Appeal No 263 of 1956
Appeal from the judgment and decree dated January 6 1953 of the Madras High Court in A section Appeal No 7 of 1949
M C Setalvad Attorney General of India and Naunit Lal for the appellants
100 780 A V Vimanatha Sastri and B K BNaidu for respondent No 1
M B K Pillai for respondent No 2 1961
February 9
The Judgment of the Court was delivered by GAJENDRAGADKARJ
This appeal has been brought to this Court with a certificate granted by the Madras High Court and it arises from a suit filed by the appellants Mallesappa and Chenna Basappa against their uncle Mallappa respondent 1 and granduncle Honnappa respondent 2 for partition
According to the plaint the family of the appellants and respondent 1 was an undivided Hindu family until the date of the suit and respondent 1 was its manager
The ancestor of the family was Desai Mallappa
He had three sons Kari Ramappa who died in 1933 Virupakshappa who died long ago and Honnappa respondent 2
Kari Ramappa had four sons Guru shantappa died 1913 Bandappa died 1931 Mallappa respondent 1 and Veerabhadrappa died 1927
Gurushantappa married Parvathamma the two appellants are the sons of Bandappa their mother being Neelamma
They were born in 1926 and 1929 respectively
Their case was that respondent 1 who has been the manager of the family for many years has been trying to deprive them of their legitimate share in the property and refused their request for partition and so they had to file the present suit
According to them in the property of the family they and respondent 1 were entitled to half share each
To the plaint were attached the schedules describing the several items of property
Schedule A consisted of items 1 to 163 which included houses and lands at Jonnagiri
Schedule B described the movables while Schedule C included items 1 to 35 all of which had been acquired by the family under a document exhibit B 32
It is in respect of all these properties that the appellants claimed their half share and asked for a partition in that behalf
This claim was resisted by respondent 1 principally on the ground that in 1929 Ramappa the father of 781 respondent 1 and the grandfather of the appellants had effected a partition of the joint family properties between respondent 1 and his elder brother Bandappa who is the appellants  father
That is how according to respondent 1 the appellants  claim for partition was untenable
In this way he pleaded separate title to all the properties in suit
On these pleadings the learned District Judge who tried the suit framed eight issues two of these related to the question regarding the status of the family
He found that the plea of partition made by respondent 1 was not proved and accordingly he declared that the appellants were entitled to half share in the properties of the family and passed a preliminary decree for partition
According to the learned judge the appellants were entitled to their half share in the items of property described in Schedule A excluding items 63 64 65 86 and 151 and items in paragraph 14d of the written statement of respondent 1 as well as items of property described in Schedules B and C
This decree was passed on November 22 1948
The said decree was challenged by respondent 1 by his appeal before the Madras High Court
He urged that the trial court s finding as to the status of the family was erroneous and he pleaded that in any case the appellants were not entitled to any share in the properties at Jonnagiri items 4 to 61 as well as the properties acquired under exhibit B 32
The first argument was rejected by the High Court but the second was upheld
In the result the decree passed by the trial court was confirmed except in regard to the said two categories of properties
It is this appellate decree which is challenged before us by the learned Attorney General on behalf of the appellants
In order to appreciate the contentions raised before us it would be necessary to recapitulate briefly the findings concurrently recorded by the courts below in respect of the plea of partition set up by respondent 1
These findings afford a background in the light of which the pleas raised before us would have to be considered
It appears that respondent 1 relied on several documents in support of his plea that there 782 was a partition effected by Ramappa in 1929
The trial court repelled this argument and observed that from 1937 respondent began to do mischief
The transfer of patta in 1937 on which respondent 1 relied was entirely his work and the appellants  mother Neelamma had not been consulted and had given no consent to it
In the opinion of the trial court respondent 1 through his agents whom he examined as witnesses in the suit D Ws 2 and 14 managed the family lands arranged to pay cist for them and manipulated entries in the revenue record purporting to show that Neelamma had paid the said cist as pattadar
Neelamma was an illiterate and Gosha woman and it appeared that a certain amount of coercion had been practised on her as well as deception in persuading her to execute the original of exhibit B 10 which contained the recital that the house there described had fallen to the share of Neelamma s husband at a prior partition
The trial court was satisfied that the said recital had been fraudulently made and the document had not been read to Neelamma at all
The demeanour of respondent 1 in the witness box was also criticised by the trial judge when he observed that he did not impress the trial judge as a truthful witness and in his opinion he was a powerful and influential man in the village who was able to do a number of things as he wished and so it was not surprising that he was able to get a number of witnesses to speak to separate enjoyment of a few items of land by the appellants  mother
When the question of status of the family was reagitated before the High Court it felt no hesitation in confirming the conclusions of the trial court in regard to the general conduct of respondent 1 the documents brought into existence by him and the unfair manner in which he had dealt with the appellants  mother
For the reasons set out by the High Court in its judgment  and also for the various reasons put forward by the learned District Judge in his exhaustive judgment  the High Court agreed with the learned judge that the alleged partition of 1929 had not been proved
Thus the dispute between the parties has to be considered 783 on the basis that until the date of the institution of the suit the family was an undivided Hindu family with respondent I as its manager
The first point which has been raised before us by the learned Attorney General relates to items 4 to 61 at Jonnagiri
These properties originally belonged to Karnam Channappa
He died in 1904 and in due  course the said property devolved upon his widow Bassamma who died in 1920
Bassamma left behind her three daughters Channamma Nagamma and Veeramma
Channamma married Ramappa and as we have already indicated the couple had four sons including the appellants father Bandappa and the first respondent Mallappa
It is common ground that the properties at Jonnagiri had been obtained by Channamma by succession from her father and were held by her as a limited owner
The appellants  case was that after Channamma obtained these properties by succession she allowed the said properties to be thrown into the common stock of other properties belonging to her husband s family and so by virtue of blending her properties acquired the character of the properties belonging to her husband s family in other words the appellants  claim in respect of this property is based on the principle of blending or throwing into the com mon stock which is recognised by Hindu law
The trial court relied on some transactions adduced by the appellants and upheld the plea that Channamma s properties had become joint family properties in which the appellants had a half share
The High Court has reversed this finding and it has held that the transactions on which the appellants relied do not prove blending as known to Hindu law
That is why the appellants  claim to these properties has been rejected by the High Court
Before considering the appellants  case in regard to these properties it is necessary to enquire whether the doctrine of blending can be invoked in such a case
Is this doctrine based on any Sanskrit Text of Hindu Law According to the decision of the Privy Council in Shiba Prasad Singh vs Rani Prayag Kumari Debi 1
1 1932 LR 59 IA 331 784 this doctrine is based on the text of Yagnavalkya and the commentary of Mitakshara the text of Yagnavalkya reads thus  In cases where the common stock undergoes an increase an equal division is obtained  1
In his commentary on this text Vijnyaneshwara has observed as follows  Among unseparated brothers if the common stock be improved or augmented by any one of them through agriculture commerce or similar means an equal distribution nevertheless takes place and a double share is not allotted to the acquirer  2
Sir Dinshah Mulla who delivered the judgment of the Privy Council in the case of Shiba Prasad Singh 3 has observed that the words of Yagnavalkya mean that  if a member of a joint family augments joint property whatever may be the mode of augmentation the property which goes to augment the joint family property becomes part of the joint family property and he is entitled on a partition to an equal share with the other members of the family and not to a double share as in some other cases dealt with in the preceding verses
This is the placitum on which the whole doctrine of merger of estates by the blending of income is founded  p 349
It would thus be seen that according to this decision the doctrine of blending or throwing into the common stock is based on the text just quoted
With very great respect however the text of Yagnavalkya and the comments made by Vijnyaneshwara on it do not appear to have any relation to the doctrine of blending as it has been judicially evolved
The context of the discussion both in the text of Yagnavalkya and in the commentary clearly shows that what is being discussed is the acquisition of property by a coparcener with the use of the family stock in other words taking the benefit of the family stock and making its use if a coparcener through trade agriculture or any other means augments the initial or original family stock the augmentation thus made is treated as forming part of the original stock and an accretion to it and in this augmentation the acquirer is not given any extra share for his special exertions
1 Ch 1 sect
4 30
2 Mitakshara ch
1 sect
3 1932 LR 59 IA 331
785 This position is clarified by the comments made by Sulapani
Says Sulapani  that an equal division is here specifically ordained for in a partnership with a common stock the difference in the gains of each individual member is not to be taken into account at the time of partition
 Vijnyaneshwara observes that this text is intended to be an exception to the text of Vasishtha which allows two shares to the acquirer and which is cited in the Mayukha 1
It would thus be clear that the relevant text and the commentary are not dealing with a case where the separate property of a coparcener independently acquired by him is thrown into the common stock with the deliberate intention of extinguishing its separate character and impressing upon it the character of the joint family property
The subject matter of the discussion is addition to the common stock made by the efforts of a coparcener with the assistance of the common stock itself
Therefore in our opinion the said text cannot be treated as the basis for the doctrine of blending as it has been judicially evolved
It is we think unnecessary to investigate whether any other text can be treated as the foundation of the said doctrine since the said doctrine has been recognised in several decisions and has now become a part of Hindu law
In Rajani Kanta Pal vs Jaga Mohan Pal 2 the Privy Council held that  Where a member of a joint Hindu family blends his self acquired property with property of the joint family either by bringing his self acquired property into a joint family account or by bringing joint family property into his separate account the effect is that all the property so blended becomes a joint family property The question which falls for our decision is Does this principle apply in regard to a property held by a Hindu female as a limited owner In our opinion it is difficult to answer this question in favour of the appellants
The rule of blending postulates that a coparcener who is interested in the coparcenary property and who owns separate property of his own may 1 The Vyavahara Mayukha Pt 1 by Vishvanath Narayan Mandlik 215
21923 LR 50 IA 173
786 by deliberate and intentional conduct treat his separate property as forming part of the coparcenary property
If it appears that property which is separately acquired has been deliberately and voluntarily thrown by the owner into the joint stock with the clear intention of abandoning his claim on the said property and with the object of assimilating it to the joint family property then the said property becomes a part of the joint family estate  in other words the separate property of a coparcener loses its separate character by reason of the owner s conduct and get thrown into the common stock of which it becomes a part
This doctrine therefore inevitably postulates that the owner of the separate property is a coparcener who has an interest in the coparcenary property and desires to blend his separate property with the coparcenary property
There can be no doubt that the conduct on which a plea of blending is based must clearly and unequivocally show the intention of the owner of the separate property to convert his property into an item of joint family property
A mere intention to benefit the members of the family by allowing them the use of the income coming from the said property may not necessarily be enough to justify an inference of blending but the basis of the doctrine is the existence of coparcenary and coparcenary property as well as the existence of the separate property of a coparcener
How this doctrine can be applied to the case of a Hindu female who has acquired immovable property from her father as a limited owner it is difficult to understand
Such a Hindu female is not a coparcener and as such has no interest in coparcenary property
She holds the property as a limited owner and on her death the property has to devolve on the next reversioner
Under Hindu law it is open to a limited owner like a Hindu female succeeding to her mother s estate as in Madras or a Hindu widow succeeding to her husband s estate to efface herself and accelerate the reversion by surrender but as is well known surrender has to be effected according to the rules recognised in that behalf
A Hindu female owning a limited estate cannot circumvent the rules of surrender 787 and allow the members of her husband s family to treat her limited estate as part of the joint property belonging to the said family
On first principles such a result would be inconsistent with the basic notion of blending and the basic character of a limited owners  title to the property held by her
This aspect of the matter has apparently not been argued before the courts below and has not been considered by them
Thus if the doctrine of blending cannot be invoked in regard to the property held by Channamma the appellants  claim in respect of the said property can and must be rejected on this preliminary ground alone
However we will briefly indicate the nature of the evidence on which the plea of blending was sought to be supported
It appears that in 1921 a deed of maintenance was executed in favour of Gurushantappa s widow Parvathamma by the three surviving brothers of Gurushantappa
This deed was attested by their father Kari Ramappa
It is clear that this deed includes some of the lands which Channamma had acquired by succession to her father exhibit A 10
Subsequently on July 5 1923 some additional properties belonging to Channamma were charged to the said maintenance exhibit A 11
It also appears that pattas in respect of the same lands belonging to Channamma were obtained in the names of the members of the family and consequently the said pattas were shown in the relevant revenue papers
Broadly stated that is the nature of the evidence on which the plea of blending rests
It is obvious that even if the doctrine of blending were applicable it would be impossible to hold that the transactions on which it is sought to be supported can lead to the inference that Channamma did any act from which her deliberate intention to give up her title over the properties in favour of the members of her husband s family can be inferred
It is not difficult to imagine Channamma s position in the family
If her husband and her sons dealt with her property as they thought fit to do Channamma may not know about it and even if she knew about it may not think it necessary to object 788 because she would not be averse to giving some income from her property to her sons or to her widowed daughter in law
As we have already pointed out the conduct of the owner on which the plea of merger can be invoked must be clear and unequivocal and the evidence about it must be of such a strong character as to justify an inference that the owner wanted to extinguish his title over the property and impress upon it the character of the joint family property
Besides as we will later point out Channamma executed a deed of surrender in 1938 and the said document is wholly inconsistent with the plea that she intended to give up her title to the property in favour of her husband s joint family
However this discussion is purely academic since we have already held that the principle of blending cannot be invoked in respect of the limited estate held by Channamma
Therefore we must hold that the High Court was right in rejecting the appellants  claim in respect of the properties in Jonnagiri
That takes us to the properties in Schedule C in respect of which the trial court had decreed the appellants  claim and the High Court has rejected it
This property has been obtained by respondent 1 as a result of the decree passed in O section No 5 of 1940
The property originally belonged to Virupakshappa and in O section No 5 of 1940 respondents 2 and 1 claimed a declaration against the two widows of Virupakshappa their daughter and certain alienees
The declaration claimed was that the wills of Virupakshappa therein specified were invalid and inoperative and that the respondents had reversionery right to Virupakshappa s estate after the lifetime of his widows and daughter
A further declaration was also claimed that alienations and gifts specified in the plaint were invalid beyond the lifetime of the widows and the daughter of Virupakshapna
This suit ended in a compromise decree and it is common ground that the properties in Schedule C came to the share of respondent 1 by this compromise decree
The question which has been argued before us in respect of these properties is whether or not the appellants 789 are entitled to a share in these properties
The appellants contend that respondent 1 had joined respondent 2 in the said suit as representing their undivided family and the properties acquired by him under the compromise decree passed in the said suit has been allotted to him as representing the whole of the family
On the other hand respondent 1 contends that he joined respondent 2 in his individual character and the decree must inure for his individual benefit
It is clear that at the time when the said suit was filed respondent 2 was a presumptive reversioner and not respondent 1  but it appears that respondent 2 wanted the help of respondent 1 to fight the litigation and both of them joined in bringing the said suit
It is common ground that respondent 2 asked Neelamma whether she would like to join the litigation
Respondent 2 has stated in his evidence that Neelamma was not willing to join the said litigation and respondent 1 has supported this version
The High Court thought that the evidence of Neelamma was also consistent with the story set up by respondent 1
That is one of the main reasons why the High Court held that the decree passed in the said suit did not enure for the benefit of the family
In assuming that Neelamma supported the version of respondent 1 the High Court has obviously misread her evidence
This is what Neelamma has stated in her evidence  Defendants 1 and 2 came to me at the time of filing their suit and said that the expenses are likely to be heavy and that minors  properties would not be wasted
1 said 1 had no objection and gave my consent The High Court has read her evidence to mean that she was not prepared to waste the properties of her minor sons and so she refused to join the adventure and in doing so it thought that the statement of respondent 2 was that the minors  properties should not be wasted whereas according to the witness the said statement was that the minors  properties would not be wasted
It would be noticed that it makes substantial difference whether the words used were  would not  or  should not
 790 We have no doubt that on the evidence as it stands the inference is wholly unjustified that Neelamma refused to join respondents 1 and 2
Besides as we have already pointed out the evidence of respondents 1 and 2 have been disbelieved by both the courts and in fact the conduct of respondent 1 whereby he wanted to defeat the claims of his nephews has been very strongly criticized by both the courts
Therefore we feel no hesitation in holding that the trial court was right in coming to the conclusion that respondents 1 and 2 consulted Neelamma and with her consent the suit was filed and was intended to be fought by the two respondents not for themselves individually but with the knowledge that respondent 1 represented the undivided family of which he was the manager
If that be so then it must follow that the decree which was passed in favour of respondent 1 was not for his personal benefit but for the benefit of the whole family
In this connection it is necessary to bear in mind that respondent 1 has not shown by any reliable evidence that the expenses for the said litigation were borne by him out of his pocket
It is true that both the courts have found that respondent 1 purchased certain properties for Rs 600 in 1925 exhibit B 4
We do not know what the income of the said properties was obviously it could not be of any significant order but in our opinion there is no doubt 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
The onus of proof must in such a case be placed on the manager and not on his coparceners
But apart from the question of onus the evidence given by respondent 1 in this case has been disbelieved and in the absence of any satisfactory material to show that respondent 1 had any means of his own it would be idle to contend that the expenses incurred for the litigation in question were not borne by the joint 791 family income
Therefore apart from the fact that Neelamma was consulted and agreed to join the adventure on behalf of her sons it is clear that the expenses for the litigation were borne by the whole family from its own joint funds
This fact also shows that the property acquired by respondent 1 under the compromise decree was acquired by him as representing the family of which be was the manager
The result is that the view taken by the High Court in respect of the properties in Schedule C must be reversed and that of the trial court restored
That leaves a minor point about three items of property Serial Nos 63 64 and 65 in Schedule A
These items of property form part of Jonnagiri property and we have already held that the appellants cannot make any claim to the whole of this property
It appears that though the trial judge passed a decree in favour of the appellants in respect of Serial Nos 4 to 61 in Schedule A he did not recognise the appellants  share in the three serial numbers in question because he held that they were not part of the joint family property but belonged exclusively to respondent 1
It also appears that these properties originally belonged to the joint family of the parties but they were sold by Kari Ramappa and his two brothers to Channappa as long ago as 1898
That is how they formed part of Channappa s estate
Both the courts have found that the sale deed in question was a real and genuine transaction and they have rejected the appellants  case to the contrary
Respondent 1 claims these items under a deed of surrender executed in his favour by Channamma exhibit B 3 on December 5 1938
This document is accepted as genuine by both the courts and it is not disputed that the surrender effected by it is valid under Hindu law
Indeed this document is wholly inconsistent with the appellants  case that Channamma wanted to convert her separate properties into properties of the joint family of her husband
Therefore there is no substance in the appellants  argument that they should be given a share in these three items of property
792 The result is the appeal is partly allowed and the decree passed by the High Court is modified by giving the appellants their half share in the properties described in Schedule C
The rest of the decree passed by the High Court is confirmed
In the circumstances of this case the parties should bear their own costs  Appeal allowed in part


Summary:
Where the right to receive compensation for property acquired in land acquisition proceedings as between rival claimants depends the title to the property acquired and the dispute as to title is raised by the parties and is decided by the Land Acquisition Judge after contest this decision as to title operates as res judicata in a subsequent suit between the same parties the question of title
The binding force of a judgment delivered under the Land Acquisition Act depends general principles of law and not section 11 of the Civil Procedure Code and the decision of a Land Acquisition Judge would operate as res judicata even though he was not competent to try the subsequent suit
If a mortgagee intervenes in land acquisition proceedings and makes a claim for compensation and any question of title arises about the title of the mortgagor in respect to the land acquired which affects the claim for compensation he has every right to protect that title and if he defends that title and the issue is decided against his mortgagor the decision would operate as res judicata even as against the mortgagee
Certain premises which formed part of the estate of a de ceased person were acquired in land acquisition proceedings
There was a triangular contest about the right to the compensation money between A and B two rival claimants to a four annas 155 share in the estate of the deceased and C a mortgagee from one of the claimants
The three parties required the question of apportionment to be referred to the Court and a Special Judge who was appointed decided the question of title to the four annas share upon which the right to receive the compensation depended and made an award
The Land Acquisition Judge and High Court found the title in favour of B after due contest between the parties but the Privy Council reversed the decision and decided the question of title in favour of A
In a subsequent suit between the same parties the question of title was again raised Held i that the decision of the Privy Council the ques tion of title in the land acquisition proceedings operated as res judicata as against B a well as C even though the Land Acquisition Judge was a Special Judge who would have had no juris diction to try the subsequent suit iithat the rule of res judicata was applicable even though the subject matter of dispute in the land acquisition proceedings was the compensation money and not the property which was in dispute in the subsequent suit  iiithe fact that the mortgagee did not appear at the hearing before the Privy Council was immaterial as the judgments in the first two courts were given after full contest
Ramachandra Rao vs Ramachandra Rao 1922 49 IA 129 and Bhagwati vs Ram Kali 1939 66 IA 14 applied