Smt S.A. Chondawwa and Others vs Smt. Nallamakkada Lalitha and Others

Anand Byrareddy

These appeals are considered together since they are preferred against the same judgment and decree. The first of these appeals - RFA 272/2001 was filed by the defendants 1 to 4 and 8. The facts of the case are that the plaintiff was the daughter of one Shivachalinda Parvati @ Neelavva. The said Parvati had three daughters, namely defendants 5. 6 and 7 and a son arraigned as defendant no. 8. The original propositus was one S.B. Devaiah who had married one Ammavva. Devaiah and Ammavva had one son by name, S.D. Ayyappa who was married to the first defendant - Chondavva. They had three daughters, by name Susheela. C.A. Poovamma. and K.A. Champaka. These defendants, according to the appellants, constitute a Hindu joint family. The genealogical tree is reproduced hereunder for ready reference:

Devaiah was stated to be the karta of the family. The properties described in the schedules were claimed as joint family properties. Devaiah is said to have died somewhere in the year 1977 and thereafter the properties have devolved by succession upon his widow Ammavva, his son S.D. Ayyappa and his daughter Parvathi. The widow of Devaiah also having died, the properties devolved on Parvathi on the one hand and Ayyappa on the other and their respective branches. It is upon exchange of notices between the parties claiming shares in the suit properties, that the suit came to be instituted.

On the basis of the elaborate pleadings of the parties, the trial court held that the plaintiff proved that she and the defendants are the members of a Hindu joint family and the trial court also held that the plaintiff had partly proved that the suit schedule properties are the joint family properties and that she is in joint possession of those properties which are held to be joint family properties. The claim of defendants no. 1 to 4 that they are in exclusive possession and enjoyment of properties to the exclusion of the plaintiff was negatived and the plaintiff accordingly was held entitled to a partial partition of those suit properties which are held to be joint family properties and decreed accordingly. It is this which is sought to be challenged by the appellants herein.

The Counsel for the appellants in the first of these appeals, who now represents only defendants 2 and 8, since there was a change in Counsel and other appellants have not chosen to entrust the case to the present Counsel, the other appellants have gone unrepresented. In any event, the Counsel for the appellants would submit that the trial court having found items no. 9, 10, 11 and 12 of the A schedule as the self-acquitted property also ought to have held items no. 1 and 8 as the self-acquired property of the appellants'' branch claiming under Ayyappa and in this regard, the appellants having produced voluminous documents such as sales-tax receipts and other documents to evidence independent businesses that were run by Ayyappa during his life time, such as, excise business liquor business and cardamom business, it is also not in dispute that the items of the B and C schedule properties were acquired along with the third-party business partners. The evidence on record was ignored by the trial court in conceding the claim of the appellants as to items no. 1 and 8 also being the self-acquired properties of Ayyappa and the trial court was therefore acting without any basis to hold that items no. 1 and 8 were the joint family properties. It is this primary contention on the basis of which the counsel would seek to sustain the appeal which is preferred on several grounds as well.

Insofar as items no. 1 and 8 of the suit schedule A property being the self-acquired property of Ayyappa are concerned, it is candidly admitted by the Counsel that there is no title deed or other such document to plainly demonstrate that the property stood in the exclusive name of Ayyappa. on the other hand. it is those incidental documents to evidence that Ayyappa was engaged in several other businesses which are sought to be pressed into service, to hold that items no. 1 and 8 are the self-acquired properties of late Ayyappa. In the absence of any concrete evidence as regards the acquisition of properties by Ayyappa as was the case in respect of Schedule B and C properties, there is no error committed by the trial court in holding that there was no evidence forthcoming to establish that item nos. 1 and 8 of the A-schedule are the self-acquired properties of Ayyappa. Therefore, I have no hesitation in holding that trial court has not committed any error in denying that the items 1 and 8 of the schedule A properties are the self-acquired properties of Ayyappa. Accordingly, the appeal fails and is dismissed.

The learned counsel who represents Appellants 3 and 4 alone in RFA 272/2001, would contend that the court below has proceeded under an assumption that, because the parties are Hindus, the suit schedule properties are ancestral and joint family properties of the plaintiffs and the other defendants. The learned counsel would submit that the court below has failed to appreciate that the original owner S.P. Devaiah was owning Sl. No. 3 of suit schedule ''A'' properties namely Sy. No. 46/1 consisting of 6.35 acres which was bana land which was wet land, along with lyn house from which there was meagre income to acquire other properties. Therefore, if is S.D. Ayappa, Son of Devaiah, who was engaged as a trader in cardamom, pepper and coffee, had acquired suit schedule properties from time to time from out of such income and documents were produced to establish such acquisition by him and the sale deeds stood exclusively in the name of Ayyappa and hence, the properties acquired were self-acquired properties and could not be considered as joint family properties and therefore, the non-appreciation of the evidence produced in this regard, results in manifest injustice to the defendants.

It is contended that merely on the footing that there were some properties which were claimed as being ancestral properties by the defendants, ought, not to have compelled the court to hold other properties also as being ancestral properties, without appreciating whether the joint family nucleus was capable of producing income for such further acquisition of the family properties. While dismissing the plaintiffs.claim for ''B'' and ''C'' schedule properties, the court below has also dismissed the plaintiffs claim over Item Nos. 4, 5, 9, 10, 11 and 12 of Schedule ''A'' while it ought to have dismissed the plaintiffs claim for partition in respect of other items as well in respect of which there was cogent evidence on record, namely there was material to indicate that certain properties were purchased by Ayyappa jointly with P.M. Sadali and Kutrappa, which were certainly self-acquired properties. The further finding of the court below that material documents produced in support of the claim that the properties were the self-acquired properties of Ayyappa, were subsequent to the acquisition. is also not entirely correct since there were material documents available to indicate that Ayyappa was carrying on business much prior to such acquisitions, which the learned counsel for the appellant had produced along with an application for additional documents under Order XLI Rule 27 of the Code of Civil Procedure, 1908. which was filed along with a Review Petition that was filed in these proceedings and which stood allowed.

The learned counsel for the appellants would Further submit that the Review Petition filed was allowed in the backdrop of the circumstance that after the death of the mother of Defendants 3 and 4. after an intensive search, documents were discovered in the attic of their house, which would clearly support their case insofar as suit item Nos. 9, 10 and 11 of the suit schedule ''A'' properties, to indicate that they are the self-acquired properties of Ayyappa and these documents would clinch the issue insofar as the properties being the self-acquired properties and to which the plaintiffs could not lay claim. Therefore, the learned counsel would further submit that the judgment and decree of the Trial Court partially decreeing the suit in favour of the plaintiff would have to set at naught and the same be remanded to the Trial Court for a fresh consideration, on the basis of the additional evidence that, is now produced.

Per contra, the learned counsel for the plaintiff who is appellant in the connected appeal, would vehemently oppose the appeal and would submit that the only case sought to be made out by the appellants is to the effect that there are material documents to support their claim in respect of the suit schedule items 9, 10 and 11 and it is the ground on which a remand is sought. Therefore, having no other evidence to establish that the claim of the plaintiff ought to be reversed and when the plaintiff does not lay claim to suit items 9, 10 and 11, there is no warrant for interference with the findings of the Trial Court insofar as the other items of the suit properties are concerned and the mere contention that the court below was justified in holding that Ayyappa had independent income of his own out of which he had acquired the properties and therefore, all the items of the suit schedule ''A'' except that admitted, ought to have been held as self-acquired property, is not a contention available to the appellants namely defendants 3 and 4. In the absence of cogent evidence that there was indeed acquisitions by Ayyappa, the court below having proceeded on the footing that since Ayyappa had independent income of his own, therefore was capable of acquiring Item Nos. 1 and 8 having been challenged in the connected appeal and having been allowed would necessarily have to be allowed, in the present appeal being dismissed.

By way of reply, the learned counsel for the appellants-Defendants 3 and 4, would contained that the settled law that though there could be presumption of the existence of a joint family, there could be no presumption in the existence of joint family properties as entitled by the Apex Court in the case of Marabasappa (Dead) By LRs. and others Vs. Ningappa (Dead) by LRs. and others 2011 (9) SCC 451, and seeks to draw substance from the said decision.

In the light of the above contentions, through the additional evidence sought to be produced may support the case of the appellants partially in respect of suit item 9,10 and 11 of suit schedule ''A'' the contention that this Court should conclude that Ayappa was capable of acquiring other properties as the material documents indicate that he had an independent source of income even prior to the acquisition of certain properties which are the subject matter of the suit, would necessarily require this Court to conclude that he had purchased other items of the suit, property which are not admitted by the defendants as being joint family property, is not a contention that can be accepted. Just as the appellant has been in a position to produce Exhibit P3 which clearly discloses the acquisition by Ayyappa, there is no such categorical evidence on the basis of which it can be presumed that because Ayyappa was engaged in business, he has acquired other properties. The presumption on the other hand, would necessarily be that it was joint family property and since there was no dispute that there was no partition in the family, they would continue to be the joint family properties. Insofar as the decision sought to be relied upon by the learned counsel for the appellant is concerned, it is relevant to see the facts of that case. Having regard to the circumstance that the properties had originally been acquired by one Parwatevva who in turn had distributed the properties amongst her children prior to her death and disputes having arisen, the claim being set up that it was joint family properties, the court has found having regard to the facts of the case, that if were not joint family properties and there could be no presumption that though there was a joint family, that there were joint family properties. The facts of that case therefore were relevant in the Apex Court holding that there could be no presumption in respect of joint family properties. The facts of the present case on hand are not identical. Therefore, the appellants in R.F.A. 272/2001 would he entitled to a modification of the judgment and decree, to a limited extent. In the light of the documents that are produced in the Review Petition under Order XLI Rule 27 of the Code of Civil Procedure. 1908. which the appellants may produce before the Trial Court in support, of their claim over suit items 9, 10 and 11 of the suit schedule ''A'' it would be necessary for the Court to examine the same and Defendants 3 and 4 be tested in cross-examination insofar as their claim in respect of the said items of land are concerned in reconsidering the claim of Defendants 3 and 4 pertaining to suit items 9. 10 and 11. It is this limited extent that the judgment and decree would stand modified and the matter is remanded for a reconsideration in respect of the claim of Defendants 3 and 4 in respect of the items of property referred to hereinabove. Accordingly, the application filed along with the Review Petition filed under Order XLI Rule 27 is allowed and the matter is remanded to the Trial Court to enable the appellants to mark the documents in evidence and to urge the contentions insofar as their claim to suit item Nos. 9, 10 and 11. The court below shall restrict its consideration to the said items, without reopening the his insofar as the other items of the suit properties are concerned and shall render judgment, in accordance with law. In respect of the other items of the suit properties are concerned, the judgment and decree of the Trial Court stands confirmed.

The office is directed to return the original documents annexed to Application No. 10602/2010 appended to the Review Petition No. 253/2010, after replacing the same with copies of the same.