Sri. T. Narayana Reddy vs Smt. Nirmala on 19 February, 2024

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Karnataka High Court

Sri. T. Narayana Reddy vs Smt. Nirmala on 19 February, 2024

Author: Krishna S Dixit

Bench: Krishna S Dixit

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                                                        NC: 2024:KHC:6869-DB
                                                        RFA No. 491 of 2016



                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 19TH DAY OF FEBRUARY, 2024            R
                                           PRESENT

                           THE HON'BLE MR JUSTICE KRISHNA S DIXIT

                                              AND

                            THE HON'BLE MR JUSTICE G BASAVARAJA

                         REGULAR FIRST APPEAL NO. 491 OF 2016 (PAR)

                   BETWEEN:

                   1.    SRI. T. NARAYANA REDDY,
                         S/O. LATE THIMMAIAH REDDY,
                         AGED ABOUT 70 YEARS,

                   2.    SRI. LOKESH
                         S/O. T. NARAYANA REDDY,
                         AGED ABOUT 35 YEARS,

                         BOTH ARE RESIDING AT NO.115,
                         1ST MAIN ROAD, 8TH BLOCK,
Digitally signed         KORAMANGALA VILLAGE,
by SHARADA               BANGALORE-560 095.
VANI B                                                         ...APPELLANTS
Location:
HIGH COURT         (BY SRI.SADANAND SHASTRI., ADVOCATE FOR A2;
OF
KARNATAKA               A1 IS DEAD V.C.O DATED 18.02.2019)

                   AND:

                   1.    SMT. NIRMALA,
                         D/O. T. NARAYANA REDDY,
                         AGED ABOUT 45 YEARS,
                         R/AT NO.8/1, 8TH BLOCK,
                         OPP: POLICE STATION ROAD,
                         KORAMANGALA VILLAGE,
                         BANGALORE-560 095.
                             -2-
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                                        RFA No. 491 of 2016



2.   SMT. MANJULA N
     D/O. T. NARAYANA REDDY,
     AGED ABOUT 52 YEARS,
     PRESENTLY R/AT NO.101/5,
     SUDDAGUNTE PALYA, 9TH CROSS,
     VENKATESHWARA LAYOUT,
     BANGALORE-560 029.

3.   SMT. SUKANYA
     D/O. T. NARAYANA REDDY,
     AGED ABOUT 50 YEARS,
     PRESENTLY R/AT NO.61-1,
     YALLAMMA DEVI TEMPLE ROAD,
     BANGALORE-560 076.

4.   SMT. LAKSHMI
     D/O. T. NARAYANA REDDY,
     AGED ABOUT 40 YEARS,
     PRESENTLY R/AT NO. 155/D, 4TH MAIN,
     5TH CROSS, NEW THIPPASANDRA,
     HAL 3RD STAGE, BANGALORE-560 075.
                                             ...RESPONDENTS

(BY SRI.B RAMESH., ADVOCATE FOR R1;
    SRI. A G RAVIKUMAR., ADVOCATE FOR R2;
    SRI. VENKATESHWARA BALU., ADVOCATE FOR R3;
    SRI. MAHADEVASWAMY., ADVOCATE FOR R4)


      THIS RFA FILED UNDER SEC.96 R/W ORDER 41 RULE 1
OF    CPC.,   AGAINST   THE       JUDGMENT   AND   DECREE
DATED18.12.2015 PASSED IN OS.NO.2697/2010 ON THE FILE
OF THE 42ND ADDL. CITY CIVIL AND SESSIONS JUDGE,
BENGALURU, (CCH NO.43), DECREEING THE PARTITION.


      THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
KRISHNA S. DIXIT.J., DELIVERED THE FOLLOWING:
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                                           RFA No. 491 of 2016




                        JUDGEMENT

This Appeal by Defendant Nos. 1 & 5, father & son

seeks to lay a challenge to the judgement & Decree dated

18.12.2015 whereby the partition suit in

O.S.No.2697/2010 filed by first Respondent- Smt. Nirmala

has been decreed. Their operative portion reads as under:

“Suit of the plaintiff is decreed with costs.
The plaintiff is entitled to get 1/6th share in the
suit properties by metes and bounds along with
mesne profits.

Separate enquiry is to be held regarding mesne
profits.

Draw preliminary decree accordingly.”

2. BRIEF FACTS OF THE CASE:

(a) One Smt.Eramma W/o Thimmaiah had bought

suit properties vide registered sale deeds dated

10.4.1944, 10.6.1950 and 12.7.1953. Copies of these sale

deeds are sought to be produced in the Appeal with leave

of the Court vide Appellants’ Application filed under Order

XLI Rule 27 of the Code of Civil Procedure, 1908 which

merits to be allowed for the limited purpose of deciding

the nature of property i.e., whether they are ancestral or
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RFA No. 491 of 2016

otherwise, there being no serious objections from the side

of Respondents herein.

(b) Smt.Eramma had two sons namely

Mr.Narayana Reddy i.e., the first Defendant (Appellant

No.1 herein) and Mr.Ramaiah. She had a daughter too

namely Smt.Munithayamma. There was a family partition

vide registered deed dated 27.7.1970 (Ex.P.5) whereby,

these properties were partitioned between the children,

Rs.1,000/- having been given to Smt.Eramma as her

share. Suit properties are those that had fallen to the

share of Mr.Narayana Reddy.

(c) Mr.Narayana Reddy has one son i.e., Defendant

No.5 in the suit who happens to be Appellant No.2 herein

and four daughters, as well; 1st Respondent herein who

was the Plaintiff is one of them. Other daughters happen

to be the Respondents in this Appeal and they were

Defendants in the subject suit for partition. Only the 1st

Appellant had filed the Written Statement and the learned

Trial Judge had framed the following three principal

issues:

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(i) Whether the plaintiff proves that, the
suit schedule property is joint family property?

(ii) Whether the defendants prove that,
the plaintiff has taken amount as her share and
attested as a witness to the Sale Deed executed
by him?

(iii) Whether the plaintiff is entitled for
reliefs as sought for?

(d) From the side of Plaintiff, she got herself

examined as PW.1 and in her deposition, as many as

seven documents came to be marked as exhibits P.1 to

P.7. They comprised of undisputed Genealogical Tree,

revenue documents, Partition Deed of 1970, Encumbrance

Certificates and Sketch. From the side of Defendants, the

2nd Appellant got examined as DW.1; in his deposition, as

many as nine documents came to be marked as per

Exhibits D1 to D9. These documents comprised of four

Gift Deeds, one Sale Deed, one Rectification Deed, one

Mortgage Deed and two GPAs.

(e) The learned Trial Judge having considered

pleadings of the parties and weighed both the oral and

documentary evidence, has entered the subject

judgement & decree that are put in challenge by the
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Defendant Nos.1 & 5 who happen to be the father and

son. The learned Judge in his wisdom treated the subject

properties as being ancestral ones and therefore, all the

grandchildren of Smt.Eramma are entitled to a share. In

the absence of a Counter Claim or the like, 1/6th share has

been granted to the Plaintiff alone.

3. SUBMISSION OF APPELLANTS:

(a) Learned counsel appearing for Appellants

vehemently argues that the properties having been

bought by Smt.Eramma, she was the absolute owner

thereof and she was in the exclusive possession. Because

of section 14 of the Hindu Succession Act, 1956, she had

full ownership over these properties vide TULASAMMA

vs. SESHA REDDI (DEAD) BY L.Rs, AIR 1977 SC 1944.

Even after the partition of 1970, these properties do not

bear the character of ancestral acquisition; the shares

allotted to the 1st Appellant Mr.Narayana Reddy being his

separate property, the suit for partition would not lie. This

aspect having been lost sight of, the impugned judgement
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& decree are liable to be voided. The Court below read

too much into the stray admission of Appellant No.2 who

was examined as DW.1, when there was contra

evidentiary material galoring on record and thus, there is

a great infirmity warranting interference of this Court. He

also highlights the improvements for developments made

to the properties in question.

4. CONTENTIONS OF THE RESPONDENTS:

Learned Advocates appearing for the Respondents

vehemently contended that there is abundant evidentiary

material on record coupled with admission of DW.1 that

the properties are ancestral acquisition and therefore, the

1st Appellant who was the Defendant No.1 cannot claim

them to be his separate property and thereby, dealt with

the same accordingly. Even otherwise, the subject

properties having been put into a common hotchpot,

eventually resulting into joint family property, the

assertion of the Appellants that they do not have

trappings of ancestral property, pales into insignificance.
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Lastly, they contend that the impugned judgement &

decree even assuming that they have some arguable

infirmity, do not merit interference, their unsustainability

having not being demonstrated.

5. Having heard the learned counsel for the

parties and having perused the Appeal papers, we decline

interference in the matter for the following reasons:

(a) The question whether the subject properties are

ancestral properties at the hands of the parties to the suit

does not much bother us. There is admission of DW.1 who

happens to be the 2nd Appellant herein and who was the

5th Defendant in the suit. In his cross-examination dated

15.4.2015, he has said as under:

“The suit property is not purchased by myself or
my father. It is true that the suit property is our
ancestral property. It is true that the Khatha of
suit property was standing in the name of my
father. It is true that including old house they
were in the name of my father… It is true that
my family is running from the income of Mobile
shop… It is true that myself, Plaintiff &
Defendants are the successors to the suit
property.”

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(b) The vehement submission of learned counsel

for the Appellants that, above is a stray admission and

therefore, not entitled to weigh much, is bit difficult to

countenance, and reasons for the same are not far to

seek: firstly, an admission is treated as a substantive

piece of evidence in any civilized jurisdiction. Section 58 of

the Indian Evidence Act, 1872 states that the admitted

facts need not be proved. Of course, section 31 qualifies

that admissions are not a conclusive proof of the matter

admitted, is also true. However, this qualification cannot

be invoked by the Appellants who did not conduct

re-examination of DW.1 for explaining away the effect of

admission. Nothing is stated even at the Bar as to why

such a right of re-examination was not availed. What the

Apex Court said in UNITED INDIA INSURANCE

COMPANY LIMITED vs. SAMIR CHANDRA

CHAUDHARY (2005) SCC OnLine SC 1030 at page 387 is

worth adverting to:

“…Admission is the best piece of evidence
against the persons making admission. As was
observed by this Court in Avadh Kishore Das v.

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Ram Gopal and Ors., AIR (1979) SC 861 in the
backdrop of Section 31 of Indian Evidence Act,
1872 (in short the `Evidence Act’) it is true that
evidentiary admissions are not conclusive proof
of the facts admitted and may be explained or
shown to be wrong; but they do raise an
estoppel and shift the burden of proof placing it
on the person making the admission or his
representative-in-interest. Unless shown or
explained to be wrong, they are an efficacious
proof of the facts admitted. As observed by
Phipson in his Law of Evidence (1963 Edition,
Para 678) as the weight of an admission
depends on the circumstances under which it
was made, these circumstances may always be
proved to impeach or enhance its credibility.
The effect of admission is that it shifts the onus
on the person admitting the fact on the principle
that what a party himself admits to be true may
reasonably be presumed to be so, and until the
presumption is rebutted, the fact admitted must
be taken to be established. An admission is the
best evidence that an opposing party can rely
upon, and though not conclusive is decisive of
matter, unless successfully withdrawn or proved
erroneous…”

(c) Secondly, in all the registered conveyances

executed by Mr.Narayana Reddy himself, these properties

are described to be ancestral ones, barring one sporadic

incident. For instance, in Ex.D4, it is written as under:

“…µÉqÀÆå°£À°è £ÀªÀÄÆ¢¹gÀĪÀ ¸ÀévÀÄÛ £ÀªÀÄä ¦vÁæfðvÀªÁzÀ ¸ÀévÁÛVzÀÄÝ
EzÀÄ £À£Àß ¸ÀéAvÀ ¸Áé¢üãÁ£ÀĨsÀªÀzÀ°ègÀÄvÀÛzÉ. F µÉqÀÆå®Ä ¸ÀévÀÛ£ÀÄß
vÀºÀ¯ïªÀgÉ«UÀÆ £Á£Éà ¸ÁUÀĪÀ½ ªÀiÁrPÉÆArzÀÄÝ £À£Àß
C£ÀĨsÀªÀzÀ°ègÀÄvÀÛzÉ…”

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Similarly, in Ex.D5, the properties are described:

“…Same is Donor’s Ancestral Property, having
acquired the same through a Family Partition
made between the Donor, his mother and
brother on 27.7.1970…”

Further, in Ex.D7, it is written as under:

“…The same is Donor’s Ancestral Property,
having acquired the same by the Donor along
with the other parties through a Family
Partition Deed made between the Donor and is
other family members…”

In view of these specific recitals that are not disputed nor

explained away as being wrong, there is absolutely no

scope for employing the adjective ‘stray’ to the admission

given by the 2nd Appellant herein who was examined as

DW.2 in the suit. The properties were treated as of joint

family, is demonstrated by words, by conduct and by

deeds of Defendant No.1 in the suit.

(d) As already observed above, in terms of

application under Order XLI Rule 27 of CPC, leave having

been granted, the three Sale Deeds of Smt.Eramma dated

10.4.1944, 10.6.1950 and 12.7.1953, having been taken

on record, are perused by us. Smt.Eramma became the

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owner of these properties, remains undisputed. However,

she only had put these properties in the common hotchpot

parties admittedly being the Hindus governed by

Mithakshara and effected partition of the same amongst

her two sons and one daughter, herself retaining none

vide registered Partition Deed dated 27.7.1970 vide

Exhibit P.5. All the parties to the suit have structured

their stand in the court below and before this court on the

basis of this Partition Deed. It is nobody’s case that it

was not a joint hindu family. Even the three sale deeds

now sought to be placed on record in terms of Order LXI

Rule 27 of the Code do not deviate from this substratum.

(e) It hardly needs to be stated that Mithakshara is

a monumental work of sage Vignaneshwara of Marathur,

Kalaburagi District in Karnataka. It is his commentary on

Yaajnavalkya Smruti. There is a lot of literature in Hindu

Law which recognizes the doctrine of blending of

individual’s property into joint familys’ so that it becomes

the family property for enuring to the benefit of all its

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RFA No. 491 of 2016

members. Mayne’s ‘Treatise on Hindu Law & Usage’, 18th

Edition at paragraph 301 says as under:

“Property thrown into common stock.-
Thirdly, property which was originally self-
acquired, may become joint family property, if it
has been voluntarily thrown by the owner into
the joint stock, with the intention of abandoning
all separate claims upon it. This doctrine has
been repeatedly recognised by the Privy
Council. Perhaps, the strongest case was one,
where the owner had actually obtained a
statutory title to the property under the Oudh
Talukdars Act 1 of 1869. He was held by his
conduct to have restored it to the condition of
ancestral property…”

Law relating to blending of separate property with those

of joint family is well settled. If a member of a joint hindu

family voluntarily throws his self-acquired property into a

common stock with the intention of abandoning his

separate claim over it and to render it to be of all other

members as well, such a property becomes a joint family

property. Such an intention can be inferred by the words

and if there are no words, then from his conduct.

(f) Admittedly, the martriarch of the family

Smt.Eramma having bought several properties by virtue

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of 1944, 1950 & 1953 Sale Deeds, was the absolute

owner thereof. In fact, that is the case pleaded by the

Appellants pressing into service section 14 of the 1956 Act

in the light of Tulasamma case supra. She had put these

properties into common hotchpot of the joint family by

virtue of registered Partition Deed of 1970. Had she been

a limited owner, she could not have put these properties

into a common hotchpot vide MALESSAPPA BANDEPPA

vs. DESAI MALLAPPA, (1962) 2 SCJ 589. Added, to

invoke this doctrine, the family need not be shown to

have other property, with which blending can logically

take place. Thus, the invocation of section 14 of the 1956

Act strengthens the case of the Respondents than that of

the Appellants in view of the above discussion.

(g) It hardly needs to be stated that every Hindu

family is presumed to be joint although such a

presumption does not extend to there being joint family

properties. The Partition Deed of 1970 in the first part has

the narration of Smt.Eramma who states these properties

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to be her own acquisition and that she was in possession.

However, in the latter part, there is a recital as to she and

her children being in the joint possession and enjoyment

of the same. Added, there were proceedings in respect of

these properties under the Inams Abolition Acts and both

the sides agree that there are Regrant Orders made by

the Special Deputy Commissioner. Nobody has set a case

contrary to the content, intent & tenor of the Partition

Deed or other conveyances by way of registered Gifts, etc.

as already mentioned above. Partitioning of the self

acquired property amongst all the members of the family

by the matriarch raises a very strong presumption as to

the subject properties having been put into a common

hotchpot and that there is nothing on record to rebut the

same. That being the position, there is an eminent case

for the invocation of the doctrine of common hotchpot.

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(h) Learned counsel for the Appellants to an extent

is right in submitting that the doctrine of blending has not

animated the impugned judgement & decree, in so many

words. However, if pleadings of the parties coupled with

the evidentiary material on record, give scope for the

invocation of this doctrine, this Court being the First

Appellate Court cannot refrain from pressing into service

the said doctrine to save the judgement & decree, which is

otherwise vulnerable for challenge, as rightly contended

by learned advocates appearing for the Respondents.

Even otherwise, our interference that way is eminently

needed inasmuch as one of the daughters of the 1st

Appellant was not given any share in the property and she

was left high & dry in her matrimonial home. This has

been duly addressed by the Court below.

(i) Lastly, there is one more aspect that comes in

the way of Appellants’ laying a challenge to the judgement

& decree. Admittedly, under 1970 Partition Deed,

Smt.Eramma had given shares in her properties in favour

of two sons & one daughter. One of these sons is the

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Defendant No.1 in the suit who happens to be the 1st

Appellant herein. He having passed away during the

pendency of this Appeal, has left the estate for the benefit

of parties to the Appeal. All the parties to the 1970

Partition Deed, are estoped from contending to its contra.

Ordinarily, a self-acquired property cannot be the subject

matter of partition. Mulla on Hindu Law in its 21st Edition

at paragraph 302 states:

“Subject of partition-The only property
that can be divided on a partition is coparcenery
property. Separate property cannot be the
subject matter of partition…”

If this Rule were to be applied, there could not have been

partition of 1970 at all unless that is saved by invoking the

doctrine of common hotchpot. For the same reason, the

question whether the suit properties at the hands of the

1st Defendant Mr.Narayana Reddy assume the character of

ancestral properties, pales into insignificance. Even if it is

answered in the negative, the other question whether

these properties by virtue of blending assumed the

character of joint family properties, would arise for

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consideration and needs to be answered by us in the

affirmative because of the discussion supra. Added to this,

there is the doctrine of estoppel enacted u/s 115 of the

1872 Act. All the parties to the partition of 1970 having

treated the subject property as being joint family

property, they cannot contend to the contra, more

particularly when others have acted on that premise and

altered their position to the detriment. Further, permitting

the Appellants to contend to the contrary amounts to

permitting them blowing hot and cold at one breath, which

the law shuns.

(j) All the above being said, there is force in the

submission of learned counsel for the Appellants: after the

partition of 1970, the properties fell into the hands of the

1st Appellant who is now dead & gone. Some properties

have been given to some daughters; money also have

been spent for the marriage of the son & daughters. Some

developments have been done by investing huge sums.

Equities need to be adjusted. The Respondents in all

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fairness have come forward with a Joint Memo filed this

day in the Court which reads as under:

“Joint memo for acceptance dated 19.02.2024

The plaintiffs and the defendants humbly
submit that they will seek equitable
appointment of their share by taking into
account of their receipts & gifts and
developments before the final decree
proceedings after due enquiry.”

In view of that, all such aspects need to be examined by

the FDP Court, if & when initiated. In that connection, all

contentions of the parties need to be kept open and

accordingly, they are for being treated in the

contemplated Final Decree Proceedings.

6. Before parting with this case, we are

constrained to observe that there was lot of scope for

penning the judgement & decree in question in a far better

way, both in terms of language & law. It was Oscar Wilde

(1854-1900), an Irish Poet & Dramatist, who had said:

“There is scope for improvement even in heaven”. Does it

not apply to our judgement too…? We appreciate the able

assistance rendered by learned counsel appearing for the

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Appellants and the learned Advocates appearing for the

Respondents.

In the above circumstances, this Appeal fails,

however subject to observations herein above made.

Sd/-

JUDGE

Sd/-

JUDGE

Bsv
List No.: 1 Sl No.: 28

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