V.K. SURENDRAversusV.K. THIMMAIAH & ORS.

                         [2013] 5 S.C.R. 386


A                         V.K. SURENDRA
                                  v.
                      V.K. THIMMAIAH & ORS.
                  (Civil Appeal No. 1499 of 2004)
                          APRIL 10, 2013.
B
             [G.S. SINGHVI AND SUDHANSU JYOTI
                     MUKHOPADHAYA, JJ.]

        Suit - Partition suit - By daughter - Claiming 1110 share
C in the property of her deceased father - Claiming that the
  property was self-acquired - The 3 sons of deceased stated
  that the property was ancestral - One of the sons D-3 claimed
  a specific share in the property on the strength of a Will
  executed by the deceased - Trial court held that D-3 was
D entitled to the share through th~ Will 7 1-(igty Court decreed the
  suit holding that the property was ancestral and the(efore the
  deceased and his four sons were entitled to equal share i.e.
  1!5th - Thus the four sons were entitled to 11!50th share and
  the five daughters and the sole descendant of one of the
E daughters were entitled to 1!50th share - Held: The High Court
  rightly held that the property was ancestral and not se/f-
  acquired - No interference with the order of High Court is called
  for.

       Plaintiff-respondent No.4 filed a suit for partition and
F separate possession of 1110th share in the suit schedule
  properties. Her case was that the property in question
  was self acquired by her father 'K'. Defendant Nos.1, 2
  and 4 (three out of the four sons of 'K') defended the suit
  claiming the suit property to be ancestral property and
G claimed 1/5 share therein. Defendant No.3 (fourth son of
  'K') claimed that he was entitled to total extent of 32 acres
  55 cents in the property, stating that the same was
  bequeathed in his favour under a Will by 'K'. Defendant
  Nos.5, 6, 7, 8 (the 4 daughters of 'K') and defendant No.9
H                             386
    V.K. SURENDRA v. V.K. THIMMAIAH & ORS.             387


(descendant through fifth daughter of 'K') did not file any    A
written statement. Trial court held that the property was
self-acquired property of 'K' and defendant No.3 was
entitled for the share in the property in question. High
Court decreed the suit holding that the property was
ancestral property and thus was joint family property of       B
'K' and his children and therefore 'K' had no right to
bequeath the property to defendant No.3. Thus, the sons
of 'K' (defendant Nos.1, 2, 3 arid 4) and 'K' himself were
entitled to 1/5th share. Hence daughters of 'K' and
descendant through daughter were entitled to 1/50th            c
share and his sons were entitled to 11/50th share. Hence
the present appeal by appellant-defendant No.3.

    Dismissing the appeal, the Court
     HELD: 1. The appellant who examined himself as            D
DW.4, failed to produce either documentary or oral
evidence to show that the lands were the self-acquired
properties of 'K'. In absence of any division in the family
of 'K' and his sons, the family of 'K' continued to be the
joint family. If a co-parcener of a joint family claims that   E
properties are his self-acquired properties, the burden is
on him to prove that the same are the self-acquired
properties. In that background the High Court has rightly
held that 'K' had no right to change the character of the
joint family properties by transferring the same either        F
 under a Will or a gift to any party without the consent of
the other co-parceners. [Para 14) [395-H; 396-A-C]

     2. In his deposition DW.1 stated that in the year 1976
when 'K' was alive, the names of all his sons were
entered in the Jamabandhi. DW.2, deposed in his G
evidence that the suit schedule properties are the
ancestral properties of 'K'. DW.3, in his evidence has
deposed that the father of 'K' possessed of about 30
acres of wet land and 24 acres of garden land. He further
stated that 'K' had purchased the lands after the sale of H
    388      SUPREME COURT REPORTS               [2013] 5 S.C.R.


A the lands to the grandfather of DW.2. He further stated
  that when the lands were purchased under Ex.D-1,'K' was
  a minor and his grandmother purchased those properties
  as a guardian of minor 'K'. Even the appellant-defendant
  No.3 as DW.4 admitted that the lands sold, under Ex.D-5
B are the joint family properties and if lands were not sold
  he and his brothers would have been entitled for a share.
  Therefore, the suit schedule properties are joint family
  properties of 'K' along with 4 sons and the co-parceners
  have equal shares in the properties. Accordingly, 4 sons
c and 'K' are entitled to 1/5th share of the total properties.
  [Paras 15 to17] [396-C-G; 397-A-C]

       3. So far as 1/5th share of 'K' is concerned, apart
  from 4 sons, i.e., defendant Nos. 1, 2, 3 and 4, the
  daughters of 'K' are entitled to 1/50th share each whereas
D the sons, i.e., defendant Nos.1, 2, 3 and 4 are entitled to
  11/50th share each, inclusive of their respective shares.
  Defendant No.9 who is the son of the first daughter
  having succeeded the estate of his mother, a co-parcener
  is also entitled to 1/50th share. [Para 17) [397-D-E]
E
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    1499 of 2004.

        From the Judgment and Order dated 20.01.2003 of the
    High Court of Karnataka at Bangalore in R.F.A. No. 319 of
F   1998.

        G.V. Chandrashekar, N.K. Verma, P.P. Singh for the
    Appellant.

G         Shantha Kr. Mahale, Harish S.R., Rajesh Mahale, Venkata
    Krishna Kunduru, B.S. Prasad, Nandish F. Pati, A.S. Bhasme
    for the Respondents.

          The Judgment of the Court was delivered by

H
    V.K. SURENDRA v. V.K. THIMMAIAH & ORS.                  389


      SUDHANSU JYOTI MUKHOPADHAYA, J. 1. This appeal                A
has been preferred by defendant No.3 against the judgment
dated 20th January, 2003 passed by the High Court of
Karnataka in R.F.A. No.319of1998. By the impugned judgment
and decree the High Court allowed the appeal, set aside the
judgment and decree of trial court and decreed the suit             B
declaring that defendant Nos.1,2,3 and 4 are entitled to 11 /50th
share each and the plaintiff, defendant Nos.5,6,7,8 and 9 are
entitled to 1/50th share each in the suit schedule properties.

     2. The facts of the case are as follows:
                                                                    c
     The plaintiff-respondent No.4 filed a suit for partition and
separate possession of 1/10th share in the suit schedule
properties by metes and bounds and also sought for an enquiry
under Order 20 Rule 12 C.P.C. to ascertain the mesne profits.
She is the second daughter of late Shri Kunnaiah whereas            D
defendant Nos.1,2,3 and 4, including the appellant herein are
the sons and defendant Nos.5,6,7 and 8 are the daughters of
late Shri Kunnaiah. Defendant No.9 is the son of the first
daughter of late Shri Kunnaiah.
                                                                    E
     3. Plaintiff claimed that the suit schedule properties are
self-acquired properties of late Shri Kunnaiah and, therefore,
she is entitled for 1/10th share in the suit schedule properties.

     Defendant Nos.1, 2 and 4 filed a joint written statement
claiming 1/5th share in the suit schedule properties, as            F
according to them the suit schedule properties are the ancestral
joint family properties. The appellant-defendant No.3 filed a
separate written statement claiming the right over total 32 acres
55 cents of lands. According to defendant No.3, the suit
schedule properties are the self-acquired properties of their       G
father, late Shri Kunnaiah who bequeathed the same in his
favour under a Will dated 14th June, 1991. As per the Will he
is entitled for a total extent of 32 acres 55 cents of lands iri
respect of which the plaintiff and other defendants have no right
                                                                    H
    390         SUPREME COURT REPORTS                 [2013] 5 S.C.R.


A   whatsoever. The rest of the defendants did not choose to file
    written statement.

          4. The trial court framed the following issues:

           "1.    Whether the suit schedule properties are the self-
B                 acquired properties of late Shri Kunnaiah as
                  contended by plaintiff or they are joint family
                  properties as contended by defendants 1, 2 and
                  4?

c          2.     Whether the plaintiff is entitled to1!10th share as
                  contended by her or she is entitled to 1150th share
                  as contended by defendants 1, 2 and 4 ?

           3.     Whether the plaintiff is entitled to the relief prayed
                  for?
D
           4.     Whether defendants 1, 2 and 4 are entitled to the
                  reliefs prayed for in the counter claim ?

           5.     What decree or order ?"
E      On issue No.1 the trial court has held that the suit schedule
  properties are the self-acquired properties of late Shri
  Kunnaiah. On issue No.2 it was held that the Will set up by
  defendant No.3 has been proved and, therefore, the plaintiff was
  not entitled for a share in the suit schedule properties. Issue
F Nos.3 and 4 were accordingly answered in negative.

        Two addition~! issues were also framed by the trial court
    which are as follows:

           "1.    Whether 3rd defendant proves that late Shri
G
                  Kunnaiah executed a Will dated 14.6.1991 under
                  which the properties mentioned in para 9 of his
                  written statement have been bequeathed in his
                  favour?
                                                                           "
H
    V.K. SURENDRA v. V.K. THIMMAIAH & ORS.                    391
      [SUDHANSU JYOTI MUKHOPADHAYA, J.]
      2.     Whether the event of the court holding that the          A
             properties were not the self acquisitions of late Shri
             Kunnaiah the properties in the possession of 3rd
             defendant could be allotted to him, as prayed for
             by him in para 2 of the additional written statement
             filed on 26.05.1997 ?"                                   B

      The trial court answered additional issue No.1 in the
affirmative and held that consequently additional issue No.2 was
not necessary to be decided.

    5. In appeal, the High Court considered the following three       C
questions:

      "i)    Whether the suit schedule properties are the joint
             family properties of late Shri Kunnaiah an.d if so
             what share is to be allotted to each of the parties      0
             in the suit?

      ii)    Whether the defendant No.3 proves the execution
             of the Will dated 14.06.1991 said to have been
             executed by late Shri Kunnaiah ?
                                                                      E
      iii)   In the event ifthe Will dated 14.06.1991 is proved
             to be valid in law what is the effect of the said Will
             on the suit schedule properties in the event if the
             said properties are held to be joint family
             properties ? "                                           F
     Taking into consideration the evidence on record and the
stand taken by the plaintiff and the defendants, the High Court
held that there was no evidence on record to prove that the suit
schedule properties are self-acquired properties of late Shri
Kunnaiah and it further held that the suit schedule properties        G
are joint family properties of late Shri Kunnaiah and his children.

     6. So far as the Will (Ex.D-17) relied on by defendant No.3
,the High Court held that late Shri Kunnaiah who is the father of
 defendant Nos. 1 to 4 had no right whatsoever to bequeath the        H
    392     SUPREME COURT REPORTS                  [2013] 5 S.C.R.


A suit schedule properties under a Will or partition without the
  consent of all the co-parceners. Therefore, Ex.D-17 is not
  binding on the other co-parcerners. In determining the shares
  to be allotted to each of the parties in the proceedings, the
  High Court held that the sons, defendant Nos.1,2,3 and 4, and
B late Shri Kunnaiah are entitled for 1/5th share of the suit
  schedule properties. In so far as 1/5th share of late Shri
  Kunnaiah, sons and daughters were entitled for 1/50th share.
  Regarding defendant No.9 who is the son of the first daughter,
  the High Court held that since he is the only heir to succeed to
c the estate of first daughter, he is also entitled for 1/50th share.
  The appeal was allowed with the aforesaid observation and suit
  was decreed by the High Court declaring that defendant
  Nos.1,2,3 and 4 are entitled to 11 /50th share each and the
  plaintiff, defendant Nos.5,6, 7 ,8 and 9 are entitled to 1/50th
  share each.
0
       7. According to the appellant-defendant No.3, when late
  Shri Kunnaiah was a minor, his mother purchased certain
  properties including suit schedule properties by a sale deed
  dated 7th May, 1918-Ex. D-1, in the joint name of herself
E (Ningamma mother) and son, Kunnaiah. Later on Kunnaiah
  sold certain landed properties on 16th July, 1942, properties
  situated at Kaikere village on 19th March, 1953 and some
  other properties on 4th November, 1963. These sale deeds
  were not challenged by the plaintiff or the defendants. Since,
F the children of Kunnaiah were major, their names were got
  entered in the Revenue records by him in the year 1975 with a
  view to give those properties to the children. To sell some of
  the properties, Kunnaiah got consent of his children as their
   names were appearing in the Revenue records which were sold
G on 23rd July, 1976.
          Further, according to the appellant, Kunnaiah, wanted
    partition of the properties and effected division by executing a
    Will on 20th January, 1984 distributing the properties to all the
    children. The respondents were aware of such arrangement.
H
    V.K. SURENDRA v. V.K. THIMMAIAH & ORS.                 393
      [SUDHANSU JYOTI MUKHOPADHAYA, J.]
However, the said Will was cancelled by late Shri Kunnaiah on A
7th January, 1991 with the knowledge of all the children as
Pranesh(defendant No.9), grandson through daughterTayamma
was not given property. Subsequently, a fresh Will was executed
by late Shri Kunnaiah on 14th June, 1991(Ex.D-17) whereby the
suit schedule properties were settled in favour of his children, B
Thimmaiah, B.K. Ramachandra, Ganesh, all the daughters and
Pranesh son of a predeceased daughter. On 9th July, 1993,
Kunnaiah died leaving behind him his 9 children, i.e., 4 sons
and 5 daughters. Under the Will-Ex.D-17 dated 14th June,
1991, Kunnaih gave away all the properties owned by him and C
the children of Kunnaiah came to the possession of their
respective portions given to each of them under the Will.

      8. Learned counsel for the appellant submitted that in
absence of any plea taken by the plaintiff or most of the
defendants that the suit schedule properties were ancestral, the D
High Court was not justified to hold that the said properties are
the joint family properties. Even assuming the said properties
as joint family properties, it was open to the father to divide the
properties under the Will -Ex.D-17. The respondents were
aware of the execution of the Will (Ex. D-17) and also the earlier E
Will which was cancelled but they kept quiet for a long time which
will amount to giving their consent to the father to partition the
properties, as the same is permissible under the Hindu Law.

     9. In order to consider whether the suit schedule properties F
are joint family properties or self-acquired properties of late Shri
Kunnaiah, it is necessary to notice the documentary as well as
the oral evidence produced by the parties.

     10. By the sale deed dated 7th May, 1918 (Ex.D-1), the
lands in Sy.No.211 measuring 5 acres 28 cents; Sy.No.208 G
measuring 19 acres 83 cents; Sy.No.209 measuring 4 acres
89 cents; Sy.No.209/A measuring 27 cents; Sy.No.210
measuring 9 acres 28 cents and Sy.No.205/2 measuring 5
acres 33 cents of Attur Village, Virajapet Taluk, South Kodagu
District were purchased in the name of Kunnaiah(minor) along H
    394     SUPREME COURT REPORTS                  [2013] 5 S.C.R.


A   with her mother late Smt. Ningamma. Kunnaiah was then
    admittedly a minor and was the only son of late Shri
    Thimmaiah. There is no evidence on record to show that
    Kunnaiah who was minor as on the date of purchase of the said
    lands, possessed of any immovable property or properties
B   yielding any income so as to purchase the lands under Ex.D-
    1. The appellant-defendant No.3 has also failed to adduce any
    evidence to show that late Smt. Ningamma, mother of Kunnaiah
    had any income from movable or immovable properties so as
    to purchase the above said properties.
c        11. In his evidence, DW.1 deposed that their grandfather
    Thimmaiah owned 1000 batti boomi and 24 acres, i.e, about
    54 acres of land including a house in Hoskote. Their
    grandmother Ningamma was only a house wife and she did not
    own any property in her name; out of the income derived from
D   the lands situated at Hoskote the suit schedule lands were
    purchased in the name of his father late Kunnaiah. Aforesaid
    statement made by DW.1 in the examination-in-chief was not
    questioned by any of the parties during the cross-examination.

E        DW.1, in his statement further stated that out of the income
    of lands aforesaid, the lands in Attur were purchased in the year
    1918. After the death of Thimmaiah, Smt. Ningamma mother
    of Kunnaiah was managing the affairs of the family as there was
    no other male member living with her except Kunnaiah who was
F   minor.

          12. It is true that late Kunnaiah had sold some properties
    at Hoskote under the registered sale deed dated 16th July,
    1942 by Ex.D-7. The reason for sale of the said lands under
    Ex.D-7 was mentioned, that is to discharge the loan borrowed
G   by him for the purpose of purchasing the lands at Kaikere
    village and to improve the lands. It is not the case of the
    appellant that Kunnaiah had owned land in his own name in
    Hoskote. The properties at Hoskote were belonging to his
    grand father Thimmaiah. In this background the High Court has
H   rightly held that the properties purchased by Kunnaiah at .
    V.K. SURENDRA v. V.K. THIMMAIAH & ORS.                  395
      [SUDHANSU JYOTI MUKHOPADHAYA, J.]
Kaikere village out of the money received by him from the sale      A
of the ancestral lands under Ex.D-7, are the ancestral
properties.

      Lands at Attur village measuring 1 acre 6 guntas in
Sy.No.208/3; 4 acres 77 cents in Sy.No.210 were sold by late
                                                                    B
Kunnaiah under Ex.D-3. The recital in Ex.D-3 discloses that the
above lands are the ancestral properties of late Kunnaiah. For
that reason before selling the said land under Ex.D-3, consent
of all the sons of Kunnaiah was taken. The consent certificate
was produced and is marked as Ex.D-4. Through the aforesaid
evidence the High Court rightly came to the conclusion that the     C
recitals in Ex.D-3 and consent certificate Ex.D-4 are binding
on the persons who were parties in the said documents and,
therefore, when Kunnaiah himself admitted in Ex.D-3 that the
lands sold under Ex.D-3, which were the lands purchased under
Ex.D-1, are the ancestral properties, the High Court rightly held   D
that it was not open for defendant No.3 to say that the said
lands are self-acquired properties of late Kunnaiah.

     13. Similarly, the land measuring 5 acres 33 cents of
Sy.No.205/2 was sold by Kunnaiah to a person under Ex.D-11          E
on 19th March, 1953. Kunnaiah had also sold the lands
measuring 3 acres in Sy.No.208/2 and 4 acres in Sy.No.208/
1 of Attur village to Orange Growers Cooperative Society under
sale deed dated 4th November, 1963 Ex.D-6. In these sale
deeds though the properties are described as self-acquired          F
properties, it is apparent that both the lands were purchased
under Ex.D-1. The High Court has noticed that Kunnaiah has
also himself described the lands in Attur village as ancestral
properties purchased under Ex.D-1. Therefore, the sale deed
dated 23rd July, 1976, Ex.D-3 and the sale deed dated 4th           G
November, 1963, Ex.D-6 cannot be said to be self-acquired
properties of Kunnaiah merely because they have been
described as self-acquired properties in those evidence.

    14. We have noticed that though the appellant examined
himself as DW.4 he failed to produce either documentary or          H
    396      SUPREME COURT REPORTS                  (2013] 5 S.C.R.


A oral evidence to show the lands at items Nos.2,3 and 5, situated
  at Village Kaikere are the self-acquired properties of Kunnaiah.
  In absence of any division in the family of Kunnaiah and his
  sons, we hold that the family of Kunnaiah continued to be the
  joint family. If a co-parcener of a joint family claims that
B properties are his self-acquired properties, the burden is on him
  to prove that the same are the self-acquired properties. In that
  background the High Court has rightly held that Kunnaiah had
  no right to change the character of the joint family properties
  by transferring the same either under a Will or a gift to any party
C without the consent of the other co-parceners.

         15. In his deposition DW.1 stated that in the year 1976
    when Kunnaiah was alive, the names of all his sons were
    entered in the Jamabandhi in column No.6. He further stated
    that since their names were in the Jamabandhi their consent
D   was asked for the purpose of advancement of loan. DW.2,
    Krishna, a resident of Hoskote deposed in his evidence that
    the suit schedule properties are the ancestral properties of
    Kunnaiah. DW.3, Raja, resident of Bilagunda in his evidence
    has deposed that his father and Kunnaiah's father belong to the
E   same family. He has further stated that the father of Kunnaiah
    possessed of about 30 acres of wet land and 24 acres of
    garden land in Hoskote. He further statea that Kunnaiah had
    purchased the lands in Kaikere village after the sale of the lands
    at Hoskote to the grandfather of DW.2. He has further stated
F   that when the lands were purchased under Ex.D-1, Kunnaiah
    was a minor and his grandmother purchased those properties
    as a guardian of minor Kunnaiah. DW.4 stated that he, his
    father and brothers are all the members of the joint family. He
    also admitted that the consent letter given by him along with
G   his brothers under Ex.D-4 was for the purpose of sale of lands
    under Ex.D-3. He further admitted that the lands sold under
    Ex.D-5 are the lands purchased under Ex. D-1 and these are
    the joint family properties. In his evidence, defendant No.3
    (DW.4) deposed that his father had sold about 25 acres of land
H
     V.K. SURENDRA v. V.K. THIMMAIAH & ORS.                   397
       [SUDHANSU JYOTI MUKHOPADHAYA, J.]
and if the above said lands were not sold he and his brothers         A
were entitled for a share in the said properties.

     16. From the aforesaid statement, it is clear that even
defendant No.3 (DW.4) admits that the lands sold under Ex.D-
5 are the joint family properties and if lands were not sold he
                                                                      B
and his brothers would have been entitled for a share.

      17. In the light of discussions as made above, we hold that
those suit schedule properties are joint family properties of
Kunnaiah along with 4 sons and the co-parceners have equal
shares in the properties. Accordingly, 4 sons and Kunnaiah are        C
entitled to 1/5th share of the total properties.

      So far as 1/5th share of Kunnaiah is concerned, apart from
4 sons, i.e., defendant Nos. 1, 2, 3 and 4, the daughters of
Kunnaiah are entitled to 1/50th share each whereas the sons,          0
i.e., defendant Nos.1, 2, 3 and 4 are entitled to 11/50th share
each, inclusive of their respective shares. Defendant No.9 who
is the son of the first daughter having succeeded the estate of
his mother, a co-parcener is also entitled to 1/50th share. In this
background no interference with the impugned judgment is              E
called for. In absence of any merit the appeal is dismissed. The
parties shall bear their respective costs.

K.K.T.                                       Appeal dismissed.