Thimma vs Doddamma

Dr. Jawad Rahim, J.—This second appeal by the defendants is against the judgment in R.A. 207/97 confirming the judgment of the trial court in O.S. 50/87 dated 26.11.1997 decreeing the suit of the respondent-plaintiff and directing division of properties to assign unto her half share and also declaring the sale in favour of the 8th defendant-Malathi as not binding on her.

Heard Mr. G.L. Vishwanath, learned counsel for the appellants, and learned designated senior advocate, Mr. Srivatsa for the respondent-plaintiff and perused records in supplementation thereto. It reveals:

a) Respondent-Doddamma filed suit in O.S. 50/87 seeking a decree to divide the properties described in the schedule to assign unto her half share therein on the premise that Buddappa, her grandfather was the propositus. He had three sons-Thimmappa, Thayappa and Junjappa. They lived as members of Hindu Undivided Family (HUF) and enjoyed the rights of coparcenery. However, Junjappa took his share and severed his relationship from the joint family and started living separately. Thimmappa and Thayappa lived jointly but did not divide the properties in metes and bounds.

b) Plaintiff claims Thayappa-third son of Buddappa left behind only her as his legal heir to succeed to his estate in the coparcenery property. He died 10 years prior to the filing of the suit, while her uncle, Thimmappa died two years prior to the filing of the suit. It is alleged, Thimmappa used to harass her and her mother and did not give them the benefit of joint family. Though she lived with them after marriage, life became miserable and she had to leave the joint family set up and live separately. Her paternal uncle, Thimmappa did all that was possible to deprive her of her share. However, on persistent demands, he promised to divide the properties, but there was no positive action.

c) In the circumstances, she filed suit seeking division of properties on the assertive contention that after the demise of Buddappa, the property became divisible amongst his three sons, viz., Thimmappa, Thayappa and Junjappa. Since Junjappa had walked out of the family, the property remained to be divided between Thimmappa and her father-Thayappa. Since Thayappa died leaving behind her as his legal heir, she was entitled to half share while her uncle-Thimmappa would get the remaining half share. Thus the suit filed by her seems to be a suit simpliciter for partition of the properties described in the schedule.

d) To establish her cause of action, she averred land bearing Survey No. 20 measuring 10 guntas, land in Survey No. 17 measuring 19 guntas, land in Survey No. 216 measuring 2 acres 12 guntas, land in Survey No. 221 measuring 5 guntas and land in Survey No. 49 measuring 32 guntas were acquired out of the original joint family properties. However, she admitted revenue records were changed in the name of Thimmappa. Regarding sale of a few of the schedule properties in the year 1986 by Thimmappa, she described it as a sham document without any lawful authority and sought a decree that it was not binding on her. As at the time of filing of the suit Thimmappa was not alive, she brought into the party array his legal heirs, viz., Murali, Lingappa, Chikkathimma and Venkatesh, his sons and one Malathi, purchaser of the property as defendants 1 to 8.

e) In the first instance, as despite service of summons, defendants did not enter contest, the suit was decreed ex parte on 22.8.1991 granting decree as prayed for. However, defendants filed Misc. 21/95 seeking to set aside the ex parte decree which was a success and the judgment and decree dated 22.8.1991 was set aside. Defendants thus availed the right and filed written statement denying the suit claim. They questioned its maintainability in law and facts and sought to dismiss the suit in limine.

f) It is material to note in the first written statement filed, they had described the plaintiff-Doddamma as a stranger, having no relationship with them. They however admitted Buddappa had 3 sons, Thimmappa, Thayappa and Junjajppa. Having so denied, they averred they were living together and enjoying ancestral properties till Junjappa-last son of Buddappa took his share and lived separately. Their specific contention is, the properties described in item nos. 1, 3, 4 and 5 of the schedule were the self-acquired properties of Thimmappa by virtue of the re-grant order dated 1.1.1965 passed by the Special Deputy Commissioner, Inam Abolition, Bangalore, and in pursuance thereto, all revenue records were mutated in the name of Thimmappa and he continued to enjoy the schedule properties as the absolute owner. After is demise, defendants 1 to 7 as his successors, have been enjoying the properties in question.

g) Regarding item nos. 2, 6 and 7 of the schedule, they revealed it was purchased by Thimmappa for valuable consideration vide sale transaction dated 12.3.1965 and based on it, all revenue records were mutated in his name. They further relied on the will executed by Thimmappa on 28.1.1981 bequeathing his properties (estate) to the defendants. The will registered in the office of the Sub Registrar was relied as establishing their unimpeached title. Upon Thimmappa''s death, they have acquired the properties by testamentary succession. Thus they disputed plaintiff''s claim that the properties were either joint family properties or formed the estate of Buddappa to be divided between her and them. They further denied their father-Thimmappa and plaintiff''s father-Thayappa sold properties at Ulumenahalli and out of the sale proceeds, they purchased 12 acres of land in Krinaajasagar, Komaghatta, in the name of Thimmappa. They denied such purchase was made in favour of Thimmappa as he was the eldest son. In short, suffice to say they denied plaintiff''s assertion that the family owned properties at Ulumenahalli which were sold after the demise of Buddappa to acquire 12 acres at Krinarajasagar, Komaghatta. Thus they sought dismissal of the suit on the basis there is no cause of action.

h) The 8th defendant who is the purchaser of some of the properties had filed separate written statement resisting the suit. Apart from utilizing the benefits of factual aspects pleaded by defendants 1 to 7 regarding acquisition of properties by Thimmappa, she contended Thimappa was the absolute owner of the properties and has sold the same to her for valuable consideration in the manner known to law. She denied the properties described in the schedule were joint family properties or formed the estate of Buddappa. She also denied properties described at item nos. 1 to 5 in the schedule were sold during the pendency of the suit with knowledge of civil action. Apart from contending so, she revealed she purchased the property being Survey No. 49/1 measuring 2 acres 30 guntas of Kengeri Hobli, through sale deed dated 19.2.1987 and thus she is a bona fide purchaser for value without any notice of claim by the plaintiff.

i) Based on the material propositions in the pleadings, learned trial judge framed the following issues for consideration:

1) Whether the plaintiff proves that she is the daughter of Thayappa?

2) Whether the plaintiff proves that Thimmappa and Thayappa are brothers and they lived together and the suit properties are their joint family properties?

3) Whether the plaintiff proves that after death of Thimappa & Thayappa the suit schedule properties are the joint family properties of herself and defendants 1 to 7?

4) Whether the defendants prove that the suit properties are the self-acquired properties of Thimmappa?

5) Whether the 8th defendant proves that he is a bona fide purchaser of Sy. No. 49/1 measuring 2 acres 30 guntas?

6) Whether the plaintiff proves that the sale deed executed by the defendants in favour of the 8th defendant in respect of the suit properties is not binding on the plaintiff?

7) Whether the plaintiff has got any share in the suit properties?

In the trial that ensued, plaintiff-Doddamma tendered evidence as PW1 and relied on the evidence of four other witnesses, viz., PW2-Ramaiah, PW3-Kempanna, PW4-Chinnamma. She relied on Exs. P1 to P11 comprising R.T.C. and Pahani (Exs. Pl to P7), assessment register extract (Ex. P3), Pahani copy (Ex. P9), application in Misc. 21/95 seeking setting aside of the ex parte decree (Ex. P10) and additional affidavit in Misc. 21/95 (Ex. P11). Defendants also tendered evidence as DW1-Dasappa and DW2-Muniyappa and relied on 39 documents.

k) Learned trial judge, analyzing the evidence on record, decreed the suit as prayed for declaring plaintiff to be entitled to half share in the suit schedule properties and ordered partition to assign unto her that share and further declared the sale deed in favour of the 8th defendant as not binding on her. That judgment was assailed by the defendants 1 to 7 9 (appellants herein) in R.A. 207/97, while the 8th defendant-Malathi, w/o Joseph preferred R.A. 2/98.

I) The appeals were clubbed in which plaintiff was the sole respondent. Learned appellate judge on reappraisal of evidence, accepted all grounds and set aside the judgment and decree of the trial court dated 26.11997, thereby negating the claim of respondent-Doddamma for partition. Assailing the common judgment of the appellate court in R.A. Nos. 207/97 and 2/98, Doddamma preferred two second appeals before this court in R.S.A. Nos. 170/00 and 287/00. This court clubbed both the appeals and by judgment dated 24.11.2004, set aside the judgment of the first appellate court dated 18.12.1999 passed in R.A. Nos. 207/97 and 2/98 and remanded the case back to the appellate court with the following order:

''The appeals are allowed in part. The finding given by the first appellate court that the civil court has no jurisdiction to decide the question as to whether occupancy right granted in favour of Thimmappa is in respect of individual tenancy or joint family tenancy, is set aside and it is held that the civil court has jurisdiction to decide the question as to whether conferment of occupancy right u/s 10 of the Inams Abolition Act in favour of Thimmappa is his self-acquired property or joint family property, and the first appellate court is directed to dispose of the appeals in accordance with law. R.A. Nos. 207/97 and 2/98 are remanded to the court of First Additional Civil Judge, Bangalore, for fresh disposal in accordance with law.

Learned counsel for the appellants submits that such order granting occupancy right to Thimmappa u/s 10 of the Inams Abolition Act has not been produced and only endorsements have been produced as per Exs. Dl and D2, and therefore parties may be permitted to produce original or certified copy of the order before the first appellate court by filing an application for additional evidence. The same shall be considered in accordance with law. To avoid any delay, parties are directed to appear on 15.12.2004 before the first appellate court to seek further instructions without any need of issuing fresh notice by the court. Any observation made in this order on the question as to whether conferment of occupancy right in favour of Thimmappa was in his individual capacity or as a member of the joint family shall not preclude the first appellate court in disposing of the appeals in accordance with law.

Having regard to the facts and circumstances of the case, parties are directed to bear their own costs in both these appeals.''

Thus it is seen, this court while remanding the matter to the first appellate court, did not interfere with the judgment of the trial court in O.S. 50/87 dated 26.11.1997 but directed 1st appellate court to decide the appeal on merit.

m) During remand proceedings, the first appellate court took both the appeals on board and by the impugned judgment dated 10.3.2006, dismissed both the appeals confirming the judgment of the trial court dated 26.11.1997. Assailing the judgment of the trial court in O.S. 50/87 decreeing the suit for partition and declaring the sale deed in favour of the 8th defendant as not binding on her, as also the judgment of the first appellate court in R.A. Nos. 207/97 and 2/98 whereby the trial court''s finding is confirmed, defendants 1 to 7 (legal heirs of Thimmappa) are in this second appeal.

The appeal has been admitted to consider the following substantial questions of law:

Whether the trial court was justified in decreeing the suit without giving its finding on issue no 1 regarding existence of joint family status between the plaintiff and defendants?

Whether both the courts below were justified in holding that their exists status of joint family between the plaintiff and defendants and suit schedule properties are joint family properties without there being pleading, evidence and finding to the fact that the suit schedule properties are acquired by the joint family?

In support of the grounds in appeal against the finding of the first appellate court, learned counsel, Mr. G.L. Vishwanath would contend, the suit as filed by the plaintiff-Doddamma was bereft of material information to support the relief of partition; except for casually mentioning that Buddappa was the owner of the properties in question and died leaving behind three sons, Thimmappa, Thayappa and Junjappa, she has neither furnished material particulars nor averred how the schedule properties were acquired by the propositus or the so-called members of the coparcenery. He drew my attention to the plaint averments wherein the plaintiff has averred her father died 10 years prior to the filing of the suit while Thimmappa died 21/2 years prior to the filing of the suit. He submits, narration of facts was not only vague but inconsistent. He drew my attention to the second part of the plaint averments where the plaintiff has stated, Thimmappa being the eldest son was managing the joint family properties and lands were in his personal cultivation as coparcener. He refers to the averment in the plaint that land in Survey No. 20 measuring 10 acres, land in Survey No. 19 measuring 19 guntas, land in Survey No. 216 measuring 2 acres 12 guntas, land in Survey No. 221 measuring 5 guntas, land in Survey No. 49 measuring 1 acre 32 guntas to show it is only a self-serving statement without revealing the source of acquisition or existence of joint family nucleus.

Learned counsel further submits, to treat the properties as joint family properties, plaintiff had to furnish material information and support it by acceptable evidence that there was sufficient nucleus of the joint family from which those properties were acquired. Thus according to him, there is no cause of action for the relief of partition sought. He further submits, plaintiff''s claim that land in Survey No. 3/1 measuring 3 acres 36 guntas and land in Survey NO. 3/2 measuring 3 acres 35 guntas situate in Krinarajasagar, Komaghatta village, were joint family properties has remained only a self-serving statement without any proof. He would submit, plaintiff made a feeble attempt to contend the family owned joint family properties at Ulumenahalli and they were sold to acquire properties described in item nos. 2, 6 and 7 of the schedule. According to him, such statement is misleading as plaintiff had mentioned no material details as to which were the properties owned by the family situate in Ulumenahalli and when they were sold.

Referring to item nos. 1, 3, 4 and 5 of the schedule to the plaint, he contends plaintiff has laid no material to show they were in the cultivation of joint family and on re-grant, it has to be treated as joint family properties. He would then refer to the plaintiff''s contention that Junjappa had taken his share and severed his coparcenery. He submits, this is a far fetched imaginative statement as Junjappa lived separately because there was no joint family status in existence even during the lifetime of Junjappa. Therefore the contention that Junjappa took his share and left the joint family had cast a burden on the plaintiff to establish which were those properties which Junjappa took from the joint family in satisfaction of his share. He refers to the evidence of Junjappa''s wife examined as PW4-Channamma who has admitted they were merely living together prior to purchase of properties by Thimmappa, as also re-grant by virtue of the order passed under the Inams Abolition Act. He submits, no doubt Channamma (PW4) was paraded by the plaintiff to show Junjappa had received some properties from the joint family and severed joint family status, but the answers given by her render her evidence nugatory to the case of the plaintiff.

Coming to the actual facts, Mr. G.L. Vishwanath has brought out that by virtue of sale deeds-Ex. D2 dated 24.10.1968, Ex. D4 dated 26.3.1965 and Ex. D5 dated 26.11.1966, Thimmappa had purchased properties described at item nos. 2, 6 and 7 of the schedule from one Dasappa, while item nos. 1, 3, 4 and 5 are lands having agrarian character under his cultivation. Those lands were the subject matter of Inams Abolition Act and on the application made by Thimmappa, the lands were re-granted to him. Thus it is seen, the said lands were granted by the Special Deputy Commissioner by virtue of the order dated 1.1.1965, marked exhibits Dl and D2 admittedly after the death of Buddappa and after Junjappa is said to have left the joint family and was living separately. At this juncture, the statement of the plaintiff that her father-Thayappa died 10 years prior to the filing of the suit and during his lifetime itself she was living separately shows there was no subsisting interest in Thayappa (her father) in the properties in question. He has referred to several grounds to assail the judgment of the trial court in declaring the properties to be joint family properties and in this regard would submit, plaintiff has made a vague generalized statement that her family owned properties at Ulumenahalli which were sold to purchase lands covered under Exs. D2, D4 and D5 referred to above. He submits, so far as re-grant is concerned, she stated the lands were cultivated by Thimmappa and Thayappa, but not a single record is produced to support this contention, whereas defendants have proved through entries in revenue records that the lands were under the personal cultivation of Thimmappa and by virtue of such cultivation, he applied for grant order which was considered in his favour.

Learned counsel has gained citational support to his contentions relying on the following case laws:

1920 (22) BOMLR 596 (Privy Council)

Shrinivas Krishnarao Kango Vs. Narayan Devji Kango and Others, .

Mallappa Girimallappa Betgeri and Others Vs. R. Yellappagouda Patil and Others, .

AIR 1990(2) KU 147 Gangaiah & another-vs.-Hosalaiah & another

M.L. Subbaraya Setty (Dead) by Lrs. and Others Vs. M.L. Nagappa Setty (Dead) by Lrs. and Others,

State Bank of India and Others Vs. S.N. Goyal, .

1983(1) KU 482 Appanna & others-vs.-Lakkappa Devappa

Shivappa Fakirappa Shetsanadi Vs. Kannappa Mallappa Shetsanadi,

ILR 1996 KAR 3155 Puttappa-vs.-Ramappa

In negation of the grounds urged by Sri G.L. Vishwanath, learned designated senior counsel, Mr. Srivatsa would submit, defendants have contested the proceedings with sinister design misleading the court throughout. He submits defendants were guilty of falsely making statement that plaintiff-Doddamma was a stranger; he read out to me pleadings in Misc. 21/95 filed by the appellants herein to set aside the exparte judgment in O.S. 50/87. He submits in the said proceedings, they had described plaintiff as a stranger and tried to non-suit her, but based on evidence she was held to be genetically related to Buddappa, being his grand daughter. He submits when such is their contention, appellants could not sustain the earlier plea and admitted her to the daughter of Thayappa, and undoubtedly, genetically related to Buddappa. He submits, this contention itself would show how defendants tried to deprive her of her right in the properties.

Coming to the relief sought for, he submits, Buddappa had 3 sons, Thimmappa, Thayappa and Junjappa. Upon his death, the properties had to be divided amongst them. In the instant case, the properties described in the schedule were acquired by the joint family from and out of the nucleus of the joint family by sale of certain joint family properties in Ulumenahalli. Thus the properties are to be treated as divisible only between the surviving heirs of Buddappa. He submits, Junjappa had taken his share and severed all connections and lived separately which has been established by the plaintiff through her own ocular testimony as also through the evidence of PW4-Channamma, wife of Junjappa. This is a clincher to show whatever properties joint family owned became divisible into two branches namely, branch of Thimmappa and Thayappa. Appellants being lineal descendants of Thimmappa, they were entitled to half share while the remaining half by notional partition has to be assigned to the plaintiff, being the only legal heir of Thayappa. He submits, re-grant order was in favour of Thimmappa because he was eldest son of Buddappa and Kartha of the family, it confers no title on him exclusively; The properties are to be treated as having been re granted to the joint family and when partition opens, it becomes divisible according to succession.

He would submit properties at item nos. 1, 3, 4 and 5 of the schedule, being Inam lands are re-granted in favour of Thimmappa as he was the eldest son of Buddappa and since it was during the time the brothers, i.e. Thimmappa and Thayappa, the presumption is it was grant in favour of the joint family and when partition opens, parties have the right to get a share. He submits in the first lap of litigation, the first appellate court had seriously erred in holding that the question as to whether re-grant was individual or the joint family was held to be not justifiable, or subject to judicial review by civil courts in view of conferment of jurisdiction of specific authority under the Act. He submits, this court by it is judgment in R.S.A. Nos. 170/00 and 287/00 adjudged the issue and held civil courts are competent courts to decide whether grant was in favour of the joint family or it was an individual grant. He submits in remand proceedings, the first appellate court has kept in mind the finding of this court to reach a logical conclusion that the grant in favour of Thimmappa may look, at the first instance, as individual grant, but it was on the basis of joint cultivation by family members and hence has to be construed as grant in favour of the joint family. He submits, there is initial presumption that the land belongs to the coparcenery when it is shown that it was during the subsistence of joint family. In view of this legal position and the evidence of the plaintiff that grant was in favour of Thimmappa since he was the eldest son of Buddappa, properties at item nos. 1, 3, 4 and 5 are to be construed as joint family properties and the appellate court has rightly held so.

As regards item nos. 2, 6 and 7 of the schedule he submits, they were purchased during subsistence of the joint family utilizing the corpus of the joint family and hence even though sale deeds are in the name of Thimmappa, it is amenable to partition. He therefore supports the finding of the trial court.

As regards sale in the year 1987 is concerned, he submits it had to be annulled in view of declaration of the right of the plaintiff.

The contentions of both sides have received my full consideration and in view of the substantial questions of law framed by this court, necessarily I had to examine even undispute evidence on record.

I am persuaded to accept the contention of Mr. G.L. Vishwanath that plaintiff has been very evasive and not specific with regard to acquisition of properties by the joint family. There are in all 7 items described in the schedule. Plaintiff''s contention is, they are joint family properties and she is entitled to half share by notional partition. No doubt in a suit for partition apart from deciding the extent of share that the plaintiff or defendant would be entitled to, there has to be a specific finding as to whether the properties sought to be divided are joint family properties, lest, individual right will certainly be impacted. In this fact situation, we expect from the plaintiff specific averments in the plaint, firstly with regard to the description of the properties, and secondly, mode and manner of acquisition. There must be averments and proof about the source of acquisition if they are not in the name of the original propositus, but in the name of other parties to the suit who is shown as coparcener. In other words, if the properties subject matter of adjudication are shown to be in the name of any one of the coparcener, the burden is on the plaintiff to prove that though they are in the name of such individual, in reality it is owned by the joint family.

In the case of agricultural land, such difficulty normally arises as the name of the cultivators is entered in revenue records as also the name of owner and khatedar but when properties are shown to have been acquired by sale under the provisions of the Transfer of Property Act, there will be prima facie material show acquisition or sale and the burden on the plaintiff becomes more to establish sale consideration was paid not by the person in whose name the document stands, but that payment was out of the nucleus of the joint family. Needless to emphasize primary proof to be established is existence of nucleus of joint family capable of generating necessary funds for acquisition of other properties. If there is a feeble attempt in the form of statement with no evidence to show there was existing nucleus of the joint family capable of generating funds to acquire anything tangible to pay the value of the asset acquired, then there is presumption in law that the person in whose name the property was purchased is the true owner and it was not purchased behalf of joint family members.

In the instant case, appellants-defendants have produced Exs. D2, D4 and D5 registered sale deeds showing it was a sale transaction simpliciter in favour of the purchaser-Thimmappa during the period 1965-1968 as referred to above. Thus it is clear from the records that Thimmappa was cultivating it as early as in the year 1965 and upon his demise, the name of the appellants have been updated, the suit was filed in the year 1987. There is no statement forth coming from the plaintiff as to why they did not seek or question such entries in the revenue records if she or her father had any subsisting right, title and interest or were cultivating it along with Thimmappa. ON the other hand, there is categorical statement by her that her father died 10 years prior to the filing of the suit which takes us to 1977. At least prior to that period she should have been in a position to establish her father-thayappa was cultivating the land along with Thimmappa. Such evidence is lacking. In this fact situation, in the absence of any material proof that their was joint family nucleus existing capable of generating funds and sale consideration is paid from and out of it to purchase item nos. 2, 6 and 7 of the schedule, the transaction cannot be construed as one in favour of the joint family, but has to be understood as an individual transaction in favour of Thimmappa who was the purchaser.

As regards item nos. 1, 3, 4 and 5 of the schedule are concerned, the order passed by the Special Deputy Commissioner dated 1.1.1965 is produced as Ex D1 and D2 and it is a clincher to show it was an individual grant in favour of Thimmappa, predecessor in title of the appellants and from the date of grant till filing of the suit, revenue records also stand in his name.

Mr. Srivatsa assertively contended, as plaintiff has successfully established joint family properties were not divided, and the presumption must be that they were not self-acquired properties. He places reliance on the decision of the apex court in the case of Shrinivas Krishnarao Kango Vs. Narayan Devji Kango and Others, wherein the apex court opined ''Where there is assertion by one that the subject matter of adjudication is joint family property and denial by the other who sets up title in himself/herself, primarily proof of existence of joint family does not lead to a presumption that the property held by any member of the family is joint and the burden rests on the person who asserts that any item of the property was joint, to establish the fact. But where it is established that the family possessed some joint property which forms and is the source of income and the relative value of it may have formed the nucleus from which the property in question may have been acquired, the burden shifts on the party alleging self-acquisition/The proposition of law laid down in the decision when applied to the facts and circumstances of this case, strengthens the appellants'' case rather than the case of the plaintiff.

What clearly emerges from the decision is, there is always primary burden on the one who asserts that the property which is the subject matter of acquisition is either joint family property or acquired from the estate as source but mere living in joint family as HUF does not lead to an inference that the property is always joint family property.

It must be noticed from the decision referred to above initial burden rests on the person who asserts existence of joint family and also to establish there was adequate nucleus from which acquisition could have been made. The nature and extent of nucleus is therefore to be established and it should be of such quantity or capable of generating funds adequate to pay consideration for other acquisitions.

In the instant case, evidence shows item nos. 1 to 7 If the schedule are acquired by two methods; item nos. 1, 3, 4, 5 are by way of re-grant, while item nos. 2, 6 and 7 are by way of purchase vide Exs. D2, D4 and D5 there is proximate period of time of re-grant which is in the year 1965. Since in 1965, Buddappa was not alive and Junjappa is said to have left the joint family, it lends credence to the contention of the appellants that Thimmappa was the owner and being applicant for re-grant based on his personal cultivation, it resulted in grant in his favour.

From the undisputed facts and the situation that was prevalent in the families of the plaintiff and defendants as in the year 1965, it could be seen that Thimmappa had applied to the Special Deputy Commissioner for re-grant of land under the provisions of the Karnataka (Personal and Miscellaneous) Inams Abolition Act and had submitted application vide Ex. D14. He had spelled out in Ex. D14 that he was in cultivation of lands described in item nos. 1, 3, 4 and 5 for over 50 years and thus sought for re-grant. The Special Deputy Commissioner who is the prescribed officer under the Act has registered the application and after due enquiry, re-granted unto him. Plaintiff could not dispute the fact that except Thimmappa, neither her father-Thayappa nor uncle-Junjappa had filed any application or disputed the claim of Thimmappa.

The proceedings before the Special Deputy Commissioner are of the year 1965. It is a settled position of law that by operation of the provisions of the Inams Abolition Act, the lands on abolition of Inams vested in the State. It could only be re-granted on satisfaction that the applicant was cultivating the land by virtue of the earlier Inam. The order of re-grant in favour of Thimmappa is preceded by enquiry in which it is revealed that being cultivator, he was paying land revenue. The statutory officer has granted the land in his name individually and therefore even if there was any subsisting right, title and interest by virtue or the order under Sections 5 and 6 of the said Act, all earlier rights of the parties dissipated and the grantee gets absolute right. Of course the order is amenable to challenge by the affected persons. In the instant case, neither plaintiff nor her uncle-Junjappa had questioned the order of re-grant in favour of Thimmappa till 1987. Even if we give margin to the plaintiff as she could not have challenged it, there is no explanation why her father-Thayappa had not questioned the said order and even after his demise 10 years prior to the filing of the suit, plaintiff did not take any action. All these factors make it abundantly clear that non-challenge of the order of re-grant gives finality to it and it cannot be questioned in a civil suit.

In fact, the decision of this court in the case of Stump Schedule and Somappa Pvt. Ltd. vs. S.M. Chandrappa and the decision of the apex court in the case of Pushpagiri Math Vs. Kopparaju Veerabhadra Rao, are binding precedents on this point and supports the view that the grant in favour of Thimmappa has to be construed only as an individual grant and not in favour of the joint family.

In view of the discussion as above, I am satisfied the finding of the trial court and the appellate court treating the properties described in the schedule as joint family properties can hardly be sustained and as both the courts have failed to record a finding regarding existence of joint family status between the plaintiff and defendants, the first substantial question of law is answered in favour of the appellants against and respondents.

Similarly the reasoning assigned by the learned trial judge and appellate judge does not justify the conclusion that the properties are to be held as joint family properties in the absence of plaintiff discharging the burden of proof which is cast on her. Consequently the second substantial question of law is also answered in favour of the appellants and against the respondents.

While arriving at the above said conclusion, I have kept in mind the case laws cited by the learned senior counsel, Mr. Srivatsa and various decisions cited by Mr. G.L. Vishwanath. The legal proposition emerging from all the decisions is, even if it is shown that the parties to the suit were members of the joint family living in coparcenery, there is no presumption that the properties owned individually by coparceners are also to be treated as joint family properties unless material proof is laid, firstly about existence of nucleus of joint family sufficient to generate funds for acquisition of properties by individuals and secondly, that the properties were purchased in the name of one of the coparceners for and on behalf of the joint family. In short, merely living together in joint family leads to no presumption that the property acquired individually by coparceners or properties purchased in the name of individual coparceners are joint family properties.

Being of this view, I accept all grounds urged in the appeal against the impugned judgments of the trial court and appellate court. The appellants-defendants 1 to 7 succeed in their legal pursuit. The appeal is allowed, setting aside the judgment of the first appellate court in R.A. Nos. 207/97 and 2/98 and the judgment of the trial court in O.S. 50/87 are set aside. The suit of the plaintiff shall stand dismissed.