P.S. SAIRAM AND ANR.versusP.S. RAMA RAO PISEY AND ORS.

A                           P.S. SATRAM AND ANR.
                                      v.
                       P.S. RAMA RAO PISEY AND ORS.

                                FEBRUARY 4, 2004

B              [Y.K. SABHARWAL AND B.N. AGRAWAL, JJ.]


          Hindu Law:

          Hindu Succession Act, 1956; Explanation to Section 6A and Amendment
C made thereunder vide Karnataka Amendment Act, 1990:
           Suit for partition ofproperty at item Nos. 1, 2, 3 and 4 in the Schedule and
    rendition of accounts ofjoint family business-Defendant No. 1 bequeathing
    property at item No.3 of the Schedule-Challenge to-Trial Court decreed the
D   suit holding that Execution of Will not proved and that properties at item Nos. 2,
    3 and 4 acquired by defendant No. 1 (father ofplaintijj) out of the joint family
    business-However, property at item No.4 not available for partition as it was
    sold-Affirmed by High Court but applicability ofSection 6A ofthe Act denied
    and decree modified accordingly-On appeal, Held: presumption that property
    in the nmne ofan individual member belongs to joint family cannot be applied
E   to business-No investment in the business from joint family fund-User of the
    property for business purpose does not prove to be detrimental to the joint family
    property-No evidence to show any blending-Hence, business carried on by
    defendant No. 1 cannot be treated as joint family business-Therefore, the
    properties acquired out of income of the business become self acquired
    properties-Defendant No. I/Testator could bequeath such property-Testator
F   died during pendency ofsuit, his share devolved by inheritance upon his heirs-
    Decreel share to heirs accordingly modified

          Execution of Will-Requirements of-Held: Defendant No. I!Testator put
    his Left Thumb Mark instead ofsigning it due to nervous weakness-Evidef?ce
G   of defence witness corroborates reasons furnished thereto-Hence· Will duly
    executed by defendant No. I.

          Hindu Succession Act; Section 6A-Amendment made thereunder-                     (

    Applicability of-Held: In absence of appeal challenging decision of High
    Court on applicability of the amendment, correctness of the decision could not
H                                           98
                   P.S. SAIRAM v. P.S. RAMA RAO PISEY                       99
 be gone into.                                                                    A
        Appellant-plaintiff filed a suit for partition of joint family property
  and for rendition of accounts in respect of joint family business carried
  on by defendant No.I (father of the plaintiff). Defendant No.I had one son
  and two daughters from his first wife and one son (defendant No.2) and
  four daughters from his second wife (defendant No.l(e). He executed a           B
  Will bequeathing property at item No.3 of the Schedule in favour of
  defendant nos. l(e) and 2. During pendcncy of suit, defendant No.I died
  and his first wife predeceased him. Trial Court held that defendant No.I
  had started joint family business in the property at item No.I of the
  Schedule and later acquired properties at item Nos. 2, 3 and 4 frO!ll the       C
  income of joint family business. And that defendants failed to prove due
  execution of the Will. However, defendant Nos. l(a) and l(b) (daughters
  from first wife) were not entitled to any share in the property in terms of
  Section 6A of the Hindu Succession (Karnataka Amendment) Act as
  having married before coming into force of the Karnataka Amendment
  in the Hindu Succession Act. Trial Court decreed the suit for partition         D
  excepting property at item No.4 which was sold by defendant No. I.
  Aggrieved, both the parties filed appeals. High Court affirmed the findings
  of the Tria.1 Court holding Section 6A of the Act not applicable and
  accordingly modified the decree and the share in the properties. Hence
. the present appeal.
                                                                                  E
       It was contended for the appellants that .the business carried on by
 the defendant on the joint family property was not joint family business;
 that the properties acquired out of the income of the business therefore
 became self-acquired properties of defendant no.I; that the Will was duly
 executed and the plaintiff/respondents were not entitled to any share in         F
 the property acquired by defendant No.lfrom income of the business; and
 that upon the death of defendant No.I, plaintiff was entitled to I l/40th
 share in the property at item No.I and I/10th' share in the property at
 item No. 2.

       On behalf of respondents, it was submitted that since business             G
 belonged to joint family, property acquired out of its income became joint
 family property and liable for partition; and that his sisters were entitled
 to get due share in the property since provisions of Karnataka Amendment
 Act were applicable.

      Partly allowing the appeal, the Court                                       H
    100                   SUPREME COURT REPORTS                   (2004] 2 ~.C.R.

A         HELD: 1.1. It is well-settled that the immovable property \vhich
    stands in the name of individual member, it is presumed to be belonging
    to joint family, provided it is proved that the joint family had sufficient
    nucleus at the time of its acquisition, but no such presumption can be
    applied to business.·(106-A, Bl

B          V.D. Dhanwatey v. The Commissioner of Income Tax, M.P. Nagpur,
    ( 19681 2 SCR 62, followed.

         G. Narayanci Raju v. G. Chamaraju and Ors.; 119681 3 SCR 464 and
    Mis. Piyare la/ Adishwar Lal v. The Commissioner of Income Tax, Delhi,
C   1196013SCR669, relied on.

          1.2. The joint family had not invested a single farthing in the
   business at any point of time as it was started by defendant No. I by raising
   loans from the market. Even according to the plaintiff, only a portion of
   the property was leased to a person in the year 1948 who vacated it in
D ·the year 1952. But it is not known during this period what was the rental
   of the said portion. There is no evidence to show whether, the said portion
   was let out to anybody or. remained vacant thereafter. So far as the other
   portion of the property is concerned, in one part only, defendant No.I was
   carrying on business. The Trial Court found that defendant No.I along
   with his first wife and children from her, including the plaintiff/son, resided
E therein till the year 1969 when his first wife died and the plaintiff was
   also carrying on his separate business in the very same property. It further
   found that as defendant No. I married with defendant No. I (e), differences
   cropped up between the plaintiff and his father (defendant No.I) as a result
   of which defendant No. I shifted to another house and resided therein with
F his second wife. These facts amply prove that the joint family property
   was being used as business premises not only by karta (defendant No;l)
   but !tlso by junior member of the joint Hindu family. There is oo material
   whatsoever to show that user of the same as business premises by
   defendant no.I was in any manner detrimental to the joint family property.
   The business carried on by defendant No.I in the property described as
G item No.I in the Schedule cannot be treated fo be joint family business
   and the same remained his separate business throughout, especially in view
   of the fact that there was neither any case nor evidence to show any
   blending. Hence, properties enumerated as item Nos. 2, 3 and 4 in the
   Schedule acquired out of income of the said business, have got to be treated
H as self acquisitions of defendant No. I. Since property at item No. 3 was
                          P.S. SAIRAM v. P.S. RAMA RAO PISEY                       101
        self-acquisition of defendant No. I, both the Courts below were not justified     A
        in coming to the conclusion that defendant No.I had no right to execute
        the.Will. [108-A-HJ

              1.3. It is true that defendant No. I was a liter.ate person, but he put
        his Left Thumb Mark on the Will, reason therefore finds mention in the
        Will, Ext. D.13 itself, wherein it was specifically mentioned that as hands       B
        of defendant No. t were shaking due to nervous weakness, he was putting
        his LTM on the Will. Even on the Vakalatnama (Ext. P.28) defendant No.I
        put his L TM, but did not sign it. The reason assigned in the Will for the
        testator's not signing it and putting his LTM is not only corroborated by
        the evidence of DWs.t and 3, i}ut also by the fact that he put his LTM on         C
        the Vakalatnama (Ext. P.28) as well. These facts show that the first ground
        which weighed with the Courts below for holding that the defendants failed
        to prove due execution of the Will was unwarranted. [I 09-B, C, DJ

              1.4. The plaintiff had filed a suit for partition against his father, who
        was the testator, there was nothing unnatural in the testator bequeathing         D
        item No.3 property to his second wife, defendant No. l(e), creating life
        estate in her favour and thereafter to her son, defendant No.2; that in the
        Will it has been recited that the testator had already purchased a house
        in the name of his first wife where his children from her, i_ncluding the
        plaintiff, were residing and he gave the said house to his four daughters
        from the first wife. This shows that conduct of the testator in bequeathing       E
        item No.3 property under the Will in favour of his second wife and his
        son from her cannot be said to be unnatural. Hence, defendant No.I duly
        executed the Will in question and consequently, the plaintiff shall not be
        entitled to claim any share in the property described at item No.3 of the
        Schedule. [t 10-B, C, DJ                                                          F
              1.5. Explanation 1 to Section 6 of the Amendment Act lays down
        that for the purposes of this Section, the interest of a Hindu Mitakshara
        coparcener shall be deemed to be the share in the :>roperty that would
        have been allotted to him if a partition of the property had taken place
        immediately before his death, irrespective of the fact whether he was             G

'   .   entitled to claim partition or not. This shows that for determining the
        interest of a male Hindu, a notional partition has to be assumed and the
        share in the joint family property, which could have been allocated .to him
        in the notional partition, would devolve upon his heirs. [110-E, Fl

             1.6. In the present case, if a partition would have taken place,             H
    102                     SUPREME COURT REPORTS                     [2004) 2 S.C.R.

A   defendant no.I would have been allotted I/4th share in the joint family
    property and 1/4th share each would have gone to his two sons - plaintiff
    and defendant no.2 and V4th share to defendant no.l(e), who was mother
    of defendant no.2. Since defendant no~ I died during the .Pendency of the
   .suit, his I/4th .share, which he would have got in the notional partition,
    would .devol;·e ·by inheritance u~on his ten heirs, viz. plaintiff and.
B ·defendants. Accordingly, impugned judgments ~nd decrees are modified
    to· the extent that the plaintiff shall be entitled to 11/40th share in the
    property described at item no.1 and 1/lOth sh~re in the property described
    at item "no.2, but he shall not be entitled to any share in. the property
    described at item no.3oftheSchedule. ll11-B, El
c        .·1. 7; hi the. absence of any appeal against the decision of the High
    Cour't reducing the share of the plaintiff and his sisters after holding that
    the. Karnataka Amendment was not applicable, it is not open to the
    pla.intiff to challenge the said decision as by its reversal, the share of
    plaintiff and his sisters would be enhanced, Therefore, it is not possible
D   for this Court to go into the correctness of the decision of the High Court
    regarding applicability of the Karnataka.Amendment in this appeal .
                                                                 .1110-H; 111-AI        .   '
            CIVIL APPELLATE JURISDICTION                    Civil Appeal No. 817 of
    2002.
E                                                 ..   ·.    .         .·.   .


         From the Judgment and Order dated 8.3.2001 of the Karn~taka High
    Court in R.F.A. No. 720 of 1997.

            Uday U. Lal it and Rajesh l\1ahale for the Appellants.

F        S.K. Kulkarni, M. Gireesh Kumar, Ankur S. Ktilakarni and Kh. Nobin
    Singh fot the Respondent No.3.

            Joseph. Pookkatt and Prashant Kumar for the Respondents Nos. 6-8.

            The Judgment of the Court was delivered by
G
           B.N. AGRA WAL, J. In this appeal by special leave, appellants, who
  · were defendant nos. l (e) and 2, have assailed the judgment rendered by
    Kam.ataka High Court in appeals whereby 1t has been directed that plaintiff
    is entitled to l l/30th share in the properties described as item Nos. 1,2 and
    3 in the Schedule appended to the plaint and thereby modifying the decree
H of the trial court which directed that the plaintiff shall be entitled to l /8th
         P.S. SAIRAM v. P.S. RAMA RAO PISEY [AGRAWAL, J.]                 103
share in the said properties.                                                   A
        Plaintiff filed a suit for partition claiming I/7th share in.the properties
 described as item Nos. I to 4 in the Schedule and for rendition of accounts
 in relation to joint family business carried on by defendant no. I in the name
 and style of Mis Pissey and Sons and his case, in short, was that one P.Eswar
 Rao had three marriages and from the second marriage, he had two sons, B
namely, P.E.Sadasiva Rao (defendant No.I) and P.E.Panduranga Rao. From
other two marriages also, P.Eswar Rao had children and he acquired various
 properties during his life time which were his self acquisitions but the same
were put in common hotchpotch. On 29th November, 1947, P.Eswar Rao
executed a deed of family arrangement whereby properties bearing holding C
 No. 35 in Commercial Street in. the city of Bangalore (described as item no.
 I in the Schedule) and holding No. 262 situate in Cavalry Road within the
same city were jointly allotted to P.E.Sadasiva Rao (defendant No. I) and his
 brother P.E.Panduranga Rao. Subsequently, a suit was filed by P.E.Panduranga
 Rao in which a compromise was arrived at and item No. 1 property was
 allotted to defendant No. I whereas the other property was allotted to D
 P.E.Panduranga Rao under a compromise decree dated 22nd January, 1963
passed in OS No. 56 of 1961. P.E.Sadasiva Rao had two marriages. From his
first wife -Godavari Bai, he had a son P.S.Ramarao Pissey, who is the plaintiff,
besides four daughters viz .. P.Asha Devi [defendant no. I(a)], P.Jayalakshmi
[defendant no. I(b)], P.S. Lalitha [defendant no. l(c)] and P.S.Shantha E
[defendant no. l(d)]. From second wife- Sumitra Bai [defendant no. l(e)],
P.E.Sadasiva Rao had a son, namely, P.S. Sai Ram [defendant no. 2] besides
three daughters, namely,, Rekha [defendant no, l(f)], Mala [defendant no.
 l(g) and Prabha [defendant no. l(h)]. Defendant No . I started a joint family
business of textiles and tailoring in a portion of .item No. I property and out
of the income of the said business, he acquired item Nos. 2,3 and 4 properties. F
Further case of the plaintiff was that even though the suit properties belonged
to joint family of defendant No. I and his two sons, namely, the plaintiff and
defendant No.2, defendant No. I executed a deed of settlement on 23rd
February, I 978 whereunder he settled item no. · i property in· favour of
defendant No. 2. Thereafter, defendant No.2 obtained a Will executed by
defendant No. I on 29th January, I 993 bequeathing thereunder item No.3 G
property in favour of defendant nos. l(e) and 2 which was fabricated one. As
the parties were having difficulty in joint enjoyment of the properties, the
same necessitated filing of the present suit.

      In the said suit, the defendants filed written statement contesting the   H
    104                    SUPREME COURT REPORTS                     [2004] 2 S.C.R.

A case of the plaintiff. According to them, item No. I property was self acquisition
  of P.Eswar Rao and, consequently, of defendant no. I, who, after raising
  funds from the market, started his separate business of tailoring in the said
  property \.\'.ith which the joint family had absolutely no connection whatsoever,
  more so when the joint family was neither possessed of any fund nor any
  fund was at all invested in the said business by it at any point of time.
B According to them, out of the income from.the said business, defendant No. I
  acquired other properties which are described as item Nos. 2,3 and 4 in the
  Schedule and, therefore, the same are also his self acquisitions, consequently,
  he:had every right to deal with it. Accordingly, deed of settlement dated 23rd
  February, 1978 and the Will dated 29th January, 1993 executed by defendant
C no.· I were genuine and valid and, consequently, the plaintiff was not entitled
  to claim any share in the suit properties. It may be stated that during pendency
  of suit, defendant No. I died in February, 1994 and as his first wife predeceased
  him, four daughters from her were impleaded as defendant Nos. l(a) to l(d),
  second wife as defendant No. I (e) and three daughters from her as defendant
  Nos. l(t) to l(h).
D
         During trial, both the parties led evidence in support of their respective
  cases and upon conclusion of trial, the learned Civil Judge recorded findings
  that property described as item No. I in the Schedule was a joint family
  property, business started therein by defendant No. I was joint fami_ly business
E and as out of its income, item Nos. 2,3 and 4 properties were acquired, it also
  became the joint family property. The deed of family settlement dated 23rd
  February, 1978 was held to be invalid. It was further held that the defendants
  failed to prove due execution of the Will. The court held that Section 6A of
  Hindu Succession (Karnataka Amendment) Act, 1990 [hereinafter referred to
  as 'the Karnatal-.a Amendment'] which conferred equal right to a daughter in
F co-parcenary property, was applicable in the present case, but defendant Nos.
   l(a) and l(b), two of the daughters of defendant No.I from his first wife,          -,
  were not entitled to any share in the suit properties, they having married
  before the coming into force of the Karnataka Amendment. In view of the
  aforesaid findings, the trial court decreed suit for partition in relation to item
G Nos. I, 2 and 3 properties in which it was directed that plaintiff was entitled
  to I/8th share. No decree· for partition was passed in relation to item No. 4
  property as the same was not available for partition in view of the fact that
  prior to the date of filing of the suit, it had already been sold by defendant
  No. I to one Smt. Adilaxmi, who was not made party to the suit. It was               ·--
  further directed that plaintiff was entitled to a decree for rendition of accounts
H in relation to business and the amount shall be ascertained at the time of
              P.S. SAIRAM v. P.S. RAMA RAO PISEY [AGRAWAL. .I.]                105

    passing of final decree.                                                         A
           Challenging the decree of trial cou11, two appeals were preferred, one
    by the plaintiff and another by defendant No.2 and his mother-defendant
    No. I (e) before the High Court of Karnataka. The High Court confirmed the
•   findings of the trial court on all the issues, excepting applicability of Section
    6A of the Karnataka Amendment in relation to which it has been categorically B
    held that it shall have no application in the case in hand and accordingly
    daughters of defendant no. I could not claim right in coparcenery property
    as a coparcener and in view of this, the judgment and decree of the trial court
    granting !/8th share to the plaintiff in the properties described as item Nos.
    I to 3 in the Schedule have been modified and it has been held that the C
    plaintiff and defendant No.2 will be entitled to I I/30th share each in the
    properties described as item Nos. I to 3 in the Schedule and each of the
    seven daughters and widow of defendant no. I shall be entitled to l/30th
    share therein. Hence, this appeal hy special leave.

           Mr. U.U. Lalit, learned counsel, in support of the appeal submitted that D

,    the High Court was not justified in affirming findings of the trial cou11 that
     the business which defendant No. I was carrying on was not his separate
     business but the same belonged to joint family. It was further submitted that
    as the business was separate one of defendant no. I, item Nos. 2, 3 and 4
     properties acquired out of income of the said business, became his separate
     properties in which the plaintiff had no right to claim partition. Further, it E
    was submitted that the finding that the defendants failed to prove due execution
    of the Will is vitiated as the same was arrived at without properly considering
    the evidence adduced on behalf of the parties and consequently, the plaintiff
     was not entitled to any share in item No. 3 rroperty. Lastly, it was submitted
    that upon the death of defendant No. I, the plaintiff was entitled to only 11/ p
    40th share in item No. I property in terms of Section 6 of the ,Hindu Succession
    Act, 19.56 (hereinafter referred to as 'the Act') and III 0th· share in item no.
    2 property, but the High Court committed an error in holding that he was
    entitled to I I/30th share. On the other hand, learned counsel appearing on
    behalf of the plaintiff/respondent submitted that the courts below were justified
    in holding that the business belonged to joint fam'ily and the properties acquired G
    out of its income became joint family properties and the plaintiff was entitled
    to claim partition therein. So far as the Will is concerned, it was submitted
    that the two courts below recorded the finding after duly considering the
    evidence adduced on behalf of the parties and no interference is called for.
    Lastly, it was submitted that the High Court was not justified in reversing H
    106                   SUPREME COURT REPORTS                     [2004] 2 S.C.R.

A decision of the trial court regarding applicability of Karnataka Amendment
    holding the same to be not applicable and thereby reducing share of the
    plaintiff and his sisters in the suit properties.

        Crucial question in the present appeal is as to whether business which
  was conducted by defendant No. I was his separate business or it belonged
B to joint family, consisting of himself and his sons. It is well settled that so
  far as immovable property is concerned, in case the same stands in the name
  of individual member, there would be a presumption that the same belongs
  to joint family, provided. it is proved that the joint family had sufficient
  nucleus at the time of its acquisition, but no such presumption can be applied
C to business. Reference in this connection may be made to a decision of this
  Court in the case of G.Narayana Raju v. G. Chamaraju and Ors., [1968] 3
  SC.R 464 wherein in a suit for partition defence was taken that business of
  Ambika Stores was separate business of defendant as the business did not
  grow out of joint family funds or at least by efforts of members of joint
  family which was accepted by the trial court as well as the High Court. \\hen
D the matter was brought to this Court in appeal, upholding the judgment of the .
  High Court, the Court observed thus at page 466:-

            "It is well established that there is no presumption under Hindu Law
            that a business standing in the name of any member of the joint
            family is a joint family business even if that member is the manager
E           of the joint family. Unless it could be shown that the business in the
            hands of the coparcener grew up with the assistance of the joint
            family property or joint family funds or that the earnings of the
           .business were blended with the joint family estate, the business remains
            free and separate."
F        In the case of Mis Piyare Lal Adishwar Lal v. The Commissioner of
    Income Tax, Delhi [1960] 3 SCR 669, similar q~estion had arisen before this
  Court while hearing an appeal arising out of order passed by Punjab High
  Court on a reference made under Section 66(1) of the Indian Income Tax
  Act, 1922. In that case, one Adishwar Lal was Treasurer of a bank who had
G two sons and they were members of Hindu Undivided Family. One of his
  sons, namely, Sheel Chandra, was employed as Overseer in the bank during
  the life time of his father and upon father's death, he was appointed as
  Treasurer in the bank on a m?nthly salary of Rs. I, 750. Sh eel Chandra
  furnished, by way of security to the bank, certain properties belonging to
  Hindu Undivided Farnily c~n·sisting ~f himself and his younger brother and
H in the acc~unting year. 1950-51, he received from the bank a sum of Rs.
          P.S. SAIRAM '" P.S. RAMA RAO PISEY [AGRAWAL, J.]                 107

  23,286 as a Treasurer. The Income-tax Authorities· considered that this sum A
  was not the individual income of Sheel Chandra as salary but was part of
  income of the Hindu Undivided Family and taxed it as such on account of
  the fact that he was appointed as a Treasurer because his father was Treasurer
  in the bank before him and joint family property was furnished by way of
  security. Tne Assessing Authority came to the conclusion that as the
  emoluments could not be said to have been earned without detriment to the B
  family property, the same could be taxed as income in the hands of Hindu
  Undivided family. The decision of the Assessing Authority was upheld by
  the Income-tax Appellate Tribunal as wel) as the High Court on a reference.
  On appeal being preferred before this Court, the decision was reversed and
  it was laid down that giving joint family property in security for the good C
  conduct of a member of the family employed on a post was sufficient to
  make the emoluments of the post to be income in the hands of joint family
  only if it were shown that the s.aid act was detrirnental to the family property.
  In the said case, as the act of furnishing security was not found to be
. detrimental to Jhe family property, the Court 11eld that the income. received
  bySheel Chandra was not income of the Hindu Undivided Family but was · D
  his individual income.

    In the case of V.D.Dhanwatey v. The Commissioner of Income Tax,
MP.Nagpur, [1968] 2 SCR 62, a Constitution Bench of this Court was also
considering an appeal arising out of an order passed by the High Court on E
a reference. In that case, joint family funds were invested in a partnership
business which enabled karta of the joint family to become a partner and
when the remuneration was paid to him, it was assessed as income of the
joint family and the view taken was upheld by this Coutt holding that as
 investment of the joint family funds in the partnership enabled a kart" to
become a partner and there being real and sufficient connection between that F
 investment and the remuneration paid to the karta, the same has to be treated
as income of the joint family. The Constitution Bench noticed the decision
of this Court in the case of Mis Piyare Lal Adishwar Lal (supra) and, while
approving the ratio of that case observed that as the remuneration earned by
the karta was detrimental to the Hindu Joint Family funds, the High Court G
was justified in answering the reference against the assessee and in favour of
the Revenue by holding that remuneration received by the karta was taxable
in the hands of Hindu Undivided Family.

      The question to be examined in the present case is~ to whether mere
user of the joint family property (item no. I. property), as a business premises   H
                                                                                      -t·
    108                    SUPREME COURT REPORTS                  · [2004] 2 S.C.R.

A by defendant No. I, who was karta of the joint family, for running his separate
   business can be said to be in any manner detrimental to the joint family
   property? Undisputably, the joint family had not invested a single farthing in
   the business at any point of time as it was started by defendant No. I by
   raising loans from the market. Even according to the plaintiff, only a portion
  of said property was leased to one Md. Sharif in the year 1948 who vacated
B it in the year 1952. But it is not known during this period what was the rental
   of the said portion. There is no evidence to show whether after 1952, the said
   portion which was vacated by Md. Sharif was let ·out to anybody or remained
   vacant. So far as the other portion of the said property is concerned,
   undisputedly, in one part only; defendant No. I was carrying on business.
C Apart from that, the trial court found that defendant No. I along with his first
   wife and children from her, including the plaintiff, resided therein till the
   year 1969 when his first wife died and the plaintiff was also carrying on his
   separate business in the very same property. It further found that as in the
  .year· 1970, the defendant No. I married Sumitra Bai-defendant No. l(e),
C differences cropped up between the plaintiff and his father as a result of
   which defendant No. I shifted to another house and resided therein with his
   second wife. These facts amply prove that joint family property was being
   used as business premises not only by karta but also by junior member of the
  joint Hindu family. There is no material whatsoever to show that user of the
  same as business premises by defendant no. I was in any manner detrimental
E to the joint family property. This being the position, we have no option but
  to hold that the business carried on by defendant No.: in the property described
  as item No: I in the Schedule cannot be treated to be joint family bus_iness and
  the same remained his separate business throughout, especially in view of the
  fact that there was neither any case nor evidence to show any blending. In
  view of our conclusion aforementioned that the business was separate one of
F defendant No.I, properties enumerated as item Nos. 2,3 and 4 in the Schedule
  acquired 'out of income of the said business, have got to be treated self
  acquisitions of defendant No. I.

          ·Turning now to the second submission of learned counsel appearing on
G behalf of the appellants, it has to be seen as to whether the findings recorded
    by the two· cou11s below to the effect that item ·no. 3 property being joint
    family property, defendant no. I Sadasiva Rao had no right to execute the
    Will in question and defendants failed to prove the due execution of the Will
    by Sadasiva Rao were vitiated. In view of our conclusion aforesaid that item
    no. 3 property was self-acquisition of defendant no. 1, we have no difficulty
H   in holding that both the courts below were not justified in coming to the
              P.S. SAIRAM v. P.S. RAMA RAO PISEY [AGRAWAL, J.]                  109

    conclusion that defendant no. r had no right to execute the Will.                  A
           The courts below have recorded finding agairst the defendants regarding
    execution of the Will, principally, on two grounds; defendant no. l, though
    he was literate, did not put his signature, but put his Left Thumb Mark
    [LTM) on the Will in question and out of the three attesting witnesses, only
    K.S. Panduranga Rao was examined as DW.3 and the other two witnesses, B
    namely, Vittal Rao and Rajanna, were not examined. It is true that Sadasiva
    Rao was a literate person, but he put his LTM on the Will reason therefore
    finds mention in the Will, Ext. D. I 3 itself, wherein it was specifically
    mentioned that as hands of Sadasiva Rao were shaking due to nervous
    weakness, he was putting his LTM on the Will. Even on the Vakalatnama C
    (Ext. P.28) defendant no. I put his LTM, but did not sign it. DW.3 stated in
    his evidence that as Sadasiva Rao was diabetic patient and his hands were
    shivering, he did not sign the Will but put his LTM thereon. The testator,
    who died during the pendency of the suit, as stated above, was examined as
    DW. l and in his evidence he had stated that because of nervous disability he
    was. not in a position to put his signature on the Will. Thus, the reason D
    assigned in the Will for the testator's not signing it and putting his LTM is
    not only corroborated by the evidence of DWs. l and 3, but also by the fact
    that he put his LTM on the Vakalatnama [Ext. P/28) as well. These facts
    show that the first ground which weighed with the courts below for holding
    that the defendants failed to prove due execution of the Will was unwarranted. E

           So far as the other ground is concerned, it was stated by DW.3 that on
    being called by the testator, he went with him to the office of lawyer along
    with the other two witnesses, namely, Vittal Rao and Rajanna, and there, in
    his presence and in the presence of other attesting witnesses, contents of the


-   Will were not only read over to the testator, but he himself also had gone
    through its contents. He further stated that the testator was keeping good
    health and was mentally sound. The witness then stated that the testator put
    his LTMs on each and every page of the Will in his presence which were
                                                                                       F



    marked as Exts. D.13(a) to D. I 3(j) and he attested the same and put is
    signature on the Will which was marked as Ext. D. l 3(k). He thereafter stated
    that other two attesting witnesses also put their signatures on thcr Will and he   G
    identified them which were marked as Exts. D.13(1) and D.13(m). DW.3
    lastly stated that he was instructed to go to the Sub-Registrar's office two
-   days after the execution of the Will where he presented himself before the
    Sub-Registrar and there in his presence the testator put his LTM, which was
    marked as Ext. D. J 3(n), and he attested the same and his signature. was          H
                                                                                         .    I
                                                                                             -~


    110                     SUPREME COURT REPORTS                     (2004] 2 S.C.R.

A marked as Ext. D.13(p). In our view, there is no infirmity in the evidence of                   \
    this witness and the courts below were not justified in drawing an inference
   against the defendants for not examining the other two attesting witnesses. In
    the case on hand, neither the LTMs of the testator on the Will have been
   denied nor any case has been made out or evidence led to the effect that
    LTMs of the testator were taken on blank papers and same were converted
B . into Will. As the plaintiff had filed a suit for pa11ition against his father, who
    was the testator, there was nothing unnatural in the testator bequeathing item
    no. 3 property to his second wife, defendant no. J(e), creating life estate in
    her favour and thereafter to her son, defendant no. 2. It may be stated that
    in the Will it has been recited that the testator had already purchased a house
C in the name of his first wife where his children from her, including the
    plaintiff, were residing and he gave the said house to his four daughters from
    the first wife. This shows that conduct of the testator in bequeathing item no.
    3 property under the Will in favour of his second wife and his son from her
    cannot be said to be unnatural. In view of the foregoing discussion, we hold
   that the defendants succeeded in proving that Sadasiva Rao duly executed the
D Will in question and, consequently, the plaintiff shall not be entitled to claim
    any share in the property described as item no. 3 in the Schedule.

          Lastly, learned counsel for the appellants submitted that the High Court
   was not justified in holding that the plaintiff was entitled to I I/30th share in
E the joint family property as under the provisions of Section 6 of the Act,
   interest of a male Hindu in the Mitakshara coparcenary property shall not
   devolve by survivorship upo11 the surviving members of coparcenary in case
  .he died leaving behind a female relative specified in class I of the Schedule
   of the Act or a male relative specified therein claiming through such female,
   in which event the said interest shall be inherited by his heirs. Explanation
F I to Section 6 lays down that for the purposes of this Section, 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 the property had taken
   place immediately before his death, irrespective of the fact whether he was
   entitled to claim partition or not. This shows that for detennining the interest
   of a male· Hindu, a notional partition has to be assumed and the share in the
G joint family property, which could have been allocated to him in the notiona.1
   partition, would devolve upon his heirs. Learned counsel appearing on behalf
   of the plaintiff-respondent submitted that as daughters of Sadasiva Rao,
   defendant no. I, by virtue of coming into force of Section 6A of the Karnataka
   Amendment became coparceners and acquired right equal to son in the
H coparcenary property, the High Court was not justified in holding that the
         P.S. SAIRAM v. P.S. RAMA RAO PISEY [AGRAWAL, J.]                  11 I
Kamataka Amehdment shall not be applicable and thereby reducing share of A
the plaintiff-respondent and his sisters. In our view, in the absence of any
appeal against the decision of the High Coun reducing the share of the
plaintiff and his sisters after holding that the Karnataka Amendment was not
applicable, it is not open to the plaintiff to challenge the said decision as by
its reversal, the share of plaintiff and his sisters would be enhanced. Therefore, B
it is not possible for this Couit to go into correctness of decision of the High
Court regarding applicability of the Karnataka Amendment in this appeal,
and, consequently, we refrain ourselves from expressing any opinion thereon.
Thus, the shares of the parties in the joint family property have to be
determined in accordance with the provisions of Section 6 of the Act. In the
present case, if a partition would have taken place, in view of the fact that C
defendant no. 1 had, besides his second wife, two sons, he would have been
allotted I /4th shar~ in the joint family property and I /4th share each would
have gone to the two sons-plaintiff and defendant no. 2, and defendant no.
 I(e), who was mother of defendant no. 2. In view of the fact that defendant
no. I died during the pendency of suit, his l/4th share, which he would have D
got in the notional paitition, would devolve by inheritance upon his ten heirs,
who are plaintiff and defendants. Thus the share of the plaintiff, defendant
no. 2 and defendant no. l(e) in the property described as item no. l in the
Schedule, which belonged to the joint family, would be· l l/40th each and so
far as the seven daughters, namely, defendant nos. l(a) to l(d) and l(t) to
l(h) are concerned, each one of them would be entitled to l/40th share E
therein. In the separate property described as Item No. 2 in the Schedule,
each one of the ten heirs, including the plaintiff, would be entitled to I/10th
share.

      In the result, the appeal is allowed in part, impugned judgments and
decrees are modified to this.extent that the plaintiff shall be entitled to 11/   F
40th share in the property described as item no. 1 and 1/10th share in the
property described as item no. 2, but he shall not be entitled to any share in
the property described as item no. 3 in the Schedule. In the facts and
circumstances of the .case, there shall be no order as to costs.
                                                                                  G
S.K.S.                                                 Appeal partly allowed.