R. S. ANJAYYA GUPTA v. THIPPAIAH SETTY & Ors.

who had invited our attention to the pleadings and evidence on record, this Court deem it to appropriate to relegate the parties before the High Court for consideration of the first appeal afresh. It is said 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 five paragraphs of the impugned judgment are only reproduction of the submissions made by the counsel for the concerned parties. After doing so, 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. [Para 16] [878-G; 879-A-B]

#2. 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. This Court was at one stage persuaded to consider and examine the 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, this Court does 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. [Para 18] [881-F-G; 882-A-C] C. Venkata Swamy v. H.N. Shivanna (Dead) by Legal Representative & Anr. (2018) 1 SCC 604 : [2017] 12 SCR 1 ; Madhukar & Ors. v. Sangram & Ors. (2001) 4 SCC 756 : [2001] 3 SCR 138 ; Mudi Gowda Gowdappa Sankh v. Ram Chandra Ravagowda Sankh (1969) 1 SCC 386 : [1969] 3 SCR 245 ; G. Narayana Raju A B C D E F G H R. S. ANJAYYA GUPTA v. THIPPAIAH SETTY & ORS. 871 (dead) by his Legal Representative v. G. Chamaraju & Ors. AIR 1968 SC 1276 : [1968] SCR 464 ; Appasaheb Peerappa Chamdgade v. Devendra Peerappa Chamdgade and Ors. (2007) 1 SCC 521 ; V.D. Dhanwatey v. Commissioner of Income Tax, M.P., Nagpur [1968] 2 SCR 62 ; Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 : [2001] 1 SCR 948 ; U. Manjunath Rao v. U. Chandrashekar and Another (2017) 15 SCC 309 : [2017] 7 SCR 608 ; H.K.N. Swami v. Irshad Basith (Dead) by Lrs. (2005) 10 SCC 243 ; State Bank of India and Another v. Emmsons International Limited and Another (2011) 12 SCC 174 : [2011] 10 SCR 436 ; Kurian Chacko v. Varkey Ouseph AIR 1969 Kerala 316 ; Jagannath v. Arulappa and Another (2005) 12 SCC 303 ; B.V. Nagesh and Another v. H.V. Sreenivasa Murthy (2010) 13 SCC 530 : [2010] 11 SCR 784 ; Union of India v. K.V. Lakshman and Others (2016) 13 SCC 124 : [2016] 5 SCR 622 – referred to. Case Law Reference [2017] 12 SCR 1 [2001] 3 SCR 138 [1969] 3 SCR 245 [1968] SCR 464 (2007) 1 SCC 521 [1968] 2 SCR 62 [2001] 1 SCR 948 [2017] 7 SCR 608 (2005) 10 SCC 243 [2011] 10 SCR 436 (2005) 12 SCC 303 [2010] 11 SCR 784 [2016] 5 SCR 622 referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to Para 13 Para 13 Para 13 Para 13 Para 13 Para 15 Para 15 Para 15 Para 17 Para 17 Para 17 Para 17 Para 17 A B C D E F G H 872 SUPREME COURT REPORTS [2019] 8 S.C.R. A CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7418 of 2009. From the Judgment and Order dated 07.09.2004 and 27.09.2007 of the High Court of Karnataka at Bangalore in RFA No. 456 of 2002 & RP No. 567 of 2005. Shailesh Madiyal, Sudhanshu Prakash, Advs. for the Appellant. Raghavendra S. Srivatsa, Pai Amit, Abhijat P. Medh, Advs. for the Respondents. The Judgment of the Court was delivered by A. M. KHANWILKAR, J.

#1. The present appeal takes exception to the judgment and decree of the High Court of Karnataka at Bangalore dated 7th 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 self-acquired 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 entitled to 5/12th share in all the suit properties and defendant No.3 (a) (b) and (c) each were entitled to 1/24th share in all the 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.3-patriarch 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. B C D E F G H R. S. ANJAYYA GUPTA v. THIPPAIAH SETTY & ORS. [A. M. KHANWILKAR, J.] 873

#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 (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 senior- most 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. 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 “worldly-wise”. He denied that the suit properties were self-acquired 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. A B C D E F G H 874 SUPREME COURT REPORTS [2019] 8 S.C.R. A B C

#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. On the basis of the above pleadings, the Trial Court framed the D 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 30th January, 2002, wherein it found in favour E F G H R. S. ANJAYYA GUPTA v. THIPPAIAH SETTY & ORS. [A. M. KHANWILKAR, J.] 875 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 (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 self-acquired, 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 self-acquired 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.

#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 A B C D E F G H 876 SUPREME COURT REPORTS [2019] 8 S.C.R. 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 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 7th September, 2004, the High Court recorded that the contest was only in regard to the 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 A B C D E F G H R. S. ANJAYYA GUPTA v. THIPPAIAH SETTY & ORS. [A. M. KHANWILKAR, J.] 877 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 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 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