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PETITIONER: MUDIGOWDA GOWDAPPA SANKH & ORS.

       Vs.

RESPONDENT: RAMCHANDRA RAVAGOWDA SANKH & ANR.

DATE OF JUDGMENT: 09/01/1969

BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. SHAH, J.C. GROVER, A.N.

CITATION:  1969 AIR 1076            1969 SCR  (3) 245  1969 SCC  (1) 386

ACT: Hindu Law--Partition-Partition deed sham and  nominal-Effect of  Joint family, having  nucleus-Later  acquisitions-Income from  nucleus  adequate for making  acquisitions-If  can  be presumed to be joint family  properties-Alienation-Challenge of in plaint.

HEADNOTE: A joint family consisting of two brothers G and A and  their wives,  sons  and daughters was possessed  of  joint  family properties.  Between ’the years 1911 and 1940 several  other properties  were acquired.  In 1930, the son of A was  taken in adoption by G. The adopted son died in 1944, and both the brothers  denied  the  adoption and purported  to  effect  a partition.   In the partition deed the lands were  unequally divided between the brothers, G getting twice as much as  A, but the brothers continued to be in joint possession of  the lands.  There was no division of their house at all and  the brothers had a joint mess even after the date of  partition. After  the  partition-deed  was executed  the  two  brothers executed   various  alienations.   The   first   respondent, claiming to be the adopted son of another son of A, filed  a suit  in  1954 after the death of G and A,  challenging  the partition  deed as fraudulent, that it was never acted  upon and was only intended to defeat the rights of two  widows-in A’s   family.   The  appellant-,  contested  the  suit   and supported all the alienations. The trial court decreed the suit except with respect to  one sale deed, and the High Court, in appeal, held in favour  of the first respondent even with respect to that item. In  appeal  to this Court, it was contended that :  (1)  The partition deed was not a sham transaction; (2) ’Even if  the partition  deed was bogus, there was in law a  severance  of joint family status; (3) The later acquisitions between  the years  1911  and 1940 were not joint family  properties  but belonged exclusively to G; and (4) The High Court should not have reversed the decree of the trial court with respect  to the sale deed, because it was not challenged in the plaint. HELD  : (1) The scheme of the partition was to  deprive  the widows-.  in A’s family of any claim for maintenance out  of

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the joint family properties but to limit their rights to the smaller  share  :given  to A. In view of the  state  of  law before  the decision in Anant v. Shankar, A.I.R.  1943  P.C. 196  the  two brothers decided to execute a  bogus  deed  of partition in order to avoid any legal consequences which may follow  if  either  of  the widows  should  take  a  son  in adoption.   Therefore, the deed was not genuine.  [249  D-G; 250 F-G] 246 (2)In  order to operate as a severance of joint status, it  is  necessary that  the  expression  of  intention  to separate himself, by the ’particular member must be definite and  unequivocal.  If the expression of the intention  is  a mere  pretence  or  sham, there is, in the eye  of  law,  no separation of the joint family status. [251 C-D] Merla Ramanna v. Chelikani Jagannadha Rao, A.I.R. 1941  P.C. 48, applied. (3)There  is  no presumption that a  joint  Hindu  family, because it is joint, possesses any joint family property  or if  there was a nucleus, any acquisition made by any  member of  the joint family is joint family property.  It  is  only after  the possession of an adequate nucleus is  shown  that such  a presumption is drawn and the onus shifts on  to  the person who claims the property as a self-acquisition to make out  his  claim.  In the present case, the income  from  the nucleus  was  more than sufficient for the purchase  of  the various items acquired later, and there was no proof that  G had  any  separate income of his own out of which  he  could have:   acquired   those  items.    Therefore,   the   later acquisitions were also joint family properties. [251 E G 252 C-D, E-F] Appalaswami  v. Suryanaravanamurti, I.L.R. [1948] Mad.  440, (P.C.) applied. (4)The first respondent challenged all the alienations  in the plaint and the High Court was right in holding that  the sale   without consideration and hence was not  genuine  and was not binding on the first respondent. [253 D-E]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 339 of 1966. Appeal  by special leave from the judgment and  order  dated December  12, 1962 of the Bombay High Court in First  Appeal No. 436 of 1967. G.   L. Sanghi, and A. G.Ratnaparkhi, for the appellants. S.   T. Desai and I. N. Shroff, for the respondents. The Judgment of the Court was delivered by Ramaswami,  J. This appeal is brought by special leave  from the  judgment of the Bombay High Court dated 12th  December, 1962 in First Appeal No. 436 of 1958 by which the High Court dismissed the appeal and allowed the cross-objections  filed by the respondents in the said appeal.                             247 The  relationship  of  the  parties  will  appear  from  the following pedigree                           Neneppa Gowdwppa=1. Kashibai         Apparaya=Sidgangawa II          2.Sigangawa I        (died on (Widows of Gowdappa)          20-12-53) (wife of Apparaya                                          time of Apparaya Gangabai         Neneppa II   Neneppa II Revgowda  Subhadra- (widoed daughter (adopted in          =Sidgangawa  bai(daug- of Gowdappa)     1930 died in  III(wife of Reveg-  ter of Appellant No.         1944)    owda Respodent No.  Apparaya

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5in 1944)                       2                  Appellant                                                    No. 3.              Neelagangawa=Mudigowda            (daughter of    (alleged to           Neneppa II)      have been     Ramchandra(adopted           Appellant No.    adopted by    to Revegowda by           2.               Gowdappa in   Sidgangawa III)                          1948; and became   Respodent No.                         the husband of   1. since deceased.                         Neelagangawa                        Appellant No.1. Goudappa  had one daughter by name Gangabai, while  Apparaya had three children (i) Nenappa II, (ii) Ravagowda and  (iii) Subhadrabai.In  1930  Nenappa 11 was given  in  adoption  to Goudappa.   He  had  two  wives  Kashibai  and   Sidgangawa. Revagowda  ’Married another Sidgangawa.  In  1938  Revagowda was murdered.  Thereafter Goudappa and Apparaya purported to effect  a partition between themselves.  At the time of  the death of Nenappa 1, six plots of lands belonged to the joint family.  Five of these plots are survey Nos. 43, 59, 65,  66 and  69 measuring 137 acres and 15 gunthas and  assessed  at Rs. 126/12/- and are located in Borgi Khurd.  The other plot survey  No. 77 which was in Borgi Budruk measured  14  acres and 24 gunthas and was assessed at Rs. 16/14/-.  The  total area of the ancestral lands was, therefore, 151 acres and 27 gunthas  assessed  at Rs. 143/.  Between 1911 and  1940,  12 other  pieces of lands in both these villages measuring  137 acres  and  39  gunthas and assessed  at  Rs.  18/10/-  were acquired in various names.  After Nenappa II 248 was murdered in 1944, both the brothers denied his  adoption by  Goudappa  and purported to effect a  partition  on  28th April, 1944.  After the partition deed was executed  various alienations  were  made  by  the  two.  brothers.   On  25th September, 1944 by Ex. 161 Goudappa gifted S. Nos. 61 and 62 of  Borgi  Budruk  and  Survey No.  45  of  Borgi  Khurd  to defendant  No.  4,  Subhadrabai.   By  Ex.  162,  dated  1st October,  1946 Goudappa made a gift of plot survey  Nos.  62 and 63 of Borgi Khurd and Survey No. 11/3 of Borgi Budruk to defendant  No. 3 who is the daughter of Nenappa H.  On  20th April,  1948 by Ex. 159 Apparaya sold survey Nos. 77 and  43 to defendant No. 3 for a sum of Rs. 50001.  On the same  day by  Ex. 160 Goudappa sold survey No. 79 for Rs.  1,000/-  to Apparaya.  Again on 17th May, 1948, by Ex. 158 Goudappa made a  gift  of  plot survey Nos. 59 and 60 of  Borgi  Khurd  to defendant  No. 3. By Ex. 117, dated 7th December  1948  Gou- dappa  by a Vardi transferred survey No. 66 of Borgi  Khurd, to defendant No. 6 his widowed daughter.  On 15th  December, 1948  Goudappa gave a portion of plot No. 96 to  Sidgangawa, wife.  of Apparava for maintenance.. By Ex. 166, dated  25th May,  1950,  Goudapa and defendant No. 1  together  sold  to defendant  No.. 5 portion of survey No. 23 for a sum of  Rs. 3,000/.   Finally on 19th November, 1953, Apparaya  executed his last will which is Ex. 168 whereby he bequeathed  survey No.  79  to, defendant No. 4 and one house to  his  daughter defendant  No. 4. The plaintiff ’claimed to be  the  adopted son of Revagouda and brought the present suit on 10th  June, 1954  challenging  the  partition deed  as  fraudulent.   He alleged  that  it was intended to defeat the rights  of  the widows,  that  it was never acted upon and that  the  family continued to be joint.  The defendants contested the suit on the  ground  that the partition deed Ex. 157 was  a  genuine transaction  and was acted upon, that Apparaya and  Goudappa became  separate  in  status and  managed  their  properties separately.  The defendants supported all the alienations as

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being  genuine and effective.  The trial court came  to  the conclusion  that the 12 pieces of lands which were  acquired between  1911  and  1940 formed part  of  the  joint  family properties, that the partition deed Ex. 157 was not intended to  be acted upon but was executed to defeat the  rights  of the  widows.   The  trial court  held  that  none  of  the alienations  except  the  sale  deed  Ex.  159  executed  by Apparaya in respect of survey plots Nos. 43 and 77 in favour of defendant No. 3 was binding on the plaintiff.  The trial court   accordingly  made  a  decree  for   partition   with appropriate  directions.  The defendants took the matter  in appeal  to  the  High Court.  The  plaintiff  also  filed  a cross.-objection  with regard to the sale-deed Ex. 159.   By its  judgment  dated  12th December, 1962,  the  High  Court dismissed  the  appeal  of the defendants  and  allowed  the cross-objection of the. plaintiff holding that the sale-deed Ex.  159 regarding survey plots Nos. 43 and 77 was also  not binding upon the plaintiff. 249 The  first  question  to be  considered-in  this  appeal  is whether  the  partition.  deed  executed  by  Goudappa   and Apparaya on 28th April, 1944 was a sham transaction and  not intended to be effective.  Both the trial court and the High Court  have reached a concurrent finding after an  elaborate examination of the evidence that the partition deed was  not genuine, and that it was effected for an ulterior purpose in order  to  defeat  the rights of the  widows  in  the  joint family.  It is manifest that the finding of the lower courts upon this question is essentially a finding upon a  question of fact, and in an appeal by special leave it is the  normal practice  of this Court to accept such a concurrent  finding of  fact  as  correct.  It was, however,  contended  by  Mr. sanghi  that the finding of the lower courts is vitiated  in law  because  there  was  no evidence  in  support  of  that finding.  In our opinion, there is no justification for this argument.   In  the partition deed it is  recited  that  the lands  were  partitioned with the help of  Panchas  but  the names of Panchas are not mentioned in the document and  none of  the Panchas has signed it.  As to the division  of  the- properties, Goudappa has been given 101 acres and 39 gunthas while Apparaya has been given 50 acres and 10 gunthas  only. The  total  assessment  of lands given to  Goudappa  is  Rs. 82/3/-  while the assessment of the lands given to  Apparaya is Rs. 61/7/-.  There appears to be no division of the house at  all,  since nothing is mentioned in the  partition  deed about  the house.  The unequal division of the lands in  the so  called  partition deed is a  strong  circumstance  which indicates  that the transaction was not genuine.  It  should also be noticed that at the time of the partition deed there were  widows of two sons in the family, Nenappa  the  second and  Revagouda.  At about this time, after Nenappa’s  death, the adoption of Nenappa by Goudappa was denied.  The  scheme of  the partition was, therefore, to deprive the two  widows of  any  claim  for  maintenance out  of  the  joint  family properties  but to limit their rights to about 50  acres  of land  given to Apparaya.  There is also evidence that  after the  partition  deed, the two brothers continued  to  be  in joint  possession of the lands and they lived joint  in  the same house as before.  It appears that the two brothers  had a  joint  mess  even after the date of  partition.   It  was contended by Mr. Sanghi that there,was no evidence that  the two  brothers  continued to be in joint  possession  of  the lands.   But if is not possible to accept this  argument  as correct.   On a perusal of the evidence it is apparent  that P.Ws. 1 to 4 all supported the case of the joint  possession

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of the two brothers and their evidence has been believed  by both the lower courts.  There is another circumstance  which strongly  lends  support  of the plaintiff’s  case  on  this point.   It  was at one time supposed that the  doctrine  of Mitakshara  law  was that if the last  surviving  coparcener died and the property passed to his heir, such as a widow or a collateral, the power of the widow of a predeceased Sup.  CI/69-17 250 coparcener  to. adopt was at an end. (Chandra  v.  Gojarabai and  Adivi Suryapnakasarao v. Nidamarty Gangaraju (2).   The cases  on  this point were considered in 1936  by  the  Full Bench  of  the Bombay High Court in Balu Sakharam  Powar  v. Lahoo  Sambhaji Tetgura(3).  It was ’held in that case  that where  a coparcenary exists at the date of the adoption  the adopted  son becomes a member of the coparcenary, and  takes his  share  in the joint property, but where  the  partition takes place after the termination of the coparcenary by  the death,  actually  or  fictionally,  of  the  last  surviving coparcener, the adoption by a widow of a deceased coparcener has not the effect of reviving the coparcenary and does  not divest  property  from  the  heir  of  the  last   surviving coparcener (other than the widow) or those claiming  through him  or  her.   But the decision of the Full  Bench  of  the Bombay  High Court was expressly over-ruled by the  Judicial Committee in Anant V. Shankar(4) It was held that the  power of a Hindu widow does not come to an end on the death of the sole surviving coparcener.  Neither does it depend upon  the vesting  or  divesting of the estate, nor can the  right  to adopt be defeated by partition between the coparceners.  The rights  of  the adopted son relate back to the date  of  the adoptive I father’s death and the adopted son must be deemed by a fiction of law to have been in existence as the son  of the adoptive father at the time of the latter’s death.   If, therefore,  there  was a coparcenary in existence  when  the adoptive father then whether it came to an end by the  death of the last surviving coparcener or by subsequent  partition among the remaining members, an adoption validly made by the widow  of the deceased coparcener would have the  effect  of divesting  the estate in the hands of the heir to  the  last surviving coparcener in the first case and of putting an end to the partition in the second case and enabling the adopted son  to  claim a share in the family properties as  if  they were still joint.  The decision of the Judicial Committee in Anant  v.  Shankar(4) was unexpected  and  revolutionary  in character.   It is likely that in view of the fluid and  un- certain  state  of the law on this point  the  two  brothers Goudappa  and  Apparaya decided to execute a bogus  deed  of partition in order to avoid any legal consequence which  may follow  if  either  of  the widows should  take  a  son  in adoption.   We  are accordingly of ’the view that  there  is proper  evidence  to support the concurrent finding  of  the lower courts and there is no reason to disturb that finding. it was also contended on behalf of the appellants that  even though  the  partition  deed was bogus there was  in  law  a severance  of joint family status and the family  could  not continue to be joint (1) I.L.R. 14 Bom. 463. (3) A.I.R. 1937 Bom. 279. (2)  I.L.R. 33 Mad. 228. (4)  A.T.R. 1943 P.C. 196. 251 after  20th April, 1944 which was the date of the  partition deed.   In  other words, the argument was that there  was  a declaration  by  the  coparceners  of  their  intention   to separate  and that declaration was sufficient to put an  end to  the  joint family. status of the two brothers.   In  our

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opinion, there is no substance in this argument.  It is  now well  established that an agreement between all  the  copar- ceners  is  not  essential to the disruption  of  the  joint family status, but a definite and unambiguous indication  of intention by one member to separate himself from the  family and to enjoy his share in severalty will amount in law to  a division of status.  It is immaterial in such a case whether the  other  members  assent or not.  Once  the  decision  is unequivocally  expressed, and clearly intimated to  his  co- sharers,  the right of the coparcener to obtain and  possess the share to which he admittedly is entitled, is  unimpeach- able.   But  in  order to operate as a  severance  of  joint status, it is necessary; that the expression of intention by the member separating himself from the joint family must  be definite  and unequivocal.  If, however., the expression  of intention is a mere pretence or a sham, there is in the  eye of  law no separation of the joint family status.   See  for instance  the  decision of the Judicial Committee  in  Merla Ramanna v. Chelikani Jagannadha Rao & Ors.’(1). We  pass  on to consider the next question arising  in  this appeal,,  viz. whether the High Court was right  in  holding that the 12 pieces of lands were joint family properties and were not the self acquisition of Goudappa.  The case of  the appellants  was  that these lands were  self-acquisition  of Goudappa, but the respondents contended that they were joint family  properties.  The law on this aspect of the  case  is well  settled.   of course there is no  presumption  that  a Hindu  family  merely because, it is  joint,  possesses  any joint  property.  The burden of proving that any  particular property  is joint family property, is, therefore,  in.  the first instance upon the person who claims it as  coparcenary property.   But if the possession of a nucleus of the  joint family   property   is  either  admitted  or   proved,   any acquisition made by a member of the joint family is presumed to  be joint family property.  This is. however, subject  to the  limitation that the joint family property must be  such as  with  its aid the property in question could  have  been acquired.   It is only after the possession of  an  adequate nucleus is shown, that the onus shifts on to the person  who claims,  the property as self acquisition  to  affirmatively make out that the property was acquired without any aid from the      ’family     estate.      In     Appalaswami      v. Suryanarayanamurti(2), Sir John Beaumont observed as follows               "The Hindu law upon this aspect of the case is               well  settled.   Proof of the existence  of  a               joint family does (1)  A.I.R. 1941 P.C. 48. (2) I.L.R.(1948)Mad..440.(P.C.) 252               not lead to the presumption that property held               by ’any member of the family is joint, and the               burden  rests upon anyone asserting  that  any               item  of property was joint to  establish  the               fact.   But where it is established  that  the               family  possessed  some joint  property  which               from  its nature and relative value  may  have               formed the nucleus from which the property  in               question  may have been acquired,  the  burden               shifts to the party alleging  self-acquisition               to  establish affirmatively that the  property               was  acquired  without the aid  of  the  joint               family  property.  See Babubhai Girdharlal  v.               Ujamlal   Hargovandas(1),  Venkataramayya   v.               Seshamma(2) and Vythianatha v. Varadaraja(3). In  the present case, both the lower courts have found  that

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there  was  an adequate nucleus of joint  family  properties from  which  the acquisitions could have been made.   It  is admitted  that  when Nenappa I died, the  joint  family  was possessed  of 151 acres and 27 gunthas of land  assessed  at Rs. 143.  It is further admitted by defendant No. 1 that out of  the  four ancestral lands, one land  was  Bagayat  land. Witnesses  on behalf of ’the plaintiff assessed  the  income between  Rs. 5,000 to Rs. 6,000 before the first world  war. It  is  also conceded that the family had between  8  to  12 bullocks  for  the purposes of cultivation and most  of  the lands  were  cultivated personally  by-the  family  members. Between 1911 and 1940 12 other pieces of lands measuring 137 acres  and 39 gunthas assessed at Rs. 18/10/- were  acquired in various names.  The total price of the sale deeds is  Rs. 4800  spread  over a period of 30 years.  In view  of  this evidence, we see no reason to differ from the finding of the lower courts that the income from the nucleus was more  than sufficient  for  the purchase on the different  dates.   The respondents  alleged that these properties belonged  to  the joint family, and unless it is shown by the appellants  that Goudappa  carried on any other business and that these  pro- perties  were  acquired out of that income,  the  appellants must  fail.  The case of defendant N6. 1 was  that  Goudappa made these acquisitions out of his business.  D.W. 1 did not however  state  the  nature  of  the  business.   In  cross- examination he said that Goudappa was trading in cotton  and this  information  he  had  got  from  Goudappa  after   his adoption.   D.W.  1  was however unable  to  say  with  whom Goudappa  had  dealings in cotton.  If  Goudappa  was  doing cotton  business it should not have been difficult  for  the ,defendants to have produced more direct evidence of persons with  whom  he had business dealings.  The  High  Court  has rejected the evidence of D.W. 3, Imamsaheb as worthless.  It is  manifest  that there is no proof that Goudappa  had  any separate income of his (1)  I.L.R. Born.708.    (2)     I.L.R.[1937] Mad. 1012. (3)  I.L.R. [1938] Mad. 696.                             253 own  out  of which he could have acquired the 12  pieces  of land.   ’Me lower courts were, therefore,right  in  reaching the conclusion that the 12 pieces of lands belonged to joint family  and  that  the plaintiff was  entitled  to  a  share thereof in the partition. It was lastly contended on behalf of the appellants that  in any  case the High Court should not have allowed the  cross- objection  of the respondents with regard to  ’survey  plots Nos.  43 and 77.  Reference was made to paragraph 5  of  the plaint  in which there was no specific mention of  the  sale deed  executed by Apparaya in favour of defendant No.  3  of survey plots Nos. 77 and 43.  But paragraph 4 should be read along with paragraph 7 of the plaint in which the  plaintiff challenged  the  alienations made-in favour of  the  several parties to the suit and had claimed relief in respect of all the  lands mentioned in the schedule to the plaint.   Survey plots  Nos.  77  and  43  are  expressly  mentioned  in  the schedule.   It  is, therefore, not possible  to  accept  the contention  of  the appellants that the  plaintiff  had  not challenged  the  sale deed Ex. 159 with  respect  to  survey plots  Nos. 77 and 43.  The High Court has pointed out  that defendant  No.  3  was a minor at the  time  of  sale,  that Goudappa had acted as her guardian and that defendant No.  3 had  no  property  of her own.   The  High  Court  therefore rightly  held  that  the sale must be  held  to  be  without consideration  and  not  genuine  and  was,  therefore,  not binding on the plaintiff.

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For  these reasons we hold that the, judgment of the  Bombay High  Court  dated 12th December, 1962 is correct  and  this appeal must be dismissed with costs. V.P.S.                                Appeal dismissed. 254