Case: Mallesappa Bandeppa Desai And Others Vs. Desai Mallappa And Others

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 ensure 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 suits and said that the expenses are likely to be heavy and that minors properties would not be wasted. I said I 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". 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 has been disbelieved by both the Courts, and in fact the conduct of respondent 1 whereby he wanted a defeat the claims of his nephews has been very strongly criticised 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.15. 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 (Ex. 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 out 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 family income. Therefore, apart from the fact that Neelamma was consulted and agreed to joint 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 he 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.16. 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 trail 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 Channappas 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 (Ex. 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.

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

Explanation:
1[ds]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 coparancer 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 Hinduour 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 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 a coparancer of the owners 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 coparcener property and desires to blend his separate property with the coparcenery 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 of 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 coparcenery and coparcenery 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 form 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 coparcenery 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 mothers estate as in Madras or a Hindu widow succeeding to her husbands estate, to effect herself and accelerate the revision 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 and allow the members of her husbands 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 Gurushantappas widow Parvathamma by the three surviving brothers of Guruchantappa. 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 (Ex.Subsequently, on July 5, 1923, some additional properties belonging to Channamma were charged to the said maintenance (Ex.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 reference 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 husbands family can be inferred. It is not difficult to imagine Channammas 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 because she would not be averse to giving some income from her property to her sons or to her widowedAs 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 husbands 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.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 ensure 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 suits and said that the expenses are likely to be heavy and that minors properties would not be wasted. I said I 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". 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 has been disbelieved by both the Courts, and in fact the conduct of respondent 1 whereby he wanted a defeat the claims of his nephews has been very strongly criticised 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.15. 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 (Ex.do not know what the income of the said properties was; obviously it could not be of any significant order; but in out 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 family income. Therefore, apart from the fact that Neelamma was consulted and agreed to joint 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 he 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.16. 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 trail 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 Channappas 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 (Ex.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.