Allowed

Sri Mudda v. Smt Lakshmamma

Karnataka HC25 Sept 2024RSA/970/2016

Case brief

AI extract

What is this about?

Second appeals arising from a partition suit over nine items of land. The High Court held the defendants proved an oral partition acted upon for five decades, evidenced by mutation entries and the plaintiff's father's independent alienation of item No.9. Ex.P.6 was a sale with repurchase option, not a mortgage. Defendants' appeal allowed; plaintiff's appeals dismissed.

What did the court decide?

RSA No.970/2016 allowed; RSA Nos.10/2016 and 11/2016 dismissed; plaintiffs' suit for partition dismissed.

Sri Mudda Vs Smt Lakshmamma — Partition | Karnataka HC (2024)

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NC: 2024:KHC:41222 RSA No. 970 of 2016 C/W RSA No. 10 of 2016 RSA No. 11 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE K.S. HEMALEKHA

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REGULAR SECOND APPEAL NO.970 OF 2016 (PAR)

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C/W

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REGULAR SECOND APPEAL NO.10 OF 2016 (PAR) REGULAR SECOND APPEAL NO.11 OF 2016 (PAR)

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IN R.S.A. No.970/2016

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BETWEEN:

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SRI MUDDA

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S/O. LATE CHIKKNNA @ CHIKKAIAH AGED ABOUT 47 YEARS,

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SRI NARAYANA S/O. LATE CHIKKANNA @ CHIKKAIAH AGED ABOUT 42 YEARS,

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Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA

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SRI MARAIAH S/O. CHIKKANNA @ CHIKKAIAH AGED ABOUT 21 YEARS,

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ALL THE APPELLANTS ARE R/AT KITHANAHALLI VILLAGE AND POST, DASANAPURA HOBLI, BENGALURU NORTH TALUK – 562 123. ... APPELLANTS

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(BY SRI THARANATH POOJARY, SENIOR ADVOCATE FOR SRI RAJENDRA K.R., ADVOCATE)

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AND:

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SMT. LAKSHMAMMA W/O. RAJAPPA, AGED ABOUT 43 YEARS, R/AT MARUTHINAGAR,

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NC: 2024:KHC:41222 RSA No. 970 of 2016 C/W RSA No. 10 of 2016 RSA No. 11 of 2016

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KAMAKSHIPALYA, BANGALORE – 560 079.

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SRI SHANKAR

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S/O. LATE CHIKKANNA @ CHIKKAIAH, SINCE DEAD BY HIS LR’s.

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SMT. PUTTAMMA W/O. LATE SHANKAR AGED ABOUT 33 YEARS,

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SMT. MANJAMMA D/O. LATE SHANKARA, AGED ABOUT 19 YEARS,

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MASTER RAJA S/O. LATE SHANKAR, AGED ABOUT 15 YEARS,

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SINCE THE RESPONDENT NO.4 IS MINOR, REPRESENTED BY HIS GUARDIAN/MOTHER SMT. PUTTAMMA WHO IS THE RESPONDENTS NO.2

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THE RESPONDENT NO.2 TO 4 ARE

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R/AT KITHANAHALLI VILLAGE AND POST, DASANAPURA HOBLI, BENGALURU NORTH TALUK – 562 123.

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SMT. CHIKKATHAYAMMA SINCE DEAD BY HER LR’s.

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SMT. MUNIRATHNAMMA D/O. KEMPAIAH, AGE ABOUT 31 YEARS,

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SRI DAYANANDA S/O. KEMPAIAH AGED ABOUT 30 YEARS,

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SRI HANUMANTHA S/O. KEMPAIAH, AGED ABOUT 29 YEARS,

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SMT. PUTTAMMA D/O. KEMPAIAH,

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NC: 2024:KHC:41222 RSA No. 970 of 2016 C/W RSA No. 10 of 2016 RSA No. 11 of 2016

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AGED ABOUT 29 YEARS,

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THE RESPONDENT NOS.5 TO 8 ARE R/AT NO.72/2, III CROSS, THIMMENAHALLI, BENGALURU – 560 079.

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SRI CHIKKAIAH S/O. LATE CHIKKANNA @ CHIKKAIAH AGED ABOUT 35 YEARS, R/AT KITHANAHALLI VILLAGE, DASANAPURA HOBLI, NELAMANGALA TALUK, BENGALURU DISTRICT – 562 123. ... RESPONDENTS

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(BY SRI C. PRAKASH, ADVOCATE FOR R-1; SMT. THEANMOLI R., ADVOCATE FOR R-5 TO R-8; SRI SAI PRASAD, ADVOCATE FOR R-3 & R-9

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R-2 SERVED & UNREPRESENTED; R-4 MINOR REP. BY R-2)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 16.09.2015 PASSED IN R.A.NO.163/2013 ON THE FILE OF PRINCIPAL DISTRICT JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 04.04.2013 PASSED IN O.S.NO.32/2009 (OLD OS NO.736/1997) ON THE FILE OF THE SENIOR CIVIL JUDGE & J.M.F.C., NELAMANGALA.

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IN R.S.A. NO.10/2016

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BETWEEN:

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SMT. LAKSHMAMMA AGED ABOUT 55 YEARS, W/O. SRI RAJAPPA, RESIDENT OF MARUTHINAGAR, KAMAKSHIPALYA, BANGALORE – 560 079. ... APPELLANT

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(BY SRI C. PRAKASH, ADVOCATE)

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AND:

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MUDDA S/O. LATE CHIKKANNA @ CHIKKAIAH, AGED 46 YEARS,

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NARAYANA S/O. LATE CHIKKANNA @ CHIKKAIAH, AGED 41 YEARS,

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MARAIAH S/O. LATE CHIKKANNA @ CHIKKAIAH, AGED 25 YEARS,

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SHANKAR S/O. LATE CHIKKANNA @ CHIKKAIAH, SINCE DEAD BY HIS LR’s.

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4(a) PUTTAMMA, W/O. LATE SHANKAR, AGED 32 YEARS,

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4(b) KUM. MANJAMMA D/O. LATE SHANKAR, AGED 18 YEARS,

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4(c) MASTER RAJA S/O. LATE SHANKAR, AGED ABOUT 14 YEARS, SINCE MINOR REP. BY MOTHER & NATURAL GUARDIAN PUTTAMMA,

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RESPONDENT NOS.1 TO 3, R-4(a) TO R-4(c) ARE ALL RESIDENTS OF KITHANAHALLI VILLAGE AND POST, DASANAPURA HOBLI, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT – 562 123.

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CHIKKATHAYAMMA W/O. KEMPAIAH, SINCE DEAD BY HER LR’s,

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5(a) MUNIRATHNAMMA, D/O. KEMPAIAH, AGED 30 YEARS,

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5(b) DAYANANDA S/O. KEMPAIAH, AGED 29 YEARS,

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NC: 2024:KHC:41222 RSA No. 970 of 2016 C/W RSA No. 10 of 2016 RSA No. 11 of 2016

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5(c) HANUMANTHA S/O. KEMPAIAH, AGED 28 YEARS,

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5(d) PUTTAMMA D/O. KEMPAIAH, AGED 27 YEARS,

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RESPONDENTS 5(a) TO 5(d) ARE RESIDENTS AT NO.72/2, 3^RD CROSS, THIMMENAHALLI, BANGALORE – 560 079.

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CHIKKAIAH S/O. LATE CHIKKANNA @ CHIKKAIAH, AGED ABOUT 37 YEARS, RESIDENT OF KITHANAHALLI VILLAGE, DASANAPURA HOBLI, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT – 562 123. ... RESPONDENTS

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(BY SRI THARANATH POOJARY, SENIOR ADVOCATE FOR SRI RAJENDRA K.R., ADVOCATE FOR R-1 TO R-3, R-4(a & b) & R-6; R-5 (a, b, c, d,) SERVED & UNREPRESENTED)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 16.09.2015 PASSED IN R.A.NO.163/2013 ON THE FILE OF PRINCIPAL DISTRICT JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 04.04.2013 PASSED IN O.S.NO.32/2009 (OLD O.S. NO.736/1997) ON THE FILE OF THE SENIOR CIVIL JUDGE & J.M.F.C., NELAMANGALA.

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IN R.S.A. NO.11/2016

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BETWEEN:

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SMT. LAKSHMAMMA AGED ABOUT 55 YEARS, W/O. SRI RAJAPPA, RESIDINET OF MARUTHINAGAR, KAMAKSHIPALYA, BANGALORE – 560 079. ... APPELLANT (BY SRI C. PRAKASH, ADVOCATE)

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AND:

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CHIKKAIAH S/O. LATE CHIKKANNA @ CHIKKAIAH AGED 34 YEARS,

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MUDDA S/O. LATE CHIKKANNA @ CHIKKAIAH, AGED ABOUT 44 YEARS,

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NARAYANA S/O. LATE CHIKKANNA @ CHIKKAIAH AGED ABOUT 41 YEARS,

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SHANKARA S/O. LATE CHIKKANNA @ CHIKKAIAH SINCE DEAD BY HIS LR’s.

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4(a). PUTTAMMA W/O. LATE SHANKAR, AGED 32 YEARS,

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4(b). KUM. MANJAMMA D/O. LATE SHANKAR, AGED 18 YEARS,

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4(c). MASTER RAJA, S/O. LATE SHANKAR, AGED ABOUT 14 YEARS, SINCE MINOR REP. BY MOTHER & NATURAL GUARDIAN RESPONDENT NO.4(a) PUTTAMMA.

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RESPONDENTS 1 TO 4(a) to 4(c) ARE ALL RESIDENTS OF KITHANAHALLI VILALGE & POST, DASANAPURA HOBLI, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT – 562 123.

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MARAIAH S/O. LATE CHIKKANNA @ CHIKKAIAH AGED ABOUT 20 YEARS, R/AT KITHANAHALLI, DASANAPURA HOBLI,

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NELAMANGALA TALUK, BANGALORE DISTRICT – 562 123.

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CHIKKATHAYAMMA W/O. KEMPAIAH SINCE DEAD BY HER LR’s.

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6(a). MUNIRATHNAMMA D/O. CHIKKATHAYAMMA & KEMPAIAH, AGED 30 YEARS,

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DAYANANDA S/O. KEMPAIAH AGED 29 YEARS,

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HANUMANTHA S/O. KEMPAIAH, AGED 28 YEARS,

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PUTTAMMA D/O. KEMPAIAH, AGED 27 YEARS,

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RESPONDENTS 6(a) TO 9 ARE RESIDENTS AT NO.72/2, 3^RD CROSS, THIMMENAHALLI, BANGALORE – 560 079.

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... RESPONDENTS

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(BY SRI THARANATH POOJARY, SENIOR ADVOCATE FOR SRI RAJENDRA K.R., ADVOCATE FOR R-1 TO R-6)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 16.09.2015 PASSED IN R.A.NO.181/2013 ON THE FILE OF PRINCIPAL DISTRICT JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 04.04.2013 PASSED IN O.S.NO.32/2009 (OLD NO.736/1997) ON THE FILE OF THE SENIOR CIVIL JUDGE & J.M.F.C., NELAMANGALA.

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THESE APPEALS COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA

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ORAL JUDGMENT

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RSA No.10/2016 and RSA No.11/2016 are preferred by plaintiff No.1 assailing the legality and correctness of the judgment and decree in R.A. No.163/2013 and R.A.No.181/2013 dated 16.09.2015 on the file of the Principal District Judge, Bengaluru Rural District (hereinafter referred to as the ‘First Appellate Court’ for short), modifying the judgment and decree dated 04.04.2013 in O.S.No.32/2009 on the file of the Senior Civil Judge and JMFC, Nelamangala (hereinafter referred to as the ‘Trial Court’ for short) decreeing the suit holding that plaintiff No.1 is entitled for 1/4^th share in item Nos.1, 2, 6 to 9 of the plaint schedule and dismissing the claim made in the suit in respect of item Nos.3 to 5.

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RSA No.970/2016 is preferred by defendant

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Nos.1, 2 and 4 assailing the judgment and decree in R.A.No.163/2016 decreeing the suit and allotting share to the plaintiff in respect of item Nos.1, 2, 6 to 9.

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NC: 2024:KHC:41222 RSA No. 970 of 2016 C/W RSA No. 10 of 2016 RSA No. 11 of 2016

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3. This Court while admitting RSA No.970/2016

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and connected appeals framed the following substantial question of law on 14.09.2023:

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“Whether the Courts below are justified in recording a finding that the defendant Nos.1 to 5 have failed to prove oral partition in respect of the properties described at items No.1, 2, 6, 7 and 8 in the schedule, in the light of the overwhelming evidence as per Ex.D3, D5, P1, P3 and P4 and, continued possession and enjoyment of these properties by the defendants for more than six decades to the exclusion of the plaintiffs?”

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4. RSA No.10/2016 preferred by plaintiff No.1 was

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admitted by separate order on 18.10.2019 by framing the following substantial question of law:

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“Whether the appellate Court finding that the appellant would not be entitled for a share in suit item Nos.3 to 5 properties is without considering material evidence on record, which if considered would result in a conclusion in favour of the appellant.”

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This Court, while hearing the appeals, has framed the following substantial questions of law on 23.09.2024, which reads as under:

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“1) Whether the courts below were justified in decreeing the suit, holding that the suit properties are the joint family properties in the absence of any pleadings by the plaintiff to establish the existence of joint family and the suit properties are the joint family properties?

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2) Whether the courts below were justified in recording a finding that defendants no.1 to 5 have failed to prove the oral partition in respect of the properties described at item nos.1, 2 and 6 to 9 in the suit schedule in the light of evidence as per Exhibits P.3 to P.6 and D.2 and D.3 to D.7?

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3) Whether the courts below were justified in holding that defendants no.1 to 5 failed to prove that item no.9 is the self-acquired property of defendants no.1 to 5 in light of documents marked at Exhibits P.5 and P.6?

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4) Whether the courts below were justified in holding that the plaintiff is entitled for 1/4^th share in the suit schedule properties?”

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Sri Taranath Poojary, learned senior counsel for

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Sri Rajendra K.R, learned counsel for the appellants, Sri C. Prakash, learned counsel for respondent, Smt. Theanmoli .R, learned counsel for respondent Nos.5 to 8 and Sri Sai Prasad, learned counsel for respondent Nos.3 and 9 have

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been heard on the substantial questions of law framed by

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this Court and the material on record is perused.

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Suit for partition and separate possession by Lakshmamma, daughter of Mariyappa. The common ancestor is one Bajja who had four children including Mariyappa-father of the plaintiff, Chikkanna-father of defendant Nos.1 to 5, and two daughters, who are not made as parties in the suit. Plaintiff claimed ½ share in respect of 8 items of land as mentioned in the schedule of the suit, subsequently, by way of amendment, the plaintiff included Sy. No.84/2 measuring 1 acre 36 guntas (item No.9). Plaintiffs’ case is that the suit properties are the joint family properties and that there was no division either during the life time of Bajja or after his death between his sons Mariyappa and Chikkanna @ Chikkaiah and that plaintiff is entitled for ½ share in the suit schedule properties.

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8. On notice, defendants appeared and defendant

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No.2 filed written statement, which was adopted by defendant Nos.1, 3 to 5.

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Defendant No.8-son of Chikkathayamma (defendant No.6) who is none other than the own sister of the plaintiff filed separate written statement admitting the oral partition in the family and stated that the suit was filed by the plaintiff at the instance of her greedy husband who is chronic litigant to harass the innocent litigants.

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Defendant Nos.1, 2 to 5 specifically pleaded that there was an oral partition in the family about five decades ago and the properties were divided between the defendants’ father and plaintiff’s father and in the oral partition, the family properties have been divided between the two brothers, namely Mariyappa and Chikkanna in the following manner:

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i. Sy. No.84/2 (item No.9) measuring 1 acre 36 guntas, Sy. No.98/1 32 guntas, Sy. No.87/7 measuring 1 acre 2 guntas was allotted to the share of Mariyappafather of the plaintiff and Sy. No.99/10 measuring 1

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NC: 2024:KHC:41222 RSA No. 970 of 2016 C/W RSA No. 10 of 2016 RSA No. 11 of 2016

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13 -

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acre 10 guntas, 99/27 measuring 10 guntas and three sites were allotted to Chikkanna.

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ii. Further, that the plaintiff’s father Mariyappa had executed registered sale deed with the condition to repurchase on 11.10.1961 in favour of one Chikka Kallaiah in respect of property bearing Sy. No.84/2 measuring 1 acre 36 guntas (item No.9) and that the defendants’ father Chikkanna @ Chikkaiah had purchased the said property bearing Sy. No.84/2 measuring 1 acre 36 guntas (item No.9) on 03.07.1967 from Chikka Kallaiah as per Ex.P.5.

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Defendant No.4 filed written statement

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reiterating the claim made by his brother and specifically took up a contention that his father Chikkanna @ Chikkaiah has purchased 1 acre 36 guntas in Sy. No.84/2 (item No.9) on 03.07.1967.

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The Trial Court, on basis of the pleadings, framed the following issues:

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“1) Whether the plaintiffs prove that the schedule properties are the ancestral and joint family properties and that they are in joint possession and enjoyment?

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2) Whether the defendant No.2 proves that 5 decades ago there was a partition and since then the sharers are enjoying the properties fallen to their shares separately?

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3) Whether the 2^nd defendant proves that late Mariyappa has alienated all the properties fallen to his share in the partition?

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4) Whether the suit is bad for non-joinder of necessary parties?

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5) Whether the plaintiffs are entitled for the relief of partition and separation of their alleged half share in all the schedule properties?”

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In order to substantiate their claim, plaintiff

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No.1 examined herself as P.W.1, marked documents at Ex.P.1 to P.6, on the other hand, defendant No.1 examined himself as D.W.1, two witnesses were examined as D.W.2 and D.W.3 and marked documents at Ex.D.1 to D.8.

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The Trial Court, on basis of the pleadings, oral and documentary evidence, decreed the suit, granting ½ share in item Nos.1 to 9 of the suit schedule properties

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holding that the defendants have failed to prove the oral partition.

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Aggrieved two appeals were preferred, defendant Nos.1, 2 and 4 preferred R.A.No.163/2013 and the appeal filed by defendant No.5 was numbered as R.A.No.181/2013, the First Appellate Court modified the judgment and decree of the Trial Court holding that plaintiff No.1 is entitled for 1/4^th share in item Nos.1, 2, 6 to 9 and the suit was dismissed with regard to item Nos.3 to 5 as they were not the properties of the family. Aggrieved, the plaintiff has preferred RSA No.10/2016 and RSA No.11/2016 in respect of non-granting of share in item Nos.3 to 5 and reducing the share to 1/4^th and RSA No.970/2016 is preferred by defendant Nos.1, 2 and 4 challenging R.A.No.163/2015.

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Learned senior counsel for the appellants would urge the following grounds:

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i. Defendants have categorically pleaded about

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the oral partition having taken place five decades ago and

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as per the partition, the defendants specifically averred that the properties are divided between the brothers, wherein item Nos.1, 2, 6, 7 and 8 were allotted to Chikkanna–the father of defendants and item No.9 was allotted to Mariyappa-the father of plaintiff No.1 and to establish partition, the defendants marked Ex.D.2, D.3 and D.5 in corroboration with Ex.P.3 to P.6 which are public documents, i.e., mutation and revenue entries, which clearly demonstrates that the oral partition was acted upon.

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ii. That the father of the plaintiff-Mariyappa independently and separately dealt with the properties which were allotted to him as per the oral partition and item No.9 was alienated by plaintiffs’ father-Mariyappa on 11.10.1961 as per Ex.P.6 and under Ex.P.5 dated 03.07.1967, the defendants’ father purchased the property.

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iii. The plaintiff has not pleaded anything about the existence about the joint family property except a selfserving statement at paragraph No.2 in the plaint and the

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plaintiff has failed to plead or prove any family nucleus at the hands of the defendant’s father to purchase or redeem item No.9, Sy. No.84/2 under Ex.P.5. The burden cast on the plaintiff to prove the family nucleus, having failed to discharge, the Courts below were not justified in decreeing the suit.

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iv. The recitals in Ex.P.6 dated 11.10.1961 is a sale with the condition of repurchase and clearly shows that Mariyappa declared himself as an absolute owner having title deeds, sold the property to Kallaiah for valid consideration with the condition to repurchase within two years, Mariyappa having not acted upon to repurchase, the defendant’s father purchased the property under Ex.P.5 dated 03.07.1967 much after the expiry date for the repurchase.

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v. That the oral partition having been proved by the defendants, the defendants become owner of item Nos.1, 2, 6 to 8 by partition and item No.9 which fell to the share of Mariyappa, the defendants become owner by virtue of documents under Ex.P.5 and P.6.

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vi. The judgment of the Courts below suffers from perversity and illegality warranting interference by this Court.

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Per contra , learned counsel appearing for the respondents would urge that the Courts below were justified in recording a finding that defendant Nos.1 to 5 have failed to prove oral partition in respect of item Nos.1, 2, 6, 7 and 8 and the Courts below were justified in holding that defendant Nos.1 to 5 have failed to prove that item No.9 is the self-acquired property, as there was no independent source of income for the father of the defendants to purchase the item No.9 and that item No.9 is the joint family property as rightly held by the Courts below. Learned counsel for the respondents submits that the suit of the plaintiff needs to be decreed in entirety as plaintiff produced documents to show that item Nos.3 to 5 are also joint family properties.

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Substantial Question of Law framed on

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14.09.2023 and additional substantial question of law Nos.1 and 2 are taken up together:

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¶166

Additional Substantial Question of Law Nos.1

and 2

NC: 2024:KHC:41222 RSA No. 970 of 2016 C/W RSA No. 10 of 2016 RSA No. 11 of 2016

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20 -

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19. The family pedigree is as under:

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Family Tree
Bajayya
Rangamma
Mariappa Gangamma Chikkanna @ Chikka Gangamma
Chikkayya
Chikka doddamma
Beeramma Muniyamma
2 nd Wife
Chikkamuddayya Narayanappa Shankappa
Mariyappa Lakshmamma Chikkaraja
Lakshmamma Chikka Parvathamma
Thayamma
Chikkanna Duglamma Doddayya
Gowramma
Latha Shruthi Doddayya
5 years 3 years 2 years

¶174

There is no presumption that the properties are

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the joint family properties only on account of existence of

¶176

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a joint Hindu family, the one who asserts has to prove that the property is a joint family property, the initial burden of establishing that there was a nucleus with which the joint family property could acquire is on the person who asserts so, and there would be a presumption of the property being joint and the onus would shift on the persons who claims to be a self-acquired property to prove that he purchased the property with his hard earned funds and not out of the joint nucleus funds. This settled proposition of law has been held by the Privy Council in the case of

¶178

Appalaswamy Vs. Suryanarayana Murthy¹ (Apalaswamy).

¶179

In the present case, as could be seen from the pleadings, that the plaintiffs filed a simple suit for partition contending that the suit schedule properties are the joint family properties and averments could be found at para No.2 of the plaint. The plaintiff had to plead and demonstrate that there exists a joint family, and the suit

¶180

1 AIR 1947 PC 189

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¶183

item No.9, Sy. No.84/2 is purchased by defendant’s father, plaintiffs had to discharge the initial burden of establishing that there was any nucleus in the form of any income whatsoever from item Nos.1 to 8 to purchase item No.9, which was purchased by the defendant’s father. The plaint is totally silent about any family nucleus at the hands of the defendant’s father to purchase or redeem item No.9, Sy. No.84/2 which was sold by the plaintiff’s father Mariyappa.

¶184

The plaintiff is claiming her right for partition from the branch of Mariyappa, plaintiff No.1 is the daughter of Mariayppa through his first wife and the plaintiffs and defendants belong to third generation of Bajjaiah, the legal proposition in regard to the existence of joint family gets weaker and weaker from descendant to descendant and such weak presumption can be rebutted by adduction of slight evidence of separate possession of the properties in which the burden would even shift to the plaintiff to prove that the family was a joint family.

¶185

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¶186

The Apex Court in the case of D.S.

¶187

Lakshmaiah and another Vs. L. Balasubramanyam

¶188

and another² has held at paragraph No.17 to 19 as under:

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“17. In view of the aforesaid discussion, the respondents having failed to discharge the initial burden of establishing that there was any nucleus in the form of any income whatsoever from Item 2 property and no other nucleus was claimed, the burden remained on the respondents to establish that Item 1 property was joint family property. In this view, the fact that the first appellant has not led any evidence to establish his separate income is of no consequence insofar as the claim of the respondents is concerned. Under these circumstances, for failure to lead evidence, the respondents’ claim of Item 1 to be joint family property would fail as rightly held by the first appellate court.

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18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If,

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2 (2003) 10 SCC 310

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however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.

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19. Another contention urged for the respondents was that assuming Item 1 property to be self-acquired property of Appellant 1, he blended the said property with the joint family property and, therefore, it has become joint family property. Assuming the respondents can be permitted to raise such a plea without evidence in support thereof, the law on the aspect of blending is well settled that property separate or self-acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein; but to establish such abandonment a clear intention to waive separate rights must be established. From the mere fact that other members of the family were allowed to use the property jointly with himself, or that the income of the separate property was utilised out of generosity to

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support persons whom the holder was not bound to support, or from the failure to maintain separate accounts, abandonment cannot be inferred, for an act of generosity or kindness will not ordinarily be regarded as an admission of a legal obligation (see Lakkireddi Chinna Venkata Reddi v. Lakkireddi Lakshmama and K.V. Narayanan v. K.V. Ranganandhan. ”

¶198

The Apex Court in the case of U.R.

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Virupakshappa Vs. Sarvamangala and another³ at paragraph No.13, 19 as under:

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“ 13. It is well settled that the presumption in regard to existence of joint family gets weaker and weaker from descendant to descendant and such weak presumption can be rebutted by adduction of slight evidence of separate possession of the properties in which even the burden would shift to the plaintiff to prove that the family was a joint family.

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19. The High Court furthermore proceeded on the presumption that the plaintiff and the defendants belong to the fourth generation of Nanjappa. In holding so, the High Court wrongly included the propositus as the first generation. The

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3 2009 (2) SCC 177

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plaintiff and the defendants were the third generation of the propositus. ”

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The plaintiffs accept the self-serving statement

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at paragraph No.2 of the plaint that there is an existence

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of the joint family property, the plaintiff has neither produced any document to show that the properties of the family remained joint. The plaintiff neither pleaded any family nucleus for the defendant’s father to purchase item No.9, Sy. No.84/2 in terms of Ex.P.5.

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The defendants categorically pleaded about oral partition stating that the partition had taken place five decades ago and pointing out the family properties which were divided during the period between 1950-1955, in support of the plea of oral partition, the defendants marked Ex.D.2, D.3 and D.5 and item No.9 which was allotted to Mariyappa-father of the plaintiff, Mariyappa independently and separately dealt with the properties which were allotted to him as per oral partition and to substantiate that Mariyappa had independently dealt the

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partitioned property, the defendants placed reliance on Ex.P.5 and P.6. The plaintiffs though produced Ex.P.5 and P.6 in their evidence, the plaint is totally silent about the nature of acquisition by the defendant’s father under Ex.P.5. The defendants let in evidence as D.W.1 and relied upon Ex.D.2, D.3 and D.5 wherein the names of particular parties were mutated and corroborated with the evidence at Ex.P.3 to P.5 which clearly demonstrate the oral partition effected and acted upon by the parties. A plea of oral partition, though, cannot be accepted as a statutory recognized mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908, or effected by a decree of a Court, however, in exceptional cases, where the plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been effected by a decree of Court, it may be accepted.

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The Apex Court in the case of Vineeta Sharma Vs. Rakesh Sharma & Ors.⁴ has categorically held that the party who takes a plea of oral partition, has to prove and evidence by supported public documents, which would indicate that the partition is finally effected and thus, there is no total bar in taking a plea of oral partition when supported by public documents.

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One material aspect that established severance

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of status and about the oral partition effected between the parties, apart from the evidence at Ex.P.3 to P.5 and D.3 to D.7 is the categorical admission of defendant No.8-son of Chikka Thayamma (sister of Lakshmamma-plaintiff) who categorically admitted about the oral partition effected in the family.

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Ex.P.6 dated 11.10.1961 is a registered document which is executed by the plaintiff’s father in favour of one Chikka Kallaiah. On perusal of Ex.P.6 clearly

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4 (2020) 9 SCC 1

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indicates that it is a conditional sale, the pleadings of the plaintiff to the said effect are totally silent, Ex.P.6 indicates that the oral partition between the family members were acted upon and the father of the plaintiff-Mariyappa independently and separately dealt with the properties which came to be allotted to Mariyappa as per the oral partition and alienated item No.9, Sy. No.84/2 on 11.10.1961 under Ex.P.6. The perusal of Ex.P.6 clearly indicates that Mariyappa-father of the plaintiff has sold the property as absolute owner, the oral partition which is been pleaded by the defendants is established by the act of Mariyappa by selling the property to Chikka Kallaiah. The defendant’s father under Ex.P.5 purchased the suit item No.9 from Chikka Kallaiah, the plaint is also silent about the said aspect, the defendants by oral and documentary evidence established the plea of oral partition and that there was severance of status and accordingly, the abovementioned substantial question of law are answered in favour of the appellant in RSA No.970/2016 holding that defendant Nos.1 to 5 have

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proved the oral partition being effected in respect of item

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Nos.1, 2, 6, 7 and 8.

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Re: Additional substantial question of law Nos.3

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and 4:

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To answer the above mentioned substantial question of law, Ex.P.5 and P.6 need to be considered and perused

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“Whether the document is a sale with the condition to repurchase or a document of mortgage by conditional sale?”

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On perusal of recitals of Ex.P.6 dated 11.10.1961 does not have any reference to any loan taken

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or mortgage creating security and does not create a relation of debtor or creditor as rightly contended by the learned senior counsel for the appellants, the recitals of Ex.P.6 is a sale with the condition of repurchase and not a document of mortgage by conditional sale. The recitals clearly show that Mariayppa declared himself as absolute owner having title deeds and sold item No.9 to Chikka

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Kallaiah for valid consideration with the condition of repurchase within two years. During the life time of Mariyappa, father of plaintiff No.1 did not act to repurchase the property, after nearly five years the father of defendants purchased the property under Ex.P.5 on 03.07.1967, after the expiry date of repurchase and the purchase by the defendant’s father is not from the joint family funds, as there was severance of status and in light of oral partition being proved by the defendants and the plaintiff having failed to prove that the father of defendants has purchased item No.9 under Ex.P.5 from

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the nucleus of joint family. In the absence of any pleadings by the plaintiff about the nucleus of the joint family to purchase item No.9 under Ex.P.5, the burden which was on the plaintiff is failed to be discharged, on the other hand, the defendants clearly and in an unequivocal terms established the oral partition effected five decades ago and the defendants become owner of item Nos.1, 2, 6 to 8 by partition and with regard to item No.9 which fell to the share of Mariyappa, in light of Ex.P.6 dated

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11.10.1961, the plaintiff’s father having sold the property with the condition to repurchase and having not repurchased the property, the defendant’s father purchased the property under Ex.P.5 becomes the selfacquired property of defendants.

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The Apex Court in the case of Suraj Narain Kapoor and others Vs. Pradeep Kumar and others⁵

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(Suraj Narain) has held at paragraph Nos.4 and 5 as under:

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“4. We have considered the submissions. The question whether a document is a mortgage by conditional sale, or a sale with an option to repurchase, is a vexed question to be determined in the facts of each case. Reference may appropriately be made to Bhoju Mandal v. Debnath Bhagat, observing as follows: (AIR p. 1907, para 4)

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“4. There is a clear legal distinction between the two concepts, a mortgage by conditional sale and a sale with a condition of repurchase. The former is a mortgage, the relationship of debtor and creditor subsists and the right to redeem remains with the debtor. The

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5 (2017) 16 SCC 487

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latter is an out and out sale whereby the owner transfers all his rights in the property to the purchaser reserving a personal right of repurchase. The question to which category a document belongs presents a real difficulty which can only be solved by ascertaining the intention of the parties on a consideration of the contents of a document and other relevant circumstances. Decided cases have laid down many tests to ascertain the intentions of the parties but they are only illustrative and not exhaustive.”

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5. The true nature of the document, therefore, has to be determined in the facts of each case, dependent on the nature of the recitals in the document, intention of the parties, coupled with other attendant surrounding circumstances. There can be no hard-and-fast rule for determining the nature of the document, devoid of these circumstances. Precedents, in abundance, will not suffice alone, as observed in Chunchun Jha v. Ebadat Ali, as follows: (AIR p. 346, para 5)

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“5. … There are numerous decisions on the point and much industry has been expended in some of the High Courts in collating and analysing them. We think that it is a fruitless task because two documents are seldom expressed in identical terms and when it is

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necessary to consider the attendant circumstances the imponderable variables which that brings in its train make it impossible to compare one case with another. Each case must be decided on its own facts.”

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The Apex Court in the case of Vanchalabai

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Raghunath Ithape (Dead) by LR. Vs. Shankarrao Baburao Bhilare (Dead) by LRS. and others⁶

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(Vanchalabai) has held at paragraph Nos.13, 14 and 17 as under:

¶248

“ 13. From a perusal of the aforesaid provisions especially, Section 58(c), it is evidently clear that for the purpose of bringing a transaction within the meaning of “mortgage by conditional sale”, the first condition is that the mortgagor ostensibly sells the mortgaged property on the condition that on such payment being made, the buyer shall transfer the property to the seller. Although there is a presumption that the transaction is a mortgage by conditional sale in cases where the whole transaction is in one document, but merely because of a term incorporated in the same document it cannot always be accepted that the

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6 (2013) 7 SCC 173

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transaction agreed between the parties was a mortgage transaction.

¶253

14. In Williams v. Owen, a similar question arose for consideration as to whether a conveyance by the plaintiff's father to the defendant was to be considered as having been a mortgage as contended by the plaintiff, or as having been a sale, with a right of repurchase at a given date? It was held that in a mortgage the debt subsists and a right to redeem remains with the debtor, but a sale with a condition of repurchase is not a lending and borrowing arrangement; no debt subsists and no right to redeem is reserved by the debtor, but only a personal right to purchase. This personal right can only be enforced strictly according to the terms of the deed and at the time agreed upon.

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x x x

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17. In Tamboli Ramanlal Motilal v. Ghanchi Chimanlal Keshavlal, the facts of the case were similar to this case. In that case, a document of transfer was executed and the property was handed over. At the same time, the document proceeded to state that the property is sold conditionally for a period of five years and possession is handed over. The document stated: “Therefore, you and your heirs and legal representatives are hereafter entitled to use, enjoy and lease the said houses under the

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ownership right.” The further clause in the document was to the effect that the executant shall repay the amount within a period of five years and in case he fails to repay neither he nor his heirs nor the legal representatives would have any right to take back the said properties. The last important clause was that after the period of five years the transferee would have a right to get the municipal records mutated in his name and pay tax. On these facts, this Court held that: (SCC pp. 298-99, paras 16-17)

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“16. In order to appreciate the respective contentions, it is necessary for us to analyse Ext. 26 dated 11-12-1950. Before that, it is necessary to utter a word of caution. Having regard to the nice distinctions between a mortgage by conditional sale and a sale with an option to repurchase, one should be guided by the terms of the document alone without much help from the case law. Of course, cases could be referred for the purposes of interpreting a particular clause to gather the intention. Then again, it is also settled law that nomenclature of the document is hardly conclusive and much importance cannot be attached to the nomenclature alone since it is the real intention which requires to be gathered. It is from this angle we propose to analyse the document. No

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doubt the document is styled as a deed of conditional sale, but as we have just now observed, that is not conclusive of the matter.

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17. What does the executant do under the document? He takes a sum of Rs.5000 in cash. The particulars are (a) Rs.2499 i.e. Rs.899 by mortgage of his house on 27-1-1944 and (b) Rs.1600 by a further mortgage on 31-5-1947 totalling to Rs.2499. Thereafter, an amount of Rs 2501 in cash was taken from the transferee. The purpose was to repay miscellaneous debts and domestic expenses and business. It has to be carefully noted that this amount of Rs.5000 was not taken as a loan at all. As rightly observed by the High Court, by executing this document the executant discharges all the prior debts and outstandings. Where, therefore, for a consideration of a sum of Rs.5000 with the conditional sale is executed, we are unable to see how the relationship of debtor and creditor can be forged in. In other words, by reading the documents as a whole, we are unable to conclude that there is a debt and the relationship between the parties is that of a debtor and a creditor. This is a vital point to determine the nature of the transaction.”

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This Court, therefore, held that the document was not a mortgage by conditional sale, rather the document was transfer by way of sale with a condition to repurchase.”

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For the foregoing reasons and the law declared

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in Suraj Narain and Vanchalabai stated supra and the reasoning recorded by this Court regarding the nature of the document at Ex.P.6 can be clearly held that the document at Ex.P.6 is a sale with an option to repurchase and not a mortgage by conditional sale. The above substantial question of law is answered in favour of the appellants-defendants in RSA No.970/2016 holding that the Courts below were not justified in holding that defendant Nos.1 to 5 have failed to prove that item No.9 is not the self-acquired property of defendant Nos.1 to 5. The substantial question of law framed in RSA No.10/2016 is answered against the plaintiff, as no evidence is produced by the plaintiff to show that item Nos.3 to 5 are the joint family property or they belonged to the original propositus-Bajjaia.

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The concurrent findings of facts recorded by the Courts below can be interfered with when there is perversity and illegality in the judgment of the Courts below, the Courts below have totally fell in error in decreeing the suit of the plaintiff.

¶270

The Apex Court in the case of Surat Singh (Dead) Vs. Siri Bhagwan and others⁷ has held at paragraph Nos.20, 21 and 23 as under:

¶271

“ 20. Sub-section (1) of Section 100 says that the second appeal would be entertained by the High Court only if the High Court is “satisfied” that the case involves a “substantial question of law”. Subsection (3) makes it obligatory upon the appellant to precisely state in memo of appeal the “substantial question of law” involved in the appeal. Sub-section (4) provides that where the High Court is satisfied that any substantial question of law is involved in the case, it shall formulate that question. In other words, once the High Court is satisfied after hearing the appellant or his counsel, as the case may be, that the appeal involves a substantial question of

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7 (2018) 4 SCC 562

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law, it has to formulate that question and then direct issuance of notice to the respondent of the memo of appeal along with the question of law framed by the High Court.

¶276

21. Sub-section (5) provides that the appeal shall be heard only on the question formulated by the High Court under sub-section (4). In other words, the jurisdiction of the High Court to decide the second appeal is confined only to the question framed by the High Court under sub-section (4). The respondent, however, at the time of hearing of the appeal is given a right under sub-section (5) to raise an objection that the question framed by the High Court under sub-section (4) does not involve in the appeal. The reason for giving this right to the respondent for raising such objection at the time of hearing is because the High Court frames the question at the admission stage which is prior to issuance of the notice of appeal to the respondent. In other words, the question is framed behind the back of the respondent and, therefore, sub-section (5) enables him to raise such objection at the time of hearing that the question framed does not arise in the appeal. The proviso to sub-section (5), however, also recognises the power of the High Court to hear the appeal on any other substantial question of law which was not initially framed by the

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High Court under sub-section (4). However, this power can be exercised by the High Court only after assigning the reasons for framing such additional question of law at the time of hearing of the appeal.

¶280

23. Here is the case where the High Court was under a legal obligation to frame the substantial question at the time of admission of the appeal after hearing the appellant or/and his counsel under subsection (4) of Section 100 of the Code, but the High Court did it while passing the final judgment in its concluding para. ”

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