. 2 and 3
Excerpt:
(i) direct taxation - partition - section 66 (1) of income tax act - whether there was sufficient ancestral nucleus which formed basis for acquisition of properties - contended by first defendant that none of items shown in plaint schedules belonged to joint family of himself and his sons or formed part of accretions to estate of deceased and that they are all self acquired properties in which neither plaintiff nor second and third defendant have any manner of right or claim - whatever little ancestral property was left behind by father of first defendant was sold to discharge debts incurred by sons - no evidence that any portion originally fell to share of father of first defendant - no evidence to show that when his father acquired rice mill there was any ancestral nucleus - held, there.....obul reddi, j. 1. the 1st defendant has preferred appeal no. 430 of 1965, against the judgment and decree in o. s. no. 26 of 1956 and the plaintiff has preferred appeal no. 188 of 1967 against the same decree to the extent his claim has been disallowed by the trial court. if appeal no. 254 of 1966 is preferred by the legal representatives of the 1st defendant in o. s. no. 26/56, who happened to be the plaintiff in o. s. no. iii of 1962. the 3rd defendant has preferred cross-objections in appeals nos. 430 of 1965 and 182/67 arising out of o. s. no. 26 of 1956.2. the main questions to be answered in these appeals are: (1) whether there was sufficient ancestral nucleus which formed the basis for the acquisition of the properties shown in a to d schedules attached to the plaint in o. s. no......
Judgment:

Obul Reddi, J.

1. The 1st defendant has preferred Appeal No. 430 of 1965, against the judgment and decree in O. S. No. 26 of 1956 and the plaintiff has preferred Appeal No. 188 of 1967 against the same decree to the extent his claim has been disallowed by the trial court. If Appeal No. 254 of 1966 is preferred by the legal representatives of the 1st defendant in O. S. No. 26/56, who happened to be the plaintiff in O. S. No. III of 1962. The 3rd defendant has preferred cross-objections in Appeals Nos. 430 of 1965 and 182/67 arising out of O. S. No. 26 of 1956.

2. The main questions to be answered in these appeals are: (1) whether there was sufficient ancestral nucleus which formed the basis for the acquisition of the properties shown in A to D schedules attached to the plaint in O. S. No. 26/56? (2) If there was sufficient ancestral nucleus whether the plaintiff is entitled to a share in the suit schedule properties as claimed by him; and (3) whether, even if there was no sufficient ancestral nucleus which could have formed the basis for the acquisition of the properties shown in A to D schedules, the first defendant by his conduct and action, impressed the suit properties with the character of joint family properties so as to entitle the plaintiff to a share in the suit properties Another question that arises incidentally is whether all or any of the suit properties represent the accretions to the estate of late Voleti Chenchuramaiab, which devolved under a will, on the wife of the 1st defendant and the mother of the 3rd defendant, who has now laid claims to all the suit properties.

3. The facts necessary for the disposal of the questions involved are these. The 1st defendant is the father of the plaintiff and defendants Nos. 2 and 3. The 3rd defendant is the sister of the plaintiff and the 2nd defendant. It is the case of the plaintiff that there was sufficient ancestral nucleus at the time of the partition of the properties between his father, the 1st defendant and his brothers in or about the year 1903 and that, with that nucleus, he opened a provision shop, carried on business in rice and cashewnuts and later joined as a partner in the partnership with others in a rice mill business and that, from the income realised from the rice mill and other ventures, he acquired the plaint schedule properties. It was also alternatively pleaded by the plaintiff that his father was managing the properties, which devolved upon his mother under a willexecuted by her father and that, with the income realised from these properties and also from the properties belonging to the joint family, he acquired the suit schedule properties and that, in either case, he is entitled to a one-third share in the entire properties set out in the schedules, as the will executed by Chenchuramaiah provides for devolution of all his assets on the children of his daughter, Kamakshamma, i.e., the mother of the plaintiff, after his death.

4. The 2nd defendant supported the case of the plaintiff and asked for partition of the properties on the basis that he is also entitled to a one-third share in the entire suit properties.

5. The defence of the 3rd defendant is that she is entitled to the entire suit properties as all the acquisitions now shown as plaint schedule properties were acquired with the income derived by her father from the management of the properties which devolved upon her mother tinder a will, exhibit B-141, dated February 29, 1912, and that she is entitled to all the suit properties as her mother, Kamakshamma, died in the year 1948.

6. The main defence in this case is put forth by the 1st defendant, the father of the plaintiff. According to him, none of the items shown in the plaint schedules belonged to the joint family of himself and his sons or formed part of the accretions to the estate of late Voleti Chenchuramaiah, the father of his wife, and that they are all his self-acquired properties in which neither the plaintiff nor defendants Nos. 2 and 3 have any manner of right or claim. It is his case that he was a minor when his father died in the year 1892; that, in the year 1903, there was a partition between himself and his brothers; that he was then a minor; and that, at the time of the partition, he did not get any sizable share so as to constitute the ancestral nucleus from which he could have acquired the suit properties. It is his case that, in order to eke out his livelihood and maintain his wife, whom he married in 1906, he had to first join as a clerk on a monthly salary of Rs. 10 and later become a petty trader selling rice and doing business in cashewnuts; that he was taken only as a working partner in the first instance in a rice mill business; that later with his own exertions, he purchased the rice mill in question, item No. I of the B schedule ; and that it is from out of the income realised from the rice mill that he acquired the suit properties. It is also his case that, apart from the rice mill business, he had some commission agency business. In short, his defenceis that there was no ancestral nucleus which could have formed the basisfor the acquisition of any of the properties now shown in the plaint schedules. He also denied the claim of his daughter, the 3rd defendant, that, during the period he was in management of the estate of his wife, he utilised the income derived from that estate for purchasing the rice millin 1914 or thereafter for any of the subsequent acquisitions shown in the plaint schedules.

7. The principal subordinate judge, on the main issues arising out of the pleadings, held that the 1st defendant, partly out of the ancestral nucleus and partly out of the income from the estate of late Voleti Chenchuramaiah, must have purchased the rice mill and other properties, although it is not possible to ascertain as to what extent the estate of Chenchuramaiah contributed and to what extent the ancestral nucleus contributed for the purchase of the suit properties. It is in that view that the learned subordinate judge passed a decree for partition of A and B schedule movable and immovable properties into six shares giving 1/6th share each to the plaintiff and defendants Nos. 1 and 2 and the remaining 3/6th share to the 3rd defendant. The decree also provided for allotment of item 1 of the plaint A schedule sold under exhibit B-143 dated February 15, 1956, to the 4th defendant to be allotted to the share of the 1st defendant and item No. 12 of the schedule sold by the plaintiff under exhibit B-6 dated October 17, 1961, to be allotted to the share of the plaintiff in the division to be effected.

8. Mr. Poornaiah, the learned counsel appearing for the legal representatives of the 1st defendant, who have preferred Appeal A.S. No. 430 of 1965, contended that there is no evidence worth the name to suggest that there was any ancestral nucleus which could have formed the basis for the acquisition either for the purchase of item No. 1 of the B schedule, the rice mill, or the other properties involved in the suit; that, throughout his lifetime, the 1st defendant treated the suit properties as his separate and self-acquired properties; and that he had never thrown any one or all of the suit properties into the common stock so as to impress the properties with the character of coparcenary property; and, as such, the court below erred in granting a decree to the extent it did in favour of the plaintiff or the other defendants. It is also contended by the learned counsel that there is also no evidence to show that, during the time he was in management of his wife's properties, the 1st defendant utilised the income derived from the estate of his wife for acquisition of either the rice mill, item No. 1 of the B schedule, or other properties and as such, the lower court erred in granting a decree to the extent of 3/6th share in favour of the 3rd defendant.

9. Mr. Subbareddi, the learned counsel appearing for the plaintiff-appellant in Appeal No. 188 of 1967, contended that in the partition of 1892 between Ramaiah, the father of the 1st defendant, and his brothers, 4,600 varahas were divided among the brothers; that the amount that fell to the share of the 1st defendant's father came to be divided in the partition of 1903 between the 1st defendant and his brothers; that with the aidof that amount and other movables, the 1st defendant invested in the business which he was carrying on in partnership with others ; and that, therefore, there was sufficient joint family nucleus which formed the basis for the acquisition of the suit properties. It is further argued by Mr. Subbareddi that the declarations made by the 1st defendant in the income-tax returns submitted by him for the years 1949-50 and 1950-51 as evidenced by exhibit A-8 dated February 28, 1950, and exhibit B-89 dated July 31, 1950, would show that he has treated the properties as belonging to the joint family which consisted of himself and his sons and that it is not now open to him to contend that the properties are not impressed with the character of coparcenary properties so as to disentitle his sons from seeking partition of the suit properties.

10. Mr. Jagannadha Rao, the learned counsel appearing for the 3rd defendant, relying upon the averments in the plaint and the evidence of the plaintiff and the averments in the written statement of the 2nd defendant contended that the estate of the 3rd defendant's mother was under the management of the 1st defendant not only till her mother attained majority in the year 1915, but till she died in 1948, and it is with the income derived from that estate that the suit properties were acquired by the 1st defendant and that the court below, having regard to the facts, should have dismissed the suit.

11. It is now necessary, in the first instance, to see if there was any joint family nucleus at the time when the first acquisition, viz., the rice mill, item No. 1 of the B schedule was made by the 1st defendant in 1914. It is not in dispute that between Ramaiah, the father of the 1st defendant, and his brothers, there was a partition some time prior to 1892 and that the property available for partition was worth only 4,600 varahas. Ramaiah, it may be noticed, died in 1892 survived by his sons, 1st defendant, Narasimhulu Setti, Ramanujam, Sriramulu, Nammalwar and two daughters, Mangathayamma and Rangamma. The 1st defendant and his brothers again partitioned in 1903 and there is no evidence to show as to the exact amount that fell to the share of each of the brothers. It is not the case of the plaintiff that the family, either at the time of the earlier partition in 1892 or later at the time of the partition in 1903, was possessed of any lands or other immovable property. All that Ramaiah left behind to his sons was a small plot of land purchased by him under exhibit A-2 dated September 8, 1890, for Rs. 275. This site was purchased for the purpose of putting up a house and it is in evidence that Ramaiah himself laid the foundation for this house during his lifetime. But unfortunately, this property on the strength of which his sons subsequently borrowed moneys and put up a building had to be sold to redeem the debt incurred for the construction of the house. Exhibits B-145 and B-146,show that on November 2, 1908, the 1st defendant and his brothers sold the shops, sites and the house constructed by them in the site purchased by their father for discharging the,, debt due to the Voleti family by the 1st defendant's family. Therefore, exhibits B-145 and B-146 make it clear that by November 2, 1908, whatever little ancestral property was left behind by Ramaiah, the father of the 1st defendant, was sold to discharge the debts incurred by the sons of Ramaiah. There is no evidence at all to show that any portion or part of the 'varahas' that originally fell to the share of Ramaiah, the father of the 1st defendant, at the partition prior to 1892 still remained intact or were available to enable the 1st defendant to invest in the business which he was carrying on in partnership with others or in his own name so as to form the basis for the acquisition of the suit properties. It is significant to remember that the plaintiff was born in 1919 and there is absolutely no evidence, either oral or documentary, to show that in 1914, when his father acquired the rice mill, there was any ancestral nucleus worth the name. Therefore, we are unable to agree with Mr. Subbareddi that there was sufficient ancestral nucleus which could have formed the basis for the acquisition of the rice mill, item No. 1 of the B schedule.

12. This takes us to the next question whether the properties acquired by the 1st defendant were due to his own exertions or due to the reason that he was in management of the properties of his wife, which were bequeathed to her under a will, exhibit B-141, dated February 29, 1912, by her father, Voleti Chenchuramaiah. The 1st defendant was married to Kamakshamma, the daughter of Chenchuramaiah in 1906. She was born on 17th September, 1897, and became a major by September, 1915. Admittedly, there is no dispute regarding the fact that the 1st defendant was in management of his wife's properties after his marriage till she became a major. While Mr. Jagannadha Rao contends that the 1st defendant was in management of his wife's properties till his wife died in 1948, Mr. Poornaiah points out that, apart from the 1st defendant, there were two other executors; that the 1st defendant and the other executors relinquished that management when the 3rd defendant's mother became a major in 1915 ; and that, thereafter, the 1st defendant, barring giving some advice to his wife regarding the management of the properties, had taken no part in the management of her estate. It is also the case of Mr. Poornaiah that at no time either during the period when the 1st defendant was in the management of the properties or subsequently thereafter he had utilised any portion or part of the income derived from the estate of his wife for any of the acquisitions and, as such, the 3rd defendant has no right to claim a share in the properties. The 1st defendant himself, it may be stated, asserted in his evidence that he handed over the estate of his wife soon after she becamea major and that he had nothing to do with that estate thereafter and that he had not utilised any part of the income during the period he was in management of the properties. The 3rd defendant has not chosen to examine herself to substantiate the allegation made by her that the suit properties were the accretions to the estate of her mother, which devolved upon her. She has chosen to rely upon the averments in the plaint and the evidence of the plaintiff. The plaintiff rested his case in the main on the ancestral nucleus forming the basis for the acquisitions and it is only alternatively that he claimed a share in his mother's properties contending that the income from his mother's properties was also utilised for the purpose of acquiring the suit properties by his father. The plaintiff's version cannot be relied upon, for he would have no personal knowledge of the management by his father, the 1st defendant, till his mother attained majority, as he was born subsequently in 1919.

13. Even if it is to be said that the 1st defendant was helping his wife in the management of her estate, it will not follow that he was appropriating that income and that the suit properties are the result of those appropriations. Ordinarily, in Hindu families, the property belonging exclusively to a female member would also be normally managed by the manager of the family. Even if it is true that the 3rd defendant's mother did not take part in the management of the- property, it would not materially affect the rights or interests of the 1st defendant's wife, as indisputably, the property belonged to her. The Supreme Court in Kanakarathanammal v. Loganatha Mudaliar, : [1964]6SCR1 has observed :

'It is true that the actual management of the property was done by the appellant's father ; but that would inevitably be so having regard to the fact that in ordinary Hindu families, the property belonging exclusively to a female member would also be normally managed by the manager of the family ; so that the fact that appellant's mother did not take actual part in the management of the property would not materially affect the appellant's case that the property belonged to her mother.'

14. It is not enough if the 3rd defendant alleges that the income from hermother's property was appropriated or utilised by her father in acquiring the suit properties; but she must also adduce positive evidence to establish that the income derived from the estate of her mother was utilised for the purpose of acquiring the suit properties. In this regard, there is absolutely no evidence, either oral or documentary, and she has not even chosen to get into the witness box to assert or hold on to her allegation in the written statement.

15. Mr. Jagannadha Rao sought to rely upon certain circumstances to show that the 1st defendant could not have acquired the rice mill, itemNo. 1 of the B schedule, without the income from his wife's estate. He relies upon the fact that, by the date of exhibits B-145 and B-146, i.e., November 2, 1908, the 1st defendant had lost all his properties and that he could have maintained himself and his family only with the help of the income derived from the properties of his wife. It is true that, after his marriage in 1906, he came to be the manager of the properties of his wife till 1915 and it is also true that it is during this period that he became a partner in the rice mill business and later purchased the rice mill in the year 1914. The evidence of the 1st defendant would show that he originally joined as a working partner in the rice mill and that it is only when he suffered losses that the mill was sold under an award, exhibit B-10, dated August 31, 1915, given by the arbitrators and that, for purchasing the rice mill, he borrowed Rs. 9,800 from Voleti Venkatarangam Setti and from Reddis and merchants. There is absolutely nothing in the cross-examination of the 1st defendant to suggest that he had not purchased the rice mill with the moneys borrowed by him from Voleti Venkatarangam Setti and others as asserted by him. The cross-examination of this witness by the 3rd defendant or the plaintiff does not at all touch this aspect of the 1st defendant's case and in fact it is not their case that the 1st defendant had not purchased the rice mill after the award, exhibit B-10, by borrowing moneys from the local creditors. The rice mill was purchased for Rs. 14,400 and this amount includes the debt of Rs. 4,600 which he was directed to discharge under the award plus the amount of Rs. 9,800 borrowed by him. Therefore, the consideration for the purchase of the rice mill has been explained by him and there is no evidence contra. We are, therefore, unable to agree with Mr. Subbareddi or with Mr. Jagannadha Rao that either the ancestral nucleus of the joint family or the income from the estate of Kamakshamma formed the basis for the purchase of the rice mill, item No. 1 of the B schedule. The lower court, therefore, was in error in holding that the suit properties were acquired by the 1st defendant partly from out of the income appropriated from the estate of Kamakshamma and partly with the aid of the ancestral nucleus of the joint family.

16. The next question to be considered is whether the 1st defendant, at any time subsequently, either by his declaration or other acts, impressed the suit properties with the character of joint family properties. Mr. Subbareddi placed great reliance on exhibits A-8 and B-89 to press his point that the suit properties are impressed with the character of coparcenary property by reason of the declarations made therein. Exhibits A-8 and B-89 are the assessment orders passed on the returns submitted by the 1st defendant for the assessment years 1949-50 and 1950-51. It is manifest from what is contained in those two assessment orders that till the assessment year1948-49, the returns were filed by the 1st defendant as an individual, but in these two assessment years, the returns were filed showing the status of the family as Hindu undivided family with two major sons, who constituted the joint family. Mr. Poornaiah, however, sought to rely upon the orders for the purpose of showing that the assessing authority did not accept the statement or declaration of the 1st defendant and assessed the 1st defendant treating him as an individual. It is also his case that a statement made by an assessee for purposes of income-tax returns cannot be taken as an unequivocal declaration of his intention to impress the property, viz., the rice mill, with the character of a joint family property, more so when declaration was not accepted by the assessing authority. In support of his contention, the learned counsel sought to rely upon the observations of Subbarao J. (as he then was) in Rukhmabai v. Laxminarayan, : [1960]2SCR253 . All that the learned judge stated is that it sometimes happens that persons make statements which served their purpose, or proceed upon ignorance of the true position, and it is not their statements, but their relation with the estates, which should be taken into consideration in determining the issue.

17. It is significant to bear in mind that the statement made by the 1st defendant is not an isolated one or made for any one single year. The statement that his was a Hindu undivided family was repeated by him when he submitted the returns for the next year also. Ever since the 1st defendant became a major, he was carrying on business in rice and cashewnuts and started a rice mill and submitted the income-tax returns as evidenced by the several returns filed by him from 1924 onwards. It is not a case where the declaration made by the 1st defendant was upon ignorance of the true position or with the sole object of evading payment of higher income-tax for he had paid the income-tax showing the status of the assessee as an individual from 1924 till 1948. If it is a question of gaining some benefit or advantage for himself, he would have certainly resorted to the method of making an untrue declaration much earlier than 1948. Further, no explanation has been offered by him as to why he had to make such a declaration not once, but in two years, if he did not really intend to impress the property, viz., the rice mill business, with the character of the joint family or coparcenary property.

18. In Pearey Lal v. Nanak Chand, [1948] 61 L.W. 437, 439; A.I.R. 1948 P.C. 108, 110the Privy Council, dealing with a case of similar kind where a son claimed partition in the business started by his father and in view of the absence of the explanation by the father as to why the business was assessed to income-tax as a joint Hindu family business, observed:

'Among these there is nothing equal in importance to the respondent's testimony in his examination-in-chief that the cycle business was assessedto income-tax as a joint Hindu family business, and that the assessment notices were in the appellant's possession. He was not cross-examined on these statements and he was not contradicted. All that the appellant said about them is that the business had been assessed for twenty years and that he had not been keeping the notices received from the income-tax department. The necessary conclusion is that the business was assessed as a joint family business. That may not be conclusive in favour of the respondent because there might be an advantage to the appellant, though he was the true owner of the business, in having it assessed to income-tax as a joint family concern. But, as no explanation has been offered by the appellant, the fact that the assessment was made on the joint family goes far to establish the respondent's case.'

19. When confronted with the orders of the Income-tax Officer, no explanation was offered by the 1st defendant as to why he made those declarations. It was not even stated by him that he made the declarations upon ignorance of the true position of law or for the reason that he wanted to evade payment of higher income-tax. He tried to explain away by saying that he might not have made that statement and that he did not remember if he had described himself as the 'karta' of the joint family, which consisted of himself and his two sons, the plaintiff and the 2nd defendant, who were entitled to claim partition.

20. In this connection, we may notice with advantage the decision rendered by a Division Bench of the Madras High Court in Subramania Iyer v. Commissioner of Income-tax, [1955] 2 M.L.J. 405 ; [1955] 28 I.T.R. 352 (Mad.). In that case, the question referred to the Bench under Section 66(1) of the Income-tax Act was: 'In the absence of any other evidence, is the recital in the partnership deed of the 20th April, 1947, in respect of the General Commercial Distributors enough for drawing the inference that the monies invested by the assessee in the business carried on by him came out of funds belonging to the undivided family consisting of the assessee and his minor son ?'

And it was answered by the learned judges in these words:

'. . . there was nothing to prevent the assessee from impressing upon any self-acquired property belonging to him the character of joint family property. No formalities are necessary in order to bring this about and the only question is one of intention on the part of the owner of the separate property to abandon his separate rights and invest it with the character of joint family property. The declaration in the partnership deed is unambigous in its terms and is to the effect that the assessee was entering into the partnership as the manager of the undivided Hindu family of the assessee and his minor son.'

21. If, as now contended by Mr. Poornaiah, the 1st defendant had no intention of abandoning his rights in the self-acquired property, item No. 1 of the B schedule, viz., the rice mill, there was absolutely no need for him to make a declaration in the manner he did in the income-tax returns. The fact that the Income-tax Officer did not accept his statement is absolutely of no consequence, because it is the conduct of the 1st defendant that matters and so long as he, out of his own volition, declared impressing the self-acquired property belonging to him with the character of coparcenary property, no other formality is required. The fact that he made a feeble attempt to deny fifteen years later, that too in his evidence unable to find any other answer, makes us believe that he abandoned his separate rights in the rice mill, the income from which was being assessed to tax. When once the self-acquired property is impressed with the character of coparcenary property, it ceases to be a separate or self-acquired property. He cannot undo what has been once done, namely, impressing the self-acquired property with the character of coparcenary property.

22. Mr. Poornaiah, however, sought to place reliance upon a decision of the Rajasthan High Court in Madan Lal v. Controller of Estate Duty, to show that, in the absence of sufficient circumstances to indicate that the 1st defendant had abandoned his separate claim to the property and had begun to treat it as a joint family property, no inference can be drawn from the declarations made by him in the income-tax returns. On the facts of that case, the learned judges, following the earlier decision of the same court in Govind Narain Mathur v. Mohini Devi, [1960] I.L.R. 10 Raj. 1219 held that a statement in connection with the assessment of income-tax that certain property was the joint family property may be made for the purpose of getting some advantage under the law relating to income-tax and that it could not be evidence of any unequivocal intention on the part of the assessee to waive his interest in the self-acquired property.

23. Each case has to be judged having regard to the facts and surrounding circumstances of that case, whether the 1st defendant intended to abandon his rights and make an unequivocal declaration, has to be inferred from the facts and surrounding circumstances of the case. It is not the case of the 1st defendant that he made the declarations with a view to gain any advantage or for the reason that he was ignorant of the true position of law. Nothing prevented him from putting forth such a defence. Therefore, it is manifest from his own conduct and in the absence of any explanation that it was a statement deliberately made out of his own volition abandoning or giving up his interests in the self-acquired property, item No. 1 of the B schedule, and impressing it with the character of joint family property.

24. We may usefully refer to a decision of the Supreme Court in G. Narayana Raju v. Chamaraju, : [1968]3SCR464 . The learned judges, dealing with the question of abandonment of separate claims in a self-acquired property, observed :

'It is a well-established doctrine of Hindu law that property which was originally self-acquired may become joint property if it has been voluntarily thrown by the coparcener into the joint stock with the intention of abandoning all separate claims upon it. But the question whether the coparcener has done so or not is entirely a question of fact to be decided in the light of all the circumstances of the case. It must be established that there was a clear intention on the part of the coparcener to waive his separate rights and such an intention will not be inferred from acts which may have been done from kindness or affection.'

25. There is another decision which requires to be referred to in this connection. In Civil Appeal No. 695 of 1968 dated May 5, 1970, Goli Eswariah v. Commissioner of Gift-tax : [1970]76ITR675(SC) Hegde J., dealing with the question as to when the self-acquired property gets impressed with the character of coparcenary property, observed :

'It becomes joint family property because the coparcener who owned it up till then as his separate property has, by the exercise of his volition, impressed it with the character of joint family or coparcenary property, to be held by him thereafter along with other members of the joint family.'

26. In this case, the facts narrated by us are sufficient to establish that there is an unequivocal declaration on the part of the 1st defendant giving up or abandoning his interests in the self-acquired property and throwing it in the common stock, thus impressing it with the character of coparcenary property and when once that is done, it ceases to be the separate or self-acquired property and acquires the character of joint family property. We have no hesitation in holding that whatever rights he had in item No. 1 of the B schedule till the date he made declarations, in the returns filed for the assessment years 1949-50 and 1950-51, he surrendered those rights in that separate or self-acquired property and impressed it, by the exercise of his volition, with the character of joint family property and the character of the property does not change thereafter even if he chooses to repudiate the same. As already stated by us, item No. 1 of the B schedule is the joint family property in which the plaintiff, the 1st defendant and the 2nd defendant are each entitled to l/3rd share.

27. There is one more item which requires to be considered, i.e., item No. 2 of the A schedule, which was purchased by the 1st defendant under exhibit B-35 dated November 30, 1953, subsequent to the declaration made by him in the income-tax returns that the rice mill belonged to the jointfamily. The rice mill, as has been stated by the 1st defendant in his evidence, was leased out for a net rental of Rs. 4,200 and the income, according to Mr. Subbareddi, derived from the rice mill by the date of the purchase of item No. 2 of the A schedule, the consideration of which was Rs. 8,000, was sufficient to raise a presumption that item No. 2 of the A schedule is also a joint family property having been purchased from out of its income. In this connection, Mr. Subbareddi relied upon a decision of the Supreme Court in Mallesappa Bandeppa Desai v. Desai Mallappa, A.I.R. 1961 S.C. 1260 to contend that, where a manager claims that any immovable property has been acquired by him with his own separate funds and not with the help of the joint family funds of which he was in possession and charge, it is for him to prove by clear and satisfactory evidence his plea that the purchase money proceeded from his separate fund and that the onus of proof must in such a case be placed on the manager and not on his coparceners.

28. Mr. Poornaiah, however, sought to rely upon the fact that, apart from the rice mill, item No. 1 of the B schedule, the 1st defendant was possessed of about 18 acres of land, the income from which would have been sufficient to purchase item No. 2 of the A schedule and that, apart from that, there is no plea that the consideration for the purchase of item No. 2 of the A schedule proceeded from the income derived from the rice mill and that the 1st defendant also has not been questioned regarding the purchase of this item. It is true that there is no plea nor was the 1st defendant questioned as to the source of consideration for purchasing item No. 2 of the A schedule; but, as has been pointed out by the Supreme Court in Mallesappa v. Mallappa, it is for the 1st defendant to show that item No. 2 of the A schedule was purchased with the income from the lands and that no part of the income realised from the rice mill went towards the purchase of that item. This burden, which rests upon the 1st defendant, has not been discharged. Therefore, in view of our finding that the rice mill, item No. 1 of the B schedule, became an item of the joint family property by 1949, we are of the view that the income realised from it was sufficient to enable the 1st defendant to purchase item No. 2 of the A schedule under exhibit B-35. Therefore, this item is also liable to be partitioned between the plaintiff and defendants Nos. 1 and 2, each being entitled to 1/3rd share in it.

29. So far as the other suit items are concerned, they were purchased long prior to the declarations made in the income-tax returns and, therefore, there is no evidence to show that the 1st defendant ever abandoned his rights in the remaining items of the self-acquired property so as to impress them with the character of coparcenary property. So far as the alienation by the plaintiff of item No. 12 of the B schedule to the 8th defendant under exhibit-6 dated October 17, 1961, is concerned, we have no hesitationin setting aside the finding of the lower court. This item of property was not an item of the joint family property, as the 1st defendant had never abandoned his rights to this item of property.

30. So far as the alienation made by the 1st defendant under exhibit B-143 dated February 15, 1956, to the 4th defendant is concerned, it will not bind the plaintiff for the reason that the land to the 4th defendant is from out of item No. 1 of the A schedule, which the 1st defendant purchased under exhibit B-35. The part of the item sold by the 1st defendant to the 4th defendant will be allotted to the share of the 1st defendant. For the reasons recorded by us, the decree of the court below allotting 3/6th share to the 3rd defendant in the suit properties is set aside and the cross-objections in both the appeals, Appeals Nos. 430 of 1965 and 188 of 1967, are dismissed.

31. In the result, the decree of the court below is modified so as to provide only for partition of item No. 2 of the A schedule and item No. 1 of the B schedule into three equal shares and for recovery of possession of one such share by the plaintiff. With the aforesaid modification in the decree, the appeal preferred by the 1st defendant (Appeal No. 430 of 1965) is allowed to the extent indicated above and, similarly, the appeal preferred by the plaintiff (Appeal No. 188 of 1967) is allowed in part to the extent indicated above. The parties will bear their own costs.

32. So far as the Transferred Appeal No. 254 of 1966 is concerned, the alienation made by the plaintiff of item No. 12 of the B schedule to the 8th defendant under exhibit B-6 is set aside, as it is not one of the items of property in which the 1st defendant has abandoned his rights and impressed with the character of joint family property. The alienation made by the plaintiff during the pendency of the suit is not binding upon defendants Nos. 1 and 2. The judgment and decree under appeal are set aside and the transferred appeal is allowed.

C. M. P. No. 2403 of 1969 :

We see no grounds to receive the documents as additional evidence. The petition is dismissed.

C. M. P. No. 2143 of 1967 :

Delay condoned. Petition allowed.

C. M. P. No. 7620 of 1967 :

Amendment allowed. Petition ordered accordingly

On being mentioned :

33. The court fee due to Government shall be paid by the plaintiff, the 2nd defendant, and the legal representatives of the 1st defendant in proportion to the shares decreed by this court.


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