R. S. ANJAYYA GUPTA versus THIPPAIAH SETTY & ORS. on 1 July 2019

1. The present appeal takes exception to the judgment and decreeof the High Court of Karnataka at Bangalore dated 7[th] September, 2004,in RFA No.456 of 2002, whereby the High Court upheld the findings ofthe Trial Court, that the suit properties described in Schedules A and BDto the plaint were not self-acquired by the appellant (defendant No.1)but, instead, belonged to the Joint Hindu Family of which he was a memberand, therefore plaintiff and defendant Nos.1 and 2 were equally entitledto 5/12[th] share in all the suit properties and defendant No.3 (a) (b) and(c) each were entitled to 1/24[th] share in all the suit properties and thusthe same could be partitioned and distributed amongst the members ofEthe said joint family. The High Court, however, granted liberty to theappellant to approach the Trial Court for an enquiry into the questionwhether the sale of agricultural lands belonging to joint family wouldbind the appellant (defendant No.1) and to pass another preliminarydecree, if necessary. The appellant has also assailed the judgment of theFHigh Court rejecting his review petition being R.P. No.567 of 2002 dated27[th] September, 2006.

2. The parties to this appeal are the children of the originaldefendant No.3-patriarch of the family, Hanumanthaiah Setty. Theappellant is the eldest son, while respondent No.1 and respondent No.2Gare his younger brothers. Respondent Nos. 3 to 5 are the daughters ofHanumanthaiah Setty and thereby sisters to the appellant and respondentNos. 1 and 2. Respondent Nos. 3 to 5 came on record as the legalrepresentatives of Hanumanthaiah Setty after he passed away duringthe course of the proceedings before the Trial Court.

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3. This appeal has its origins in a suit for partition of certainproperties, being O.S. 1300 of 1982, filed by respondent No.1 (originalplaintiff) against the appellant (original defendant No.1), respondent No.2(original defendant No.2) and the original defendant No.3 HanumanthaiahSetty before the Court of the XXXI Additional City Civil Judge atBangalore. Respondent No.1, claiming to be a member of a Joint HinduFamily comprising the other parties to the suit, alleged that the scheduledsuit properties belonged to the said Joint Hindu Family since they hadbeen purchased by the original defendant No.3 father with money fromjoint family funds. The crux of respondent No.1’s plea was that the suitproperties mentioned in Schedules A and B to the plaint had beenpurchased ostensibly in the name of the appellant since he was the senior-most member of the family (after defendant No.3) and also the eldestson, however, in actuality, the said properties belonged to the joint family.Respondent No.1 also asserted that suit properties were in the jointpossession of the appellant, respondent No.2 and the original defendantNo.3 and that the appellant was attempting to illegally dispose of thesame and obstruct partition thereof, thus necessitating the suit.Accordingly, respondent No. 1 sought a 1/4[th] share in the suit propertiesand mesne profits in that regard.

4. The original defendant No.3 father supported the stand of therespondent No.1/original plaintiff, contending in his written statementthat the suit properties were purchased for and on behalf of the jointfamily and were merely purchased in the name of the appellant/originaldefendant No.1 since the original defendant No.3 could not travel toBangalore, where the properties in question were situated, and since theappellant was the eldest son and “worldly-wise”. He denied that the suitproperties were self-acquired properties of the appellant and submittedthat the appellant was exploiting the fact that the properties had beenpurchased in his name. He then submitted that his children, namely theappellant and respondent Nos.1 and 2, had an equal share, right, title andinterest in the suit properties. Accordingly, the original defendant No.3sought for a partition of the suit properties amongst his children aftermaking provisions for respondent Nos.3 to 5 herein (who, at the time offiling the said written submissions, were his unmarried daughters andhad not been impleaded as parties to the suit). Respondent No. 2 (originaldefendant no.2) supported and echoed the stance of respondent No.1and the original defendant no.3.

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A5. The appellant/original defendant No.1 in turn, denied that theproperties set out in Schedules A and B to the plaint had been purchasedby family from joint family funds or that they belonged to the Joint Hindufamily and submitted that he was the absolute owner thereof since hehad purchased it out of his own funds and through loans. The appellantsubmitted that he had exclusive possession and enjoyment over the saidBproperties since the date of their purchase and there was no question ofany illegality in his dealings therewith. The appellant further submittedthat a shop being run by him, constructed on one of the suit properties,had been sold by respondent No.2 and original defendant No.3, and thathe was entitled to the sale consideration of the same. Additionally, theCappellant was entitled to 1/4[th] share in certain other ancestral propertyof the original defendant No.3 father. The appellant also filed an additionalwritten statement wherein he alleged that certain joint family propertieshad intentionally been omitted from the plaint for nefarious purposes.

6. On the basis of the above pleadings, the Trial Court framed theDfollowing issues:

“7. On the pleadings of the parties, the following issues have beenframed:

i.Whether the plaintiff and defendants are the members ofa Hindu Joint family?

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ii.Whether the suit schedule properties have purchased bydefendant No.3 in the name of defendant No.1 from out ofthe joint family funds?

iii. Whether the plaintiff is entitled for a share as claimed inthe plaint schedule properties?F

iv. Whether the suit properties are self acquired properties ofdefendant No.1?

v.What order or decree?

Adl. Issue No.2 A : Whether suit properties are joint familyGproperties of plaintiff and defendants?”

7. During the pendency of the matter, the original defendant No.3expired and the present respondent Nos.3 to 5 daughters were broughton record as his legal representatives. Thereafter, the Trial Courtrendered its judgment dated 30[th] January, 2002, wherein it found in favourH

of respondent No.1/original plaintiff on all the issues. The Trial Courtopined that the appellant had not claimed any partition or separationfrom the joint family and infact, had pleaded for a 1/4[th] share in certainother ancestral property of the original defendant No.3. This wassufficient to establish that the parties viz the appellant (original defendantNo.1), respondent No.1 (original plaintiff), respondent No.2 (originaldefendant No.2) and the original defendant No.3, belonged to a HinduJoint Family.

8. The Trial Court relied upon several judgments to opine thatonce the acquisition of the suit properties from the nucleus of a jointfamily had been admitted or proved, thereafter, property acquired byany member of the joint family would be presumed to be joint familyproperty subject to the condition that the acquired property had to besuch that it could have been acquired only by the aid of the family. Itreasoned that after the acquisition of the suit properties from the nucleusof a joint family had been established, the burden of proof then shiftedon to the person who claimed that the property was self-acquired, toprove that the property had been acquired without any aid from thefamily. The Trial Court found that the evidence on record establishedthe existence of a joint family nucleus and thereafter, the appellant/originaldefendant No.1 had failed to discharge the burden that the suit scheduleproperties were self-acquired and had also failed to prove that hisbusiness, from the proceeds of which he claimed to have purchased thesuit schedule properties, was conducted without the aid of family funds.

9. The Trial Court also rejected the appellant’s contention that hewas the sole owner of the schedule suit properties by relying upon theevidence of DW3 advocate. DW3 had deposed that he advised the originaldefendant no.3 to purchase the said properties in the name of the appellantsince the original defendant No.3 was aged and resided in the village,and since the parties were living as members of an undivided joint family.The Trial Court also relied upon evidence which showed that the originaldefendant No.3 had taken out loans and paid interest in that regard, forsome of the schedule suit properties. The Trial Court reasoned that ifthe appellant was indeed the absolute and independent owner of theproperties, then there was no reason for the original defendant No.3 tomake any payments for the said properties. Additionally, evidence onrecord established that various rent receipts for the businesses being runon the scheduled properties had been issued in the name of the father of A

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Aplaintiff (original defendant No.3) and appellant original defendant No.1,thus proving that they were engaged in joint family businesses and notindependently run by the appellant. The Trial Court also noted that theappellant had failed to explain as to why the original defendant No.3 hadsided with the stance taken by the other respondents and not with theappellant. These factors established that the suit scheduled propertiesBbelonged to the joint family, rather than the appellant. Additionally, theproperties in Schedule C to the plaint were admittedly joint familyproperties.

10. The Trial Court also found that the village panchayat had alreadyeffected a prior partition of certain properties, including those set out inCSchedules A and B to the suit, between the parties, which indicated thatsuch properties belonged to the joint family. On the basis of the aforesaidfindings, the Trial Court ordered that the suit schedule properties bepartitioned amongst the parties, with the appellant, respondent No.1 andrespondent No.2 each getting 5/12[th] share and respondent Nos.3 to 5Dgetting remaining 1/12[th] share in the suit schedule properties. The TrialCourt also ordered an enquiry into the mesne profits payable to respondentNo.1.

11. Aggrieved by the decision of the Trial Court, the appellantpreferred an appeal to the High Court of Karnataka being RFA No. 456Eof 2002. In its judgment dated 7[th] September, 2004, the High Courtrecorded that the contest was only in regard to the properties set out inSchedules A and B to the plaint and accordingly, upheld the findings ofthe Trial Court in that regard. The High Court noted the submissions ofthe plaintiff that although the properties had been purchased in the nameof the appellant, the said purchases were done during the continuation ofFthe joint family status. The properties had been purchased with the helpof loans and the interest on the same was, admittedly, being serviced bythe original defendant No.3 and not by the appellant. The license of thebusiness being conducted on the suit schedule property was in the nameof respondent No.2, and the lease was taken in the name of the originalGdefendant No.3, while the appellant was merely managing the business.The purported businesses of the appellant were infact jointly conductedby all the parties and the appellant had failed to establish either that hehad any independent business or that he had purchased the suit scheduleproperties without the aid of family funds. The High Court then went onto conclude that the findings of the Trial Court were just and proper andH

thus rejected the appellant’s contentions, although it allowed the appellantto approach the Trial Court for an inquiry as to whether the sale ofagricultural land by the other parties would bind the appellant and topass another preliminary decree in that regard, if necessary.

12. Thereafter, the appellant preferred a review petition beforethe same High Court being R.P. No. 567 of 2005. The said review petitionwas dismissed on 27[th] September, 2006. Hence, the present appeal.

13. We have heard Mr. Shailesh Madiyal, counsel for the appellant.The main contention of Mr. Madiyal is that the High Court dismissed thefirst appeal cursorily without discussing or considering the documentaryor oral evidence produced by the parties. Further, the plaintiff had failedto plead and also to prove that the joint family was in possession of anucleus and which was adequate to fund the purchase of properties atschedule ‘A’ & ‘B’ respectively. Hence, no presumption of jointness ofthe said property can be drawn in this case. It is then urged that both thecourts have failed to consider crucial evidence which established thatthe appellant had paid for the purchase of the schedule suit propertieswith his own, personal funds and hence, was the absolute owner thereof.He also contends that the Trial Court grievously erred in putting theburden of establishing the existence and adequacy of such a nucleus onthe appellant/original defendant No.1 and the High Court ought not tohave supported such an approach. Mr. Madiyal refers to the judgmentsof C. Venkata Swamy Vs. H.N. Shivanna (Dead) by LegalRepresentative & Anr.[1], Madhukar & Ors. Vs. Sangram & Ors.[2],Mudi Gowda Gowdappa Sankh Vs. Ram Chandra RavagowdaSankh[3], G. Narayana Raju (dead) by his Legal Representative Vs.G. Chamaraju & Ors.[4] and Appasaheb Peerappa Chamdgade Vs.Devendra Peerappa Chamdgade and Ors.[5] to buttress hissubmissions.

14. We have also heard Mr. Raghavendra Srivatsa, counsel forrespondent No.1 (plaintiff), who argues that the evidence on record showsthat the members of the family were living as an undivided joint familyand that the schedule suit properties were purchased in the name of the 1 (2018) 1 SCC 604 (paragraph nos.10-11, 13-18)

4 AIR 1968 SC 1276 (paragraph no.3)

5 (2007) 1 SCC 521 (paragraph nos.12-17)

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Aappellant on legal advice but infact the consideration amount was paidfrom the joint family funds. He then contends that it is settled law thatonce admitted or proved that there was a sufficient joint family nucleusout of which the properties could be acquired, thereafter, the presumptionwould arise that the properties are joint family properties. It is then forthe opposing party, in this case, the appellant, to prove that he had acquiredBthe properties out of his own funds. In the present case, the businessconducted from the schedule suit properties were clearly established asjoint family business being run by the family members and acquired outof joint family funds. The appellant failed to impeach the evidence givenby respondent No.1/plaintiff and the existence of the joint family nucleusChad been proved by the respondent No.1/original plaintiff and admittedby the appellant/original defendant No.1.

15. The respondents have relied on Appasaheb PeerappaChamdgade (supra) in support of the submission that when it is provedor admitted that a family possessed sufficient nucleus with the aid ofDwhich the member might have made the acquisition, the law raises apresumption that it is a joint family property and the onus is shifted to theindividual member to establish that the property was acquired by himwithout the aid of the said nucleus. Additionally, reliance is placed onV.D. Dhanwatey Vs. Commissioner of Income Tax, M.P., Nagpur[6]for the same proposition. While, refuting the argument that the HighECourt cursorily dismissed the first appeal without adverting to the relevantpoints and evidence on record, it is urged by the respondents that theHigh Court after noticing the relevant aspects was pleased to uphold thefinding of fact recorded by the Trial Court being convinced that thesame was just and proper. It was unnecessary for the High Court toFrestate the effect of the evidence or reiterate the reasons given by theTrial Court as observed by a three judge Bench in the case of SantoshHazari Vs. Purushottam Tiwari[7] and U. Manjunath Rao Vs. U.Chandrashekar and Another[8].

16. After cogitating over the rival submissions made during theGelaborate arguments by the respective counsel and who had invited ourattention to the pleadings and evidence on record, we deem it toappropriate to relegate the parties before the High Court for consideration 6 (1968) 2 SCR 62(paragraph nos.4 and 5)

H8 (2017) 15 SCC 309

of the first appeal afresh. We say so for more than one reason. The firstis that, the High Court has disposed of the first appeal by a crypticjudgment. For, the first five paragraphs of the impugned judgment areonly reproduction of the submissions made by the counsel for theconcerned parties. After doing so, in paragraph no.6 of the impugnedjudgment, the High Court straightaway proceeded to affirm the opinionof the Trial Court that the suit properties forming part of Schedule A andSchedule B to the plaint, are the joint family properties. It is apposite toreproduce paragraph nos.6 and 7, whereby the first appeal has beendisposed of. The same read thus:

“6. I find no merit in the appeal in so for as A and B schedulepropertied are concerned. The opinion of the trial court that theyare the joint family propertied is sound and proper. But in respectof the sales of agricultural lands made by the defendants No and3 and plaintiff. I feel that the appellant can make another applicationbefore the trial court for an enquiry to find out whether theimpugned sales would bind the appellant. To that extent, theappellant can pursue his remedy for another preliminary decreebefore the trial court.

7. In so far as A and B schedule propertied are concerned thefinding of the trial court is sound and proper, Accordingly, theappeal is disposed of.”

17. In a recent decision of this Court in U. Manjunath Rao (supra),the Court after adverting to Santosh Hazari (supra), Sarju PershadRamdeo Sahu Vs. Jwaleshwari Pratap Narain Singh and Ors.[9],Madhukar (supra), H.K.N. Swami Vs. Irshad Basith (Dead) by LRs.[10]and State Bank of India and Another Vs. Emmsons InternationalLimited and Another[11] went on to observe thus:

“11. ……………Thus, in the first appeal the parties have theright to be heard both on the questions of facts as well as on lawand the first appellate court is required to address itself to all theaspects and decide the case by ascribing reasons.

12. In this context, we may usefully refer to Order 41 Rule 31CPC which reads as follows:

9 AIR 1951 SC 120 (paragraph no.15)

11 (2011) 12 SCC 174

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“ORDER 41

APPEALS FROM ORIGINAL DECREES

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31. Contents, date and signature of judgment.—Thejudgment of the appellate court shall be in writing and shallstate—

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and

(d) where the decree appealed from is reversed or varied, therelief to which the appellant is entitled, and shall at the time that it is pronounced be signed and datedby the Judge or by the Judges concurring therein.”

13. On a perusal of the said Rule, it is quite clear that the judgmentof the appellate court has to state the reasons for the decision. Itis necessary to make it clear that the approach of the first appellatecourt while affirming the judgment of the trial court and reversingthe same is founded on different parameters as per the judgmentsof this Court. In Girijanandini Devi[12], the Court ruled that whileagreeing with the view of the trial court on the evidence, it is notnecessary to restate the effect of the evidence or reiterate thereasons given by the trial court. Expression of general agreementwith reasons given in the trial court judgment which is under appealshould ordinarily suffice. The same has been accepted by anotherthree-Judge Bench in Santosh Hazari[13]. However, while statingthe law, the Court has opined that expression of general agreementwith the findings recorded in the judgment under appeal shouldnot be a device or camouflage to be adopted by the appellatecourt for shirking the duty cast on it. We are disposed to think, theexpression of the said opinion has to be understood in properperspective. By no stretch of imagination it can be stated that thefirst appellate court can quote passages from the trial courtjudgment and thereafter pen few lines and express the view thatthere is no reason to differ with the trial court judgment. That is 12 AIR 1967 SC 1124

not the statement of law expressed by the Court. The statementof law made in Santosh Hazari has to be borne in mind.

14. In this regard, a three-Judge Bench decision in Asha Devi v.Dukhi Sao[14] is worthy of noticing, although the context wasdifferent. In the said case, the question arose with regard to powerof the Division Bench hearing a letters patent appeal from thejudgment of the Single Judge in a first appeal. The Court held thatthe letters patent appeal lies both on questions of fact and law.The purpose of referring to the said decision is only to show thatwhen the letters patent appeal did lie, it was not restricted to thequestions of law. The appellant could raise issues pertaining tofacts and appreciation of evidence. This is indicative of the factthat the first appellate court has a defined role and its judgmentshould show application of mind and reflect the reasons on thebasis of which it agrees with the trial court. There has to be an“expression of opinion” in the proper sense of the said phrase. Itcannot be said that mere concurrence meets the requirement oflaw. Needless to say, it is one thing to state that the appeal iswithout any substance and it is another thing to elucidate, analyseand arrive at the conclusion that the appeal is devoid of merit.”

In another recent decision in C. Venkata Swamy (supra), onceagain this Court reiterated the settled legal position regarding the purportof power of the appellate court coupled with its duty, under Section 96 ofthe Code, while deciding the first appeal, by adverting to decisions inKurian Chacko Vs. Varkey Ouseph[15], Santosh Hazari (supra), H.K.N.Swami (supra), Jagannath Vs. Arulappa and Another[16], B.V. Nageshand Another Vs. H.V. Sreenivasa Murthy[17], S.B.I. (supra) and Unionof India Vs. K.V. Lakshman and Others[18]. The court, even in thisreported case relegated the parties before the High Court forreconsideration of the first appeal afresh.

18. We are conscious of the fact that in the present case the suitcame to be filed by the respondent No.1 as back as in 1982 and that thepresent appeal has remained pending in this Court from 2009, againstthe impugned judgment of the High Court. We, at one stage were 14 (1974) 2 SCC 492

15 AIR 1969 Kerala 316

17 (2010) 13 SCC 530 (paragraph nos.3 and 5)

18 (2016) 13 SCC 124

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Apersuaded to consider and examine the matter on its own merits insteadof relegating the parties before the High Court. But, it is noticed that theappellant has raised formidable issues on facts as well as on law whichought to receive proper attention of the High Court, in the first instancein exercise of powers under Section 96 of CPC. Additionally, the HighCourt will have to address the grievance of the appellant that some ofBthe documents, which in the opinion of the appellant are crucial have notbeen even exhibited although the same were submitted during the trial,as noted in the written submissions filed by the appellant. Therefore, wedo not wish to deviate from the consistent approach of this Court in thereported cases that the first appellate court must analyse the entireCevidence produced by the concerned parties and express its opinion inthe proper sense of the jurisdiction vested in it and by elucidating, analysingand arriving at the conclusion that the appeal is devoid of merit.

19. We refrain from analysing the pleadings and the evidence inthe form of exhibited documents and including the non-exhibitedDdocuments and expect the High Court to do the same and arrive atconclusions as may be permissible in law. In other words, we should notbe understood to have expressed any opinion either way on the merits ofthe controversy. The High Court shall decide the first appeal uninfluencedby any observation made in the impugned judgment. As the remandedfirst appeal pertains to year 2002, we request the High Court to disposeEof the same expeditiously.

20. The appeals are accordingly allowed. The impugned judgmentand decree and orders dated 7[th] September, 2004 and 27[th] September,2006 respectively, passed by the High Court of Karnataka at Bangaloreare set-aside and instead remand the RFA No.456 of 2002 to the HighFCourt with the aforementioned directions. No order as to costs. All pendingapplications are disposed of.

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Ankit Gyan

Appeal allowed.

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