M/S.RAJESH EXPORTS LIMITED vs SRI.B DEVARAJ S/O BALASUBRAMANYA
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 29 DAY OF AUGUST, 2026
R
PRESENT
HON'BLE MR. JUSTICE JAYANT BANERJI
AND
HON'BLE MS. JUSTICE TARA VITASTA GANJU
REGULAR FIRST APPEAL NO. 1165 OF 2009 (PAR)
BETWEEN:
M/S.RAJESH EXPORTS LIMITED,
NO.4, BATAVIA CHAMBERS, KUMARA KRUPA
ROAD, KUMARA PARK EAST, BANGALORE-1.
REP. BY ITS AUTHORISED OFFICER
M.K.NARANG S/O KIRPARAM NARANG.
…APPELLANT
(BY SRI. ROHAN KOTHARI., ADVOCATE)
AND:
1.
SRI. B.DEVARAJ S/O BALASUBRAMANYA
AGED ABOUT 29 YEARS,
2. B.YOGESH S/O S.BALASUBRAMANYA
AGE MAJOR-21,
3. SMT.B.SAROJAMMA @ B.SAROJA
W/O S.BALASUBRAMANYA, 48
RESPONDENT NO.1 TO 3 ARE RESIDING AT
NO.43, SUBEDAR CHATRAM ROAD,
BANGALORE-9.
4. SRI.S.BALASUBRAMANYA
DELETED
Digitally signed by
SUMATHY
KANNAN
Location: HIGH
COURT OF
KARNATAKA
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5. M/S VOLGA RESTAURANT
NO.43 (UPSTAIRS),
SC ROAD, BANGALORE-9
REPRESENTED BY ITS PROPRIETOR,
SHRI.V.K.ABDULLA, MAJOR ABOUT 50.
6. M/S. HOTEL ADORA,
NO.43 (OUT HOUSE),
SC ROAD, BANGALORE-9
REPRESENTED BY ITS SHRI. JANAB AHMED,
MAJOR, 55.
7.
7(a)
SHRI. SRINIVASA SHETTY
60 YEARS, PROP: OF M/S ARUNA STORES,
NO.45, SC ROAD, BANGALORE-9.
AMENDMENT CARRIED OUT IN PURSUANCE OF
ORDER DATED:27.09.2022,
SINCE DECEASED, REPRESENTED BY LR’S
SMT. NAGALAKSHMI,
AGED ABOUT 80 YEARS,
W/O LATE A.SHRI SRINIVASA SHETTY,
7(b) SRI. S.ARUNA KUMAR,
AGED ABOUT 57 YEARS,
S/O SRINIVASA SHETTY,
BOTH RESIDING AT NO.16/1,
TH
“SUKHI”, 5 CROSS, R.K.PURAM,
BENGALURU-560 009.
7(c) SRI. S.VENKATESH BABU,
AGED ABOUT 52 YEARS,
S/O LATE .A.SRINIVASA SHETTY,
TH
RESIDING AT NO.9, 5 CROSS,
R.K.PURAM, BENGALURU-560 009.
…RESPONDENTS
(BY SRI. C.SHANKARA REDDY., ADVOCATE FOR C/R1 TO
R3; R4-DELETED,
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SRI.P.USMAN FOR M/S. HEGDE ASSTS FOR R5 & R6;
SRI. K.R.ASHOK KUMAR., ADVOCATE FOR R7 [A-C])
THIS RFA FILED U/S 96 CPC, AGAINST THE JUDGMENT AND
DECREE DATED 15.09.2009 PASSED IN OS.NO. 914/2005
ON THE FILE OF THE XXXVIII ADDL. CITY CIVIL JUDGE,
BANGALORE, DECREEING THE SUIT FOR PARTITION AND
SEPARATE POSSESSION.
THIS RFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 29.06.2026, COMING ON FOR
PRONOUNCEMENT, THIS DAY, HON’BLE MS. JUSTICE
TARA VITASTA GANJU , PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE JAYANT BANERJI
&
HON'BLE MS. JUSTICE TARA VITASTA GANJU
CAV JUDGMENT
(PER: HON'BLE MS. JUSTICE TARA VITASTA GANJU)
Table of Contents
I. Preface: ................................................................ 4
II. Brief Facts: ........................................................... 8
III. Impugned Judgment: ........................................... 14
IV. Contentions of the Appellant/Defendant No. 2: ........ 17
V. Contentions of the Respondent Nos.1 to 3/Plaintiffs : 21
VI. Issues for Consideration : ..................................... 24
VII. Analysis and Findings : ........................................ 25
A. Nature of Suit Schedule Property .......................... 25
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B. The Statute ...................................................... 27
C. The Evidence Produced ........................................ 34
D. Requisites of Joint Family Property : .................... 61
VIII. Conclusion : ...................................................... 76
I. Preface:
1. This Appeal has been filed against the Judgment and
Decree dated 15.09.2009 passed by the learned XXXVIII
Additional City Civil Judge, Bengaluru, in O.S. No.914/2005
[hereinafter referred to as the “Impugned Judgment”]. By
the Impugned Judgment, the suit instituted by respondent
Nos.1 to 3/plaintiffs for partition and separate possession
came to be decreed. By the Impugned Judgment, the
learned Trial Court held that the Suit Schedule Property
constituted joint family property, declared that the
registered Sale Deed dated 22.12.2004 executed by
defendant No.1 in favour of the appellant/defendant No.2
th
was not binding on the 1/4 shares of respondent Nos.1 to
th
3/plaintiffs each (3/4 share in total) and granted them
partition and separate possession of their respective shares.
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2. Aggrieved by the aforesaid Judgment and Decree, the
appellant/defendant No.2 has preferred the present appeal
under Section 96 of the Code of Civil Procedure, 1908
[hereinafter referred to as the “CPC”], contending, inter
alia , that the learned Trial Court erred in treating the Suit
Schedule Property as joint family property despite the
registered Sale Deed standing in the name of late Smt.
Lalithamma and in consequently holding that defendant
No.1 was incompetent to alienate the same in its favour.
2.1 On 02.12.2010, this Court directed that final decree
proceedings may continue, but drawing up of the final
decree was stayed and the Appeal was admitted.
3. For the sake of convenience, the parties shall
hereinafter also be referred to as they were arrayed before
the learned Trial Court.
3.1 Since the dispute arises out of a family arrangement
and subsequent alienation of the Suit Schedule Property,
the relationship between the parties is set out herein for
ease of reference. Late Sri D.M. Subbaiah was the husband
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of late Smt. Lalithamma, who is stated to have acquired the
Suit Schedule Property under a registered Sale Deed. They
had a son, Sri S. Balasubramanya, who was arrayed as
defendant No.1 in the suit. Smt. B. Sarojamma, wife of
defendant No.1, and their two sons, Sri B. Devaraj and Sri
B. Yogesh, are the plaintiffs in the suit. The appellant
herein, M/s. Rajesh Exports Limited, was arrayed as
defendant No.2, being the purchaser under the registered
Sale Deed dated 22.12.2004 executed in its favour by
defendant No.1. Defendant Nos.3 to 5 are tenants in
occupation of portions of the Suit Schedule Property and are
formal parties to the proceedings.
4. During the pendency of the present appeal, plaintiffs
filed three applications: (i) I.A. No.1/2013 under Order XLI
Rule 27(1) read with Section 151 of the CPC seeking
permission to adduce additional evidence; (ii) I.A.
No.2/2013 under Order VI Rule 17 read with Section 151 of
the CPC seeking amendment of the plaint; and (iii) I.A.
No.2/2017 under Order XLI Rule 27(aa) and (b) read with
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Section 151 of the CPC seeking permission to produce
additional documents. By Judgment dated 08.12.2023, this
Court allowed the aforesaid applications, set aside the
Impugned Judgment and remanded the matter to the
learned Trial Court for fresh adjudication.
5. The aforesaid Judgment dated 08.12.2023 was
assailed before the Supreme Court by the defendant No.2
under Civil Appeal Nos. 5430 /2025 (hereinafter referred to
as the ‘SC Judgment’). The Supreme Court by the order
dated 22.04.2025, allowed the Civil Appeal, set aside the
Judgment dated 08.12.2023 passed by this Court,
dismissed I.A. Nos.1 and 2 of 2013 filed before this Court,
and restored this Appeal to the file of this Court for
consideration on merits. The Supreme Court observed that
the appeal ought to be decided on the basis of the evidence
already available on record and accordingly remitted the
matter to this Court for fresh consideration in accordance
with law. The relevant extract of the SC Judgment is below:
“In our considered view, the High Court, in allowing the
amendment of the plaint and remitting the matter to the
Trial Court, has committed two errors. The first error is
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with respect to the non-consideration of the
completely contrary stand taken by the
respondents earlier in their original plaint wherein ,
they stated that they were the only legal heirs available.
Admittedly, the alleged co-owner has not even come
before the Court. Secondly, the High Court ought not to
have remitted the matter to the Trial Court on that score.
Instead, it could have called for a finding on the same
and, thereafter, proceeded to decide the first appeal on
merits.
Be that as it may, inasmuch as we are not in agreement
with the reasoning assigned by the High Court, we are
inclined to set aside the impugned judgment of the High
Court.
Accordingly, the impugned judgment is set aside.
Consequently, the matter stands remitted to the High
Court for the purpose of deciding the first appeal on
merits, in accordance with law.
The appeal stands allowed, accordingly.
In such view of the matter, there is no need for the
production of additional evidence before the High
Court. Thus, we make it clear that the applications,
being IA No.1/2013 and IA No.2/2013, filed before
the High Court stand dismissed.”
[Emphasis Supplied]
5.1 Thus and in terms of the SC Judgment, the examination
by this Court is to be undertaken based on the record as
was available before the Trial Court.
II. Brief Facts:
6. The present dispute pertains to the Suit Schedule
Property bearing Municipal Nos.43, 44 and 45, situated at
Subedar Chatram Road, now Natarathna Gubbi Veeranna
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Road, Gandhinagar, Bengaluru City, admeasuring East to
West 80 feet and North to South 42 feet, together with the
structures standing thereon (hereinafter referred to as the
"Suit Schedule Property"). The parties trace their respective
claims to the registered Sale Deed dated 14.03.1963 in the
name of late Smt. Lalithamma.
7. The plaintiffs instituted O.S. No.914/2005 seeking
partition and separate possession of their respective shares
in the Suit Schedule Property, together with the
consequential reliefs of permanent injunction, mandatory
injunction and mesne profits.
7.1 Subsequently, by way of amendment on 29.07.2009
to the plaint, the plaintiffs also sought a declaration that the
Sale Deed dated 22.12.2004 executed by defendant No.1 in
favour of defendant No.2 duly registered as Book-I,
GAZETTE NO.1-00864-2005-06, C.D. No.GA-ND-45, dated
27.05.2005 (hereinafter referred to as the "Subsequent
Sale Deed") was not binding on their shares. The plaintiffs
pleaded that although the Suit Schedule Property stood in
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the name of late Smt. Lalithamma, it had in fact been
acquired by her husband late Sri. D.M. Subbaiah out of the
income and resources of the joint family and was held in the
name of late Smt. Lalithamma only for convenience.
According to the plaintiffs, the Suit Schedule Property
retained the character of joint family property and,
therefore, defendant No.1 had no exclusive right to alienate
the same to the prejudice of the plaintiffs. The prayers in
the plaint (as amended on 29.07.2009) are set out below:
“Wherefore, the plaintiffs herein pray that this honourable
court be pleased to pass a judgment and decree against
the defendants for:
a) Partition and separate possession of plaintiffs’ 1/4th
share each in the entire suit schedule property between
the plaintiffs and the defendant no.1 in accordance with
law by taking into consideration of value of the property,
location etc.,
aa) Declare that the sale deed allegedly executed by 1st
defendant in favour of the 2nd defendant dated
21-12-2004 vide no. GAL 1-00864/2005-06 Book 1, C.D.
no GAND 45 dated 27.05.2005 in respect of the suit
schedule property is not binding on the undivided 1/4th
1
share of each of the plaintiffs.
b) Grant mandatory injunction directing the defendants 3
to 5 to pay the 3/4th share of the monthly rents payable
by them to the plaintiffs.
c) Mesne profits under Order 20 Rule 12 of the Civil
Procedure Code.
1
As per the amendment of plaint dated 29.07.2009
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d) Permanent injunction restraining the defendants 1 and
2 or anyone through them from interfering with or ousting
out the plaintiffs from joint possession without due
recourse to law.”
SCHEDULE
All that piece and parcel of the immovable property
bearing No.43, 44 and 45 situated at Subedar Chatram
Road now Natakarathna Gubbi Veeranna Road,
Gandhinagar, Bangalore City, measuring about East to
West 80 feet and North to South 42 feet together with the
constructions found thereon and the same is bounded on
the:
East by : Subedar Chatram road
West by : Conservancy road
North by : T. Dasappa Home
South by : Kelkar’s House.”
7.2 The plaintiffs arrayed their husband/father as Defendant
No.1 and the subsequent purchaser as Defendant No.2,
while three tenants were arrayed as Defendants No.3 to 5.
8. The appellant/defendant No.2, purchaser under the
Subsequent Sale Deed contested the suit by filing a Written
Statement denying the averments made in the plaint. It was
contended that late Smt. Lalithamma had acquired the Suit
Schedule Property under the Sale Deed dated 14.03.1963
from one Sri. G.M. Chinnappa which was duly registered by
Register No.3669/62-63, Book-1 Volume 1902 at pages 140
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to 144 (hereinafter referred to as the “Sale Deed”), and was
the absolute owner thereof. According to defendant No.2,
upon the demise of late Smt. Lalithamma, defendant No.1
succeeded to the Suit Schedule Property in accordance with
law and thereafter validly executed the Sale Deed in favour
of defendant No.2 for valuable consideration. Defendant
No.2, therefore, asserted that the plaintiffs had no right to
seek partition or to question the Sale Deed.
8.1 Written Statements were also filed by the defendants
Nos.3, 4 and 5 wherein these defendants affirmed to being
tenants of the defendant No.1. Defendant No.4 also set out
that the tenancy commenced under a registered lease deed
dated 22.03.1990 where a portion of the Suit Schedule
Property was leased to them. Defendant No.5 also admitted
to being a tenant of one of the shops of the Suit Schedule
property. He also stated that he took the Suit Schedule
property on rent from the father of the defendant No.1 in
the year 1958.
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9. Based on the pleadings and documents filed, the
learned Trial Court framed the following issues for
consideration:
“1) Do the plaintiffs prove that suit schedule property is
the joint family property belonging to plaintiffs and
defendant No.1?
2) Does defendant No.2 prove that suit property is the
self-acquired property of defendant No.2?
3) Does defendant No.2 prove that suit is not properly
valued and Court fee paid is not sufficient?
4) Is plaintiff entitled to 1/6th share in the suit schedule
properties?
5) Do plaintiffs prove that they are entitled for a share in
suit property, if so, to what share are they entitled to?
6) What order or decree?”
2
Addl. Issue No.1 :
"Whether plaintiffs prove that the registered sale deed
dated 22.12.2004 executed by defendant No.1 in favour
of defendant No.2 in respect of suit properties is not
binding on their share in the suit property?"
9.1 In support of their case, the plaintiffs examined
plaintiff No.3 as PW-1 and two other witnesses as PWs-2
and 3, and marked several documents as Exs.P-1 to P-59.
The material documentary evidence relied upon by the
plaintiffs included the registered Sale Deed dated
14.03.1963 (Ex.P-12), the Death Certificate of late Smt.
2
In terms of order dated 06.08.2009 passed by learned Trial Court
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Lalithamma (Ex.P-28), the certified copy of the Mortgage
Deed dated 04.06.1951 (Ex.P-53), the certified copy of the
Sale Deed dated 26.03.1960 (Ex.P-54), and the certified
copy of the Sale Deed dated 22.01.1952 (Ex.P-55).
9.2 Defendant No.2 examined its General Manager and
authorised representative as DW-1 and marked Exs.D-1 to
D-13, while defendant No.5 examined himself as DW-2. The
material documentary evidence relied upon by defendant
No.2 comprised the registered Sale Deed dated 22.12.2004
(Ex.D-2), the Death Certificates of late Smt. Lalithamma
and late Sri. D.M. Subbaiah (Exs.D-10 and D-11
respectively), the original registered Sale Deed dated
14.03.1963 in the name of late Smt. Lalithamma (Ex.D-12),
and the certified copy of the registered Lease Deed dated
01.01.1979 (Ex.D-13).
III. Impugned Judgment:
10. By the Impugned Judgment, the learned Trial Court
answered Issue Nos.1, 2, 4 and 5 and Additional Issue No.1
in favour of the plaintiffs and Issue No.3 in favour of
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defendant No.2. Consequently, the suit came to be partly
decreed by declaring the Subsequent Sale Deed executed
by defendant No.1 in favour of defendant No.2 was not
binding on the plaintiffs to the extent of their respective
shares and each of the plaintiffs were granted a 1/4th share
in the Suit Schedule Property. A preliminary decree for
partition and separate possession was also passed.
10.1 The learned Trial Court held that although the
registered Sale Deed dated 14.03.1963 stood in the name
of late Smt. Lalithamma, the evidence on record established
that the Suit Schedule Property had, in fact, been acquired
by late Sri D.M. Subbaiah out of the income of the joint
family and that the property was purchased in the name of
Smt. Lalithamma only because she managed the affairs of
the family and the joint family properties. The Trial Court
relied principally upon the recitals contained in the Sale
Deed, read together with the earlier chain of transactions
comprising of the mortgage deed and Sale Deeds relied
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upon by the plaintiffs, to conclude that the property retained
the character of joint family property.
11. The learned Trial Court further held that late Smt.
Lalithamma had no independent source of income to
purchase the Suit Schedule Property and that the oral
evidence of PW-1, coupled with the recitals in Ex.P-12,
sufficiently established that the consideration had
emanated from late Sri D.M. Subbaiah. The learned Trial
Court also observed that defendant No.2 had failed to
establish that the Suit Schedule Property was the absolute
and self-acquired property of late Smt. Lalithamma
notwithstanding the registered Sale Deed standing in her
name.
11.1 Since a finding was given that the Suit Schedule
Property was joint family property, the learned Trial Court
further held that defendant No.1 could not have alienated
the entire Suit Schedule Property in favour of defendant
No.2 in the absence of legal necessity or benefit to the
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estate, and thus the alienation was not binding on the
plaintiffs to the extent of their respective shares.
12. Aggrieved by the aforesaid findings and the
preliminary decree for partition passed by the learned Trial
Court, defendant No.2 has preferred the present appeal.
13. As stated above, this Court, by an order dated
02.12.2010, had directed the final decree proceedings were
continued but the drawing up of the final decree was stayed
at the time of admission of the appeal. Subsequently, by
order dated 16.09.2025 after the matter was remanded
back by the Supreme Court, this Court requisitioned the
Trial Court record and listed the matter for hearing.
IV. Contentions of the Appellant/Defendant No. 2:
14. Learned counsel appearing for the defendant No.2
contended that the Impugned Judgment is contrary to the
pleadings, oral evidence and documentary evidence
available on record. It was submitted that the learned Trial
Court gravely erred in holding that the Suit Schedule
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Property constituted joint family property merely on the
basis of certain recitals contained in the registered Sale
Deed dated 14.03.1963 (Ex.P-12), without there being any
independent evidence to establish that the consideration for
its purchase had emanated from the joint family or that the
property had ever acquired the character of joint family
property. It was urged that the burden of proving the said
fact squarely rested upon the plaintiffs, which they had
failed to discharge.
14.1 Learned counsel further submitted that the oral
evidence of PW-1, PW-2 and PW-3 unequivocally
establishes that late Smt. Lalithamma was worldly-wise,
actively managed the affairs of the family and dealt with the
family properties. It was contended that the Trial Court
failed to appreciate these admissions in their proper
perspective while determining the nature of the Suit
Schedule Property.
14.2 It was further contended that the evidence on record
clearly demonstrates that late Smt. Lalithamma exercised
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complete dominion over the Suit Schedule Property. In this
regard, reliance was placed on the registered Sale Deed
dated 05.08.1963 executed by late Smt. Lalithamma in
respect of a portion of the larger property and the registered
Lease Deed dated 01.01.1979 (Ex.D-13) registered as
No.3246/78-79, Book-I, Volume 2679 pages 159, SF
Volume 2696 page-64, to contend that she dealt with the
property as its absolute owner during her lifetime.
According to the defendant No.2, these material
circumstances were completely ignored by the learned Trial
Court.
14.3 Learned counsel further submitted that the learned
Trial Court failed to appreciate the legal effect of Sections
14, 15 and 16 of the Hindu Succession Act, 1956
(hereinafter referred to as the “Hindu Succession Act”). It
was contended that once the property stood in the name of
late Smt. Lalithamma under a registered Sale Deed, the
rights flowing therefrom were required to be considered in
accordance with the statutory scheme contained in the
Hindu Succession Act. In support of the said proposition,
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reliance was placed on the decisions of the Supreme Court
in Gangamma and Others Vs. G. Nagarathnamma and
3
Others and Marabasappa (Dead) by LRs. Vs.
4
Ningappa (dead) by LRs and others to contend that no
presumption can be made as to joint family property in the
absence of evidence and that Section 14 of the Hindu
Succession Act mandates, any female Hindu is her absolute
property and she therefore has full ownership. It was urged
that the findings recorded by the learned Trial Court are
contrary to the settled position of law.
14.4 It was next contended that the learned Trial Court
erred in holding that the Subsequent Sale Deed dated
22.12.2004 executed by defendant No.1 in favour of the
defendant No.2 was not binding on the plaintiffs, despite
there being no acceptable evidence to dislodge the title
flowing from the registered conveyance. It was submitted
that the plaintiffs had failed to establish any legal basis for
invalidating the said Subsequent Sale Deed.
3
(2009) 15 SCC 756
4
(2011) 9 SCC 451
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14.5 Lastly, learned counsel submitted that the suit, as
framed, was not maintainable, inasmuch as the plaintiffs
had substantially sought to invalidate the registered
Subsequent Sale Deed dated 22.12.2004 without seeking
its cancellation and without paying the requisite court fee.
On the aforesaid grounds, it was prayed that the Impugned
Judgment and Decree be set aside and the suit instituted by
plaintiffs be dismissed.
V. Contentions of the Respondent Nos.1 to
3/Plaintiffs :
15. Per contra, learned counsel appearing for plaintiffs has
supported the Impugned Judgment and Decree, contending
that the learned Trial Court had rightly appreciated the
pleadings, oral evidence and documentary evidence on
record in holding that the Suit Schedule Property
constituted Joint Family Property. It was submitted that the
evidence on record clearly establishes that the
consideration for the purchase of the Suit Schedule Property
had emanated from late Sri. D.M. Subbaiah and that the
property was purchased in the name of late
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Smt.Lalithamma only to secure her interest, she being the
second wife of late Sri. D.M. Subbaiah. It was therefore
contended that the mere fact that the registered Sale Deed
stood in the name of late Smt. Lalithamma did not alter the
character of the Suit Schedule Property.
15.1 Learned counsel further submitted that the registered
Sale Deed executed by defendant No.1 in favour of
defendant No.2 was not registered immediately. It was
contended that the registering authority kept the document
pending as the sale consideration disclosed therein did not
reflect the prevailing market value and the requisite stamp
duty had not been paid. According to the respondents, the
competent authority, by order dated 16.05.2005,
determined the deficit stamp duty payable, whereupon the
document came to be registered.
15.2 It was further contended that by the time the Sale
Deed was registered on 16.05.2005, the present suit had
already been instituted and summons had been served
upon the defendants. According to the respondents, the
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completion of registration during the pendency of the suit is
a relevant circumstance which the learned Trial Court has
rightly taken into consideration.
15.3 Learned counsel also submitted that the Suit Schedule
Property is situated in Gandhinagar, Bengaluru, a prime
commercial locality, whereas the Sale Deed reflected a
consideration of only Rs.20,00,000/-. It was urged that the
District Registrar had determined the market value of the
property to be substantially higher and consequently
initiated proceedings for recovery of the deficit stamp duty.
It was submitted that these circumstances cast serious
doubt on the bona fides of the transaction in favour of
defendant No.2.
15.4 Reliance was further placed upon the evidence of DW-
1, who, during the course of cross-examination, admitted
that no consideration other than that reflected in the Sale
Deed had been paid. According to the respondents, the said
admission, read in conjunction with the surrounding
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circumstances, supports the findings recorded by the
learned Trial Court.
15.5 Learned counsel also referred to the notification dated
22.12.1999 and the attendant statutory proceedings as part
of the factual background relating to the Suit Schedule
Property. It was submitted that the cumulative effect of the
oral and documentary evidence fully justified the
conclusions arrived at by the learned Trial Court.
Accordingly, it was prayed that the present appeal be
dismissed and the Impugned Judgment and Decree be
affirmed.
16. Since respondent No.4 died in the year 2007 during the
pendency of the proceedings before the Trial Court, while
filing the present appeal his name was shown as deleted, in
the cause-title. The respondent Nos.5 to 7 although served
did not contest the appeal.
VI. Issues for Consideration :
17. In view of the submissions advanced by the learned
counsel for the parties and upon perusal of the material
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available on record, the following questions arise for
consideration before this Court:
(i) Whether the learned Trial Court was justified in
holding that the Suit Schedule Property constituted
joint family property despite the registered Sale Deed
dated 14.03.1963 standing in the name of late Smt.
Lalithamma?
(ii) Whether the learned Trial Court correctly
appreciated the oral and documentary evidence while
holding that the Sale Deed dated 22.12.2004
executed by defendant No.1 in favour of defendant
No.2 is not binding on the plaintiffs?
(iii) Whether the learned Trial Court correctly
appreciated the effect of Sections 14 and 15 of the
Hindu Succession Act, 1956 while determining the
nature and devolution of the Suit Schedule Property?
(iv) Whether the Impugned Judgment and Decree call
for interference?
VII. Analysis and Findings :
A. Nature of Suit Schedule Property
18. Certain foundational facts are not in dispute. It is an
admitted position that the Suit Schedule Property was
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purchased under the registered Sale Deed dated
14.03.1963 (Ex.P12) in the name of late Smt. Lalithamma.
It is also undisputed that, following her demise, defendant
No.1 executed the registered Sale Deed dated 22.12.2004
(Ex.D2) in favour of defendant No.2, conveying the Suit
Schedule Property.
19. The controversy, however, lies in the legal character of
the Suit Schedule Property. While the defendant No.2
contends that late Smt. Lalithamma acquired and held the
property in her own right and that defendant No.1, having
succeeded thereto, was competent to execute the
Subsequent Sale Deed dated 22.12.2004, the plaintiffs
contend that notwithstanding the registered Sale Deed
standing in the name of late Smt. Lalithamma, the
consideration therefor was provided by late Sri D.M.
Subbaiah out of the joint family nucleus and that late Smt.
Lalithamma was merely the ostensible purchaser. According
to the plaintiffs, the Suit Schedule Property thus retained
the character of joint family property, with the result that
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defendant No.1 could not have conveyed absolute title in
favour of defendant No.2.
20. The principal contention that has been raised in this
appeal by the defendant No.2 is that in view of the
provisions of Section 14 of the Hindu Succession Act, the
Suit Schedule property was owned absolutely by Smt.
Lalithamma and she could deal with it in the manner she
saw fit. While it is the contention of the plaintiffs that on the
basis of the oral and documentary evidence available on
record established, that the Suit Schedule Property, though
purchased in the name of late Smt. Lalithamma, was in fact
joint family property.
B. The Statute
21. At the outset, it is apposite to examine the law as is
applicable with regard to property owned/purchased by a
female Hindu. Section 14 of the Hindu Succession Act
provides that a property of a female Hindu shall be her
absolute property in the following terms:
14. Property of a female Hindu to be her absolute
property.— (1) Any property possessed by a female
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Hindu, whether acquired before or after the
commencement of this Act, shall be held by her as
full owner thereof and not as a limited owner.
Explanation.—In this sub-section, “property” includes both
movable and immovable property acquired by a female
Hindu by inheritance or devise, or at a partition, or
in lieu of maintenance or arrears of maintenance, or
by gift from any person, whether a relative or not,
before, at or after her marriage, or by her own skill
or exertion, or by purchase or by prescription, or in any
other manner whatsoever, and also any such property
held by her as stridhana immediately before the
commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any
property acquired by way of gift or under a will or any
other instrument or under a decree or order of a civil court
or under an award where the terms of the gift, will or other
instrument or the decree, order or award prescribe a
restricted estate in such property.
[Emphasis Supplied]
21.1 The Supreme Court in the G angamma case, while
considering as to whether property standing in the name
of a Hindu female could be alienated, given that it was
alleged to be joint-family property has held that, in the
absence of evidence to the contrary, property standing in
the name of the female, by operation of Section 14(1) of
the Hindu Succession Act, were owned solely by the female
Hindu and could not be treated as joint-family properties.
The Court further held that the expression “acquired” in
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Section 14(1) of the Hindu Succession Act is to be given the
widest possible meaning and that the provision covers every
kind of acquisition of property by a female Hindu. Unlike
prior to the enactment of this provision, the ownership of a
female Hindu of property is now her absolute property. The
relevant extract is set out below:
“9. Section 14(1) of the Hindu Succession Act, 1956
(hereinafter referred to as “the Act”) has a bearing on the
issue. As the properties at Items 1 and 2 are
recorded in the name of the appellant, in the
absence of any evidence to the contrary in this case,
the appellant by operation of Section 14(1) of the
said Act is the full owner of those properties. In the
facts of this case discussed above it has to be
accepted that those properties are not joint
properties but the appellant is the sole owner of
those properties.
10. The principle laid down in Section 14(1) of the said Act
has been read by courts in a very comprehensive manner
since the said Act overrides the old law on stridhana in
respect of properties possessed by a female Hindu. In
Eramma v. Veerupana [AIR 1966 SC 1879] Ramaswami,
J. speaking for the Court held that Section 14(1) of the
Act contemplates that a female Hindu, who in the
absence of the said provision would have been a
limited owner of the property, will now become full
owner by virtue of the said section. Such female Hindu
will have all powers of disposition to make the estate
heritable by her own heirs and not revertible to the heirs
of the last male holder.
11. Again, in Punithavalli Ammal v. Minor Ramalingam
[(1970) 1 SCC 570 : AIR 1970 SC 1730] a three-Judge
Bench of this Court reiterated the position that the said
Act has overriding effect and confers full ownership
on Hindu female and made it very clear that rights
conferred under Section 14(1) to a Hindu female are
not restricted or limited by any rule of Hindu Law. In
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the opinion of the Court in Punithavalli [(1970) 1 SCC 570
: AIR 1970 SC 1730] the said section makes a clear
departure from all texts of Hindu laws and rules and those
texts and rules cannot be used for circumventing the plain
meaning of Section 14(1) of the said Act.
12. In Seth Badri Prasad v. Kanso Devi [(1969) 2 SCC
586 : AIR 1970 SC 1963] the learned Judges held
that the word “acquired” in sub-section (1) of
Section 14 of the said Act has to be given the widest
possible meaning (see paras 6 and 7). In V.
Tulasamma v. Sesha Reddy [(1977) 3 SCC 99 : AIR
1977 SC 1944] Bhagwati, J. speaking for the Court
held that sub-section (1) of Section 14 is very large
in its amplitude and covers every kind of acquisition
of property by a female Hindu. Regardless of
whether such property was possessed by a female
Hindu on the date of commencement of the Act or
was subsequently acquired or possessed, she would
be the full owner of the property.
13. In view of such consistent views taken by this
Court on the interpretation of Section 14, we hold
that Section 14(1) of the said Act would apply in
respect of the properties which stand in the name of
the appellant and the appellant would be the full
owner of those properties.”
[Emphasis Supplied]
22. It is also a settled legal position that while considering
whether properties purchased in the name of a wife should
be treated as separate property or joint family property, the
Supreme Court has in Marabasappa case , held that in the
absence of cogent and reliable evidence establishing the
availability of the alleged joint-family nucleus at the
relevant time of acquisition, a property could not be treated
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as joint-family property(ies). It was further held that if the
property had been acquired by the female in her own right,
Section 14(1) of the Hindu Succession Act, conferred full
ownership upon her, with the consequence that she was
entitled to deal with and dispose of the property and the
same did not form part of the joint Hindu family property.
The relevant extract is set out below:
“21. Now coming to suit schedule properties, Items A(4)
to A(6), it is the case of the plaintiffs that the said
properties were purchased by Siddappa, father of the
plaintiffs and the defendants under a sale deed dated
5-10-1944, but, in the name of his wife Parwatevva from
and out of the income of the tenancy lands A(1) to A(3)
for the purpose of the joint family for which he was also
the karta of the family. However, it is the case of the
contesting defendants that the said property is the
self-acquired property of Parwatevva from and out
of her income derived from the property gifted to
her by her father in the year 1924. The defence that is
also put up by the defendants is that Siddappa was the
tenant of the property A(1) to A(3) only from the year
1947 and, therefore, the plaintiffs cannot claim that from
out of the income of the property A(1) to A(3), lands in
Items A(4) to A(7) were purchased.
22. It has come in evidence of the contesting
defendants that propositor Siddappa was the
tenant of the lands A(1) to A(3) only from the year
1947. The same is not disputed by the plaintiffs by
leading any other cogent evidence to prove that
Siddappa was the tenant of the lands A(1) to A(3) even
prior to 1944, the date of the sale deed. In the absence
of any evidence, much less cogent and reliable
evidence, it is difficult to accept the version of the
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plaintiffs that the suit Schedules A(4) to A(6)
should be put into common hotchpotch and
partitioned by metes and bounds.
23. We may also notice the observations made by the
trial court, with which we also agree, in the course of its
judgment.
“61. Now let us firstly take up A(4) to A(6) lands. Ext.
D-8 is the certified copy of the sale deed in respect of
said land, dated 5-10-1944. It is necessary to
emphasise that according to the plaintiffs, Siddappa
was protected tenant of the lands mentioned therein as
per Ext. P-20, which pertains to 1947. They have
obviously not produced any records, such as RORs or
mutation entries to show that Siddappa was the tenant
of those 11 lands, mentioned in Ext. P-20 even prior to
1947. It is essential because, we are assessing the
productivity of nucleus as on the date of Ext. D-8. Ext.
D-8 is admittedly of 1944. Since no document is
produced by the plaintiffs to show that Siddappa was
the tenant even prior to 1947 of the lands referred to in
Ext. P-20, it cannot be said that he had no independent
source of income at the relevant time of 1944 (Ext. D-
8).
Evidence on record justified that at the relevant time of
Ext. D-8, Parwatevva was already owner and possessor
of A(7) land, extent of which is 8 acres 16 guntas.
Excepting this land, the family of the parents of Plaintiff
1, Defendant 1 and Bheemappa, is not shown to have
had any other source of income. Hence, it follows that
the land in Ext. D-8 could not have been acquired at all
by Siddappa, out of his income, since he is not shown
to have had any income at all. It is too much to say that
the income of the lands at A(1) to A(3) was the source
of income for acquisition of the lands A(4) to A(6) (Ext.
D-8). This argument presupposes that Siddappa was a
tenant of A(1) to A(3) lands even prior to 1944 (Ext. D-
8). Absolutely there is no evidence. Hence, it cannot
be said that Siddappa had purchased A(4) to A(6)
lands, which is land in Ext. D-8, out of the income
of the joint family. Indeed, he was living in the
house of his parents-in-law with Parwatevva and
Ext. D-60 of 1924 shows that he had no financial
strength. Hence, I am of the definite opinion that
the land in Ext. D-8 must have had been acquired
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by Parwatevva out of the income she had derived
from A(7) land. It cannot be said and it is not
acceptable that Siddappa had purchased the land
mentioned in Ext. D-8 in the name of his wife
Parwatevva. I make it clear that it was purchased
by her only out of her income derived from A(7)
land.
Plaint shows that Plaintiff 1 and Defendant 1 were of 62
and 70 years respectively on the date of suit. It shows
that in 1944, the year of Ext. D-8, Plaintiff 1 was about
16 years of age, and Defendant 1 was about 22 or 23
years of age. I am emphasising these facts to show that
neither of them had independent source of income. It
must mean that Parwatevva was the absolute owner of
the suit lands A(4) to A(6) mentioned in Ext. D-8.
Hence, it cannot be said as joint family property. Joint
family did not have at all, any nucleus to acquire the
land in Ext. D-8. Hence, said finding is recorded.”
Therefore, the findings contrary to the above view by the
High Court are erroneous and cannot be sustained.
24. Section 14 of the Hindu Succession Act, 1956
clearly mandates that any property of a female
Hindu is her absolute property and she, therefore,
has full ownership. The Explanation to sub-section
(1) further clarifies that a Hindu woman has full
ownership over any property that she has acquired
on her own or as stridhana. As a consequence, she
may dispose of the same as per her wish, and that
the same shall not be treated as a part of the joint
Hindu family property.
25. This Court has time and again held that there is
no presumption of joint family property, and there
must be some strong evidence in favour of the same.
In Appasaheb Peerappa Chamdgade v.Devendra Peerappa
Chamdgade [(2007) 1 SCC 521] , after examining the
decisions of this Court, it was held: (SCC p. 532, para 17)
“17. Therefore, on survey of the aforesaid decisions
what emerges is that there is no presumption of a
joint Hindu family but on the evidence if it is
established that the property was joint Hindu
family property and the other properties were
acquired out of that nucleus, if the initial burden is
discharged by the person who claims joint Hindu
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family, then the burden shifts to the party alleging
self-acquisition to establish affirmatively that the
property was acquired without the aid of the joint
family property by cogent and necessary
evidence. ”
[Emphasis Supplied]
23. Thus, in the present case, it is requisite to examine
whether the Plaintiffs produced adequate evidence to dispel
the contention of the defendants that the Suit Schedule
Property was the absolute property of Smt. Lalithamma,
acquired as her Stridhan property.
C. The Evidence Produced
24. Before adverting to the oral and documentary
evidence led by the parties, it is necessary to determine
upon whom the burden lay to establish the true nature of
the Suit Schedule Property. Admittedly, the registered Sale
Deed dated 14.03.1963 (Ex.P12) was in the name of late
Smt. Lalithamma. The respondents/plaintiffs do not dispute
the execution or validity of the said conveyance. Their
specific case, however, is that notwithstanding that the
registered Sale Deed was in the name of late Smt.
Lalithamma, the consideration for the same was provided
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by late Sri D.M. Subbaiah out of the joint family funds and
that late Smt. Lalithamma was merely a nominal purchaser.
Thus, it is the respondents/plaintiffs who sought to displace
the legal effect flowing from the registered conveyance and
establish that the Suit Schedule Property retained the
character of joint family property. The oral and
documentary evidence adduced by the parties is therefore
required to be examined in the aforesaid backdrop.
25. An examination of the registered Sale Deed dated
14.03.1963 reflects that the conveyance expressly records
that the property was sold in favour of "Smt. Lalithamma,
the second wife of D.M. Subbaiah" by one Sri. G.M.
Chinnappa. The vendor further acknowledges receipt of the
entire sale consideration from late Smt. Lalithamma and
records that possession of the property was delivered upon
execution of the Sale Deed. The Sale Deed also recites that
the portions in occupation of tenants were handed over to
her after due notice and unequivocally declares that “you
being the owner of the schedule property sold under this
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deed you can collect rents from the tenants and for which
you are having right."
25.1 Thus, the Sale Deed not only evidences a transfer of
title in favour of late Smt. Lalithamma, but also records
delivery of possession together with the attendant rights of
ownership, including the right to collect rents from the
tenants. It further sets out that the transfer form to transfer
the khata has also been handed over to late Smt.
Lalithamma. The relevant extract of translation of the Sale
Deed is set out below:
“This Deed of Absolute Sale is made and executed on this
Fourteenth day of March, One Thousand Nine
Hundred Sixty Three (14-03-1963) –
BY-
G.M. Chinnappa, son of Subbasheetara Murigappa, now
residing at Tumkur Town, Tumkur District-
IN FAVOUR OF:
Smt. Lalithamma, the second wife of D.M. Subbaiah,
residing at First Floor, Door No. old 50, Subedar Chatram
Road, Bangalore City –
Whereas, on Twenty sixth day of March, One Thousand
Nine Hundred Sixty three, I was residing at Nelamangala
Town, Bangalore District, now the property which I
purchased from N.Gangappa, bearing old No.50, present
No.86,87,88,89 and 90 more fully described in the
schedule hereunder consisting upstair house immovable
property which I purchased for seventeen thousand
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rupees under the absolute sale and the said sale deed
registered in the office of the Sub-Registrar,
Bangalore City, vide Register No.3320/31-3-60,
Book-1 Volume 176 pages 127 to 130.
Since that day the schedule property is in my
possession and occupation, till today I am
collecting the rents from the tenants residing in the
houses mentioned hereunder. The schedule upstair
house entire property sold today in favour of Smt.
Lalithamma for a total sum of Rs.17,000-00
(Rupees Seventeen Thousand only). I have
received the entire sale consideration from you at
the time of execution of this registered sale deed in
the presence of Sub-Registrar. Out of the property
sold the upstair and ground floor mill existing shop is one
which is under your occupation, one small house which is
in my occupation which I vacated and handed over to you,
the remaining portion tenants handed over to you and by
giving notice to them handed over to you. As per this
schedule the entire property is handed over to you today.
Hereinafter you being the owner of the schedule property
sold under this deed you can collect rents from the
tenants and for which you are having right.
There are no any court decree, lease raised by me over
the schedule house, if at all any dispute arisen the same
will be solved by me at my own cost and risk out of my
other movable and immovable properties. As per your
request my vendor who sold the said property now he is
dead and his wife and children from whom in taking the
consent witness I have no objection. Lalithamma, the
purchaser herein you have given notice on behalf of you
and your miner [sic: minor] children to me and lawyer
[sic: legal] heirs of Late N. Gangappa. In this regard a
panchayat was convened and as per its decision I agreed
and the amount given for your developments rupees
seventeen thousand to which the said property sold to
you under this absolute sale deed. Hereinafter either
myself or my heirs will not be having any kind of
rights and connections. In order to transfer khatha
of the said property to your name I affixed
signature on Transfer form and handed over to you.
I handed over all the documents pertaining to schedule
property which were with me and hence I have executed
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this sale deed with my free will and consent by affixing
my signature to this deed of absolute sale .
[Emphasis Supplied]
26. In order to establish that the Suit Schedule Property,
though purchased under a registered Sale Deed dated
14.03.1963 in the name of late Smt. Lalithamma, was in
fact acquired out of the joint family funds of late Sri D.M.
Subbaiah, the plaintiffs principally rely upon the testimony
of PW-1. In her examination-in-chief, PW-1 has deposed
that late Sri D.M. Subbaiah, who was employed in Binny
Mills, used to raise finances by dealing with the joint family
properties and, upon repayment of such liabilities, would
obtain reconveyance deeds in the name of his wife, late
Smt. Lalithamma. According to PW-1, late Smt. Lalithamma
had no independent source of income and her name was
utilised only because she was worldly-wise and actively
participated in the management of the joint family affairs.
It is further deposed that several transactions concerning
the joint family properties were carried out in her name and
that the Suit Schedule Property was acquired out of the
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earnings of late Sri D.M. Subbaiah and the joint family
resources. The relevant extract of the deposition of PW-1 is
set out below:
"2. I submit that I am the lawfully wedded wife of
the defendant no.1 and plaintiffs 1 and 2 are our
sons and we constitute a hindu joint family
governed under Mitakshara law. I submit that our
joint family owns the immovable properties bearing
municipal no's 43, 44 and 45 all situate at Subedar
Chatram Road Bangalore 560009. I submit that we are
getting rentals from the said properties which had
been rented in portions to tenants i.e., defendants
3 to 5 respectively and we are running a joint family
business under the name and style of 'Subramanya
Stores' in the portion of property bearing No.44 and the
same is managed by first plaintiff and myself.
xxx xxx xxx
3. I submit that the said properties of the said joint
family came to be acquired by my late father-in-law
i.e., grandfather of plaintiffs 1 and 2 i.e., late D.M.
Subbaiah and the said D.M. Subbaiah used to raise
finance whenever required and used to get the said
properties released once the liabilities were cleared
and used to execute registered deed in this behalf
regarding the said properties styled as sale deeds
and obtain reconveyance whenever loans were
repaid under deeds styled as sale deeds in the name
of the paternal grandmother of plaintiffs no.1 and 2
for convenience sake and the said grand mother of
plaintiffs 1 and 2 Smt. Lalithamma was worldly
wise and used to take active part in the affairs and
management of joint family properties as the said
D.M. Subbaiah used to be busy with his employment
in Binny Mills and was not wordly wise, as such,
many of the transactions regarding the said joint
family properties used to be carried out in the name
of Smt. Lalithamma and her name came to be
entered in several deeds and also in municipal
katha records concerning the said joint family
properties, though she had no independent source
of income and the said properties belonging to the
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said joint family came to be acquired out of the
income of late D.M. Subbaiah and funds from joint
family resources …"
[Emphasis Supplied]
26.1 PW-1 further deposed that her husband - defendant
No.1, was more interested in films and music and developed
contacts with persons who started influencing him as he was
weak minded in nature and that the defendant No.1 became
a pawn in their hands, failing to look after the affairs of the
joint family properties. It is further stated therein that the
defendant No.1 disappeared around 21.12.2004 and his
whereabouts became unknown. The relevant extract is set
out below:
“4. I submit that the father of plaintiffs 1 and 2 i.e., my
husband was more interested in films and music and
had developed interest in singing and had been
devoting more time to develop contacts and friendship
with persons having connections with films and
playback singing as desired to make a name as
playback singer and used to spend most of the time
with such friends and developed contacts with
persons who started wielding influence over him,
as he was of weak minded nature and gained
control over him and the first defendant became
a pawn in the hands of his friends and never took
interest in looking after the joint family
properties or in taking care of his young children
and myself. I submit that I had to take care of my
young children i.e.. plaintiffs' 1 and 2 and had to take
control of the family affairs and its properties, however,
the first defendant who used to collect the rents from
the tenants and used to spend the amounts for the
gratification of his weaknesses in indulging with the
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activities of his friends connected with film making
under a hope that they would help him to become a big
playback singer. However, his wishes went unfulfilled
and he became a mentally depressed person and a liver
and started acting strangely for the past 3 years and
he always used to spend time out of the house
spending time with friends of questionable antecedents
and never took interest in looking after his wife and
children or improving the joint family properties and it
is feared that he had even became a victim to bad
habits wanting money and ultimately he used to keep
away from his family members and all of a sudden he
started stating that some one had been impersonating
him and is trying to borrow money in his name from
banks etc taking advantage of the missing documents
pertaining to some of the said joint family properties
bearing no. 43 to 45 which were found to be missing in
1999 and paper publication had been made in this
behalf and the first defendant started behaving
unreasonably at times and used to become mentally
weak and unable to comprehend normal things and
even used to imagine that everyone is against him in
the house and used to go to his friends and ultimately
in the month of December, 2004, my husband /
the said first defendant disappeared from
21.12.2004 and his whereabouts became
unknown to us and we lodged missing complaint
to police and the police have lodged FIR in Crime
No.44/2005. I submit that in the meanwhile a letter
dated 27-12-2004 allegedly issued by the first
defendant stating that he had alienated the joint family
properties bearing no's 43, 44 and 45 to the 2nd
defendant addressed to me branding me as his tenant
in respect of the shop Subramanaya stores and asking
me to attorn the tenancy in favour of the second
defendant and pay rents to 2nd defendant and it was
also learnt that similar letters have been issued to
defendants 3 to 5 asking them to attorn tenancy in
favour of the second defendant and pay rents to 2nd
defendant in future. Thereafter, I had caused to
suitable reply to the said letter making it clear that I
am not a tenant under the first defendant and I am his
wife and I am not paying any rents to first defendant
and further make it clear that the said properties no.43
to 45 were never belonged to first defendant absolutely
and he had no rights to convey the same to others
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passing title over the same and the said properties are
all ancestral properties of plaintiffs 1 and 2 and first
defendant and even I am entitled to a share therein in
the event of partition as per reply dated 24.01.2005.”
[Emphasis Supplied]
27. The plaintiffs have also relied upon a newspaper
publication in Kannada daily newspaper “Kannada Prabha”
dated 13.08.2003 (Exhibit P14) asking the public in general
not to negotiate in respect of the Suit Schedule property
except with the plaintiffs. A similar notice was also issued in
Kannada daily Evening newspaper “Sanjayvani” dated
17.01.2005 setting out information with regard to factum of
the husband of the plaintiff (defendant No.1) as “missing”.
27.1 Exhibit P16 is a news item published in English daily
Times of India. However, this item is dated 22.12.1999 and
sets out that attempts are being made to alienate the Suit
Schedule property and that the plaintiffs have right to the
same. Concededly, however, the suit was only filed by the
plaintiffs in the year 2005.
27.2 However, no other evidence in support of these
averments was placed on record. In addition, no
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explanation is forthcoming as to how the defendant No.1
was “missing”, if he was present at the office of Sub-
Registrar and his photograph, signature and thumb
impression appears on each page of the Subsequent Sale
Deed on 22.12.2004.
28. It is also not in dispute that PW-1 entered the family
only upon her marriage with defendant No.1 on 18.05.1979,
whereas the Sale Deed had been executed more than
sixteen years earlier on 14.03.1963. Consequently, and as
has been reflected in the cross-examination of PW-1, she
had no personal knowledge of the circumstances
surrounding the purchase of the Suit Schedule Property, or
the Stridhan available with Smt. Lalithamma or the source
of consideration therefor or the intention of the parties at
the time of the transaction. The relevant extract of the
cross-examination of PW-1 is below:
“It is false to suggest that in the year 1963 my
mother-in-law, out of her streedhana amount had
purchased the suit property. I do not remember
the date on which day I visited Sub registrar’s
office and made enquiry. It is false to suggest that
in the year 2004 Defendant no.2 had purchased the
suit property. I do not remember if on verifying the
registered sale deed dated. 22/12/2004 in Sub-
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registrar office, I came to know about the fact of
Defendant No.2 having purchased the suit property and
I also noted address of Defendant No.2. It is true to
suggest that I had not challenged the Registered
sale deed dated 22/12/2004 executed by my
husband transferring suit property in favour of
Defendant No.2, in any court. Except suit
property no other property was stranding (sic
standing) in the name of my mother-in-law.
xxx xxx xxx
I do not know what work my father-in-law was doing in
Binny Mill. I do not know how much salary he was
getting. It is false to suggest that my mother-in-
law was having stridhan amount with her. I do not
know whether the lease deed dated 1/1/1979 executed
by my mother-in-law in the name of B.K. Mohammed
Ali, my husband had signed or not.”
[Emphasis Supplied]
29. The plaintiffs produced over 60 documents in support
of their case. These includes legal notices and replies,
complaints, newspaper public notices and police complaints
(Exs.P7 to P19, Exs.P25 to P28, Exs.P30 to P31). All these
documents relate to the period post 1999 and would not
support the contention of a joint family nucleus of the period
from 1930’s onwards.
30. During the evidence, however, additional documents
were permitted to be placed on record by an order dated
13.03.2009 passed by the learned Trial Court and multiple
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sale deeds of the period from 1950 to 1963 were marked
by PW-1 including two sale deeds of the year 1939 as
Ex.P53 to Ex.P59.
30.1 The learned Trial Court in the Impugned Judgment has
relied on Exs. P57, P58 and other sale deeds filed to hold
that they prove that originally the owner was one Shri
Narasimha Iyengar, advocate, who sold the property to one
Shri Puttaswamiah who then sold it to Shri D.M. Subbaiah.
Shri D.M. Subbaiah first mortgaged the suit property and
later sold it in favour of Shri G.M. Chinnappa. It was the
said Shri G.M. Chinnappa who then executed the sale deed
(Ex.P12) in favour of Smt. Lalithamma. In addition, a
reference is made to a loan taken from Shri G.M. Chinnappa
which led to a dispute and later the suit property was
reconveyed in the name of Smt. Lalithamma in the following
terms:
“22. Ex.P-58 certified copy of registered sale
deed dated 1.2.1936 goes to prove that one Sri
Narasimha Iyengar, Advocate was owner of suit
property and under registered sale deed dated
1.2.1936 he had sold the suit property in favour of one
Sri Puttaswamaiah. Ex.P-57 certified copy of registered
sale deed dated 9.10.1939 goes to prove that the said
Sri Puttaswamaiah under registered sale deed dated
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9.10.1939 had sold the suit property in favour of Sri
D.M.Subbaiah. Ex.P-53 certified copy of registered
mortgage deed goes to prove that under registered
mortgage deed dated 4.6.1951 late Sri D.M. Subbaiah
had mortgaged suit property in favour of one Sri
Siddalinga Swamigalu, Belimutt. Ex.P-55 certified
copy of registered sale deed dated 22.1.1952
goes to prove that late Sri D.M.Subbaiah under
registered sale deed dated 22.1.1952 had sold
the suit property in favour of one Sri Gangappa.
Ex.P-54 certified copy of registered sale deed dated
26.3.1960 goes to prove that the said Sri Gangappa
had sold suit property in favour of one Sri Channappa.
Ex.P-12 certified copy of registered sale deed
goes to prove that the said Sri Channappa by
executing registered sale deed dated 14.3.1963
had sold suit property in favour of Smt
Lalithamma.
23. The learned Counsel for plaintiffs relying on recitals
of Ex.P-12 registered sale deed has argued before the
Court to the effect that, the recitals of the sale deed
clearly goes to prove that, late Smt. Lalithamma and
her husband had availed loan of Rs.17,000/-
from Channappa and repaid the loan, which they
had availed from Gangappa. Hence, Gangappa
had executed a nominal sale deed in the name of
Channappa. Later there was a dispute between
Smt.Lalithamma and D.M.Subbaiah and Channappa
regarding reconvey of suit property in their names and
a panchayat was held to resolve the dispute, and
as per the decision taken by the panchayat, Sri
Channappa had reconveyed the suit property in
the name of Smt.Lalithamma by executing
registered sale deed as per Ex.P-12. Hence, he
has contended that all the documents i.e., sale
deeds and mortgage deed goes to prove that late
Sri D.M.Subbaiah often use to avail loan on suit
property and after repayment of loans he use to
get the suit property reconveyed either in his
name or in the name of his wife late
Smt.Lalithamma. The recitals of Ex.P-12 sale deed
supports the argument advanced by the learned
Counsel for plaintiffs to the above effect. The recitals of
Ex.P-12 sale deed, goes to prove that there was a
dispute between Channappa and Lalithamma and her
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son regarding reconvey of suit property in their names
and to solve the said dispute, a panchayat was held and
as per the decision taken in the panchayat, Channappa
had agreed to execute sale deed in the name of Smt.
Lalithamma for sum of Rs.17,000/-, the same sum
which he had earlier paid to them. Hence, the recitals
of Ex.P-12 sale deed goes to prove that there is much
force in the argument advanced by the learned Counsel
for plaintiffs to the effect that the suit property was
nominally transferred in the name of Channappa, as
he had advanced loan of Rs.17,000/- to
Smt.Lalithamma and her husband, and later as
per the decision taken in the panchayat, after
receiving back loan amount of Rs.17,000/- from
Smt.Lalithamma, Channappa has retransferred
the suit property in the name of Smt.Lalithamma
by executing a registered sale deed dated
14.3.1963, as per Ex.P-12.”
[Emphasis Supplied]
31. The learned Trial Court then adverts to the fact that
Smt. Lalithamma was a housewife without any independent
source of income, thus holding that the Suit Schedule
Property could not be her self-acquired property.
32. However, there is nothing placed on record to dispel
the contention that the said loan amount was not paid by
Smt. Lalithamma. In addition, the factum of transfer of the
property in the name of Smt. Lalithamma cannot simply be
overlooked.
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33. The assertion of the plaintiffs that late Sri D.M.
Subbaiah had provided the entire consideration and that the
Suit Schedule Property was acquired out of joint family
funds, would thus have to be supported by the documentary
evidence produced. However, no other evidence was
produced to establish either the existence of a joint family
nucleus for the purchase of this property or that the
consideration paid for the Sale Deed emanated from late
Sri.D.M. Subbaiah and not Smt. Lalithamma.
34. The plaintiffs also examined PW-2 and PW-3 in support
of their case. A perusal of their depositions discloses that
they have substantially reiterated the version deposed to by
PW-1, namely, that late Sri D.M. Subbaiah had acquired the
Suit Schedule Property out of the joint family funds and that
late Smt. Lalithamma, although had no independent source
of income, was actively involved in the management of the
family affairs and, therefore, several transactions relating
to the family properties were carried out in her name.
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34.1 The affidavits and evidence-in-chief of both PW-2 and
PW-3 are identical to each other. PW-2 is the driver of a
lorry who is stated to have known Shri D.M. Subbaiah when
he took his lorry for loading purpose to Binny Mills and his
entire evidence is based on hearsay. PW-3 is an agriculturist
who was a resident of Maddur, whose evidence is also based
on information received.
34.2 However, neither PW-2 nor PW-3 claim to have
witnessed the execution of the Sale Deed or the payment of
consideration thereunder. Their evidence regarding the
source of consideration is founded upon information
received and not upon their own personal knowledge. Their
testimony is therefore corroborative of PW-1 and does not
independently establish the plaintiffs' case either.
35. On the other hand, the defendant No.2 has examined
one witness being the Manager of defendant No.2 as DW-1.
A tenant Srinivas Shetty/defendant No.5 was also examined
as DW-2 whose evidence appears to be self-serving.
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36. The Manager of the defendant No.2 who was
examined as DW-1, has deposed that the Suit Schedule
property was the self-acquired and exclusive property of the
defendant No.1 and that it was sold to defendant No.2 by
virtue of a registered sale deed dated 22.12.2004. DW-1
has deposed that originally, Smt. Lalithamma acquired a
larger composite property which included the Suit Schedule
property, by virtue of a registered sale deed dated
14.03.1963. He further deposed that a portion of the
composite property was also sold and conveyed to Smt.
Lakshmidevamma, w/o. T. Narasimhaiah under a registered
sale deed dated 05.08.1963 registered as No.1336/63-64,
Book-I, Volume 1921 at pages 207 to 213 in the office of
the Sub-Registrar, the then Bangalore City North. It was
further deposed that even in this Sale Deed, the property is
described as the absolute property of Lalithamma. The
relevant extract of the evidence of DW-1 is set out below:
“3. I state that the suit schedule property was the
self-acquired absolute and exclusive property of
the first Defendant and he has sold the same to
the Second Defendant herein, pursuant to the
registered sale deed dated 22.12.2004 and the
same has been assigned as pending
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No.520/2004-05 . I state that this sale deed has been
referred to the undervaluation authority for
determination of proper guideline value and for
payment of proper stamp duty and registration charges
thereon. The said sale deed is produced herewith and
marked as Exhibit D2.
4. I state that the first Defendant herein acquired the
suit schedule property by means of intestate
succession, upon the death of his mother Smt.
Lalithamma. I state that upon the death of Smt.
Lalithamma on 12.10.1987, first-Defendant herein,
being the only sole surviving class-1 legal heir has
succeeded to the estate, left behind by
Smt.Lalithamma, under the provisions of the Hindu
Succession Act, 1956. The khata of the suit schedule
property was later transferred and registered in the
name of the first Defendant herein and the copy of the
khata certificates are produced herewith and marked
as Exhibit D3, D4, and D5 respectively. The first
Defendant paid the property taxes in respect of the suit
schedule property and the copy of the tax paid receipts
are produced herewith and marked as Exhibit D6. The
extract from the assessment register showing the
name of the first Defendant herein and the copies of
the khata extracts are produced herewith and marked
as Exhibit D7, D8, and D9 respectively. I state that
the husband of Smt. Lalithamma and the father of the
first Defendant herein Sri. D.M.Subbaiah, had also
passed away on 1.6.1986. The copies of the death
certificates of Smt. Lalithamma and Sri. D.M.Subbaiah
are produced herewith and marked as Exhibit D10 and
D11 respectively.
5. I state that the aforesaid Smt. Lalithamma has
originally acquired the larger composite property
including the suit schedule property, then
measuring about East to West 80 feet and North to
South 42 + 51 1/2 feet, pursuant to the registered
sale deed dated 14.3.1963, registered as
No.3669/62-63, Book-I, Volume 1902 at pages
140 to 144 and registered in the office of the then
Sub-Registrar, Bangalore City North, from its previous
owner Sri. G.M.Channappa. The copy of the said sale
deed dated 14.3.1963 is produced herewith and
marked as Exhibit D12.
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6. I state that Smt. Lalithamma W/o.Sri.
D.M.Subbaiah, the mother of the first Defendant
herein, having purchased the larger composite
property, as detailed in the previous para, sold and
conveyed a portion of the same to Smt.
Lakshmidevamma W/o. Sri.T.Narasimahiah, under the
sale deed dated 5.8.1963, registered as No.1336/63-
64, Book-I, Volume 1921 at pages 207 to 213 and
registered in the office of the Sub-Registrar, the then
Bangalore City North. In this sale deed, she
describes the aforesaid property as her absolute,
exclusive property. It is very important and
relevant to observe that her husband Sri. D.M.
Subbaiah or the name of the first Defendant is not
reflected in this sale deed. In fact, a careful
reading of this sale deed, would clearly establish
that during her lifetime, Smt. Lalithamma had
treated this property as her absolute, exclusive
"Streedhana" property. This sale deed is more
than 4 decades old and as
(sic has) remained unchallenged. This sale deed
and the lease deed referred to below, have come into
existence, at a time, when there was no disputes or
controversy. These documents are very germane,
valid, subsisting and enforceable. The Plaintiffs with a
view to blackmail, intimidate, coerce this Defendant
have filed the above suit, with intent to make wrongful
gain on the part of the Plaintiffs.”
[Emphasis Supplied]
36.1 The deposition of DW-1 further sets out that during
her lifetime, Smt. Lalithamma leased a portion of the
property to various tenants by virtue of registered lease
deeds including 1.1.1979 (Exhibit D13). It was deposed that
the property was Stridhan property of Lalithamma and not
the ancestral or joint family property as below:
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“7. I state that the mother of the first Defendant herein
during her life time, had leased a portion of the
entire composite property including the suit
schedule property to Mr.V.K. Mohammed Ali, S/o.
Mr.P.K.Abdul Khader Haji pursuant to the registered
Lease Deed dated 1.1.1979, registered as 3246/78-79,
Book-I, Volume 2679 at page 159, SF Volume 2696
page 64 and registered in the office of the sub-
registrar, Gandhinagar, Bangalore City. The copy
of the said lease deed dated 1.1.1979 is produced
herewith and marked as Exhibit D13. I state that
in this lease deed Smt. Lalithamma had specifically
stated that she was the sole and absolute owner of
the suit schedule property. I state that since it was
the entire composite property of Smt.Lalithamma, she
had not included her son, the first Defendant herein, as
an executant to the lease deed dated 1.1.1979, which
was executed during her life time, which remain
unchallenged even till date.
st
8. I state that the 1 Defendant is the son of the
deceased Smt.Lalithamma. I state that the suit
schedule property continues as the exclusive property
of the first Defendant, since it has no ancestral nature
and characteristic. The suit schedule property was
the "Streedhana" property of Smt. Lalithamma,
who had absolute right and authority of
alienation and disposal over the suit schedule
property. The suit schedule property was therefore
the absolute and exclusive property of Smt.
Lalithamma and it was never impressed with the joint
family characteristic or joint family status.
9. I state that since the suit schedule property is
not an ancestral property and not a joint family
property, the Plaintiffs have no right whatsoever in the
suit schedule property in question. It is therefore
submitted that the suit for partition prima facie does
not lie and suit deserve to be rejected and dismissed in
limine with exemplary costs. I state that the suit is
totally misconceived and it is based on a total
misconception of law. If at all the Plaintiffs are
aggrieved their remedy lies elsewhere and have no
vested or contingent right with reference to the suit
schedule property.”
[Emphasis Supplied]
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37. Although DW-1 was cross-examined over several days
by counsel for the plaintiffs, no admission to the contrary
was adverted to. In fact, while describing the property, the
following is stated by DW-1 in his cross-examination dated
05.08.2008 and 02.12.2008:
“ CROSS-EXAMINATION OF DW-1 DATED 05.08.2008
The property purchased by Defendant No.2 is consisting
of ground floor and first floor. Ground floor is consisting of
a shop, a passage and a residential house. It is true to
suggest that Plaintiffs are residing in the said house. In
the property purchased by Defendant No.2 under
Ex.D2 Sale Deed portion of property which Smt.
Lalithamma had leased in favour of Defendant No.4
is situating but I cannot say its exact measurement.
(At this stage further cross-examination is
deferred at the request of counsel for Plaintiff)”
FURTHER CROSS-EXAMINATION OF DW-1 DATED
02.12.2008
In the suit property, the Plaintiffs are running
Subrahmanya Stores as tenants. Plaintiffs have taken
st
the shop on rent from the 1 Defendant. I cannot say
since how many years plaintiffs are running the said shop.
But they are running since many years. I have not seen
the rental agreement entered into between Plaintiffs and
st
1 Defendant. I don’t know whether any rental agreement
st
is entered into between them or not. After 1 Defendant
nd st
sold the suit property to 2 Defendant, 1
Defendant had issued notice to his tenants
informing that he has sold the suit property and
nd
rents should be paid to 2 Defendant and he has
nd
sent the notice copy to 2 Defendant also. In the said
st
notice, 1 Defendant had shown that he is residing in the
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suit property. I personally did not enquire the plaintiffs on
what strength they are residing in the suit property. But
nd
enquired the plaintiffs from 2 Defendant company side.
nd
2 Defendant issued notice to plaintiffs that they should
pay rents to him. I don’t know whether the plaintiffs had
replied to the said notice or not. After plaintiffs filed this
st
case, we learnt that they are wife and children of the 1
Defendant.
xxx xxx xxx
Based on the documents produced before the Court, I say
that the suit property is the self acquired property
of Smt. Lathithamma. I don’t know about the old
numbers of suit property. Originally khatha of the suit
property was in the name of Gangappa, later khatha was
transferred in the name of Chinnappa. From Chinnappa,
khatha of the suit property came in Smt. Lalithamma’s
name. It is false to suggest that though we know that the
plaintiffs are the owners of suit property, we colluded with
Defendant No.1 and purchased the suit property from
him.”
[Emphasis Supplied]
37.1 However, this evidence was also based on the
documents produced and was also based not on personal
knowledge of Sri. M.A. Prakash/DW-1 who was a Manager
of the subsequent purchaser.
38. In addition, evidence was also given by DW-2 (A.
Srinivasa Setty who is the Proprietor of Aruna Stores,
tenant in the Suit Schedule property and Defendant No.5 in
the plaint). DW-2 acknowledges his relationship as a tenant
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of Defendant No.1 in respect of Shop No.45 (which is part
of the Suit Schedule property). He also states that he took
the property from the father of the first defendant late Sri.
D.M. Subbaiah in the year 1958 and until the death of Sri.
D.M. Subbaiah, was paying rent to him. After his death, the
rents were being paid to Smt. Lalithamma (mother of
Defendant No.1) and after her death, the rents were being
collected by Defendant No.1. The deposition further sets out
that DW-2 does not acknowledge that he is the tenant of
defendant No.2. The relevant extract of the deposition of
DW-2 is set out below:
“3. I submit that I took the suit schedule shop from
st
the Father of the 1 Defendant Subbaiah in the
year 1958 and he being the absolute owner of the
property. I am in occupation of the schedule shop
as a lawful tenant by paying rents till the death
of the said Subbaiah and thereafter the rents are
paid to the 1st Defendant's Mother Smt.
Lalithamma W/o. Late Subbaiah and after her
death the rents were being collected by the 1st
Defendant on behalf of his family as a Kartha of HUF,
from November 1995 till 12.12.2004. I denied that
st
on the death of Lalithamma Plaintiff and the 1
Defendant are only left as legal heirs. But in fact Smt.
Lalithamma left only Daughter Pramila who died
around 1999 leaving behind only son
Mallikarjuna alias Mani and thus Pramila and the
st
1 Defendant along with the plaintiff jointly
succeeded to the schedule property as Class-I
Legal Heirs.
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st
4. I submit that the 1 Defendant stopped collecting
rents from December 2004 and thereafter he has
not seen in the suit schedule property wherein the
suit premises comprising shops in the front side and
residential units on the hind portion in respect of Shop
No.44.
5. I submit that I am not aware that the 2nd Defendant
st
is the Purchaser of the suit property from the 1
Defendant for a sale consideration, no details are
forthcoming in the plaint as well as in the letter issued
by the 2nd Defendant. In this regard I have sent
interim reply on 26.01.2005 calling upon him to furnish
the details for which so far I have not received any
letter/communication. Therefore I do not accept that
the Second defendant is the purchaser of the property
from the 1st Defendant. Even otherwise, assuming that
the 2nd Defendant has purchased the property from
the 1st Defendant still I am not a Tenant of the
2nd Defendant and the 2nd defendant has not
purchased the property from all the members of
joint family as it is not self acquired property of Mr.
st
Balalsubramanyam (1 Defendant) and the 1st
Defendant is enjoying the property on the death
of his father followed by the death of his mother
st
Smt. Lalithamma and thereby the 1 Defendant
succeeded to the above property as sharer along
with his sister Smt. Pramila. Thus,
Balasubramanyam has succeeded to the schedule
property to the extent of half share only and the
remaining half share was held by Smt. Pramila
Daughter of Subbaiah and Smt. Lalithamma. On the
death of Smt. Pramila her only son Mallikarjuna
alias Mani has succeeded to the property. Thus,
the Plaintiff got half share, right, title, interest in
st
the schedule property along with 1 Defendant as the
co-parcenary property. Therefore, the marketable and
transferable right of Balasubramanyam in favour of the
st
2nd Defendant is defective and that the 1 Defendant
did not possess absolute marketable or transferable
right to sell the same in favour of the 2nd Defendant.
More over the said sale is effected under a clandestine
manner without disclosing the actual sale consideration
and mentioning the sale consideration at a negligible
value and the same is opposed to the principles of law.”
[Emphasis Supplied]
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38.1 In his cross-examination, DW-2 deposed that earlier
he was paying rent to late Sri. Subbaiah and thereafter to
Lalithamma and after her death, to Defendant No.1.
Lalithamma had a daughter who had died four years after
her death. He also deposed that the Suit Schedule Property
was succeeded by defendant No.1 as co-parcenary property
without disclosing any reason therefor. However, since the
entire emphasis of the evidence of DW.2 was not to attorn
to defendant No.2, his evidence has to be examined in this
light.
39. The evidence of DW-2 however does clearly set out
that rental for his portion of the Suit Schedule property was
paid to Smt. Lalithamma and not to defendant No.1 who he
claims became the ‘karta’ after the death of Sri. D.M.
Subbaiah. In addition, DW-2 clearly acknowledges that he
attorned to Smt. Lalithamma as owner.
40. The defendant No.2 also produced other documents in
support of their contention, including a registered lease
deed dated 01.01.1979 executed by late Smt. Lalithamma
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in favour of one V.K. Mohammed Ali in respect of a portion
of the Suit Schedule Property (hereinafter referred to as the
“Lease Deed of 1979”). The recital therein describes late
Smt. Lalithamma as the "sole and absolute owner" of the
immovable property bearing Corporation No.43, Subedar
Chatram Road, Bengaluru. The deed further records that
she agreed to lease the property for a period of thirty-three
years and contains detailed covenants conferring various
rights upon the lessee, including construction, renovation
and peaceful enjoyment of the leased premises.
40.1. The significance of this Lease Deed of 1979 lies not
merely in the recital describing late Smt. Lalithamma as the
sole and absolute owner, but in the fact that she dealt with
the property in her individual capacity as the lessor. The
Lease Deed of 1979 does not indicate that she executed the
document on behalf of a Hindu Undivided Family or in any
representative capacity. Additionally, this lease deed was
witnessed by defendant No.1. On the contrary, every
covenant of this document reflects that she possessed the
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authority to create a long-term lease and regulate the
incidence of the tenancy in her own right. This conduct is
consistent with the assertion that she exercised rights
ordinarily associated with ownership over the property. The
relevant extract of the lease deed is below:
“ LEASE DEED
THIS DEED OF LEASE made and executed at Bangalore,
on the First Day of January, One Thousand Nine Hundred
and Seventy Nine (1.1.1979) between (i). Smt.
Lalithamma, wife of Sri.D.M. Subbaiah , residing at
No.43, Subedar Chatram Road, Bangalore-9, hereinafter
called the "LESSOR" which term shall also mean and
include all her heirs, legal representatives, executors and
assigns of the FIRST PART, and (ii) Sri K Mohammed Ali,
s/o Sri. P.K.Abdul Khader Haji , residing at No.47,
Subedar Chatram Road, Bangalore, hereinafter called the
LESSEE" which term shall also mean and include all his
heirs, legal representatives, executors and assigns of the
OTHER PART, witnesseth as follows:-
Whereas the Lessor is the sole and absolute owner
of the immovable property bearing Corporation
No.43, situated in Subedar Chatram Road,
Bangalore-9.
xxx xxx xxx
1) That in consideration of the payment by the Lessee of
such rent and of the Lessee performing and observing
such obligations and covenants as hereinafter referred and
stipulated, the Lessor agrees to lease the Schedule
property to the Lessee by way of lease for a period
of 33 (thirty three) years commencing from First
Day of October, 1978.
2) That on the date of the registration of the lease deed,
the Lessor shall hand over vacant possession of the
structures on the schedule property which remains in her
own occupation.
xxx xxx xxx
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4) That the Lessee shall pay to the Lessor from the
date of commencement of lease, the following rates
of rent for and during the period of lease:
(i) For the period of six months from 1.10.1978 to
31.3.1979, the Lessee shall pay a sum of Rs.5/- (Rupees
Five only) as rent per month;
(ii) For the next period of 14 years commencing from
1.4.1979 to 31.3.1993, the Lessee shall pay a sum of
Rs.200/- (Rupees two hundred only) as rent per month.
xxx xxx xxx
SCHEDULE "B”
SKETCH
IN WITNESS WHEREOF, the Lessor and the Lessee have
affixed their respective signatures to this Deed of Lease
on the day, month and year first above written.
ಲ ತಮ
LESSOR
WITNESSES: V.K. Mohammed Ali
LESSEE
1) S. Balasubramanya
2) R. Krishna Gowda,
Rajajinagar, B'lore.”
[Emphasis Supplied]
D. Requisites of Joint Family Property :
41. The Supreme Court in the case of D.S. Lakshmaiah
5
and Another Vs. L. Balasubramanyam and Another ,
while considering whether a disputed property was joint-
family property, held that the mere existence of a joint
Hindu family does not give rise to a presumption that every
property held by a member is joint-family property; the
5
(2003) 10 SCC 310
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person asserting such character must first establish the
existence of an adequate joint-family nucleus from which
the acquisition could have been made, and only upon such
foundation being established does the onus shift to the
person claiming the property as self-acquired. The Supreme
Court further held that the failure of the alleged self-
acquirer to establish his separate source of income does
not, by itself, discharge the initial burden resting upon the
person asserting the joint-family character of the property.
The relevant extract is set out below:
“17. In view of the aforesaid discussion, the
respondents having failed to discharge the initial
burden of establishing that there was any nucleus in
the form of any income whatsoever from Item 2
property and no other nucleus was claimed, the burden
remained on the respondents to establish that Item 1
property was joint family property. In this view, the
fact that the first appellant has not led any evidence
to establish his separate income is of no
consequence insofar as the claim of the respondents
is concerned. Under these circumstances, for failure
to lead evidence, the respondents' claim of Item 1
to be joint family property would fail as rightly held
by the first appellate court.
18. The legal principle, therefore, is that there is no
presumption of a property being joint family
property only on account of existence of a joint
Hindu family. The one who asserts has to prove that
the property is a joint family property. If, however,
the person so asserting proves that there was
nucleus with which the joint family property could
be acquired, there would be presumption of the
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property being joint and the onus would shift on the
person who claims it to be self-acquired property to
prove that he purchased the property with his own
funds and not out of joint family nucleus that was
available.”
[Emphasis Supplied]
42. The discussions above reflect that the plaintiffs have,
however, failed to place cogent evidence establishing the
existence of a joint-family nucleus of sufficient extent and
income which was available for financing the acquisition in
1963. The oral evidence relied upon by them, as noticed
hereinabove, also does not emanate from any witness
having personal knowledge of the original transaction or
payment of consideration. The execution of 3-4 sale deeds
(Exhibits P57 to P59) does not by itself reflect a joint family
nucleus qua the Suit Schedule Property. There is nothing on
record to dispel the assertion that the amounts were paid
by Smt. Lalithamma from her Stridhan money. There would
otherwise be no reason for the transfer from Shri G.M.
Chinnappa to her name in 1963. The subsequent conduct of
late Smt. Lalithamma, particularly as reflected in Lease
Deed of 1979, wherein she dealt with the property in her
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own capacity and asserted ownership thereof, is also
consistent with the recitals contained in Sale Deed.
43. An argument has been made by the plaintiffs that the
Sale Deed of 1963 was a ‘benami’ transaction. Explaining
when a transaction can be considered as ‘benami’, the
Supreme Court in the case of Mangathai Ammal (Died)
through Legal Representatives and Others Vs. V.
6
Rajeswari and Others , has held that the burden of
proving that the apparent purchaser is not the real owner
rests upon the person asserting the benami nature of the
transaction, and such burden must be discharged by cogent
evidence; the apparent purchaser starts with an initial
presumption in her favour, and the Court must determine
the true nature of the transaction by considering the source
of consideration, possession, motive, relationship of the
parties and their subsequent conduct. The relevant extract
is set out below:
“7. While considering the issue involved in the present
appeal viz. whether the transactions/sale deeds in
favour of Defendant 1 can be said to be benami
transactions or not, the law on the benami
6
(2020) 17 SCC 496
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transactions is required to be considered and few
decisions of this Court on the aforesaid are required to be
referred to.
7.1. In Jaydayal Poddar [Jaydayal Poddar v. Bibi
Hazra, (1974) 1 SCC 3] it is specifically observed
and held by this Court that the burden of proving
that a particular sale is benami and the apparent
purchaser is not the real owner, always rests on the
person asserting it to be sold. It is further observed
that this burden has to be strictly discharged by
adducing legal evidence of a definite character
which would either directly prove the fact of the
benami transaction or establish circumstances
unerringly and reasonably raising an interference of
that fact. In para 6 of the aforesaid decision, this Court
has observed and held as under: (SCC pp. 6-7)
“6. It is well settled that the burden of proving that a
particular sale is benami and the apparent purchaser is
not the real owner, always rests on the person asserting
it to be so. This burden has to be strictly discharged by
adducing legal evidence of a definite character which
would either directly prove the fact of benami or
establish circumstances unerringly and reasonably
raising an inference of that fact. The essence of a
benami is the intention of the party or parties
concerned; and not unoften, such intention is shrouded
in a thick veil which cannot be easily pierced through.
But such difficulties do not relieve the person asserting
the transaction to be benami of any part of the serious
onus that rests on him; nor justify the acceptance of
mere conjectures or surmises, as a substitute for proof.
The reason is that a deed is a solemn document
prepared and executed after considerable
deliberation, and the person expressly shown as
the purchaser or transferee in the deed, starts
with the initial presumption in his favour that the
apparent state of affairs is the real state of affairs.
Though the question whether a particular sale is
benami or not, is largely one of fact, and for
determining this question, no absolute formulae
or acid tests, uniformly applicable in all
situations, can be laid down; yet in weighing the
probabilities and for gathering the relevant
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indicia, the courts are usually guided by these
circumstances : (1) the source from which the
purchase money came; (2) the nature and
possession of the property, after the purchase;
(3) motive, if any, for giving the transaction a
benami colour; (4) the position of the parties and
the relationship, if any, between the claimant and
the alleged benamidar; (5) the custody of the title
deeds after the sale; and (6) the conduct of the
parties concerned in dealing with the property
after the sale. ”
xxx xxx xxx
8. Even the reasoning and the findings recorded by the
trial court confirmed by the High Court while holding the
sale deeds/transactions in favour of Defendant 1 as
benami cannot be said to be germane and/or fulfilling the
circumstances as carved out by this Court in the aforesaid
decisions.
8.1 . The first reason which is given by the learned trial
court while holding the suit properties as benami
transactions is that part sale consideration was paid by
Narayanasamy Mudaliar at the time of the purchase of the
property vide sale deed, Ext. B-3 . As held by this Court
in a catena of decisions referred to hereinabove, the
payment of part sale consideration cannot be the
sole criterion to hold the sale/transaction as
benami. While considering a particular transaction
as benami, the intention of the person who
contributed the purchase money is determinative of
the nature of transaction. The intention of the
person, who contributed the purchase money, has
to be decided on the basis of the surrounding
circumstances; the relationship of the parties; the
motives governing their action in bringing about the
transaction and their subsequent conduct, etc. It is
required to be noted that Narayanasamy Mudaliar, who
contributed part sale consideration by purchasing property
at Ext. B-3, might have contributed being the husband and
therefore by mere contributing the part sale
consideration, it cannot be inferred that sale deed in
favour of Defendant 1 wife was benami transaction
and for and on behalf of the joint family . Therefore,
the trial court as well as the High Court have committed a
grave error in holding the suit properties as benami
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transactions/ancestral properties on the basis of the
document at Ext. B-3.
[Emphasis Supplied]
43.1 The plaintiffs however, did not establish that late Smt.
Lalithamma was merely a nominal purchaser or that the
Suit Schedule Property was acquired for and on behalf of
the joint family. Accordingly, the plea that the Suit Schedule
Property was nominal/benami property cannot also be
accepted.
44. An analysis of the aforesaid gamut of facts shows the
following undisputed facts:
(i) On 14.03.1963, one Sri. G.M.Chinnappa executed a
registered sale deed in favour of Smt. Lalithamma in
respect of a portion of the property which included the
Suit Schedule property. One portion of the larger
property was sold in favour of Smt. Lakshmidevamma
by virtue of another registered sale deed dated
05.08.1963. On 01.01.1979, a lease-deed was
registered in favour of one V.K. Mohammed Ali by
Smt.Lalithamma of a portion of the Suit Schedule
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property. Upon the death of Smt.Lalithamma on
12.10.1987, her legal heir/son had mutated the
municipal and revenue records in his name.
(ii) On 22.12.2004, defendant No.1 executed a sale
deed in favour of defendant No.2 wherein it was set
out that the defendant No.1 has succeeded to the Suit
Schedule property by virtue of intestate succession
upon the demise of Smt. Lalithamma and the husband
of Smt. Lalithamma Shri Subbaiah had already
predeceased her on 01.02.1986.
(iii) The daughter of Smt. Lalithamma is also stated to
have passed away in the year 1999 prior to such
execution. This fact has not been disputed by the
plaintiffs. There is, however, no evidence of any legal
heir of the said daughter of Smt. Lalithamma placed
on record by either party.
45. On a cumulative appreciation of the evidence, this
Court is unable to accept the contention of the plaintiffs that
the Suit Schedule Property, though purchased in the name
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of late Smt. Lalithamma under the Sale Deed, was in fact
acquired by late Sri D.M. Subbaiah out of the funds of the
joint family in the name of Smt. Lalithamma. As noticed
hereinabove, the Sale Deed expressly records late Smt.
Lalithamma as the purchaser, acknowledges receipt of the
entire sale consideration from her and records delivery of
possession to her, together with the right to collect rents
from the tenants. Thus, the plaintiffs who had the burden
of establishing the existence of the joint family funds qua
the purchase of the Suit Schedule Property failed to
discharge the burden. The defendant No.2 thus did not
require to prove the contrary, given the settled legal
position.
46. Having held that the plaintiffs have failed to establish
that the Suit Schedule Property was acquired from the joint-
family nucleus or that late Smt. Lalithamma was merely a
nominal purchaser, the Suit Schedule property has to be
considered as property acquired by late Smt. Lalithamma in
her own right. In this regard, Section 14(1) of the Hindu
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Succession Act, 1956, assumes significance. The provision
expressly includes within the ambit of “property” any
movable or immovable property acquired by a female Hindu
“by purchase” and declares that such property shall be held
by her as the full owner thereof and not as a limited owner.
Consequently, by virtue of Section 14(1) of the Hindu
Succession Act, late Smt. Lalithamma held the Suit
Schedule Property as its full owner and not as a limited
owner.
47. Upon the intestate death of late Smt. Lalithamma, the
devolution of the property so held by her would be governed
by the provisions of Sections 15 and 16 of the Hindu
Succession Act. These provisions are set out below:
“15. General rules of succession in the case of female
Hindus.— (1) The property of a female Hindu dying
intestate shall devolve according to the rules set out
in section 16, —
(a ) firstly, upon the sons and daughters (including
the children of any pre-deceased son or daughter)
and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
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(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section
(1),—
(a) any property inherited by a female Hindu from her
father or mother shall devolve, in the absence of any
son or daughter of the deceased (including the children
of any pre-deceased son or daughter) not upon the
other heirs referred to in sub-section (1) in the order
specified therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her
husband or from her father-in-law shall devolve, in the
absence of any son or daughter of the deceased
(including the children of any pre-deceased son or
daughter) not upon the other heirs referred to in sub-
section (1) in the order specified therein, but upon the
heirs of the husband.
16. Order of succession and manner of
distribution among heirs of a female Hindu. —The
order of succession among the heirs referred to in section
15 shall be, and the distribution of the intestate’s property
among those heirs shall take place according to the
following rules, namely:—
Rule 1.—Among the heirs specified in sub-section
(1) of section 15, those in one entry shall be
preferred to those in any succeeding entry, and
those included in the same entry shall take
simultaneously.
Rule 2.—If any son or daughter of the intestate had pre-
deceased the intestate leaving his or her own children
alive at the time of the intestate’s death, the children of
such son or daughter shall take between them the share
which such son or daughter would have taken if living at
the intestate’s death.
Rule 3.—The devolution of the property of the intestate
referred to in clauses (b), (d) and (e) of sub-section (1)
and in sub-section (2) of section 15 shall be in the same
order and according to the same rules as would have
applied if the property had been the father’s or the
mother’s or the husband’s as the case may be, and such
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person had died intestate in respect thereof immediately
after the intestate’s death.”
[Emphasis Supplied]
48. The Supreme Court in the case of Sachidhanandam
since dead through his Legal Representative Vs. E.
7
Vanaja and Others , while considering the devolution of
the estate of a female Hindu dying intestate, has held that
Sections 15 and 16 of the Hindu Succession Act, 1956, must
be read together and that, under Section 15(1)(a), the
property of a female Hindu dying intestate devolves in the
first instance upon her sons and daughters (including the
children of any predeceased son or daughter) and her
husband. The Court further held that, under Rule 1 of
Section 16, the heirs falling within the same entry take
simultaneously and are preferred to heirs in succeeding
entries. The relevant extract is set out below:
“11. Sections 15 and 16 of the Act provide that the
property of a female Hindu dying intestate shall devolve
according to the rules set out in Section 16. Section
15(1)(a) provides that such devolution shall be
firstly, upon the sons and daughters (including the
children of any pre-deceased son or daughter) and
the husband. The rule for distribution of the
intestate property of a female Hindu and order of
7
(2024) 19 SCC 731
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succession is provided under Section 16 of the Act
according to which, the order of succession among
the heirs of a female Hindu referred to in Section 15
shall be firstly, as per rule 1 thereof, among the
heirs specified in sub-section (1) of Section 15 of
the Act.
12 . A combined reading of Section 15(1)(a) and
Section 16 of the Act would make it manifest that
the property of a female Hindu dying intestate shall
devolve, firstly, upon the sons and daughters
(including the children of any pre-deceased son or
daughter) and the husband. Therefore, the plaintiff
being the widow of the pre-deceased son does not have
the first right or entitlement to receive any share in the
share of her mother-in-law.
[Emphasis Supplied]
49. In the present case, late Sri D.M. Subbaiah, husband
of late Smt. Lalithamma, had admittedly predeceased her,
having died on 01.02.1986, whereas late Smt. Lalithamma
died intestate thereafter on 12.10.1987. Late Smt.
Lalithamma is also stated to have given birth to a daughter
by name Prameela, who had died around the year 1999.
Smt. Lalithamma had one son and he would succeed to her
estate as both her husband and daughter had passed away.
50. It has been deposed by DW-2, the tenant, that the
daughter had a son Mallikarjuna as her legal heir. However,
the plaintiffs had neither pleaded with the existence of
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Prameela in the plaint nor led any evidence in that regard.
D.W.2, in his cross-examination, further stated that he did
not know the whereabouts of Mallikarjuna and could not
state when he had last seen him. The Trial Court, therefore,
proceeded on the basis of the material then available before
it. Significantly, no issue was framed by the Trial Court
determining the status of Prameela or the alleged
entitlement of her son Mallikarjuna in the Suit Schedule
Property.
51. At the same time, in his cross-examination, D.W.2
stated that he had last seen Smt. Prameela about ten years
earlier i.e., around 1995 and that he did not know the
whereabouts of her son Mallikarjuna or when he had last
seen him. The Trial Court further noticed that the plaintiffs
had neither pleaded in the plaint that Defendant No.1 had
a sister by name Prameela nor had P.W.1 stated in her
evidence that Defendant No.1 had such a sister or that she
had left behind Mallikarjuna as her legal heir.
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52. It is, therefore, evident that while there is evidence on
record, through D.W.2, regarding the alleged existence of
Prameela and her son, the same is not supported by the
pleadings or evidence of the plaintiffs. Further, the material
on record does not appear to contain any independent
documentary evidence establishing the relationship of
Prameela with late Smt. Lalithamma, the date of Prameela's
death, or the status of Mallikarjuna as her legal heir. In any
event, no claim has been made by any person as the legal
heir of the deceased daughter of Smt. Lalithamma on any
part of the Suit Schedule Property till date.
53. Accordingly, and in view of the fact that the plaintiffs
have been unable to show any cogent evidence in relation
of the existence of a Joint Hindu Family nucleus of funds,
even assuming that a Joint Family was in existence, in terms
of the settled legal position in the Marabasappa case, the
factum of the Suit Schedule property or the larger property
being purchased from joint family funds, has not been
indicated from the evidence of the plaintiffs. Merely to
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assume, that because Smt. Lalithamma was a woman and
was unemployed, she would not have any funds, as has
been assumed by the learned Trial Court, would not be in
order. It is not disputed that Lalithamma was the second
wife of late Sri. D.M.Subbaiah and the Suit Schedule
Property this is stated to be the only property registered in
her name. The right to property of a female Hindu is
absolute in terms of Section 14 of the Hindu Succession Act
and the record does reflect that Smt. Lalithamma was
dealing with the property in the manner she deemed fit
much as an absolute owner during her lifetime, after which
defendant No.1 succeeded to it.
VIII. Conclusion :
54. In view of the aforegoing discussion, this Court is
unable to agree with the conclusion arrived at by the learned
Trial Court.
55. The appeal is accordingly allowed . The Judgment and
Decree dated 15.09.2009 passed in O.S.No.914/2005 by
the learned XXXVIII Additional Civil Judge, Bangalore, is
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hereby set aside. Consequently, the suit filed by the
respondent Nos.1 to 3/plaintiffs is dismissed.
56. Pending applications, if any, stand closed. No order as
to costs.
Sd/-
(JAYANT BANERJI)
JUDGE
Sd/-
(TARA VITASTA GANJU)
JUDGE
YN/KS
List No.: 2 Sl No.: 1
77