JUDGMENT
Manjula Chellur, J.:—
This Regular First Appeal is filed assailing the Judgment and decree in O.S No. 59/97 on the file of Civil Judge (Sr. Dn.), Chikkamagalur in decreeing the suit.
2. The facts that led to the litigation in brief are as under:
The first respondent herein was the plaintiff, the appellant and the second respondent herein were the defendants before the lower Court. The parties to the litigation are the children of late Mr. Padmakshegowda and Smt. indiramma. It is not in dispute that Padmakshegowda died in 1966 and his wife died in 1985. Padmakshegowda left behind the parties to the suit as legal heirs and also joint family properties (ancestral) described in the schedule at item Nos. 1 to 3, 9(a) to 9(c) and 11. During the life time of Padmakshegowda, it was a joint family. Even after his death the properties remained in joint possession of all the contesting legal heirs. Out of the income of these properties and also by mortgaging these properties, item Nos. 4 to 8 & 10, 13 and 14 were acquired by the defendants 1 & 2. Therefore, the plaintiff claimed that all the immovable properties are the joint family properties and she is entitled to her share therein. That apart according to her, gold ornaments described at item No. 12 of the schedule also belong to joint family. Without heeding to the demand of the plaintiff to give her share, defendants 1 & 2 unilaterally prepared an agreement determining the share of the plaintiff as Rs. 4,00,000/- only which according to her was not binding as she was not a party to the same. Hence she was constrained to file the suit for partition and separate possession of her 1/9th share in suit schedule properties by metes and bounds. The defendants 1 & 2 the brothers of the plaintiff no doubt admit that items 1, 2, 9 & 11 as ancestral properties, but so far as other properties are concerned, they have different versions.
3. According to first defendant-appellant, the joint family did never possess or own any gold ornaments. If at all any gold ornaments are there, it belongs to his wife as they are given to her by her parents at the time of marriage, it is also his specific case that Sy. No. 180/29(a) to 9(c) do not belong to the joint family and those are neither in possession of him nor in the possession of his brother-second defendant. The schedule item No. 13 Maruti Omni Car belongs to defendant No. 2 and schedule item No. 14 Maruti Zen car is the absolute property of his wife as she has acquired the same from her father. It is his further case that after the death of Padmakshegowda, the marriage of the plaintiff was performed by spending about Rs. 1,00,000/- including the jewels given to her. In a panchayat during 1996 at the desire of the parties, the partition was done wherein the plaintiff agreed to take a cash of Rs. 4,00,000/- in lieu of her share. The panchayatdars had also determined the shares of defendant No. 1 & 2 - the 2 brothers. Out of Rs. 4,00,000/-, the plaintiff has already received Rs. 15,000/- and the first defendant was ready to pay the balance in instalments as agreed. On account of these facts, the suit of the plaintiff for partition is not maintainable and has sought for dismissal of the same.
4. According to the second defendant item No. 12-the gold ornaments are in the custody of defendant No. 1 which are not yet partitioned due to non co-operation of the plaintiff during the panchayat, Sy. No. 14 & 30/1 of Channagondanahalli, Sy. No. 181/2 of Jakkanahalli and Dolphin make car bearing No. MYZ 8917 are also the joint family properties which are not included in the plaint schedule. He further contends that he has no objection for giving 1/9th share to plaintiff in the properties available for partition.
5. On the basis of the above pleadings the Trial Court framed the following issues:
1. Whether the plaintiff proves that plaint schedule items 1 to 11 immovable properties are the joint family properties of parties to the suit?
2. Whether the plaintiff proves that movable properties at items 12 to 14 of plaint schedule are joint family properties and they are available for partition?
3. Whether the defendants 1 and 2 prove that schedule items 4 to 10 are their self acquired properties?
4. Whether the defendant No. 1 prove that schedule item No. 14 is the absolute property of his wife?
5. Whether the defendant No. 2 proves that schedule item No. 13 is his absolute property?
6. Whether the defendants prove that at the time of wedding plaintiff received cash and jewellery worth more than her share in schedule properties?
7. Whether the defendants prove that plaintiff agreed to receive a sum of Rs. 4,00,000/- in lieu of her share in joint family properties and received advance consideration of Rs. 15,000/-?
8. Whether the plaintiff is entitled to 1/9th share in plaint schedule properties and for an order for enquiry as to mesne profits?
9. What order or decree?
6. After going through the material both oral and documentary on record, the Court has held that items 12(a) to (f) of the schedule i.e, gold ornaments were not available for partition as the availability was not established either by the plaintiff or by the second defendant. So far as item No. 13, Maruti Omni standing in the name of the second defendant. According to first defendant it belongs to 2nd defendant-his brother, but 2nd respondent dis-owns the same. This is so even in the evidence of D.W 1 (defendant No. 2). Regarding item No. 14-Maruti Zen car, though this is shown as schedule item, no pleading is forthcoming that appellant herein had purchased this car from the income of the plaint schedule properties in the name of his wife. Even the other brother defendant No. 2 do not contend that this property standing in the name of the wife of his elder brother, belongs to joint family property. This car was purchased in 1997 in the name of wife of the appellant. The trial Court has rightly observed that by that time the relationship between the parties was strained, therefore they ought to have objected for registration of the car in the name of the wife of the appellant. On the other hand the evidence goes to show that father-in-law of the appellant-first defendant is a man of resources who could afford to purchase Maruti car in the name of his daughter. Therefore, except item No. 13, item No. 12 and 14 do not belong to joint family property as held by the trial Court. The findings were covered under issue No. 2, 4 and 5. So far as these findings, there is not much dispute, as could be gathered from the arguments of the parties.
7. According to the learned Counsel for the appellant, item Nos. 4 to 8 and 10 were purchased under Ex. P2 and Ex. P36 and they are not the joint family properties. The first respondent herein is not entitled for 1/9th share in these properties. In other words, according to the appellant, the plaintiff is entitled for 1/9th share only in the properties under Ex. P1 release deed. According to the brothers these properties are the self-acquired properties and the sale consideration was the amounts received by the appellant herein by giving music programmes during his college days.
8. The learned Counsel for the appellant relies on AIR 1995 SC 297 and AIR 1978 SC 1239. He contends that as on the date of death of Mr. Padmakshegowda, there is severence in the joint family on the principle of notional partition and therefore item Nos. 4 to 8 and 10 cannot be part of joint family properties as the first respondent is the female heir of Mr. Padmakshegowda. According to the counsel for the first respondent, the material placed before the Court would indicate that none of the brothers i.e, appellant and 2nd respondent had any independent source of income and the fact that she was signatory to all the documents for mortgaging the ancestral properties for borrowing loans from various banks, would indicate that out of the income of the joint family property, the so called self acquired properties as alleged by her brothers are purchased and therefore, so far as these properties also, she has to get 1/9th share. The next point urged on behalf of the appellant is that inspite of receiving jewellery and cash worth more than Rs. 1,00,000/- at the time of marriage of the 1st respondent, which is more than what she is entitled to, still they agreed to partition the properties in a panchayat and the plaintiff did agreed to receive a sum of Rs. 4,00,000/- in lieu of her share in the joint family properties. Therefore, the plaintiff is not entitled for any share in the suit schedule properties.
9. Admittedly, the first respondent got married in 1975 after the death of her father. According to the appellant herein jewels worth several thousands were given to plaintiff and therefore, she has received more than her share in the joint family properties. But he further contends that on humanitarian consideration, he agreed to give Rs. 4,00,000/- as her share. In his evidence as D.W 2, the appellant admits spending about Rs. 1,00,000/- towards the marriage of his sister by borrowing loans as he did not have any savings. On one hand he says he had lot of money to purchase item Nos. 4 to 8 and 10 and on the other hand his evidence is to the effect that the financial condition of the family was not good upto 1977 and 1978. His evidence also goes to show that till the income from Pushpagiri Estate commenced, they did not have any income from Bhutan Khan Estate (ancestoral). Therefore, he had to borrow loans for management of the family and also for the development of the lands, in 1971 he takes Rs. 80,000/- from Planters Co-operative Bank. When he was not able to repay the loans, the properties were brought for sale by the Co-operative Bank, then he borrowed money from his friend Haridas and again in 1976 he borrowed loan from Canara Bank, Balehonnur, to repay the loan of Mr. Haridas. Though he explains how and from whom he took loans for the development of the land, he do not say from whom he borrowed money for the marriage of the plaintiff i.e, about Rs. 1,00,000/-. If the financial condition of the family was as bad as explained above, it is hard to believe the contention of the appellant that 1st respondent was given cash and jewellery worth lakhs of rupees at the time of her marriage during 1975. The other admission of the appellant in his evidence that at the time of spending money for the marriage and jewellery, they did not take into consideration the share of the sister in the properties. If at all she was given clothes and jewels at the time of performing her marriage, it must be in accordance with the customs and practice in their community. If really the money equal to her share was spent at the time of her marriage, there was no need to enter into memorandum of understanding as per Ex. D4 during 1996 wherein the brothers admitted that the properties at A & B schedule of Ex. D4 are the joint family properties in which their sister i.e, the first respondent herein has 1/9th share. The trial Court has rightly held that the appellant herein is estopped now from contending that plaintiff has received more than her share in the joint properties.
10. Coming to the document Ex. D4, whether this would bar the first respondent from claiming her share in the properties, one has to look into the circumstances how it came into existence and whether there was consensus-ad-idem. So far as second respondent herein is concerned, he has no objection for giving 1/9th share in all the properties to his sister-1st respondent even now. Parties to this appeal do admit about the panchayat that was held in 1996 at Chikkamagalur in which Ex. D4 came into existence. The second respondent in his evidence has admitted that for about 8 to 10 days at Travellers Bunglow in Chikkamagalur, well wishers and elders of me family namely Krishnegowda, Subbegowda, Bansar, Biikkegowda, Anilkumar etc., tried to settle the issue amicably. He also signed this documents. He signed Ex. D4 on 4.9.96 and took a cheque for Rs. 90,000/- and Rs. 10,000/- from the appellant, herein. So far as this documents is concerned, 2nd respondent is a party to the said document, but whether this signature and the signature of defendant No. 1 would bind the contents of the document as per the decision of panchayatdars on the plaintiff-1st respondent. On perusal of this document, it is explicit that only the brothers were parties to the memorandum of understanding described as 1st and 2nd parties. Though the contents of the document says the terms recited at Ex. D4 were mutually agreed between all the parties including the 1st respondent Smt. Achala, but she is not shown as a party to the memorandum of understanding. Neither she is a party to the memorandum non signatory and executant of the same. The evidence of PW. 2 & 3 examined on behalf of Smt. Achala and Dw. 5 & others on behalf of the appellant herein goes to show that she was not at all present when memorandum of understanding at Ex. D4 was written. The decision of the panchayatdars was also not reduced to writing. Some of the panchayatdars i.e, Mr. Krishnegowda, Subbegowda and Annappagowda are not the attestors to the said Ex. D4. Ex. D4 admittedly, is a document of partition, but it is not registered. It neither effects any partition nor is a record of any earlier oral partition. On the other hand, the contents show that a regular partition deed should be registered before the end of April 1997 at the cost of only the brothers. Specifically the first respondent herein has denied entering into any memorandum of understanding in terms of Ex. D4 with her brothers.
11. The entire evidence would reveal that the decision of the panchayatdars was not acceptable and panchayatdars were unable to reach any final decision and Ex. D4 came into existence only at the instance of 2 brothers unilaterally determining the share of their sister i.e, 1st respondent. This document is not at all binding on the 1st respondent and further 2nd respondent herein has no objection to give 1/9th share in all the properties to his sister. So also payment of Rs. 15,000/- to 1st respondent herein-by Dw. 6 would go to show that as the 1st respondent was in financial difficulties, therefore, Dw. 6 volunteered Rs. 15,000/- to her. Ex. D4 do not speak anything about this Rs. 15,000/- Therefore, the contention of the appellant that Rs. 15,000/- was paid to 1st respondent Achala in lieu of her share of Rs. 4,00,000/-, cannot be accepted.
12. The next question which would fall for our consideration would be whether all the immovable properties are to be considered as joint family properties in the hands of all the three contestants?
13. In Gurupad v. Heerabal . AIR 1978 SC 1239., it is held as hereunder.
“In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of things, and as the very first step, to ascertain the share of the deceased in the coparcenary property. For, by doing that alone can one determine the extent of the claimant's share. Explanation 1 to Section 6 resorts to the simple expedient, undoubtedly fictional, that the interest of a Hindu Mitakshara coparcener “shall be deemed to be” the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death. What is therefore required to be assumed is that a partition had in fact taken place between the deceased and his coparceners immediately before his death. That assumption, once made, is irrevocable. In other words, the assumption having been made once for the purpose of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it. The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages. To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one's imagination to boggle. All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the life time of the deceased. The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion. It has to be treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot be generally be recalled. The inevitable corollary of this position is that heir will get his or her share in the interest which the deceased had in the coparcenary property, at the time of his death in addition to the share which he or she received or must be deemed to have received in the notional partition.”
Admittedly, as on the date of death of Padmakshegowda, the family had only properties at item Nos. 1, 2, 9 & 11. Subsequent to the death of Padmakshegowda, item Nos. 4 to 8 and 10 are acquired by the family. The first respondent was married in 1975. As on the death of their father in 1966, the 1st respondent was not married yet. He left behind 2 sons, 1 daughter and his widow. They had only ancestral property of Padmakshegowda at that time. To ascertain the shares of the legal heirs, one has to first see what share the deceased had in the co-parcenary property. Here the notional partition comes into play. The share of the deceased in the property would be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death. Admittedly, there was no partition, even during 1986 when Smt. Indiramma, mother of the parties died. After her death her share devolve upon her children i.e 2 sons and the daughter. The share of the deceased Padmakshegowda was 1/3rd share in the joint family properties as on the date of his death. In this 1/3rd share his wife, 2 sons and a daughter will take equal shares. In view of the fact that there was no partition in the family, the 1st respondent's share would be 1/9th, share. So far as this position is concerned, there is no dispute. The question is whether she is entitled for 1/9th share in item Nos. 4 to 8 & 10 also. According to the appellants herein, their sister is not entitled to these properties as there was a deemed partition of the properties as on the date of death of their father and properties acquired subsequently by the two brothers cannot be treated as joint family properties of plaintiff respondent and the defendants.
14. Now we have to see whether, the material on record would go to show that item Nos. 4 to 8 & 10 are the self-acquired properties of the brothers as contended by the appellant herein?
15. It is the specific case of the first respondent-plaintiff before the trial Court that except the income from two estates of Jakkanahalli and Channagondanahalli, no other income was available to the family. As already stated above, these properties are covered under the release deed Ex. P1. After the death of Padmakshegowda, father of the parties to the litigation in 1966, it was the appellant-defendant No. 1 who took over the management of the properties and during 1967-1968 one Pushpagiri estate was purchased situate next to the ancestral property at Channagondanahalli village. It is not in dispute that Smt. Achala and her mother Indiramma after the death of Padmakshegowda execute General Power of Attorney along with other brother Ashok Kumar (second respondent herein) in favour of appellant to borrow loans by mortgaging the ancestral properties and also Pushpagiri Estate purchased in the name of the appellant herein. Subsequently, another coffee estate known as Vanashree estate situate at Chikkanahalli described at item No. 10 was also purchased. The evidence on record both oral and documentary reflect that from time to time the above said three persons along with the appellant herein did borrow loans periodically for the development of the entire properties described at item Nos. 1 to 11 on the security of the properties. So far as the fact of mortgaging the schedule properties for borrowing loans, the appellant herein is not disputing the same. On the other hand in his evidence, it has come that Boothankhan estate firm was reconstituted consisting himself, his younger brother, their wives and their mother Indiramma as partners. The income tax returns submitted on behalf of the firm covers the entire estate of 55 acres 16 guntas covered under Schedule items 1 to 11. No doubt, the appellant, herein contends that Pushpagiri estate was purchased by him from his own earning as one of the artists of a musical party. But no convincing or clinching evidence is forthcoming to show that he could earn enough money to purchase this estate during 1967-1968 immediately after the death of his father Admittedly, the eldest son of Padmakshegowda i.e, the appellant discontinued his studies on account of the death of his father. He was depending on his father for the entire education that being the financial position of the appellant herein, his contention that he had enough money to purchase Pushpagiri estate from his own earning cannot be believed. As already stated above, the description of entire properties at Ex. D4 memorandum of understanding are two schedule i.e, ‘A’ & ‘B’. The averments in this document is to the effect that items 1 to 11, 13, 9(a) & 9(b) are the properties owned by the joint family along with the residential house, coolie line, drying yard, and machinery required for the estates situate in Boothankhan and Vanashree estates. When once the appellant relies on the contents of Ex. D4 now it is not open to him to say that certain items of the properties are the self acquired properties of the brothers.
16. Even if the parties describe the entire properties as joint family properties at Ex. D4, in view of the notional partition as on the date of death of Padmakshegowda one has to look into the actual nature of the properties that were acquired subsequent to the notional partition. Items 4 to 8 and 10 are admittedly purchased subsequent to the death of the father. As stated supra, the brothers did not have independent source of income neither subsequent to the death of their father nor during the life time of their father to invest in different properties. The material on record would rather establish the fact that the appellant herein did develop the properties left behind by his father by mortgaging these properties and some more movable and immovable properties were also purchased out of the income from the joint properties. The question is whether subsequent acquisition has also to be considered as joint family properties? If it is joint family property of the two brothers then their sister Smt. Achala cannot claim any share in these coparcenary properties. Here Section 19 of the Hindu Succession Act of 1956 comes into picture.
17. Ganga Pershad v. Tribeni Devi . AIR 1976 Delhi 145. pertains to the case of lessee who died leaving behind his widow and three sons. Their Lordships have held in such a situation the heirs of the lessee are co-tenants and not joint tenants because the joint tenancy is restricted in Hindu Law to the relations between the coparceners. It has no application outside the coparcenary. Smt Nirmal Jerath v. Sadhuram Sharma . AIR 1973 Delhi 55. also deals with the case under Section 19(b) of the Hindu Succession Act. Here it was held that on the death of the landlord leaving behind his two widows, a mother and a minor son as his possible heirs, all heirs would succeed to the properties as tenants in common by virtue of Section 19(b).
18. The learned Counsel for the appellant relied on Kondiram Bhiku Kirdat v. Krishna Bhiku Kirdat (Deceased By L.Rs) . AIR 1995 SC 297.. It was held in this case as under:
“3. It is contended by Mr. Vishwanatha Iyer, learned senior Counsel for the appellant that having entered into military service and after his discharge, the appellant continued to contribute for the acquisition of the properties in his own name and therefore, items except items at serial Nos. 1, 3 & 6, which were already partitioned, remained to be his self-acquired properties. Therefore, there is no joint family nucleus for acquisition of these properties and accordingly the trial Court was right in declining partition of the items except those mentioned in the preliminary decree granted by the trial Court. We find no force in the contention. It is seen that Kondiba and Krishna were in military service. While they were in service, their father was enjoying the properties and acquired other properties individually and collectively of the appellant and Krishna and that properties remained to be joint. Admittedly, both the appellant and Krishna were discharged in 1948 from the military service. Since Krishna had suffered disability of hearing, he remained in the family and the finding of the appellate Court is that he continued to cultivate not only the properties acquired by them but also tenanted properties. Thereafter Krishna continued to remain in joint possession along with the appellant of all the properties till he sold the properties to the appellant by registered sale deed on November 10, 1964. Thus it can be seen that till the date of severance in status there is no individual enjoyment of the properties or assertion of their rights in respect of any specified item of the property. It is seen that during the life time of the father, both the brothers remained joint and after the demise of the father, by which date both, the brothers were discharged from military service, Krishna continued to maintain properties not only acquired by them but also tenanted land. Therefore, it is clear that they had joint family nucleus and continued to acquire the respective properties. So they must be deemed to be joint family properties as found by the appellate Court. After the severance in status, admittedly, the appellant had purchased items 5, 7 and 8 of para 1B of the plaint in his own individual names. Therefore, though the appellate Court has clubbed those properties, it was not right in treating those properties to be joint family properties. Accordingly only items 5, 7 & 8 mentioned in paragraph 1B of the plaint shall be declared to be self-acquired properties of the appellant. All other properties are joint family properties and liable to be partitioned in equal moiety between the appellant and Krishna and the legal representatives of Krishna would take half share in the properties. The decree of the appellate Court is modified accordingly to that extent. Since items 5, 7 & 8 of para 1B of the plaint are declared to be self-acquired properties of the appellant, the question of respondents' contribution of Rs. 1,250/- does not arise. The decree of the appellate Court is accordingly modified. In other respect it is confirmed. The appeal is partly allowed. No costs.”
This is a case where the brothers acquired the properties after severence in status and was held that those properties cannot be clubbed into joint family properties. In this case there was evidence to show that one of the brothers Kondiba purchased properties at items 5, 7 and 8 of the plaint in individual name after the severence in status. While he was working in the military service purchased these properties with his earnings and therefore they were declared as self acquired properties. So far as the other properties, nucleus of joint family property was made use for purchasing them till the date of severence in status. It was held that such properties must be deemed to be joint family properties. The facts of the case referred to in the above citation do not apply to the facts of the present case.
19. In the present case, the point at issue does not pertain to partition between the coparceners namely the two brothers. Only notional partition is to be taken into consideration as on the date of the death of the father Padmakshegowda. A similar case came up before Hon'ble High Court of Orissa in Kastura Sahuani v. Das Seth . AIR 1979 Orissa 60.. The relevant para is para 10 which reads as hereunder:
“Para 10: It is not correct to say that the son (D1) the widow (D2) and daughters, if any, succeeded to the entire property as tenants in common. On the rules laid down in Sections 6, 8, 9 & 10 of the Act, only the undivided interest or share of Laxman devolved by succession on his son, widow and daughters, if any. The undivided interest or share of the deceased-coparcener in a case of this nature has to be ascertained on the footing of a notional partition immediately before the death of the deceased. The persons who would be entitled to a share on the notional partition would be ascertained according to the Hindu law of joint family and partition in force on the date of the death of the coparcener, and their share has to be computed according to the law of partition applicable to the parties on the date of death of the deceased. In the present case, if a partition had in fact taken place immediately before the death of Laxman, he would have been entitled to 1/3rd share in the said property, as defendant No. 2 would have become entitled to get a share equal to that of defendant No. 1, and so the property would have been divided in three equal shares. On coming into effect of the Hindu Succession Act, only the said 1/3rd interest of Laxman shall be deemed to have been carved out of the entire property and that distinct share would cease to form a part of the coparcenary property from the moment of the death of Laxman. That distinct share only will devolve by succession on Laxman's son (D1) widow (D2) and other heirs under the Act, if any. By the application of Section 19, such heirs of Laxman succeed together only to the said 1/3rd interest of Laxman and they take that property as tenants in common and not as joint tenants. On the application of the proviso to Section 6 of the Act, the joint family may continue but the interest of the deceased in the coparcenary property is carved out of the entire property, and that distinct share ceases to form a part of the coparcenery property from the moment death of the coparcener separate and carved out vests in the different heirs of the deceased coparcener as per the provisions of the Act from the time of the death of the coparcener.”
20. The other relevant Judgment applicable to the facts of the present case is P. Perisami (Dead) By L.Rs v. P. Periathambi . 1995 6 SCC 523.. In this case para 4, 5 and 6 are relevant. They are as under:
“Para 4: Contrary views have been expressed in Ram Dei v. Gyarsi and many other cases to which reference need not be made. In M.D.R Ranganatha Mudaliar v. M.D.T Kumaraswamy Mudaliar, however, occasion arose to reconsider the above referred view of the Full Bench of the Madras High Court, but the learned Judges refrained from doing so for by then the Full Bench case of 1921 had been treated as stare decisis. Likewise after a lapse of more than half a century, we would not consider it prudent just for the sake of uniformity to resolve the conflict raging in the High Courts ??? the question, more so when the orthodox Hindu Law on the ??? is itself now in tumble because of the enactment of the Hinuu Succession Act, 1956 and in particular of Section 19 thereof, which says that if two or more heirs succeed together to the property of an intestate they shall take the property-
(a) save as otherwise expressly provided in this act, per capita and not per stripes;
(b) as tenants-in-common and not as joint tenants.
Para 5: In view of the interpretation put by the Full Bench of the Madras High Court that the sons in such situation would get self acquired property of their father by inheritance, having the status as tenants-in-common, they could not thus treat such properties in their hands, even though joint in enjoyment, as joint Hindu family properties. Likewise, the income derived there from, if employed to purchase other property, would not cloak the new acquisition with the character of joint Hindu family property but may otherwise be joint properties. We would rather decide this matter on this principle., and we do so accordingly, to hold that the properties which came from the elder self acquired as they were, and there being no grand sons, cannot be held by the parties to be joint Hindu Family Properties but as joint properties simplicitor, capable of partition on that basis.
Para 6: With regard to the accreted property, there is a reference in the judgment under appeal relating to some accounting, after recording the finding that the defendants have failed to prove that property was in their adverse possession. This is a finding of fact which need not be disturbed, as it has been sought to, in the cross-appeal. Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property. The failure of the plea has obvious results. If the parties herein were co-owners of that property and the said property had been purchased from the income derived from joint property then obviously the same has to be accounted for as joint property and not as joint Hindu family property. It was like property jointly purchased by co-owners without attracting the rule of succession by way of survivorship. On this clarification, the judgment of the High Court is cleansed of the little vagueness about this particular which accidentally seems to have crept in while dealing with this aspect of the case.”
21. From the above discussion it is clear that the 1/3rd interest of Padmakshegowda in the coparcenery property come to the parties to the litigation that is, his two sons and a daughter, as they fall under Class-I heirs of schedule-I. This 1/3rd share of Padmakshegowda would cease to be part of the coparcenery property from the moment of death of Padmakshegowda. Sons and daughter would become tenants in common, so far as this 1/3rd interest of the deceased which is distinct from the coparcenery property. Though the joint family between the brothers i.e, the appellant and the second respondent i.e, younger brother may continue but the interest of the deceased in the entire coparcenery property is to be carved out. This 1/3rd share would devolve on the different legal heirs of the deceased Padmakshegowda in accordance with the Hindu Succession Act.
22. As already stated above, two brothers did not have any separate income to purchase items-4 to 8 & 10. 1/9th income from the joint property (to which plaintiff-1st respondent sister is entitled to) was also invested to acquire property at items 4 to 8 & 10. Therefore, to that extent the 1st respondent Smt. Achala would become the co-owner along with her brothers in items 4 to 8 & 10. Items 4 to 8 & 10 cannot be treated as joint family property, but it is only joint property of the parties in which she has 1/9th share. So far as this aspect, the trial Judge went wrong in saying that items 4 to 8 & 10 also to be treated as joint family property. In other words, the 1st respondent-Smt. Achala who was the plaintiff before the trial Court is entitled for 1/9th share as tenant in common.
23. In view of the above discussion and the reasons though the approach of the trial Court regarding the subsequent acquisition of properties by the brothers was on wrong approach but the final decision was just and correct regarding the share of the plaintiff. Therefore, we find no reason to interfere with the Judgment and decree of the trial Court.
24. Accordingly, the appeal stands dismissed with costs.