3. AIR 1963 SC 1601 - Lakkireddi Chinna Venkata Reddi v. Lakkireddi Lakshmama (do) 4. AIR 1968 SC 1276 - G. Narayana Raju v. Chama Raju (do) 5. AIR 1961 SC 1260 - Malleshappa B. Desai v. Desai (do) 6. AIR 1960 Mysore 87 - Nadig Neelakanta Rao v. State of Mysore (do) 7. AIR 1972 Cal 190 - M.S Ram Singh v. Bijoy Singh Surana (do) 8. AIR 1961 Mad 28 - B. Ahmed Marachair v. Muthuvalliappak Chettiar (do) 8. AIR 1961 Mad 28 - B. Ahmed Marachair v. Muthuvalliappak Chettiar (do) 9. AIR 1976 SC 1565 - Shah Mathuradas Maganlal and Co. v. Nagapppa Shankarappa Malage (do) 10. AIR 1966 SC 1300 - Addanki Narayana v. Bhaskara Krishnappa (dead) and thereafter his heirs (do) 11. (1993) 1 SCC 589 - S. Vittoba Chandra Pandian v. S. Vittoba Sivalinga Nadar (do)

Sri Anant Mandgi, Advocate for Appellant

Sri Vinodh V. Bobde, Sr. Counsel and Sri V. Tarakaram, Sr. Counsel for Sri K.S Kasim and M/s. Tarakaram Associates for R-5.

JUDGMENT

Tirath Singh Thakur, J.:—

This is a plaintiff's appeal arising out of a suit for partition of joint family property decreed in part by the 1st additional Civil Judge, Bangalore by his judgment dated 7th of April 1998. The grievance in the appeal is confined to that part of the judgment and decree by which the Court below has denied the relief of partition in respect of the plaint schedule-B property except to an extent of 53,356 sq. ft. described in the lease deed marked Ex. P19. The plaintiff argues that the Suit filed by him ought to have been decreed by the trial Court qua the entire property described in Schedule-B of the plaint.

The plaintiff and defendant No. 2 are brothers whereas defendant No. 1 (now deceased) and defendant No. 3 are their parents. The plaintiffs case in the Suit filed by him was that he and his brothers constituted a Hindu Joint Family with their parents and owned joint family property, which was liable to partition among them. In Schedule A to the plaint, the plaintiff described the joint family property in the form of agricultural land while in Schedule-C, the moveable assets of the joint family was enumerated. In Schedule B to the plaint, the plaintiff described a solitary item of property comprising “Cubbon Lodge” with land under and appurtenant thereto situate on Rajbhavan Road, Bangalore. This property was, according to the plaintiff held by the joint family on a long lease and was partible among the members of the family like the other joint family properties owned by them.

Defendants 1 to 3 viz., the other members of the joint family remained exparte before the trial Court. Written statements were however filed by defendants 5 and 6, in which it was inter alia alleged that plaint schedule B property had reverted to the 5th defendant except an area measuring 53,356 sq. ft. situate on the eastern side of the said property. The allegation that the lease hold rights over the Schedule-B property were acquired or held by the joint family was also denied and the maintainability of the suit assailed among others on the ground that the same was collusive and vexatious

On the pleadings of the parties, the trial Court framed as many as 16 issues. While deciding Issues No. 1 and 6, the Court held that the plaintiff had failed to establish that B schedule property was a joint family asset as alleged by him. Issues No. 2 and 3 were also decided against the plaintiff and the Court fee paid on the plaint held insufficient. In regard to Issue No. 4, the Court below held that since the plaintiff had not questioned the validity of partnership deed dated 16th of September 1996 and the deed of dissolution by which the same was dissolved the suit in so far as it laid a claim to the entire B schedule property was not maintainable. In answer to issue No. 6, the Trial Court came to the conclusion that the plaintiff was entitled to 1/5th share in the plaint A schedule property and a portion of the plaint B schedule properties measuring 53,356 sq. ft. In so far as Issues No. 5 and 9 were concerned the trial Court held that although the lease hold rights were partible yet since the plaintiff had failed to establish the existence of a lease qua the B schedule property as on the date of the institution of the suit, he was not entitled to any relief in regard to the said property. The Court further held that the suit was in essence one intended to establish his lease hold rights over the entire B schedule property. Issues No. 10 to 15 were also held in favour of the defendants and the suit decreed in part holding the plaintiff entitled to partition and separate possession of 1/5th share in plaint A schedule property and a portion measuring 53,356 sq. ft. comprising the eastern part of plaint B schedule property fully described in Ex. P19, aggrieved, the plaintiff has filed the present appeal as already mentioned earlier.

We have heard learned Counsel for the parties and perused the record. Submissions made at the bar were broadly speaking limited to the following three questions:—

(1) Whether the lease rights in respect of schedule ‘B’ property were acquired and held as a joint family asset and were therefore partible between the appellant and the other members of the joint family?

(2) Whether the right and interest in Schedule ‘B’ property had reverted to the 5th respondent-owner except to the extent of 53,356 sq. ft. comprising the eastern side of the said property? and

(3) Whether the Suit and the appeal filed by the appellant had been properly valued for purposes of Court fee and if so. Whether the fee legally payable has been paid?

Before we deal with the questions ad-seriatim. We consider it necessary to briefly recall the transactions that have taken place over the past years qua schedule ‘B’ property, which by far is the only item that constitutes the proverbial bone of contention between the parties. These transactions have been detailed in a lease deed executed among others by the appellant on the 6th of April 1992 produced by him and marked as Ex. P-19 at the trial. We shall refer to the said document in greater detail while we deal with question No. (2) formulated earlier. For the present we need only say that certain important events have been set out in the said deed, the contents whereof have been admitted to be true by the appellant in his own statement recorded on oath by the trial Court. The recitals in Ex. P-19 show that schedule ‘B’ property has over the years suffered a variety of transfers in one form or the other. It all started with Sri Humayun Mirza the original owner of the property transferring the same by way of a gift (Hiba) to his daughter Mariam Khaleeli in the year 1967 and later creating a lease in favour, of Sri Srinivas Vittoba Jannu in the year 1969 for a period of 50 years with an option to the lessee to have the same renewed for a further period of 20 years. The lessee created two sub-leases in terms of lease deeds dated 18th of April 1975 and 7th of January 1976, which are not of any immediate significance. What is important is that in terms of a partnership deed dated 16th of September 1976 executed between Sri Srinivas Vittoba Jannu, Mariam Khaleeli, Hotel Parag Private Limited and 13 others, the ownership rights of Mariam Khaleeli, the lease hold rights of Sri Srinivas Vittoba Jannu and the lease hold rights of Hotel Parag Private Limited in respect of schedule ‘B’ property were brought by them as their respective share capitals to become the absolute property of the partnership constituted between the partners in the name and style of Hotel Parag. This partnership was dissolved shortly thereafter in terms of a dissolution deed dated 30th of September 1976 according to which Hotel Parag Private Limited became the absolute owner of Schedule-B property. Yet another partnership in the name and style of Hotel Parag took shape in terms of a deed of partnership dated 18th of April 1979 executed between Sri Srinivas Vittoba Jannu, Mrs. Mariam Khaleeli, Hotel Parag Private Limited and Sri M. Vittoba Jannu. The rights held by Hotel Parag Private Limited in terms of the earlier dissolution deed were brought in as capital contribution of the company. The succession of events did not end there and culminated in the execution of what is described as a memorandum of dissolution dated 26th of November 1979, whereby the eastern part of the property in question admeasuring 53,356 sq. ft. together with the Hotel building standing on the same was allotted and vested in Sri Srinivas Vittoba Jannu, who thereafter became the absolute owner of the said property. The remaining part of schedule ‘B’ property comprising 70,146 sq. ft. was with the building standing on the same allotted and vested in the ownership of Smt. Mariam Khaleeli to be held by her absolutely. It is on the basis of this division of the schedule B. property, that the trial Court has conceded in favour of the appellant a 1/5th share in that part of schedule ‘B’ properly, which had fallen to the share of Sri Srinivas Vittoba Jannu, whose death during the pendency of the Suit entitled his legal heirs including the appellant to a share in the said property. Time now to deal with the questions formulated earlier.

Reg. Question No (1)

The appellant's case as regards Schedule ‘B’ property being a joint family and partible asset has two distinct facets. It was argued on his behalf by Mr. Mandgi that the acquisition of the lease rights with the help of the joint family nucleus was sufficient in itself to render the said property a joint family asset liable to be partition between the members of the family. Reliance was in this regard placed by the learned Counsel upon the RTC extracts marked Ex. 5, P4 to P11 which relate to agriculture lands enumerated in Schedule ‘A’ to the plaint. It was contended that since the availability of the lands with the joint family comprising the appellant, his father late Sri Srinivas Vittoba Jannu, his mother Smt Radha Srinivas, Jannu and brother Sri Vasant Srinivas Jannu was evident from the said records a presumption to the effect that the lease rights in Schedule B property had been acquired with the assistance of the said property, which constituted a nucleus in the hands of the members of the joint family would legitimately arise. This presumption had argued the learned Counsel remained unrebutted as the other members of the joint family had not appeared to contest the plaintiff-appellant's claim. The lessor Smt. Mariam Khaleeli was not, according to Mr. Mandgi, entitled to question the joint family character of the property nor was any evidence led by her to displace the presumption.

Existence of a joint family does not in itself give rise to any presumption that the property held by any member of the family is joint. The burden to prove that any item of property is joint vests on the person making such an assertion. Where however it is established that the joint family possess some 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 any such joint family nucleus. We need refer to only one decision of the Supreme Court in Baikuntha Nath Paramanik (Dead) by his L.Rs and Heirs v. Sashi Bhusan Pramanik (Dead) by his L.Rs . AIR 1972 SC 2531., where the legal position has been summed up by their lordships in the following words:

“When a joint famity is found to be in possession of nucleus sufficient to make the impugned acquisitions then a presumption arises that the acquisitions standing in the names of the persons who were in the management of the family properties are family acquisitions.”

The question however is whether the plaintiff has in the instant case established that the family possessed any property, which was from it's nature and relative value sufficient to result in the acquisition of the lease rights in question. It is not just the existence of a nucleus but its sufficiency for the acquisition of the disputed property that has to be established before a pressmption that the acquisition was made with the help of the nucleus can possibly arise, in order however to prove that the property constituted a nucleus sufficient to result in the acquisition of the disputed lease rights, the plaintiff was required to establish that the income from the lands referred to earlier or from the joint family business was such as could result in the acquisition of the lease hold rights. In the opinion of the trial Court the plaintiff had failed to do so. We entirely agree with that finding. There is no evidence whatsoever as to the income which the family was deriving either from the agriculture lands, which were admittedly dry lands or the business which the joint family was according to the appellant, carrying on. In the absence of any material to establish the nature and the extent of the income being derived from the property or the business, the acquisition of the lease rights could not be correlated to the nucleus. The accounts relating to the income from agricultural lands were, according to the appellant available with him. Their non-production must, in our opinion, give rise to an adverse inferenca that if produced, the same would have gone against the plaintiff. There is yet another significant aspect, which belies the plaintiff's version that the lease rights were acquired with the help of the joint family income. These rights flow from a lease deed Ex. P15, from a perusal whereof it is evident that the lease in question was secured by the lessee with the help of money borrowed by him from third parties. If the joint family was possessed of property, which could constitute a nucleus sufficient for the acquisition of the lease rights, there was no question of the Kartha of the family raising loans as he did. We have therefore no difficulty in affirming the finding returned by the trial Court that the lease rights qua schedule ‘B’ property were self acquired property of late Sri Srinivas Vittoba Jannu.

It was next argued by Mr. Mandgi that even if initial acquisition of the rights was not for and behalf of the joint family, the same could be impressed with the character of joint family property by reason of the lessee throwing such rights in the common hotchpot and blending the same with other property owned by the joint family. He urged that although there was no specific pleading to the effect that the lessee Sri Srinivas Vittoba Jannu had blended the self acquired property with the joint family property, yet such an assertion was unnecessary in the light of the decision of the Supreme Court in Binod Bihari Lal v. Rameshwar Prasad Sinha . AIR 1978 SC 1201.. Blending of self acquired property of the lessee was, according to the learned Counsel, established from the income tax returns filed by him, in which the property in question was described as joint family property.

In Lakkireddi Chinna Venkata Reddi v. Lakkireddi Lakshmama . AIR 1963 SC 1601. the Supreme Court declared that, separate or self acquired 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 the owner into the common stock with the intention of abandoning his separate claim therein. Such abandonment or waiver could however be established only if the person concerned had a clear intention to do so. The mere fact that other members of the family were allowed to use the property jointly with himself, or that the income of the separate property was utilised put of generosity to support persons whom the holder was not bound to support, or his failure to maintain separate accounts cannot result in abandonment.

In G. Narayana Raju v. Chama Raju . AIR 1968 SC 1276., the Court reiterated 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 the intention of abandoning all separate claims to it. But, the question whether the coparcener has done so or not is a question of fact to be decided in the light of all the circumstances of the case clear intention on the part of the coparcener to claim his separate rights was necessary and that such intention could not be inferred from acts which may have been done from out of kindness or affection.

In Malleshappa B. Desai v. Desai . AIR 1961 SC 1260. the Supreme Court held that the doctrine of blending postulated that the owner of the separate property is a coparcener who had an interest in coparcenary property and that he had the intention to blend his separate property with such property. Dealing with the doctrine of blending, the Court observed:—

“This doctrine inevitably postulates that the owner of the separate property is a coparcener who has an interest in the coparcenary property and desires to blend his separate property with the coparcenary property. There can be no doubt that the conduct on which a plea of blending is based must clearly and unequivocally show the intention of the owner of the separate property to convert his property into an item of joint family. Property. A mere intention to benefit the members of the family by allowing them the use of the income coming from the said property may not be necessarily be enough to justify an inference of blending; but the basis of the doctrine is the existence of coparcenary and coparcenary property as well as the existence of the separate property of a coparcener.”

Although a specific plea as regards blending of self acquired property with joint family property was not in the light of the decision of the S.C in Binod Bihari's case (supra), necessary, yet blending could be said to have taken place only if the plaintiff satisfactorily established:— (a) that his father Sri Srinivas Vittoba Jannu was a coparcener, who had an interest in the coparcenary property held by the joint family, and (b) he had clearly and unequivocally intended to throw his self acquired property in the common hotchpot and abandon all his rights and claims in respect of separate ownership.

The Trial Court has on the basis of evidence adduced before it, come to the conclusion that the plaintiff had failed to establish both these requirements. It found that the plaintiff had produced RTC extracts marked Exs. P4 to P11 pertaining to the property described in schedule A to the plaint. These extracts did not however establish that the property referred to therein had been purchased by the grand father of the plaintiff as asserted. None of the items of the property detailed in schedule A and referred to in the extracts mentioned above stood in the name of the plaintiff's grand father. While property mentioned in Ex. P4, P5, P6 and P7 stood in the name of Sri Srinivas Vittoba Jannu that mentioned in Ex. P8 was entered in the name of his wife. In so far Ex. P9, 10 and 11 are concerned the same stand in the name of the plaintiff. The mode of acquisition of all these properties is said to be purchases except in the case of Ex. P8 which stands in the name of Mrs. R. Radha Srinivas Jannu and is shown to have been acquired by way of a mortgage. Apart from the RTC extracts the appellant had not produced any evidence to show that the Property comprising agricultural lands mentioned in schedule A to the plaint was coparcenary in nature. The existence of a coparcenary property being one of the requirements for any possible blending the failure of the said requirement was in our opinion rightly noticed and relied upon by the Court below in support of the finding that blending was not established.

Coming then to the second essential requirement, the appellant's case was that the intention to blend was proved by two income tax returns filed by Sri Srinivas Vittoba Jannu and marked Exs. P1 and P2. Reliance is also placed by the appellant on certain income tax assessment orders marked Ex. P12 to P14 no matter the same were passed after the death of the assessee and related to period subsequent to the institution of the suit filed by the appellant. These orders of assessment cannot in our opinion by themselves establish blending of lease hold rights with other joint family property even assuming that there were any such properties. We say so, because the assessment orders are post litem documents, which cannot possibly evidence blending between 1969 when the lease was secured and 1980 when the suit for partition was instituted by the appellant. Even otherwise, the orders relied upon by the appellant do not make any mentioned of the events that took place in 1979, whereunder an area measuring 53,356 sq. ft. comprising the eastern portion of the schedule-B property was given to late Sri Srinivas Vittoba Jannu in owhership and the remaining extent of 70,148 sq. ft. reverted back to the owner Smt. Mariam Khaleeli. In any income tax assessment relevant for the period following 1979, the question of Sri Srinivas Vittoba Jannu claiming lease hold rights in respect of the entire property mentioned in schedule-B to the plaint did not in the face of the above arrangement arise. It is also not the case of the appellant that any returns had been filed for the period subsequent to 1979 or that Sri Srinivas Vittoba Jannu had withdrawn from the arrangement, under which he had acquired absolute title to a part of schedule-B property as mentioned earlier. In so far as income tax returns Exs. P1 and P2 are concerned, P.W-1, who produced the same was unaware of whether the said returns had been validly filed and acted upon by the assessing officer concerned and whether any orders of assessment had been made thereon. In any event no assessment orders having been filed, it is difficult to attribute to the assessee a clear intention to waive his individual and personal rights, in regard to the lease property. This is so particularly when the Tax Recovery Officer had attached the schedule property and upon an objection to the same being raised on the ground that the lease rights where a joint family asset the plea was rejected by an order dated 29th of March 1989. Although according to the appellant the said order had been challenged in appeal, yet there is no material to show that any such appeal was filed by either the appellant or any other member of the family or that the finding returned by the Tax Recovery Officer had been modified.

As against the above, there are certain circumstances, which clearly militate against the theory of blending. The first and the foremost is that the lease deed executed in favour of Sri Srinivas Vittoba Jannu does not purport to be for and on behalf of the joint family. On the contrary, the lease deed can be seen as his personal acquisition made with the help of money borrowed by him from the third parties. Secondly, the lease rights were not described by Sri Srinivas Vittoba jannu as a joint family asset in the Suit filed by him against Mrs. Maryam Begaum & Sri Humayun Mirza as early as in the year 1974. If the property was meant to be a joint family asset, the Suit ought to have been filed by Sri Srinivas Vittoba Jannu as Kartha of the HUF and not in his individual capacity. Thirdly, if Sri Srinivas Vittoba Jannu was treating the lease hold rights to be a joint family asset, it was wholly unnecessary for him to bring in as partners his children including the appellant herein in their individual capacities. And fourthly because partnership deed dated 16th of September 1976 and dissolution dated 30th of September 1976 in unequivocal terms treat Sri Srinivas Vittoba Jannu as lessee in his individual capacity. The fact that the appellant did not object to the property being dealt with as Sri Srinivas Vittoba Jannu's self acquired property nor assert that the same was either initially or by reason of blending a joint family asset clearly shows that the theory of blending is an afterthought. We have in the light of what is stated above no difficulty in affirming the finding returned by the Trial Court that the lease right acquired by Sri Srinivas Vittoba Jannu in respect of schedule-B property did not constitute joint family property to entitle the other members of the family to seek partition in the same.

REG. QUESTION No. (2)

In the light of our findings on Questinn No. (1), the Suit filed by the plaintiff in so far as the same related to schedule B property would be liable to be dismissed, but the demise of Sri Srinivas Vittoba Jannu during the pendency of the Suit has opened succession qua the property held by him whether absolutely or otherwise entitling the legal heirs to a share in the same. It is in that view necessary to determine the rights and the extent, which Srinivas Vittoba Jannu held on the date of his death in schedule B property. The trial Court has come to the conclusion that Sri Srinivas Vittoba Jannu was on the date of his demise, the absolute owner of an extent of 53,356 sq. ft. of land and superstructures comprising the eastern portion of schedule-B property. The question therefore is whether the said finding suffers from any error or illegality to warrant interference in appeal.

Mr. Mandgi made a two fold submission in so far as this aspect of the controversy is concerned. Firstly, it was argued that even if the lease rights held by Sri Srinivas Vittoba Jannu were self acquired property, yet such rights must be deemed to have continued till the date of his demise entitling the appellant herein to a share in the lease hold property. He urged that there was neither termination nor the surrender of the lease rights by Sri Srinivas Vittoba Jannu nor was the same possible in the absence of a registered document. Per contra, the respondents argued that the submissions made by Mr. Mandgi ignored the transactions and developments that had admittedly taken place over the past years culminating in the grant of ownership rights in favour of Sri Jannu to the extent indicated earlier. It was submitted that the appellant being a party to the transactions whereby the lease and ownership rights were all transferred in favour of Hotel Parag Private Limited, he was not entitled to either question the validity of the said transaction or find fault with the division, which came about between Smt. Mariam Khaleeli, Sri Srinivas Vittoba Jannu and Hotel Parag Private Limited. The facts necessary for determination of the controversy were, according to Mr. Bobde, Counsel for the 5th respondent admitted and all that had to be considered is their legal effect.

We have briefly set out the transactions that took place from time to time in regard to the schedule B property in the earlier part of this judgment. We need only recall that in terms of partnership deed dated 16th of September 1976 between Sri Srinivas Vittoba Jannu, Smt. Mariam Khaleeli, Hotel Parag Private Limited and 13 others, the ownership and all other rights held by the parties in respect of schedule B property were brought in as the capital contribution of the partners to be treated as the property of the partnership. Upon dissolution of the said partnerships terms of deed dated 30th of September 1976, the entire B schedule property became the absolute property of Hotel Parag Private Limited. Although according to the appellant, he was not a party to the said partnership or the deed of dissolution, yet the recitals contained in Ex. P19, the execution and correctness whereof the plaintiff has admitted clearly belies that contention. Mr. Mandgi in this regard made a valiant attempt to persuade us to hold that Sri R.S Jannu referred to in para (E) of Ex. P-19 actually referred to the plaintiff's mother Smt. Radha Srinivas Jannu and not to the appellant. We find it difficult to subscribe to that view. In para (E) of Ex. P19 executed by the plaintiff-appellant a reference, to partnership deed dated 16th of September 1976 is made, in which apart from others, Sri R.S Jannu was also one of the partners. The term “Sri” prefixed to R.S Jannu is in our opinion, sufficient to show that assertion of the appellant is wholly untenable. The fact that there was a partnership, in which the rights held by Smt. Mariam Khaleeli, Hotel Parag private Limited and Sri Srinivas Vittoba Jannu were all brought in to constitute an asset of the partnership cannot therefore be disputed. Similarly the fact that the said partnership was dissolved by a deed of dissolution dated 30th of September 1976 and the plaint schedule B property vested absolutely in Hotel Parag Private Limited is also clearly admitted. The constitution of a new partnership between Sri Srinivas Vittoba Jannu, Smt. Mariam Khaleeli, Hotel Parag Private Limited and Sri M. Vittoba Jannu too is admitted by the plaintiff-appellant in para (G) of the document executed by him. That Hotel Parag Private Limited brought into the new firm all the rights held by it in the disputed property as its capital contribution is also evident from the said paragraph. In para-(H) of Ex. P19, the dissolution of the partnership mentioned above and division of the disputed, property between Sri Srinivas Vittoba Jannu and Smt. Mariam Khaleeli has been referred to and admitted in the following words:—

“By the memorandum dated November 26, 1979 entered into by and between the parties referred in para G above, the said firm was dissolved and by virtue of the said memorandum of dissolution, the eastern part of the said schedule-A property admeasuring 53,356 sq. ft. together with the Hotel building thereon (more particularly described in the second schedule hereunder) was allotted and vested absolutely to the ownership of Srinivas Vittoba Jannu who thereafter became the absolute owner of the said property described in the second schedule hereunder and hereinafter referred to as the schedule-B property and the western part of the said schedule-A property admeasuring 70,146-00 sq. ft. more fully described. In the third schedule hereunder and hereinafter referred to as the schedule-C property was allotted and vested absolutely to the ownership of Mariam Khaleeli who became the absolute owner of the said schedule-C property.”

A plain reading of the above leaves no manner of doubt that Sri Srinivas Vittoba Jannu had brought in his lease rights into the partnership, which upon dissolution got transferred to Hotel Parag Private Limited. It is also manifest that upon dissolution of the partnership that came into existence on 18th of April 1979, the disputed property was shared between Srinivas Vittoba Jannu and Smt. Mariam Khaleeli in the manner and to the extent indicated in para (H) extracted above. The argument that non production of all the partnership and dissolution deeds referred to in lease deed Ex. P-19 to which the plaintiff is a party should give rise to an adverse inference against the defendants or that the recitals contained in Ex. P. 19 cannot be referred to or relied upon as the admissions of the appellant need mention only to be rejected. There can be no quarrel with the proposition that if a transaction evidenced by a written document is sought to be proved, the best evidence to do so would be the document itself. But it is equally true that the need to produce evidence either documentary or otherwise arises only if the nature and the effect of the transaction is disputed. There is no gain said that facts admitted need not be proved. The facts leading to the division of the property in dispute between Srinivas Vittoba Jannu and Smt. Mariam Khaleeli have been clearly admitted by the plaintiff-appellant in the lease deed dated 6th of April 1992 Ex. P19. No further evidence was therefore necessary to prove the said transaction. Admission of a party is the best evidence against it unless it can be shown to have been withdrawn or satisfactorily explained. The plaintiff having admitted in no uncertain terms the sequence of events, which culminated in the division of disputed property between his father and Smt. Mariam Khaleeli, no further or additional evidence was necessary to establish the said sequence. The argument that the plaintiff had executed the lease deed-Ex. P19 and subscribed to the recitals contained therein subject to his contentions to the contrary in the suit for partition also does not materially alter the position. A closer reading of the recitals in the deed would show that all that the plaintiff had intended to lease open for determination in the suit was the legality of his father throwing the lease rights in the disputed property into the partnership that came into existence on 16th of September 1976 and the dissolution dated 26th of November 1979, whereby he had accepted the absolute ownership rights in a part of the said property and agreed to the reversion of the rest to the owner Smt. Mariam Khaleeli. As seen earlier, the plaintiff's case that lease rights held by Sri Srinivas Vittoba Jannu were a joint family asset has not been established. There was therefore nothing improper in the said rights being brought in as a part of the capital contribution of the lessee Sri Jannu nor could there be any illegality in the lessee agreeing to take a part of the property in absolute ownership upon dissolution of the partnership, which held such rights. Suffice it to say that division of schedule B property into two parts between Sri S. Vittoba Jannu and Mrs. Mariam Khaleeli in the manner indicated in paras-(E), (F), (G) and (H) of the lease deed was more than sufficiently established by the admission of the plaintiff himself, thereby rendering any further evidence on that a wholly unnecessary.

That brings us to the alternative submission of Mr. Mandgi, that the bringing in of lease hold rights of Sri Srinivasa Vittoba Jannu as a capital contribution in the partnership and the transfer of such rights to Hotel Parag Private Limited upon dissolution tantamounted to surrender of the lease rights in favour of the lessor otherwise than under a registered Instrument. He argued that since the lease rights had been acquired under a registered lease deed any surrender of such rights could also be only only by a registered document. Reliance in support was placed by him upon the decision of this Court in Nadig Neelakanta Rao v. State of Mysore . AIR 1960 Mysore 87., M.S Ram Singh v. Bijoy Singh Surana . AIR 1972 Cal 190. and B. Ahmed Maracair v. Muthuvalliappak Chettiar . AIR 1961 Mad 28..

There is in our opinion no merit in that contention either. We say so for two precise reasons. Firstly because Section 111 of the Transfer Property Act envisages determination of immoveable property both by express as well as by implied surrender. In the case of express surrender covered under Clause (e) of Section 111, the lessee yields up his interest under the lease to the lessor by a mutual agreement between them. In the case of implied surrender within the meaning of sub-Clause (f) to Section 111, a lease may come to an end because of the creation of a new relationship between the lessee and the lessor. See Shah Mathuradas Maganlal & Co. v. Nagappa Shankarappa Malage . AIR 1976 SC 1565.. Illustrations to Clause (f) of Section 111 recognises an implied surrender on account of the lessee accepting from his lessor a new lease of the property leased during the continuance of the existing lease. In both the situations the surrender by the lessee in order to result in the determination of the lease has to be to the lessor. No such surrender in the instant case was made by the lessee Sri Srinivas Vittoba Jannu at any stage. All that he did was to bring in the lease rights as his contribution towards the share capital in the partnership. It is a different matter altogether that by doing so the lease rights would have become extinct on the principle of merger of such rights in the ownership rights brought in by Respondent No. 5 who had also joined as a partner with her title to the property being treated as her capital contribution. The partnership could not possibly be the owner and lessee of the property in question at the same time. The extinction of the lease rights that came about by operation of law and not by reason of a surrender within the meaning of Section 111(e) and (f). Upon dissolution of the partnership, the rights held by the firm qua the property in question all stood transferred to Hotel Parag Private Limited, which rights were then brought into the new partnership constituted on 18th of April 1979 once again as an asset and upon dissolution shared between Sri Srinivasa Vittoba Jannu and Mrs. Mariam Khaleeli. That upon dissolution of a partnership the partners can acquire property in the moveable and/or immoveable assets held by it even in the absence of a registered instrument vesting such property in their favour is fairly well settled by the decisions of the Supreme Court in Addanki Narayana v. Bhaskara Krishnappa (Dead) and Thereafter his Heirs . AIR 1966 SC 1300. and S. Vittoba Chandra Pandian v. S. Vittoba Sivalinga Nadar . 1993 1 SCC 589.. Both these decisions authoritatively declare that any property that falls to the share of the partners upon distribution of the residue held by the partnership is in the eye of law moveable property, which the partners can acquire even in the absence of a registered instrument. The division of the property between two of the partners of the firm constituted on 18th of April 1979 and allocation of a share out of the said property in favour of Sri Srinivas Vittoba Jannu would therefore be valid and effective even in the absence of a registered instrument. Question No. (2) is accordingly answered in the affirmative. The trial Court was justified in coming to the conclusion that upon the death of Sri Srinivas Vittoba Jannu, the plaintiff-appellant was entitled to a share in schedule B property only to the extent of 53,356 sq. ft. comprising the eastern portion of the said property

RE. QUESTION NO. (3)

It was argued by Mr Bobde, Counsel appearing for the 5th respondent, that the suit filed by the plaintiff-appellant was in substance a Suit meant to establish title of the plaintiff not only in respect of an area measuring 53,356 sq. ft. out of schedule B property, but also in respect of the remaining 70,148 sq. ft. which had fallen to the share of the 5th respondent upon dissolution of the partnership in November 1979. Any such claim for possession of the property would, according to the learned Counsel be governed by Section 24(a) or Section 29 of the Karnataka Court Fees and Suits Valuation Act 1958. In either situation Court fee on the market value of the property sought to be claimed was payable by the plaintiff.

Mr. Mandgi on the other hand contended that the valuation of the suit only in regard to the relief claimed qua a part of the schedule B property was in dispute, which portion of the property was also partible as according to the plaintiff the lease rights held by Sri Srinivas Vittoba Jannu continued to subsist and extend over the entire schedule B property. The suit could therefore at best be said to be involving a claim to ‘establish the right of occupancy’ by a tenant against the owner, falling under Section 41(e) of the Act aforementioned. He submitted that pursuant to the earlier order of this Court, the appellant had already paid Court fee in excess of what was legally payable, which entitled him to refund of the balance.

One of the issues that arose for consideration before the trial Court related to the value of the Suit for purposes of Court fee. While the Court came to the conclusion that the fee paid was insufficient, it did not determine the deficit nor did it direct the plaintiff to make up the deficiency. When the appeal came up for hearing before a Division Bench comprising Bharuka and Bannurmath JJ. the Court passed an order on 30th of July 1999 holding that advalorem Court fee on the market value of 70,148 sq. ft. of schedule S property was payable by the appellant under Section 29 of the Karnataka Court Fee and Suits Valuation Act, 1958. The Court relied upon the value of the property as given in an agreement to sell executed in respect of the property in question, which was proximate in point of time and accordingly directed payment of the fee. The said direction was complied with by the appellant subject even when a Special Leave Petition was filed against the same. The order of this Court was eventually set aside by the Supreme Court with the observation that the question relating to the quantum of Court fee payable shall be decided afresh in accordance with law while disposing of the appeal. That is precisely how the question regarding payment of Court fee has been argued once again.

For determining the Court fee payable on a plaint, the terminology used or the label given by the plaintiff is not of much significance. What is important is to find out the substance of the claim made in the plaint for adjudication. Viewed thus, the disputed part of the claim qua, which the controversy regarding the payment of the set out the transactions Court fee arises is limited to a decree for partition in respect of the remainder of schedule B property comprising 70,148 sq. ft. of land and superstructure on the same. What then is in substance the plaintiff's claim in respect of the disputed part of the schedule B property. According to the respondents, the plaintiff seeks possession on the disputed property on the basis of his title. While according to the plaintiff-appellant possession on the basis of title is not what is claimed in the suit. The plaintiff contends that his claim is limited to establishing a right of occupancy over the schedule-B property.

Section 24 of the Karnataka Court Fees and Suits Valuation Act covers cases, where the appellant asks for a declaratory decree or order with or without consequential relief not otherwise falling under Section 25 of the Act which deals with adoption suits. No declaratory decree has in the instant case been claimed by the plaintiff, which should take the suit out of the purview of Section 24. In so far as Section 29 is concerned the same is in its very nature a residuary provision meant to cover suits for possession of immoveable property not otherwise provided for. It would therefore apply only if no other provision of the Act is held applicable to the suit in hand. This process of elimination will stop at Section 41 of the Act which deals with suits between land-lord and tenants and may be extracted to the extent the same is relevant for our purposes:

“Suits between landlord and tenant-

(1) xxxxxxxxx

(a) xxxxxxxxx

(b) xxxxxxxxx

(c) xxxxxxxxx

(d) for recovering occupancy of immovable property from which a tenant has been illegally ejected by the landlord;

(e) for establishing or disproving a right of occupancy; fee shall be levied on the amount of rent for the immovable property to which the suit relates payable for the year next before the date of presenting the plaint.

(2) xxxxxxxxxxxx

It is evident that the above deals with suits of a special category distinctly different from others that may fall in any other general provision including Section 29. Section 9 of the Act provides for cases falling in more than one descriptions. It reads thus-

“Document falling under two or more descriptions— Subject to the provisions of the last preceding section, a document falling within two or more descriptions in this Act shall, where the fees chargeable thereunder are different, be chargeable only with the highest of such fees;

Provided that where one of such descriptions is special and another general the fee chargeable shall be the fee appropriate to the special description”.

In terms of the proviso, suits which answer a special description are chargeable with a fee appropriate to such description in preference to the general description that may be applicable to them. Now, the essence of the plaintiff's case is that a tenancy subsists between the landlady (Mrs. Mariam Khaleeli) on the one hand and the joint family or Sri Srinivas Vittoba Jannu on the other in regard to schedule-B property including 70,148 sq. ft. or area that has fallen to the share of the former. The Suit is to that extent aimed at establishing the right of occupancy of the plaintiff whether as a member of the joint family or as a legal heir of Sri Srinivas Vittoba Jannu. It may even be possible to say that the suit is meant to recover the immoveable property, from which the plaintiff claims to have been illegally dispossessed by what he describes as an illegal surrender of lease rights by Sri Srinivas Vittoba jannu in favour of the land lady. In either case, it is a suit, which more appropriately fails under Section 41(d) and/or (e) rather than Sections 24 and 29 of the Karnataka Court Fees and Suits Valuation Act, 1955. That being so, the Court fee is leviable on the amount of rent, payable for the year next before the date of presenting the suit. The suit and the appeal ought to have been valued in regard to the schedule B property at the annual rent payable for the same. The appellant shall in that view be entitled to the refund of the balance paid by him pursuant to the order of this Court dated 30th of July 1999.

In the result, this appeal fails and is hereby dismissed with costs. The appellant shall however be entitled to the refund of the excess fee as indicated in the pen ultimate paragraph of this judgment.