R.S. Anjayya Gupta vs Thippaiah Setty

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7418 OF 2009

R.S. Anjayya Gupta ..…Appellant

Versus Thippaiah Setty & Ors. ….Respondents

JUDGMENT

A.M. Khanwilkar, J.

1. The present appeal takes exception to the judgment and

decree of 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 of the Trial Court, that the suit

properties described in Schedules A and B to the plaint were not

self­acquired by the appellant (defendant No.1) but, instead,

belonged to the Joint Hindu Family of which he was a member

and, therefore plaintiff and defendant Nos.1 and 2 were equally Signature Not Verified Digitally signed by ARJUN BISHT Date: 2019.07.01

entitled to 5/12th share in all the suit properties and defendant 16:11:47 IST Reason:

No.3 (a) (b) and (c) each were entitled to 1/24 th share in all the 2

suit properties and thus the same could be partitioned and

distributed amongst the members of the said joint family. The

High Court, however, granted liberty to the appellant to approach

the Trial Court for an enquiry into the question whether the sale

of agricultural lands belonging to joint family would bind the

appellant (defendant No.1) and to pass another preliminary

decree, if necessary. The appellant has also assailed the

judgment of the High Court rejecting his review petition being

R.P. No.567 of 2002 dated 27th September, 2006.

2. The parties to this appeal are the children of the original

defendant No.3­patriarch of the family, Hanumanthaiah Setty.

The appellant is the eldest son, while respondent No.1 and

respondent No.2 are his younger brothers. Respondent Nos. 3 to

5 are the daughters of Hanumanthaiah Setty and thereby sisters

to the appellant and respondent Nos. 1 and 2. Respondent Nos. 3

to 5 came on record as the legal representatives of

Hanumanthaiah Setty after he passed away during the course of

the proceedings before the Trial Court.

3. This appeal has its origins in a suit for partition of certain

properties, being O.S. 1300 of 1982, filed by respondent No.1 3

(original plaintiff) against the appellant (original defendant No.1),

respondent No.2 (original defendant No.2) and the original

defendant No.3 Hanumanthaiah Setty before the Court of the

XXXI Additional City Civil Judge at Bangalore. Respondent No.1,

claiming to be a member of a Joint Hindu Family comprising the

other parties to the suit, alleged that the scheduled suit

properties belonged to the said Joint Hindu Family since they

had been purchased by the original defendant No.3 father with

money from joint family funds. The crux of respondent No.1’s

plea was that the suit properties mentioned in Schedules A and B

to the plaint had been purchased ostensibly in the name of the

appellant since he was the senior­most member of the family

(after defendant No.3) and also the eldest son, however, in

actuality, the said properties belonged to the joint family.

Respondent No.1 also asserted that suit properties were in the

joint possession of the appellant, respondent No.2 and the

original defendant No.3 and that the appellant was attempting to

illegally dispose of the same and obstruct partition thereof, thus

necessitating the suit. Accordingly, respondent No. 1 sought a

1/4th share in the suit properties and mesne profits in that

regard.

4

4. The original defendant No.3 father supported the stand of

the respondent No.1/original plaintiff, contending in his written

statement that the suit properties were purchased for and on

behalf of the joint family and were merely purchased in the name

of the appellant/original defendant No.1 since the original

defendant No.3 could not travel to Bangalore, where the

properties in question were situated, and since the appellant was

the eldest son and “worldly­wise”. He denied that the suit

properties were self­acquired properties of the appellant and

submitted that the appellant was exploiting the fact that the

properties had been purchased in his name. He then submitted

that his children, namely the appellant and respondent Nos.1

and 2, had an equal share, right, title and interest in the suit

properties. Accordingly, the original defendant No.3 sought for a

partition of the suit properties amongst his children after making

provisions for respondent Nos.3 to 5 herein (who, at the time of

filing the said written submissions, were his unmarried

daughters and had not been impleaded as parties to the suit).

Respondent No. 2 (original defendant no.2) supported and echoed

the stance of respondent No.1 and the original defendant no.3. 5

5. The appellant/original defendant No.1 in turn, denied that

the properties set out in Schedules A and B to the plaint had

been purchased by family from joint family funds or that they

belonged to the Joint Hindu family and submitted that he was

the absolute owner thereof since he had purchased it out of his

own funds and through loans. The appellant submitted that he

had exclusive possession and enjoyment over the said properties

since the date of their purchase and there was no question of any

illegality in his dealings therewith. The appellant further

submitted that 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 that he was entitled to the sale

consideration of the same. Additionally, the appellant was

entitled to 1/4th share in certain other ancestral property of the

original defendant No.3 father. The appellant also filed an

additional written statement wherein he alleged that certain joint

family properties had intentionally been omitted from the plaint

for nefarious purposes.

6

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

the following issues:

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

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

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

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

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

v. What order or decree?

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

7. During the pendency of the matter, the original defendant

No.3 expired and the present respondent Nos.3 to 5 daughters

were brought on record as his legal representatives. Thereafter,

the Trial Court rendered its judgment dated 30 th January, 2002,

wherein it found in favour of respondent No.1/original plaintiff

on all the issues. The Trial Court opined that the appellant had

not claimed any partition or separation from the joint family and

infact, had pleaded for a 1/4th share in certain other ancestral

property of the original defendant No.3. This was sufficient to

establish that the parties viz the appellant (original defendant

No.1), respondent No.1 (original plaintiff), respondent No.2 7

(original defendant No.2) and the original defendant No.3,

belonged to a Hindu Joint Family.

8. The Trial Court relied upon several judgments to opine that

once the acquisition of the suit properties from the nucleus of a

joint family had been admitted or proved, thereafter, property

acquired by any member of the joint family would be presumed to

be joint family property subject to the condition that the acquired

property had to be such that it could have been acquired only by

the aid of the family. It reasoned that after the acquisition of the

suit properties from the nucleus of a joint family had been

established, the burden of proof then shifted on to the person

who claimed that the property was self­acquired, to prove that

the property had been acquired without any aid from the family.

The Trial Court found that the evidence on record established the

existence of a joint family nucleus and thereafter, the

appellant/original defendant No.1 had failed to discharge the

burden that the suit schedule properties were self­acquired and

had also failed to prove that his business, from the proceeds of

which he claimed to have purchased the suit schedule properties,

was conducted without the aid of family funds. 8

9. The Trial Court also rejected the appellant’s contention that

he was the sole owner of the schedule suit properties by relying

upon the evidence of DW3 advocate. DW3 had deposed that he

advised the original defendant no.3 to purchase the said

properties in the name of the appellant since 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

original defendant No.3 had taken out loans and paid interest in

that regard, for some of the schedule suit properties. The Trial

Court reasoned that if the appellant was indeed the absolute and

independent owner of the properties, then there was no reason

for the original defendant No.3 to make any payments for the

said properties. Additionally, evidence on record established that

various rent receipts for the businesses being run on the

scheduled properties had been issued in the name of the father of

plaintiff (original defendant No.3) and appellant original

defendant No.1, thus proving that they were engaged in joint

family businesses and not independently run by the appellant.

The Trial Court also noted that the appellant had failed to explain

as to why the original defendant No.3 had sided with the stance 9

taken by the other respondents and not with the appellant. These

factors established that the suit scheduled properties belonged to

the joint family, rather than the appellant. Additionally, the

properties in Schedule C to the plaint were admittedly joint

family properties.

10. The Trial Court also found that the village panchayat had

already effected a prior partition of certain properties, including

those set out in Schedules A and B to the suit, between the

parties, which indicated that such properties belonged to the

joint family. On the basis of the aforesaid findings, the Trial

Court ordered that the suit schedule properties be partitioned

amongst the parties, with the appellant, respondent No.1 and

respondent No.2 each getting 5/12th share and respondent Nos.3

to 5 getting remaining 1/12th share in the suit schedule

properties. The Trial Court also ordered an enquiry into the

mesne profits payable to respondent No.1.

11. Aggrieved by the decision of the Trial Court, the appellant

preferred an appeal to the High Court of Karnataka being RFA

No. 456 of 2002. In its judgment dated 7 th September, 2004, the

High Court recorded that the contest was only in regard to the 10

properties set out in Schedules A and B to the plaint and

accordingly, upheld the findings of the Trial Court in that regard.

The High Court noted the submissions of the plaintiff that

although the properties had been purchased in the name of the

appellant, the said purchases were done during the continuation

of the joint family status. The properties had been purchased

with the help of loans and the interest on the same was,

admittedly, being serviced by the original defendant No.3 and not

by the appellant. The license of the business being conducted on

the suit schedule property was in the name of respondent No.2,

and the lease was taken in the name of the original defendant

No.3, while the appellant was merely managing the business. The

purported businesses of the appellant were infact jointly

conducted by all the parties and the appellant had failed to

establish either that he had any independent business or that he

had purchased the suit schedule properties without the aid of

family funds. The High Court then went on to conclude that the

findings of the Trial Court were just and proper and thus rejected

the appellant’s contentions, although it allowed the appellant to

approach the Trial Court for an inquiry as to whether the sale of

agricultural land by the other parties would bind the appellant 11

and to pass another preliminary decree in that regard, if

necessary.

12. Thereafter, the appellant preferred a review petition before

the same High Court being R.P. No. 567 of 2005. The said review

petition was dismissed on 27th 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 the first appeal cursorily without discussing or

considering the documentary or oral evidence produced by the

parties. Further, the plaintiff had failed to plead and also to prove

that the joint family was in possession of a nucleus and which

was adequate to fund the purchase of properties at schedule ‘A’ &

‘B’ respectively. Hence, no presumption of jointness of the said

property can be drawn in this case. It is then urged that both the

courts have failed to consider crucial evidence which established

that the appellant had paid for the purchase of the schedule suit

properties with his own, personal funds and hence, was the

absolute owner thereof. He also contends that the Trial Court

grievously erred in putting the burden of establishing the 12

existence and adequacy of such a nucleus on the

appellant/original defendant No.1 and the High Court ought not

to have supported such an approach. Mr. Madiyal refers to the

judgments of C. Venkata Swamy Vs. H.N. Shivanna (Dead) by

Legal Representative & Anr.1, Madhukar & Ors. Vs.

Sangram & Ors.2, Mudi Gowda Gowdappa Sankh Vs. Ram

Chandra Ravagowda Sankh3, 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 his submissions.

14. We have also heard Mr. Raghavendra Srivatsa, counsel for

respondent No.1 (plaintiff), who argues that the evidence on

record shows that the members of the family were living as an

undivided joint family and that the schedule suit properties were

purchased in the name of the appellant on legal advice but infact

the consideration amount was paid from the joint family funds.

He then contends that it is settled law that once admitted or

1 (2018) 1 SCC 604 (paragraph nos.10­11, 13­18) 2 (2001) 4 SCC 756 (paragraph no.5) 3 (1969) 1 SCC 386 (paragraph no.6) 4 AIR 1968 SC 1276 (paragraph no.3) 5 (2007) 1 SCC 521 (paragraph nos.12­17) 13

proved that there was a sufficient joint family nucleus out of

which the properties could be acquired, thereafter, the

presumption would arise that the properties are joint family

properties. It is then for the opposing party, in this case, the

appellant, to prove that he had acquired the properties out of his

own funds. In the present case, the business conducted from the

schedule suit properties were clearly established as joint family

business being run by the family members and acquired out of

joint family funds. The appellant failed to impeach the evidence

given by respondent No.1/plaintiff and the existence of the joint

family nucleus had been proved by the respondent No.1/original

plaintiff and admitted by the appellant/original defendant No.1.

15. The respondents have relied on Appasaheb Peerappa

Chamdgade (supra) in support of the submission that when it is

proved or admitted that a family possessed sufficient nucleus

with the aid of which the member might have made the

acquisition, the law raises a presumption that it is a joint family

property and the onus is shifted to the individual member to

establish that the property was acquired by him without the aid

of the said nucleus. Additionally, reliance is placed on V.D. 14

Dhanwatey Vs. Commissioner of Income Tax, M.P., Nagpur 6

for the same proposition. While, refuting the argument that the

High Court cursorily dismissed the first appeal without adverting

to the relevant points and evidence on record, it is urged by the

respondents that the High Court after noticing the relevant

aspects was pleased to uphold the finding of fact recorded by the

Trial Court being convinced that the same was just and proper. It

was unnecessary for the High Court to restate the effect of the

evidence or reiterate the reasons given by the Trial Court as

observed by a three judge Bench in the case of Santosh Hazari

Vs. Purushottam Tiwari7 and U. Manjunath Rao Vs. U.

Chandrashekar and Another8.

16. After cogitating over the rival submissions made during the

elaborate arguments by the respective counsel and who had

invited our attention to the pleadings and evidence on record, we

deem it to appropriate to relegate the parties before the High

Court for consideration of the first appeal afresh. We say so for

more than one reason. The first is that, the High Court has

disposed of the first appeal by a cryptic judgment. For, the first

6 (1968) 2 SCR 62(paragraph nos.4 and 5) 7 (2001) 3 SCC 179 (paragraph no.15) 8 (2017) 15 SCC 309 15

five paragraphs of the impugned judgment are only reproduction

of the submissions made by the counsel for the concerned

parties. After doing so, in paragraph no.6 of the impugned

judgment, the High Court straightaway proceeded to affirm the

opinion of the Trial Court that the suit properties forming part of

Schedule A and Schedule B to the plaint, are the joint family

properties. It is apposite to reproduce paragraph nos.6 and 7,

whereby the first appeal has been disposed of. The same read

thus:

“6. I find no merit in the appeal in so for as A and B schedule propertied are concerned. The opinion of the trial court that they are the joint family propertied is sound and proper. But in respect of the sales of agricultural lands made by the defendants No and 3 and plaintiff. I feel that the appellant can make another application before the trial court for an enquiry to find out whether the impugned sales would bind the appellant. To that extent, the appellant can pursue his remedy for another preliminary decree before the trial court.

7. In so far as A and B schedule propertied are concerned the finding of the trial court is sound and proper, Accordingly, the appeal 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 Pershad Ramdeo Sahu Vs. Jwaleshwari Pratap Narain 16

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 International Limited and Another 11 went on to

observe thus:

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

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

“ORDER 41

APPEALS FROM ORIGINAL DECREES * * *

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

(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, the relief to which the appellant is entitled,

and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.”

13. On a perusal of the said Rule, it is quite clear that the judgment of the appellate court has to state the reasons for the decision. It is necessary to make it clear that the approach of the first appellate court while

9 AIR 1951 SC 120 (paragraph no.15) 10 (2005) 10 SCC 243 (paragraph no.3) 11 (2011) 12 SCC 174 17

affirming the judgment of the trial court and reversing the same is founded on different parameters as per the judgments of this Court. In Girijanandini Devi12, the Court ruled that while agreeing with the view of the trial court on the evidence, it is not necessary to restate the effect of the evidence or reiterate the reasons given by the trial court. Expression of general agreement with reasons given in the trial court judgment which is under appeal should ordinarily suffice. The same has been accepted by another three­Judge Bench in Santosh Hazari13. However, while stating the law, the Court has opined that expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage to be adopted by the appellate court for shirking the duty cast on it. We are disposed to think, the expression of the said opinion has to be understood in proper perspective. By no stretch of imagination it can be stated that the first appellate court can quote passages from the trial court judgment and thereafter pen few lines and express the view that there is no reason to differ with the trial court judgment. That is not the statement of law expressed by the Court. The statement of law made in Santosh Hazari has to be borne in mind.

14. In this regard, a three­Judge Bench decision in Asha Devi v. Dukhi Sao14 is worthy of noticing, although the context was different. In the said case, the question arose with regard to power of the Division Bench hearing a letters patent appeal from the judgment of the Single Judge in a first appeal. The Court held that the letters patent appeal lies both on questions of fact and law. The purpose of referring to the said decision is only to show that when the letters patent appeal did lie, it was not restricted to the questions of law. The appellant could raise issues pertaining to facts and appreciation of evidence. This is indicative of the fact that the first appellate court has a defined role and its judgment should show application of mind and reflect the reasons on the basis of which it agrees with the trial court. There has to be an “expression of opinion” in the proper sense of the said phrase. It cannot be said that mere concurrence meets the requirement of law. Needless to say, it is one thing to state that the appeal is without any substance and it is another thing to elucidate, analyse 12 AIR 1967 SC 1124 13 (2001) 3 SCC 179 14 (1974) 2 SCC 492 18

and arrive at the conclusion that the appeal is devoid of merit.”

In another recent decision in C. Venkata Swamy (supra), once

again this Court reiterated the settled legal position regarding the

purport of power of the appellate court coupled with its duty,

under Section 96 of the Code, while deciding the first appeal, by

adverting to decisions in Kurian Chacko Vs. Varkey Ouseph15,

Santosh Hazari (supra), H.K.N. Swami (supra), Jagannath Vs.

Arulappa and Another16, B.V. Nagesh and Another Vs. H.V.

Sreenivasa Murthy17, S.B.I. (supra) and Union of India Vs.

K.V. Lakshman and Others18. The court, even in this reported

case relegated the parties before the High Court for

reconsideration of the first appeal afresh.

18. We are conscious of the fact that in the present case the

suit came to be filed by the respondent No.1 as back as in 1982

and that the present appeal has remained pending in this Court

from 2009, against the impugned judgment of the High Court.

We, at one stage were persuaded to consider and examine the

15 AIR 1969 Kerala 316 16 (2005) 12 SCC 303 (paragraph no.2) 17 (2010) 13 SCC 530 (paragraph nos.3 and 5) 18 (2016) 13 SCC 124 19

matter on its own merits instead of relegating the parties before

the High Court. But, it is noticed that the appellant has raised

formidable issues on facts as well as on law which ought to

receive proper attention of the High Court, in the first instance in

exercise of powers under Section 96 of CPC. Additionally, the

High Court will have to address the grievance of the appellant

that some of the documents, which in the opinion of the

appellant are crucial have not been even exhibited although the

same were submitted during the trial, as noted in the written

submissions filed by the appellant. Therefore, we do not wish to

deviate from the consistent approach of this Court in the reported

cases that the first appellate court must analyse the entire

evidence produced by the concerned parties and express its

opinion in the proper sense of the jurisdiction vested in it and by

elucidating, analysing and arriving at the conclusion that the

appeal is devoid of merit.

19. We refrain from analysing the pleadings and the evidence in

the form of exhibited documents and including the non­exhibited

documents and expect the High Court to do the same and arrive

at conclusions as may be permissible in law. In other words, we 20

should not be understood to have expressed any opinion either

way on the merits of the controversy. The High Court shall decide

the first appeal uninfluenced by any observation made in the

impugned judgment. As the remanded first appeal pertains to

year 2002, we request the High Court to dispose of the same

expeditiously.

20. The appeals are accordingly allowed. The impugned

judgment and decree and orders dated 7 th September, 2004 and

27th September, 2006 respectively, passed by the High Court of

Karnataka at Bangalore are set­aside and instead remand the

RFA No.456 of 2002 to the High Court with the aforementioned

directions. No order as to costs. All pending applications are

disposed of.

……………………………..J (A.M. Khanwilkar)

……………………………..J (Ajay Rastogi) New Delhi;

July 01, 2019.