Anand Byrareddy, J.
Heard the Counsel for the appellants and the respondent.
2. The parties are referred to by their rank before the Trial Court for the sake of convenience.
3. The Facts are as follows:
The appellants were the defendants before the Trial Court. The respondent who was the plaintiff before the Trial Court had filed a suit seeking partition and separate possession of half share in the entire suit schedule properties. It was the case of the plaintiff that one Nanjappa was the propositus who had three sons, by the name of Channabasappa, Mallappa and Revanna. Channabasappa, the eldest son had a son by the name of Revanasiddappa, who was the father of the plaintiff. Mallappa, the younger son had a son, by the name of Chikkasiddappa Sherry, who was the father of T.C Nanjappa, the defendant in the suit. Revanna, the youngest son had died unmarried. The geneological table of the family is reproduced for the sake of clarity.
It was claimed that the suit schedule properties are the ancestral and joint family properties of the plaintiff and defendant and that they have been possession of the same. It was stated that the father of the plaintiff was a school teacher and during the course of his career had served in several places, but had died during the minority of the plaintiff. The plaintiff, in turn, had also become a school teacher and while in service, had worked at different places. However, it was contended that he had continued in joint possession and enjoyment of the suit properties alongwith the defendant and his father. It was claimed that his marriage was performed by Chikkasiddappa Shetty, the father of the defendant during the year 1963. It is admitted that the khata of the properties stood in the name of Chikkasiddappa Shetty and that after his death, it was made out in the name of the defendant. The plaintiff, on retirement from service, with an intention to settle down at Chikkathotlukere, requested the defendant to partition the suit properties as it was the plaintiff's belief that the properties were being mismanaged and that the defendant would act against the interest of the plaintiff. The defendant having failed to comply, a legal notice was issued and it was thereafter, that the suit was filed for partition and separate possession.
The defendant contested the suit denying the claim of the plaintiff and the existence of the joint family or the joint possession pleaded by the plaintiff. It was contended that there was no indication of the plaintiff or his father, being recognised as members of the joint family in respect of the suit properties. The defendant contended that his grand-father was enjoying the suit properties from the year 1946, as reflected in the revenue entries. On his death, the defendant's name was reflected in the revenue entries and since 1956, the defendant is in possession and enjoyment of the suit properties alongwith other properties as the absolute owner. He has improved the land, he has raised loans by mortgaging the suit properties and he has even alienated a portion of the same. It was specifically contended that the plaintiff is an utter stranger and that there was no relationship with the defendant. The defendant however died during the pendency of the suit and the widow and daughter have come on record as his legal representatives. They, in turn, have filed an additional written statement emphasizing that the plaintiff was an utter stranger to the family. The widow of the defendant has also emphazised that from the date of her marriage to the defendant, she had not seen the plaintiff or anybody claiming under him in the village and they never participated in the affairs of the family. It is reiterated that the property belonged to Chikkasidda Shetty, who died when Nanjappa, the defendant was 42 years old and that the grand-father of the defendant Mallappa had died prior to 1930 and therefore, there was no presumption of joint family status nor of the relationship between the plaintiff and the defendant.
On the above pleadings, the Trial Court placed the burden on the plaintiff to prove that the suit properties were ancestral and joint family properties and that he was in joint possession of the same and whether it was proved by the plaintiff that the defendant had unlawfully got the revenue entries made in his favour and whether he was entitled to the share claimed by him. The Trial Court also placed the burden on the defendant to prove that the suit properties were the absolute properties of his father T.C Nanjappa. On an appreciation of oral and documentary evidence that was before the Court, the Trial Court held that the plaintiff had proved that the suit schedule properties are the ancestral and joint family properties of the plaintiff and that the defendant had unlawfully got the revenue entries made out in his name and therefore held that the plaintiff was entitled to half share in the suit properties while negating the claim of the defendant that the suit properties were the absolute properties of his father Nanjappa.
The defendants thereafter preferred an appeal against the said judgment and decree alongwith an application under Order XLI Rule 27 of the Code of Civil Procedure, 1908, to tender additional evidence. The plaintiff had also filed a similar application. The defendants, in addition, filed an application under Order VI Rule 17 to amend the written statement to the effect that there was a partition in the family much prior to the execution of a mortgage deed Exhibit D-1, which was of the year 1922 and therefore, contended that the suit was not maintainable. The lower Appellate Court framed the following points for consideration.
1. Whether the defendants have made out satisfactory/reasonable ground to accept the two documents as the additional evidence at this stage, in the suit/appeal as prayed in I. A.No II filed under Order XLI Rule 27 of Code of Civil Procedure, 1908?•
2. Whether the plaintiff has made out satisfactory/reasonable ground to accept 6 documents as additional evidence at this stage, in the suit/appeal as prayed in I. A.No IV filed under Order-XLI Rule-27(b) of Civil Procedure Code?
3. Whether the defendants have made out satisfactory/acceptable ground, that the proposed amendment, filed under Order-VI Rule-17 R/w Section 151 of Civil Procedure Code at this stage is necessary for just adjudication of the suit/appeal?
4. Whether the Trial Court was not justified in decreeing the suit of the plaintiff, filed for the relief of partition and separate possession by merits and bounds in the suit schedule properties against the defendants as per the impugned Judgement and decree under appeal?
5. What order?”
The lower Appellate Court rejected all the applications filed by the parties and dismissed the appeal confirming the judgment and decree of the Trial Court. It is against these concurrent findings that the present appeal is filed.
4. The following substantial questions of law are framed by this Court in proceeding to admit the appeal:
“1. Whether the Courts below were justified in holding that the recital in the mortgage deed Ex.D1 which is of the year 1922 which came into existence at an undisputed point of time, do not establish the partition between Channabasappa, Mallappa and Revanna, Sons of Nanjappa?
2. Whether the First Appellate Court was justified in rejecting the application filed under Order 41 Rule 27 and also application for amendment of written statement setting up the plea of prior partition?
3. Whether the Courts below were justified in holding that there exists a joint family and the suit schedule properties are joint family properties in the light of the admitted fact that the plaintiff and defendant belonged to 4th generation and the plaintiff has admitted in categorical terms in his evidence that there was a partition in the family 80 years back and in the absence of any material placed by the plaintiff to show either the existence of the joint family or that the schedule properties are joint family properties?”
5. The Counsel for the appellant contends that the plaintiff and defendants belong to the third generation of the family. While the Counsel would submit that though initially the very relationship was denied, the same having been admitted at a later point of time, it could still not be said that, they constituted a joint family. The glaring circumstance is that the defendants and their predecessors-in-title have been enjoying the suit properties for generations. There is no material on record to raise a presumption that the plaintiff and the defendants constitute a joint family property. On the other hand, Exhibit D. 1, which is a registered mortgage deed executed by the plaintiffs grand father and his grand father's brother, Revanna, which is of the year 1922, contains a recital to the effect that the boundaries of the properties which were the subject matter of the mortgage, was property which had fallen to the share of Mallappa, who was the other member of the erstwhile joint family. This has been completely overlooked by the Courts below and the document has been misconstrued. It is also pointed out that in the cross-examination of the plaintiff, there is a clear admission that there was a partition in the family eighty years ago and hence his claim that there was no partition in the joint family was not tenable.
It is contended that the Courts below have not relied upon any material evidence to establish that the joint family status had continued over the generations and in adjudicating the claim at a remote point of time, it was a duty cast on the Court to proceed with extreme caution in the interpretation of the unimpeachable documents which were available on record, to indicate that there was indeed a prior partition which was certainly reflected in Exhibit D.1 as already stated. The Counsel would submit that the revenue entries indicate the names of the grand-father, the father of the defendant and the defendant himself in all the material records that are placed before the Court. Therefore, the admitted absence of both the plaintiff's father and the plaintiff for over eight decades from the village in which the suit properties are situated, hardly raises any presumption of a joint family status. The Counsel also seeks to place reliance on additional documents that are said to have been obtained with great difficulty. Having regard to the remoteness of point of time, at which the defendant has been called upon to establish that there was a prior partition, and has filed an application under Order XLI Rule 27, to produce before this Court a Sale Certificate, which according to the Counsel for the appellants would clinch the case of the appellants-defendants that the properties, if any, that were available to the share of the plaintiff's branch were brought to sale in the year 1936-1937 itself and that this would prove that not only was there a prior partition, but even the properties that fell to the share of the plaintiff's branch were sold and it is with an ulterior motive to make an illegal claim over the defendant's share of the property that the suit is filed.
The Counsel places reliance on the following judgments in support of his contentions:
(a) Yellappa Ramappa Naik v. Tippanna . AIR 1927 PC 8
(b) Bhagwan Dayal v. Mrs. Reoti Devp. . AIR 1962 SC 287
6. Per contra, the Counsel for the respondent, who was the plaintiff before the Trial Court contends that once the relationship between the parties is admitted, in the absence of any acceptable evidence as regards the prior partition pleaded by the defendants the plaintiff is entitled to a half-share in the suit property as rightly held by the Courts below.
It is contended that a question as to whether there was a joint family and whether the suit schedule properties were joint family properties being pure questions of fact which have been concurrently decided by the Courts below in favour of the plaintiff, there is no scope for interference by this Court in terms of Section 100 of the Code of Civil Procedure, 1908. It is further contended that the widow of the deceased defendant who has deposed as DW-1 has admitted that her husband was looking after the entire joint family properties as the plaintiff was a teacher working elsewhere and was not living in the village. It is contended that the admitted fact that the plaintiff's father having died during the plaintiff's minority and the plaintiff himself having pursued a career as a school teacher and having been away from the suit properties did not result in a disruption of the joint family. It is asserted that the reliance placed on Ex.D1, a mortgage deed could hardly evidence and establish a partition between the members of the joint family.
It is contended that the mutation entries do not also establish that there was a partition amongst the members of the joint family.
In addressing the substantial questions of law framed by this Court — it would be necessary to deal with the applications filed by the appellant as well as the respondent, respectively, under Order XLI Rule 27 of the Code of Civil Procedure before this Court.
The documents sought to be produced as additional evidence by the appellants and the respondent were in fact sought to be presented before the First Appellate Court itself under similar applications. The First Appellate Court has summarily rejected the applications as expressed in its judgment — since the documents sought to be produced by both the parties, in its opinion, did not appear to throw any more light on establishing anything more than what was already apparent or disputed as the case may be, on the say of the parties and has hence rejected the same.
It is contended on behalf of the appellants that apart from Exhibit D-1, which was a mortgage deed executed by the plaintiff's father and his junior uncle in the year 1922, which according to the appellants, was an indication that the plaintiff's father was dealing with his share of the property and possibly losing it. There has come to light certain other transactions which were exclusively between the plaintiff, his father and grand father in respect of which, there were Civil Suits and execution proceedings where properties belonging to them were brought to sale as evidenced by a sale certificate, which the appellants had traced with great difficulty as it was of the year 1936 and therefore, seeks to produce the same in support of the contention that the plaintiff's branch of the family was exclusively dealing with their share that was allotted possibly many years prior to 1922, and completely lost by them in those above proceedings.
Insofar as the application of the respondent is concerned, it is contended that as the appellants — defendants have admitted during the proceedings by way of additional written statement, the existence of a joint family, but plead that there was a prior partition. The respondent though fortified by the decision rendered by the Courts below — claims that certain Record of Rights, Index of Lands etc., pertaining to land in Survey No. 197/1 and 197/2 of Chikkathotlukere, which are the subject matter of Ex.D1 have been secured, which would demonstrate that the said properties did not belong to the members of the joint family of the plaintiff and defendants and hence seeks to produce the same.
As can be noticed, these documents sought to be produced by the parties would not throw further light on the disputed question that has been decided in favour of the plaintiff, but would at best further confound issues. The same have been rightly rejected by the first Appellate Court. As this Court is required to address only the substantial questions of law — there is no ground made out for considering the above applications in the facts and circumstances of the case.
The primary contention and the sustained endeavour of the appellants is to contend that though it is conceded that the parties are members of joint family, there was a prior partition and the family was no longer joint at least from the year 1922 as evidenced by Exhibit D-1. Even otherwise, the presumption of the existence of a joint family weakens with each succeeding generation and the present dispute in this regard being raised by a third generation member of the joint family (though erroneously referred to by the parties and the Courts below and this Court, on an earlier occasion, as a fourth generation member) even the slightest amount of evidence would rebut the weak presumption that may arise as to the family continuing to remain joint in status.
It is the above core question that requires to be answered to effectively answer all the three substantial questions of law that are framed by this Court.
The authorities are unanimous on the following propositions. Generally speaking, the normal state of every Hindu Family is joint. Presumably, every such family is joint in food worship and estate. In the absence of proof of division, such is the legal presumption (see: Rewan prasad v. Radha Beeby . 1846 4 MIA 137, Naragunty v. Vengama . 1861 9 MIA 66, Cheeta v. Miheenlall . 1867 II MIA 369, Neelkisno v. Beer Chunder . 1869 12 MIA, Bhagwanti v. Mohan Singh . AIR 1925 PC 132).
The presumption of union is the greatest in the case of father and sons (See: Indiranarayan v. Roopnarayan . AIR 1972 SC 1962). The presumption is stronger in the case of brothers than in the case of cousins and the further one goes from the founder of the family the presumption becomes weaker and weaker (see: Yellappa Ramappa Naik v. Tippanna (Supra).
In the case on hand, one Nanjappa was the propositus and of his three sons, Channabasappa, Mallappa and Revanna — Revanna was not married and was no more, Channabasappa had also died — he was the father of Revanna Siddappa and the grand father of the plaintiff. Mallappa's son Chikkasiddappa Shetty was the father of the deceased original defendant, Nanjappa. This relationship is admitted. The four items of property involved in the suit are lands and a house.
The plaintiff's father was a teacher and worked at several places outside the village. The plaintiff's father died during the plaintiff's minority. The plaintiff's uncle Chikksiddappa Shetty was managing the properties. After his death, the original defendant Nanjappa was managing the properties.
The plaintiff had pursued a career in teaching and had worked at several places. Expect to show that his marriage was performed in the village with the blessings of his uncle — there is no material placed to demonstrate that he partook in the affairs of the joint family. Though the plaintiff retired from service as a school teacher in the year 1981, it is only in the year 1996 that the plaintiff made a claim for partition and filed the suit. The plaintiff was about 70 years old as on the date of the suit.
The material evidence on record such as revenue entries in respect of the suit properties are, not surprisingly, in favour of the defendant. There are no documents available which would indicate that the property continued to be joint family property. In this background, if one is to proceed on the rule of evidence that a plaintiff who claims that the suit property is joint family property, is required to discharge the burden of proving the same — the plaintiff in the case on hand apart from asserting the same may not be in a position to do so.
On the other hand, it is not the case of the defendant that the suit properties are his self-acquired properties. It is not in dispute that the properties are claimed as inherited through his father and grand father and to claim that there was a partition between the branch represented by his grandfather and that of the plaintiff's grand father — reliance is sought to be placed on Exhibit D-1, a registered mortgage deed of the year 1922 executed by the plaintiff's grand father Channabasappa and his younger brother Revanna — whereby, three items of property all comprised in Survey No. 197 were mortgaged to one Krishnappa. It is contended that the boundaries of the properties as described in the said document indicate that the northern boundary of the item consisted of property that had fallen to the share of Mallappa and similarly, the western boundary of one other item also consisted of property that had fallen to the share of Mallappa. It was therefore sought to be urged that this proved that there was a partition of the joint family property as between Channabasappa, Revanna and Mallappa.
But as can be seen from the recitals of the said document Exhibit D-1, there is no indication that the brothers had effected a partition and that the properties had fallen to their respective share. Nor is it stated that the brothers Channabasappa and Revanna were jointly executing the mortgage though they were divided and were holding the properties independently.
In this scenario, the presumptions that arise in considering whether the burden has, or has not, been discharged can only be of presumptions of feet. There is no general solvent for all cases in applying the case law.
Insofar as the admission said to have been made by the plaintiff in the course of his cross-examination of there having been a partition between his grand father and his grand father's brother 80 years ago, is a vague statement elicited in cross-examination and is to be ignored as it does not relate to any transaction to which he was a party.
In the light of the above, the substantial questions of law framed are all answered in the affirmative. The appeal is dismissed.
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