Saturday, 11 January 2020

Whether it is necessary to prove that there was joint family for seeking partition of joint family property?

Re: Burden of Proof:

26. Initial burden of proving that himself and defendants constituted the joint family was on the plaintiff. Mere admission that he was the son of defendant no. 1 does not lead to the presumption that himself and defendants constituted the joint family and were the members of the joint family.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

R.S.A. Nos. 1813/2015 and 2188/2016 (DEC-PAR-INJ)

Decided On: 04.04.2019

 M. Krishna Vs.  M. Ramachandra and Ors.

Hon'ble Judges/Coram:
K.S. Mudagal, J.

Citation: AIR 2019 Karnat 188


1. Heard. Having regard to the facts and circumstances of the case, delay of 388 in filing the appeal is condoned in the interest of justice on payment of costs of Rs. 1,000/- payable to Advocates Benevolent Fund.

2. RSA No. 1813/2015 is filed by defendant No. 2 and RSA No. 2188/2016 is filed by plaintiff and defendant No. 3 in O.S. No. 851/2006 on the file of Senior Civil Judge, Anekal.

3. The aforesaid appeals are directed against the judgment and decree dated 22.08.2015 passed by III Additional District and Sessions Judge, Bengaluru Rural District in RA No. 146/2013 and the cross objections filed by the plaintiff in the said appeal.

4. By the impugned judgment and decree, the First Appellate Court dismissed the appeal of defendant No. 2 and cross objections of the plaintiff and confirmed the judgment and decree dated 22.04.2013 passed by the learned Senior Civil Judge, Anekal in O.S. No. 851/2006.

5. Sri M. Ramachandra - the plaintiff filed O.S. No. 851/2006 against his father Maddurappa, brother M. Krishna and sister Jyothamma. In the suit father, brother and sister were arrayed as defendants No. 1 to 3 respectively.

6. For the purpose of convenience, parties will be henceforth referred to with their ranks before the trial Court.

7. The subject matter of the suit were the lands bearing Sy. No. 58 measuring 2 acres, Sy. No. 25 measuring 3 guntas, Sy. No. 31 measuring 3 guntas and Sy. No. 37 measuring 15 guntas situated within the limits of Hosahalli village, Jigani Hobli, Anekal Taluk.

8. Plaintiff's case in brief is as follows:

Himself and defendants constituted the Joint Hindu Family. Suit schedule item No. 1 property belonged to his maternal grand father - Muniappa and he had mortgaged that to one Sunkareddy under the registered mortgage deed dated 13.04.1951. Muniappa could not redeem that during his life time. Therefore, the first defendant got that redeemed under the registered deed dated 09.02.1977. All the suit schedule properties were acquired by the joint family and they were in joint possession. The first defendant, prejudicial to his interest has executed a registered gift deed dated 17.01.2004 in respect of suit schedule item No. 1 property in favour of the second defendant. The said gift deed does not bind him. Thus he seeks partition and separate possession of his one-third share in the suit properties and declaration that the gift deed dated 17.01.2004 is void and does not bind him.

9. Defendant No. 3 filed the written statement conceding the claim of the plaintiff. Defendant Nos. 1 and 2 contested the suit. Their defence in brief is as follows:

The plaintiff was given in adoption to one Padu Muniswamy long back. Therefore, all his relations with the family of Maddurappa were severed. Muniappa original owner of suit schedule item No. 1 property could not get that redeemed. He gifted the same to defendant No. 1. Defendant No. 1 got that redeemed in 1977 out of his own Funds. Suit schedule item Nos. 2 to 4 were granted to defendant No. 1 as he was officiating as Thoti Inamdar. Therefore, all the suit schedule properties were self acquired and absolute properties of defendant No. 1. In O.S. No. 186/1989 and O.S. No. 723/1999 plaintiff admitted his adoption and the properties being self acquired and absolute properties of defendant No. 1.

10. On the basis of such pleadings, the trial Court framed the following issues:

1. Whether the plaintiff proves that himself and the defendants are the joint family members and the suit schedule properties are the joint family properties of himself and the defendants?

2. Whether the plaintiff proves that he is entitled to 1/3rd share in the suit schedule properties?

3. Whether the plaintiff proves that the gift deed dated 17.01.2004 executed by the 1st defendant in favour of the 2nd defendant in respect of item No. 1 of suit schedule properties is void and not binding on the plaintiff's share?

4. Whether the defendants No. 1 and 2 prove that the plaintiff is adopted son one late Muniswamappa?

5. Whether the defendants No. 1 and 2 prove that 1st defendant is the absolute owner of item No. 2 to 4 of the suit schedule?

6. Whether the defendants No. 1 and 2 prove that the 1st defendant was the absolute owner of the item No. 1 of the suit schedule and rightly and legally executed the gift deed in favour of the 2nd defendant in respect of said property?

7. Whether the plaintiff is entitled for the relief of partition and separate possession of his 1/3rd share in the suit properties and for declaration that the gift deed is not binding on his share?

8. What order or decree?

11. The parties adduced evidence. On the plaintiff's side, PWs. 1 and 2 were examined and Exhs. P1 to P15 were marked. Defendant No. 1 died in the year 2010 pending the suit. Defendant No. 2 was examined as DW. 1. Exhs. D1 to D8 were marked. The trial Court after hearing the parties decreed the suit on the following grounds:

i) Defendants did not produce any document to show that Muniappa had gifted suit schedule item No. 1 property to defendant No. 1.

ii) No document was produced in proof of alleged adoption of the plaintiff by Padu Muniswamappa.

iii) In the absence of production of such documents, the admissions of the plaintiff in the earlier proceedings are not material.

iv) In Exs. P13 and 14 the pleadings in O.S. No. 723/1999 which was renumbered as 285/2006 and in Ex. D1 and D2 pleadings in O.S. No. 186/1989 the name of father of the plaintiff was shown as Maddurappa i.e., first defendant and his adoptive father's name is not shown i.e., one circumstance to reject the case of adoption set up by defendants No. 1 and 2.

12. Gullamma - the other daughter of original owner Muniappa has filed O.S. No. 723/1999 for partition and separate possession of her half share in the suit properties claiming that all the properties belonged to her father Muniappa and therefore the share of the plaintiff in this case is subject to settlement of right of Gullamma in O.S. No. 723/1999.

13. Defendant No. 2 challenged the judgment and decree of the trial Court in RA No. 146/2013 before the III Additional District and Sessions Judge, Bengaluru Rural District. Aggrieved by subjecting his share to the settlement of right of Gullamma, plaintiff filed cross objections in RA No. 146/2013.

14. The First appellate Court by the impugned judgment and decree concurring with the reasoning and findings of the trial Court dismissed both appeal and cross objections. However, the First Appellate Court modified the share of the plaintiff from one-fourth to one-third on the ground that on the death of defendant No. 1-Maddurappa, his share devolves on all his children equally thereby their share is augmented from one-fourth to one-third.

15. This Court on hearing both the parties admitted the appeal to consider the following substantial questions of law:

i) Whether the Courts below were correct in decreeing the suit of the plaintiff without considering the fact that, the plaintiff was the adopted son of Muniswamappa which was evident from Ex. D.1 and Ex. D.8 i.e., plaint in O.S. No. 186/1989 and the judgment and decree in O.S. No. 186/1989 and the evidence of PW 2 wherein he categorically admitted that, the plaintiff was the adopted son of Muniswamappa and the said adoption was taken place about 40 - 50 years back and he is in possession of the properties owned by his adopted father?

ii) Whether the courts below were right in decreeing the suit of the plaintiff without appreciating/considering the fact that the plaintiff was gone in adoption to one Sr. Muniswamappa about 40 to 50 years back and he was enjoying the properties owned by him and the revenue records were mutated in his name and he was never in joint possession of the suit schedule properties along with the defendants and he had lost his right, title and interest and also there did not exist any joint status and joint family between plaintiff and defendants i.e., even prior to the filing of the suit bearing O.S. No. 851/2006?

iii) Whether the courts below were right in decreeing the suit of the plaintiff without considering the Ex. D.2 i.e., written statement in O.S. No. 723/1999 wherein he had categorically admitted that, the suit schedule properties are the self acquired properties and the absolute properties of defendant No. 1 and accordingly he had executed a registered gift deed in favour of the defendant No. 2?

iv) Whether the Courts below were correct in decreeing the suit of the plaintiff without appreciating the fact that, the plaintiff has failed to prove the initial burden cast on him in respect of issue No. 1 and also failed to disprove the Ex. D.1, Ex. D.2 and Ex. D.8?

16. Some of the admitted facts of the case are as follows:

i) Kaverappa, Muniappa and Padu Muniswamy were the sons of Kummappa. The land bearing Sy. No. 58 originally belonged to the family of Kummappa, Kaverappa and Muniappa. In a partition between Muniappa and his brothers, suit schedule item No. 1 property was allotted to the share of Muniappa. Muniappa had only two daughters by name Gullamma and Yellamma. Defendant No. 1 was married to Yellamma. Plaintiff and defendants No. 2 and 3 are the children of said Yellamma and defendant No. 1. Muniappa's brother Padu Muniswamy was issue less.

ii) Muniappa had mortgaged plaint schedule item No. 1 property in favour of one Sunkareddy under Ex. P1, the mortgage deed dated 13.04.1951. During his life time the said mortgage was not redeemed. After the death of Muniappa, defendant No. 1 got that mortgage redeemed under the registered redemption dated 09.02.1977 at Ex. P2.

iii) The plaint schedule item Nos. 2 to 4 properties were granted to defendant Nos. 1 and 4 others under Ex. P4 the order of Tahsildar, Anekal dated 22.09.1986 under the village Offices Abolition Act, 1961. They were granted in lieu of services of defendant No. 1 as a Thoti Inam.

iv) Plaintiff filed O.S. No. 186/1989 against Kaveramma, wife of paternal uncle Padu Muniswamy for permanent injunction. Ex. D1 is the copy of the plaint presented in the said case. Ex. D8 is the certified copy of the judgment and decree in O.S. No. 186/1989 which was decreed in favour of the plaintiff. The said judgment attained finality.

v) Gullamma filed O.S. No. 723/1989 which was later renumbered as O.S. No. 285/2006 against plaintiff and defendant Nos. 1 and 2 claiming that the properties which are the subject matter of this suit and another house property were the properties of Muniappa and on his death she is entitled to half share in the said properties as one amongst two daughters of Muniappa. Ex. P13 is the copy of the plaint in the said suit. Ex. P14/D2 is the certified copy of the written statement filed by the plaintiff and defendant No. 1 in the said suit.

vi) Defendant No. 1 executed registered gift deed as per Ex. D3 in favour of defendant No. 2 in respect of suit schedule item No. 1 property on 17.01.2004.

17. Plaintiff claimed that himself and defendants constituted the joint Hindu Family and the suit schedule properties were the joint family properties. Defendants No. 1 and 2 contend that plaintiff was given in adoption to Padu Muniswamappa long back. Therefore, his ties with the family were severed. They further contend that suit schedule properties were the absolute properties of defendant No. 1.

18. To substantiate their contentions, defendants relied on Ex. D1 in O.S. No. 186/1989, Ex. D8 judgment and decree in the said suit and Ex. D2 the written statement filed in O.S. No. 723/1999 and the admissions of PW. 2 in the case.

19. According to them, the plaintiff in the aforesaid proceedings himself set up the case of adoption against his adoptive mother/defendant in O.S. No. 186/1989 and he himself contended in O.S. No. 723/1999 that the suit properties are the absolute properties of defendant No. 1. Therefore, those admissions bind him.

20. Learned counsel for the respondent relying on the aforesaid documents and Sections 17 and 58of the Indian Evidence Act contends that when there is clear admission in the nature of pleading in judicial proceedings, defendant Nos. 1 and 2 were not expected to prove the fact of adoption and Muniappa gifting the property to defendant No. 1. He further submits that it is not open to the plaintiff to withdraw such admissions or deny them in later proceedings. Once if the adoption is proved, plaintiff loses all rights in the family of his biological parents. Therefore, he cannot bring the suit for partition.

21. In support of his contentions, he relies upon the following judgments:

i) Nagindas Ramdas vs. Dalpatram Ichharam @ Brijram and others [MANU/SC/0417/1973 : (1974) 1 SCC 242];

ii) Thimmappa Rai vs. Ramanna Rai [MANU/SC/2402/2007 : (2007) 14 SCC 63];

iii) Ram Niranjan Kajaria vs. Sheo Prakash Kajaria and others [MANU/SC/1066/2015 : (2015) 10 SCC 203];

iv) Basavarajappa vs. Gurubasamma and others [MANU/SC/2803/2005 : (2005) 12 SCC 290] and

v) U.P. Public Service Commission vs. Madhu Rana and others [MANU/SC/0868/2012 : (2012) 12 SCC 132].

22. Sri K.K. Vasanth, learned counsel for plaintiff submits that when the defendant set up plea of adoption and the properties being self-acquired properties of defendant No. 1, it was for defendant Nos. 1 and 2 to prove the same. He submits that defendant Nos. 1 and 2 did not produce any documents in proof of gift of suit schedule item no. 1 property in favour of defendant no. 1. He further submits that the alleged admissions in the earlier proceedings are not clear and unequivocal admissions and the fact that plaintiff's father's name was shown as Maddurappa instead of his adoptive father belies the adoption. He submits that even assuming that there was adoption that will not divest the plaintiff of his right in his father's property and on the death of defendant no. 1, plaintiff is entitled to equal share in the properties.

23. So far as cross-objection of plaintiff and defendant no. 2, he submits that the courts below were not justified in subjecting only plaintiff's share to the right of Gullamma.

Re: Adoption:

24. Both the courts below proceeded on the premises that defendant nos. 1 and 2 admitted that plaintiff was the son of defendant no. 1, therefore, the claim of plaintiff that himself and defendants constituted joint family stood proved. It was held that when defendant nos. 1 and 2 claimed that there was adoption, it was for them to prove the same. Further, the courts below proceeded on the ground that there is no adoption deed to prove the adoption, thus rejected the claim of the defendants.

25. There is no dispute that parties are Hindus and their case is governed by the Hindu Adoptions and Maintenance Act, 1956 ("the Act", for short). Section 6 of the said Act deals with requisites of a valid adoption. In the said Act, or in Section 6 of any other provision it is stated that adoption can only be under a written document.

Re: Burden of Proof:

26. Initial burden of proving that himself and defendants constituted the joint family was on the plaintiff. Mere admission that he was the son of defendant no. 1 does not lead to the presumption that himself and defendants constituted the joint family and were the members of the joint family.

27. Plaintiff admitted filing of O.S. No. 186/1989 against Kaveramma and passing of decree in his favour in the said suit. Ex. D1- copy of the plaint in the said suit and Ex. D8 - copy of the judgment show that in the said suit, plaintiff claimed that he was the adopted son of Kaveramma and her husband Muniswamappa. He claimed that by virtue of such adoption by Muniswamappa, he has acquired right in the subject matter of the said suit.

28. In this suit when he was confronted with Ex. D1, he simply denies the suggestion that in the said suit he pleaded that he is the adopted son of Padu Muniswamy. His only explanation to Ex. D1 is that he had filed the suit to avoid any loss to his properties.

29. Ex. D8, the judgment in Ex. No. 186/1989 shows that in the said suit, the court of competent jurisdiction held that plaintiff is the adopted son of Muniswamappa and decreed the suit. While holding that defendants had the burden to prove the fact of adoption, the courts below overlooked Section 58 and Section 17 of the Indian Evidence Act.

30. The question of proving a fact arises only when such fact is in issue. Further, the definition "proved" in Section 3 of the Evidence Act reads as under:-

"A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."

31. In view of the above definition, the only burden on the defendants was to probabalise the existence of such adoption from the point of view of prudent man. Section 58 of the Evidence Act says that no fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings.

32. What is "admission" is explained in Section 17 and what is "admission by party to proceeding or his agent" is explained in Section 18 of the Indian Evidence Act. As per Section 18 of the Evidence Act, statements made by a party to the proceeding are admissions. Even in the light of such admission in a judicial proceeding, whether there is a need to prove such admission was considered by the Hon'ble Supreme Court in Nagindas Ramdas's case referred to supra.

33. In Para 27 of the said judgment, it was held as follows:-

"27.Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constituted a waiver of proof. They by themselves can be made the foundation of the rights of the parties."

(Emphasis supplied).

34. Thus, it is clear that admissions in pleadings are judicial admissions and are admissible under Section 58 of the Evidence Act and they constitute waiver of proof. Further such judicial admission of plaintiff being the adopted son of Muniswamappa was reinforced by the admissions of PW. 2, plaintiff's own witness. PW. 2 in his cross-examination has clearly admitted that Padu Muniswamy had no issues and about 40-50 years back, Padu Muniswamy adopted the plaintiff and the properties of Padu Muniswamy were given to the plaintiff.

35. Such being the evidence and legal position, the courts below were not justified in holding that name of the father of plaintiff in those pleading was shown as Maddurappa instead of his adoptive father Muniswamppa therefore adoption is not proved. In O.S. No. 186/1989, it was the plaintiff who had given his description. In O.S. No. 723/1989 plaintiff of that suit had given description of parties and not the present defendants. Therefore, substantial question no. 1 is answered in favour of the appellants.

Re: nature of properties:

36. When the plaintiff was not a member of joint family, the question of properties being the joint family properties of himself and the defendants does not arise. Admittedly, himself and defendant nos. 1 and 2 were the parties in O.S. No. 723/1999 filed by Gullamma against them and they filed written statement as per Ex. D2. In that written statement, there are unequivocal admissions that suit schedule properties are the absolute properties of defendant no. 1 and they are his self-acquired properties.

37. Ex. D2, which is again a pleading in a judicial proceeding, PW. 1 tried to say that he does not know the contents of the same and his father got written the same. PW. 1 in his cross examination admits that he is literate and a Government servant. He admits that he knows English in Ex. D2. Plaintiff alone has subscribed his signature in English in Ex. D2. The written statement in this case was filed on 07.10.2002. For the first time in 2008, after a lapse of six years, he comes up with rejoinder denying the contents of Ex. D2.

38. It is relevant to note that plaintiff files a suit in the year 1989 claiming that he is the adopted son of Muniswampappa and acquires six properties and decree in the said suit. After 19 years, by way of rejoinder in the present suit, he takes a total 'U' turn to deny that he pleaded adoption in the said case. He adopts same modus regarding Ex. D2 also. He gives evidence before the court on oath denying the statement made by him before the court on oath. In fact, such acts of the plaintiff amount to perjury. By virtue of Section 58 and 17 of the Indian Evidence Act, statement made in Ex. D2 regarding nature of property amounts to admission.

39. Despite such clear-cut admission, the courts below rejected the claim of absolute title and ownership of defendant no. 1 only on the ground that defendant nos. 1 and 2 did not produce any Gift Deed with regard to suit schedule item no. 1. Ex. P2 - Mortgage Redemption Deed contains a recital that father-in-law of defendant no. 1 had conveyed the property to defendant no. 1 and he got mortgage redeemed.

40. The learned counsel for plaintiff contends that such recital itself will not convey the rights of ownership and at the most, right of defendant no. 1 is only a possessory right. Firstly, there was clear-cut admission in Ex. D2 regarding absolute ownership of defendant no. 1. The plaintiff did not adduce any evidence to show that himself or any other defendants contributed anything to defendant no. 1 to get the mortgage redeemed. The document states that mortgagor assigned the right of redemption to defendant no. 1 and accordingly, it is redeemed to defendant no. 1. As per Section 60-A of the Transfer of Property Act, the said allotment confers absolute right on the first defendant.

41. Relying on Section 12 of the Hindu Adoption and Maintenance Act, the learned counsel for respondent contends that whatever rights plaintiff had are not divested by his alleged adoption. As per PW. 2, adoption of plaintiff was 40-50 years back. It is already held that suit schedule item no. 1 to 4 properties were self-acquired properties of defendant no. 1. In such event, right to succeed to the said property accrues to his children only on his death. Defendant no. 1 died in the year 2010. The adoption set up by the defendants was much earlier to that. Therefore, at that time, plaintiff had no vested right in those properties. Therefore, Section 12 of the Hindu Adoption and Maintenance Act does not in any way advance the case of plaintiff.

42. In Basavarappa's case referred supra, the Hon'ble Supreme Court held that, on adoption, the adoptee gets transplanted in the family in which he is adopted with the same rights as that of a natural-born son. As such, transfer of adopted child severs all his right to the family from which he is taken in adoption. Therefore, he loses right of succession in the genetic family properties.

43. For the reasons stated supra, the findings of Courts below that suit schedule properties were joint family properties of plaintiff and defendants and plaintiff is entitled to share in them are unsustainable. When the property was absolute property of defendant no. 1, disposition of property in favour of defendant no. 2 by way of Gift does not get vitiated. Substantial questions of law are answered in favour of defendants. The suit is liable to be dismissed. If the suit is dismissed, the question of considering whether the rights of plaintiff are subject to Gullamma's right does not survive for consideration.

44. Therefore, RSA No. 1813/2015 is allowed and RSA No. 2188/2016 is dismissed with costs through out. The material on record clearly shows that plaintiff has abused the process of court. Therefore, compensatory cost of Rs. 10,000/- is awarded to defendant no. 2 payable by the plaintiff.


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