Case: Mudi Gowda Gowdappa Sankh Vs. Ram Chandra Ravagowda Sankh

12 pieces of lands were joint family properties and were not the self-acquisition of Goudappa. The case of the appellants was that these lands were self-acquisition of Goudappa, but the respondents contended that they were joint family properties.The law on this aspect of the case is well settled. Of course there is no presumption that a Hindu family merely because it is joint, possesses any joint property. The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as coparcenery property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presume to be joint family property. This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate.In Appalaswami v. Suryanarayanamurti, ILR (1948) Mad 440=(AIR 1947 PC 189 ) Sir John Beaumont observed as follows:-"The Hindu law upon this aspect of the case is well settled. 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 was 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-aquisition to establish affirmatively by that the property was acquired without the aid of the joint family property. See Babubhai Girdharlal v. Ujamlal Hargovandas, ILR (1937) Bom 708 = (AIR 1937 Bom 446 ), Venkatramayya v. Seshamma, ILR (1937) Mad 1012=(AIR 1937 Mad 538 ) and Vythianatha v. Varadaraja, ILR (1938) Mad 696=(AIR 1938 Mad 841 )."6. In the present case, both the lower Courts have found that there was an adequate nucleus of joint family properties from which the acquisitions could have been made. It is admitted that when Nenappa I died, the joint family was possessed of 151 acres and 27 gunthas of and assessed at Rs. 143/-. It is further admitted by defendant No. 1 that out of the four ancestral lands, one land was Bagayat land. Witnesses on behalf of the plaintiff, assessed the income between Rs. 5,000/- to Rs. 6,000/- before the First World War. It is also conceded that the family had between 8 to 12 bullocks for the purposes of cultivation and most of the lands were cultivated personally by the family members. Between 1911 and 1940, 12 other pieces of lands measuring 137 acres and 39 gunthas assessed at Rs. 18/10/- were acquired in various names. The total price of the sale deeds is Rs. 4,800/- spread over a period of 30 years. In view of this evidence, we see no reason to differ from the finding of the lower Courts that the income from the nucleus was more than sufficient for the purchase of the properties on the different dates. The respondents alleged that these properties belonged to the joint family, an unless it is shown by the appellants that Goudappa carried on any other business and that these properties were acquired out of that income, the appellants must fail. The case of defendant No. 1 was that Goudappa made these acquisitions out of his business. D. W. 1 however did not state the nature of the business. In cross-examination he said that Goudappa was trading in cotton and this information he had got from Goudappa after his adoption. D. W. 1 was however unable to say with whom Goudappa had dealings in cotton. If Goudappa was doing cotton business it should not have been difficult for the defendants to have produced more direct evidence of persons with whom he had business dealing. The High Court has rejected the evidence of D. W. 3, Imamsaheb as worthless. It is manifest that there is no proof that Goudappa had any separate income of his own out of which he could have acquired the 12 pieces of land. The lower Courts were, therefore, right in reaching the conclusion that the 12 pieces of lands belonged to joint family and that the plaintiff was entitled to a share thereof in the partition.7. It was lastly contended on behalf of the appellants that in any case the High Court should have allowed the cross-objection of the respondents with regard to Survey plots Nos. 43 and 77. Reference was made to paragraph 5 of the plaint in which there was no specific mention of the sale deed execute by Apparaya in favour of defendant No. 3 of Survey plots Nos. 77 and 43. But paragraph 4 should be read along with paragraph 7 of the plaint in which the plaintiff challenged the alienations made in favour of the several parties to the suit and had claimed relief in respect of all the lands mentioned in the schedule to the plaint. Survey plots Nos. 77 and 43 are expressly mentioned in the schedule. It is, therefore, not possible to accept the contention of the appellants that the plaintiff had not challenged the sale deed Ex. 167 with respect to survey plots Nos. 77 and 43. The High Court has pointed out that defendant No. 3 was a minor at the time of sale, that Goudappa had acted as her guardian and that defendant No. 3 had no property of her own. The High Court therefore rightly held that the sale must be held to be without consideration and not genuine and was, therefore, not binding on the plaintiff.8.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]We are accordingly of the view that there is proper evidence to support the concurrent finding of the lower Courts and there is no reason to disturb thatour opinion, there is no substance in this argument. It is now well established that an agreement between all the coparceners is not essential to the disruption of the joint family status, but a definite and unambiguous indication of intention by one member to separate himself from the family and to enjoy his share in severalty will amount in law to a division of status. It is immaterial in such a case whether the other members assent or not. Once the decision is unequivocally expressed, and clearly intimate to his co-sharers, the right of the coparcener to obtain and possess the share to which he admittedly is entitled, is unimpeachable. But in order to operate as a severance of joint status, it is necessary that the expression of intention by the member separating himself from the joint family must be definite and unequivocal. If however the expression of intention is a mere pretence or a sham, there is in the eye of law no separation of the joint familyis, therefore, not possible to accept the contention of the appellants that the plaintiff had not challenged the sale deed Ex. 167 with respect to survey plots Nos. 77 and 43. The High Court has pointed out that defendant No. 3 was a minor at the time of sale, that Goudappa had acted as her guardian and that defendant No. 3 had no property of her own. The High Court therefore rightly held that the sale must be held to be without consideration and not genuine and was, therefore, not binding on theour opinion, there is no justification for this argument. In the partition deed it is recited that the lands were partitioned with the help of Panchas but the names of Panchas are not mentioned in the document and none of the Panchas has signed. As to the division of the properties, Goudappa has been given 101 acres and 39 gunthas while Apparaya has been given 50 acres and 10 gunthas only. The total assessment of lands given to Goudappa is Rs. 82/3/- while the assessment of the lands given to Apparaya is Rs. 61/7/-. There appears to be no division of the house at all, since nothing is mentioned in the partition deed about the house. The unequal division of the lands in the so-called partition deed is a strong circumstance which indicates that the transaction was not genuine. It should also be noticed that at the time of the partition deed there were widows of two sons in the family, Nenappa the second and Revagouda. At about this time, after Nenappas death, the adoption of Nenappa by Goudappa was denied. The scheme of the partition was, therefore, to deprive the two widows of any claim for maintenance out of the joint family properties but to limit their rights to about 50 acres of land given to Apparaya. There is also evidence that after the partition deed, the two brothers continued to be in joint possession of the lands and they lived joint in the same house as before. It appears that the two brothers had a joint mess even after the date ofe law on this aspect of the case is well settled. Of course there is no presumption that a Hindu family merely because it is joint, possesses any joint property. The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as coparcenery property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presume to be joint family property. This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate.In Appalaswami v. Suryanarayanamurti, ILR (1948) Mad 440=(AIR 1947 PC 189  ) Sir John Beaumont observed asHindu law upon this aspect of the case is well settled. 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 was 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-aquisition to establish affirmatively by that the property was acquired without the aid of the joint family property. See Babubhai Girdharlal v. Ujamlal Hargovandas, ILR (1937) Bom 708   = (AIR 1937 Bom 446  ), Venkatramayya v. Seshamma, ILR (1937) Mad 1012=(AIR 1937 Mad 538  ) and Vythianatha v. Varadaraja, ILR (1938) Mad 696=(AIR 1938 Mad 841  ).In the present case, both the lower Courts have found that there was an adequate nucleus of joint family properties from which the acquisitions could have been made. It is admitted that when Nenappa I died, the joint family was possessed of 151 acres and 27 gunthas of and assessed at Rs. 143/-. It is further admitted by defendant No. 1 that out of the four ancestral lands, one land was Bagayat land. Witnesses on behalf of the plaintiff, assessed the income between Rs. 5,000/- to Rs. 6,000/- before the First World War. It is also conceded that the family had between 8 to 12 bullocks for the purposes of cultivation and most of the lands were cultivated personally by the family members. Between 1911 and 1940, 12 other pieces of lands measuring 137 acres and 39 gunthas assessed at Rs. 18/10/- were acquired in various names. The total price of the sale deeds is Rs. 4,800/- spread over a period of 30 years. In view of this evidence, we see no reason to differ from the finding of the lower Courts that the income from the nucleus was more than sufficient for the purchase of the properties on the differents alleged that these properties belonged to the joint family, an unless it is shown by the appellants that Goudappa carried on any other business and that these properties were acquired out of that income, the appellants mustr opinion, there is no justification for this argument. In the partition deed it is recited that the lands were partitioned with the help of Panchas but the names of Panchas are not mentioned in the document and none of the Panchas has signed. As to the division of the properties, Goudappa has been given 101 acres and 39 gunthas while Apparaya has been given 50 acres and 10 gunthas only. The total assessment of lands given to Goudappa is Rs. 82/3/while the assessment of the lands given to Apparaya is Rs.There appears to be no division of the house at all, since nothing is mentioned in the partition deed about the house. The unequal division of the lands in thepartition deed is a strong circumstance which indicates that the transaction was not genuine. It should also be noticed that at the time of the partition deed there were widows of two sons in the family, Nenappa the second and Revagouda. At about this time, after Nenappas death, the adoption of Nenappa by Goudappa was denied. The scheme of the partition was, therefore, to deprive the two widows of any claim for maintenance out of the joint family properties but to limit their rights to about 50 acres of land given to Apparaya. There is also evidence that after the partition deed, the two brothers continued to be in joint possession of the lands and they lived joint in the same house as before. It appears that the two brothers had a joint mess even after the date ofas contended by Mr. Sanghi that there was no evidence that the two brothers continued to be in joint possession of thelands. But it is not possible to accept this argument as correct. On a perusal of the evidence it is apparent that P. Ws. 1 to 4 all supported the case of the joint possession of the two brothers and their evidence has been believed by both the lower Courts. There is another circumstance which strongly leads support to the plaintiffs case on this point. It was at one time supposed that the doctrine of Mitakshara law was that if the last surviving coparcener died and the property passed to his heir such as a widow or a collateral, the power of the widow of a predeceased coparcener to adopt was at an end. (Chandra v. Gojrabai, (1890) ILR 14 Bom 463 and Adivi Suryaprakasarao v. Nidamarty Gangaraju, (1910) ILR 33 Mad 228)  . The cases on this point were considered in 1936 by the Full Bench of the Bombay High Court in Balu Sakharam Powar v. Lahoo Sambhaji, AIR 1937 Bom 279 (FB). It was held in that case that where a coparcenery exists at the date of the adoption the adopted son becomes a member of the coparcenary, and takes his share in the joint property, but where the partition takes place after the termination of the coparcenary by the death, actually or fictionally, of the last surviving coparcener, the adoption by a widow of a deceased coparcener has not the effect of reviving the coparcenary and does not divest property from the heir of the last surviving coparcener (other than the widow) or those claiming through him or her. But the decision of the Full Bench of the Bombay High Court was expressly overruled by the Judicial Committee in Anant v. Shankar, AIR 1943 PC 196  . It was held that the power of a Hindu widow does not come to an end on the death of the sole surviving coparcener. Neither does it depend upon the vesting or divesting of the estate, nor can the right to adopt be defeated by partition between the coparceners. The rights of the adopted son relate back to the date of the adoptive fathers death and the adopted son must be deemed by a fiction of law to have been in existence as the son of the adoptive father at the time of the latters death. If, therefore, there was a coparcenery in existence when the adoptive father died, then whether it came to an end by the death of the last surviving coparcener or by subsequent partition among the remaining members, an adoption validly made by the widow of the deceased coparcener would have the effect of divesting the estate in the hands of the heir to the last surviving coparcener in the first case and of putting an end to the partition in the second case and enabling the adopted son to claim a share in the family properties as if they were still joint. The decision of the Judicial Committee in AIR 1943 PC 196   (supra) was unexpected and revolutionary in character. It is likely that in view of the fluid and uncertain state of the law on this point the two brothers Goudappa and Apparayya decided to execute a bogus deed of partition in order to avoid any legal consequence which may follow if either of the widows should take a son in adoption.We are accordingly of the view that there is proper evidence to support the concurrent finding of the lower Courts and there is no reason to disturb thatwas made to paragraph 5 of the plaint in which there was no specific mention of the sale deed execute by Apparaya in favour of defendant No. 3 of Survey plots Nos. 77 and 43. But paragraph 4 should be read along with paragraph 7 of the plaint in which the plaintiff challenged the alienations made in favour of the several parties to the suit and had claimed relief in respect of all the lands mentioned in the schedule to the plaint. Survey plots Nos. 77 and 43 are expressly mentioned in thes, therefore, not possible to accept the contention of the appellants that the plaintiff had not challenged the sale deed Ex. 167 with respect to survey plots Nos. 77 and 43. The High Court has pointed out that defendant No. 3 was a minor at the time of sale, that Goudappa had acted as her guardian and that defendant No. 3 had no property of her own. The High Court therefore rightly held that the sale must be held to be without consideration and not genuine and was, therefore, not binding on the