Case: Shrinivas Krishnarao Kango Vs. Narayan Devji Kango And Others

Siddopant and Krishnarao were members of joint undivided family. Krishnarao died in 1897 leaving behind a widow, Rukminibai, who is the sixth defendant in the suit, Siddopant died in 1899 leaving surviving his son, Gundo who died in 1901 leaving behind a widow, Lakshmibai, who is the fifth defendant. On1 Lakshmibai adopted Devji, who died on5 leaving three sons, defendants 1 to 3, and a widow, Akkubai, the fourth defendant. On4 Rukminibai adopted the plaintiff, and on4 he instituted the present suit for partition claiming half share in the family properties2. Siddopant and Krishnarao represented one branch of a Kulkarni family and were entitled for their share of the Watan lands, to the whole of S. No. 138 and a half share in S. Nos. 133 and 136 in the village of Ukamnal and a half share in S. Nos. 163, 164 and 168 in the village of Katakanhalli. The other branch was represented by Swamirao, who was entitled for his half share of the Watan lands, to the whole of S. No. 137 and to a half share in S. Nos. 133 and 136 in the village of Ukamnal and to a half, share in S. Nos. 163 and 168 in the village of KatakanhallilSiddopant purchased a house under Exhibit6 and lands under Exhibits1 and, and constructed two substantial houses. His grandson, Devji, also built a house. All these properties are set out in schedules A and B to the plaint, A schedule consisting of houses ands and B schedule of lands. It is the plaintiffs case that these properties were either ancestral, or were acquired with the aid of joint family funds. He accordingly claims a half share in them as representing Krishnarao3. Swamirao died about 1903 issueless and on the death of his widow shortly thereafter, his properties devolved on Devji as his nearest agnate, and they are set out in schedule c to the plaint. The plaintiff claims that by reason of his adoption he has become a preferential heir entitled to divest Devji of those properties, and sues to recover them from his sons. In the alternative, he claims a half share in them on the ground that they had been blended with the admitted joint and family properties4. The defendants denied the truth and validity of the plaintiffs adoption. They further contended that the only ancestral properties belonging to the family were the Watan lands in the villages of Ukamnal and Katakanhalli, that the purchases made by Siddopant were his, that the suit houses were also built with his separate funds, and that the plaintiff was not entitled to a share thereinWith reference to the properties in schedule C, they pleaded that the plaintiff could not by reason of his adoption divest Devji of the properties which had devolved on him as heir. They denied that those properties had been blended with the joint family properties5. Both the Courts below have held that the adoption of the plaintiff is true and valid, and that question is no longer in dispute before us. They have also held that the purchases made by Siddopant and the houses built by him were his, as was also the house built by Devji. The trial Court held that the plaintiff was entitled to a half share in S. No. 639 and 640 in schedule A on the ground that they belonged to the family as ancestral properties; but the High Court held that had not been established.

Reasoning: But in the present case, the finding of the Courts is that the income from the lands was not sufficient even for the maintenance of the members, and on that, they were right in holding that the plaintiff had not discharged the initial burden which lay on him. But even it we are to accept the contention of the appellant that on proof of the existence of the Watan lands the burden had shifted on to the defendants to prove that the acquisitions were made without the aid of joint family funds, we must hold o the facts that that burden had been dischargedLikewise, in the present case all the ancestral Watan lands are intact, and are available for partition, and the small income derived from them must have been utilised for the maintenance of the members of the family. Whether we hold, as did the learned Judges of the High Court, that the plaintiff had failed to discharge the burden which lay on him of establishing sufficient nucleus, or that the defendants had discharged the burden of establishing that the acquisitions were made without the aid of joint family funds the result is the same.The contention of theappellant that the findings of the Courts below are based on a mistaken view as to burden of proof and are in consequence erroneous, must failWe are unable to accept this contention. The amount of maintenance to be awarded would depend on the extent of the joint family properties, and an issue was actually framed on that question. Moreover, there was a prayer that the maintenance should be charged on the family properties, and the same was granted. We are of opinion that the judgements are admissible under Section 13 of the Evidence Act as assertions of Rukminibai that the properties now in dispute belonged to the joint family3. The oral evidence relating to this is that a family temple stands on it. It cannot be partitionedIn the result, it must be held that the plots. S. Nos. 634 and 635,S. Nos. 639, 640 and641andS. Nos. 642, 644and645 are ancestral properties,andthat the plaintiff is entitled to a half share there in. As substantial superstructures have been put thereon, the appropriate relief to be granted to the plaintiff is that he be given half the value of those plots as on the date of the suitIt is true that reference is also made to the fact that the boy adopted was not actually in existence on the date of the death of, but that, however, would make no difference in the legal position, if the principle of relation back was applicableIt will be seen that in this case no claim of the adopted son to succeed to a collateral was involved,andno question arose as to how far the theory of relation back could be invoked in support of such a claim. The estate claimed was that of his adoptive father, Brajendra,andif the adoption was at all valid, it related back to the date of Brajendras death,andenabled Amarendra to divest BanamalaiConsiderable emphasis is laid on the fact that a coparcener has only a fluctuating interest in the joint family properties, that it may increase by deathanddecrease by birthandthat such a qualified interest as that must carry with it the liability to be divested by the introduction of a new coparcener by adoption. This reasoning, however, is wholly inapplicable to property which is not held incoparcenary, such as the estate of a collateral devolving by inheritanceWe are unable to accept this contention. The amount of maintenance to be awarded would depend on the extent of the joint family properties,andan issue was actually framed on that question. Moreover, there was a prayer that the maintenance should be charged on the family properties,andthe same was granted. We are of opinion that the judgements are admissible under Section 13 of the Evidence Act as assertions of Rukminibai that the properties now in dispute belonged to the joint familyThe order of the trial court rejecting the document has not been produced before us. But there is on the record a petition filed by the plaintiff on6 after the evidence was closedandbefore arguments were addressed, for the admission of the 32 documents rejected ond thereinit stated that "they have been rejected on the ground of late production". The defendants endorsed on this petition that if the documents were to be admitted at that stage, an opportunity would have to be given to them to adduce evidenceandthe trial would have to bed theprayer for admission of these documents was accordingly opposed. The courtdismissedThe rejection of the documents was therefore clearly made under Order 13, Rule 2,andthere are no grounds for now setting aside that orderandreopening the whole case. This ground of objection must therefore failThe trial Court held thatin the absence of a title deed showing that the sites were acquired by members of the family they must be held to be ancestral,andon that ground, decreed to the plaintiff a half share in S. Nos. 639and640. The High Court reversed this decision observing generally that the evidence relation to the house sites was not clear, "when they were acquired or by whom",andWith respect, we are unable to agree with this view. While it is not unusual for a family to hold properties for generations without a title deed, an acquisition by a member would ordinarily be found to have been in the possession of a family from time immemorial; it is not unreasonable to presume that it is ancestralandto throw the burden on the party pleadingn to establish it14. It is necessary in this view to examine the evidence relating to the several plots for which no title deeds have been produced. S. No. 634and635 from one block, on which one of the houses has been constructed. The sanads relating to them are Exhibitsthey merely recite that the grantee was in occupation of plots,andthat was confirmed. There is reference in them to a previous patta granted by the Government, Exhibits 52 to 55 are pastas showing that the propertiescomprisedthereinhad been acquired from the Government. If the identity of S. Nos. 634and635 with the propertiescomprisedin these documents had been established, the plea that they are not ancestral would have been made outBut that has not been done,andthe presumption in favour of their being ancestral propertys unrebutted. The claim of the plaintiff to a half sharethereinmust be allowed. S. Nos. 639, 640and641from one block, on which there is another houseg there is no title deed for S. No. 639, Exhibit7 is the sanad for S. No. 640andit merely recognises the previous occupation by the grantee,andthat is consistent with its character as ancestral property. Exhibit terms as Exhibits8 is the sanad for S. No.641andis in the same terms as Exhibit. The claim of the plaintiff with reference to all these items must be upheldIn the result, it must be held that the plots. S. Nos. 634and635,S. Nos. 639, 640and641and