Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7418 OF 2009
R.S. Anjayya Gupta ..…Appellant
Versus
Thippaiah Setty & Ors. ….Respondents
J U D G M E N T
A.M. Khanwilkar, J.
1. The present appeal takes exception to the judgment and
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decree of the High Court of Karnataka at Bangalore dated 7
September, 2004, in RFA No.456 of 2002, whereby the High
Court upheld the findings of the Trial Court, that the suit
properties described in Schedules A and B to the plaint were not
selfacquired by the appellant (defendant No.1) but, instead,
belonged to the Joint Hindu Family of which he was a member
and, therefore plaintiff and defendant Nos.1 and 2 were equally
Signature Not Verified
Digitally signed by
ARJUN BISHT
Date: 2019.07.01
16:11:47 IST
Reason:
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entitled to 5/12 share in all the suit properties and defendant
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No.3 (a) (b) and (c) each were entitled to 1/24 share in all the
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suit properties and thus the same could be partitioned and
distributed amongst the members of the said joint family. The
High Court, however, granted liberty to the appellant to approach
the Trial Court for an enquiry into the question whether the sale
of agricultural lands belonging to joint family would bind the
appellant (defendant No.1) and to pass another preliminary
decree, if necessary. The appellant has also assailed the
judgment of the High Court rejecting his review petition being
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R.P. No.567 of 2002 dated 27 September, 2006.
2. The parties to this appeal are the children of the original
defendant No.3patriarch of the family, Hanumanthaiah Setty.
The appellant is the eldest son, while respondent No.1 and
respondent No.2 are his younger brothers. Respondent Nos. 3 to
5 are the daughters of Hanumanthaiah Setty and thereby sisters
to the appellant and respondent Nos. 1 and 2. Respondent Nos. 3
to 5 came on record as the legal representatives of
Hanumanthaiah Setty after he passed away during the course of
the proceedings before the Trial Court.
3. This appeal has its origins in a suit for partition of certain
properties, being O.S. 1300 of 1982, filed by respondent No.1
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(original plaintiff) against the appellant (original defendant No.1),
respondent No.2 (original defendant No.2) and the original
defendant No.3 Hanumanthaiah Setty before the Court of the
XXXI Additional City Civil Judge at Bangalore. Respondent No.1,
claiming to be a member of a Joint Hindu Family comprising the
other parties to the suit, alleged that the scheduled suit
properties belonged to the said Joint Hindu Family since they
had been purchased by the original defendant No.3 father with
money from joint family funds. The crux of respondent No.1’s
plea was that the suit properties mentioned in Schedules A and B
to the plaint had been purchased ostensibly in the name of the
appellant since he was the seniormost member of the family
(after defendant No.3) and also the eldest son, however, in
actuality, the said properties belonged to the joint family.
Respondent No.1 also asserted that suit properties were in the
joint possession of the appellant, respondent No.2 and the
original defendant No.3 and that the appellant was attempting to
illegally dispose of the same and obstruct partition thereof, thus
necessitating the suit. Accordingly, respondent No. 1 sought a
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1/4 share in the suit properties and mesne profits in that
regard.
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The original defendant No.3 father supported the stand of
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the respondent No.1/original plaintiff, contending in his written
statement that the suit properties were purchased for and on
behalf of the joint family and were merely purchased in the name
of the appellant/original defendant No.1 since the original
defendant No.3 could not travel to Bangalore, where the
properties in question were situated, and since the appellant was
the eldest son and “worldlywise”. He denied that the suit
properties were selfacquired properties of the appellant and
submitted that the appellant was exploiting the fact that the
properties had been purchased in his name. He then submitted
that his children, namely the appellant and respondent Nos.1
and 2, had an equal share, right, title and interest in the suit
properties. Accordingly, the original defendant No.3 sought for a
partition of the suit properties amongst his children after making
provisions for respondent Nos.3 to 5 herein (who, at the time of
filing the said written submissions, were his unmarried
daughters and had not been impleaded as parties to the suit).
Respondent No. 2 (original defendant no.2) supported and echoed
the stance of respondent No.1 and the original defendant no.3.
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The appellant/original defendant No.1 in turn, denied that
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the properties set out in Schedules A and B to the plaint had
been purchased by family from joint family funds or that they
belonged to the Joint Hindu family and submitted that he was
the absolute owner thereof since he had purchased it out of his
own funds and through loans. The appellant submitted that he
had exclusive possession and enjoyment over the said properties
since the date of their purchase and there was no question of any
illegality in his dealings therewith. The appellant further
submitted that a shop being run by him, constructed on one of
the suit properties, had been sold by respondent No.2 and
original defendant No.3, and that he was entitled to the sale
consideration of the same. Additionally, the appellant was
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entitled to 1/4 share in certain other ancestral property of the
original defendant No.3 father. The appellant also filed an
additional written statement wherein he alleged that certain joint
family properties had intentionally been omitted from the plaint
for nefarious purposes.
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6. On the basis of the above pleadings, the Trial Court framed
the following issues:
“7. On the pleadings of the parties, the following issues have
been framed:
i. Whether the plaintiff and defendants are the members of
a Hindu Joint family?
ii. Whether the suit schedule properties have purchased by
defendant No.3 in the name of defendant No.1 from out
of the joint family funds?
iii. Whether the plaintiff is entitled for a share as claimed in
the plaint schedule properties?
iv. Whether the suit properties are self acquired properties
of defendant No.1?
v. What order or decree?
Adl. Issue No.2 A : Whether suit properties are joint
family properties of plaintiff and defendants?”
During the pendency of the matter, the original defendant
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No.3 expired and the present respondent Nos.3 to 5 daughters
were brought on record as his legal representatives. Thereafter,
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the Trial Court rendered its judgment dated 30 January, 2002,
wherein it found in favour of respondent No.1/original plaintiff
on all the issues. The Trial Court opined that the appellant had
not claimed any partition or separation from the joint family and
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infact, had pleaded for a 1/4 share in certain other ancestral
property of the original defendant No.3. This was sufficient to
establish that the parties viz the appellant (original defendant
No.1), respondent No.1 (original plaintiff), respondent No.2
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(original defendant No.2) and the original defendant No.3,
belonged to a Hindu Joint Family.
8. The Trial Court relied upon several judgments to opine that
once the acquisition of the suit properties from the nucleus of a
joint family had been admitted or proved, thereafter, property
acquired by any member of the joint family would be presumed to
be joint family property subject to the condition that the acquired
property had to be such that it could have been acquired only by
the aid of the family. It reasoned that after the acquisition of the
suit properties from the nucleus of a joint family had been
established, the burden of proof then shifted on to the person
who claimed that the property was selfacquired, to prove that
the property had been acquired without any aid from the family.
The Trial Court found that the evidence on record established the
existence of a joint family nucleus and thereafter, the
appellant/original defendant No.1 had failed to discharge the
burden that the suit schedule properties were selfacquired and
had also failed to prove that his business, from the proceeds of
which he claimed to have purchased the suit schedule properties,
was conducted without the aid of family funds.
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9. The Trial Court also rejected the appellant’s contention that
he was the sole owner of the schedule suit properties by relying
upon the evidence of DW3 advocate. DW3 had deposed that he
advised the original defendant no.3 to purchase the said
properties in the name of the appellant since the original
defendant No.3 was aged and resided in the village, and since the
parties were living as members of an undivided joint family. The
Trial Court also relied upon evidence which showed that the
original defendant No.3 had taken out loans and paid interest in
that regard, for some of the schedule suit properties. The Trial
Court reasoned that if the appellant was indeed the absolute and
independent owner of the properties, then there was no reason
for the original defendant No.3 to make any payments for the
said properties. Additionally, evidence on record established that
various rent receipts for the businesses being run on the
scheduled properties had been issued in the name of the father of
plaintiff (original defendant No.3) and appellant original
defendant No.1, thus proving that they were engaged in joint
family businesses and not independently run by the appellant.
The Trial Court also noted that the appellant had failed to explain
as to why the original defendant No.3 had sided with the stance
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taken by the other respondents and not with the appellant. These
factors established that the suit scheduled properties belonged to
the joint family, rather than the appellant. Additionally, the
properties in Schedule C to the plaint were admittedly joint
family properties.
10. The Trial Court also found that the village panchayat had
already effected a prior partition of certain properties, including
those set out in Schedules A and B to the suit, between the
parties, which indicated that such properties belonged to the
joint family. On the basis of the aforesaid findings, the Trial
Court ordered that the suit schedule properties be partitioned
amongst the parties, with the appellant, respondent No.1 and
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respondent No.2 each getting 5/12 share and respondent Nos.3
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to 5 getting remaining 1/12 share in the suit schedule
properties. The Trial Court also ordered an enquiry into the
mesne profits payable to respondent No.1.
11. Aggrieved by the decision of the Trial Court, the appellant
preferred an appeal to the High Court of Karnataka being RFA
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No. 456 of 2002. In its judgment dated 7 September, 2004, the
High Court recorded that the contest was only in regard to the
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properties set out in Schedules A and B to the plaint and
accordingly, upheld the findings of the Trial Court in that regard.
The High Court noted the submissions of the plaintiff that
although the properties had been purchased in the name of the
appellant, the said purchases were done during the continuation
of the joint family status. The properties had been purchased
with the help of loans and the interest on the same was,
admittedly, being serviced by the original defendant No.3 and not
by the appellant. The license of the business being conducted on
the suit schedule property was in the name of respondent No.2,
and the lease was taken in the name of the original defendant
No.3, while the appellant was merely managing the business. The
purported businesses of the appellant were infact jointly
conducted by all the parties and the appellant had failed to
establish either that he had any independent business or that he
had purchased the suit schedule properties without the aid of
family funds. The High Court then went on to conclude that the
findings of the Trial Court were just and proper and thus rejected
the appellant’s contentions, although it allowed the appellant to
approach the Trial Court for an inquiry as to whether the sale of
agricultural land by the other parties would bind the appellant
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and to pass another preliminary decree in that regard, if
necessary.
12. Thereafter, the appellant preferred a review petition before
the same High Court being R.P. No. 567 of 2005. The said review
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petition was dismissed on 27 September, 2006. Hence, the
present appeal.
We have heard Mr. Shailesh Madiyal, counsel for the
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appellant. The main contention of Mr. Madiyal is that the High
Court dismissed the first appeal cursorily without discussing or
considering the documentary or oral evidence produced by the
parties. Further, the plaintiff had failed to plead and also to prove
that the joint family was in possession of a nucleus and which
was adequate to fund the purchase of properties at schedule ‘A’ &
‘B’ respectively. Hence, no presumption of jointness of the said
property can be drawn in this case. It is then urged that both the
courts have failed to consider crucial evidence which established
that the appellant had paid for the purchase of the schedule suit
properties with his own, personal funds and hence, was the
absolute owner thereof. He also contends that the Trial Court
grievously erred in putting the burden of establishing the
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existence and adequacy of such a nucleus on the
appellant/original defendant No.1 and the High Court ought not
to have supported such an approach. Mr. Madiyal refers to the
judgments of
C. Venkata Swamy Vs. H.N. Shivanna (Dead) by
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Legal Representative & Anr. , Madhukar & Ors. Vs.
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,
Sangram & Ors. Mudi Gowda Gowdappa Sankh Vs. Ram
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Chandra Ravagowda Sankh , G. Narayana Raju (dead) by
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and
his Legal Representative Vs. G. Chamaraju & Ors.
Appasaheb Peerappa Chamdgade Vs. Devendra Peerappa
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Chamdgade and Ors. to buttress his submissions.
14. We have also heard Mr. Raghavendra Srivatsa, counsel for
respondent No.1 (plaintiff), who argues that the evidence on
record shows that the members of the family were living as an
undivided joint family and that the schedule suit properties were
purchased in the name of the appellant on legal advice but infact
the consideration amount was paid from the joint family funds.
He then contends that it is settled law that once admitted or
1 (2018) 1 SCC 604 (paragraph nos.1011, 1318)
2 (2001) 4 SCC 756 (paragraph no.5)
3 (1969) 1 SCC 386 (paragraph no.6)
4 AIR 1968 SC 1276 (paragraph no.3)
5 (2007) 1 SCC 521 (paragraph nos.1217)
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proved that there was a sufficient joint family nucleus out of
which the properties could be acquired, thereafter, the
presumption would arise that the properties are joint family
properties. It is then for the opposing party, in this case, the
appellant, to prove that he had acquired the properties out of his
own funds. In the present case, the business conducted from the
schedule suit properties were clearly established as joint family
business being run by the family members and acquired out of
joint family funds. The appellant failed to impeach the evidence
given by respondent No.1/plaintiff and the existence of the joint
family nucleus had been proved by the respondent No.1/original
plaintiff and admitted by the appellant/original defendant No.1.
15. The respondents have relied on Appasaheb Peerappa
(supra) in support of the submission that when it is
Chamdgade
proved or admitted that a family possessed sufficient nucleus
with the aid of which the member might have made the
acquisition, the law raises a presumption that it is a joint family
property and the onus is shifted to the individual member to
establish that the property was acquired by him without the aid
of the said nucleus. Additionally, reliance is placed on
V.D.
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Dhanwatey Vs. Commissioner of Income Tax, M.P., Nagpur
for the same proposition. While, refuting the argument that the
High Court cursorily dismissed the first appeal without adverting
to the relevant points and evidence on record, it is urged by the
respondents that the High Court after noticing the relevant
aspects was pleased to uphold the finding of fact recorded by the
Trial Court being convinced that the same was just and proper. It
was unnecessary for the High Court to restate the effect of the
evidence or reiterate the reasons given by the Trial Court as
observed by a three judge Bench in the case of
Santosh Hazari
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Vs. Purushottam Tiwari and U. Manjunath Rao Vs. U.
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.
Chandrashekar and Another
16. After cogitating over the rival submissions made during the
elaborate arguments by the respective counsel and who had
invited our attention to the pleadings and evidence on record, we
deem it to appropriate to relegate the parties before the High
Court for consideration of the first appeal afresh. We say so for
more than one reason. The first is that, the High Court has
disposed of the first appeal by a cryptic judgment. For, the first
6
(1968) 2 SCR 62(paragraph nos.4 and 5)
7 (2001) 3 SCC 179 (paragraph no.15)
8 (2017) 15 SCC 309
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five paragraphs of the impugned judgment are only reproduction
of the submissions made by the counsel for the concerned
parties. After doing so, in paragraph no.6 of the impugned
judgment, the High Court straightaway proceeded to affirm the
opinion of the Trial Court that the suit properties forming part of
Schedule A and Schedule B to the plaint, are the joint family
properties. It is apposite to reproduce paragraph nos.6 and 7,
whereby the first appeal has been disposed of. The same read
thus:
“6. I find no merit in the appeal in so for as A and B
schedule propertied are concerned. The opinion of the
trial court that they are the joint family propertied is
sound and proper. But in respect of the sales of
agricultural lands made by the defendants No and 3 and
plaintiff. I feel that the appellant can make another
application before the trial court for an enquiry to find out
whether the impugned sales would bind the appellant. To
that extent, the appellant can pursue his remedy for
another preliminary decree before the trial court.
7. In so far as A and B schedule propertied are
concerned the finding of the trial court is sound and
proper, Accordingly, the appeal is disposed of.”
17. In a recent decision of this Court in U. Manjunath Rao
(supra), the Court after adverting to (supra),
Santosh Hazari
Sarju Pershad Ramdeo Sahu Vs. Jwaleshwari Pratap Narain
16
9
Singh and Ors. , Madhukar (supra), H.K.N. Swami Vs. Irshad
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and
Basith (Dead) by LRs. State Bank of India and Another
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Vs. Emmsons International Limited and Another went on to
observe thus:
“11. ……………Thus, in the first appeal the parties
have the right to be heard both on the questions of facts as
well as on law and the first appellate court is required to
address itself to all the aspects and decide the case by
ascribing reasons.
12. In this context, we may usefully refer to Order 41
Rule 31 CPC which reads as follows:
“ ORDER 41
APPEALS FROM ORIGINAL DECREES
*
31.
Contents, date and signature of
.—The judgment of the appellate
judgment
court shall be in writing and shall state—
( a ) the points for determination;
( b ) the decision thereon;
( c ) the reasons for the decision; and
( d ) where the decree appealed from is
reversed or varied, the relief to which the
appellant is entitled,
and shall at the time that it is pronounced be
signed and dated by the Judge or by the
Judges concurring therein.”
13. On a perusal of the said Rule, it is quite clear that
the judgment of the appellate court has to state the
reasons for the decision. It is necessary to make it clear
that the approach of the first appellate court while
9
AIR 1951 SC 120 (paragraph no.15)
10 (2005) 10 SCC 243 (paragraph no.3)
11 (2011) 12 SCC 174
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affirming the judgment of the trial court and reversing
the same is founded on different parameters as per the
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judgments of this Court. In Girijanandini Devi , the
Court ruled that while agreeing with the view of the trial
court on the evidence, it is not necessary to restate the
effect of the evidence or reiterate the reasons given by the
trial court. Expression of general agreement with reasons
given in the trial court judgment which is under appeal
should ordinarily suffice. The same has been accepted by
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another threeJudge Bench in Santosh Hazari .
However, while stating the law, the Court has opined that
expression of general agreement with the findings
recorded in the judgment under appeal should not be a
device or camouflage to be adopted by the appellate court
for shirking the duty cast on it. We are disposed to think,
the expression of the said opinion has to be understood
in proper perspective. By no stretch of imagination it can
be stated that the first appellate court can quote
passages from the trial court judgment and thereafter
pen few lines and express the view that there is no
reason to differ with the trial court judgment. That is not
the statement of law expressed by the Court. The
statement of law made in Santosh Hazari has to be borne
in mind.
14. In this regard, a threeJudge Bench decision in Asha
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Devi v. Dukhi Sao is worthy of noticing, although the
context was different. In the said case, the question arose
with regard to power of the Division Bench hearing a
letters patent appeal from the judgment of the Single
Judge in a first appeal. The Court held that the letters
patent appeal lies both on questions of fact and law. The
purpose of referring to the said decision is only to show
that when the letters patent appeal did lie, it was not
restricted to the questions of law. The appellant could
raise issues pertaining to facts and appreciation of
evidence. This is indicative of the fact that the first
appellate court has a defined role and its judgment
should show application of mind and reflect the reasons
on the basis of which it agrees with the trial court. There
has to be an “expression of opinion” in the proper sense
of the said phrase. It cannot be said that mere
concurrence meets the requirement of law. Needless to
say, it is one thing to state that the appeal is without any
substance and it is another thing to elucidate, analyse
12
AIR 1967 SC 1124
13 (2001) 3 SCC 179
14 (1974) 2 SCC 492
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and arrive at the conclusion that the appeal is devoid of
merit.”
In another recent decision in (supra), once
C. Venkata Swamy
again this Court reiterated the settled legal position regarding the
purport of power of the appellate court coupled with its duty,
under Section 96 of the Code, while deciding the first appeal, by
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adverting to decisions in ,
Kurian Chacko Vs. Varkey Ouseph
Santosh Hazari (supra), H.K.N. Swami (supra), Jagannath Vs.
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,
Arulappa and Another B.V. Nagesh and Another Vs. H.V.
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Sreenivasa Murthy , S.B.I. (supra) and Union of India Vs.
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. The court, even in this reported
K.V. Lakshman and Others
case relegated the parties before the High Court for
reconsideration of the first appeal afresh.
18. We are conscious of the fact that in the present case the
suit came to be filed by the respondent No.1 as back as in 1982
and that the present appeal has remained pending in this Court
from 2009, against the impugned judgment of the High Court.
We, at one stage were persuaded to consider and examine the
15 AIR 1969 Kerala 316
16
(2005) 12 SCC 303 (paragraph no.2)
17 (2010) 13 SCC 530 (paragraph nos.3 and 5)
18 (2016) 13 SCC 124
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matter on its own merits instead of relegating the parties before
the High Court. But, it is noticed that the appellant has raised
formidable issues on facts as well as on law which ought to
receive proper attention of the High Court, in the first instance in
exercise of powers under Section 96 of CPC. Additionally, the
High Court will have to address the grievance of the appellant
that some of the documents, which in the opinion of the
appellant are crucial have not been even exhibited although the
same were submitted during the trial, as noted in the written
submissions filed by the appellant. Therefore, we do not wish to
deviate from the consistent approach of this Court in the reported
cases that the first appellate court must analyse the entire
evidence produced by the concerned parties and express its
opinion in the proper sense of the jurisdiction vested in it and by
elucidating, analysing and arriving at the conclusion that the
appeal is devoid of merit.
19. We refrain from analysing the pleadings and the evidence in
the form of exhibited documents and including the nonexhibited
documents and expect the High Court to do the same and arrive
at conclusions as may be permissible in law. In other words, we
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should not be understood to have expressed any opinion either
way on the merits of the controversy. The High Court shall decide
the first appeal uninfluenced by any observation made in the
impugned judgment. As the remanded first appeal pertains to
year 2002, we request the High Court to dispose of the same
expeditiously.
The appeals are accordingly allowed. The impugned
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judgment and decree and orders dated 7 September, 2004 and
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27 September, 2006 respectively, passed by the High Court of
Karnataka at Bangalore are setaside and instead remand the
RFA No.456 of 2002 to the High Court with the aforementioned
directions. No order as to costs. All pending applications are
disposed of.
……………………………..J
(A.M. Khanwilkar)
……………………………..J
(Ajay Rastogi)
New Delhi;
July 01, 2019.