Case: Devidas And Others Vs. Shrishailappa And Others

1. The genealogy which sets out the relationship between some of the principal parties in this litigation is as follows:2. Mallappa had four sons Balappa, Sivappa, Basavanappa and Chanamalappa. These four sons formed a joint Hindu family. Chanamalappa separated himself from the joint family sometime in the year 1909 and his other three brothers continued to remain joint. Shivappa was the Manager of the joint family after the death of Mallappa. Shivappa died in 1928 and Rachappa became the Manager of the family. The joint family possessed lands in seventeen villages and many houses in Khanapur. The family had also an extensive money-lending business. One Bashettappa Neeli - hereinafter referred to as Bashettappa - was married to the sister of Rachappa. On July 29, 1929, Bashettappa executed a deed of simple mortgage in favour of Rachappa in respect of certain parcels of lands and houses belonging to him to source repayment of Rs. 1,73,000/-, Rs. 76,700/- out of which were received in cash and the balance represented amounts which Rachappa agreed to pay to Bashettappas creditors. To one Gurappa, Bashettappa owed Rs. 8,000/- as an unsecured debt and Rachappa agreed to any that debt. In Insolvency Application No. 22 of 1939 of the file of the First Class Subordinate Judge, Dharwar, Bashettappa was adjudicated an insolvent and receivers were appointed by the insolvency Court to administer his estate. The receivers applied for a declaration that the mortgage deed in favour of Rachappa was a fraud of creditor and was accordingly void. The Assistant Judge, Dharwar, in Appeal No. 25 of 1934 from the order of the Insolvency Court held that Rachappa was entitled out of the mortgage amount to recover Rs. 45,700/- as a secured debt and Rs. 31,000/- as unsecured debt Gurappa - creditor of Bashettappa - in the meanwhile filed Suit No. 84 of 1932 against Rachappa and other members of his family in the Court of the First Class Subordinate Judge, Dharwar, for a decree for Rs. 8,000/- claiming that Rachappa had, acting on behalf of the joint family of which he was the manager, undertaken under the deed of mortgage to pay that amount and that he - Gurappa - had accepted that undertaking. A decree ex parte was passed in that suit against Rachappa on February 28, 1933, and the claim against the other members of the family was either withdrawn or rejected. On July 23, 1939, the three branches of the joint family by mutual agreement served the joint status and properties movables and immovables belonging to the family were divided. Pursuant to this division lands and houses which fell to the shares of the three branches were mutated in the Revenue and Municipal records in the names of the managers of the respective branches. Movables were also divided. The mortgage amount recoverable form Bashettappa and a claim against one Desai were, it is the case of the plaintiff in the suit out of which this appeal arises, kept joint. Gurappa after making certain infructions attempts to execute the decree filed dharkhast No. 176 of 1940 to recover Rs. 11,061-6-9 and prayed for an order of attachment and sale of the rights of Rachappa under the mortgage bond dated July 29, 1929. One Ganpatrao N. Madiman - hereinafter referred to as Madiman - offered the highest bid at the Court auction and the mortgage bond was sold to him for Rs. 20,000/-. An application filed by Rachappa for setting aside the sale pleading that the sale was vitiated by material irregularities and fraud in publishing and conducting the sale was rejected.3. The mortgage bond was delivered by the executing Court to Mandiman and orders were issued against Bashettappa and the receivers of his estate prohibiting them form making payments of the dues under the mortgage or any interest thereon to any person or persons except the purchaser Madiman. In Miscellaneous Application No. 57 of 1944, Madiman applied to the Insolvency Court to be recognised as an unsecured creditor of Rs. 31000/-, and the application was granted on the footing that the entire interest under the mortgage bond was purchased by him. Receivers appointed by the Insolvency Court thereafter put up for sale the equity of redemption in the mortgaged properties and the same was purchased for Rs. 15,500/- by Madiman. The sale deed in this behalf was executed by the receivers in favour of Madiman on January 28, 1947. Madiman accordingly became the owner of the equity of redemption and claimed to be entitled to the entire mortgagee right as a purchaser of the right, title and interest of Rachappa.4. Basalingappa who was the natural brother of Rachappa and was adopted by his uncle Basavanappa died in 1946 leaving him surviving his widow Parvatewa, and two sons Shrishailappa and Shivappa. The sons of Basailingappa who will hereinafter be referred to as the plaintiff files Suit No. 253 of 1947 for a decree for Rs. 1,23,400/- by enforcing the mortgage deed executed by Bashettappa claiming that Mandima had at the court auction acquired in the mortgagee right only the right title and interest of Rachappa which was a third and the plaintiffs and defendants 5 to 8 sons of Shivappa continued to remain owners of remaining two-third share. The plaintiffs prayed for a decree that the amount due under the mortgage be awarded to them and in default of payment the amount be realised by sale of the mortgaged property. To this suit were impleaded Bashettappa as defendant No. 1, receivers of his estate as defendants Nos. 2 and 3, Madiman as defendant No. 4, sons of Shivappa as defendants Nos. 5 to 8 and Rachappa and his son as defendants Nos. 9 and 10. Madiman died after the institution of this suit and his sons were impleaded as defendants Nos. 4A to 4C and his widow as defendant 4D. Mandimans sons were the principal contesting defendants and the main contentions raised by them were : (1) that the mortgagee right was the separate property of Rachappa and it did not belong at any time to the joint family of Rachappa defendants 5 to 8 and the plaintiffs, (2) that in any event, at the partition between the three branches the mortgagee right had fallen to the share of Rachappa and that it was not kept undivided as alleged by the plaintiffs, and (3) that in Execution Petition No. 176 of 1940, the entire interest of the joint family was sold and it was purchased by Madiman and consequently, the plaintiffs could not enforce the mortgage.5. The trial Court negatived the contention raised by the sons of Mandima and held that only a third share in the mortgagee right was purchased at the court auction by Mandiman. The Court accordingly passed a decree against defendants Nos. 4A to 4D for payment of Rs. 60,933-5-4 and proportionate costs with future interest at 6% per annum on Rs. 30,466-10-8 from the date of the suit to the plaintiffs and defendants 5 to 8 within six months and in default of payment for sale of the mortgaged property. Against that decree, defendants 4A to 4C - hereinafter referred to as the appellants - appealed to the High Court at Bombay. The High Court held that the mortgagee right belonged to the joint family, that the agreement to pay Rs. 8,000/- to Gurappa was not binding upon that family and therefore in execution of the decree passed in favour of Gurappa only the right, title and interest of Rachappa was purchased by Madiman. The High Court further held that there was in 1939 severance of joint family status between the members of the family of Rachappa, plaintiffs and others, but as in the state of the record in the view of the court a finding on the question whether the mortgage debt was kept undivided could not be recorded they remanded the case for recording a finding on the following issue :"Whether it is proved that the mortgage debt of 29th July, 1929, fell to the share of defendant No. 9 at the family partition of July, 1939," and directed the trial Court to allow both the parties to lead evidence upon this issue and to certify its findings thereon. The trial Court recorded a negative finding on that issue. It held that the mortgage claim was kept undivided at the partition. The High Court confirmed this finding and dismissed the appeal filed by the appellants, subject to a slight modification as to the rate of interest awarded by the trial Court. With special leave under Art. 136 of the Constitution, this appeal is preferred.

Reasoning: It appears from entries in the record of rights that Rachappa received at the partition lands producing annually 86 bags of paddy, defendants 5 to 8 received lands producing 92 bags of paddy and Basalingappa received for his share lands producing 89 bags of paddy. It also appears from the village Panchayat extracts that the family was possessed in 1938-39, to 30 houses which stood in Rachappas name as manager and the total rental of those houses was Rs. 1,262/-. These 30 houses were also divided : 16 houses were allotted to defendants 5 to 8. 10 houses to Rachappa and 3 houses to the plaintiffs and this division was not shown to be unequal.is true that Rachappa stated that a tippan of the family properties was made at the time of partition, but he also stated that the tippan was not with him. Defendant No. 5 - Mallappa -stated that Basalingappa (father of the plaintiffs) had prepared a tippan but signatures were not taken thereon and it remained with Basalingappa. He further stated that the "tippan was not worth preserving". The plaintiffs stated that the tippan was not with them. If in the course of the trial, the Court is satisfied that a document having an important bearing on the dispute which is pending trial is withheld by a party, an inference adverse to the party withholding the document that if produced, the document would not support that partys case may properly arise.But there is no evidence on the record to show that the tippan was with the plaintiffs or within their power and it was withheld form the Court. Basalingappa - the plaintiffs father - is dead; Rachappa and Mallappa stated that the tippan was not with them, and in the absence of any evidence to show that the tippan was with the plaintiffs or other person in the same interest as the plaintiffs, and it was not produced, we think that the trail Court was right in refusing to raise an adverse inference against the plaintiffs. It may also be observed that the high Court examined the evidence in the light of an adverse inference against the plaintiffs and still accepted the evidence of Maflappa. It is also true that out of the four Panchas who assisted in making the partition two were alive at the date of the trial but they were not examined. We do not think that failure to examine the Panchas by itself is a circumstance which should be sufficient to negative the case of the plaintiffs. Counsel for the appellants it right in contending that Rachappa had made statements in the course of execution proceedings commenced by Gurappa suggesting that he was the sole owner of the mortgage right and his testimony to the contrary at the trial wasstatements made by Rachappa are inconsistent with the testimony given by him in the course of the trial in the suit. If the success of the plaintiffs case depended largely upon the testimony of Rachappa having regard to the inconsistent statements made by him, the plaintiffs case may have failed. But the evidence of the plaintiffs is supported by the evidence of defendant No. 5 and the division of the remaining properties in 1939. Nothing has been elicited in the evidence which would suggest that the story of defendant No. 5 is unreliable. It is true that this witness was not examined before the case was remanded but that in our judgment in not a ground for discarding hisis true that the mutation entries made in 1939 in respect of lands in these three villages were not produced. But the trial court took the view that these lands belonged to the joint family and had fallen to the share of Rachappa at the partition. It appears from the record of rights entries that a majority of the lands in Tivoli were mutated in the name of Rachappa under one entry. Similarly, the lands in Kupadgeri were also mutated under one entry. This would indicate in the light of the evidence of Mallappa that all these lands had fallen to the share of Rachappa under one transaction and even in the absence of mutation entries an inference may reasonably be made that mutation was pursuant to the partition. There is no evidence that Rachappa was, apart from the property of the joint family, possessed of any other property with the aid of which he could have purchased these properties. It is true that in respect of villages Badas and Itagi even the record of rights extracts for the year 1939-40 were not produced; but the trial judge accepted the evidence of defendant No. 5 that these properties had fallen to the share of Rachappa. On behalf of the appellants no attempt was made to controvert this statement. On the materials placed before him, the trial judge came to the conclusion that the lands in the five villages of Chappagaon, Tivoli, Kupadgeri, Badas and Itagi were properties belonging to the joint family and at the partition they had fallen to the share of Rachappa and that finding was approved by the High Court. We would not be justified in an appeal with special leave in discarding that finding because some other evidence which could have been brought before the court in support thereof was notpartition of 1939 was between three branches of Rachappa, Shivappa and Basavanappa, and there is no evidence that the joint family status between members of these three branches inter se was severed. Plaintiff No. 1 was the manager of the branch of Basavanappa and when he filed the suit for enforcement of the mortgage, he must be deemed to have filed it as manager of that branch and the allegations in the plaint especially in paragraph 4 make it abundantly clear that the suit was filed on behalf of the branch of Basavanappa. Plaintiff No. 1 therefore represented all the members of that branch having an interest in the property.Plaintiff No. 1 did not describe himself as a manager in the plaint; but failure to so describe himself is not decisive of the question whether the suit was instituted by him in his capacity as a manager. It must depend upon the circumstances of each case whether the suit was instituted by the manager in his personal capacity or as representing the family. In paragraph 4 of the plaint, it was averred by the plaintiffs that in the consideration for the mortgage, they had a third share, that defendants 5 to 8 had a third share and defendants 9 and 10 had the remaining share. These averments clearly indicate that according to the plaintiffs there was no division between the members of each of the individual branches and that the shares of the branches collectively were determined. Plaintiff No. 1 was the only adult member in his branch and he must be presumed to be the manager. The suit in these circumstances must be regarded as instituted by plaintiff No, 1 in his capacity as manager and he must be deemed to represent all the members of his branch of the family, males as well as females. Addition to the suit of any member of the branch to which the plaintiff belonged would only mean setting out the name of such a person eo nomine.