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CASE NO.: Appeal (civil)  817 of 2002

PETITIONER: P.S. Sairam & Anr.                                        

RESPONDENT: P.S. Rama Rao Pisey & Ors.                               

DATE OF JUDGMENT: 04/02/2004

BENCH: Y.K. SABHARWAL & B.N. AGRAWAL

JUDGMENT: JUDGMENT

B.N. AGRAWAL, J.

       In this appeal by special leave, appellants, who were defendant nos. 1(e)  and 2, have assailed the judgment rendered by Karnataka High Court in appeals  whereby it has been directed that plaintiff is entitled to 11/30th share in the  properties described as item Nos. 1,2 and 3 in the Schedule appended to the  plaint and thereby modifying the decree of the trial court which directed that the  plaintiff shall be entitled to 1/8th share in the said properties.  

       Plaintiff filed a suit for partition claiming 1/7th share in the properties  described as item Nos. 1 to 4 in the Schedule and for rendition of accounts in  relation to joint family business carried on by defendant no. 1 in the name and  style of M/s Pissey and Sons and his case, in short,  was that one P.Eswar Rao  had three marriages and from the second marriage, he had two sons, namely,  P.E.Sadasiva Rao (defendant No.1) and P.E.Panduranga Rao.  From other two  marriages also, P.Eswar Rao had children and he acquired various properties  during his life time which were his self acquisitions but the same were put in  common hotchpotch.   On 29th November, 1947, P.Eswar Rao executed a deed  of family arrangement whereby properties  bearing holding No. 35 in Commercial  Street in the city of Bangalore (described as item no. 1 in the Schedule)   and  holding No. 262 situate in Cavalry Road within the same  city  were jointly allotted  to  P.E.Sadasiva Rao (defendant No.1) and his brother P.E.Panduranga Rao.   Subsequently, a suit was filed by P.E.Panduranga Rao in which a compromise  was arrived at and  item No. 1 property  was allotted to  defendant No.1 whereas  the other property was allotted to P.E.Panduranga Rao under a compromise  decree dated 22nd January, 1963 passed in OS No. 56 of 1961.  P.E.Sadasiva  Rao had two marriages.  From his first wife -Godavari Bai, he had a son  P.S.Ramarao Pissey, who is the plaintiff, besides four daughters viz.,  P.Asha  Devi [defendant no. 1(a)], P.Jayalakshmi [defendant no. 1(b)], P.S. Lalitha  [defendant no. 1(c)] and P.S.Shantha [defendant no. 1(d)].  From second wife-  Sumitra Bai [defendant no. 1(e)], P.E.Sadasiva Rao had a son, namely, P.S. Sai  Ram [defendant no. 2] besides three daughters, namely, Rekha [defendant no.  1(f)], Mala [defendant no. 1(g) and Prabha [defendant no. 1(h)].  Defendant No.1  started a joint family business of textiles and tailoring in a portion of  item No.1  property  and out of the income of the said business, he acquired  item Nos. 2,3  and 4 properties.  Further case of the plaintiff was that even though the suit  properties belonged to joint family of defendant No.1 and his two sons, namely,  the plaintiff and defendant No.2,  defendant No.1 executed a deed of settlement  on 23rd February, 1978 whereunder he settled  item no. 1 property  in favour of  defendant No. 2.   Thereafter, defendant No.2  obtained a Will executed by  defendant No.1 on 29th January, 1993 bequeathing thereunder   item No.3  property  in favour of defendant nos. 1(e) and 2  which was fabricated one.  As  the parties were having difficulty in joint enjoyment of the properties, the same  necessitated filing of the present suit.  

       In the said suit, the defendants filed written statement contesting the case

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of the plaintiff.  According to them,  item No.1 property  was self acquisition  of  P.Eswar Rao and, consequently,  of defendant no. 1,  who, after raising funds  from the market, started his separate business of tailoring in the said property  with which the joint family had absolutely no connection whatsoever, more so   when the joint family was neither possessed of any fund nor any fund  was at all  invested in the said business by it at any point of time.  According to them, out of  the income from the said business, defendant No.1 acquired other properties  which are described as item Nos. 2,3 and 4 in the Schedule and, therefore, the  same are also his self acquisitions, consequently,  he had every right to deal with  it.  Accordingly, deed of settlement  dated 23rd February, 1978  and the Will   dated 29th January, 1993 executed by defendant no. 1 were  genuine and valid  and, consequently, the plaintiff was not entitled to claim any share in the suit  properties. It may be stated that during  pendency of suit, defendant No.1 died in  February, 1994 and as his first wife predeceased him, four daughters from her  were impleaded as defendant Nos. 1(a) to 1(d), second wife as defendant  No.1(e) and three daughters from her as defendant Nos. 1(f) to 1(h).   

       During trial, both the parties led evidence in support of their respective  cases and upon conclusion of trial, the learned Civil Judge  recorded findings that  property described as item No.1 in the Schedule was a joint family property,  business started therein by defendant No.1 was joint family business  and as out  of its income,  item Nos. 2,3 and 4 properties were acquired, it  also became the   joint family property.  The deed of family settlement dated 23rd February, 1978  was held to be invalid.  It was further held  that the defendants failed to prove due  execution of the Will.   The court held that Section 6A of Hindu Succession  (Karnataka Amendment) Act, 1990 [hereinafter referred to as ’the Karnataka  Amendment’,] which conferred equal right to a daughter in co-parcenary  property, was applicable in the present case, but  defendant Nos. 1(a) and 1(b),  two of the daughters of defendant No.1 from his first wife, were not entitled to any  share in the suit properties, they having married before the coming into force of  the Karnataka Amendment.  In view of the aforesaid findings, the trial court  decreed  suit for partition in relation to  item Nos. 1, 2 and 3 properties in which it  was directed that plaintiff was entitled to 1/8th share.  No decree for partition was  passed in relation to  item No. 4 property as the same was  not available for  partition in view of the fact that  prior to the date of filing of the suit, it  had already   been sold by defendant No.1 to one Smt. Adilaxmi, who was not made party to  the suit.  It was further directed that plaintiff was entitled to a decree for rendition  of accounts in relation to business and the amount  shall be ascertained at the  time of passing of final decree.    

       Challenging the decree of  trial court, two appeals were preferred, one  by  the plaintiff and  another by defendant No.2 and his mother-defendant No.1(e)  before the High Court of Karnataka.  The High Court confirmed the findings of the  trial court on all the issues, excepting  applicability of Section 6A of the Karnataka  Amendment in relation to which it has been categorically held that it  shall have  no application in the case in hand and accordingly  daughters of defendant no. 1   could not claim right  in coparcenery property as a coparcener and in view of this,  the judgment and decree of the trial court granting 1/8th share to the plaintiff in  the properties described as item Nos. 1 to 3 in the Schedule have been modified  and it has been held that the plaintiff  and defendant No.2  will be entitled to  11/30th share each in the properties described as item Nos. 1 to 3 in the  Schedule and each of the seven daughters and widow of defendant no. 1 shall  be entitled to 1/30th share therein.  Hence, this appeal by special leave.  

               Mr. U.U.Lalit, learned counsel,  in support of the appeal submitted  that the High Court was not justified in affirming findings of the trial court that the  business which defendant No.1 was carrying on was not his separate business  but the same belonged to joint family. It was further submitted that as the  business was separate one of defendant no. 1, item Nos. 2,3 and 4 properties   acquired out of  income of the said business, became his separate properties  in  which the plaintiff had no right to claim partition. Further, it was submitted that the  finding that the defendants failed to prove due execution of the Will is vitiated as  the same was arrived at without properly considering the evidence adduced on  behalf of the parties and consequently, the plaintiff was not entitled to any share

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in item No.3 property.  Lastly, it was submitted that upon the death of defendant  No.1, the plaintiff was entitled to only 11/40th share  in item No. 1 property  in  terms of  Section 6 of the Hindu Succession Act, 1956 (hereinafter referred to as  ’the Act’) and 1/10th share in  item no. 2  property,  but  the High Court committed  an error in holding that  he was entitled to 11/30th share. On the other hand,  learned counsel appearing on behalf of the plaintiff/respondent submitted that the  courts below were justified in holding that the business belonged to joint family  and the properties acquired out of its income  became joint family properties and  the plaintiff was entitled to claim partition therein.  So far as the Will is concerned,  it was submitted that the two courts below recorded the finding after duly  considering the evidence adduced on behalf of the parties and no interference is  called for. Lastly, it was submitted that the High Court was not justified in  reversing decision of the trial court regarding applicability of Karnataka  Amendment holding the same to be not applicable and thereby reducing  share  of the plaintiff and his sisters in the suit properties.  

       Crucial question in the present appeal is as to whether business which  was conducted by  defendant No.1 was his separate business or it belonged to  joint family, consisting of  himself and his sons.  It is well settled that so far as  immovable property is concerned, in case the same stands in the name of  individual member, there would be a presumption that the same belongs to joint  family, provided it is proved that the joint family had sufficient nucleus at the time  of its acquisition,  but no such presumption can be applied to business.   Reference in this connection may be made to a decision of this Court in the case  of G.Narayana Raju v.G.Chamaraju & Others 1968(3) SCR 464 wherein in a  suit for partition defence was taken that business of Ambika Stores was separate  business of defendant as the business did not grow  out of joint family funds or at  least by efforts of members of joint family which was accepted by the trial court  as well as the High Court.  When the matter was brought to this Court in appeal,  upholding the judgment of the High Court, the Court observed thus at page 466:- "It is well established that there is no presumption under Hindu Law  that a business standing in the name of any member of the joint  family is a joint family business even if that member is the manager  of the joint family.  Unless it could be shown that the business in the  hands of the coparcener grew up with the assistance of the joint  family property or joint family funds or that the earnings of the  business were blended with the joint family estate, the business  remains free and separate. "          In the case of M/s Piyare Lal Adishwar Lal v. The Commissioner of  Income Tax, Delhi (1960) 3 SCR 669, similar question had arisen before this  Court while hearing an appeal arising out of order passed by Punjab High Court  on a reference made under Section 66(1) of the Indian Income Tax Act, 1922.  In  that case, one Adishwar Lal was Treasurer of a bank who had two sons and they   were members of Hindu Undivided Family.  One of his sons, namely, Sheel  Chandra, was employed as Overseer in the bank during the life time of his father  and upon father’s death, he was appointed as Treasurer in the bank on a  monthly salary of Rs. 1,750/-.  Sheel Chandra furnished, by way of security to the  bank, certain  properties belonging to Hindu Undivided Family consisting of  himself and his younger brother and in the accounting year 1950-51, he received  from the bank a sum of Rs. 23,286/- as a Treasurer.  The Income-tax Authorities  considered that this sum was not the individual income of Sheel Chandra as  salary but was part of  income of the Hindu Undivided Family and taxed it as  such on account of the fact that he was appointed as a Treasurer because his  father was Treasurer in the bank before him and  joint family property was  furnished by way of security.   The Assessing Authority came to the conclusion  that as the emoluments could not be said to have been earned without detriment  to the family property, the same could be taxed as income in the hands of  Hindu  Undivided family.  The decision of the Assessing Authority was upheld by the  Income-tax Appellate Tribunal as well as the High Court on a reference. On  appeal being preferred before this Court, the decision was reversed and it was  laid down that giving joint family property in security for the good conduct of a  member of the family employed on a post was sufficient to make the emoluments  of the post to be income in the hands of joint family  only if it were shown that the  said act was detrimental to the family property.  In the said case, as the act of  furnishing security was not  found to be detrimental to the family property, the

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Court held that the income received by Sheel Chandra was not income of the  Hindu Undivided Family but was his individual income.  

       In the case of V.D.Dhanwatey v. The Commissioner of Income Tax,  M.P.Nagpur (1968) 2 SCR 62, a Constitution Bench of this Court was also  considering an appeal arising out of an order passed by the High Court on a  reference.  In that case, joint family funds were invested in a partnership  business which enabled karta of the joint family to become a partner and when  the remuneration was paid to him, it was assessed as income of the joint family  and the view taken was upheld  by this Court holding that  as  investment of the  joint family funds in the partnership enabled a karta to become a partner and  there being real and sufficient connection between that investment and the  remuneration paid to the karta,  the same has to be treated as income of the joint  family.  The Constitution Bench noticed the decision of this Court in the case of  M/s Piyare Lal Adishwar Lal (supra)  and, while approving the ratio of that case  observed that as the remuneration earned by the karta was detrimental to the  Hindu Joint Family funds, the High Court was justified in answering the reference  against the assessee and in favour of the Revenue by holding that  remuneration  received by the karta was taxable in the hands of Hindu Undivided Family.  

        The question to be examined in the present case is as to whether mere  user of the joint family property (item no. 1 property), as a business premises by  defendant No.1, who was karta of the joint family, for running his separate  business can be said to be in any manner detrimental to the joint family property?   Undisputably, the joint family had not invested a single farthing in the business at  any point of time as it was started by defendant No.1 by raising loans from the  market. Even according to the plaintiff, only a portion of said property was leased  to one Md. Sharif in the year 1948 who vacated it in the year 1952.  But it is not  known during this period what was the rental of the said portion.  There is no  evidence to show whether after 1952, the said portion which was vacated  by Md.  Sharif was let out to anybody or remained vacant.  So far as the other portion of  the said  property is concerned, undisputedly, in one part only, defendant No.1  was carrying on business. Apart from that, the trial court found that defendant  No.1 along with his first wife and children from her, including the plaintiff, resided  therein  till the year 1969 when his first wife died and the plaintiff was also  carrying on his separate business in the very same property.  It further found that  as in the year 1970, the defendant No.1 married Sumitra Bai-defendant No.1(e),  differences cropped up  between the plaintiff and his father  as a result of which  defendant No.1 shifted to another house and resided therein with his second  wife.  These facts amply prove that joint family property was being used as  business premises  not only by karta but also by junior member of the joint Hindu  family.  There is no material whatsoever to show that user of the same as  business premises by defendant no. 1 was in any manner detrimental to the joint  family property.  This being the position, we have no option but to hold that the  business carried on by defendant No.1 in the property described as item No.1 in  the Schedule cannot be treated to be joint family business and the same     remained his separate business throughout, especially in view of the fact that  there was neither any case nor evidence to show any blending.  In view of our  conclusion  aforementioned that the business was separate one of defendant  No.1, properties enumerated as item Nos. 2,3 and 4 in the Schedule acquired out  of income of the said business, have got to be treated self acquisitions of    defendant No.1.

Turning now to the second submission of learned counsel appearing on  behalf of the appellants, it has to be seen as to whether the findings recorded by  the two courts below to the effect that  item no. 3 property being joint family  property, defendant no. 1 \026 Sadasiva Rao had no right to execute the Will in  question and defendants failed to prove the due execution of the Will by  Sadasiva Rao were vitiated.  In view of our conclusion aforesaid that item no. 3  property was self-acquisition  of defendant no. 1, we have no difficulty in holding  that both the courts below were not justified in coming to the conclusion that  defendant no. 1 had no right to execute the Will.           The  courts below have recorded  finding against the defendants regarding   execution of the Will, principally, on two grounds; defendant no. 1, though he was

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literate, did not put his signature,  but put his Left Thumb Mark  [LTM]  on the Will  in question and out of the three attesting witnesses, only K.S. Panduranga Rao  was examined as DW.3 and the other two witnesses, namely, Vittal Rao and  Rajanna, were not examined.  It is true that Sadasiva Rao was a literate person,  but he put his LTM on the Will reason therefor finds mention  in the Will, Ext.  D.13 itself, wherein it was specifically mentioned that as hands of Sadasiva Rao  were shaking due to nervous weakness,  he was putting his LTM on the Will.   Even on the Vakalatnama (Ext. P.28) defendant no. 1 put his LTM, but did not  sign it.  DW.3 stated in his evidence that as Sadasiva Rao was diabetic patient  and his hands were shivering, he did not sign the Will but put his LTM thereon.    The testator, who died during the pendency of the suit, as stated above, was  examined as DW.1 and in his evidence he had stated  that because of nervous  disability he was not in a position to put his signature on the Will.   Thus, the  reason assigned in the Will for the testator’s not signing it and putting his LTM is  not only corroborated by the evidence of  DWs.1 and 3, but also by the fact that  he put his LTM on the Vakalatnama [Ext. P/28] as well.    These facts show that  the first ground which weighed with the  courts below for holding that the  defendants failed to prove due execution of the Will was unwarranted.            So far as the other ground is concerned, it was stated by DW.3 that on  being  called by the testator,  he went with him to the office of lawyer along with  the other two witnesses, namely, Vittal Rao and Rajanna, and there, in his  presence and in the presence of other attesting witnesses, contents of the Will  were not only read over to the testator, but he himself also had gone through  its  contents.  He  further stated that the testator was keeping good health and was  mentally sound.  The witness then stated that the testator put his LTMs on each  and every page of the Will in his presence which were marked as Exts. D.13(a)  to D.13(j)  and he attested the  same and put is signature on the Will  which was  marked as Ext. D.13(k).  He thereafter stated that other two attesting witnesses  also put their signatures on the Will and he identified them which were marked as  Exts. D.13(l) and D.13(m).   DW.3 lastly stated that he was instructed to go to the  Sub-Registrar’s office two days after the execution of the Will where he  presented himself before the Sub-Registrar and there in his presence the testator  put his LTM, which was marked as Ext. D.13(n), and he attested the same and  his signature was marked as Ext. D.13(p).  In our view, there is no infirmity  in the  evidence of this witness and the courts below were not justified in drawing an  inference against the defendants for not examining the other two attesting  witnesses.   In the case on hand, neither the LTMs of the testator on the Will  have been denied nor any case has been made out or evidence led to the effect  that LTMs of the testator were taken on  blank  papers and same were converted  into  Will.  As the  plaintiff had filed a suit for partition against his father, who was  the testator, there was nothing unnatural in the testator bequeathing item no. 3  property to his second wife, defendant no. 1(e), creating life estate in her favour  and thereafter to her son, defendant no. 2.  It may be stated that in the Will it has  been recited that the testator had already purchased  a house in the name of his  first wife where his children from her, including the plaintiff,  were residing and he  gave the said house to his four daughters from the first wife.  This shows that   conduct of the testator in bequeathing item no. 3 property  under the Will in  favour of his second wife and his son from her  cannot be said to be unnatural.   In view of the foregoing discussion, we  hold that the defendants  succeeded in  proving that Sadasiva Rao duly executed the Will in question and, consequently,   the plaintiff shall not be entitled to claim any share in the property described as  item no. 3 in the Schedule.           Lastly, learned counsel for the appellants submitted that the High Court  was not justified in holding that the plaintiff was entitled to 11/30th share in the  joint family property as under the provisions of Section 6 of the Act, interest of a  male Hindu in the Mitakshara coparcenary property  shall not devolve by  survivorship upon the surviving members of coparcenary in case he died leaving  behind a female relative specified in class I of the Schedule of the Act or a male  relative specified therein claiming through such female, in which event the said  interest shall be inherited by his heirs.  Explanation I to Section 6 lays down that  for the purposes of this Section,  the interest of a  Hindu Mitakshara coparcener  shall be deemed to be the share in the property that would have been allotted to  him if a partition of the property had taken place immediately before his death,

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irrespective of the fact whether he was entitled to claim partition or not.  This  shows that for determining the interest of a male Hindu, a notional partition has to  be assumed and the share in the joint family property, which could have been  allocated to him in the notional partition, would devolve upon his heirs.   Learned  counsel appearing on behalf of the plaintiff-respondent submitted that as  daughters of Sadasiva Rao, defendant no. 1, by virtue of coming into force of  Section 6A of the Karnataka Amendment  became coparceners and acquired  right equal to  son in the coparcenary property, the High Court was not justified in  holding that the Karnataka Amendment shall not be applicable and thereby  reducing share of the plaintiff-respondent and his sisters.  In our view, in the  absence of any appeal against the decision of the High Court reducing the share  of the plaintiff and his sisters after holding that the Karnataka Amendment was  not applicable, it is not open to the plaintiff to challenge the said decision as by its  reversal,  the share of plaintiff and his sisters would be enhanced.  Therefore, it is  not possible for this Court to go into  correctness of  decision of the High Court  regarding applicability of the Karnataka Amendment in this appeal, and,  consequently, we refrain ourselves from expressing any opinion thereon.  Thus,  the shares of the parties in the joint family property have to be determined in  accordance with the provisions of Section 6 of the Act.   In the present case, if a   partition would have taken place, in view of the fact that defendant no. 1 had,  besides his second wife, two sons, he would have been allotted 1/4th share in the  joint family property and 1/4th share each would  have gone to the two sons \026  plaintiff and defendant no. 2, and defendant no. 1(e), who was mother of  defendant no. 2.   In view of the fact that defendant no. 1 died during the  pendency of suit, his 1/4th share, which he would have got in the notional  partition, would devolve by inheritance upon his ten heirs, who are plaintiff and  defendants.  Thus the share of the plaintiff, defendant no. 2 and defendant no.  1(e) in the property described as item no. 1 in the Schedule, which belonged to  the joint family, would be 11/40th each and so far as the seven daughters,  namely, defendant nos. 1(a) to 1(d) and 1(f) to 1(h) are concerned, each one of  them  would be entitled to 1/40th share therein.  In the separate property  described as Item No. 2 in the Schedule,  each one of the ten heirs, including the  plaintiff, would be entitled to 1/10th share.            In the result, the appeal is allowed in part, impugned judgments and  decrees are modified to this extent that the plaintiff shall be entitled to 11/40th  share in the property described as item no. 1  and 1/10th share in the property  described as item no. 2,   but he shall not be entitled to  any share in the property  described as item no. 3 in the Schedule.  In the facts and circumstances of the  case, there shall be no order as to costs.