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PETITIONER: MALLESAPPA BANDEPPA DESAI AND OTHERS

       Vs.

RESPONDENT: DESAI MALLAPPA AND OTHERS.

DATE OF JUDGMENT: 09/02/1961

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. WANCHOO, K.N. GUPTA, K.C. DAS

CITATION:  1961 AIR 1268            1961 SCR  (3) 779  CITATOR INFO :  R          1970 SC1722  (6)  RF         1977 SC2230  (16)

ACT: Hindu Law--Doctrine of blending--If applies to property held by female in limited right.

HEADNOTE: The  rule  of blending in Hindu Law as evolved  by  judicial decisions  can have no application to a property held  by  a Hindu  female  as a limited owner.  That rule  postulates  a coparcener  deliberately  and  intentionally  throwing   his independently acquired property into the joint family  stock so as to form a part of it. Although it is unnecessary now to investigate whether  there is any other text on which that rule could be founded, it is quite  clear  that the text of Yagnavalkya  in  a  different context  and  the commentary  thereupon  by  Vijnyaneshwara, relied on by the Privy Council in this connection, can  have no relation to the said rule. Shiba Prasad Singh v. Rani Prayag Kumari Debi (1932) L.R. 59 I.A. 331, disapproved. Rajanikanta Pal v. Jaga Mohan Pal (1923) L.R. 50 I.A. 173, relied on. Consequently,  where in a partition suit  certain  immovable properties  acquired by a Hindu female from her father as  a limited owner were claimed to form part of the joint  family property of her husband by virtue of the said rule: Held, that the claim must fail. Held,  further, that a Hindu female owning a limited  estate cannot  circumvent  the  rules of surrender  and  allow  the members of her husband’s family to treat her limited  estate as part of the joint family property of her husband. Before  the said rule can be invoked, it must be shown  that the owner wanted to extinguish his title to the property  in question  and impress upon it the character of joint  family property.

JUDGMENT:

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 263 of 1956. Appeal  from the judgment and decree dated January 6,  1953, of the Madras High Court in A. S. Appeal No. 7 of 1949. M.  C. Setalvad, Attorney-General of India and  Naunit  Lal, for the appellants. 100 780 A....V.  Vimanatha Sastri and B. K. B.Naidu, for  respondent No. 1. M. B. K. Pillai, for respondent No. 2. 1961.   February 9. The Judgment of the Court was  delivered by GAJENDRAGADKAR,J.-This appeal has been brought to this Court with  a certificate granted by the Madras High Court and  it arises  from a suit filed by the appellants  Mallesappa  and Chenna  Basappa against their uncle Mallappa,  respondent  1 and  granduncle  Honnappa,  respondent  2,  for   partition. According  to the plaint, the family of the  appellants  and respondent 1 was an undivided Hindu family until the date of the suit, and respondent 1 was its manager.  The ancestor of the  family  was Desai Mallappa.  He had  three  sons,  Kari Ramappa  who died in 1933, Virupakshappa who died  long  ago and Honnappa, respondent 2. Kari Ramappa had four sons Guru- shantappa  (died  1913),  Bandappa  (died  1931),   Mallappa (respondent    1)    and   Veerabhadrappa    (died    1927). Gurushantappa  married Parvathamma; the two  appellants  are the  sons  of Bandappa, their mother being  Neelamma.   They were  born  in 1926 and 1929 respectively.  Their  case  was that respondent 1 who has been the manager of the family for many  years  has  been  trying  to  deprive  them  of  their legitimate  share in the property and refused their  request for  partition,  and so they had to file the  present  suit. According  to them, in the property of the family  they  and respondent  1  were  entitled to half share  each.   To  the plaint  were attached the schedules describing  the  several items  of property.  Schedule A consisted of items 1 to  163 which  included houses and lands at Jonnagiri.   Schedule  B described the movables while Schedule C included items 1  to 35  all  of which had been acquired by the  family  under  a document  Ex.   B-32.   It  is  in  respect  of  all   these properties that the appellants claimed their half share  and asked for a partition in that behalf. This  claim was resisted by respondent 1 principally on  the ground that in 1929 Ramappa, the father of 781 respondent  1  and  the grandfather of  the  appellants  had effected a partition of the joint family properties  between respondent  1  and  his elder brother Bandappa  who  is  the appellants’ father.  That is how, according to respondent 1, the appellants’ claim for partition was untenable.  In  this way he pleaded separate title to all the properties in suit. On these pleadings the learned District Judge, who tried the suit,  framed  eight  issues; two of these  related  to  the question regarding the status of the family.  He found  that the  plea of partition made by respondent 1 was not  proved, and  accordingly  he  declared  that  the  appellants   were entitled  to half share in the properties of the family  and passed a preliminary decree for partition.  According to the learned  judge, the appellants were entitled to  their  half share  in  the  items of property described  in  Schedule  A excluding  items  63,  64,  65, 86  and  151  and  items  in paragraph 14(d) of the written statement of respondent 1  as well  as items of property described in Schedules B  and  C. This decree was passed on November 22, 1948. The said decree was challenged by respondent 1 by his appeal

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before  the  Madras  High Court.  He urged  that  the  trial court’s  finding  as  to  the  status  of  the  family   was erroneous,  and he pleaded that in any case  the  appellants were  not  entitled  to  any  share  in  the  properties  at Jonnagiri, items 4 to 61, as well as the properties acquired under  Ex.   B-32.  The first argument was rejected  by  the High  Court, but the second was upheld.  In the  result  the decree  passed  by the trial court was confirmed  except  in regard to the said two categories of properties.  It is this appellate  decree  which  is challenged  before  us  by  the learned Attorney-General on behalf of the appellants. In  order to appreciate the contentions raised before us  it would  be  necessary to recapitulate  briefly  the  findings concurrently recorded by the courts below in respect of  the plea  of  partition set up by respondent 1.  These  findings afford  a background in the light of which the pleas  raised before  us  would have to be considered.   It  appears  that respondent  1 relied on several documents in support of  his plea that there 782 was  a  partition effected by Ramappa in  1929.   The  trial court repelled this argument and observed that     from 1937 respondent  began to do mischief.  The transfer of patta  in 1937 on which respondent 1 relied     was entirely  his work and  the appellants’ mother Neelamma had not been  consulted and  had  given no   consent to it.  In the opinion  of  the trial court respondent 1 through his agents whom he examined as  witnesses  in the suit (D.  Ws. 2 and  14)  managed  the family lands, arranged to pay cist for them and  manipulated entries  in  the  revenue record  purporting  to  show  that Neelamma  had paid the said cist as pattadar.  Neelamma  was an illiterate and Gosha woman and it appeared that a certain amount  of  coercion had been practised on her  as  well  as deception  in persuading her to execute the original of  Ex. B-10  which  contained  the recital  that  the  house  there described had fallen to the share of Neelamma’s husband at a prior  partition.   The trial court was satisfied  that  the said  recital had been fraudulently made and  the  ’document had  not  been read to Neelamma at all.   The  demeanour  of respondent  1 in the witness box was also criticised by  the trial  judge  when he observed that he did not  impress  the trial judge as a truthful witness, and in his opinion he was a  powerful and influential man in the village who was  able to  do  a number of things as he wished and so  it  was  not surprising that he was able to get a number of witnesses  to speak  to separate enjoyment of a few items of land  by  the appellants’ mother. When  the  question of status of the family  was  reagitated before  the High Court it felt no hesitation  in  confirming the conclusions of the trial court in regard to the  general conduct   of  respondent  1,  the  documents  brought   into existence  by  him, and the unfair manner in  which  he  had dealt with the appellants’ mother.  For the reasons set  out by  the  High  Court in its judgment "    and  also  for the various reasons put forward by the learned District Judge in his  exhaustive  judgment " the High Court agreed  with  the learned  judge  that the alleged partition of 1929  had  not been proved.  Thus the dispute between the parties has to be considered 783 on  the basis that until the date of the institution of  the suit   the  family  was  an  undivided  Hindu  family   with respondent I as its manager. The  first  point  which has been raised before  us  by  the learned  Attorney-General  relates  to  items  4  to  61  at

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Jonnagiri.   These properties originally belonged to  Karnam Channappa.   He  died in 1904, and in due’ course  the  said property devolved upon his widow Bassamma who died in  1920. Bassamma left behind her three daughters Channamma,  Nagamma and  Veeramma.   Channamma married Ramappa, and as  we  have already  indicated  the couple had four sons  including  the appellants   father  Bandappa  and  the   first   respondent Mallappa.   It  is  common ground  that  the  properties  at Jonnagiri had been obtained by Channamma by succession  from her  father  and were held by her as a limited  owner.   The appellants’  case  was that after Channamma  obtained  these properties by ,succession she allowed the said properties to be  thrown  into  the  common  stock  of  other   properties belonging  to  her  husband’s family, and so  by  virtue  of blending  her  properties  acquired  the  character  of  the properties  belonging  to  her husband’s  family;  in  other words, the appellants’ claim in respect of this property  is based on the principle of blending or throwing into the com- mon stock which is recognised by Hindu law.  The trial court relied  on some transactions adduced by the  appellants  and upheld the plea that Channamma’s properties had become joint family properties in which the appellants had a half  share. The  High Court has reversed this finding, and it  has  held that the transactions on which the appellants relied do  not prove  blending  as  known to Hindu law.  That  is  why  the appellants’  claim to these properties has been rejected  by the High Court. Before considering the appellants’ case in regard to ,/these properties  it is necessary to enquire whether the  doctrine of blending can be invoked in such a case.  Is this doctrine based  on any Sanskrit Text of Hindu Law?  According to  the decision of the Privy Council in Shiba Prasad Singh v.  Rani Prayag Kumari Debi (1). (1)  (1932) L.R. 59 I.A. 331. 784 this  doctrine is based on the text of Yagnavalkya  and  the commentary  of  Mitakshara; the text  of  Yagnavalkya  reads thus:  "  In  cases  where the  common  stock  undergoes  an increase,  an  equal  division is obtained "  (1).   In  his commentary  on  this  text Vijnyaneshwara  has  observed  as follows:  " Among unseparated brothers, if the common  stock be  improved  or  augmented  by  any  one  of  them  through agriculture,   commerce   or   similar   means,   an   equal distribution nevertheless takes place; and a double share is not allotted to the acquirer " (2).  Sir Dinshah Mulla,  who delivered  the judgment of the Privy Council in the case  of Shiba  Prasad  Singh  (3) has observed  that  the  words  of Yagnavalkya  mean  that  " if a member  of  a  joint  family augments  joint  property,  whatever  may  be  the  mode  of augmentation,  the property which goes to augment the  joint family  property becomes part of the joint family  property, and he is entitled on a partition to an equal share with the other  members of the family, and not to a double share,  as in  some  other cases dealt with in  the  preceding  verses. This  is the placitum on which the whole doctrine of  merger of estates by the blending of income is founded " (p.  349). It  would thus be seen that according to this  decision  the doctrine  of blending or throwing into the common  stock  is based on the text just quoted. With  very great respect, however, the text  of  Yagnavalkya and the comments made by Vijnyaneshwara on it do not  appear to  have any relation to the doctrine of blending as it  has been judicially evolved.  The context of the discussion both in  the  text of Yagnavalkya and in the  commentary  clearly shows  that  what is being discussed is the  acquisition  of

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property  by a coparcener with the use of the family  stock; in  other words, taking the benefit of the family stock  and making its use if a coparcener through trade, agriculture or any  other  means augments the initial or   original  family stock, the augmentation thus made is treated as forming part of  the original stock and an accretion to it, and  in  this augmentation  the acquirer is not given any extra share  for his special exertions. (1) Ch. 1, sect. 4, 30. (2) Mitakshara, ch. 1. sect. 4, Pl. 31. (3)  (1932) L.R. 59 I.A. 331. 785 This position is clarified by the comments made by Sulapani. Says Sulapani: " that an equal division is here specifically ordained;  for  in a partnership with a  common  stock,  the difference in the gains of each individual member is not  to be  taken  into  account  at  the  time  of  partition.    " Vijnyaneshwara observes that this text is intended to be  an exception  to the text of Vasishtha which allows two  shares to  the acquirer and which is cited in the Mayukha (1).   It would  thus  be  clear  that  the  relevant  text  and   the commentary  are not dealing with a case where  the  separate property  of a coparcener independently acquired by  him  is thrown  into the common stock with the deliberate  intention of extinguishing its separate character and impressing  upon it the character of the joint family property.  The subject- matter  of  the discussion is addition to the  common  stock made  by the efforts of a coparcener with the assistance  of the  common  stock itself.  Therefore, in our  opinion,  the said text cannot be treated as the basis for the doctrine of blending as it has been judicially evolved. It  is,  we think, unnecessary to  investigate  whether  any other  text  can be treated as the foundation  of  the  said doctrine  since  the said doctrine has  been  recognised  in several  decisions and has now become a part of  Hindu  law. In Rajani Kanta Pal v. Jaga Mohan Pal (2) the Privy  Council held  that " Where a member of a joint Hindu  family  blends his  self-acquired  property  with  property  of  the  joint family, either by bringing his self-acquired property into a joint  family account, or by bringing joint family  property into  his  separate  account, the effect  is  that  all  the property so blended becomes a joint family property." The  question  which falls for our decision  is:  Does  this principle  apply  in regard to a property held  by  a  Hindu female as a limited owner?  In our opinion, it, is difficult to  answer this question in favour of the; appellants.   The rule  of  blending  postulates that a;,  coparcener  who  is interested in the coparcenary property and who owns separate property of his own may, (1)  The  Vyavahara  Mayukha, Pt. 1, by  Vishvanath  Narayan Mandlik, 215. (2)(1923) L.R. 50 I.A. 173. 786 by  deliberate  and intentional conduct treat  his  separate property as forming part of the coparcenary property.  If it appears that property which is separately acquired has  been deliberately  and voluntarily thrown by the owner  into  the joint stock with the clear intention of abandoning his claim on the said property and with the object of assimilating  it to the joint family property, then the said property becomes a  part  of the joint family estate ; in  other  words,  the separate  property  of  a  coparcener  loses  its   separate character  by reason of the owner’s conduct and  get  thrown into  the  common stock of which it becomes  a  part.   This doctrine  therefore inevitably postulates that the owner  of

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the separate property is a coparcener who has an interest in the  coparcenary property and desires to blend his  separate property  with  the coparcenary property.  There can  be  no doubt that the conduct on which a plea of blending is  based must  clearly  and unequivocally show the intention  of  the owner of the separate property to convert his property  into an  item  of  joint family property.  A  mere  intention  to benefit  the members of the family by allowing them the  use of  the  income  coming  from  the  said  property  may  not necessarily  be enough to justify an inference of  blending; but   the  basis  of  the  doctrine  is  the  existence   of coparcenary   and  coparcenary  property  as  well  as   the existence  of  the separate property of a  coparcener.   How this  doctrine can be applied to the case of a Hindu  female who  has  acquired immovable property from her father  as  a limited  owner it is difficult to understand.  Such a  Hindu female  is not a coparcener and as such has no  interest  in coparcenary  property.  She holds the property as a  limited owner,  and on her death the property has to devolve on  the next  reversioner.  Under Hindu law it is open to a  limited owner like a Hindu female succeeding to her mother’s  estate as  in Madras, or a Hindu widow succeeding to her  husband’s estate,  to efface herself and accelerate the  reversion  by surrender;  but,  as  is well known,  surrender  has  to  be effected  according to the rules recognised in that  behalf. A Hindu female owning a limited estate cannot circumvent the rules of surrender 787 and  allow the members of her husband’s family to treat  her limited  estate as part of the joint property  belonging  to the said family.  On first principles such a result would be inconsistent with the basic notion of blending and the basic character  of a limited owners’ title to the property  held, by  her.  This aspect of the matter has apparently not  been argued  before the courts below and has not been  considered by  them.   Thus,  if the doctrine  of  blending  cannot  be invoked  in  regard to the property held by  Channamma,  the appellants’  claim in respect of the said property  can  and must be rejected on this preliminary ground alone. However, we will briefly indicate the nature of the evidence on  which the plea of blending was sought to  be  supported. It  appears that in 1921 a deed of maintenance was  executed in favour of Gurushantappa’s widow Parvathamma by the  three surviving brothers of Gurushantappa.  This deed was attested by  their father Kari Ramappa.  It is clear that  this  deed includes  some of the lands which Channamma had acquired  by succession to her father (Ex.  A-10).  Subsequently, on July 5,  1923, some additional properties belonging to  Channamma were  charged to the said maintenance (Ex.  A-11).  It  also appears  that pattas in respect of the same lands  belonging to  Channamma were obtained in the names of the  members  of the family; and consequently, the said pattas were shown  in the  relevant revenue papers.  Broadly stated, that  is  the nature of the evidence on which the plea of blending  rests. It  is  obvious that even if the doctrine of  blending  were applicable   it  would  be  impossible  to  hold  that   the transactions on which it is sought to be supported can  lead to  the inference that Channamma did any act from which  her deliberate   intention  to  give  up  her  title  over   the properties in favour of the members of her husband’s  family can be inferred.  It is not difficult to imagine Channamma’s position  in the family.  If her husband and her sons  dealt with  her property as they thought fit to do  Channamma  may not  know about it, and even if she knew about it,  may  not think it necessary to object

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788 because  she would not be averse to giving some income  from her property to her sons or to her widowed  daughter-in-law. As we have already pointed out, the conduct of the owner  on which  the plea of merger can be invoked must be  clear  and unequivocal,  and  the evidence about it must be of  such  a strong  character as to justify an inference that the  owner wanted to extinguish his title over the property and impress upon  it  the  character  of  the  joint  family   property. Besides,  as we will later point out, Channamma  executed  a deed  of surrender in 1938 and the said document  is  wholly inconsistent with the plea that she intended to give up  her title  to  the  property in favour of  her  husband’s  joint family.   However, this discussion is purely academic  since we  have already held that the principle of blending  cannot be  invoked  in  respect  of  the  limited  estate  held  by Channamma.  Therefore, we must hold that the High Court  was right  in rejecting the appellants’ claim in respect of  the properties in Jonnagiri. That takes us to the properties in Schedule C in respect  of which the trial court had decreed the appellants’ claim  and the  High  Court has rejected it.  This  property  has  been obtained by respondent 1 as a result of the decree passed in O.  S. No. 5 of 1940.  The property originally  belonged  to Virupakshappa, and in O. S. No. 5 of 1940 respondents 2  and 1   claimed  a  declaration  against  the  two   widows   of Virupakshappa,  their  daughter and certain  alienees.   The declaration  claimed  was that the  wills  of  Virupakshappa therein specified were invalid and inoperative and that  the respondents had reversionery right to Virupakshappa’s estate after  the lifetime of his widows and daughter.   A  further declaration  was  also claimed that  alienations  and  gifts specified in the plaint were invalid beyond the lifetime  of the  widows  and the daughter of Virupakshapna.   This  suit ended  in a compromise decree, and it is common ground  that the properties in Schedule C came to the share of respondent 1  by this compromise decree.  The question which  has  been argued  before us in respect of these properties is  whether or not the appellants 789 are entitled to a share in these properties.  The appellants contend  that  respondent 1 had joined respondent 2  in  the said  suit  as representing their undivided family  and  the properties  acquired  by  him under  the  compromise  decree passed  in  the  said  suit has  been  allotted  to  him  as representing  the whole of the family.  On the  other  hand, respondent  1  contends that he joined respondent 2  in  his individual  character  and  the decree must  inure  for  his individual benefit. It  is clear that at the time when the said suit  was  filed respondent   2  was  a  presumptive  reversioner   and   not respondent  1 ; but it appears that respondent 2 wanted  the help  of respondent 1 to fight the litigation, and  both  of them joined in bringing the said suit.  It is common  ground that  respondent 2 asked Neelamma whether she would like  to join  the  litigation.   Respondent  2  has  stated  in  his evidence  that  Neelamma was not willing to  join  the  said litigation and respondent 1 has supported this version.  The High  Court thought that the evidence of Neelamma  was  also consistent  with the story set up by respondent 1.  That  is one  of  the main reasons why the High Court held  that  the decree passed in the said suit did not enure for the benefit of  the  family.  In assuming that  Neelamma  supported  the version of respondent 1 the High Court has obviously misread her  evidence.   This  is what Neelamma has  stated  in  her

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evidence:  "  Defendants 1 and 2 came to me at the  time  of filing  their suit and said that the expenses are likely  to be heavy and that minors’ properties would not be wasted.  1 said 1 had no objection and gave my consent." The High Court has  read her evidence to mean that she was not prepared  to waste the properties of her minor sons and so she refused to join  the  adventure, and in doing so it  thought  that  the statement  of respondent 2 was that the  minors’  properties should  not be wasted, whereas according to the witness  the said  statement was that the minors’ properties "would"  not be  wasted.  It would be noticed that it  makes  substantial difference  whether the words used were " would not "  or  " should not." 790 We  have  no  doubt that on the evidence as  it  stands  the inference  is  wholly unjustified that Neelamma  refused  to join  respondents  1  and 2. Besides,  as  we  have  already pointed  out, the evidence of respondents 1 and 2 have  been disbelieved  by both the courts, and in fact the conduct  of respondent  1 whereby he wanted to defeat the claims of  his nephews  has  been  very strongly  criticized  by  both  the courts.   Therefore, we feel no hesitation in  holding  that the  trial court was right in coming to the conclusion  that respondents 1 and 2 consulted Neelamma and with her  consent the suit was filed and was intended to be fought by the  two respondents  not  for themselves individually but  with  the knowledge that respondent 1 represented the undivided family of  which he was the manager.  If that be so, then  it  must follow  that  the  decree  which was  passed  in  favour  of respondent  1 was not for his personal benefit but  for  the benefit of the whole family. In  this  connection it is necessary to bear  in  mind  that respondent 1 has not shown by any reliable evidence that the expenses  for the said litigation were borne by him  out  of his pocket.  It is true that both the courts have found that respondent  1 purchased certain properties for Rs. 600/-  in 1925 (Ex.  B-4).  We do not know what the income of the said properties was; obviously it could not be of any significant order;  but, in our opinion, there is no doubt that where  a manager claims that any immovable property has been acquired by him with his own separate funds and not with the help  of the  joint  family funds of which he was in  possession  and charge,  it  is for him to prove by clear  and  satisfactory evidence his plea that the purchase money proceeded from his separate  fund.   The onus of proof must in such a  case  be placed  on  the manager and not on his  coparceners.   But,, apart  from  the  question of onus, the  evidence  given  by respondent  1 in this case has been disbelieved, and in  the absence of any satisfactory material to show that respondent 1 had any means of his own it would be idle to contend  that the  expenses incurred for the litigation in  question  were not borne by the joint 791 family income.  Therefore, apart from the fact that Neelamma was consulted and agreed to join the adventure on behalf  of her  sons, it is clear that the expenses for the  litigation were  borne  by the whole family from its own  joint  funds. This   fact  also  shows  that  the  property  acquired   by respondent 1 under the compromise decree was acquired by him as representing the family of which be was the manager.  The result  is that the view taken by the High Court in  respect of the properties in Schedule C must be reversed and that of the trial court restored. That  leaves  a minor point about three items  of  property, Serial  Nos.  63, 64 and 65, in Schedule A. These  items  of

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property  form  part  of Jonnagiri  property,  and  we  have already  held that the appellants cannot make any  claim  to the  whole  of this property.  It appears  that  though  the trial  judge passed a decree in favour of the appellants  in respect  of  Serial Nos. 4 to 61 in Schedule A, he  did  not recognise the appellants’ share in the three serial  numbers in  question because he held that they were not part of  the joint family property but belonged exclusively to respondent 1. It also appears that these properties originally belonged to  the  joint family of the parties but they were  sold  by Kari  Ramappa and his two brothers to Channappa as long  ago as  1898.   That  is how they  formed  part  of  Channappa’s estate.   Both the courts have found that the sale  deed  in question  was a real and genuine transaction, and they  have rejected the appellants’ case to the contrary.  Respondent 1 claims these items under a deed of surrender executed in his favour  by Channamma (Ex.  B. 3) on December 5, 1938.   This document is accepted as genuine by both the courts and it is not  disputed  that the surrender effected by  it  is  valid under   Hindu   law.   Indeed  this   document   is   wholly inconsistent with the appellants’ case that Channamma wanted to  convert her separate properties into properties  of  the joint  family  of  her  husband.   Therefore,  there  is  no substance  in the appellants’ argument that they  should  be given a share in these three items of property. 792 The  result is the appeal is partly allowed and  the  decree passed  by  the  High  Court  is  modified  by  giving   the appellants  their half share in the properties described  in Schedule C. The rest of the decree passed by the High  Court is confirmed.  In the circumstances of this case the parties should bear their own costs.’                               Appeal allowed in part.                          ----------