SOMAWWA v. GURUSIDDAPPA — 1982 DIGILAW 286 (KAR)

G. N. SABHAHIT, J. ( 1 ) THIS appeal by the original plaintiff is directed against the judgment and decree dt. 12-6-1975 passed by the Civil Judge, bijapur in RA No. 82 of 1974 on his file, allowing the appeal of the defendant on reversing the judgment. and decree dated 20-3-1974 passed by the Munsiff, Basavana bagewadi, in OS No. 3 of 1971 on his file, decreeing the suit of the plaintiff as prayed for. The [earned Civil Judge, dismissed the suit of the plaintiff as not tenable. ( 2 ) THE plaintiff instituted the suit on the averments that she purchased the suit property in the year 1940 and took possession of the suit property which is a house and that she stayed in the suit property till the year 1959 along with her minor sons and thereafter since portions of the house collapsed she moved to the house belonging to her sons. Thereafter, when her fisrt son attained majority he started managing the properties including her own. He was paying tax to the Village Panchayat and after the death of her first son when she enquired in the Village Panchayat, she came to know that the name of her son, siddaramappa was entered in the Village panchayat records for the purpose of payment of taxes. Immediately thereafter she made an application to the Village Panchayat that the house belonged to her and that her name should be entered in the village Panchayat records. But the Village Panchayat Chairman did not oblige her. Hence, she was obliged 'to institute the present suit at OS No. 3 of 1971 on the file of the Munsiff, Basavana Bagewadi for declaration of her title and for possession. In the meanwhile possession of the house was taken by the defendant as the purchaser from her son Siddaramappa, the sale deed having been executed by her son siddaramappa in the year 1962 as per ext. P 2. ( 3 ) THE suit was resisted by the defendant. According to him, the house belonged to Siddaramappa. His name was entered in the Panchayat records. There was a partition of the family properties in the year 1958 and in that partition siddaramappa was allotted the suit house and he sold it to the defendant as per Ext. P 2. ( 3 ) THE suit was resisted by the defendant. According to him, the house belonged to Siddaramappa. His name was entered in the Panchayat records. There was a partition of the family properties in the year 1958 and in that partition siddaramappa was allotted the suit house and he sold it to the defendant as per Ext. P 2. Hence, he resisted the suit on the ground that the plaintiff had no right, title or interest in the suit property. ( 4 ) THE trial Court raised as many 11 issues as under :-- (1) Whether plaintiff proves that she purchased the suit house ? (2) Does she further prove her absolute ownership to the suit house ? (3) Whether defendant proves that this house had fallen to the share of plaintiff's eldest son Siddaramappa in the partition ? (4) Whether defendant proves that he is the bona fide purchaser for value without notice ? (5) Whether the plaintiff proves her possession till 19s8 ? (6) Whether the heirs of the deceased siddaramappa are necessary parties to the suit ? (7) Whether the suit is not tenable unless they are made parties to this suit? (8) Whether the plaintiff proves cause of action to the suit ? (9) Whether proper Court fee is paid? (10) Whether the plaintiff is entitled to declaration and possession sought for? (11) What decree or order ? ( 5 ) THE learned Munsiff, appreciating the evidence on record, answerad issues 1, 2, 5, 7, 8, 9 and 10 in the affirmative. He answered issues 3, 4 and 6 in the negative and in that view the learned Mansiff declared that the plaintiff was the owner of the suit property and was entitled to possession of the same and he directed the defendant to deliver possession of the suit property forthwith. The defendant was also directed to pay the costs of the plain tiff and to bear his own. Aggrieved by the said judgment and decree the defendant went up in appeal at RA No. 82 of 1974 before the learned Civil Judge, bijapur. ( 6 ) THE learned Civil Judge raised the following points as arising for his consideration in the appeal after hearing the arguments. (1) Whether the suit is bad for nonjoinder of heirs of deceased Siddaramappa as parties to the suit ? ( 6 ) THE learned Civil Judge raised the following points as arising for his consideration in the appeal after hearing the arguments. (1) Whether the suit is bad for nonjoinder of heirs of deceased Siddaramappa as parties to the suit ? (2) Whether the plaintiff proves her absolute title to the suit property ? (3) Whether the defendant proves that the house fell to the share of deceased Siddaramappa in partition ? (4) Whether the defendant proves that he is the bona fide purchaser of suit house for value without notice ? (5) What decree or order ? ( 7 ) THE learned Civil Judge, re assessing the evidence on record, in the light of the arguments addressed before him, answered points Nos. 1 and 2 in the negative. He answered points Nos. 3 and 4 in the affirmative and in that view, he allowed the appeal, set aside the judgment and decree of the trial Court and dismissed the suit of the plaintiff for declaration of title and for possession. Aggrieved by the said judgment and decree, the plaintiff has come up with the above second appeal before this Court. It may be mentioned in this context that subsequently the plaintiff died and her heirs were brought on record. ( 8 ) THE learned Advocate appearing for the plaintiff appellant strenuously urged before me that the very approach of the learned Civil Judge to the facts of the case was legally erroneous. He submitted that when a female member in a Hindu Joint family acquires some property, normally the presumption is that she becomes the absolute owner of the suit property. If it is challenged that it is not so, it is for the person who challenges to plead and prove that it is not her absolute property. The learned Civil Judge, according to him, laboured under the impression that it was for the plaintiff to prove that she acquired the property with the help of her own funds and he found fault with her for not proving it. He further commented that the learned Civil Judge was not justified in observing that a case was not made out in the plaint that she acquired the suit property for herself though it was so made out in the plaint. He further commented that the learned Civil Judge was not justified in observing that a case was not made out in the plaint that she acquired the suit property for herself though it was so made out in the plaint. Thus, he submitted that the learned Civil Judge legally erred in coming to the conclusion that the suit property was acquired with the help of the joint family funds and hence it belonged to the coparceners. ( 9 ) AS against that, the learned Advocate appearing for the respondent-defendant argued supporting the judgment and decree of the learned Civil Judge. ( 10 ) THE points, therefore, that arise for my consideration in this appeal are :- (1) Whether the necessary averments are made out in the plaint and whether the learned Civil Judge was wrong in observing that such averments were not made out ? (2) Whether the learned Civil Judge was justified in thinking that the property acquired by the plaintiff should be presumed to be that of the coparceners ? (3) What order ? ( 11 ) I was taken through the plaint. In the plaint it is very clearly averred in para 2 thus:"the plaintiff purchased the suit house from one Shivabasayya Pawadayya Hiremath of Huvinhippargi on 8th may 1940 for Rs. 50 and a registered sale deed was executed by the vendor in favour of the plaintiff and the plaintiff was put in possession of the same"in para 3 it is stated thus :"the plaintiff after purchasing the suit house began actually to reside in the suit house till 1959. In the year 1959 the whole building collapsed as a result of heavy rains and thus became uninhabitable. The plaintiff, therefore, moved to another house owred by her sons". Thus, there are very clear averments in the plaint in paras 2 and 3 that the plaintiff purchased the suit house for herself and she became registered owner of the suit property by sale under a registered sale deed as per Ect. P 1. There is no substance in the observation of the learned civil Judge that there is no clear averment that the plaintiff acquired the suit property for herself and became absolute owner of the same. P 1. There is no substance in the observation of the learned civil Judge that there is no clear averment that the plaintiff acquired the suit property for herself and became absolute owner of the same. ( 12 ) THE real difficulty is that the learned Civil Judge, as rightly pointed out by the learned counsel appearing for the appellant, misconcieved the scope of acquisition by a coparcener and the acquisition by a female member in the joint family. A Hindu joint family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. A daughter ceases to be a member of her father's family on marriage, and becomes a member of her husband's family, Melagiriyappa v. Lalithamma (I ). On the other hand, the concept of coparcenary is a much narrower concept. A coparcener includes only those persons who acquired by birth an interest in the joint or coparcenary property. These are sons, grand eons and great grand sons of the holder of the joint family property for the time being, in other words, the three generations next to the holder in unbroken male descent. There is a presumption that a Hindu joint family continues to be joint in food, estate and worship. In the coparcenary, there is community of interest and unity of possession, but, there is no presumption that a joint Hindu family owns any property. Normally, if the coparcenary possesses a nucleus and then any acquisition made by the manager with the help of funds derived from the nucleus becomes joint family property in the sense it becomes the property belonging to the coparceners. Thus, there is clear distinction between a Hindu joint family and a Hindu coparcenary. A hindu joint family, as stated above, includes the female members. A female member is not given any status in the coparcenary. The presumption that applies to the coparcenary property does not apply to the property acquired by a hindu female being a member of the joint family. ( 13 ) SEC. 140 of Mulla's Hindu Law, 15th Edn. A hindu joint family, as stated above, includes the female members. A female member is not given any status in the coparcenary. The presumption that applies to the coparcenary property does not apply to the property acquired by a hindu female being a member of the joint family. ( 13 ) SEC. 140 of Mulla's Hindu Law, 15th Edn. at page 198 states : "presumption as to property found in widow's possession :-Where a widow is in possession of property of the acquisition of which no account is given, then the mere fact that her husband died possessed of considerable property raises no presumption that the property found in her possession was originally that of her husband (Diwan Ram Bijai v. Indra- pal (1899) 26 Cal. . 871, 26 IA 226 ; Gan- pat v. Secretary of State (1921) 45 Bom. 1106 equivalent to 62 1c 109 (121) AB 138, ). Nor is there any presumption that the money with which a widow in possession of her husband's estate makes a purchase of property came out of the savings from her husband's estate (Baikunth Nath v. Jai Kishan (1929) 51 all. 341, 113 IC 266 ('29) AA 449;. Generally where a woman has been in possession of property, there is no presumption that she had only a limited estate in it. (Balo v. Parabati (1940) All. 371, 190 1c 634 ('40) A A 385;" ( 14 ) THIS is further made authentic by the Supreme Court of India in its judg- ment rendered in the case of Sitaji v. Bijendra Narain (2 ). The Supreme Court of India in para 23 of its judgment his observed :--"we now turn to the plaintiffs' appeal, CA No. 35 of 1953. This relates to the Schedule III properties. They were purchased by Mst. Chhemawati and did not form part of the estate which came to her from her husband. As the reversioner can only claim property which belonged to the propositus, the burden is on the plaintiffs to establish that these properties formed part of Naubat Lal's estate. There is no presumption that any particular property in the widow's hands is part of her husband's estate, because a widow can have properties of her own. Therefore, he who claims must establish has right to it". There is no presumption that any particular property in the widow's hands is part of her husband's estate, because a widow can have properties of her own. Therefore, he who claims must establish has right to it". Obviously, therefore, it is manifest that if the widow purchased some property, the normal inference is that it is her own property In the instant case the learned civil Judge instead of drawing that simple inference has gone to the extent of observing that even this property acquired by the plaintiff belongs to the coparcenary. He applies the law applicable to coparceners to the acquisition by the widow who as stated above would never be a member of the coparcenary though she could be a member of the joint family. Hence, the very approach of the learned Civil Judge to the facts of the case is highly illegal and erroneous. It is in that view that the learned civil Judge has held that the plaintiff has not proved that the acquisition of the house by her is her absolute property. He should have appreciated that she has purchased the suit property under Ext. P 1 for Rs. 50 and it is the property of the plaintiff. His misconception that it is the coparcenary which acquired the property has misled him in thinking that the plaintiff should have proved that the property was her absolute property. I am unable to bring myself to agree with the finding of the learned Civil Judge which is manifestly illegal and erroneous. On the other hand, the learned Munsiff has approached the facts correctly and properly in coming to the conclusion that the property belongs to the plaintiff. I am constrained to uphold and sustain his finding. ( 15 ) THERE might have been a partition between sons but the suit property is not a property that the sons can partition, because it is not a coparcenary property at all. It is absolute property of the plaintiff having been purchased by her. If siddaramappa executed a sale deed with regard to the suit house in favour of the defendant, it is obvious that the defendant gets no title, right or interest in the suit house, because, the vendor had no right, title or interest in the suit property. It is absolute property of the plaintiff having been purchased by her. If siddaramappa executed a sale deed with regard to the suit house in favour of the defendant, it is obvious that the defendant gets no title, right or interest in the suit house, because, the vendor had no right, title or interest in the suit property. Therefore, it was not necessary for the plaintiff to bring any suit for cancellation of that sale deed which carried no interest to th defendant. The suit for declaration of title and possession, therefore, is legal and proper. ( 16 ) IN the result, therefore, the appeal is allowed. The judgment and decree of the learned Civil Judge are set aside and those of the learned Munsiff are sustained and restored. The suit of the plaintiff Is decreed as prayed for. In the peculiar facts of the case, I make no orders as to costs of this appeal. --- *** --- .