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Kakumani Subba Rao Vs. Kakumani Venkateswarlu (Died) Per Lrs. and Another - Court Judgment

LegalCrystal Citation
CourtAndhra Pradesh High Court
Decided On
Case NumberA.S. No. 265 of 1997
Judge
AppellantKakumani Subba Rao
RespondentKakumani Venkateswarlu (Died) Per Lrs. and Another
Excerpt:
the sole plaintiff filed the present appeal. his father was the first defendant and his younger brothers were defendants 2 and 3. after filing of the appeal, his father died. his mother, consequently, was brought on record as respondent no.4 in the appeal. i shall refer to the parties as they were arrayed in the suit and shall refer to the fourth respondent as she is arrayed in the appeal, as she was not a party to the suit.  2. the suit consisted of a to e schedule properties. the plaint consists of a and b schedules only. a schedule property consists of 15 items of immovable property. b schedule property consists of gold, jewellery and other movables. c schedule is the property cited by the second defendant as part of the joint family property. d schedule property is house.....
Judgment:

The sole plaintiff filed the present appeal. His father was the first defendant and his younger brothers were defendants 2 and 3. After filing of the appeal, his father died. His mother, consequently, was brought on record as respondent No.4 in the appeal. I shall refer to the parties as they were arrayed in the suit and shall refer to the fourth respondent as she is arrayed in the appeal, as she was not a party to the suit.

 2. The suit consisted of A to E schedule properties. The plaint consists of A and B schedules only. A schedule property consists of 15 items of immovable property. B schedule property consists of gold, jewellery and other movables. C schedule is the property cited by the second defendant as part of the joint family property. D schedule property is house property, which is cited by the third defendant as part of the joint family property. E schedule property, also cited by the third defendant, is cash of 1,12,000/-.

3. The plaintiff sought for partition of plaint A and B schedule properties into four equal shares between himself and defendants 1 to 3 by metes and bounds and for allotment of one such share to each of them. He did not seek for partition plaints C, D and E schedule properties. It can be culled out from his oral evidence that he is claiming exclusive title to plaint D schedule property.

4. The defendants primarily claimed partition of suit A to D schedule properties. The learned trial judge granted a decree of partition of suit A and D schedule properties thus decreeing the suit in respect of D schedule properties also in equal shares. Plaintiff preferred the present appeal assailing the judgment of the trial court in respect of partition of suit D schedule properties between the plaintiff and the other defendants. The plaintiff claims exclusive title to this plaint D schedule property.

5. The case of the plaintiff is

a) The plaintiff is the eldest son of the first defendant. Defendants 2 and 3 are his younger brothers. The plaintiff and the defendants 1 to 3 constituted a Hindu Undivided Family (HUF, for short). The first defendant was the Manager of the family.

b) The family possessed A schedule immovable properties and B schedule movable properties. The plaintiff has been working as medical practitioner. It caused eyesore to the defendants who started screening HUF properties. The plaintiff, therefore, seeks for partition of the HUF properties into four equal shares by metes and bounds and for allotment of one such share.

6. The first respondent (father of the plaintiff) put forth his claim as follows:

a) The mother of the first defendant has been allotted 1/4th share, through judgment in O.S.No.94 of 1986 on the file of the Additional Senior Civil Judge, Ongole. The plaintiff, therefore, is not entitled to 1/4th share but is entitled to 3/16th share only.

b) The family does not possess B schedule property. There are debts to the family. The first defendant has no objection for partition of the joint family properties sharing the debts also amongst the coparceners.

7. The second defendant filed his own written statement. He pleaded that the plaintiff had laid the suit in connivance with the first defendant. The second defendant claimed that the plaintiff had suppressed C schedule properties, which were part of the joint family property. C schedule properties are also liable for partition according to him. The parties were entitled to partition indeed, but the partition should be in respect of all the properties of the family including the C schedule properties.

8. The third defendant filed his own written statement. The third defendant in his turn alleged collusion between the plaintiff, the first defendant and the second defendant and contended that the family also owned D and E schedule properties as shown in the written statement of the third defendant and they were also liable for partition. (Plaint C and plaint D schedule properties are one and the same).

9. The plaintiff laid rejoinder to the written statement of the third defendant. The plaintiff claimed that the D schedule property was his exclusive property. The third defendant brought D schedule property through his written statement and contended that it was part of the joint family property. To disclaim the stand of the third defendant, it became necessary for the plaintiff to file a rejoinder. The plaintiff claimed through rejoinder that he purchased properties in Survey No.154/1, Kurnool Road, Ongole in 1988 with his personal money. He had personal money as his father-in-law and mother-in-law presented monies to him at the time of and after his marriage. The plaintiff sold away about Ac.0.16 cents, out of the property purchased by him to raise funds to construct premises in the site purchased by him. As the money was not sufficient, he raised loan from the bank and LIC. He ultimately constructed the house with his personal earnings on the site purchased by him with his personal earnings, so much so, the plaint D schedule property is his personal property and was not divisible.

10. On such pleadings, evidence was recorded. The plaintiff examined himself as the only witness and marked 26 documents. The defendants 1 to 3 more or less made allegations inter se and examined as many as 10 witnesses. Exs.B.1 to B.7 were marked on behalf of the defendants. In view of the preliminary decree in O.S.No.94 of 1986 on the file of the Senior Civil Judge’s Court, Ongole in favour of the mother of the first defendant, 1/4th share of the plaint A schedule property was excluded by the trial Court from the purview of the joint family property. It may also be noticed that although initially 16 items were shown in plaint A schedule, item No.16 was subsequently omitted by amending plaint A schedule, through orders in I.A.No.591 of 1994. Consequently, only 15 items constitute plaint A schedule which are the subject matter of the suit.

11.  Excluding the 1/4th share allotted to the mother of the first defendant, through preliminary decree in O.S.No.94 of 1986 in plaint A schedule property, a preliminary decree was passed allotting 1/4th share each in the remaining part of plaint A schedule property in favour of the plaintiff and defendants 1 to 3 (the share of each of the plaintiff and defendants 1 to 3 in plaint A schedule property consequently was to 3/16th share). The suit was dismissed in respect of plaint B schedule property. The court also directed the determination of past and future profits over the properties of E schedule property (of the statement of the third defendant) through separate application. Finally, the trial Court allotted 1/4th share to each of the plaintiff and defendants 1 to 3 in the C schedule property of the written statement of the second defendant, which is identical with the D schedule property of the written statement of the third defendant.

12. This appeal is filed by the plaintiff. The plaintiff indeed filed the suit for partition. However, he sought for partition of plaint A and B schedule properties only. The defendants 2 and 3 added C, D and E schedule properties through their written statements. So far as the case of the plaintiff is concerned, the plaintiff claimed partition of plaint A and B schedule property also. The trial Court dismissed the suit regarding plaint B schedule property. The plaintiff claimed 1/4th share on the whole of plaint A schedule property. The trial Court, however, granted a decree holding that the plaintiff is entitled to 1/4th share in the plaint A schedule property after excluding 1/4th of plaint A schedule property which was allotted in favour of the paternal grandmother of the plaintiff/mother of the first defendant through judgment and decree in O.S.No.94 of 1986 on the file of the Additional Senior Civil Judge, Ongole. Thus, the plaintiff did not succeed wholly in respect of plaint A schedule property and completely failed in respect of plaint B schedule property. However, the plaintiff would appear to have been satisfied with the decree of partition in respect of plaint A schedule property as awarded by the trial Court. The plaintiff did not prefer any appeal questioning the judgment and preliminary decree of the trial court in respect of plaint A and B schedule properties.

13. The plaintiff’s main claim in this case is in respect of plaint C/D schedule property, which is one and the same. His case is that he owns the ground and the superstructure of the D schedule property and that the D schedule property belongs to him in entirety and is not subject to partition. On the other hand, the defendants 2 and 3 contend that the D schedule property was purchased in the name of the plaintiff with the joint family funds and that the property is joint family property, so much so, the same is subject to partition.

 14.  It may be recalled that the first defendant who is the father of the plaintiff and defendants 2 and 3 did not whisper about C/D schedule property. He did not even reply Ex.B.2 pre trial suit notice by the plaintiff. Curiously, the third defendant also would appear to have not responded to the notice. The defendant No.2, however, issued reply to Ex.B.2 notice through the office copy of Ex.B.3 reply. Thus, the first defendant tacitly agreed that C/D schedule property is not part of the plaint schedule property.

15. While so, the second defendant described the disputed property as C schedule property through his written statement. The third defendant showed the property as D schedule property through his statement. The C and D schedule property is one and the same. The dispute in this appeal is confined to this C/D schedule property only. The plaintiff does not dispute the decree about A, B and E schedule property. I shall, therefore, examine the rival contentions with reference to the D schedule property only. However, I may point out at this stage that defendant No.3 has not contested the appeal. It is only the second defendant on whose behalf arguments were advanced before me in the appeal.

16. The only point that is for consideration is whether the plaint C/D schedule property is subject to partition.

17. To what shares each of the parties is entitled to in the event C/D schedule property is subject to partition is not a point for consideration. If C/D schedule property is subject to partition, the plaintiff and defendants 1 to 3 are entitled to 1/4th share each in the same. Indeed, during the pendency of the appeal, the first defendant breathed his last. His wife, who is the mother of the plaintiff and defendants 2 and 3, was brought on record as fourth respondent in the appeal. Consequently, the plaintiff, defendants 2 and 3 as well as the fourth respondent would be entitled to 1/4th share each in the share of the first defendant, as Class-I heirs of the first defendant. Thus, each of them would be entitled to 1/16th share in the event plaint C/D schedule property is subject to partition, apart from the plaintiff and defendants 2 and 3 acquiring 1/4th share each. In other words, the plaintiff, the second defendant and the third defendant would be entitled to 5/16th share each while the fourth respondent would be entitled to 1/16th share in C/D schedule property in the event plaint C/D schedule property is subject to partition. Thus, the ratio of title is not in dispute. What is in dispute is whether C/D schedule property is subject to partition at all.

18. In the rejoinder, the plaintiff gave a detailed explanation as to the circumstances in which it should be considered that plaint C/D schedule property is the self-acquired property. While the plaintiff filed as many as 26 documents in support of his claim, Exs.A.1 to A.24 relate to the claim of the plaintiff that plaint C/D schedule property is the self-acquired property of the plaintiff. Exs.A.25 and 26 alone do not exclusively deal with C/D schedule property. The plaintiff would appear to have realized that the defendants have insisting upon rights over C/D schedule property, so much so, he deposed, filed pleadings, let in evidence and argued extensively in respect of C/D schedule property. Sri B.V. Subbaiah, learned senior counsel for the plaintiff straight away pointed out that the case of the plaintiff in the appeal was confined to C/D schedule property only and nothing else.

19. Sri G. Ramachandra Rao, learned counsel for the second defendant also confined his reply to plaint C/D schedule property only. In the event it is found that C/D schedule property is the joint family property subject to partition, the plaintiff and defendants 2 and 3 would be entitled to 5/16th share each in the same while the fourth respondent would be entitled to 1/16th share in the same.

20. The learned senior counsel for the plaintiff found fault with the judgment of the trial Court contending that the trial Court placed burden upon the plaintiff not merely to positively establish that C/D schedule properties are the self-acquired properties of the plaintiff, but also sought for a negative proof from the plaintiff that these properties are not the joint family properties. On the other hand, the learned counsel for the second defendant contended that once it is established that the joint family has sufficient nucleus to acquire C/D schedule properties, the presumption would be that these properties are the joint family properties; and that it, therefore, would be necessary for the plaintiff to bring forth negative proof as well to show that C/D schedule properties are not the joint family properties. I shall consider this question of law a little later. I may, however, notice the stand of the plaintiff regarding C/D schedule properties.

21. As already pointed out, in his rejoinder, the plaintiff exhaustively dealt with C/D schedule properties. I shall refer to these properties as plaint D schedule properties since the learned senior counsel for the plaintiff and the learned counsel for the second defendant also referred to these properties as plaint D schedule property. Plaint D schedule property is Ac.0.65 cents of site. The sale deed under Ex.A.16 in respect of these properties stands in the name of the plaintiff. Ex.A.16 recites that the consideration for the sale of the property was ` 16,250/-. The plaintiff as PW.1, however, claimed that the real sale value of the property was 23,000/-.

22. The plaintiff claimed that he purchased the plaint schedule property with the financial assistance of his parents-in-law and with the presentations given by the parents-in-law to the plaintiff at the time of his marriage. The marriage of the plaintiff was solemnized on 05.09.1977 vide Ex.A.1 wedding card. Ex.A.16 sale deed is dated 01.07.1978. The sale of D schedule property under Ex.A.16 thus was about a year after the marriage of the plaintiff.

23. The parties belong to Kamma Community. It is the contention of the learned senior counsel for the plaintiff that the concept of flat presentations at the time of the marriage by the bride’s side to the bridegroom (dowry) in Kamma Community was prevalent by the time of the marriage of the plaintiff and that the parents-in-law of the plaintiff came to the help of the plaintiff in purchasing plaint D schedule property and in constructing a premises thereon as part of presentations at the time of and after the marriage of the plaintiff. The case of the plaintiff is that he did not seek the help of the joint family either for the purchase of the D schedule property or for the construction of the super structure thereon and that he took financial help from his parents-in-law and also raised his own funds.

24. Ex.A.2 is the passbook of Venkayamma, mother-in-law of the plaintiff showing that the mother-in-law withdrew ` 15,000/- on 03.09.1977 i.e., two days prior to the marriage to present the same to the plaintiff towards marriage expenses. Ex.A.3 is the copy of the passbook of the plaintiff himself. Ex.A.3 discloses that on 01.07.1978, the plaintiff withdrew ` 23,000/- from his bank account under Ex.A.24 entry in Ex.A.3. It may be recalled that Ex.A.16 sale deed is dated 01.07.1978. It is the case of the plaintiff that the sale price for plaint D schedule property is ` 23,000/- and that he withdrew the same from his bank account, vide Ex.A.24 entry in Ex.A.3. It is the case of the plaintiff that he purchased the site at Ongole on Kurnool Road with a view to construct the Nursing Home in the site.

25. It is the further case of the plaintiff that as the plaintiff did not have sufficient funds to construct the Nursing Home in the D schedule property despite raising loans from LIC and otherwise, the plaintiff sold away Ac.0.19 cents of land out of Ac.0.65 cents purchased under Ex.A.16 through Exs.A.6 and A.7 sale deeds on 12.08.1985 for a sum of ` 16,400/- and ` 9,500/- respectively. The plaintiff claimed that he raised a loan of 1,75,000/- from the State Bank of India, Ongole branch on 29.12.1986 for construction of the Nursing Home. Ex.A.8 is the letter of the State Bank of India authenticating that the plaintiff borrowed ` 1,75,000/- by way of loan on 29.12.1986. Ex.A.5 is entry of withdrawal of ` 9,000/- by the plaintiff from his bank on 04.11.1985. Further, the plaintiff obtained loan from the LIC of India, Ongole branch on 18.11.1986 under Ex.A.10. The amount borrowed by the plaintiff under Ex.A.10, however, is not clear. It is the case of the plaintiff that the plaintiff thus purchased plaint D schedule property under Ex.A.16 and sold Ac.0.19 cents from the same under Exs.A.6 and A.7 and raised loan from the bank under Ex.A.8 and from LIC under Ex.A.10 in order to construct the Nursing Home on his site.

26. The plaintiff, however, went further to show that the parents-in-law helped him financially in constructing the premises. Ex.A.17 is the statement of account of the father-in-law of the plaintiff. Ex.A.4, however, is the estimation of the cost incurred for the construction of the super structure on plaint D schedule property. Ex.B.4 shows that the amount spent for the construction of the super structure about ` 3,60,000/-. The plaintiff claimed that he raised about ` 3,00,000/- in all in and around in 1985 and 1986. Contending that plaint D schedule property has been in the name of the plaintiff and that the plaintiff has enough resources or had generated enough finances to construct the premises, the learned senior counsel for the plaintiff contended that the plaintiff is the owner of the plaint D schedule property and the super structure thereon and that the D schedule property including the super structure could not have been the property of the Hindu Undivided Family (HUF, for short).

27. Sri G. Ramachandra Rao, learned counsel for the second defendant pointed out about the recent demise of the fourth respondent and submitted that the ratio of the shares of plaint A schedule property is liable to be readjusted, in view of the death of the fourth respondent. The learned counsel for the second defendant contended that the fourth respondent executed a Will bequeathing her property to the second defendant and that the second defendant alone is entitled to the share of the fourth respondent on her demise. This is a question, which cannot be now considered, as further evidence is necessary. It is for the parties to seek the relief in respect of the property of the fourth respondent through appropriate proceedings in an appropriate forum. So far as the shares of plaint A schedule property are concerned, the shares as determined by me hold good. So far as the share of the fourth respondent is concerned, parties may take their own steps, as they deem fit and proper.

28. However, the controversy is in respect of plaint D schedule property and not in respect of plaint A schedule property. The learned counsel for the second defendant contended that plaint D schedule property as on today is a premise on Kurnool Road together with appurtenant site thereto. Admittedly, the trial Court allowed partition of plaint D schedule property as well. The learned counsel for the second defendant contended that the HUF has enough nucleus to acquire the plaint D schedule property and that the plaint D schedule property, therefore, shall be considered to be the property of the HUF.

29. The learned counsel for the second defendant claimed that the premises in the D schedule property was constructed prior to March, 1987. He contended that the second defendant has taken a consistent stand in Ex.B.3 reply notice that joint family spent ` 2,00,000/- for the construction of the super structure on plaint D schedule property. The rival parties contended that the onus rests on the other side. The learned senior counsel for the plaintiff contended that it is the joint family, which shall establish that the plaint schedule property was HUF property and that in the absence of proof from the joint family, the property shall be considered to be the exclusive property of the titleholder. He contended that the defendants failed to show that the plaint D schedule property is the HUF property and that consequently in view of Ex.A.16, the D schedule property shall be presumed to be individual property of the plaintiff. He also drew a corollary that the super structure shall be presumed to be owned by the owner of the appurtenant land and that consequently it should be assumed that the super structure on plaint D schedule property belongs to the plaintiff himself.

30. The learned senior counsel for the plaintiff placed reliance upon Annamalai Chetty v. Subramanian Chetty AIR 1929 Privy Council 1. In that case, it was held that when a party is seeking for partition of joint family property, such a party should establish that the property is the joint family property. The learned senior counsel for the plaintiff contended that the Privy Council concluded way back in 1928 that the onus is upon the person claiming the property to be the joint family property. The learned counsel for the second defendant contended that the Privy Council held that the burden would be upon the plaintiff to show that the property is the joint family property if the plaintiff laid the suit for partition claiming that the property in respect of which partition is sought for is the joint family property. He submitted that where the plaintiff laid the suit excluding plaint D schedule property and where the defendant contended that plaint D schedule property is also the part of the joint family property, it is for the plaintiff to show that the plaint D schedule property is not part of the joint family property. I consider that the decision relied upon by the learned senior counsel for the plaintiff does not apply to the facts of the present case, where the plaintiff in the cited case was asserting that the disputed property was the joint family property, whereas the plaintiff in the present case is claiming the disputed property, viz., the plaint D schedule property to be his self-acquired property.

31. In Sankaranarayana v. Tangaratna AIR 1930 Madras 662 relied upon by the learned senior counsel for the plaintiff, the question of onus of establishing the joint family property has arisen. The Madras High Court held that there was a presumption that every Hindu family was joint unless the contrary is proved and that there was no presumption that the joint family possessed properties. In Kannammal v. Ramathilakkammal AIR 1927 Mad. 38, Anantakrishna Ayyar, J, placed reliance upon a decision of Division Bench of the Madras High Court, which held “While there is a presumption that a Hindu family is joint until the contrary is proved, there is no presumption that a Hindu famil7 is possessed of property. The party alleging that the property held by an individual member of a joint family is family property must show that the family was possessed of some property with the aid of which the property in question could have been acquired. If this is shown, and only then, the onus shifts to the party alleging self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate.”

The Court further observed:

“In some cases, it is mentioned that mere possession of joint family property by a joint Hindu family would raise a presumption of law that all the property in the possession of a coparcener is joint family property. I should like to observe that the above position would be strictly correct only position would be strictly correct only if the joint family property possessed by the joint Hindu family was such as would have enabled and led to the acquisition of the other property. If having regard to the nature of the income from the admitted joint family property or otherwise, the same could not have possibly helped in or led to the acquisition of subsequent property, then there is no presumption that the subsequent property is joint family property.”

32. It is the contention of Sri B.V. Subbaiah, learned senior counsel for the plaintiff that unless the person asserting the property to be the joint family property shows sufficient nucleus for the purchase of the property, the property standing in the name of individual members of the HUF cannot be treated as HUF property. Indeed, the legal position is well settled in this regard. The person claiming that a particular piece of property standing in the name of individual members of the HUF to be HUF property can succeed if he can show that the HUF has enough nucleus to acquire the disputed property.

 33. In Nutbehari Das v. Nanilal Das AIR 1937 Privy Council 61 relied upon by the learned senior counsel for the plaintiff, it was observed that the mere fact that the Manager (kartha) of the family mixing his personal monies with the family monies would not be tantamount to blending, merely from the fact of a common till or a common bank account. However, the defendants never contended that the plaintiff threw his income in the common hotchpot to assume that there was blending of the properties. Further, the plaintiff was not the manager of the family. The first defendant who was the manager/kartha never contended that plaint D schedule property was the joint family property. In the light of the rival contentions in the present case, I am afraid that the case on hand has no application to the facts of the case.

34. In Kunhi Raman v. Kunhi Karnavan AIR 1940 Madras 80 it was observed:

“In the absence of evidence that the family possessed property with the income of which the new acquisition might have been made there is no presumption that the property acquired by the manager is family property : 48 M L W 628 (Vythinatha Ayyar v. Varadaraja Ayyar). The fact that an item the character of which is in dispute is mortgaged along with another item proved to be family land will not raise a presumption that the disputed item was also family land unless it be shown that the mortgage itself was a borrowing for the benefit of the family. On both these points the evidence is lacking. The appeal has therefore to be dismissed.”

Thus, it was observed that unless there is evidence that new property could have been acquired with the income of the family, there is no presumption that the property acquired by the Manager is the joint family property. The learned senior counsel for the plaintiff submitted that the position in respect of a member of the family who is not the manager stands even on a lesser pedestal of presumption and that unless it is clinchingly shown that the joint family has sufficient nucleus to acquire the property in the name of a non-kartha of the family, such property cannot be deemed to be the joint family property.

35. It has been urged by the learned counsel for the second defendant that the joint family possessed enough income and nucleus to acquire plaint D schedule property and that a presumption therefore arises that plaint D schedule property is the joint family property unless the plaintiff is able to show otherwise. I shall examine the question whether the joint family is able to show that it has sufficient nucleus to acquire plaint D schedule property. I may, however, make it clear that if it is made out that the joint family has enough income to acquire plaint D schedule property, the burden would be heavier upon the plaintiff to show that the plaint D schedule property is not the joint family property.

36. In Appalaswami v. Suryanarayanamurti AIR (34) 1947 Privy Council 189, the Privy Council cautioned the Courts to be careful to distinguish between generosity and kindness on the one side and admissions of legal obligation on the other side. In that case, at the instance of the mediators, one of the members of the joint family agreed to apply some of his self-acquired property for the benefit of the members of the family. The Privy Council considered that such generosity on the part of a member of the family could not be taken as establishing that the member intended to bring into partition his entire self-acquired interest. Their Lordships of the Privy Council held:

“Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property is joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, 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.”

Thus, it was observed that the presence of sufficient nucleus draws a presumption that the property is a joint family property. In such an event, the onus would shift on to the other side to unsettle the same.

37. In Srinivas v. Narayan AIR 1954 SC 379, existence of the nucleus and the presumption where nucleus exists had been considered by a three-judges Bench. The Court observed that proof of existence of a joint family did not lead to the presumption that the property held by any member of the family was joint and that the burden would rest upon anyone asserting that any item of property was joint family property to establish the same. The Supreme Court, however, went further and clarified that where it was established that the joint family possessed some joint property which from its nature and relative value might have formed the nucleus from which the property in question could have been acquired, the burden would shift to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property. Both sides have agreed that it would be presumed that plaint D schedule property would be the joint family property in the event it is established that the joint family possessed sufficient nucleus to acquire plaint D schedule property. In such an event, the onus would rest upon the plaintiff to clinchingly prove that plaint D schedule property was self-acquisition, failing which the presumption holds sway. Of course, it must first be shown that the joint family possessed sufficient nucleus from which plaint D schedule property could have been acquired. As already pointed out, this question of law shall be answered later.

38. P.B. Gajendragadkar, J (as he then was) held in Mallesappa v Mallappa AIR 1961 SC 1268 (relied upon by the learned senior counsel for the plaintiff) that the Doctrine of blending did not apply to cases of Hindu female inheriting immovable property from her father as a limited owner. I am afraid that this decision has no application to the facts of the present case.

39. In Narayanaswami v. Ramakrishna AIR 1965 SC 289the Supreme Court considered the circumstances in which the presumption would arise that the property is joint family property. The Supreme Court further considered that when a particular property of the joint family has sufficient nucleus for acquiring another property, such another property even if it is in the name of any individual member of the joint family should be presumed to have been acquired from out of the joint family funds. The learned senior counsel for the plaintiff also placed reliance upon A. Nair v. C. Amma AIR 1966 SC 411, G. Narayana Raju v. Chamaraju AIR 1968 SC 1276, and Mudigowda v. Ramachandra AIR 1969 SC 1076. These decisions took the similar view, as already referred to.

40. In Easwara Iyer v. Venkatasubramania Iyer (1978) 3 SCC 373, the Supreme Court held that if a piece of property was gifted to one of the members of the joint family, such property should be considered to be self-acquired property of the donee and not joint family property.

41. On the strength of these decisions, it is contended by the learned senior counsel for the plaintiff that plaint D schedule property is a self-acquired property of the plaintiff. However, I venture to repeat that this question of law arises on the basis of a question of fact viz., the joint family did not have sufficient nucleus. If it is established that the joint family has sufficient nucleus from which it is possible to acquire plaint D schedule property, since the plaintiff and the defendants had been living jointly till the date of the suit, a presumption is liable to be drawn that plaint D schedule property is the joint family property. Such a presumption would be a rebuttable presumption, which the plaintiff can indeed repel through proper proof.

42. The learned counsel for the second defendant contended that it cannot be claimed by any member of the joint family that the property standing in the name of a member of the joint family belonged to him and not to the joint family, once it is established that the joint family has sufficient nucleus to acquire such a property. In support of his contention, he placed reliance upon K. Sambasiva Rao v. K. Nagabhushnam 1993 (3) ALT 256 (D.B.). It was held in that case that once ancestral nucleus was established, there could be no presumption that the properties in the name of either the kartha or a member of the HUF belonged to such a member of the HUF exclusively unless such a claim was proved by clinching evidence that those properties were his self-acquired properties.

43. In Jammunabai v. Sharadabai 1998 (4) ALT 676, the Court held that positive proof is not necessary to establish that a piece of property was acquired with HUF funds and that it would be sufficient if it was established that the joint family had possessed sufficient nucleus to purchase the property held by a member of the joint family. Thus, it is evident that the initial onus rests upon defendants 2 and 3 to show that the joint family possessed sufficient nucleus with which plaint D schedule property could have been acquired. Once defendants 2 and 3 discharged this burden, the onus would shift to the plaintiff to show through clinching evidence that plaint D schedule property is the self-acquired exclusive property of the plaintiff in contradistinction to the HUF property.

44. In Dr. Nilkanth Krishnarao Apte v. Dr. Ramchandra Krishnarao Apte AIR 1990 Bombay 10 the Bombay High Court held that an addition with the separate funds of a coparcener was treated as an accretion to the benefit of the entire family. In Patram Singh v. Bahadur Singh AIR 1983 Allahabad 348 it was held that once the land on which the house in dispute was constructed was found to be coparcenery property of two brothers, the onus was upon the defendant to show that the house was his self-acquired property and not the property of the joint family. However, in the present case, it is not the superstructure on D schedule property that is in dispute. The very D schedule property is in controversy. The plaintiff claimed that the D schedule property is his self-acquired property. Defendants 2 and 3 contend that D schedule property is also the joint family property and that it also is subject to partition. This decision, therefore, is of no help in resolving the controversy between the parties.

45. The plaintiff spoke about his purchasing plaint D schedule property with the funds of the plaintiff and his parents-in-law as well as by raising monies from the bank and LIC. I had already pointed out the same with reference to documentary evidence. However, the plaintiff as PW.1 admitted that the joint family possessed nucleus. He also admitted that the nucleus of the joint family was sufficient to acquire plaint D schedule property. His case, however, is that the joint family funds were not spent for purchase of plaint D schedule property and for the construction of the premises in plaint D schedule property. The learned counsel for the second defendant submitted that when the plaintiff as PW.1 himself admitted that the joint family has nucleus, the presumption that the D schedule property is joint family property holds good and that it would be for the plaintiff to unsettle the presumption through cogent evidence. There cannot be two opinions in this regard. The plaintiff indeed made admission, as already referred to that the joint family possessed nucleus. Consequently, it is for the plaintiff to show that the plaint D schedule property is his self-acquired property. The plaintiff cannot be permitted to contend that as plaint D schedule property was purchased in the name of the plaintiff under Ex.A.16, the property was the self-acquired property of the plaintiff and that joint family has nothing to do with the same. Till the plaintiff established that plaint D schedule property is his self-acquired property, it shall be presumed to be the joint family property where the joint family admittedly possessed sufficient nucleus to purchase plaint D schedule property.

46. The first defendant was examined as DW.1. DW.1 admitted that his father himself purchased Ac.5.00 cents of land while the father of the first defendant was managing the plaint schedule property. The learned counsel for the second defendant contended that the joint family has been a reputed family and a family of considerable wealth, which is evident from the fact that the father of the first defendant himself could purchase Ac.5.00 cents during the time of his management. Added to it, the first defendant as DW.1 also admitted purchasing property to a tune of Ac.2.00 cents from Goruntla Venkata Seshaiah and Ac.1.00 cents from another source. He also deposed that he raised tobacco in the joint family properties. Thus, it is the evidence of first defendant as DW.1 that the joint family possessed properties and raised commercial crops like tobacco, which yield good income. Admittedly, the joint family possessed joint properties at least to the extent of plaint A schedule property, excluding item No.16 of the plaint schedule property indeed. I am afraid that the plaintiff cannot contend that the joint family did not have any income. Indeed, the plaintiff admitted that the joint family possessed sufficient nucleus. The plaintiff as PW.1 has the grace to admit that the joint family properties were generating good income. He deposed that the joint family has as much as Ac.25.00 cents of land and that the properties were yielding good income.

47. The learned counsel for the second defendant contended as though the plaintiff admitted that the first defendant and the plaintiff had been sailing together meaning that the suit was filed by the plaintiff collusively in connivance with the first defendant. I am afraid that the plaintiff certainly did not make such an admission anywhere.

48. However, the learned senior counsel for the plaintiff contended that DWs.2 to 10 did not establish the case of the second defendant, whereas the learned counsel for the second defendant contended that DWs.2 to 10 in fact show that the joint family has income and that plaint D schedule property is the joint family property.

49. In view of the legal position, perhaps it is not necessary for the defendants to establish their case. If the defendants showed that the joint family had sufficient nucleus, the burden would immediately shift on to the plaintiff to show that plaint schedule property was not the joint family property and was the self-acquired property of the plaintiff. In the absence of clinching proof from the plaintiff, the very establishment of sufficient nucleus for the joint family would attract a presumption that plaint D schedule property is joint family property.

50. The learned counsel for the second defendant inter alia placed reliance upon Lakhan Sao v. Dharmu Chaudhary (1991) 3 SCC 331. The Supreme Court observed in that case that it was always open for the defendant not to let in any evidence where the onus is upon the plaintiff and that the defendant was entitled to take advantage of the failure of the plaintiff to make out its case. However, it is now a settled legal principal that if both sides let in evidence, the doctrine of burden of proof losses its efficacy and that each side would be liable to establish its case.

51. However, the plaintiff himself has admitted that the joint family possessed Ac.25.00 cents of land and that the property has been generating good income. The presumption that the joint family possessed sufficient nucleus to acquire plaint D schedule property, therefore, has come into play. It is for the plaintiff to establish the contrary.

52. While so, albeit the plaintiff contended that his mother-in-law and father-in-law financed him in purchasing plaint D schedule property and helped him financially in raising a construction thereon, the plaintiff himself admitted that there was no evidence that the plaintiff received monies from his parents-in-law. Indeed, the plaintiff shown that the father-in-law of the plaintiff and mother-in-law of the plaintiff withdrew monies from the bank account. I do not consider it sufficient to conclude that those monies were handed over to the plaintiff for acquiring plaint D schedule property, where there is no evidence in that regard. Further, the plaintiff claimed that he borrowed monies from LIC and from the bank and also withdrew monies from bank. Again, there is no semblance of evidence that these monies were spent for purchasing of plaint D schedule property and for making construction on plaint D schedule property.

53. Indeed, Exs.A.6 and A.7 sale deeds were executed by the plaintiff himself and were not executed by the other members of the joint family. At the same time, where the sale deed under Ex.A.16 was in the name of the plaintiff, there is no surprise that plaintiff alone executed Exs.A.6 and A.7 sale deeds in favour of third parties. Merely because the third parties purchased the property under Exs.A.6 and A.7, it cannot be construed that plaint D schedule property was the exclusive property of the plaintiff.

54. Even if the evidence of defence witnesses is totally excluded, in view of the admission of the plaintiff that the joint family possessed Ac.25.00 cents of land and was generating good income, it is for the plaintiff to show that plaint D schedule property and the super structure thereon were acquired with the personal monies of the plaintiff. As the trial Court observed, there is no evidence in this regard. Indeed, it is a pointer that the loan raised by the bank was towards December, 1986 by which time, the super structure on plaint D schedule property had already come up. The loan operated by the plaintiff, therefore, could not have been utilized for the construction of the premises on the plaint D schedule property. More important, there is no evidence from the plaintiff to clinchingly link the loan borrowed by him to the construction of the premises over plaint D schedule property. The assumption in such a circumstance is that the plaintiff is not the exclusive owner of the plaint schedule property.

55. It is the contention of the learned senior counsel for the plaintiff that the Transfer of Property Act contemplates that the person in whose name the sale deed stands is the owner of the property. There cannot be any exception to this rule where benami transactions have already been prohibited. Be that as it is, inasmuch as the controversy relates HUF properties, it is not the title deeds which primarily determined whether the properties are HUF properties or properties of individual members of the HUF. What matter is whether the HUF has sufficient nucleus to presume that the property in question could have been acquired with the income of the HUF properties. The learned senior counsel for the plaintiff not only admitted it to be the legal position but has filed decisions to support his claim in this context, which were already referred to. Therefore, merely because Ex.A.16 sale deed stands in the name of the plaintiff, it does not draw a presumption that the plaintiff is the absolute owner of plaint D schedule property. If it is shown that the joint family has sufficient nucleus, there would be a rebuttable presumption that plaint D schedule properties are the joint family properties albeit the sale deed under Ex.A.16 stands in the name of the plaintiff. In such an event, the plaintiff must indeed established through cogent evidence that he purchased the plaint D schedule property and that he is the exclusive owner of the same.

56. The learned senior counsel for the plaintiff contended that the initial onus rests upon the manager of the HUF to show that HUF has sufficient funds. He also submitted that DWs.1 and 3 did not let in sufficient evidence to show that the HUF has sufficient nucleus and income. I am afraid that this contention cannot be accepted where the plaintiff himself as PW.1 admitted that the joint family has more than Ac.25.00 cents of land and that the sufficiently good income has been generated by the properties of the joint family. The plaintiff cannot now turn round and contend that the defendants did not prove the nucleus and income of the joint family and that the admissions are of no value. Perhaps, such a situation holds good, so far as the defendants are concerned. It is for the plaintiff himself to prove his case. The plaintiff is estopped from denying sufficient nucleus to the HUF and the income generated by such nucleus in the light of the admissions of PW.1.

57. The learned senior counsel for the plaintiff inter alia contended that the HUF possessed debts and that there is no income for the HUF. Indeed, the first defendant pleaded and also gave details of debts incurred by HUF. At the same time, it is a well-established fact that the family is reputed and financially a sound joint family. Merely because the family possessed debts, I am not prepared to draw an inference that the joint family did not have any income of its own.

58. In Ex.A.16 registration extract of the sale deed, the name of the first defendant was not mentioned as helping the plaintiff financially in purchasing the property. The learned senior counsel for the plaintiff contended that if the plaint D schedule property was purchased with the financial assistance of the first defendant, it would have been so recited in Ex.A.16. Whether the plaintiff purchased the property with the assistance of the first defendant or otherwise, the property cannot be the property of the plaintiff in the absence of evidence that the joint family did not have sufficient nucleus. Where it is established that the joint family has sufficient nucleus, the absence of the recitals in Ex.A.16 that the first defendant helped the plaintiff financially in purchasing plaint D schedule property is of no consequence.

59. As already referred to, the learned senior counsel contended that plaintiff was given considerable dowry in the name of presents at the time of his marriage by his parents-in-law and that he purchased the plaint D schedule property with the financial assistance of his parents-in-law. The plaintiff showed that his parents-in-law withdrew monies from the banks. He also showed that he withdrew money from the bank. But, he failed to link the withdrawal of monies by his parents-in-law to the presentations purportedly given to him and withdrawal of money by him to purchase of the property under Ex.A.16. I am afraid that the bank transactions are disjoint from Ex.A.16. I am not prepared to read that plaint D schedule property was purchased under the original of Ex.A.16 by the plaintiff with his personal funds from these circumstances. The plaintiff also produced Exs.A.8 and A.9 bank loans. As rightly contended by the learned counsel for the second defendant, the plaintiff failed to show that these bank loans were obtained and were utilized by the plaintiff for the construction of the Nursing Home in the plaint schedule property. In fact, the plaintiff did not adduce any evidence that he has been in exclusive possession of the plaint schedule property. He did not produce tax receipts for the premises from his possession. Assuming that the plaintiff was ready to produce tax receipts, the tax receipts in the name of the plaintiff could not have proved the case of the plaintiff. Tax receipts would obviously be in the name of the plaintiff, where Ex.A.16 sale deed is in the name of the plaintiff. If the plaintiff were in exclusive possession of plaint D schedule property including the superstructure thereon, the plaintiff must have paid municipal tax and non-agricultural tax and would have been able to produce such receipts at least to establish his exclusive possession over plaint D schedule property. The plaintiff did not even do so. I, therefore, consider that Exs.A.8 and A.9 are of no consequence and do not establish the case of the plaintiff in any manner. The claim of the learned senior counsel for the plaintiff that the super structure of the premises shall be deemed to be owned by the owner of the vacant land on which the building stands is a well established principle. This legal position, however, has no application where plaint D schedule property itself is in dispute and where the dispute is not relating to the superstructure standing on the plaint D schedule property.

60. The learned senior counsel for the plaintiff contended that the plaintiff has established that by 1980, the plaintiff was in possession of ` 37,000/- in cash and that by 1985 he had raised loans from the bank and LIC and also monies by sale of part of the plaint D schedule property through Exs.A.6 and A.7 and that he utilized the same for construction of the premises. I am afraid that assuming that the plaintiff is in possession of cash, it does not mean that he constructed the superstructure of the plaint D schedule property. Further, while the plaintiff shown that his parents-in-law withdrew monies and he also withdrew monies, the plaintiff failed to link the same to the presents received by him and to the amounts spent by him for purchase of plaint D schedule property and for construction of the premises thereof.

61. It is contended on behalf of the plaintiff that till the plaintiff filed the suit, defendants 2 and 3 did not question the management of the first defendant and that therefore, subsequent conduct is only chance litigation in respect of plaint D schedule property. I consider that whether defendants 2 and 3 did not question the conduct of their father and did not seek for the partition of the joint family is irrelevant. The controversy in this appeal is whether the plaint D schedule property is joint family property or otherwise. The plaintiff is unable to show that plaint D schedule properties are his self acquired properties and exclusive properties of the plaintiff for the reasons set out above. Indeed, one Punnaiah filed O.S.No.152 of 1988 claiming that the first defendant borrowed monies from him. The plaintiff tried to show that the family did not have means from the fact that he borrowed monies from one Ponnaiah. As already observed, merely because the first defendant borrowed money from Ponnaiah, it does not mean that the joint family did not have sufficient nucleus and sufficient income. The plaintiff also contended that whatever expenditure the joint family incurred for the marriages of the defendants 2 and 3 in 1984 and 1987 was spent out of the joint family funds and that the marriage expenses were not met by their respective parents-in-law. Again, there is no proof for this contention of the learned counsel for the plaintiff. The learned senior counsel for the plaintiff thus contended that the expenses of marriage of the plaintiff were met by his parents-in-law and the expenses of the marriage of his younger brothers were met by the first defendant. This has not been proved. Consequently, while the defendants are able to show that the joint family has sufficient nucleus to purchase plaint D schedule property and could have purchased and made constructions thereon, the plaintiff failed to rebut the same. The plaintiff also failed to clinchingly show that he purchased plaint D schedule property with his personal funds and made constructions thereon with his personal monies. The trial Court consequently was justified in partitioning the plaint D schedule property into four equal shares and allotting one such share to each of the plaintiff and defendants 1 to 3. As the first defendant is no more, the plaintiff as well as defendants 2 and 3, therefore, are entitled to 5/16th share each in the plaint D schedule property (including the superstructure thereon), while the fourth respondent is entitled to 1/16th share. Where the learned counsel for the second defendant reported about the recent demise of the fourth respondent and claimed that she died bequeathing her share to the second defendant, they are not the subject matter of this lis and shall be determined separately by the second defendant.

62. This appeal accordingly deserves to be dismissed. It is declared that so far as plaint D schedule property is concerned, the plaintiff and defendants 2 and 3 are entitled to 5/16th share each while the fourth respondent is entitled to 1/16th share.

63. This appeal is accordingly dismissed. In the circumstances, there shall, however, be no order as to costs.


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