COMMISSIONER OF INCOME TAX vs. M/S UNITED SPIRITS LTD (IN THE CASE OF CENTRAL

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 4TH DAY OF JUNE, 2021

PRESENT

THE HON'BLE MRS. JUSTICE S.SUJATHA

AND

THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

RFA.NO.124 OF 2012 (PAR) C/W RFA.NO.216 OF 2012 (PAR) C/W RFA.NO.164 OF 2012 (PAR) C/W RFA.NO.158 OF 2012 (PAR)

IN RFA NO.124/2012 BETWEEN:

SRI C.R.KEMPARAJU S/O LATE SRI C.RAMASWAMY AGED ABOUT 62 YEARS # 190/1 DOMLUR LAYOUT, BANGALORE-560071 ...APPELLANT (BY SRI.SREEVATSA, SR.ADVOCATE FOR M/S SREEVATSA ASSOCIATES)

AND:

D/O LATE SRI RAMASWAMY

AGED ABOUT 65 YEARS

# 343, II A-MAIN, DOMLUR, BANGALORE-560071

W/O LATE SRI RAMASWAMY

AGED ABOUT 80 YEARS

R/AT NO.122, DOMLUR LAYOUT,

BANGALORE-560071

S/O LATE SRI RAMASWAMY

AGED ABOUT 54 YEARS

R/AT NO.111, DOMLUR LAYOUT,

BANGALORE-560071

W/O LATE SRI C.R.NARAYAN

AGED ABOUT 60 YEARS

R/AT NO.190/1 DOMLUR LAYOUT,

BANGALORE-560071

S/O LATE SRI C.R.NARAYAN

AGED ABOUT 45 YEARS

R/AT NO.190/1 DOMLUR LAYOUT,

BANGALORE-560 071

D/O LATE SRI C.R.NARAYAN

AGED ABOUT 43 YEARS

R/AT NO 16, RAMASWAMY PALYA,

M.S.NAGAR POST, BANGALORE-560033

S/O LATE C.R.NARAYAN

AGED ABOUT 41 YEARS

R/AT NO.190/1, DOMLUR LAYOUT,

BANGALORE - 560071. …RESPONDENTS

(BY SMT. PRAMILA NESARGI, SR.ADVOCATE FOR SRI.S.G.MUNISWAMY GOWDA, ADVOCATE FOR R1;

SRI.VENUGOPAL.M.S, ADVOCATE FOR R3; SRI.JAYAKUMAR.S.PATIL, SR.ADVOCATE FOR SRI.V.CHANDRAPPA, ADVOCATE FOR R4 TO R7; V/O DATED 11/12/2018 NOTICE TO R2 IS DISPENSEDN WITH)

THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED: 29.10.2011 PASSED IN O.S.NO.11112/1994 ON THE FILE OF THE XXVIII ADDL.CITY CIVIL JUDGE, MAYOHALL UNIT, BANGALORE, PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION AND MESNE PROFITS DISMISSING THE COUNTER CLAIM OF THE DEFENDANTS 2 AND 4 TO 7 THEREIN.

IN RFA NO.216/2012 BETWEEN:

W/O LATE SRI C.R.NARAYAN

AGED ABOUT 62 YEARS

R/AT NO.190/1, DOMLUR LAYOUT,

BANGALORE-560 071

S/O.LATE SRI C.R.NARAYAN

AGED ABOUT 47 YEARS

R/AT NO.190/1, DOMLUR LAYOUT,

BANGALORE-560 071

D/O LATE SRI C.R.NARAYAN

AGED ABOUT 45 YEARS

R/AT NO.16, RAMASWAMY PALYA,

M.S NAGAR POST, BANGALORE-560 033

S/O LATE SRI C.R.NARAYAN

AGED ABOUT 43 YEARS

R/AT NO.190/1, DOMLUR LAYOUT,

BANGALORE-560 071 ...APPELLANTS (BY SRI.JAYAKUMAR.S.PATIL, SR.ADVOCATE FOR SRI.V.CHANDRAPPA, ADVOCATE)

AND:

D/O LATE SRI RAMASWAMY

AGED ABOUT 65 YEARS

R/AT NO.343, II A MAIN,

DOMLUR, BANGALORE-560 071

W/O LATE SRI RAMASWAMY

AGED ABOUT 80 YEARS

R/AT NO.122, DOMLUR LAYOUT,

BANGALORE-560 071

S/O LATE SRI RAMASWAMY

AGED ABOUT 62 YEARS

R/AT NO.190/1, DOMLUR LAYOUT,

BANGALORE-560 071

S/O LATE SRI RAMASWAMY

AGED ABOUT 54 YEARS

R/AT NO.111, DOMLUR LAYOUT,

BANGALORE-560 071 …RESPONDENTS (BY SRI.SREEVATSA, SR.ADVOCATE FOR M/S SREEVATSA, ASSOCIATES FOR R3; SRI.VENUGOPAL.M.S, ADVOCATE FOR R4; NOTICE TO R1 IS SERVED AND UNREPRESENTED; V/O DATED 14/4/2014 NOTICE TO R2 IS HELD SUFFICIENT)

THIS RFA IS FILED UNDER SECTION 96 R/W ORDER XLI OF CPC AGAINST THE JUDGMENT AND DECREE DATED: 29.10.2011 PASSED IN O.S.NO.11112/1994 ON THE FILE OF THE XXVIII ADDL.CITY CIVIL JUDGE, MAYOHALL UNIT, BANGALORE, PARTLY DECREEING THE SUIT FOR PARTITION, SEPARATE POSSESSION, DISMISSING THE COUNTER CLAIM OF THE DEFENDANTS 2 AND 4 TO 7 THEREIN.

IN RFA NO.164/2012 BETWEEN:

SRI C.R.LAKSHMINARAYAN S/O LATE RAMASWAMY, AGED ABOUT 52 YEARS, RESIDING AT NO.277, 6TH CROSS, DOMLUR LAYOUT, BANGALORE-560071 ...APPELLANT (BY SRI.M S VENUGOPAL, ADVOCATE)

AND: 1. SMT. C.R.VANAJAKSHI

D/O LATE RAMASWAMY,

AGED ABOUT 63 YEARS,

RESIDING AT NO.191, DOMLUR VILLAGE,

SHANKARNAG ROAD, BANGALORE-560071

W/O LATE SRI.RAMASWAMY,

AGED ABOUT 85 YEARS,

RESIDING AT NO.277, DOMLUR LAYOUT,

BANGALORE-560071

S/O LATE C. RAMASWAMY

AGED ABOUT 61 YEARS,

RESIDING AT NO.190/1, DOMLUR VILLAGE,

BANGALORE-560071

W/O LATE C.R.NARAYAN,

AGED ABOUT 58 YEARS,

RESIDING AT NO.190/1, DOMLUR VILLAGE,

BANGALORE-560071

S/O LATE C.R.NARAYAN,

AGED ABOUT 42 YEARS,

RESIDING AT NO.190/1, DOMLUR VILLAGE,

BANGALORE-560071

D/O LATE C.R.NARAYAN,

AGED ABOUT 40 YEARS,

RESIDING AT NO.16, RAMASWAMY PALYA,

M.S.NAGAR POST, BANGALORE

S/O LATE C.R.NARAYAN,

AGED ABOUT 38 YEARS,

RESIDING AT NO.190/1, DOMLUR VILLAGE,

BANGALORE-560071 …RESPONDENTS (BY SRI.SREEVATSA, SR.ADVOCATE FOR M/S SREEVATSA ASSOCIATES FOR R3; SMT.PRAMILA NESARGI, SR.ADVOCATE FOR SRI.S.G.MUNISWAMY GOWDA, ADVOCATE FOR R1; SRI.JAYAKUMAR.S.PATIL, SR.ADVOCATE FOR SRI.V.CHANDRAPPA, ADVOCATE FOR R4 TO R7; V/O DATED 28/4/2014 NOTICE TO R2 IS DISPENSED WITH)

THIS RFA IS FILED U/O-XLI, RULE-1, R/W SEC.96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED: 29.10.2011 PASSED IN O.S.11112/1994 ON THE FILE OF THE XXVIII

ADDL.CITY CIVIL JUDGE, MAYOHALL UNIT, BANGALORE, PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

IN RFA NO.158/2012 BETWEEN:

SMT C.R VANAJAKSHI D/O LATE SRI RAMASWAMY AGED ABOUT 65 YEARS # 343, II A-MAIN, DOMLUR, BANGALORE - 560071 ...APPELLANT (BY SMT.PRAMILA NESARGI, SR.ADVOCATE FOR SRI.S.G.MUNISWAMY GOWDA, ADVOCATE)

AND: 1. SMT NANJAMMA

W/O LATE SRI RAMASWAMY

AGED ABOUT 80 YEARS

R/AT NO 122, DOMLUR LAYOUT,

BANGALORE - 560071

S/O LATE SRI C.RAMASWAMY

AGED ABOUT 62 YEARS

R/AT # 190/1 DOMLUR LAYOUT,

BANGALORE - 560071

S/O LATE SRI RAMASWAMY

AGED ABOUT 54 YEARS

R/AT NO 111, DOMLUR LAYOUT,

BANGALORE - 560 071

W/O LATE SRI C.R.NARAYAN

AGED ABOUT 60 YEARS

R/AT NO 190/1 DOMLUR LAYOUT

BANGALORE - 560071

S/O LATE SRI C.R. NARAYAN

AGED ABOUT 45 YEARS

R/AT NO 190/1, DOMLUR LAYOUT,

BANGALORE-560 071

D/O LATE SRI C.R.NARAYAN

AGED ABOUT 43 YEARS

R/AT NO 16, RAMASWAMY PALYA,

MS NAGAR POST, BANGALORE - 560038

S/O LATE C R NARAYAN

AGED ABOUT 41 YEARS

R/AT NO 190/1, DOMLUR LAYOUT,

BANGALORE - 560071 …RESPONDENTS (BY SRI.SREEVATSA, SR.ADVOCATE FOR M/S SREEVATSA ASSOCIATES FOR R2; SRI.VENUGOPAL.M.S, ADVOCATE FOR R3; SRI.JAYAKUMAR.S.PATIL, SR.ADVOCATE FOR SRI.V.CHANDRAPPA, ADVOCATE FOR R4 TO R7; V/O DATED 13/7/2016, R1 IS EXPIRED AND LRs ARE ALREADY ON RECORD IN CONNECTED APPEALS)

THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED: 29.10.2011 PASSED IN O.S.NO.11112/1994 ON THE FILE OF THE XXVIII ADDL.CITY CIVIL JUDGE, MAYOHALL UNIT, BANGALORE, PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION, DISMISSING THE COUNTER CLAIM OF THE DEFENDANT NO.2 AND 4 TO 7 THEREIN.

THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 23.12.2020, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:

JUDGMENT

The present four appeals are all arising out of the judgment and decree passed by the court below in O.S.No.11112/1994, which is filed for partition and separate possession.

with a prayer to dismiss the counter claim filed by defendant Nos.3 and 4 to 7.

C.R.Vanajakshi C.R.Kemparaju C.R.Lakshminarayan C.R.Narayan C.R.Parvathamma (R1/Plaintiff) (Deft.No.2/D2) (R.3/D.3) (dead) (not a party) (26.10.1993) (release deed dated 14.04.1971)

Smt.Lakshmamma R.N.Amarnath R.N.Latha R.N.Madhusudhan (R.4/D.4)

(R.5/D.5) (R.6/D.6) (R.7/D.7)

Plaintiff namely, C.R.Vanajakshi is the daughter of late Sri.C.Ramaswamy who has instituted the present suit for partition and separate possession claiming her legitimate share in the suit schedule properties which are at Schedule-A, B, C and D properties. It is stated in the plaint that, plaintiff’s father namely, C.Ramaswamy died on 09.03.1971 leaving behind his wife Smt.Nanjamma who is arrayed as defendant

No.1 in the suit and two daughters, namely, plaintiff and C.R.Parvathamma and three sons namely, C.R.Kemparaj (defendant No.2), C.R.Lakshminarayan (defendant No.3) and C.R.Narayan. Defendant Nos.4 to 7 are the legal heirs of deceased C.R.Narayan. The sister of plaintiff C.R.Parvathamma is not party to the present partition suit. The plaintiff at para 3 of the plaint has stated that her sister C.R.Parvathamma having received her share in the properties has executed a release deed dated 14.04.1971.

was a contractor and out of the said profession, he acquired several properties of his own without the aid of ancestral properties as described in Schedule-A, which was not at all yielding any income. The properties acquired by plaintiff’s father are fully described in Schedule-B. It is also specifically averred in para 5 of the plaint that her father has acquired several properties which are not within her knowledge and she craves leave of the court to add said properties as and when she would acquire details.

Schedule-B properties also yields substantial rent as it consists of six shops. Similarly, item Nos.4 and 5 also generate substantial rents and all the income generated out of the above said properties is utilized by defendant No.2 to purchase several properties which are more specifically described at Schedule-C.

plaintiff was allotted a portion of premises bearing No.191 of Domlur (item No.1 of Schedule-A) and she was also permitted to collect rents pertaining to the properties situated at Haines road. Defendant No.2 has further stated that this arrangement was made and plaintiff was permitted to collect rents since her husband was a drunkard and he deserted plaintiff. After plaintiff’s children attained majority, the rents presently are being collected by defendant No.2. It is also alleged at para 10 of the written statement that, though plaintiff promised that she would execute registered deed of release, since she was in a very economically pitiable condition, defendant No.2 did not insist upon the plaintiff to execute release deed immediately. There is counter allegations by defendant No.2 that taking undue advantage of generosity and lenience shown by defendant No.2, the plaintiff has come up with false and frivolous suit.

up their right, title and interest in the suit schedule properties and it was understood and agreed among the family members that, it is only male members of the family who would alone succeed to all the suit schedule properties left behind by the father. 16. Defendant No.3 filed written statement and stoutly denied the entire averments made in the plaint. It is specifically averred by defendant No.3 also that, plaintiff is not the member of the joint family. At para 4 of the written statement, defendant No.3 also admitted that other sister of plaintiff and defendant Nos.2 and 3 namely, Parvathamma was given her share in the suit schedule properties and she has executed release deed on 14.04.1971. It is also stated by defendant No.3 that, since plaintiff has included properties which were allotted to the share of Parvathamma, she is a necessary party and therefore, the suit is bad for non-joinder of necessary parties. At para 10 and 11 of the written

statement, defendant No.3 has specifically denied plaintiff’s right in Schedule-B and Schedule-C properties. 17. At para 22 of the written statement, defendant No.3 has taken a contention that there was partition between his father Ramaswamy and his brothers and the properties were allotted to the share of his father and the properties which were allotted to the share of his father were generating income and his father acquired several properties from the joint family funds. Defendant No.3 has also specifically pleaded that acquisition made if any from contract business were also thrown in the common hotchpotch and they were treated as joint family properties. Defendant No.3 has also stated that his father died on 09.03.1971 and the joint family was not earning any income and family had incurred debts which were discharged by his sons by their independent earnings. At para 25 of the written statement, defendant No.3 has taken a contention that Schedule-B properties were acquired from the income derived out of item No.1 of

Schedule-B property and they are joint family properties and it is only defendant Nos.2 and 3 and defendant Nos.4 to 7 who are legal representatives of deceased Narayan being coparceners alone entitled for share in the suit schedule properties and plaintiff cannot lay a claim. Defendant No.3 at para 27, 28, 29, 30 and 31 has taken a specific contention that items Nos.1, 2, 3, 4 and 5 of Schedule-B are joint family properties of defendant No.3 and his brothers, i.e., defendant No.2 and his deceased bother Narayan. However, defendant No.3 has specifically denied the right over this Schedule-B properties.

at para 25 of the written statement that item No.1 of Schedule-A was purchased by their father in the name Narayan and defendant No.2 under registered sale deed dated 12.12.1968 and 18.09.1969. He has further stated that, what was purchased was the vacant land and all the three brothers by their joint efforts have put up construction. Therefore, item No.1 of Schedule-A property is self-acquired property of all the three sons of Ramaswamy. Therefore, plaintiff is not at all entitled to clam right in item No.1 of Schedule-A property. Similar contention is raised in respect of item No.2 of Schedule-A property.

Nos.2, 3 and deceased Narayan being coparceners are alone entitled for share in the said properties. It is also stated that, entire item No.2 of Schedule-B property are in occupation of tenants and defendant No.2 is collecting more than Rs.40,000/- rent per months. 22. At para 30 of the written statement, defendant No.3 has also contended that plaintiff was allotted properties bearing No.65/1, 65/11 and 65/12 and she was put in exclusive possession of the said properties. Therefore, plaintiff having received her legitimate share in the family settlement cannot maintain the present suit.

No.6 of Schedule-C property is concerned, i.e., Sy.No.45 measuring 4 acres 6 guntas, the same is self-acquired property of these defendants. 24. Defendant No.3 in counter claim at para 46 has given details of properties which were acquired by joint efforts of defendant Nos.3 and 2. It is specifically stated that, rents derived from item Nos.2 and 3 of Schedule-B properties was utilized to purchase the following properties, i.e., Sy.No.46/2, 46/3, 52/1A, 52/2A, Sy.No.81 of Boganhalli village, Sy.No.37, 37/4 of Kannurhalli village. Defendant No.3 has also claimed absolute ownership over the property acquired on the basis of gift deed dated 18.08.2010 executed by his mother, i.e., defendant No.1. 25. At para 49, defendant No.3 has also stated that, item Nos.2, 3 and 5 of Schedule-B was getting rents of more than Rs.30,000/- p.m. and said properties are fetching more

than Rs.50,000/- and there is specific allegation that, defendant No.2 is collecting all the rents. 26. Defendant Nos.4, 6 and 7 have filed separate written statement. At para 10 of the written statement, defendant Nos.4, 6 and 7 have contended that they have been assisting defendant Nos.2 and 3 in the family business. It is also stated that father of defendant Nos.5 to 7, defendant Nos.2 and 3 started bricks factory in the year 1982 and defendant Nos.5 to 7 are working in the said factory. Defendant Nos.5, 6 and 7 have further specifically stated in the written statement that, rents generated from Sharada Lunch Home situated at wheelers road and shops situated at Haines road and the entire joint family income is in the hands of defendant Nos.2 and 3 and the said income is utilized to purchase the properties in the name of defendant Nos.2 and 3.

enjoyment of the property as averred in para 6 of the plaint? 5. Whether defendant No.2 proves that item No.1 of the suit property is his self acquired property? 6. Whether defendant No.2 proves that item No.2 of the suit property was already sold by all the LRs of Sri.Ramaswamy? 7. Whether defendant No.2 proves that item No.1 of schedule B property is given to the plaintiff towards his share? 8. Whether defendant No.2 proves that item No.1 of schedule C of the suit property is sold by all the LRs including the plaintiff as averred in para 4 of W.S.? 9. Whether defendant No.2 further proves that item No.2, 3, 4, and 5 of schedule properties are self acquired properties of himself and Sri.Lakshminarayan? 10. Whether defendant No.2 proves that there was family settlement in 1971 wherein the plaintiff was given some properties towards her share?

from M/s Lakshmi Bricks as contemplated in para 3 of the counter claim? 6. Whether the defendant No.2 proves that he is entitled to share as contended in para No.5 of the counter claim? Additional issues framed on 18.06.2011: 7. Whether the defendant No.3 proves that the counter claim made in his written statement properties are the joint family properties, defendant No.3 is entitled for 1/3rd share? 8. Whether the plaintiff and defendants are entitled for mesne profits? 29. The plaintiff to substantiate her claim examined herself as P.W.1 and relied on relinquishment deed executed by her sister Parvathamma as Ex.P1. She has also produced record of rights as per Exs.P2 and P3.

examined himself as D.W.4 and defendant Nos.4, 5 and 7 examined defendant No.5 on their behalf as D.W.6. Defendants have relied on rebuttal evidence. Defendant Nos.1 to 7 by way of rebuttal evidence have relied on documentary evidence Exs.D1 to D434. The trial court having appreciated the oral and documentary evidence has decreed the suit filed by the plaintiff in part. However, the suit is dismissed in respect of item Nos.1 and 3 to 9 of Schedule-C properties and also the properties which are subject matter of counter claim raised by defendant Nos.2 to 7, in the said properties also no share is granted. 31. The plaintiff being aggrieved by the denial of share in Schedule-C properties as well as in the properties covered in the counter claim raised by defendant Nos.2 and 3 has preferred an appeal in RFA No.158/2012. Defendant Nos.2 challenging the judgment and decree in entirety has filed RFA No.124/2012 questioning the judgment and decree in allowing the counter claim filed by defendant No.3 and defendant Nos.4

to 7. Defendant No.3 has preferred an appeal in RFA No.164/2012 challenging the judgment and decree insofar as granting share to the plaintiff and decree in some of the properties which are claimed by defendant No.3 to be self- acquired properties. 32. Learned senior counsel Smt.Pramila Nesargi appearing for the plaintiff would profusely argue and contend before this court that the entire approach adopted by the learned Judge in discarding the clinching evidence has resulted in miscarriage of justice. Learned senior counsel would submit to this court that there an voluminous clinching evidence which would clearly establish that plaintiff was in joint possession with defendant Nos.1 to 7 and she was party to all the transactions relating to the family. To buttress her arguments, she placed reliance on Ex.D57, which is mortgage deed executed by plaintiff and defendants in favour of B.H.Mangala D/o B.V.Hanumaiah. Placing reliance on this document, she would argue and contend before us that the

fact that plaintiff has signed the mortgage deed along with her brother i.e., defendant Nos.2 and 3 would clearly clinch the issue. If at all the plaintiff had no right, then defendants would not have called upon the plaintiff to sign the document. 33. The learned senior counsel would further rely on release deed executed by C.R.Parvathamma who is none other than the sister of plaintiff and defendant Nos.2 and 3. Placing reliance on this release deed, she would submit to this court that defendant Nos.1 to 7 are estopped from contending that plaintiff has no share in all the suit schedule properties. The fact that Parvathamma received her share in the suit schedule properties in-lieu of the legitimate share, she has executed release deed would clinch the issue and the voluminous documents relied on by defendant Nos.1 to 7 would be of no consequence and the said documents cannot outweigh the clinching evidence as per Ex.D57 mortgage deed and Ex.D58.

1 (2020) 9 SCC 1

properties which were admittedly fetching huge rents. Plaintiff’s brothers namely, defendant Nos.2 and 3 and also deceased brother Narayan had absolutely no independent earnings. Plaintiff’s brothers in the absence of independent income have utilized surplus income which was received in the form of rents and have purchased Schedule-B and C properties and also several properties in the name of defendant No.3. On these set of grounds she would submit to this court that judgment and decree of the trial court denying share in Schedule-C properties and also in the properties which were subject matter of counter claim raised by defendant Nos.2 and 3 suffers from serious perversity. She would submit to this court that the learned Judge has virtually misread the entire evidence on record and therefore prays to this court that judgment and decree is liable to be set aside by allowing the appeal in entirety by granting 1/5th share in all the suit schedule properties owned by plaintiff’s family.

family capable of becoming coparcenerary during the lifetime of Ramaswamy.

2 (2008)7 SCC 46

firm. Placing reliance on the judgment of the Hon’ble Apex Court in 3Nanchand Gangaram Shetji Vs Mallappa Mahalingappa Sadalga, would vehemently argue and submit that there is no presumption that business standing in the name of any member of the joint family is a joint family business. He further placed reliance on the judgment of the Apex Court in 4P.S.Sairam Vs P.S.Ram Rao Pissey. Learned senior counsel would further contend that when succession takes place under Section 8 of the Hindu Succession Act, 1956, the joint family ceases to exist and the heirs would inherited the properties as tenants in common and not joint tenants. 38. Learned senior counsel would further state that all items in Schedule-B properties were purchased by Ramaswamy either in his own name or in the name of his sons and those properties are alone for partition amongst his heirs and Class-I heirs since the daughters and brothers have

3 (1976) 2 SCC 429 4 (2004) 11 SCC 320

succeeded under Section 8 of the Hindu Succession Act, the properties standing in the name of Ramaswamy sons cannot be subject matter of partition. Therefore, all items in Schedule-C will have to be completely excluded. Learned senior counsel would bank on one document which is an estate duty assessment order as per Ex.D53. Placing reliance on this document, he would submit that the declaration made to the estate duty assessment to the Estate Officer at Ex.D53 which is at the earliest point of time would clinch the entire controversy between the parties and plaintiff is entitled for share only in these properties which are covered under Ex.D53. Therefore, he would submit to this court that that learned Judge was not justified in granting share in respect of some properties which are not covered under estate duty assessment order as per Ex.D53.

i) Surjit Lal Chhabda V. The Comissioner of Income Tax, Bombay, 1976 (3) SCC 142. ii) Mrs. Mllika and others V. Chandrappa and Others 2008 (1)) Kant LJ 82 iii) Dr.Suraj Munjal V. Chandan Munjal and Others 2018 SCC Online Del 6902. iv) Bhagwat Sharan Vs. Purushottam and Others 2020 (6) SCC 387. v) Uttam V. Saubhag Singh and Others 2016 (4) SCC 68. vi) Bhanwar Singh V. Puran and Others 2008 (3) SCC 87. vii) Goli Eswaraiah Vs. commissioner of Gift Tax, Andhra Pradesh 1970 (2) SCC 390. viii) K.V.Narayanan Vs K.V.Ranganadhan and others 1977 (1) SCC 244.

ix) Commissioner of Income – Tax, Orissa Vs. Harish Chandra Gupta 1981 SCC Onliine Ori 104. x) Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and others 1986 (3) 567. xi) Aarshiya Gulati (Minor) Vs. Kuldeep Singh Gulati and Others 2019 SCC Online Del 6867. 40. Lastly, he would submit to this court that Laxmi Bricks is a partnership created by three sons of Ramaswamy, and therefore, plaintiff being a sister has absolutely no interest and the fact that partnership firm was unregistered would be of no consequence and it would only affects the rights to file the suit under Section 69 of the Partnership Act. 41. Learned senior counsel based on the above said contentions would sum-up and conclude the argument by stating that plaintiff cannot claim share in Schedule-B

properties which are purchased by brothers of the plaintiff in their individual capacity. He would submit to this court that in the absence of a nucleus, the question of tracing income of the plaint Schedule-B properties to discover source of funds for purchase of Schedule-C properties is impermissible in law. He would place reference to Ex.D245 and submit to this court that there is a clear indication that rents received were being shared by all the children of late Ramaswamy after his death. Learned senior counsel would further state that all properties enumerated in estate duty assessment order are only the properties in which the widow and children are entitled for equal share by way of inheritance under Section 8 of Hindu Succession Act. Placing reliance on Ex.D323, which is a partnership deed, he would submit to this court that plaintiff and other sister Parvathamma do not constitute a joint family along with their brothers and therefore, they cannot claim any share in the partnership business. On these set of grounds, learned senior counsel appearing for defendant No.2 would

submit to this court that appeal filed by defendant No.2 in RFA No.124/2012 has to be allowed and the judgment and decree passed by the learned Judge in granting share in the properties held by defendant No.2 in his individual capacity has to be set aside. 42. Learned counsel for defendant No.3 is aggrieved by granting share to the plaintiff in some of the Schedule-C properties and is also aggrieved by denial of share to the present defendant No.3 as per counter claim filed by defendant No.3. 43. The primary contention of the learned counsel for defendant No.3 is that, defendant No.3 is a junior member and there is clinching evidence on record to indicate that he is separated from the family along with his mother, i.e., defendant No.1 in the year 1989. It is also contended by learned counsel for respondent No.3 that there is clinching evidence on record which clearly establishes that defendant

No.2 was managing the properties and was collecting the rents. Therefore, defendant No.3 who had separated from the family had no occasion to utilize the family funds. Learned counsel for defendant No.3 has taken this court to several admissions given by the plaintiff who is examined as P.W.1 and also referred to ocular evidence of defendant No.2 who is examined as D.W.1. He has argued by referring to the cross- examination of defendant No.2 who has admitted in cross- examination that defendant No.3 along with his mother walked of the family and started residing separately in 1989. Learned counsel would further vehemently argue and contend before this court that defendant No.2 was managing the affairs of the family properties as Kartha and he was collecting rents generated from the family properties. He would also submit to this court that Laxmi Bricks stopped doing business somewhere in the month of August 1988 and therefore there was absolutely no income from Laxmi Bricks after 1988 to acquire properties. Therefore, the allegations made by

defendant No.2 and defendant Nos.4 to 7 that properties purchased by defendant No.3 were infact in the name of defendant No.3 by utilizing the income derived from Laxmi Bricks is totally false. He would submit to this court that, none of the parties have specifically pleaded as to what was the income of the family which was used by defendant No.3 to purchase the properties. He would submit to this court that late Narayan who is the ancestor of defendant Nos.4 to 7 went out of the family in 1984 and there was severance of status in 1984 itself. 44. Learned counsel to substantiate the claim of defendant No.3 would vehemently argue and contend before this court that, item No.1 of Schedule-C to the plaint (item No.24 in the counter claim of defendant Nos.4 to 7) was purchased by his wife from one B.R. Chandrashekar under registered sale deed dated 22.10.2003 as per Ex.D208 and this purchase was admittedly after filing of the suit. Therefore,

he contends that this property cannot be subject matter of partition. 45. To counter the other defendants and plaintiff, he would also submit to this court that item No.3 in Schedule-C to the plaint (item Nos.26 and 15 in the counter claim of defendant Nos.4 to 7) were purchased by defendant No.3 from one Nanjappa, i.e. Sy.No.47/1 measuring 8 guntas and Sy.No.46/4 measuring 1 gunta. To substantiate the claim that these properties are self-acquired properties of defendant No.3, learned counsel would take this court to Exs.D194 to 196 filed on 21.03.1994. Placing reliance on this Income Tax returns, he would submit to this court that, the fact that defendant No.3 has declared these properties in his returns would presuppose that these properties are self-acquired properties of defendant No.3. There is absolutely no rebuttal evidence let in either by the plaintiff, defendant No.2 or defendant Nos.4 to 7 to lay a claim over these properties. He would submit to this court that item No.6 of Schedule-C (item

No.29 of counter claim of defendant Nos.4 to 7) Sy.No.45 measuring 4 acres 6 guntas was purchased by defendant No.3 on 19.09.1990 as per Ex.D211. He would also place reliance on Ex.D224 to demonstrate that this item No.6 bearing Sy.No.45 and also site No.4 were offered as security with Bank of India for having availed cash credit facility for Vidya Chamber Bricks. He would submit to this court that this item No.6 bearing Sy.No.45 is also declared in the income tax returns as per Exs.D194 to 196 which are filed on 21.03.1994. He would lay emphasis on the date of filing of the suit at this juncture by submitting that the suit was admittedly filed on 22.09.1994. He would state that item No.7 of Schedule-C to the plaint (items Nos.30, 31 in the counter claim of defendant Nos.4 to 7) was purchased by defendant No.3 and his wife jointly from one A.Ramarao and others under registered sale deed dated 10.11.1994. He would submit that this property is also self-acquired property of defendant No.3. He would place reliance on Ex.D187, the certificate issued by Vijay Bank

indicating that documents in respect of site No.34 is offered as security for availing loan for house property. Insofar as item No.8 of Schedule-C to the plaint is concerned (item No.32 in counter claim of defendant Nos.4 to 7), he would submit to this court that this site was allotted in favour of defendant No.3 by Bangalore Development Authority in an auction sale dated 19.09.1991. He would submit to this court that this item was purchased after filing of the suit. 46. Item Nos.9(a) and (c) of Schedule-C property (item No.33(a) & (c) in counter claim of defendant Nos.4 to 7) which an Sy.No.46/1 and 49/2 were purchased by defendant No.3 under registered sale deed dated 19.11.1990 and these items are also declared in income tax returns as per Exs.D194 to 196. Similarly, item No.9(d), (e) were purchased by defendant No.3 under registered sale deed dated 18.04.1992 and 17.12.1990 respectively and the same are also declared in the income tax returns.

submit to this court that plaintiff and other defendants during the course of trial have impleaded these properties by way of amendment to the plaint and also in the counter claims filed by defendant No.2 and defendant Nos.4 to 7. He would submit to this court that all these properties were purchased subsequent to partition of the suit and some of them are jointly purchased along with his wife and some of them are purchased by his wife and those properties which are standing in the name of his wife cannot be subject matter of the present partition suit, since she is not party to the suit. 49. Placing reliance on the judgment rendered by the Hon’ble Apex Court in 5Achuthan Nair Vs Chinnmmu Amma, would submit to this court that burden is always on the members who are asserting that properties are joint family properties to establish the same by leading cogent and clinching evidence. But this principle cannot be extended to

5 AIR 1966 SC 411

those parties which are acquired in the name of junior member and there is no presumption either way. 50. To buttress his arguments, he would place reliance on the judgment rendered by Division Bench of this court in the case of 6Krishne Gowda Vs Ninge Gowda. Placing reliance on this judgment, he would submit to this court that, even if the joint family possessed considerable nucleus capable of yielding sufficient income to enable acquisition of properties is not by itself sufficient to hold that acquisition by a junior member of such joint family is with the aid of joint family and no presumption can be drawn in that regard. 51. Learned counsel for defendant No.3 by placing reliance on these material facts and judgments would submit to this court that defendant No.3 never collected rents and never received income from Laxmi Bricks and the fact that defendant No.3 started residing separately in the year 1989 would in itself discharge the burden cast on defendant No.3.

6 ILR 1987 KAR 2833

Learned counsel would also place reliance on ocular evidence of P.W.1, D.W.1 and also ocular evidence of D.W.6 who is examined on behalf of defendant Nos.4 to 7. Placing reliance on the ocular evidence of the above said witnesses, he would sum up his arguments and contend that defendant No.3 is junior member of the family and therefore, the acquisition made by defendant No.3 cannot be subject matter of the present partition suit. He would also submit that there is no evidence adduced either by the plaintiff, defendant No.2 or defendant Nos.4 to 7 to demonstrate that defendant No.3 is also collecting rents and he has utilized the income generated from Laxmi Bricks. He would stress on the material fact that Laxmi Bricks stopped doing business in August 1988, and therefore, there was no income from the Laxmi Bricks as alleged by defendant No.2 and defendant Nos.4 to 7.

acquired in the name of defendant Nos.2 and 3 are also joint family ancestral properties since the same are acquired with the aid of joint family funds. Learned Senior Counsel by placing reliance on Ex.D-369 would submit to this Court that the defendant No.2 has admitted in unequivocal terms that after the demise of his father Late Ramaswamy, he was compelled to settle down at Bengaluru and he started managing the properties left behind his father. Learned Senior Counsel would also rely on the cross-examination of the plaintiff wherein she has admitted that after the death of her father, it was Narayan who managing the family affairs and after 1 ½ years, the defendant No.2 took over the entire family affairs. Learned Senior Counsel would also place reliance on paragraph 34 of the written statement filed by the defendant No.3 wherein defendant No.3 has also specifically stated that defendant No.2 was managing the entire joint family affairs.

documents and therefore, non-production of vital documents by defendant No.2 would lead to adverse inference under Section 114G of the Evidence Act.

the fact that defendant No.2 being manager went on purchasing the properties from the income generated from the joint family properties.

D-273 and D-373 are not properly appreciated and its evidentiary value is not assessed property by Learned Judge.

take this Court to Exs.P-2 and P-3 which are RTC extracts and would submit to this Court that the lands are totally barren lands and therefore, the theory set up by the defendant No.2 that apart from transport business, he was also getting agricultural income is totally a false narrative set up by the defendant No.3 and the same is not at all corroborated and substantiated by producing cogent and clinching evidence.

developed the properties left behind their father by mortgaging the properties and further, the properties were also acquired from the income of the joint family properties. He would submit to this Court that properties purchased in the name of defendant Nos.2 and 3 cannot be treated as joint family properties but they are to be treated as joint properties of defendant Nos.1 to 7. He would also submit to this Court that the properties purchased from the income derived from the joint properties by co-owners of the properties has to be accounted for as joint property and not joint Hindu family properties. To buttress his arguments, he has placed reliance on the judgment of this Court rendered in B.P.Arun Kumar Vs. Smt. Achala & Others7. 61. We have meticulously examined the pleadings in the plaint and also the counter claims filed by the defendant Nos.2 and 3 and defendant Nos.4 to 7. We have given our

7 ILR 2001 Kar 872

anxious consideration to the entire oral and documentary evidence on record. 62. The following points would arise for consideration in the light of the grounds urged by the plaintiffs in RFA.No.158/2012, the grounds urged by the defendant No.2 in RFA.No.124/2012, the grounds urged by the defendant No.3 in RFA.No.164/2012 and the grounds urged by defendant Nos.4 to 7 in RFA.No.216/2012:

1) Whether the Trial Court was justified in denying the share to the plaintiff in item Nos.1 and 3 to 9(a) to 9(e) of Schedule ‘C’ properties and also relief of partition sought in the counter claim?

2) Whether the finding of the Trial Court that item Nos.4 and 5 in Schedule ‘C’ to the plaint are the joint properties of defendant Nos.1 to 7 and the same are acquired from their independent earning is perverse, palpably erroneous and contrary to clinching evidence on record?

3) Whether the Trial Court was justified in dismissing the suit of the plaintiff as well as counter claim of defendant Nos.4 to 7 in respect of item Nos.6 to 15 which are referred to in the counter claim filed by defendant Nos.4 to 7?

4) Whether the finding of the Trial Court that item Nos.6 to 15, item Nos.29, 30, 31, 32, 33, 33A, 33B, 33C, 33D and 33E properties which are claimed in the counter claim of defendant Nos.4 to 7 are self acquired properties of defendant No.3?

5) Whether the Trial Court was justified in holding that the properties purchased by the defendant No.2 are out of joint family funds and therefore, the plaintiff and defendant Nos.3 to 7 are also entitled for a share in the properties standing in the name of the defendant No.2?

6) Whether the defendant No.3's share would get enlarged on account of gift deed executed by his mother i.e., deceased defendant No.1?

Re: Point Nos.1 and 2: 63. The plaintiff who is the sister of defendant Nos.2 and 3 has filed a suit by specifically contending that schedule ‘A’ and ‘B’ properties are absolute properties of their father. Schedule ‘A’ is the ancestral property and her father who was a contractor acquired schedule ‘B’ properties without the aid of ancestral property described in schedule ‘A’. It is also the contention of the plaintiff that after the death of her father Ramaswamy, the defendant Nos.2 and 7 started managing the properties and they have been deriving huge amount and the same is utilized to acquire several properties which are morefully described in schedule ‘C’. The plaintiff has also specifically contended that item No.2 in schedule ‘B’ consists of Sharada Lunch Home and yields considerable income by way of rents. The plaintiff has also contended that item Nos.3 and 4 situated at Haines Road, Bengaluru consists of 6 shops and huge rents are collected by the defendant No.2. Item No.5 of schedule ‘B’ is a shop and the same is let out. It is the

specific case of the plaintiff that defendants are utilizing the funds of joint family to purchase several properties. On these set of pleadings, she has filed the present suit by contending that she is entitled for 1/5th share. It is also stated in the plaint that her sister Parvathamma has executed a relinquishment deed by taking her legitimate share. The plaintiff has also seriously disputed the alleged partition deed dated 10.10.1990. The plaintiff is also seeking share in Laxmi Brick which is existing in item Nos.5 and 6 of schedule ‘C’. It is the specific contention of the plaintiff that Laxmi Brick is also a joint family property and the family funds were utilized to establish the said brick factory and therefore, a share is also claimed in the said properties. 64. The defendant No.2 has come up with a plea of prior partition and has contended that item No.1 in schedule ‘B’ property was allotted to the share of plaintiff in a family partition. The plaintiff No.2 also contends that the properties which are allotted to the share of the plaintiff is only by way of

arrangement and in fact plaintiff was required to relinquish her share in all the properties left behind by her father Ramaswamy. Having assured, she has not come forward to execute a relinquishment deed. It is also stated that she was permitted to collect rents from the properties which are situated at Haines Road, Bengaluru and this was a temporary arrangement. 65. The defendant No.2 before this Court has taken a contention that the only properties which were held by Ramaswamy are available for partition amongst his widow and children and the properties which were left behind by the father of the plaintiffs and defendant Nos.2 and 3 can be gathered and evidenced from the estate duty assessment order at Ex.D-53 which are submitted to the authorities at undisputed point of time. The contention of the defendant No.2 is as no joint family existed during the life time of Ramaswamy and further, since no joint family was created after his death, the contention of defendant No.2 is that the

entire discussion of the Trial Court is contrary to the pleadings and material on record. Learned Senior Counsel appearing for the defendant No.2 has relied on the judgments rendered by the Hon’ble Apex Court and a contention is taken that when succession takes place under Section 8 of the Hindu Succession Act, 1956, then joint family ceases to exist and the heirs would hold the properties as tenants in common. 66. Learned Senior Counsel has also laid emphasis on the fact that plaintiff got married in the year 1961 and therefore, she ceases to be a member of a joint family of Ramaswamy. The defendant No.2 has also placed reliance on the pleadings in the plaint and a contention is taken before this Court that the propositus Ramaswamy till his death, treated all the properties standing in the name as his absolute properties and in this background, the learned Senior Counsel contends that Ramaswamy never acted as a Kartha during his life time and therefore, Ramaswamy along with his children did not constitute undivided joint Hindu family. He would also

lay emphasis and place reliance on the pleadings in the plaint and contend that there are absolutely no pleadings in regard to existence of co-parcenary. He would contend that on death of Ramaswamy on 09.03.1971, his estate was inherited by widow and children as class-I heirs and therefore, the plaintiff would be entitled to a share only in respect of properties which were declared under Ex.D-53. The above said contentions are equally supported and pleadings and evidence is lead by defendant Nos.3 and 4 to 7 on the same line. The defendant Nos.3 and 4 to 7 also contend that plaintiff is not entitled for any share in schedule ‘B’ and ‘C’ properties. Though rival parties have lead in voluminous evidence, to ascertain the character and the nature of the properties held by the parties, the release deed executed by the other sister namely, Parvathamma would have relevancy to the controversy between the parties. 67. The contention of the defendant No.2 that the plaintiffs ceased to be a member on account of marriage and

therefore, she cannot claim to be a member of joint Hindu family cannot be acceded to. The said contention runs contrary to the object of Hindu Succession Act, 1956. The main object of the Hindu Succession Act, 1956 is to remove inequalities between male and female with respect to rights in property and evolves a list of heirs entitled to succeed on intestacy. The said Act has been passed to codify and amend the Hindu Law regarding succession. One of the most important features of the Act is the right of a Hindu female to inherit property has been fully recognized and she has been made entitled to a share equal to the male heirs. The Act also purported and intended to abolish women’s limited estate. The concept of co-parcenary has also undergone a change in the sense that succession to co-parcenary property was governed by rule of survivorship. In this rule, the female heirs did not have any place and the property, on the death of a male heir, devolved upon the rest of the male members of the co-parcenary.

plaint. The Court is also required to test the defence. More than the pleadings, the Court has to also examine the documentary evidence adduced before this Court and therefore, in the light of the controversy between the parties in regard to the nature of the properties which were held by Ramaswamy, the release deed executed by Parvathamma to which all the parties to the suit are signatories would be a deciding factor. Coupled with the said documents, this Court has to also take note of the release deed executed by the sister of the plaintiff namely Smt. Parvathamma as per Ex.P-1 and her brothers at undisputed point of time. The relevant paragraph of Ex.P-1 is reproduced as under:

"2. Whereas late C.Ramaswamy father of the Releaser was the manager of the Hindu joint family consisting of himself and releases 1, 2, 4 and 5. Whereas late C.Ramaswamy died on 9.3.1971. undivided from his sons the other co- parceners whereas thus the Releasor became entitled to a share in the undivided interest of her father late C.Ramaswamy in the joint family

properties whereas the Releasor has acquainted herself about the various items of the properties of her father late C.Ramaswamy and is not only aware of the extent and nature of all the estate of the said joint Hindu family but also its value."

Others8. We have no cavil to the above said proposition. In the case of Commissioner of Wealth Tax, Kanpur and Others vs. Chander Sen and Others9, it was held that after passing of Hindu Succession Act, 1956, the traditional view that on inheritance of immovable property from paternal ancestor upto three degrees, automatically a Hindu undivided family came into existence no longer remained the legal position in view of Section 8 of the Hindu Succession Act, 1956. The judgment of the Hon’ble Apex Court was reiterated in the case of Yudhishter vs. Ashok Kumar10. The Hon’ble Apex Court was of the view that after coming into force of Section 8 of Hindu Succession Act, 1956, inheritance of the ancestral properties after 1956 does not create Hindu undivided family property and inheritance of ancestral property after 1956, therefore, does not result in the creation of Hindu Undivided family property. This judgment rendered by the Hon’ble Apex Court still holds the field and is binding on

8 (2016) 4 SCC 68 9 (1986) 3 SCC 567 10 (1987) 1 SCC 204

all High Courts and Sub-ordinate Courts. But these principles are to be examined in the light of the facts and circumstances of the present case on hand. With due respect, we are of the view that the judgment cited in Uttam (supra) has no application to the present case on hand.

evidence, the imperfections either do not exist or exist only in small measures. In the event of documentary evidence, generally speaking ocular evidence has no weight. The registered release deed executed by Parvathamma is admitted in unequivocal terms by all the parties to the suit. Therefore, the recitals would bind all the parties. It is trite law that the document is the best evidence of its contents. The policy behind Rules 91 and 92 of Indian Evidence Act is to bar collateral evidence which can create mischief. Therefore, we are of the view that Sections 91 and 92 of Indian Evidence Act is clearly applicable to the contracts relating to disposition of property. The pleadings and ocular evidence of defendant No.2 to the effect that co-parcenary did not exist either during the life time of Ramaswamy or after his death cannot be accepted. It is trite law that evidence may supplement but not supplant or contradict. The recitals in the registered release deed as per Ex.P-1 are absolutely clear and there is no ambiguity and therefore, there is very little that Court can do

about it. We would also find that the language of release deed is plain in itself and apply accurately to the existing facts and therefore, the stand taken by the defendant Nos.2 to 7 which runs contrary to the recitals in registered release deed as per Ex.P-1 cannot be looked into and the voluminous ocular evidence and also documentary evidence which is contrary to Ex.P-1 are inadmissible. At this juncture, we also hold that we do not find any ambiguity in the registered release deed executed by Parvathamma as per Ex.P-1.

Certain properties were acquired by Ramaswamy from the joint family funds. Even if Ramaswamy has made any acquisition from his earnings of contract business, such properties have been merged with the joint family properties and were put into hotchpotch of the joint family, such properties have also become joint family properties."

(written statement filed by defendant Nos.4 to 7) "03. It is submitted that defendant no.5 to 7's grandfather had 3 sons and 2 daughters namely C.R.Narayan, the 2nd defendant and 3rd defendant, the plaintiff and Parvathamma. It is submitted

that defendant No.1 is the grandmother of defendant No.5 to 7. The defendants 1 to 6 are the members of Hindu undivided joint family and they are in joint possession in respect of the properties as stated in the schedule."

No.1 in favour of defendant No.3. Paragraph 4 of the gift deed would be relevant and the same is culled out as under: "4. The valuable properties left behind by husband of the first party and later on earned by the joint effort of members of the joint family more fully described in the schedule to the deed, which are described in detail with boundaries in the schedule in the end of the instant Gift deed. All the properties described in the schedule are joint family properties."

with the aid of joint family funds, the properties were acquired by defendant Nos.2 and 3. These significant details would also have a bearing on the defence set up by defendant No.3 in regard to the nature of the suit properties.

three sons of Ramaswamy, however, there is absolutely no evidence indicating as to how the three sons commenced with business and there was no details in mobilizing funds and capital to establish the partnership firm. In absence of clinching evidence, it has to be presumed that Lakshmi Bricks was started by all the three brothers by utilizing joint family funds. On perusal of Ex.D-236, it is forthcoming that defendant No.2 submitted a letter to the Commercial Tax Officer stating that business is closed in 1989. If this document is taken into consideration then it clearly shows that the partnership firm is not at all in existence. As joint family funds were utilized to establish the partnership firm therefore, we are of the view that item No.5 in schedule 'C' property would also become estate of joint family and therefore, plaintiff is also entitled for 1/5th share in item No.5 of schedule 'C' property.

that since his brother Narayana (ancestor of defendant Nos.4 to 7) went out of the family in 1984, there was severance of status in 1984 itself. The defendant No.3 claims that defendant No.2 was managing the affairs of the family and therefore, the properties which were purchased in the name of defendant No.2 were with the aid of the joint family funds and therefore, claims a share in the properties standing in the name of defendant No.2. At the same time, it is the specific contention of defendant No.3 that item Nos.1, 3, 6, 7, 8, 9A to 9E are his self acquired properties. To substantiate his claim he has relied on Income Tax returns as per Exs.D-194 to D- 196. The defendant No.3 has contended that the income tax returns was submitted by him on 21.03.1994 whereas the suit is filed on 22.09.1994 and therefore, it is specifically contended that income tax returns are credible and the same would clearly establish that the properties cited supra are his self acquisition. He would also contend that insofar as item no.6 in schedule ‘C’ properties is concerned, the same is

purchased by his wife from Bangalore Development Authority in an auction and the sale deed is executed on 29.08.1991 and therefore, he claimed that it is the self acquired property by his wife.

his relationship with defendant No.2 was not cordial and he had already separated in December 1989 and therefore, the properties which are acquired by him are after he walked out of the family and therefore, he has tried to project his case by contending that he could not have laid his hands on the corpus on the joint family funds. On perusal of Exs.D-155(A), D-386, D-389 and D-390 clearly demonstrates that the family of plaintiff and defendants possessed prime properties and the said properties which were rented out generated substantial income by way of rents from the properties at item Nos.2 to 5 of ‘B’ schedule property. The defendant No.3 claims that it is the only defendant No.2 who has collected the rents. If the entire defence set up by defendant No.3 is meticulously examined, there is a specific stand taken by the defendant No.3 that it is the defendant No.2 who was collecting the rents. But there is no specific denial that the rents collected by defendant No.2 was not distributed among the three brothers. The defendant No.3 has conveniently chosen to stay

silent on this crucial aspect. The defendant No.3's specific assertion that his relationship was not at all cordial with defendant No.2 has been falsified in cross-examination wherein he has admitted that three agricultural lands were purchased by defendant Nos.3 and 2 during the period 1988 to 1992.

from the agricultural lands standing in his name. The plaintiff has produced record of rights and on perusal of Exs.P-2 and P- 3 which are the RTC extracts pertaining to Sy.Nos.46 and 49, the same indicates that they are barren lands. This defence has to be also examined in the context of the pass book produced by defendant No.2 as per Ex.D-318. The same also gives an indication that defendant No.3 has drawn amount from the Corporation Bank in the course of Lakshmi Bricks business. On perusal of Ex.D-313, this Court would find that defendant No.3 had entered into an agreement in respect of Haines Road property i.e., ‘B’ schedule property. From the said document, it can be gathered that he has received a sum of Rs.1,00,000/-. The clinching evidence on record clearly establishes that rents generated from item Nos.2 to 5 of schedule ‘B’ property formed substantial income and the same laid a foundation for subsequent acquisition. Therefore, the position is, a fortiori, where apart from acquisitions, the managing member of the plaintiff and defendants family i.e.,

defendant No.2 as well as defendant No.3 had absolutely no other assets or source of income.

the legal notice issued by the defendant No.3 as per Ex.D- 245: "To,

13th June 1996

Adinarayan,

No.140, Wheeler Road,

Bangalore - 8.

Sir,

We act on behalf of our client Shri. C.R.Laxminarayan, S/o.C.Ramaswamy, R/a No.34, I Main, Domlur Layout, Bangalore - 560071 and issue the following notice to you.

That you are the tenant in respect of a portion of the property bearing No.140, Wheeler Road, Bangalore paying a monthly rent of Rs.425/- that our client is one of the co-owner in respect of he property under your occupation along with his brother Shri.C.R.Kemparaj and the children of Sri.R.Narayan and is entitled 1/3rd share of the rent derived from the entire composite building as his legal heirs of late Ramaswamy. Hither to C.R.Kemparaj, the elder brother of our client was collecting the entire rent on behalf of himself and other co-owner and was being shared equally between themselves.

Our client states that there has been difference between our client and C.R.Kemparaj with regard to sharing of the rent and our client has been deprived of his part of the rent for which he is entitled to from the last 6 months.

The clients repeated requests and demands made on Mr.Kemparaj for the rents derived were in vain. In these circumstances, we hereby call upon you to pay 1/3rd of rent amount in future and attain valid receipt thereof. If inspite of this Notice, should you continue to pay the entire rent to Mr.Kemparaj, you would be doing so at your own costs and risks in which event our client would take up the matter to the Court of Law seeking redressal."

purchased by defendant No.3 and defendant No.2 during 1988 to 1992 by utilizing the joint family funds and also from the income from Lakshmi Bricks. The relevant portion of cross- examination of defendant No.3 needs to be culled out which is useful in the background of the defence set up by defendant No.3: "qÀ§Æè.J¸ï.£À ¥ÁågÁ 46 gÀ°è ªÀÄÆgÀPÀȶ d«ÄãÀÄUÀ¼À£ÀÄß 88 jAzÀ 92 CªÀ¢üAiÀÄ°è £Á£ÀÄ ªÀÄvÀÄÛ 2£Éà ¥ÀæwªÁ¢ dAnAiÀiÁV Rjâ ªÀiÁrzÉÝêÉ. MlÄÖ PÀÄlÄA§zÀ ¸ÀévÀÄÛUÀ½AzÀ §AzÀ GvÀà£Àß ªÀÄvÀÄÛ ®Qëöä ©æPïì¤AzÀ §AzÀ ªÀgÀªÀiÁ£À¢AzÀ £ÁªÀÅ dAnAiÀiÁV Rjâ ªÀiÁrzÉÝêÉ. ¤±Á£É r 59 ¸ÀªÉð £ÀA§gï 37-4gÀ PÀæAiÀÄ ¥ÀvÀæ DVzÉ JAzÀgÉ ¤d."

defendant No.2 was not cordial and therefore, he had no control over the joint family funds. If this relevant cross- examination and also the claim made in the legal notice vide Ex.D-245 is taken into consideration, we would not hesitate to come to conclusion that though he opted to reside separately, however, he was very much in control with the family business along with the defendant No.2 and even upto 1992, both the brothers i.e., defendant Nos.2 and 3 went on purchasing properties by utilizing joint family funds. The passbook produced by the defendant No.2 as per Ex.D-318 also indicate that the defendant No.3 has drawn amount from the Corporation Bank in the course of Lakshmi Bricks business. On perusal of Ex.D-3, it would clearly establish that plaintiff and defendants have jointly signed Ex.D-3 which is the rent receipt.

advance. Exs.D-245, D-3 and D-313 clearly establishes that defendant No.3 was also managing the family properties and was receiving his share of rent. In the legal notice as per Ex.D-245, defendant No.3 has called upon tenant to pay 1/3rd of rent amount. This document would clinch the issue and the narrative set up by defendant No.3 that he walked out of the family and thereupon he never received any income from the joint family properties stands falsified. The said clinching evidence would virtually outweigh the evidence adduced by defendant No.3. On re-appreciation of evidence adduced by defendant No.3, we are of the view that the Income Tax returns relied on by the defendant No.3 as per Exs.194 to 196 has no evidentiary value and therefore, we are of the view of the same are created for the purpose of the suit and therefore no evidentiary value can be attached to the above said document. The defence set up by the defendant No.3 that he was doing lorry business and owned lorry, JCB, excavator and that he was doing lending business cannot be accepted and is

not at all proved by the defendant No.3 by placing on record cogent and clinching evidence. Several categorical admissions given by defendant No.3 during trial and also the averments in the written statement would in fact go against the stand taken by the defendant No.3.

purchased in his name are his self acquisition. Merely because the families are living separately, the nature of the joint family property will not change unless there is a partition, division or settlement.

is a commercial site No.5 purchased by defendant No.3 under registered sale deed dated 10.06.1988. Item No.b in the counter claim of defendant No.2 and corresponding item No.7 in counter claim of defendant Nos.4 to 7 is a commercial property bearing No.4 and the same is purchased in the name of defendant No.3 under registered sale deed dated 25.04.2003. The said property is also not available for partition. Similarly item No.d in counter claim of defendant No.2 and item No.9 in counter claim of defendant Nos.4 to 7 property bearing No.645 is purchased by defendant No.3 under registered sale deed dated 30.09.2010. Similarly, item No.e in counter claim of defendant No.2 and item No.10 in counter claim of defendant Nos.4 to 7 is property bearing No.277 purchased by defendant No.3 under registered sale deed dated 05.02.2001. Similarly, item Nos.11 and 12 in counter claim of defendant Nos.4 to 7 and item Nos.f and g in counter claim of defendant No.2 is property bearing No.113/2 purchased by defendant No.3 under registered sale deed

dated 20.11.2011. Therefore, the said property is also not available for partition.

Re: Point No.5: 94. The defendant No.2 main contention is that plaintiff Vanajakshi got married in 1961 and this fact is admitted in

cross-examination by plaintiff and therefore, it is the specific contention of the defendant No.2 that plaintiff went out of the family of Ramaswamy and became member of her husband’s family and therefore, on the death of the father namely, Ramaswamy on 09.05.1971, there were proceedings for estate duty and the estate of Ramaswamy was subjected to estate duty. The defendant No.2 by relying on Ex.D-53 has contended that it is only the properties left behind by Ramaswamy which would be available for partition and by way of inheritance, the widow and children would succeed to the properties set out in estate duty assessment order. The defendant No.2 has contended that, had there been a Hindu undivided family, on account of death of Ramaswamy, there would not have been any estate duty proceedings. The defendant No.2 has also contended that though some of the properties were purchased by father of Ramaswamy in the name of his children and even if sale consideration was paid by Ramaswamy, the plaintiff cannot assert and claim these

properties to be joint family properties, as such the claim would be hit by provisions of Benami Transaction Observations Act, 1993. On this count, the defendant No.2 has strongly contended that schedule ‘B’ properties which were admittedly not standing in the name of Ramaswamy on the date of his death are to be excluded as they are not available for partition.

unequivocal terms that plaintiff being the widow sister was part of the family and that she was residing in one portion of the ancestral property. Though it is a trite law that a female cannot be a member of a co-parcener but at the same time, there can be no cavil to the settled proposition of law that a Hindu female can be a member of a Mitakshara joint family. The fact that she continued to be the member of the joint family further gets strengthened in view of the mortgage deed executed by defendants and plaintiff as per Ex.D-23. Therefore, the contention raised by the defendant No.2 that on account of marriage in the year 1961, the plaintiff cannot claim to be a member of the Joint Hindu undivided family cannot be sustained. The concept of severance on account of marriage of Hindu female is unknown to Hindu law. Even on account of death of Ramaswamy, the same would not amount to severance and though male members may continue to have a status of a co-parcener, females are also entitled for a share

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in the properties which are acquired after the death of the Head of the family.

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has placed reliance on Ex.D-323 and therefore, placing reliance of Ex.D-323, the defendant No.2 has contended that Lakshmi Bricks being a partnership firm created by three sons of Ramaswamy, the other two sisters of defendant Nos.2 and 3 have no rights and interest and therefore, the present plaintiff is not entitled for any share in item Nos.4 and 5 of schedule ‘C’ properties. It is also vehemently argued and contended before this Court that the fact that partnership firm was unregistered has no effect on the existence of the firm.

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Ex.D-382 and item No.4 is purchased in 1991 and it is self acquired property. Item No.5 is purchased by defendant No.2 in 1992-93 and claims that it is self acquired property. Item No.5 in schedule ‘C’ was purchased in 1989 and the same is self acquired property. Insofar as item No.7 is concerned, defendant No.2 claims that this was purchased in the name of defendant No.2 and the same was sold in 1971 with the consent of entire family. The defendant No.2 has further claimed that item No.8 belongs to his daughter and the same is not available. The defendant No.2 placing reliance of Ex.D- 281 has contended that item No.8 in schedule ‘C’ is no where concerned to the family of plaintiff and defendants and the same stands in the name of married daughter and therefore, is not available for partition. Insofar as schedule ‘D’ properties are concerned, defendant No.3 has taken a contention that no materials are placed on record. Therefore, the existence of the said property is not established and therefore, the Trial Court has rightly rejected the claim of the plaintiff.

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106

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not placed on record the documents relating to collection of rents.

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defendant Nos.2 and 3 also grew with the assistance of joint family funds and the earnings of the business were blended with joint family estate and therefore, the business cannot remain free and separate. To support their claim, the defendant No.2 has failed to adduce clinching evidence. If it is admitted that defendant No.2 was acting as a Kartha of the family and if a Kartha were to claim that certain properties have been acquired by him with his own separate funds and not with the help of joint family funds of which he was in possession and charge, the entire burden is on the Kartha to prove by clear and satisfactory evidence that the properties acquired by him were from his separate funds and not with the aid of the joint family corpus. It is trite law that onus of proving in such cases would be always on the manager and not on the other members of the family. The defendant No.2 has miserably failed to establish that the properties which are purchased in his name are his self acquired properties. The defendant No.2 has further failed to establish that the item

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Nos.5 and 6 in schedule ‘C’ properties were acquired by all three brothers by their joint labour and exertion without the aid of ancestral nucleus.

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would be also entitled for a share in all the suit schedule properties which were purchased with the aid of joint family funds.

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defendant No.2 has neither pleaded specifically in the written statement nor he has produced any documents to show that he had independent source of income to purchase the properties stated supra in his name. Therefore, the grounds urged by the defendant No.2 in RFA.No.158/2012 would not displace the findings recorded by the Trial Court on issue Nos.5, 8, 9, 10 and additional issue No.6. Accordingly, point No.5 formulated above is answered in the affirmative.

Re: Point No.6:

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execution of the registered gift deed by defendant No.1 on 18.08.2010. By placing reliance on the registered gift deed which is at Ex.D-203, defendant No.3 claims his right and title in respect of share of defendant No.1 in the suit schedule properties.

11 AIR 2000 Kar 27

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interest is void all together. The Division Bench has followed the dictum rendered by the Hon'ble Apex Court in Thamma Venkata Subbamma vs. Thamma Rattamma12. The Division Bench of this Court was of the view that such gifts are void ab initio in their entirety and it is also not allowed even to the extent of their own interest in the property. The Division Bench was of the view that transactions are null and void, since their inception and therefore, the question of seeking cancellation is also not necessary.

12 AIR 1987 SC 1775

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share would stand enlarged in view of gift deed executed by deceased defendant No.1 is not permissible under law. Defendant No.3 as a co-parcener is entitled for 1/4th share in the suit schedule properties. The bar or embargo to gift undivided interest continues to remain even after codification of Hindu law. Therefore, even in absence of challenge, defendant No.3 will not have any right and title under the alleged gift deed executed by mother i.e., deceased defendant No.1. Accordingly, point No.6 is answered in negative.

Conclusions:

a) Based on the pleadings of the parties and also documentary evidence, we have come to conclusion that defendant Nos.2 and 3 are co-parceners and the properties

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left behind by deceased Ramaswamy are all co-parcenary properties and all subsequent acquisition made by defendant Nos.2 and 3 are also held to be co-parcenary properties. In the light of the dictum laid down by the Hon'ble Apex Court in Vineeta Sharma (supra), we are of the view that the plaintiff is entitled for equal share as a co-parcener. The existence of a co-parcener nucleus is established and therefore, she would take equal share at par with defendant Nos.2 and 4 and legal representatives of deceased Narayan.

b) The material on record clearly establish that the defendant No.2 was acting as a Kartha of the family. The defendant No.2 contention is that after death of Ramaswamy, the properties left behind by the plaintiff and defendant Nos.2 and 3's father are inherited by the parties under Section 8 of the Hindu Succession Act, 1956 as tenants in common and the joint family ceases to exist and therefore, in absence of co- parcenary, plaintiff cannot claim share in the properties acquired by the three brothers. The defendants primary

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defence is that the parties would succeed only in respect of those properties which were declared in the estate order as per Ex.D-53. Further, he also contends that the property standing in his name are his self acquired properties and a contention is also taken that item No.5 in schedule 'C' which is a partnership firm, plaintiff is not entitled for any share and she cannot maintain a partition suit in respect of a partnership firm. Having taken all these defence, defendant No.2 has not adduced any evidence during trial. It is elicited in cross- examination of defendant No.2, that he has documents relating to the transaction. However, the said documents are not placed on record and therefore, adverse inference has to be drawn against the defendant No.2. The defendant No.2 has also admitted that he was collecting rents to the tune of Rs.25,000/- and therefore, his contention that the property standing in his name are his self acquisition cannot be accepted in absence of evidence to that effect. Therefore, the

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appeal filed by the defendant No.2 in RFA.No.124/2012 is devoid of merits and the same is liable to be rejected.

c) The learned Judge has dismissed the suit filed by the plaintiff and also counter claim of defendant Nos.4 to 7 in respect of item Nos.4 to 6 and 9(a) to 9(e) in schedule 'C' property. On re-appreciation of entire oral and documentary evidence, we are of the view that the learned Judge erred in believing the evidence adduced by the defendant No.3 pertaining to item Nos.4 to 6 and 9(a) to 9(e) in schedule 'C' properties. On re-appreciation of the entire evidence, we are of the view that the entire approach of the Trial Court is based on misconception of real point in controversy in the case. The defendant No.3's case is that he walked out of the family in the year 1989 and therefore, he had no control over the family affairs and also joint family funds. The learned Judge has believed Exs.D-194 to 196 which are the Income Tax returns but the evidentiary value of these documents are not examined by the learned Judge. These documents are

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submitted by the defendant No.3 for the year 1990-91, 1991- 92, 1992-93 and 1993-94 on 06.10.1994 and 11.10.1994. Therefore, we are of the view that these Income Tax returns were filed with malafides and in anticipation that there would be a claim by the siblings in the properties which are purchased in his name. Therefore, no credence can be attached to the Income Tax returns at Exs.D-194 to D-196. The civil dispute are decided on the concept of preponderance of probabilities.

d) The material on record clearly demonstrates that the plaintiff and defendants' family possessed prime properties. There are 67 tenements which are leased to the tenants and the same generates huge income. The defendant No.3 claims that the entire rent was collected by defendant No.2. However, defendant Nos.3 and 4 to 7 are quite silent in regard to the relevant issue of whether the funds were shared by all the three brothers. These material aspects stands resolved in the light of Ex.D-245 which is a legal notice issued by the

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defendant No.3 to one of the tenant and in the said legal notice, defendant No.3 has admitted in unequivocal terms that all the three brothers are equally entitled to share rent. Ex.D- 44 also indicates that ancestor of defendant Nos.4 to 7 namely Narayan has also collected rents. Further, Ex.D-3 which is a rent receipt also clearly indicates that all the family members have signed the rent receipts. All these relevant documents are not adverted to by the learned Judge and therefore, the conclusions arrived at by the learned Judge in respect of some of the properties purchased in the name of defendant No.3 is not arrived at by drawing proper inference from fact and the said conclusions are not based on credibility of the clinching documentary evidence. Ex.D-155 is the document relied by the defendant No.3 claiming that he has purchased properties from his independent earning is not at all established and therefore, we are of the view that item Nos.4 to 6 and 9(a) to 9(e) in schedule 'C' property are also joint family properties

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and plaintiff and defendant Nos.2 and 4 to 7 are also entitled for a share in the said properties.

e) The finding recorded by the learned Judge that plaintiff and defendant Nos.4 to 7 are not entitled for a share in item Nos.4 and 9(a) to 9(e) of schedule ‘C’ is palpably erroneous. The clinching evidence on record clearly shows that defendant Nos.2 and 3 have utilized the joint family funds to purchase the properties. Item No.4 in schedule ‘C’ is purchased by defendant Nos.2 and 3 on 29.07.1982. The defendant Nos.2 and 3 have failed to produce clinching evidence that item No.4 bearing Sy.No.20 was purchased by them by their independent income. We have exhaustively dealt with the claim made by defendant No.3 in regard to his self acquisition. Item Nos.9(a) to 9(e) are purchased during the period 1990-92. We have also come to conclusion that though defendant No.3 walked out of the family, however, the document at Ex.D-245 and Ex.D-3 clearly establishes that defendant No.3 was also collecting 1/3rd share in the rents

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generated from item Nos.2 to 5 of schedule ‘B’ property. Therefore, item Nos.9(a) to 9(e) are to be regarded as joint family ancestral properties and therefore, plaintiff and defendant Nos.4 to 7 as well as defendant No.2 are entitled for equal share.

f) However, item No.1 in schedule ‘C’ was purchased in the name of wife of defendant No.3 on 22.10.2003. Therefore, since the wife of defendant No.3 is not party and since the sale deed is much subsequent to filing of the suit, this Court cannot examine the nature and character of item No.1 of schedule ‘C’ property without hearing the wife of defendant No.3. Similarly, item Nos.7 and 8 in schedule ‘C’ are not available for partition. Item No.7 of schedule ‘C’ is purchased by wife of defendant No.3 on 10.11.1994 which is after filing of the suit. Similarly, item No.8 is purchased by defendant No.3 under registered sale deed dated 10.06.1998 which is subsequent to filing of the suit.

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g) The defendant Nos.2 and 3 though have set up family settlement by contending that there was a partition in the year 1971 and plaintiff's sister namely Parvathamma, mother and the present plaintiff herein were allotted certain properties towards their legitimate share and therefore, they have relinquished their right, title and interest in the properties left behind by father of defendant No.2. But during trial neither defendant No.2 nor defendant No.3 has produced any clinching evidence indicating that plaintiff was allotted legitimate share in the alleged oral partition. On perusal of the material on record, we would find that that there is no serious contest during trial insofar as this contention is concerned. On the contrary, the defendants have taken a stand during trial that plaintiff having received her legitimate share in the suit schedule properties has not come forward to execute a registered release deed. Therefore, we are of the view that the contention taken by the defendant No.2 in paragraph 9 of the written statement in regard to alleged

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family settlement and contention taken by the defendant No.3 at paragraph 30 of the written statement is not substantiated. Therefore, this material aspect would clearly establish that plaintiff's sister was allotted share and therefore, she executed a release deed. However, there is no material on record indicating that plaintiff was also allotted share in the suit schedule properties. We would also find that there is absolutely no evidence indicating that the alleged family settlement was only in respect of properties covered under Ex.D-53 which is the estate duty assessment order. The failure on the part of defendant Nos.2 and 3 in substantiating their claim in regard to alleged family settlement in 1971 would also strengthen the existence of nucleus and the character of the properties which were held by the surviving brothers as co-parceners and not as tenants in common as alleged by defendant No.2.

h) The learned Judge has also not properly examined the pleadings of the parties to ascertain the character and nature

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of the suit schedule property. Ex.P-1 is a registered release deed executed by sister of the plaintiff and defendant Nos.2 and 3 clearly demonstrate that the properties are treated as a co-parcenary properties. To counter this document, defendant Nos.2, 3 and defendant Nos.4 to 7 have not at all lead in any rebuttal evidence and no explanation is forthcoming to discard the recitals in Ex.P-1. Therefore, the judgment so far as denying plaintiff's share in item Nos.4 to 6 and 9(a) to 9(e) in schedule 'C' property stands vitiated since it is based on distorted claim of evidence which is not based on legal evidence insofar as denying the share to the plaintiff in the properties held by the defendant No.3 and hence, we are of the view that there is no judicial consideration of evidence adduced by the plaintiff and also documents adduced by contesting defendants. Therefore, the regular first appeal filed by the plaintiff in RFA.No.158/2012 is partly allowed holding that she is entitled for a share in item Nos.4 to 6 and 9(a) to 9(e) in schedule 'C' property. Similarly, RFA.No.216/2012

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filed by defendant Nos.4 to 7 is partly allowed by holding that they are entitled for share in item Nos.4 to 6 and 9(a) to 9(e) in schedule 'C' property.

(i) The appeal filed by the plaintiff in RFA.No.158/2012 and the appeal filed by the defendant Nos.4 to 7 in RFA.No.216/2012 are partly allowed and the judgment and decree of the Trial Court passed in O.S.No.11112/1994 is partly modified by granting share to plaintiff and defendant Nos.4 to 7 in item Nos.4 to 6 and 9(a) to 9(e) in schedule ‘C’ properties. Plaintiff and defendant Nos.4 to 7 as well as defendant Nos.2 and 3 are entitled for 1/4th share in schedule ‘A’ property, item Nos.1 to 5 in schedule ‘B’ property and item Nos.2 to 5 and 9(a) to 9(e) in schedule ‘C’ property.

(ii) Insofar as properties standing in the name of defendant No.3’s wife and the properties purchased by the

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defendant No.3 after filing of the suit, site No.333 situated at 804, Koramangala standing in the name of daughter of defendant No.2 and item No.6 in schedule ‘B’ property i.e., Kanaka Kalyana Mantapa which is a trust property are not available for partition. Accordingly, claim of plaintiff and defendant Nos.4 to 7 is rejected.

(iii) RFA.No.164/2012 filed by defendant No.3 and RFA.No.124/2012 filed by defendant No.2 are dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

MBS/CA