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2002 DIGILAW 508 (KAR)

Dasegowda v. Gangaraju

2002-08-14

V.GOPALA GOWDA

body2002
JUDGMENT V. Gopala Gowda, J.--This Regular Second Appeal is filed by the Defendant questioning the correctness of the judgment and Decree dated 12.4.2000 passed by the Prl. Civil Judge (Sr. Dn.), Tumkur in RA 93/1999 and prayed to restore the judgment and Decree passed in OS 439 of 1989 dated 5.6.1990 by the Prl. Munsiff, Tumkur by allowing this Regular Second Appeal after answering three substantial questions of law framed at paragraph 5 of the Memorandum of Appeal, urging various legal grounds. 2. The rank of the parties is referred to in the judgment as has been assigned in the plaint presented before the Trial Court for the sake of convenience. 3. This Court at the time of admission of this Regular Second Appeal on 6.12.2000 has framed the following substantial question of law for its consideration: The substantial question of law to be gone into in this appeal is that whether the first appellate Court is justified in law suo-motu coming to the conclusion that the self-acquired property of the Appellant is thrown into common hotchpot even though the Respondent has not specifically pleaded and raised the issue and adduced the evidence? 4. The learned Counsel appearing on behalf of parties addressed arguments far and against on the aforesaid substantial question of law. The pleadings, facts and findings recorded in the judgments passed by the Courts below are not adverted to in this judgment as both the Courts have extensively referred to the facts and recorded their respective findings with their reasons in answer to contentious issues and the points framed by them and answered by them. In this judgment certain relevant and necessary facts for answering the questions of law are stated as hereunder: 5. The original suit was filed by the Plaintiff for partition and separate possession of his half share of the suit schedule properties by metes and bounds and for mesne profits to be ascertained under Order XX, Rule 12 Code of Civil Procedure with costs. 6. The Defendant filed statement admitting the relationship between himself and Plaintiff contending that he is son born to the first wife and Plaintiff born to the second wife of late Gaviyappa. 6. The Defendant filed statement admitting the relationship between himself and Plaintiff contending that he is son born to the first wife and Plaintiff born to the second wife of late Gaviyappa. The plaint averments in so far as facts pleaded that Defendant and Plaintiff are members of joint Hindu Family and the Defendant being eldest in the family is the manager of the joint family of Plaintiff and Defendant and the plaint schedule item properties 1, 5, 8 and 9 are the ancestral properties and suit item Nos. 2, 3, 4, 6 and 7 are the properties acquired by the Defendant as Manager of the joint family from out of the joint family funds. At the time of acquisition of the properties mentioned at items Nos. 2, 3, 4, 6 and 7 the Plaintiff and Defendant were in joint possession of the properties and enjoying the same jointly by them. Further the Defendant had denied the other averments of the plaint that properties are acquired by the Defendant as Manager of the joint family from out of the joint family funds and denied the suit schedule properties are joint family coparcenary properties as alleged in the plaint. Therefore, the Defendant has asserted that the above said suit item properties are not at all joint family properties and therefore the Plaintiff is not entitled for the relief as prayed in the original suit. Therefore, he has properties referred to supra no share can be allotted in favour of the Plaintiff and pass the judgment and Decree. Further it is stated that there is no cause of action as alleged in the plaint has arisen for institution of original suit and therefore he has prayed for dismissal of the original suit. 7. On the basis of aforesaid pleadings of the parties to the suit the Trial Court has framed six issues for its consideration and answered the same by referring its findings with reasons in its judgment. The parties before the Trial Court in support of their respective claim and counter claim have examined on behalf of Plaintiff PW. 1 and PW. 2 and produced and marked Exhibits P1 to P7 and on behalf of Defendant, four witnesses were examined including the Defendant as DW. 1 to DW. 4 and produced and marked documents EX. D1 to D4. 8. 1 and PW. 2 and produced and marked Exhibits P1 to P7 and on behalf of Defendant, four witnesses were examined including the Defendant as DW. 1 to DW. 4 and produced and marked documents EX. D1 to D4. 8. The Trial Court, on the basis of appreciation of facts and evidence on record has answered the first issue partly in the affirmative and partly in the negative and Issue Nos. 2 and 4 were answered in the negative, Issue No. 5 was answered in the affirmative and Issue Nos. 3 and 6 as per the final Order. The Trial Court has partly decreed the Plaintiff's suit declaring that he is entitled for partition and separate possession of his 7/36th share in the suit schedule item properties Nos. 1, 5, 8 and 9 by metes and bounds and also granted the relief of ascertaining mesne profits in respect of the above said properties under Order XX, Rule 12 Code of Civil Procedure. Further, in respect of suit schedule item properties Nos. 2, 3, 4, 6 and 7 the suit was dismissed. 9. Aggrieved of the dismissal of suit in respect of suit schedule properties Nos. 2, 3, 4, 6 and 7, the Plaintiff filed Regular Appeal in RA 93 of 1990 before the Prl. Civil Judge (Sr. Dn.,) and CJM, Tumkur (hereinafter called as 'first appellate Court') contending that, all the suit schedule properties are joint family properties and only item Nos. 1, 5, 8 and 9 of the suit schedule properties were held to be the joint family properties and granted his share as per the decree of the Trial Court. The first appellate Court, on the basis of rival contentions urged by the learned Counsel for the parties has formulated six points for its consideration and accordingly answered the same. The first appellate Court answered the contentious points Nos. 1, 3 and 4 in the affirmative and point No. 2 in the negative and in respect of point No. 5 as to whether the suit is bad for non-joinder of necessary parties, the first appellate Court has answered stating that same does not arise and point No. 6 as per final order. 1, 3 and 4 in the affirmative and point No. 2 in the negative and in respect of point No. 5 as to whether the suit is bad for non-joinder of necessary parties, the first appellate Court has answered stating that same does not arise and point No. 6 as per final order. The first appellate Court allowed the Regular Appeal by recording its reasons and decreed the suit of the Plaintiff holding that he is entitled for half share and separate possession of his share in the suit schedule properties by metes and bounds and further with regard to mesne profits it has declared that the said right has to be ascertained by the Trial Court as per Order XX, Rule 12 Code of civil Procedure. 10. The correctness of the said judgment and Decree passed by the first appellate Court is impugned in this second appeal by the Defendant. The learned Counsel appearing on behalf of the Defendant placed strong reliance upon the judgments of the Apex Court and this Court reported in G. Narayana Raju Vs. G. Chamaraju and Others, AIR 1968 SC 1276 , Goli Eswariah Vs. Commissioner of Gift Tax, Andhra Pradesh, AIR 1970 SC 1722 , Smt. Munni Devi and Another Vs. Gokal Chand and Others, AIR 1970 SC 1727 and Mallappajaiah Vs. Muddanna, ILR (1990) KAR 336 for the proposition that, the act of throwing self acquired property by a coparcener into common hotchpot is an unilateral act which contemplates a 'transaction entered into' by one person with another cannot apply to a unilateral act and the separate property of Hindu coparcener ceases to be so and acquires the characteristic of a joint family or ancestral property not by any physical mixing with his joint family or ancestral property but by his own volition an intention by his waiving and surrendering his separate rights in it as separate property and treating it as Joint Family property. 11. The similar view has been taken by the Supreme Court in the above judgments upon which, the learned Counsel for the Defendant has placed reliance. No doubt, he has also placed reliance upon the judgment of Supreme Court reported in Kanakarathanammal Vs. 11. The similar view has been taken by the Supreme Court in the above judgments upon which, the learned Counsel for the Defendant has placed reliance. No doubt, he has also placed reliance upon the judgment of Supreme Court reported in Kanakarathanammal Vs. V.S. Loganatha Mudaliar and Another, AIR 1965 SC 271 and AIR 1979 SC 1682 for the proposition that, non-joinder of parties to the original suit by Trustees of endowed property of family deity for possession of certain rooms against one of the shebaits, all the shebaits, though necessary parties, not impleaded as parties held suit by Trustees was not properly constituted and must be dismissed. Placing reliance upon the above said judgments of the Apex Court, the learned Counsel submits that the first Appellate Court has erred in referring the findings of the Trial Court in answer to the point Nos. 1 and 2 without impleading the proper and necessary parties by suo-motu considering the issue and answered the above said points in favour of the Plaintiff. 12. The learned Counsel appearing on behalf of the Plaintiff sought to justify the findings and the reasons recorded by the first appellate Court in its judgment in answer to the contentious points contending that the first appellate Court was right in setting aside the findings and the reasons recorded by the Trial Court on the contentious issues on proper re- appreciation of facts and evidence on record. Therefore, he submitted that, the substantial question of law as framed by this Court in this appeal does not arise for consideration and prayed for dismissal of this Regular Second Appeal. 13. With reference to the above said legal submission made by the learned Counsel for the parties, this Court has examined as to whether the impugned judgment passed by the first appellate Court is legal an valid in setting aside the findings recorded by the Trial Court on the contentious issues after considering and re- appreciating the material evidence on record is required to be answered and the same is answered as hereunder by assigning the following reasons. 14. To answer the above substantial question of law, this Court has examined the impugned judgment keeping in view the legal submission made on behalf of the parties. 14. To answer the above substantial question of law, this Court has examined the impugned judgment keeping in view the legal submission made on behalf of the parties. The Trial Court in answer to Issue No. 2 has referred to the facts and evidence on record at paras 9 and 10 of its judgment with reference to the sale deeds Exs. D2, D3 and D4 dated 2.6.1949, 16.12.1954 and 6.4.1948 respectively in respect of suit schedule properties 3, 4, 6 and 7 were purchased by the Defendant along with one Anjanappa and Kempamma respectively much prior to he becoming the Manager of the Joint Family. The Trial Court, on proper appreciation of documentary and oral evidence on record has recorded the finding of fact at Paragraphs 9, 10, 11, 12 and 13 of its judgment holding that, Plaintiff has failed to prove that the above said items of properties are acquired by the Defendant as Manager of the Joint Family out of the income of the joint family. The learned Trial Judge, in support of the findings placed reliance upon the judgment of this Court reported in Mallappajaiah Vs. Muddanna, ILR (1990) KAR 336 . In respect of other issues, the findings recorded by the Trial Court are not referred to in this judgment as the same are not required for the purpose of answering substantial question of law framed in this appeal. 15. The first appellate Court in the Regular Appeal has answered the contentious points 1, 2 and 3 by recording its findings in the impugned judgment in exercise of its power by assigning irrelevant reasons stating that, Defendant had been working as Shanbhogue since 1945 for about 15 years and it is the stand that he purchased the above items of suit properties from the self earned funds. The first appellate Court has made an observation in the impugned judgment that there is substance to believe the said theory and agreed with the view taken by the learned Trial Judge. Further, he has opined that the properties purchased by the Defendant under sale deeds vide Exs. D1 to D4 were thrown into common stock for partition in the year 1982 is the admitted fact. The above said findings recorded in the impugned judgment in answer to the contentious points Nos. Further, he has opined that the properties purchased by the Defendant under sale deeds vide Exs. D1 to D4 were thrown into common stock for partition in the year 1982 is the admitted fact. The above said findings recorded in the impugned judgment in answer to the contentious points Nos. 1 and 2 are seriously questioned by the learned Counsel Sri Subbanna appearing for the Defendant contending that, there is neither pleading nor evidence in this regard. Therefore, the finding recorded by the first appellate Court suo-motu in answer to points 1 and 2 is not only erroneous in law but also suffer from error in law in view of judgments of the Apex Court and this Court referred to supra upon which the learned Counsel has relied upon in support of his submission. Therefore, he submits that the findings recorded on the contentious points by the first appellate Court are required to be set aside as the valuable right of the Defendant is seriously affected as he has acquired the suit schedule properties items Nos. 3, 4, 6 and 7 out of his self earned funds. Therefore, the learned Counsel for the Defendant submits that he has made out a case for setting aside the judgment of the first appellate Court and to restore the judgment of the Trial Court after answering the substantial question in favour of Defendant. 16. To consider the above said submission, I have carefully examined the findings recorded by the first appellate Court on Point Nos. 1 and 2 in the impugned judgment. To consider the tenability of the submissions, it is necessary for this Court to extract the law laid down by the Supreme Court in the case of G. Narayana Raju Vs. G. Chamaraju and Others, AIR 1968 SC 1276 (Paragraph-6): It must be established that there was a clear intention on the part of the coparcener to waive his separate rights and such an intention will not be inferred merely from acts which may have been done from kindness or affection (See the decision in Lala Muddun Gopal v. Khikhindu Koer (1891) 18 Ind App 9 For instance, in Naina Pillai Vs. Daivanai Ammal AIR 1986 Mad 177where in a series of documents self-acquired property was described and dealt with as ancestral joint family property, it was held by the Madras High Court that the mere dealing with self-acquisitions as joint family property was not sufficient but an intention of the coparcener must be shown to waive his claims with full knowledge of his right to it as his separate property. The important point to keep in mind is that the separate property of a Hindu coparacener ceases to be his separate property and acquires the characteristics of his joint family or ancestral property, not by mere act of physical mixing with his joint family or ancestral property, but by his own volition and intention by his waiving or surrendering his special right in it as separate property. A man's intention can be discovered only from his words or from his acts and conduct. When his intention with regard to his separate property is not expressed in words, we must seek for it in his acts and conduct. But it is the intention that we must seek in every case, the acts and conduct being no more than evidence of the intention. And the law laid down in the case of Goli Eswariah Vs. Commissioner of Gift Tax, Andhra Pradesh, AIR 1970 SC 1722 (Paragraph-6) the relevant portion of which is extracted hereunder: To pronounce on the question of law presented for our decision, we must first examine what is the true scope of the doctrine of throwing into the 'common stock' or 'common hotchpot'. It must be remembered that a Hindu Family is not a creature of a contract. As observed by this Court in Mallesappa Bandeppa Desai and Others Vs. Desai Mallappa and Others, AIR 1961 SC 1268 that the doctrine of throwing into common stock inevitably postulates that the owner of a separate property is a coparcener who has an interest in the coparacenary property and desires to blend his separate property with the coparacenary property. The existence of a coparcenary is absolutely necessary before a coparcener can throw into the common stock his self acquired properties. The existence of a coparcenary is absolutely necessary before a coparcener can throw into the common stock his self acquired properties. The separate property of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by him into the common stock with the intention of abandoning his separate property of a Hindu ceases to be a separate property and acquires the characteristic of a joint family or ancestral property not by any physical mixing with his joint family or his ancestral property but by his own volition and intention by his waiving and surrendering his separate rights in it as separate property. The act by which the coparcener throws, his separate property to the common stock is a unilateral act. There is no question of either the family rejecting or accepting it. By his individual volition he renounces his individual right in that property and treats it as a property of the family. No longer he declares his intention to treat his self acquired property as that of the joint family property, the property assumes the character of joint family property. The doctrine of throwing into the common stock is a doctrine peculiar to the Mitakshara School of Hindu Law. When a coparcener throws his separate property into the common stock, he makes no gift under Chapter VII of Transfer of the Property Act. In such a case there is no donor or donee. Further no question of acceptance of the property thrown into the common stock arises. 17. The Supreme Court after considering the Privy Council judgment with reference to Hindu Law has clearly laid down the law that it is a well established doctrine of Hindu Law that property which was originally self-acquired may become joint property if it has been voluntarily thrown by the coparcener into the joint stock with an intention of abandoning all separate claims upon it. In the present case, there is neither pleading nor evidence to show that the suit properties were thrown into the joint stock by the Defendant with an intention of abandoning his claims upon such properties. Such intention can be gathered only by the acts and conduct of the Defendant. In the present case, there is neither pleading nor evidence to show that the suit properties were thrown into the joint stock by the Defendant with an intention of abandoning his claims upon such properties. Such intention can be gathered only by the acts and conduct of the Defendant. By a careful perusal of the evidence placed on record by the parties which has been adverted to by the learned Trial Judge in answer to contentious issues namely Issue No. 2 it has been held that, documentary evidence produced by the Defendant the sale deeds at Exhibits D1 to D4 would clearly establish the fact that Defendant has acquired the suit schedule properties and the properties are self acquired not acquired out of joint family property funds when he was the Manager of the Joint Family. The said finding recorded by the Trial Court is based on legal evidence produced on record which finding has been set aside by the first appellate Court in answer to contentious points 1 and 2 in exercise of it jurisdiction and power under the provision of Section 96 Code of Civil Procedure. In view of said undisputed facts, the question of setting aside finding by the first appellate Court has rendered the impugned judgment not only erroneous in law but also suffer from error in law as the first appellate Court has suo-motu proceeded to examine the case of the Plaintiff which was not pleaded with regard to blending of self acquired properties to the joint family properties. Therefore, the submission made by the learned Counsel Mr. Subbanna for Defendant in support of the substantial question of law by placing reliance upon the judgments of Supreme Court referred to supra are well-founded and the same must be accepted by the Court as the law laid down in the above cases with all fours are applicable to the fact situation. On the other hand, the submission made by the Plaintiff's Counsel are not tenable and the same cannot be accepted. Hence, the substantial question of law framed by this Court is answered in favour of the Defendant and therefore this Regular Second Appeal is required to be allowed. 18. Accordingly, the appeal is allowed. On the other hand, the submission made by the Plaintiff's Counsel are not tenable and the same cannot be accepted. Hence, the substantial question of law framed by this Court is answered in favour of the Defendant and therefore this Regular Second Appeal is required to be allowed. 18. Accordingly, the appeal is allowed. Impugned judgment and Decree passed by the first Appellate Court dated 12.4.2000 in RA 93 of 1990 is set aside and the judgment and Decree passed by the Trial Court dated 5.6.1990 in OS 439 of 1989 is res.