Dattatraya vs Mohan

R.V. Ghuge, J.

Rule. Rule made returnable forthwith. Heard finally by consent of the parties.

This Court had issued notice to the respondents on 22/10/2013. While doing so, ad-interim stay to the further proceedings in RCS No.121/2009 was granted. Record indicates that respondent No.1, who is the contesting party, being the original plaintiff, was served on 22/11/2013. Learned Advocate Mr.H.U.Dhage has appeared on behalf of respondent Nos. 2 and 3.

Since respondent No.1 did not cause his appearance either in person or through an Advocate, the matter was adjourned on 26/08/2014 putting the respondents to notice that if any of them chose to remain absent, the matter would be heard without their assistance. Notice for final disposal was also issued.

Even on 24/09/2014, respondent No.1 continued to remain absent. The matter was adjourned yet again and was posted on 26/09/2014. Even on the said date, respondent No.1 remained absent and continues to remain absent even today. It is, in these circumstances, that this petition is being heard finally at the stage of admission.

The petitioner contends that respondent No.1, who is the original plaintiff had preferred RCS No.121/2009, seeking partition and separate possession, except to the extent of 1/12th share in relation to the original defendant No.3, who is respondent No.3 in this petition. All the 3 defendants i.e. the petitioner and respondent Nos. 2 and 3 herein have filed a joint written statement below Exh.29 in the said proceedings.

The petitioner has drawn my attention to paragraph No.23 of the written statement to contend that defendant No.2 had purchased 1 hectre and 20R in Gat No.438/1 (Old Gat No.440), in the name of Yamunabai, who is respondent No.2 herein. Details as regards the source of the money, used for the purpose of purchasing, has also been mentioned in the said paragraph. It is stated across the bar that Yamunabai is an illiterate lady and has no source of income. The petitioner is the son of Yamunabai and Laxman Anandkar.

In the backdrop of the contentions made in the written statement, the petitioner has drawn the attention of this Court to application Exh.46, which has led to the passing of the impugned order. It is indicated from paragraph Nos. 2 and 3 that the defendants have carried out a sale of the property admeasuring 60R from Gat No.438/1 on 18/11/2010 in favour of Suresh Motiram Landge. A similar sale was effected on the same date for another portion of 60R land from the same property in favour of Rajendra Appasaheb Jagtap.

The petitioner submits that this property admeasuring 1 hectre 20R stands in the name of Yamunabai in light of the claim made by the petitioner that he had purchased the said property out of his own earnings from the salary, loans as well as after obtaining hand-loan from relatives. Respondent No.1/plaintiff, by the said application Exh.46, has sought to delete the said properties from the proceedings pending.

The petitioner contends that the impugned order is of a cryptic nature and exhibits non-application of mind. In fact, the Trial Court has rightly held in paragraph No.6 that all disputed and contentious claims as regards any property or ancestral property, which is a part of the said suit, has to be dealt with in accordance with Law. It is also rightly held that for the purpose of ensuring that justice is done, corrections can be permitted and at the same time, it should be ensured that such correction in the plaint, should not cause any injustice to the litigating parties.

The petitioner, therefore, submits that when principally the Trial Court has agreed that disputed and contentious claims have to be decided in the trial, the application for deleting 2 properties, in all admeasuring 1 hectre 20R, could not have been permitted in light of the specific claim made by the petitioner in paragraph Nos.23 of the written statement, which was filed on 14/08/2009.

The petitioner, thereafter, points out from paragraph No.7 of the impugned order that the Trial Court has accepted the contention of the plaintiff that he can give up the claim to any particular property, during the pendency of the suit. Grievance of the petitioner is that this liberty is not available after the written statement has been filed since the property sought to be deleted, is already claimed to have been purchased by the petitioner in the name of his mother Yamunabai. That issue needs to be gone into by the Trial Court. It is, therefore, submitted that permitting the said deletion by the impugned order, is a relief granted by the Trial Court diagonally opposite to its own view in paragraph No.6 of the impugned order.

Mr.Dhage, the learned Advocate appearing on behalf of respondent Nos. 2 and 3 has not disputed the contention of the petitioner to the extent of the pleadings set out in paragraph No.23 of the written statement. He, however, submits that the Trial Court, in its wisdom, has rightly passed the impugned order.

Having heard the learned Advocates for the petitioner and respondent Nos. 2 and 3, I have gone through the petition paper book with their assistance. Application Exh.43 only mentions the transactions alleged to have been carried out in favour of Suresh Motiram and Rajendra Appasaheb during the pendency of the suit. The concept of lis-pendens unquestionably gets attracted in the light of these facts.

Nevertheless, the plaintiff Mohan Laxman Anandkar, besides narrating the transaction, has not justified as to why these properties were in the first place included in the suit and as to how can the said application be maintained as against the pleadings of the defendants especially in paragraph No.23 of the written statement. The plaintiff may have, for self serving purpose, avoided dealing with these aspects. However, the Trial Court was expected to look into these facets of the case before granting application Exh.46.

The Apex Court (3 judges Bench) in the case of Mudi Gowda Gowdappa Sankh Vs. Ram Chandra Ravagowda Sankh, , has laid down the Law especially with reference to the manner in which a suit for partition and separate possession could be dealt with. The essentials of such a trial have been defined in the said judgment. Paragraph Nos.4,5 and 6 of the said judgment are relevant to the case in hand and it would be fruitful to reproduce the same hereinbelow :-

"4. 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 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 plaintiffs 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 coparcener to adopt was at an end. (Chandra v. Gojarabai I.L.R. 14 Bom. 463 and Adivi Suryaprakasa Row Vs. Nidamarty Gangaraju and Others, . The cases on this point were considered in 1936 by the Full Bench of the Bombay High Court in Balu Sakharam Powar v. Lahoo Sam-bhaji Tetgura. 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 . 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 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 tatter's death. If, therefore, there was a coparcenary in existence when the adoptive father died, 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 was unexpected and revolutionary in character. It is likely that in view of the fluid and uncertain 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 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 opinion, there is no substance in this argument. It is now well established that an agreement between all the coparceners 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 pot. 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 unimpeachable. 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 AIR 1941 48 (Privy Council).

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 AIR 1947 189 (Privy Council) 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 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 Vs. Ujamlal Hargovandas, , Venkataramayya v. Seshamma I.L.R. [1937] Mad. 1012 and C.V. Vythinatha Aiyar Vs. C.V. Varadaraja Aiyar and Others, ."

The learned counsel for the petitioner has placed reliance upon the judgment of the Apex Court (3 Judges Bench) in the case of Nagubai Ammal and Others Vs. B. Shama Rao and Others, . He has placed reliance specifically on paragraph No.25 of the said judgment, which reads as under :-

"But it is argued for the appellants that having regard to the words of Section 52 that pendente lite "the property cannot be transferred", such a transfer must, when it falls within the mischief of that section, be deemed to be non est, that in consequence Keshavananda must, for purposes of lis pendens, be regarded as the owner of the properties, notwithstanding that he had transferred them, and that the Official Receiver who succeeded to his rights had a right to be impleaded in the action. This contention gives no effect to the words "so far as affect the rights of any other party thereto under any decree or order which may be made therein", which make it clear that the transfer is good except to the extent that it might conflict with rights decreed under the decree or order. It is in this view that transfers pendente lite have been held to be valid and operative as between the parties thereto.

It will be inconsistent to hold that the sale deed dated 30/01/1920 is effective to convey the title to the properties to Dr.Nanjunda Roa, and that, at the same time, it was Keshavananda who must be deemed to possess that title. We are, therefore, unable to accede to the contention of the appellants that a transferor pendente lite must, for purposes of Section 52, be treated as still retaining title to the properties."

In this case, the petitioner has specifically contended that the said 2 portions of land 1H and 20R, have been purchased by him from his own earnings and by obtaining loan, in the name of his mother Yamunabai. He, therefore, has to establish this fact through a trial in the suit. The impugned order, puts an end to this chapter in the suit, without a trial. The trial court should have seen this design of the plaintiff / Respondent No.1 and should have prevented the plaintiff from succeeding in his plan. The title and ownership of the said 2 portions of land can be tested and the petitioner can establish the same in the trial. The impugned order, if sustained, would not allow this to happen and would lead to a miscarriage of justice.

In the light of the above, in my view, the Trial Court has lost sight of the crystallized position in Law and by assigning reasons in a short paragraph No.7, which in my view are cryptic in nature, the application for deletion of property has been allowed, without considering its effect on the litigating parties and the outcome of the suit.

In the light of the above, the petition is allowed. The impugned order dated 27/09/2013, passed by the Trial Court below Exh.46 in RCS No.121/2009 is quashed and set aside. Application Exh.46 stands rejected.

Rule is accordingly made absolute in the above terms.