Supreme Court of India
Angadi Chandranna vs Shankar on 22 April, 2025
1
2025 INSC 532 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5401 OF 2025
(Arising out of SLP (C) No. 6799 of 2022)
ANGADI CHANDRANNA ... APPELLANT
VERSUS
SHANKAR & ORS. ... RESPONDENT(S)
JUDGMENT
R. MAHADEVAN, J.
Leave granted.
2. The appellant is the purchaser of a property bearing Sy. No. 93 measuring
7 acres 20 guntas situated at Mahadevapura Village, Parashurampura Hobli,
Challakere Taluk1. He has come up with the present appeal against the judgment
and order dated 12.08.2021 passed by the High Court of Karnataka at
Bengaluru2 in Regular Second Appeal No.1417 of 2006. By the impugned
order, the High Court allowed the Regular Second Appeal thereby setting aside
Signature Not Verified
Digitally signed by
VISHAL ANAND
Date: 2025.04.22
15:36:42 IST
Reason:
1
For short, “the suit property”
2
Hereinafter referred to as “the High Court”
2
the judgment and decree dated 21.02.2006 passed by the Civil Judge (Senior
Division), Challakere3 in Regular Appeal No.291 of 2002 and affirming the
judgment and decree dated 21.12.2001 passed by the Civil Judge (Junior
Division) and Judicial Magistrate First Class, Challakere4, in O.S.No.169 of
1994.
3. The appellant herein is Defendant No.2 and the Respondent Nos.1 to 4,
who are the sons and daughters of Defendant No.1 (C. Jayaramappa), are the
plaintiffs. For the sake of convenience, the parties are referred to as per their
rank in the aforesaid suit.
4. Defendant No.1 and his two brothers viz., C. Thippeswamy and
C. Eshwarappa, after the death of their father and uncle, who was issueless,
divided the joint family properties under a registered partition deed dated
09.05.1986. Subsequently, Defendant No.1 purchased the suit property from his
elder brother C. Thippeswamy by way of a registered sale deed dated
16.10.1989. Thereafter, Defendant No.1 sold the suit property to Defendant
No.2 by a registered sale deed dated 11.03.1993.
3
Hereinafter referred to as “the First Appellate Court”
4
Hereinafter referred to as “the trial Court”
3
5. When the facts stood thus, the plaintiffs had instituted a suit bearing
O.S.No.169 of 1994 before the trial Court seeking partition and separate
possession of the suit property. After due trial, the trial Court vide judgment and
decree dated 21.12.2001, decreed the suit as prayed for, by holding that the
plaintiffs are entitled for partition and separate possession by metes and bounds
through revenue authorities. Challenging the same, Defendant No.2 moved
Regular Appeal bearing No.291 of 2002. The First Appellate Court vide
judgment and decree dated 21.02.2006, allowed the appeal and set aside the
judgment and decree passed by the trial Court. Aggrieved by the same, the
plaintiffs filed Regular Second Appeal No.1417 of 2006 which was allowed and
the judgment and decree passed by the First Appellate Court was set aside by
the High Court, by the judgment and order dated 12.08.2021. Therefore,
Defendant No.2 is before us with the present appeal.
6. The learned counsel for the appellant / Defendant No.2, at the outset,
contended that the question of law framed by the High Court for adjudication, is
a pure question of fact, which cannot be framed or decided while exercising
jurisdiction under Section 100 of the Code of Civil Procedure, 1908. In this
regard, reliance was placed on the decision of this Court in Jaichand (Dead)
4
Through LRs & Ors. v. Sahnulal & Anr.5 and Gurnam Singh (Dead) by LRs &
Ors. v. Lehna Singh (Dead) by LRs6.
6.1. According to the learned counsel, the joint family property was
partitioned in the year 1986; subsequently, one of the brothers, Thippeswamy,
sold his share i.e., the suit property to Defendant No.1 vide registered sale deed
dated 16.10.1989; and thereafter, Defendant No.1 sold the suit property to
Defendant No.2 vide registered sale deed dated 11.03.1993. The evidence
adduced by Defendant No.2 would clearly show that the suit property was
purchased by Defendant No.1 using his own funds and loan obtained from DW3
Narasimhamurthy and hence, the same should be considered as self-acquired
property of Defendant No.1. As such, at the time of sale, the suit property was
no longer a part of joint family property. Considering the said aspect, the First
Appellate Court rightly arrived at the conclusion that the suit property was a
self-acquired property of Defendant No.1.
6.2. It is further submitted that after the execution of the sale deed dated
11.03.1993 by Defendant No.1 in favour of Defendant No.2 in respect of the
suit property, the plaintiffs, who are the sons and daughters of Defendant No.1,
had filed the suit for partition and separate possession, without seeking the relief
5
2024 SCC OnLine SC 3864
6
(2019) 7 SCC 641
5
of cancellation of the said sale deed. Though the trial Court framed an issue, it
decided that the said issue does not arise for consideration, as in a suit for
partition, there is no necessity to seek a relief of declaration of sale deed
executed in favour of third parties as null and void. In this connection, the
learned counsel referred to a decision of this court in Murugan & Ors. v. Kesava
Gounder (Dead) Through LRs. & Ors.7, wherein, it was held that a specific
prayer for setting aside the sale deed is mandatory in the suit for declaration and
separate possession.
6.3. It is also submitted that the High Court erred in arriving at the finding that
Defendant No.1 got the suit property under the will dated 18.12.1978 and the
same blended into the joint family properties since then. Whereas, the property
received by the Defendant No.1 under the partition deed was different from the
suit property and that, the suit property was purchased by him out of his own
funds and the loan obtained from DW3 Narasimhamurthy. Hence, the doctrine
of blending would not apply to the present case. The legal position in this regard
is that the doctrine of blending of self-acquired property into joint family pool
would apply only when such self-acquired property is voluntarily thrown into
the common stock with intention to abandon separate claim over the same
[Refer: Mallesappa Bandeppa Desai & Anr. v. Desai Mallappa alias
Mallesappa & Anr.8, and Lakkireddi Chinna Venkata Reddi & Ors. v. Lakkireddi
Lakshmama9].
6.4. Stating so, the learned counsel prayed to allow this appeal by setting
aside the impugned judgment and order passed by the High Court.
7. On the contrary, the learned counsel for the respondents / plaintiffs
submitted that the suit property was acquired by Defendant No.1 through a sale
deed dated 16.10.1989, for a total consideration of Rs.15,000/- from
C. Thippeswamy, using nucleus funds or joint family funds viz., income derived
from the land allotted to the share of Defendant No.1 through partition; income
derived from doing coolie work; cash of Rs.10,000/- given during partition; and
cash given by Mallamma (grandmother of the respondents) by selling her
property at Rayadurga and hence, the same should be treated as ancestral
property and not self-acquired property.
7.1. It is further submitted that when the partition among the Defendant No.1
and his brothers, came into effect i.e., on 09.05.1986, the plaintiffs were minors
and were co-parceners with respect to the properties or amounts that were
8
(1961) 3 SCR 779
9
(1964) 2 SCR 172
7
divided and allotted to Defendant No.1’s share, as the family continued to reside
jointly. As such, the plaintiffs have a right over the suit property.
7.2. Referring to Hindu Law by Mulla, the learned counsel submitted that the
character of the ancestral property does not change with respect to the sons,
even after partition, as it is a settled principle of law that the share that a co-
sharer obtains upon the partition of ancestral property, continues to be ancestral
for his male issues, who acquire an interest in it by birth, whether they exist at
the time of partition or are born subsequently. Therefore, the suit property,
which was acquired/purchased by Defendant No.1, remains ancestral property
and the plaintiffs have a right over the same. In this regard, the learned counsel
placed reliance on the decision of this Court in Yudhishter v. Ashok Kumar10.
7.3. It is also submitted that even assuming but not admitting that joint family
property once divided through partition, no longer remains as such and is
considered self-acquired, the court must examine the facts and evidence to
determine how Defendant No.1 acquired the suit property for Rs.15,000/- in
1989, either using nucleus funds/joint family funds or with a loan obtained from
DW.3. According to the learned counsel, there was no reasonable possibility that
within a period of just three years, the Defendant No.1 could have accumulated
a sum of Rs.15,000/- solely by doing coolie work or by cultivating the land
10
(1987) 1 SCC 204
8
allotted to him by way of partition, and acquired the suit property. Further, no
convincing and reliable material was produced that Defendant No.1 obtained
loan from DW.3. That apart, there were contradictions and inconsistencies in the
defendants’ side’s deposition only to suggest that the suit property was acquired
using joint family funds. On the other hand, the plaintiffs have successfully
discharged their burden by producing sufficient material to establish that the suit
property was acquired using joint family funds, and the character of the suit
property must still be regarded as ancestral.
7.4. Ultimately, the learned counsel submitted that there is no evidence to
show that the suit property was sold for the benefit of the estate. Rather, it
shows that Defendant No.1 was in dire need of money to continue his bad habits
and not to look after the estate. That apart, the amount received by Defendant
No.1 after selling the suit property was never handed over to the plaintiffs for
their betterment. Therefore, it is submitted that the suit property was sold
without the consent of the plaintiffs and without any legal necessity, making the
sale deed void.
7.5. Pointing out the above, the learned counsel submitted that considering all
these aspects, both the trial Court and High Court rightly decreed the suit in
favour of the plaintiffs and the same do not call for any interference by this
court.
9
8. We have heard the learned counsel for both sides and perused the
materials available on record.
9. As evident from the facts, there was a partition deed dated 09.05.1986,
among Defendant No.1 and his two brothers in respect of the ancestral
properties, after the death of their father, Channappa, who had two wives and
three sons through them. ‘A’ schedule property was allotted to C. Thippeswamy
(son through the first wife, Mallamma); ‘B’ schedule property was allotted to
C. Eshwarappa, (son through the second wife, Parvathamma); ‘C’ schedule
property was allotted to Defendant No. 1, (another son through the second wife,
Parvathamma); and ‘D’ schedule property was divided into equal shares among
Defendant No.1 and his brothers. Subsequently, Defendant No.1 purchased the
suit property, which was allotted to the share of C. Thippeswamy through
partition deed dated 09.05.1986 (A-schedule property), by a sale deed dated
16.10.1989 for Rs.15,000/-. Thereafter, he sold the suit property to Defendant
No.2 on 11.03.1993 for a sale consideration of Rs.20,000/. It is pertinent to
mention here that the suit property is the property allotted to C. Thippeswamy,
later purchased by Defendant No.1 and not the property which was received by
Defendant No.1 through will.
10. Contending that the suit property was acquired by Defendant No.1 using
joint family funds and should therefore be treated as ancestral; he cannot sell it
10
without the consent of the plaintiffs; and plaintiffs 1 and 3, being coparceners of
the joint family, have a share in the suit property, while plaintiffs 2 and 4 have a
right to maintenance from it, the plaintiffs instituted the suit bearing
O.S.No.169 of 1994 for partition and separate possession. The defence raised
was that the suit property was self-acquired property of Defendant No.1 and
hence, Defendant No.1 has the right to sell it to Defendant No.2. Before the trial
Court, on the side of the plaintiffs, PW1 to PW3 were examined and Exs.P1 to
P3 were marked; and on the side of the defendants, DW1 to DW4 were
examined and Exs.D1 to D10 documents were marked. Upon analysing the
same, the trial Court decreed the suit in favour of the plaintiffs, which was
reversed by the First Appellate Court. However, the High Court set aside the
judgment passed by the First Appellate Court and restored the judgment of the
trial Court. Therefore, this appeal came to be filed by the appellant / Defendant
No.2.
11. On the basis of the pleadings and submissions made by the parties, the
main dispute in the lis is, whether the suit property was ancestral or self-
acquired property of Defendant No.1.
12. Before delving into the facts of the case, this court in Jaichand (supra)
expressed its anguish at the High Court for not understanding the scope of
Section 100 CPC, which limits intervention only to cases where a substantial
11
question of law exists, and clarified that the High Court can go into the findings
of facts under Section 103 CPC only under certain circumstances, as stated in
the following passages:
“23. We are thoroughly disappointed with the manner in which the High Court
framed the so-called substantial question of law. By any stretch of imagination, it
cannot be termed even a question of law far from being a substantial question of
law. How many times the Apex Court should keep explaining the scope of a
second appeal Under Section 100 of the Code of Civil Procedure and how a
substantial question of law should be framed? We may once again explain the
well-settled principles governing the scope of a second appeal Under
Section 100 of the Code of Civil Procedure.
24. In Navaneethammal v. Arjuna Chetty reported in MANU/SC/2077/1996 :
1998: INSC: 349 : AIR 1996 S.C. 3521, it was held by this Court that the High
Court should not reappreciate the evidence to reach another possible view in
order to set aside the findings of fact arrived at by the first appellate Court.
25. In Kshitish Chandra Purkait v. Santosh Kumar Purkait reported in
MANU/SC/0647/1997 : 1997:INSC:487 : (1997) 5 S.C.C. 438), this Court held
that in the Second Appeal, the High Court should be satisfied that the case
involves a substantial question of law and not mere question of law.
26. In Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor reported in
MANU/SC/0058/1999 : 1999 (2) S.C.C. 471, this Court held:
Keeping in view the amendment made in 1976, the High Court can exercise its
jurisdiction Under Section 100, Code of Civil Procedure only on the basis of
substantial questions of law which are to be framed at the time of admission of the
Second Appeal and the Second Appeal has to be heard and decided only on the
basis of such duly framed substantial questions of law. A judgment rendered by
the High Court Under Section 100 Code of Civil Procedure without following the
aforesaid procedure cannot be sustained.
27. This Court in Kondira Dagadu Kadam v. Savitribai Sopan Gujar reported in
MANU/SC/0278/1999 : 1999:INSC:192 : AIR 1999 S.C. 2213 held:
The High Court cannot substitute its opinion for the opinion of the first appellate
Court unless it is found that the conclusions drawn by the lower appellate Court
were erroneous being contrary to the mandatory provisions of law applicable or
its settled position on the basis of pronouncements made by the Apex Court, or
was based upon inadmissible evidence or arrived at without evidence.
12
28. It is thus clear that Under Section 100, Code of Civil Procedure, the High
Court cannot interfere with the findings of fact arrived at by the first Appellate
Court which is the final Court of facts except in such cases where such findings
were erroneous being contrary to the mandatory provisions of law, or its settled
position on the basis of the pronouncement made by the Apex Court or based
upon inadmissible evidence or without evidence.
29. The High Court in the Second Appeal can interfere with the findings of the
trial Court on the ground of failure on the part of the trial as well as the first
appellate Court, as the case may be, when such findings are either recorded
without proper construction of the documents or failure to follow the decisions of
this Court and acted on assumption not supported by evidence. Under Section
103, Code of Civil Procedure, the High Court has got power to determine the
issue of fact. The Section lays down:
Power of High Court to determine issue of fact: In any Second Appeal, the High
Court may, if the evidence on the record is sufficient to determine any issue
necessary for the disposal of the appeal,-
(a) Which has not been determined by the lower Appellate Court or both by the
Court of first instance and the lower Appellate Court, or
(b) Which has been wrongly determined by such Court or Courts by reason of a
decision on such question of law as is referred to in Section 100.
30. In Bhagwan Sharma v. Bani Ghosh reported in MANU/SC/0094/1993 : AIR
1993 S.C. 398, this Court held:
The High Court was certainly entitled to go into the question as to whether the
findings of fact recorded by the first appellate court which was the final court of
fact were vitiated in the eye of law on account of non-consideration of admissible
evidence of vital nature. But, after setting aside the findings of fact on that ground
the Court had either to remand the matter to the first appellate Court for a
rehearing of the first appeal and decision in accordance with law after taking into
consideration the entire relevant evidence on the records, or in the alternative to
decide the case finally in accordance with the provisions of Section 103(b). …… If
in an appropriate case the High Court decides to follow the second course, it must
hear the parties fully with reference to the entire evidence on the records relevant
to the issue in question and this is possible if only a proper paper book is
prepared for hearing of facts and notice is given to the parties. The grounds
which may be available in support of a plea that the finding of fact by the court
below is vitiated in law does not by itself lead to the further conclusion that a
contrary finding has to be finally arrived at on the disputed issue. On a
reappraisal of the entire evidence the ultimate conclusion may go in favour of
either party and it cannot be prejudged.
31. In the case of Hero Vinoth v. Seshammal reported in MANU/SC/2774/2006 :
2006:INSC:305 : (2006) 5 SCC 545 this Court explained the concept in the
following words:
13
It must be tested whether the question is of general public importance or whether
it directly and substantially affects the rights of the parties.
Or whether it is not finally decided, or not free from difficulty or calls for
discussion of alternative views.
If the question is settled by the highest court or the general principles to be
applied in determining the question are well settled and there is a mere question
of applying those principles or that the plea raised is palpably absurd the
question would not be a substantial question of law.
32. It is not that the High Courts are not well-versed with the principles governing
Section 100 of the Code of Civil Procedure. It is only the casual and callous
approach on the part of the courts to apply the correct principles of law to the
facts of the case that leads to passing of vulnerable orders like the one on hand.”
12.1. In the present case, in our view, the so-called substantial question of law
framed by the High Court does not qualify to be a substantial question of law,
rather the exercise of the High Court is a venture into the findings of the First
Appellant Court by re-appreciation of evidence. It is settled law that the High
Court can go into the findings of facts only if the First Appellate Court has
failed to look into the law or evidence or considered inadmissible evidence or
without evidence. Section 103 permits the High Court to go into the facts only
when the courts below have not determined or rendered any finding on a crucial
fact, despite evidence already available on record or after deciding the
substantial question of law, the facts of a particular case demand
re-determination. For the second limb of Section 103 to apply, there must first
be a decision on the substantial question of law, to which the facts must be
applied, to determine the issue in dispute. When the First Appellate Court in
exercise of its jurisdiction has considered the entire evidence and rendered a
14
finding, the High Court cannot re-appreciate the evidence just because another
view is possible, when the view taken by the First Appellate Court is plausible
and does not suffer from vice in law. When the determination of the High Court
is only by way of re-appreciation of the existing evidence, without there being
any legal question to be answered, it would be axiomatic that not even a
question of law is involved, much less a substantial one. It will be useful to refer
to another judgment of this Court in Chandrabhan (Deceased) through L.Rs &
Ors. v. Saraswati & Ors.11, wherein it was held as follows:
“33. The principles relating to Section 100 of the Code of Civil Procedure
relevant for this case may be summarised thus:
(i) An inference of fact from the recitals or contents of a document is a question
of fact. But the legal effect of the terms of a document is a question of law.
Construction of a document involving the application of any principle of law, is
also a question of law. Therefore, when there is misconstruction of a document
or wrong application of a principle of law in construing a document, it gives
rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial
question of law, and not a mere question of law. A question of law having a
material bearing on the decision of the case (that is, a question, answer to
which affects the rights of parties to the suit) will be a substantial question of
law, if it is not covered by any specific provisions of law or settled legal
principle emerging from binding precedents and involves a debatable legal
issue. A substantial question of law will also arise in a contrary situation, where
the legal position is clear, either on account of express provisions of law or
binding precedents, but the court below has decided the matter, either ignoring
or acting contrary to such legal principle. In the second type of cases, the
substantial question of law arises not because the law is still debatable, but
because the decision rendered on a material question, violates the settled
position of law.
11
MANU/SC/1224/2022: 2022 INSC 997
15
(iii) The general Rule is that the High Court will not interfere with findings of
facts arrived at by the courts below. But it is not an absolute rule. Some of the
well-recognised exceptions are where (i) the courts below have ignored
material evidence or acted on no evidence; (ii) the courts have drawn wrong
inferences from proved facts by applying the law erroneously; or (iii) the courts
have wrongly cast the burden of proof. When we refer to “decision based on no
evidence”, it not only refers to cases where there is a total dearth of evidence,
but also refers to any case, where the evidence, taken as a whole, is not
reasonably capable of supporting the finding.
34. In this case, it cannot be said that the First Appellate Court acted on no
evidence. The Respondents in their Second Appeal before the High Court did not
advert to any material evidence that had been ignored by the First Appellate Court.
The Respondents also could not show that any wrong inference had been drawn by
the First Appellate Court from proved facts by applying the law erroneously.
35. In this case, as observed above, evidence had been adduced on behalf of the
Original Plaintiff as well as the Defendants. The First Appellate Court analysed
the evidence carefully and in effect found that the Trial Court had erred in its
analysis of evidence and given undue importance to discrepancies and
inconsistencies, which were not really material, overlooking the time gap of 34
years that had elapsed since the date of the adoption. There was no such infirmity
in the reasoning of the First Appellate Court which called for interference.
36. Right of appeal is not automatic. Right of appeal is conferred by statute. When
statute confers a limited right of appeal restricted only to cases which involve
substantial questions of law, it is not open to this Court to sit in appeal over the
factual findings arrived at by the First Appellate Court.”
12.2. In the present case, the First Appellate Court analyzed the entire oral
evidence adduced by both parties, as well as the documentary evidence relied
upon by either side, and dismissed the suit. The authority to re-consider the
evidence is available only to the First Appellate Court under Section 96 and not
to the High Court in exercise of its authority under Section 100, unless the case
falls under the exceptional circumstances provided under Section 103. While so,
the re-appreciation of the entire evidence, including the contents of the exhibits,
16
reliance on and wrongful identification of a different property and treating the
same to be the suit property actually in dispute to prescribe another view
without any substantial question of law, only illustrate the callousness of the
High Court in applying the settled principles. Therefore, the High Court erred in
setting aside the judgment and decree of the First Appellate Court.
13. Further, it is a settled principle of law that there is no presumption of a
property being joint family property only on account of existence of a joint
Hindu family. The one who asserts has to prove that the property is a joint
family property. If, however, the person so asserting proves that there was
nucleus with which the joint family property could be acquired, then there
would be presumption of the property being joint and the onus would shift on
the person who claims it to be self-acquired property to prove that he purchased
the property with his own funds and not out of joint family nucleus that was
available. That apart, while considering the term ‘nucleus’ it should always be
borne in mind that such nucleus has to be established as a matter of fact and the
existence of such nucleus cannot normally be presumed or assumed on
probabilities. This Court in R.Deivanai Ammal (Died) v. G. Meenakshi
Ammal12, dealt with the concept of Hindu Law, ancestral property and the
nucleus existing therein. The relevant paragraphs are extracted below for ready
reference:
12
AIR 2004 MADRAS 529
17“13. First let us consider the nature of the suit properties, namely, self-acquired
properties of late Ganapathy Moopanar or ancestral properties and whether
any nucleus was available to purchase the properties. Under the Hindu Law it
is only when a person alleging that the property is ancestral property proves
that there was a nucleus by means of which other property may have been
acquired, that the burden is shifted on the party alleging self-acquisitions to
prove that the property was acquired without any aid from the family estate. In
other words the mere existence of a nucleus however small or insignificant is
not enough. It should be shown to be of such a character as could reasonably be
expected to lead to the acquisition of the property alleged to be part of the joint
family property. Where the doctrine of blending is invoked against a person
having income at his disposal and acquiring property, the reasonable
presumption to make is that he had the income at his absolute disposal unless
there is evidence to the contrary. If a coparcener desires to establish that a
property in the name of a female member of the family or in the name of the
manager himself has to be accepted and treated as property acquired from the
joint family nucleus, it is absolutely essential that such a coparcener should not
only barely plead the same, but also establish the existence of such a joint
family fund or nucleus. Even if the joint family nucleus is so established, the
prescription that the accretions made by the manager or the purchases made by
him should be deemed to be from and out of such a nucleus does not arise, if
there is no proof that such nucleus of the joint family is not an income-yielding
apparatus. The proof required is very strict and the burden is on the person who
sets up a case that the property in the name of a female member of the family or
in the name of the manager or any other coparcener is to be treated as joint
family property. There should be proof of the availability of such surplus
income or joint family nucleus on the date of such acquisitions or purchases.
The same is the principle even in the cases where moneys were advanced on
mortgages over immoveable properties. The onus is not on the acquirer to
prove that the property standing in his name was purchased from joint family
funds. That may be so, in the case of a manager of a joint family, but not so in
the case of all coparceners. For a greater reason it is not so in the case of
female members.
14.The doctrine of blending of self-acquired property with joint family has to be
carefully applied with reference to the facts of each case. No doubt it is settled
that when members of a joint family by their joint labour or in their joint
business acquired property, that property, in the absence of a clear indication
of a contrary intention, would be owned by them as joint family property and
their male issues would necessarily acquire a right by birth in such property.
But the essential sine qua non is the absence of a contrary intention. If there is
satisfactory evidence of an intention on the part of the acquirer such property to
treat it as his own, but not as joint family property, the presumption which
18
ordinarily arises, according to the personal law of Hindus that such property
would be regarded as joint family property, will not arise.
15.It is a well-established principle of law that where a party claims that any
particular item of property is joint family property, the burden of proving that it
is so rests on the party asserting it. Where it is established or admitted that the
family possessed some joint property which from its nature and relative value
may have formed the nucleus from which the property in question may have
been acquired, the presumption arises that it was joint property and the burden
shifts to the party alleging self-acquisition to establish affirmatively that the
property was acquired without the aid of the joint family. But no such
presumption would arise if the nucleus is such that with its help the property
claimed to be joint could not have been acquired. In order to give rise to the
presumption, the nucleus should be such that with its help the property claimed
to be joint could have been acquired. A family house in the occupation of the
members and yielding no income could not be nucleus out of which acquisitions
could be made even though it might be of considerable value.
16.In a Hindu joint family, if one member sues for partition on the foot that the
properties claimed by him are joint family properties then three circumstances
ordinarily arise. The first is an admitted case when there is no dispute about the
existence of the joint family properties at all. The second is a case where certain
properties are admitted to the joint family properties and the other properties in
which a share is claimed are alleged to be the accretions or acquisitions from
the income available from joint family properties or in the alternative have been
acquired by a sale or conversion of such available properties. The third head is
that the properties standing in the names of female members of the family are
benami and that such a state of affairs has been deliberately created by the
manager or the head of the family and that really the properties or the amounts
standing in the names of female members are properties of the joint family.
While considering the term ‘nucleus’ it should always be borne in mind that
such nucleus has to be established as a matter of fact and the existence of such
nucleus cannot normally be presumed or assumed on probabilities. The extent
of the property, the income from the property, the normal liability with which
such income would be charged and the net available surplus of such joint family
property do all enter into computation for the purpose of assessing the content
of the reservoir of such a nucleus from which alone it could, with reasonable
certainty, be said that the other joint family properties have been purchased
unless a strong link or nexus is established between the available surplus
income and the alleged joint family properties. The person who comes to Court
with such bare allegations without any substantial proof to back it up should
fail.
19
17.It is also a well-established doctrine of Hindu Law that property which was
originally self-acquired may become joint property if it has been voluntarily
thrown by the coparcener into the joint stock with the intention of abandoning
all separate claims upto it. But the question whether the coparcener has done so
or not is entirely a question of fact to be decided in the light of all the
circumstances of the case. It must be established that there was a clear intention
on the part of the coparcener to waive his separate rights and such an intention
will not be inferred from acts which may have been done from kindness or
affection. The important point to keep in mind is that the separate property of a
Hindu coparcener ceases to be his separate property and acquires the
characteristics of his joint family or ancestral property, not by mere act of
physical mixing with his joint family or ancestral property, but by his own
volition and intention by his waiving or surrendering his special right in it as
separate property. Such intention can be discovered only from his words or
from his acts and conduct.”
14. It is also to be noted that in Hindu law, for a property to be considered as
an ancestral property, it has to be inherited from any of the paternal ancestors up
to three generations. In this regard, it would be appropriate to refer to the
judgment of this Court in Govindbhai Chhotabhai Patel & Ors. v. Patel
Ramanbhai Mathurbhai13, wherein it has been held as under:
“18. The learned counsel for the appellants has referred to Shyam Narayan
Prasad [Shyam Narayan Prasad v. Krishna Prasad, (2018) 7 SCC 646 : (2018)
3 SCC (Civ) 702] . That is a case in which the property in question was held to
be ancestral property by the trial court. The plaintiffs therein being sons and
grandson of one of the sons of Gopal Prasad, the last male holder was found to
have equal share in the property. The question examined was whether the
property allotted to one of the sons of Gopal Prasad in partition retains the
character of coparcenary property. It was the said finding which was affirmed
by this Court. This Court held as under: (SCC p. 651, para 12)
“12. It is settled that the property inherited by a male Hindu from his father,
father’s father or father’s father’s father is an ancestral property. The essential
feature of ancestral property, according to Mitakshara law, is that the sons,
grandsons, and great grandsons of the person who inherits it, acquire an
interest and the rights attached to such property at the moment of their birth.
The share which a coparcener obtains on partition of ancestral property is
13
(2020) 16 SCC 255
20
ancestral property as regards his male issue. After partition, the property in the
hands of the son will continue to be the ancestral property and the natural or
adopted son of that son will take interest in it and is entitled to it by
survivorship.”
… … … …
20. In view of the undisputed fact, that Ashabhai Patel purchased the
property, therefore, he was competent to execute the will in favour of any
person. Since the beneficiary of the will was his son and in the absence of any
intention in the will, beneficiary would acquire the property as self-acquired
property in terms of C.N. Arunachala Mudaliar case [C.N. Arunachala
Mudaliar v. C.A. Muruganatha Mudaliar, (1953) 2 SCC 362 : 1954 SCR 243 :
AIR 1953 SC 495]. The burden of proof that the property was ancestral was on
the plaintiffs alone. It was for them to prove that the will of Ashabhai intended
to convey the property for the benefit of the family so as to be treated as
ancestral property. In the absence of any such averment or proof, the property
in the hands of donor has to be treated as self-acquired property. Once the
property in the hands of donor is held to be self-acquired property, he was
competent to deal with his property in such a manner he considers as proper
including by executing a gift deed in favour of a stranger to the family.”
15. With regard to coparcenary property, the principle laid down by this
Court in Rohit Chauhan v. Surinder Singh & Ors.14 would be relevant as
follows:
“11. ….In our opinion coparcenary property means the property which
consists of ancestral property and a coparcener would mean a person who
shares equally with others in inheritance in the estate of common ancestor.
Coparcenary is a narrower body than the joint Hindu family and before the
commencement of the Hindu Succession (Amendment) Act, 2005, only male
members of the family used to acquire by birth an interest in the coparcenary
property. A coparcener has no definite share in the coparcenary property but
he has an undivided interest in it and one has to bear in mind that it enlarges
by deaths and diminishes by births in the family. It is not static. We are further
of the opinion that so long, on partition an ancestral property remains in the
hand of a single person, it has to be treated as a separate property and such a
person shall be entitled to dispose of the coparcenary property treating it to be
his separate property but if a son is subsequently born, the alienation made
before the birth cannot be questioned. But, the moment a son is born, the14
(2013) 9 SCC 419
21property becomes a coparcenary property and the son would acquire interest
in that and become a coparcener.
12.The view which we have taken finds support from a judgment of this Court
in M. Yogendra v. Leelamma N. [(2009) 15 SCC 184 : (2009) 5 SCC (Civ)
602] in which it has been held as follows: (SCC p. 192, para 29)
“29. It is now well settled in view of several decisions of this Court that the
property in the hands of a sole coparcener allotted to him in partition shall be
his separate property for the same shall revive only when a son is born to him.
It is one thing to say that the property remains a coparcenary property but it is
another thing to say that it revives. The distinction between the two is
absolutely clear and unambiguous. In the case of former any sale or
alienation which has been done by the sole survivor coparcener shall be valid
whereas in the case of a coparcener any alienation made by the karta would
be valid.”
… … … … …
14.A person, who for the time being is the sole surviving coparcener as in the
present case Gulab Singh was, before the birth of the plaintiff, was entitled to
dispose of the coparcenary property as if it were his separate property. Gulab
Singh, till the birth of plaintiff Rohit Chauhan, was competent to sell,
mortgage and deal with the property as his property in the manner he liked.
Had he done so before the birth of plaintiff, Rohit Chauhan, he was not
competent to object to the alienation made by his father before he was born or
begotten. But, in the present case, it is an admitted position that the property
which Defendant 2 got on partition was an ancestral property and till the birth
of the plaintiff he was the sole surviving coparcener but the moment plaintiff
was born, he got a share in the father’s property and became a coparcener. As
observed earlier, in view of the settled legal position, the property in the hands
of Defendant 2 allotted to him in partition was a separate property till the
birth of the plaintiff and, therefore, after his birth Defendant 2 could have
alienated the property only as karta for legal necessity. It is nobody’s case that
Defendant 2 executed the sale deeds and release deed as karta for any legal
necessity. Hence, the sale deeds and the release deed executed by Gulab Singh
to the extent of entire coparcenary property are illegal, null and void.
However, in respect of the property which would have fallen in the share of
Gulab Singh at the time of execution of sale deeds and release deed, the
parties can work out their remedies in appropriate proceeding.”
16. In the instant case, the plaintiffs raised a specific plea throughout the
proceedings that the suit property was purchased by Defendant No.1 using
22
family nucleus viz., income derived from the lands allotted to the share of
Defendant No.1; income derived from doing coolie work; cash of Rs.10,000/-
received at the time of partition; and cash received from Mallamma
(grandmother of the respondents) who sold her property at Rayadurga and
therefore, the suit property should be treated as ancestral and the plaintiffs, who
were co-parceners, have a right in it.
17. It cannot be disputed that the properties divided among Defendant No.1
and his brothers through partition deed dated 09.05.1986, are joint family
properties. However, as per Hindu law, after partition, each party gets a separate
and distinct share and this share becomes their self-acquired property and they
have absolute rights over it and they can sell, transfer, or bequeath it as they
wish. Accordingly, the properties bequeathed through partition, become the self-
acquired properties of the respective sharers.
18. Apparently, the plaintiffs did not question the partition deed (Ex. P1)
effected among the brothers. It states that the respective parties shall hereinafter
enjoy the properties allotted to their share with a right to sell, lease, gift,
encumber, etc. The partition deed further reveals that the suit property was
allotted to C. Thippeswamy, one of the brothers of Defendant No.1; and
Defendant No.1 was allotted 10 acres of land, which was different from the suit
property measuring 7 acres 20 Guntas allotted to the said C. Thippeswamy. It
23
also proceeds to state that after the death of the father Channappa, the joint
family became unmanageable due to difference of opinion among the members
and therefore, they decided that it was not good to stay together and partitioned
the lands allotted to them. Thus, the intention of the parties and the recitals in
the partition deed establish that the parties wanted to go their separate ways and
did not want the property to remain as joint family property.
19. As reiterated above, after the joint family property has been distributed in
accordance with law, it ceases to be joint family properties and the shares of the
respective parties become their self-acquired properties. Hence, the suit
property acquired by Defendant No.1 became his self-acquired property, on
being sold by his brother Thippeswamy to him, vide sale deed dated 16.10.1989.
It is the contention of the plaintiffs that the suit property was purchased by
Defendant No.1 using family nucleus and thus, should be considered as
ancestral property. Whereas, the defence raised was that Defendant No.1
acquired the suit property with the aid of his own funds and loan obtained from
DW3- Narasimhamurthy. DW1- Chandrashekar clearly stated in his deposition
that Defendant No.1 obtained a loan from DW3, out of which, he purchased the
suit property and that he repaid the loan amount through a sale deed executed in
respect of 4 acres of land to DW3 and out of the balance amount, he performed
his daughter’s marriage. It was also stated by DW1 that apart from the suit
property, Defendant No.1 had various lands and a house as well. DW2
24
Lakshmanappa stated in his evidence that he had signed the partition deed
(Ex. P1) executed among Defendant No.1 and his brothers in 1986; and he
denied the payment of Rs.10,000/- to the share of Defendant No.1. He further
deposed that Thippeswamy, elder brother of Defendant No.1, residing in
Bangalore, sold his share to Defendant No.1 as he was unable to look after the
same. His evidence also establishes that Defendant No.1 obtained loan from
DW3 and he sold his land to him for repayment of the said loan in 1993 by
executing a sale deed (Ex. D1), in which, DW2 was a witness; and at that time,
the wife and children of Defendant No.1 were present. DW3 –
Narasimhamurthy in his evidence, stated that Defendant No.1 obtained loan
from him for purchase of land of his brother, in October 1989 and he repaid the
same by selling his 4 acres of land to him in 1993; and at the time of execution
of sale deed by Defendant No.1 to DW3, his wife and children were present. It
is the evidence of DW4 – Linganna that Defendant No.1 executed a sale deed in
favour of DW3 in respect of 4 acres of land, for the repayment of loan borrowed
by him and DW4 was the witness to the said document. He also categorically
stated that Defendant No.1 had purchased about 7 acres of land, after obtaining
loan from DW3 and prior to the execution of sale deed in favour of DW3. It is
categorically stated in the sale deed dated 11.03.1993 that the suit property was
a self-acquired property of Defendant No.1. The sale deed (Ex.P2) does not
anywhere disclose that the suit property purchased by Defendant No.1 was
ancestral property or was purchased from the income received from the joint
25
family property, except for a mere reference to the partition deed (Ex. P1),
which according to us, is not sufficient to come to a conclusion that the
properties allotted to the share of Defendant No.1 should also be treated as joint
family properties, and no evidence was let in by the plaintiffs to prove that the
other properties allotted to Defendant No.1 yielded income and that it was only
from that entire income that the suit property was purchased. No records have
been produced in this regard. Though PW2 stated that during the partition, all
the three brothers were allotted Rs.10,000/- each, there was no recital to that
effect in the partition deed (Ex. P1) and hence, it cannot be believed. It is well
established that the contents in a document would prevail over any contrary oral
evidence. Regarding the contention that Mallamma had sold her property in
order to help Defendant No.1 to purchase the suit property, except the statement
of PW2, there is no evidence in this regard. Further, the said Mallamma was not
examined and the sale deed executed by her was not produced to substantiate
the same. It is also clear from the depositions on the defendants’ side that
Defendant No.1 was not having any bad habits and his wife and children were
present, at the time of execution of the sale deed. Whereas, there were
inconsistencies in the statements of PW1 and PW2 in demonstrating that the suit
property was an ancestral property. The mere existence of sons and daughters in
a joint Hindu family does not make the father’s separate or self-
acquired property as joint family property. It was also the claim of the
defendants that Defendant No.1 performed the marriage of his daughter with the
26
funds received as sale consideration, which according to us, is the role of a
Kartha, and therefore, has to be treated as act of necessity and duty. This fact
has not been objected to by the plaintiffs.
19.1. It is also to be mentioned here that when the income derived from the
joint family property or when a joint family property is sold and the sale
consideration is utilised for maintenance and education within the joint family,
the same are to be treated as out of necessity as it is the duty of every Kartha to
do so. Hence, it is sufficient to satisfy the legal necessity if the Kartha had sold
the property and used the funds for upbringing the children. That apart, under
the customary practices and tradition in this country, it is the father who
performs the marriage of his children and therefore, the expenses incurred for
that purposes are also to be treated as expenses out of necessity.
19.2. At the cost of repetition, the property in dispute is the property purchased
by Defendant No.1 from his brother C. Thippeswamy. The High Court rather
than ascertaining as to how this property was acquired, it erroneously went into
a fact- finding inquiry in the Second Appeal regarding the property received by
Defendant No.1 under a Will, a narration of which is found in the recital of the
partition deed. The High Court even failed to notice that the partition took place
in 1986, whereas, the suit property was purchased only in 1989. This deviation,
in our view, has further contributed to the miscarriage of justice. That apart, the
27
High Court ought not to have relied upon disproved circumstances claimed by
the plaintiffs against Defendant No.1 alleging that he alienated another property
to presume that the suit property was also sold under similar circumstances. In
fact, the said sales were not challenged by the plaintiffs. Thus, taking note of the
facts and circumstances of the case and also the principles enunciated in the
above decisions, in our considered opinion, Defendant No.1 acquired the suit
property out of the loan obtained from DW3 and not from the income derived
from the nucleus funds or joint family funds, and hence, the suit property should
be considered as his self-acquired property. As such, Defendant No.1 has the
right to sell the suit property and accordingly, the sale deed executed by him in
favour of Defendant No.2 is perfectly valid. That apart, the evidence on record
also displays that the object of the sale of the suit property was for the benefit of
the family and therefore, we also disagree with the findings of the High Court
on this aspect.
20. Regarding the doctrine of blending of self-acquired property with joint
family, it is settled law that property separate or self- acquired of a member of
joint Hindu family may be impressed with the character of joint family property
if it is voluntarily thrown by the owner into the common stock with the intention
of abandoning his separate claim therein but to establish such abandonment a
clear intention to waive separate rights must be established. From the mere fact
that other members of the family were allowed to use the property jointly with
28
himself, or that the income of the separate property was utilized out of
generosity to support persons whom the holder was either bound or not bound
to support, or from the failure to maintain separate accounts, abandonment
cannot be inferred, for an act of generosity or kindness, will not ordinarily be
regarded as an admission of a legal obligation [See: Lakkireddi Chinna Venkata
Reddy & Ors. v. Lakkireddi Lakshamama15 and K.V. Narayanan v.
K.V.Ranganandhan & Ors.16]. In the present case, this question does not arise,
as the suit property, which was purchased from C. Thippeswamy by Defendant
No.1, is different from the property which is said to have been received by
Defendant No.1 through a Will that allegedly blended with the joint family
property. The plaintiffs have not adduced any evidence to show that the property
received through the Will, blended with the joint family properties and that
income was received from that property, which was utilized to purchase the suit
property. There is no finding on this aspect by the High Court as well. On the
other hand, as stated above, we are satisfied with the evidence on record that the
suit property is a self-acquired property. However, the High Court erroneously
applied the doctrine of blending under the Hindu joint family law by relying
upon judgments that are not applicable to the case on hand, re-appreciated
evidence without framing any substantial question of law and allowed the
15
1964 (2) SCR 172
16
(1977) 1 SCC 244
29
appeal filed by the plaintiffs. This, according to us, is not sustainable for the
aforesaid reasons.
21. In view of the foregoing discussion, the impugned judgment and order of
the High Court is set aside, and the judgment and decree of the First Appellate
Court is restored. Accordingly, this appeal stands allowed. The parties shall bear
their own costs.
22. Connected Miscellaneous Application(s) shall stand disposed of.
…………………………J.
[J.B. Pardiwala]
…………………………J.
[R. Mahadevan]
NEW DELHI;
APRIL 22, 2025.