SMT USHA N SWAMY vs SRI M VENKATASWAMY
- Court
- Karnataka High Court
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RFA No. 1568 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
®
TH
DATED THIS THE 16 DAY OF JUNE, 2026
PRESENT
THE HON'BLE MR. JUSTICE D K SINGH
AND
THE HON'BLE MR. JUSTICE T.M.NADAF
REGULAR FIRST APPEAL NO. 1568 OF 2018 (PAR)
BETWEEN:
1. SMT USHA N SWAMY
W/O DR JAVARAIAH N SWAMY,
D/O M VENKATASWAMY,
R/AT NO.1493,TOMLIN DRIVE,
BURR RIDGE, LLINOIS-60527
UNITED STATES OF AMERICA
AND PRESENTLY AT
2240, LAKE RIDGE DR. BELMONT,
NC28012-9592, USA
…APPELLANT
(BY SRI. S.SREEVATSA, SENIOR ADVOCATE FOR
SRI. KRISHNAMURTHY K R., ADVOCATE)
AND:
1. SRI M VENKATASWAMY
S/O LATE MUNIYAPPA,
TH
R/AT NO.205,7 MAIN ROAD,
IV BLOCK, JAYANAGAR,
BANGALORE-560 011
(DIED ON 23.11.2020)
2. SMT JAYAMMA
W/O M VENKATASWAMY,
AGED ABOUT 75 YEARS,
R/AT NO.205, 7TH MAIN ROAD,
IV BLOCK, JAYANAGAR,
BANGALORE-560 011
Digitally
signed by
VASANTHA
KUMARY B K
Location:
HIGH
COURT OF
KARNATAKA
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RFA No. 1568 of 2018
3. SHYLA VENKATA SWAMY
@ SHYLA PRASAD VENKATASWAMY
W/O ANAND PRASAD,
AGED ABOUT 51 YEARS,
R/AT PACIFIC COAST HIGHWAY
NO.432,TORRANCE
CA 90505, USA
ALSO AT:
NO.28253, LOBROCK
DR RANCHO PALOS VERDES
CA 90275,USA
4. SMT. ROOPASRI,
D/O LATE SRI.M.VENKATASWAMY,
AGED ABOUT 51 YEARS,
TH
R/AT No.205, 7 MAIN,
TH
4 BLOCK, JAYANAGAR,
BENGALURU-560 011
(ARRAYED AS A PARTY, AS PER
THE ORDER OF THIS HON'BLE
COURT DATE 19.02.2021)
…RESPONDENTS
(BY SRI. B.N.PRAKASH., ADVOCATE FOR R1 & R3;
R2 DEAD,
SRI. SUBRAMANYA.R, ADVOCATE FOR IMPLEADING R4)
THIS RFA IS FILED UNDER SECTION 96 ORDER XLI RULE
1 OF CPC 1908, AGAINST THE JUDGMENT AND DECREE DATED
13.04.2018 PASSED IN OS NO.703/2014 ON THE FILE OF THE
XXXV ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU
DISMISSING THE SUIT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 30.04.2026, COMING ON FOR
PRONOUNCEMENT THIS DAY, HON'BLE MR. JUSTICE
D K SINGH PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE D K SINGH
and
HON'BLE MR. JUSTICE T.M.NADAF
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RFA No. 1568 of 2018
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE D K SINGH)
PREFACE:
T he present regular first appeal has been filed under
Section 96 r/w Order XLI Rule 1 of the Code of Procedure
1908 (for short 'the CPC' ) impugning the judgment and
decree dated 13.04.2018 passed by the XXXV Addl.City
Civil and Sessions Judge, Bengaluru, in O.S.No.703/2014
instituted by the appellant/plaintiff.
2. The defendant Nos.1 and 2 are the parents of the
plaintiff and defendant No.3 is the sister of the plaintiff.
Plaintiff had filed the suit for partition of the suit schedule
properties by metes and bounds among the plaintiff and
defendant Nos.1 to 3 and to allot equal share to the
plaintiff in Schedule 'A' and 'B' properties and such of
those properties movable and immovable including family
jewelry, Bank deposits, Share Investments, Debentures
which are alleged to be the joint family properties of the
defendant Nos.1 and 2 (parents) and to put the plaintiff in
lawful possession of the allotted share.
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BRIEF FACTS :
3. Plaintiff got married to Doctor Javaraiah N. Swamy
in the year 1979 and started living with her husband in
USA, since the date of her marriage. The plaintiff filed a
suit alleging that while she was residing in USA, without
her knowledge, 10 acres of land in old Survey No.16/2 and
new Survey No.16/6, which was joint family property
belonging to all the coparceners had been sold to one
M. Narayanaswamy, son of late Muniyappa vide sale deed
dated 19.12.2011. Further, she stated that schedule 'A'
property was an ancestral property fallen to the share of
her father and his name got recorded as Khatedar from
the year 1982 to 2013. The parents i.e., defendants Nos.
1 and 2 had generated wealth after getting the quarrying
license from the State of Karnataka on the said land and
have been beneficiary of windfall of money, which flowed
of resorting to quarrying in the schedule 'A' property. Out
of the income generated by quarrying stone, from the
schedule 'A' property, the defendants had purchased the
'B' schedule property.
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4. It was further stated that defendant No.1, the father
had inherited an agricultural land bearing survey
No.138/13, situated at Badavanavrathna Kavalu, Kengeri,
Hobli, Bangalore South Taluk, which is described as
schedule 'C' property as well as inherited schedule 'D'
property. Defendant No.1 (father) had been enjoying the
property on his own. The entire earnings of bank balance,
fixed deposit lying in the names of defendant No.1 and 2
were built up over the period of time from the income and
proceeds received from the inherited family properties.
Therefore, the plaintiff would be entitled for her share in
those properties.
5. The defendants filed their written statement denying
the averments stated in the suit. Defendant No.1
specifically stated that 'A' and 'B' schedule properties were
not joint family properties as claimed by the plaintiff. The
schedule 'A' property was the absolute property of
defendant No.1 and therefore, the relief of partition would
not be maintainable. It was denied that 10 acres of land
in Survey No.16/6 was an undivided property belonging to
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all coparceners as per the family tree. It was further
stated that the land bearing Survey No.16 was a property
acquired by the defendant No.1 was not an ancestral
property or a Hindu Undivided Family property. The
defendant Nos.1 and 2 had purchased properties in the
City of Bangalore. One such property was 'B' schedule
property. The properties in hands of defendants No.1 and
2 are their individual/separate properties and plaintiff has
no semblance of right to seek partition as such, the suit
filed for partition itself is not maintainable and accordingly,
sought to dismiss the suit.
ISSUES FRAMED BY THE TRIAL COURT:
6. On the basis of the pleadings of the parties, the Trial
Court framed the following issues for determination:-
"1. Whether the plaintiff proves that the
suit schedule property 'A', 'C' and 'D'
properties are inherited by her father?
2. Whether the plaintiff proves that the
suit schedule 'B' property is purchased
from the profits received from the other
Hindu Undivided Family Properties and
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available for partition amongst the
members of the Hindu Undivided
Family?
3. Whether the plaintiff being member of
Hindu Undivided Family is entitled to
partition of her equal share over the
suit schedule properties by metes and
bounds against the defendants?
4. Is it just and necessary to hold an
enquiry with regard to mesne profits in
respect of the entire joint family
properties standing in the name of
defendants 1 and 2 and to grant equal
share to the plaintiff?
5. Whether the suit of the plaintiff is bad
nd
for mis-joinder of 2 defendant to this
suit?
6. Whether the plaintiff is entitled to
reserve her liberty to bring into ambit
of this suit of the properties inherited
by the defendant No.2 to which the
plaintiff is entitled for an equal share?
7. Whether the plaintiff is entitled to be
compensated by the defendants for
having sold/deprived any property, gold
jewellery, bank balances as sought
against the defendants?
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RFA No. 1568 of 2018
8. What order or decree?"
7. The plaintiff in order to prove her case got examined
herself as PW1 and one M. Narayan Swamy was examined
as PW2 and got marked the documentary evidence
Exhibits P1 to Exhibit P71 in support of the case. The
defendants neither led any oral evidence nor produced any
evidence on their behalf.
FINDINGS OF TRIAL COURT ON THE AFORESAID
ISSUES:
RE: ISSUE Nos.1 AND 2:
8. In respect of issue Nos.1 and 2, the Trial Court held
that the plaint schedule property bearing No.16/2
measures 41 acres 20 guntas was in possession and
enjoyment of defendant No.1 as it was allotted to him
under a partition with his father. The Trial Court, at
Paragraph No.17 of its impugned Judgment, has held that
the plaintiff despite stating that property has been
acquired by her father under partition, but has failed to
produce the same, even for collateral purpose and in view
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of admissions of PW.2 that property at Sy.No.16/2 having
an extent 107 Acres purchased by his father (father of
PW.2). Schedule 'B' Property was not purchased by
defendant No.1, but plaintiff's grandfather had given it to
the plaintiff and defendant No.3, while they were minors.
Thus issue No.1 was decided in the 'affirmative' and issue
No.2 in the 'negative'.
RE: ISSUE No.3:
9. It has been held by the trial Court that ‘Properties’
claimed by the plaintiff for partition are the absolute
properties of defendant No.1, which were acquired by him
during his lifetime. Therefore, the plaintiff could not claim
right for allotment of share from the defendant Nos.1 and
2 and therefore, the said issue was decided in the
'negative'. The Trial Court also held that defendant No.2
was not a necessary and proper party inasmuch as she is
only the wife of the defendant No. 1. Therefore, the Trial
held that the suit filed against her was improper for
misjoinder.
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RFA No. 1568 of 2018
RE: ISSUE No.4:
10. So far as Issue No. 4 is concerned, trial Court has
held in view of the findings on Issue Nos.1, 2, 3 and 5 the
question of enquiry for mesne profit would not arise when
the plaintiff has been held not to be entitled for partition.
RE: ISSUE Nos.6 AND 7:
11. The Trial Court has held that no question arises to
compensate the plaintiff by the defendants for having sold
gold jewelry, bank balance etc. In respect of Issue No. 6,
it has been held that succession to the property has not
been accrued during the lifetime of the father of the
plaintiff and therefore, there would be no question of
reserving her liberty to bring this aspect into the ambit of
the suit. There is no right to the plaintiff to seek for
partition at this stage and this issue is also decided in the
'negative'. In view of the aforesaid, the suit has been
dismissed.
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RFA No. 1568 of 2018
POINT FOR CONSIDERATION:
12. The only point which arises for consideration in this
appeal is;
"Whether schedule 'A', 'C' and 'D' are self
acquired properties of her father/defendant No.1
or he had inherited those properties from his
ancestors and therefore, they were the joint
Hindu family properties?"
SUBMISSIONS ON BEHALF OF THE APPELLANT/
PLAINTIFF:
13. The learned counsel for the appellant/plaintiff has
submitted that issue No.1 as framed by the Trial Court,
i.e., " Whether the plaintiff proves that the suit schedule
properties A, C, and D are inherited by her father?" is
wholly misconceived. Neither of the parties denied that
these properties were inherited from the father of
defendant No.1. What was in dispute between the plaintiff
and defendant No.1 was the character of the suit schedule
properties and no issue was framed by the Trial Court
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regarding the character of the suit schedule properties and
therefore, the Trial Court had committed a grave error
which has led to the miscarriage of justice.
14. The plaintiff was never given an opportunity to
prove the character of the suit schedule properties on
account of framing of wrong issue. The appellant/ plaintiff
had duly discharged the burden cast on her in respect of
Issue No.1. Yet the Trial Court had decided the case
against the appellant/plaintiff by dismissing the suit.
When the Trial Court had categorically held Issue No. 1 in
the 'Affirmative' by concluding that suit schedule
properties 'A', 'C' and 'D' properties were inherited by the
father of the plaintiff i.e., defendant No.1, the Trial Court
had committed a grave error in holding that the said
properties were the absolute properties of defendant
No.1. The said finding itself is contradictory to the settled
principles of Hindu law governing ancestral property. Once
it is established that the properties were inherited from
the parental ancestors of defendant No.1, the same
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necessarily partake the character of ancestral/joint Hindu
property in the hands of the successor.
15. The submission is that the Trial Court had misled
itself in law by holding that the property acquired by a
person in partition would become his separate property.
The property inherited by defendant No.1, who in turn had
acquired it from his father retained the character of
ancestral property in the hands of defendant No.1. Hence,
defendant No.1 could not have become the absolute
owner, but as Kartha of the Hindu undivided family,
because the plaintiff being the daughter of the defendant
No.1, has right by birth in the suit schedule properties.
16. Sri S. Sreevatsa , learned Senior counsel appearing
for the appellant has further submitted that reliance is
placed by the Trial Court on the decision in MRS. MALIKA
AND OTHERS Vs. MR. CHANDRAPPA AND OTHERS
[2007 SCC ONLINE KAR 15] is wholly misplaced and
distinguishable on facts. The High Court was dealing with
a situation where there was severance of joint family
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status and the properties devolved under Section 8 of the
Hindu Succession Act, 1956. However, in the present
case, evidence on record would establish that the suit
schedule properties were inherited from the grandfather
and therefore, would continue to remain within the joint
family. The said decision would not have any application to
the facts of the present case.
17. It is further submitted that PW.2, who is none other
than the brother of the defendant No.1, clearly deposed
that the properties were partitioned in the year 1969
between the family members and the suit schedule A and
C properties fell to the share of the defendant No.1 from
his father. This clearly establishes the ancestral nature of
the properties and this aspect has been completely
overlooked by the Trial Court.
18. It is further submitted that the Trial Court has
ignored the amended provisions of Section 6 of the Hindu
Succession Act, 1956. As per the amendment, the
daughter is a coparcener by birth in her own right in the
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same manner as a son and is entitled to claim partition
and separate possession of her share in the ancestral
property, as held in VINEETA SHARMA VS. RAKESH
SHARMA [(2020) 9 SCC 1].
19. The defendant despite filing written statement
neither stepped into the witness box nor produced any
documentary evidence to substantiate their contentions
and if a party fails to lead evidence in support of pleading,
an adverse inference is liable to be drawn against such
party. The learned Trial Court has failed to consider this
vital aspect and has erroneously treated the findings and
statements as evidence, which is impermissible in law.
The learned counsel for the appellant has placed reliance
on VIDHYADHAR VS. MANIKRAO AND ANOTHER [AIR
1999 SC 1441] to support his submission.
20. Learned counsel for the appellant has further
submitted the oral evidence of PWs1 and PW2 coupled
with the documentary evidence marked as Exs.P1 to P71
would establish the case of the plaintiff that the suit
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schedule properties are ancestral properties and thus she
would be entitled to an equal share therein.
21. It has been therefore submitted that the plaintiff is
entitled to 1/4 share in suit schedule 'A' and 'C' properties
being one of the coparceners along with defendant No.1
and other members of the family. So far as the suit
schedule 'B' property is concerned, the evidence on record
establish that the same was gifted in favour of the plaintiff
and defendant No.3 and therefore plaintiff entitled to 50%
share in the said property.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS/
DEFENDANTS:
22. It has been submitted on behalf of the respondents
that defendant No. 1 had acquired the land bearing Survey
No.16 measuring 46 acres of Kannayyana Agrahara Village
Jigani Hobli, Anekal Taluk, Bangalore South, under the
Family settlement and therefore, the contention on behalf
of the plaintiff/appellant that defendant No.1 had acquired
the land bearing survey No.16/2 measuring 46 acres
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under the family settlement and therefore, the plaintiff
would be entitled to a share, is wholly untenable. No
documents were produced to show that the schedule 'A'
property was an ancestral property. Only records of rights
were produced. As per the record of rights produced,
schedule 'A' property was purchased by Sri Muniyappa, the
father of the defendant No.1 and PW2. Then it has come
to Mr.M. Venkataswamy, M. Narayanaswamy and
M. Jayamma (who is the sister of defendant No.1 and
PW2). As per the RTC the total extent of land in Survey
No. 16/2 was 107 acres. RTC (Ex.P9) for the period 1984
to 1985 would show that defendant No.1 got 46 acres,
M Narayanaswamy got 51 acres and Jayamma got 10
acres. Jayamma is the sister of defendant No.1 and PW.2
M. Narayanaswamy.
23. From the aforesaid documents, it is clear that
Muniyappa had purchased the said lands and it was
divided amongst defendant No.1, his brother and sister
and therefore, the same cannot be treated as an ancestral
property nor joint family property. PW.2, the brother of
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the defendant No.1 would admit in his evidence that the
schedule 'A' property was absolute property of defendant
No.1, wherein he has said that "the said Survey No.16/ 2
was purchased by my father. It is true to suggest that the
st
suit schedule 'A' property is the absolute property of 1
defendant. No evidence was produced to show that the
suit schedule 'A' property was an ancestral property or the
same was purchased from the ancestral nucleus. No
evidence was adduced to show that Muniyappa, the father
of defendant No.1 had any properties inherited from his
ancestors, nor any evidence was produced to show that
their ancestral nucleus was used to purchase schedule 'A'
property. No document was produced to show that
schedule 'B', 'C' and 'D' properties are the ancestral
properties on which the plaintiff can seek partition against
the father.
ANALYSIS AND CONCLUSION:
24. It would be apposite to note the family tree (Ex.P1),
which is provided as hereunder;
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The parties trace their lineage to late Muniyappa, who is
the father of Sri M. Venkataswamy (defendant No.1) and
the Grandfather of the Plaintiff and Respondent No. 3.
Sri M. Venkataswamy (defendant No.1) is the son of late
Muniyappa, Defendant No.2-Smt. Jayamma is the wife of
defendant No.1. The plaintiff-Smt. Usha N. Swamy and
defendant No.3-Smt. Shyla Venkataswamy are the
daughters of defendant Nos.1 and 2. During the pendency
of the proceedings, Smt. Roopasri, another daughter of
late M. Venkataswamy, is impleaded as respondent No.4.
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25. The suit pertains to four schedule properties, which
are hereunder;
Schedule 'A' property
agricultural land comprised in Survey
No.16/2 (subsequently Survey No.16/6)
situated at Kannayana Agrahara Village,
Jigani Hobli, Anekal Taluk, Bengaluru
South.
Schedule 'B' property
Site 841/C, 37th F Cross, 4th T block,
Jayanagar, Bengaluru
Schedule 'C' property
Agricultural land bearing Survey No.138/13
situated at Badavanavrathna Kavalu,
Kengeri Hobli, Bengaluru South Taluk.
Schedule 'D' property
No.60, Pattabhirama Nagar, Jayanagar 4th
Block, Bengaluru, bearing Old Municipal
No.205 and New Municipal No.89.
26. The submission of the respondent is that once the
plaintiff has failed to prove that the Schedule 'A', 'C' and
'D' were the ancestral properties, there was no question of
said properties being the joint Hindu family property
available for partition among the coparceners. Therefore,
the trial Court has rightly dismissed the suit.
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27. The essence of a coparcenery under the Mitakshara
law is unity of ownership. There has to be a community of
interest and unity of possession between all the members
of the family, and upon the death of any one of them, the
others may well take by survivorship that in which they
had during the deceased's lifetime a common interest and
a common possession as held in TIKAIT HARGOBIND
PRASAD SINGH Vs. SRIMATYA PHALDANI KUMARI
[AIR 1952 SC 38].
28. In the case of C. L. ARUNACHALA MUDALIAR
VERSUS C. A. MURUGATHNA MUDALIAR AND
ANOTHER [(1953)2 SCC 362] , the Supreme Court held
that a Mitakshara father has full powers of disposition over
his self-acquired property and that property received by a
son under a gift or testamentary bequest from his father
does not, merely by reason of such receipt, become
ancestral property in the hands of the son. The Court
further held that the nature of the interest taken by the
donee or legatee depends upon the intention of the donor
or testator gathered from the document and surrounding
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circumstances. Where the property is conferred upon the
son for his exclusive benefit, it remains his separate/self-
acquired property and his descendants do not acquire any
right therein by birth.
29. After the enactment of Hindu Succession Act, 1956,
the devolution of interest in coparcenery property is
governed as per the provisions of the said Act. Section 8
provides the general rules of succession in case of males,
which reads as under:-
" 8. General rules of succession in the case of
males.― The property of a male Hindu dying
intestate shall devolve according to the provisions
of this Chapter:―
(a) firstly, upon the heirs, being the relatives
specified in class I of the Schedule;
(b) secondly, if there is no heir of class I, then
upon the heirs, being the relatives specified in class
II of the Schedule;
(c) thirdly, if there is no heir of any of the two
classes, then upon the agnates of the deceased;
and
(d) lastly, if there is no agnate, then upon the
cognates of the deceased. "
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The order of succession among the heirs in the schedule is
provided in Section 9 i.e,. Class I shall take simultaneously
and to the exclusion of all other heirs, those in the first
entry in Class II shall be preferred to those in second
entry; those in second entry shall be preferred to those in
third entry and so on in succession.
30. Section 6 of the Act is in respect of devolution of
interest in coparcenery property, which stands amended
with effect from 09.09.2005 and provides that in a joint
Hindu family governed by Mitakshara Law, the daughter of
a coparcener becomes a coparcener in her own right by
birth in the same manner as the son and will have the
same rights in the coparcenery properties as that of the
son.
31. It is further provided that where a Hindu dies after
commencement of Hindu Succession (Amendment) Act
2005, his interest in the property of the joint Hindu family
governed by Mithakshara Law, will devolve by
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testamentary or intestate succession, as the case may be,
under the said Act and not by survivorship.
32. Thus if a property is joint Hindu family property,
then only a coparcener shall acquire the right by birth and
not otherwise. If the property is self acquired property of
a member of the family, it would not be treated as joint
hindu family property and the question of interest of a
family member in that property as a coparcener does not
arise.
33. In the present case, Grandfather of the
appellant/plaintiff had acquired 107 acres of land in
Survey No.16/2 situated at Kannayana Agrahara Village,
Jigani Hobli, Anekal Taluk, Bangalore South.
34. PW.2 in Paragraph 2 of the Examination-in-Chief
states that "Suit 'A' schedule property in a partition came
to the share of myself, my father, my brother and my
sister. The total extent of suit Survey No.16/2 was 107
acres. The said Survey No.16/2 was purchased by my
father". PW.2 is none other than the brother of defendant
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No.1 and uncle of the plaintiff, who was examined by the
plaintiff in support of her case. PW.2 further admitted that
in the partition suit schedule 'A' property came to the
share of defendant No.1. It is true to suggest that suit 'A'
property is the absolute property of defendant No.1.
35. Further in Paragraph 4 of the cross-examination, he
states that " Suit Schedule 'C' property was also purchased
by my father, it is true to suggest that in the partition, the
suit schedule 'C' property came to the share of defendant
No.1. It is true to suggest that suit Schedule 'C' property
is the absolute property of defendant No.1" . In respect of
suit schedule 'D' property, he stated that "I do not know
how suit schedule 'D' property came to the defendant
No.1." To the suggestion that the "Suit schedule 'B'
property is the self-acquired property of defendant No.1
and defendant No.3, the witness answered that it was not
related to him" . He further admitted that " defendant No.1
might have gifted suit schedule 'C' property by a
registered document to his daughter, Roopasri and the
defendant No.1 is residing with defendant No.3".
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36. The suit schedule 'D' Property situated at No.60,
th
Pattabhirama Nagar Jayanagar 4 Block bearing Old
Municipal No.205 and New Municipal No.89. These are the
self acquired properties of the grandfather of the plaintiff,
who is the father of the defendant No.1 and these
properties came to the share of the defendant No.1 as a
result of a partition effected by the grandfather.
37. The plaintiff also in her deposition admitted that suit
schedule 'A' property was purchased by her grandfather.
She was not aware of how the suit schedule property was
acquired by her parents. However, she stated that suit
schedule 'B' property was given to her and defendant No.3
by the grandfather. She stated that both were minors at
that time, but she did not know how he gave that property
to her and defendant No.3. She further stated that her
power of attorney holder viz., Smt. Mohana would know
the facts of the case, who was a close family friend, in fact
best friend.
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38. There is no dispute that suit schedule 'A', 'C' and 'D'
properties were self acquired properties of the grandfather
of the plaintiff and father of defendant No.1. As per the
case of the plaintiff, defendant No.1 has got schedule 'A'
'C' and 'D' properties under the partition from his father
which were self acquired properties of the grandfather of
the plaintiff and father of the defendant No.1. These
properties were not ancestral properties, which devolved
on the father of the plaintiff on survivorship. But they
st
were given by 1 defendant's father, who had acquired
them in a partition between him, his two sons and
daughter. These properties are neither the joint Hindu
family properties nor coparcenery properties. These
properties became individual/separate properties of
defendant No.1. Therefore, plaintiff would not have any
right to claim partition of these properties. A coparcener
can claim partition in respect of the property which is a
coparcenery property and not otherwise.
39. Even as per the case of the plaintiff, the suit 'B'
schedule property was purchased by the defendant No.1
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from the income generated from the 'A' schedule
properties therefore, 'B' schedule property is also a self-
acquired property of defendant No.1 and not a
coparcenery property. As the plaintiff has failed to prove
that the schedule properties were the coparcenery
properties of the joint Hindu family in which she claims to
be a member, though she has been staying abroad since
1979 after her marriage and she has never been in joint
possession and enjoyment of the suit properties which
came to be in the exclusive possession of her father given
by her grand father acquired by him on his own. These
properties did not come to the plaintiff's father by
inheritance. Only when a person inherits a property from
any one of his three immediate paternal ancestors, his
sons, grandsons and great grandsons, acquire an interest
in it by birth or under Section 6 after amendment w.e.f.
09.09.2005.
40. There was no unity of ownership and possession
between all members of the family. The plaintiff was never
in possession of the property, which became the self-
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acquired properties of her father. In the absence of unity
of possession of the plaintiff along with other family
members i.e. parents and defendant No.3/sister. The
plaintiff did not acquire an interest by birth in the
properties, which are the individual/separate properties of
her father.
41. It is well settled that Mitakshara father has absolute
right of disposition over his self-acquired property, to
which no exception can be taken by male/female
descendants. In GOVINDBHAI, CHHOTTABHAI PATEL
VS. PATEL, RAMANBHAI, MATHURBHAI, [(2020) 16
SCC 255] it was held in paragraph 11 as follows:-
"11. This Court in a three-Judge Bench
decision in C.N. Arunachala Mudaliar
considered the question as to whether the
properties acquired by Defendant 1 under
the will are to be regarded as ancestral or
self-acquired property in his hands. It is a
case where the plaintiff claimed partition of
the property in a suit filed against his father
and brother. The stand of the father was
that the house properties were the self-
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acquired properties of his father and he got
them under a will executed in the year
1912. It was held that father of a Joint
Hindu family governed by Mitakshara
law has full and uncontrolled powers of
disposition over his self-acquired
immovable property and his male issue
could not interfere with these rights in
any way. The Court while examining the
question as to what kind of interest a son
would take in the self-acquired property of
his father which he receives by gift or
testamentary bequest from him, it was held
that Mitakshara father has absolute right of
disposition over his self-acquired property to
which no exception can be taken by his
male descendants. It was held that it was
not possible to hold that such property
bequeathed or gifted to a son must
necessarily rank as ancestral property. It
was further held that a property gifted by a
father to his son could not become ancestral
property in the hands of the donee simply
by reason of the fact that the donee got it
from his father or ancestor."
(Emphasis supplied)
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42. If the case of the plaintiff was that the Schedule 'A',
'C' and 'D' properties were self acquired properties of the
grandfather, then the grandfather had the absolute right
of disposition over these properties. Once he has given
these properties, to his two sons and daughter, they
became the absolute owner of these properties, which
came to their share and they were not the ancestral
property to have any coparcenery character.
43. In the case of KALIANJI RANCHHOD VS.
BEZONJI HASARWANJI [ILR 32 BOMBAY 512] it was
held that where a father divided the family property
between him and his sons, the share obtained by him was
a self-acquired property, which he could bequeath to his
wife. It was also held that the son, who inherited the
property on partition by the father, got the property as his
separate property and not of the joint family consisting of
himself, his wife, sons and daughters.
44. Considering the case of the plaintiff and the
evidence on record, the plaintiff has failed to prove that
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the properties in question were coparcenery properties
and that she acquired rights in those properties being
member of the joint Hindu family.
45. So far as the argument of Sri.Sreevatsa, learned
Senior counsel that the Trial Court has not framed specific
issue on the nature/character of the property, stating
when Issue No.1 framed by the Trial Court, that, whether
the plaintiff proves that suit schedule 'A', 'C' and 'D'
properties are inherited by her father, having been
answered in affirmative, the Trial Court ought to have
considered other issues for allotting the share to the
plaintiff that she has become co-parcener under Section 6
of the new Amended Act of 2005, as such the suit ought to
have been decreed. He further submits that in the absence
of any specific issue framed with regard to character/
nature of the property, the plaintiff was deprived of an
opportunity to answer the same. As such, the judgment
and decree passed by the Trial Court required to be set-
aside on this count.
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RFA No. 1568 of 2018
46. Further, it is the contention of learned Senior
counsel that the defendants, except filing the written
statement, have neither led any evidence either oral nor
documentary in support of their contention, as such the
Trial Court ought to have taken adverse inference against
them and decreed the suit.
47. The argument advanced by the learned Senior
counsel at first instance are appealable to us, but after
going through the entire Judgment and evidence led both
oral and documentary by the plaintiff, we are of the
considered opinion that the Trial Court has properly
considered the case answering all the issues against the
plaintiff. Though Issue No.1 has been framed and
answered in affirmative stating that father has acquired
the property under the partition from his father, but Issue
No.3 which has been framed by the Trial Court answers
the argument advanced by learned Senior counsel
regarding the character/nature of the property, which
reads as under:
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RFA No. 1568 of 2018
"Whether the plaintiff being
member of Hindu Undivided Family is
entitled to partition of her equal share
over the suit schedule properties by
metes and bounds against the
defendants?"
48. The plaintiff is claiming the right to the property
under Section 6 as a co-parcener to the property stating
that the property came to father through his ancestor i.e.,
grandfather. As such, the plaintiff has got all rights to
maintain the suit seeking for partition. The issue framed
as No.3 answers the character/nature of the property. In
the admitted facts and evidence placed by the plaintiff
that, the property is the self-acquired property of the
grandfather, which is even admitted by PW.2 who is none
other than the parental uncle of the plaintiff and brother of
defendant No.1, who was also a party to the said partition/
family arrangement, wherein he was also allotted a share
in the property bearing Sy.No.16/2. The said witness
clearly admits that the property fell to the share of
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defendant No.1 under the said partition/ family
arrangement is his self-acquired property.
49. The plaintiff has not produced any cogent and
corroborative or substantial evidence to prove that the
properties stated i.e., 'A', 'C' and 'D' schedule properties
are the ancestral properties in the hands of her
grandfather and he has partitioned the same between his
children. In the absence of such evidence and in the
admitted facts and oral evidence backed with the
documentary evidence produced by the plaintiff, herself,
clearly points out that the properties are the self-acquired
properties of her grandfather i.e., father of defendant No.1
and PW.2.
50. The properties acquired by defendant No.1, either
under the partition/ family arrangement or by way of
succession, become his individual and separate property.
The reason being, even in the absence of such partition,
defendant No.1, PW.2 and their sister would have
inherited the properties as per Section 8 of the Hindu
Succession Act, 1956. In these circumstances, whether the
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RFA No. 1568 of 2018
self-acquired property of the father has been acquired by
his children by way of partition/ family arrangement or
succession, are one and the same.
51. The issues are framed to answer the claim made by
the parties on the basis of their pleadings. The issues are
framed to give an understanding to the parties with
respect to the dispute for which they are before the Court.
Issue Nos.1 to 3 clearly indicates that the plaintiff is very
well aware of the fact regarding the character/ nature of
the property.
52. The plaintiff once due to lack of evidence failed to
prove that the property is parental ancestral property of
defendant No.1, is not entitled for any claim and
entitlement under Section 6 that prescribes devolution of
interest in co-parcenary property i.e., survivorship on the
properties which are ancestral joint family properties of
his/her immediate parental ancestral i.e., sons, grandsons,
great grandsons. The plaintiff very specific in describing
the properties as the self-acquired properties of the
grandfather, cannot claim the properties as a joint family
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properties and she being the co-parcener or a Member of
Hindu Undivided Family, which entails her to seek
partition. Issue Nos.1 to 3 clearly show that the parties
are aware of their case and proof which they are required
to place to substantiate their claim. In that view of the
matter, the argument of learned Senior counsel on non-
framing of issue on the character/ nature of the properties
cannot be countenanced. Accordingly, the said contention
is rejected.
53. So far as contention regarding adverse inference
against the defendant for their failure to lead evidence i.e.,
both oral and documentary, we are unable to comprehend
such an argument. It is well settled principles of Indian
Evidence Act that, the party who approaches the Court
should prove his case on his legs, and not on the
weakness of the other side. The person who approaches
the Court must and should discharge his initial burden on
the claim which he wants the Court to decide in his/her
favour. In the absence of such discharge of initial burden,
there is no burden casted on the other side to prove their
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RFA No. 1568 of 2018
contention. There are any number of Judgments of the
Supreme Court as well as this Court and other High Courts
across the Country that, even in the absence of any
evidence both oral as well as documentary, a suit filed by
the plaintiff can be dismissed on his/her failure to produce
corroborative evidence of for lack of evidence to
substantiate his/her claim to seek a relief from the hands
of the Court.
54. In the case on hand, the plaintiff has miserably failed
to adduce evidence, both orally as well as documentary to
prove that the properties were the ancestral properties in
the hands of her grandfather which further partitioned by
him between his children i.e., defendant No.1 - father,
PW.2 and their sister. The admissions given by PW.2
clearly indicate that the properties partitioned were the
self-acquired properties of the grandfather. In such an
eventuality, there cannot be any adverse opinion against
the defendants for their failure to lead evidence, when the
plaintiff, herself, has failed to discharge the initial burden
casted upon her.
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55. It is cardinal principle of the Indian Evidence Act
that, the plaintiff must stand on his legs and prove his
case on his ground. In that view of the matter, the
contention of learned Senior counsel on adverse inference
does not hold any water. Accordingly, the said contention
is rejected.
56. We therefore, find no error in the impugned
judgment and decree dated 13.04.2018 passed in OS
No.703/2014 passed by the Trial Court. Accordingly, the
appeal is dismissed .
57. In view of the appeal having been dismissed,
pending interlocutory applications, if any do not survive for
consideration, hence stand disposed of.
Sd/-
(D K SINGH)
JUDGE
Sd/-
(T.M.NADAF)
JUDGE
NG
CT:SN