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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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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.
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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 2016otherwise, 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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RFA No. 491 of 2016Defendant 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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RFA No. 491 of 2016
& 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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RFA No. 491 of 2016Lastly, 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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RFA No. 491 of 2016
(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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RFA No. 491 of 2016Ram 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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RFA No. 491 of 2016
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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RFA No. 491 of 2016
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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RFA No. 491 of 2016
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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RFA No. 491 of 2016
(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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RFA No. 491 of 2016Appellants 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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