NON REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NOS. 6714-6715 OF 2002

Y. Nagaraj  ……..Appellant

Versus

Smt. Jalajakshi and others  …….Respondents

J U D G M E N T

G. S. Singhvi,  J.

1. These appeals filed against judgment dated 22.2.1999 of the  

learned  Single  Judge  of  the  Karnataka  High  Court  represent  

culmination of the dispute among the heirs of Shri D. Yellappa,  

who died intestate on 27.03.1978, in relation to his properties.

2. Appellant,  Y.  Nagaraj,  is  the  son  of  the  deceased  and  

respondent Nos.1 to 3 - Smt. Jalajakshi, Smt. Y. Susheela and

Smt. Y. Nirmalakumari are his daughters.  They are governed by  

Mitakshara School  of  Hindu Law as also the provisions of  the  

Hindu Succession Act, 1956 (for short, ‘the Act’), for the sake of  

convenience, they shall hereinafter be referred to with the same  

description.

3. Respondent No. 1 filed O.S. No. 286 of 1979 (renumbered  

as  O.S.  No.  4528  of  1980)  impleading  the  appellant  and  

respondent  Nos.  2  and  3  as  defendants  for  partition  of  the  

properties  specified  in  Schedules  ‘A’  and  ‘B’  into  four  equal  

shares by metes and bound and for allotment of one share to her  

with absolute title and possession. She further prayed that the  

appellant be directed to give account of the income of the suit  

schedule  properties  with  effect  from 27.3.1978  and  pay  1/4th  

share to her. In the alternative, she prayed that an inquiry be  

ordered under Order XXIX Rule 12 of the Code of Civil Procedure  

(for  short,  ‘the  CPC’)  for  determination  of  mesne  profits.  The  

schedules appended to the plaint are extracted below:  

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“                            :Schedule ‘A’:

(1)  Vacant  land  bearing  Kaneshumari  No.  130,  of  Dommasaacha Village, Surjapura Hobli, Anekal Taluk  bounded on the  

East by : Nagi Reddy House West by : Konda Reddy House North by : Road South by : Erappa’s land

Measuring  East  West  about  42’  North-South  about  45’.                               

:Schedule ‘B’:

(1) S. No. 96/1, measuring 2 acres and 5 guntas (2) S. No. 108/2, measuring 1 acre 28 guntas (3) S. No. 79/2, measuring 3 acres 35 guntas all  these  properties  situated  at  Thigala,  Chowdadenahalli,  Sarjapur  Hobli,  Anekla  Tq,  Bangalore Distt., (4) S.No. 205, measuring 1 acre 22 guntas situated at  Dommasandra village, Anekla, Taluk. (5) A house bearing D.No. 100, and new Nos. 100/1  and  100/2,  measuring  about  82’  x  21’  situated  at  Susheela Road Doddamavalli, Bangalore.4 (6) Any other property standing in the name of late D.  Yellappa, or any of his family members. (7) Jewels worth about Rs. 10,000/- (8) Household utensils worth about Rs. 10,000/- (9) Bank deposits.”

(As  extracted from the  judgment  of  XVII  Additional  City Civil Judge, Bangalore.)

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4. The claim of respondent No. 1 was founded on the following  

assertions:

(a)That  late  Shri  D.  Yellappa,  who  retired  as  Revenue  

Inspector  from  the  Corporation  of  the  City  Bangalore,  

was  an  affluent  person  and  possessed  some  ancestral  

properties (described in Schedule  ‘A’)  and self-acquired  

movable  and  immovable  properties  (described  in  

Schedule ‘B’).

(b)That Shri  D. Yellappa died intestate on 27.3.1978 and  

being his Class II heirs, the parties are entitled to share  

in his estate.

(c) That  respondent  Nos.  2  and  3  are  unmarried  and  by  

taking  advantage  of  his  position  as  the  son  of  the  

deceased,  the  appellant  is  wasting  the  property  and  

trying to alienate the same.

5. In the written statement filed by him, the appellant denied  

that Shri D. Yellappa had only a bit of ancestral property.  

He  pleaded  that  the  suit  properties  are  joint  family  

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properties because the same had been acquired out of joint  

family  income  and  respondent  No.  1  had  erroneously  

characterized the  same as  self-acquired  properties  of  the  

deceased.  The appellant further pleaded that his father had  

sold some properties to one Papaiah; that the agricultural  

lands shown in the plaint schedule were subject matter of  

the proceedings pending before Land Tribunal, Anekal for  

grant  of  occupancy  rights;  that  Item  No.  3  of  plaint  

Schedule ‘B’ had been purchased in his name vide sale deed  

dated 29.4.1961 and he  was absolute  owner  thereof  and  

that the jewellery, utensils, bank accounts, etc., mentioned  

at Item Nos. 7 to 9 of Schedule ‘B’ were not available for  

partition  because  after  the  death  of  the  mother,  the  

deceased  had  divided  the  same  among  three  sisters.  In  

paragraph 6 of the written statement, the appellant averred  

that  Item No.5 of  Schedule  ‘B’  properties  is  an ancestral  

property  and respondent  No.1  has  no right  to  claim any  

share in it.   

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6. Since the High Court has, while disposing of  the appeals  

filed  by  the  appellant  and  respondent  No.  2  relied  upon  

some of the averments contained in the written statement  

and  made  observations  adverse  to  the  interest  of  the  

appellant,  it  will  be appropriate  to notice  the  contents of  

paragraphs 2, 4 and 6 of the written statement which are  

extracted below:

“2.     Late Sri. D. Yellappa had ancestral properties.  It is incorrect to say that he has only a bit of ancestral  property.   He was getting a meagre salary, while he  was in service, but he was having sufficient income  from  the  joint  family  properties  and  out  of  the  income-from  joint  family  properties  he  purchased  properties  in  his  name  as  he  was  the  head of  the  family.   It is absolutely false that items mentioned in  ‘A’  Schedule  are  the  ancestral  properties  and  the  items  mentioned  in  ‘B ’  schedule  are  the  separate  properties  of  the  father  of  this  defendant.    The  plaintiff  is  put  to  strict  proofs  of  the  same.    The  plaintiff  with  a  view  to  claim  larger  share  in  the  properties has characterised the ancestral properties  as  self  acquired  properties.    The  plaintiff  in  her  anxiety to claim a larger share in the properties has  included  the  items  which  are  already  sold  by  the  father of the defendant.   Thus it is clear   that the  plaintiff  is  not  at  all  in  joint  possession  of  the  properties.  The item mentioned in ‘A’  schedule  was  sold to one Papaiah by the  father of  the defendant  during  his  life  time  and  put  him  in  possession.  Inspite  of  it,  the  plaintiff  has claimed this  property  which is in possession of Sri Papaiah.   Hence, the  said Papaiah is a necessary and a proper party.   The  

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suit is bad for non-joinder of proper parties and the  suit is liable to be dismissed.

4 . There  is  no  self-acquired  property  of  Sri  Yellappa, for the plaintiff  to claim any share in the  property.   The plaintiff is not entitled to any share in  the  properties  detailed  in  the  schedule  and further  the plaintiff  has not brought the entire joint  family  properties for the purpose of division, though she is  fully aware of the same.   The pretentions ignorance  of  the  plaintiff  is  a  make  believe  one  and  is  deliberately made to appear as such only to help the  plaintiff's uncle against whom the suit has been filed  for  the  recovery  of  this  defendant's  share  in  the  property.   The  plaintiff  is  actively  supporting  her  uncle in the said litigation in O.S.31/1979 on the file  of the Munsiff, Anekal.   Thus the suit as brought is  not maintainable and liable to be dismissed in limine.

6. Item No.5 of the `B’ Schedule properties is  an ancestral property.  The plaintiff has no manner of  right, title or interest to claim any share therein.”

7. Respondent Nos. 2 and 3 filed separate written statement.  

They  admitted  the  claim  of  respondent  No.  1  qua  the  

properties specified in Schedules ‘A’ and ‘B’ except Item No.  

5 of ‘B’ Schedule, i.e., house No. 100 (new nos. 100/1 and  

100/2).  Respondent Nos. 2 and 3 pleaded that the house  

was purchased by their father in the name of the mother by  

registered sale deed dated 20.12.1943; that, subsequently,  

the  mother  transferred  the  house  to  the  father,  who  

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executed Will dated 28.3.1977 and bequeathed a portion of  

the house to them but, later on, he cancelled the Will and  

executed  registered  Settlement  Deed  dated  18.7.1977  in  

their favour.

8. The  trial  Court  took  cognizance  of  the  pleadings  of  the  

parties  and  framed the  following  issues  (the  issues  have  

been extracted from the impugned judgment):

“1. Whether   plaintiff    proves   that  the    ‘A’  schedule     properties   are   the ancestral  properties   and  the  ‘B’   schedule   property  were   self  acquired  property  of  late  D.  Yellappa?

2. Whether defendant nos.2 and 3 proves that they  are  the  absolute  owners  in  possession  and  enjoyment of a portion of item no.5 of schedule  ‘B’ property by virtue of a registered settlement  deed  dated  18.7.1977  executed  by  late  D.  Yellappa?

3. Whether  the  defendants  further  prove  that  the  plaintiff  is  not  entitled  to  claim  a  share  in  items no.1 to 5 of the ‘B’ schedule property as  contended in their written statement?

4. Whether defendants further prove that the jewels  in  item  no.7  of  ‘B’  schedule  was  divided  in  between  defendants  1  and  2  and  after  the  death of their mother as contended?

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5. Whether defendant no.1 proves that item no.8 in  ‘B’  schedule  was taken away by the  plaintiff  and the utensils now in his possession belong  to him exclusively?

6. To what share is the plaintiff entitled to and in  what all properties?

7. Whether  the  plaintiff  is  entitled  to  the  mesne  profits and if yes, at what rate?

8. What relief and what order?

9. Whether the defendants prove that the 3rd item of  `B’  schedule  is  the  self  acquired  property  of  defendant  no.1  as  contended in para 6(b)  of  the written statement?

10. Whether  the  defendants  prove  that  item  nos.1,2 and 4 of ‘B’ schedule property are the  subject  matter  of  tenancy  rights  pending  before the Land Tribunal and that the plaintiff  cannot claim anything in them?”  

9. In support of her claim, respondent No. 1 appeared as PW-1  

and produced 13 documents, which were marked as Ex. P1  

to  P13.   The  appellant  examined  himself  as  DW-1  and  

produced one document, which was marked as Ex. D1.   

10. After considering the pleadings of the parties and evidence  

produced by them, the trial Court partly decreed the suit.  

The trial Court answered issue Nos. 1 and 7 in the negative  

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and issue Nos. 2, 4, 5, 9 and 10 in the affirmative. It held  

that Item Nos. 6 to 9 of Schedule ‘B’ were not available for  

partition and respondent No.1 has miserably failed to prove  

her case qua those items.  The trial Court further held that  

Item No.3 of Schedule ‘B’ is also not available for partition  

because the same had been purchased in the name of the  

appellant  vide  sale  deed  Ex.  P6  and  mistake  in  the  

boundaries  specified  therein  was  rectified  vide  Ex.  P7.  

Issue No.3 was answered by the  trial Court by declaring  

that respondent No.1 will be entitled to 1/8th share in the  

compensation in lieu of agricultural land which was subject  

matter of the proceedings pending under the Land Reforms  

Act.  The relevant portions of the judgment of the trial Court  

except  those relating to Item Nos.  6 to 9 of  Schedule  ‘B’  

about  which no controversy survives between the  parties  

are extracted below:

“Though the  plaintiff  claims her  1/4th share  in  the  agricultural lands being Item Nos. 1 to 4 of schedule  ‘B’ of the plaint, admittedly by the parties during the  course of evidence, item Nos. 1 & 2 are the ancestral  properties  of  this  D.  Yellappa and this  D.  Yellappa  has purchased item No. 4 by a registered sale deed as  

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per Ex. P8 in the year 1966 and only because this D.  Yellappa purchased that land, it cannot be classified  as self-acquired property of Yellappa unless there is  material or evidence produced by the plaintiff to show  that  he  treated  that  property  as  self-acquired  and  separate property and was never meant for enjoyment  of  the  joint  family  during  his  life  time.   Therefore,  when there is material to show that D. Yellappa had  some agricultural  and  being  the  ancestral  property  measuring 4 5 acres in Anekal Taluk and in addition  to the same, he has retired in the year 1961 and got  some  retirement  benefits  and  similarly,  he  had  purchased some house properties in Bangalore and  sold them for the benefit of the family for a sum of Rs.  26,000/-  or  so  as  admitted  by  DW1  himself  and  which is not disputed by the plaintiff, it can be safely  said that item No. 4 was purchased by D Yellappa,  out of the joint family funds and it was for the benefit  of  the  family  and  it  cannot  be  self-acquired  and  separate  property  of  Yellappa.    Similarly,  he  has  purchased  item  No.  5 being  the  house  property  bearing Door No. 100 which is re-numbered as 100/1  and  100/2 in the name of his wife only in the year  1950 and the same was subsequently transferred in  the  name  of  D.  Yellappa  and  thereafter,  he  has  mortgaged the  same by  Ex.  P13 and therefore,  the  plaintiff  cannot  contend  that  the  said  property  belonged to her mother and therefore, she is entitled  to a share in the same. The recitals of the mortgage  deed  in  Ex.  P13 go  to  show  that  D.  Yellappa  had  purchased that property in Bangalore in the name of  his wife and that fact is clinched by the fact that he  has  subsequently  treated  the  same  as  joint  family  property  and  not  as  of  his  wife.  With  these  observations, I hold that it is a joint family property  and  not  self-acquired  property  of  D.  Yellappa  and  about  the  settlement  of  the  property  in  favour  of  defendants 2  & 3, I will discuss later.

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So far as the item No. 3 of ‘B’ schedule property is  concerned, it can be seen that it was purchased in  the name of the first defendant by a sale deed Ex.  P6  and there has been a rectification deed also regarding  some mistake in the boundaries etc., as per Ex. P7  and this land is also said to be the subject matter of  occupancy right before the Tribunal. But all the same,  there is no material to show that it is a joint family  property  and  the  plaintiff  has  not  produced  any  material  to  show  that  as  to  whether  her  father  financed this first defendant to purchase this item no.  3 of schedule ‘B’ nor is it the case of the plaintiff that  it was actually purchased by D. Yellappa in his own  name.  As  already  pointed  out,  the  land  was  purchased by the first  defendant somewhere in the  year 1961 and he got rectification deed in the year  1967 and therefore, in the absence of  any evidence  produced  by  the  plaintiff  to  show  that  it  was  purchased  out  of  the  income  of  the  ancestral  properties,  it  can  be  safely  said  that  the  first  defendant  has  treated  that  property  as  his  self- acquired property because, there was no joint family  as such after  the death of  his father.  Because,  the  first defendant is the only son and the other issues of  this  D.  Yellappa all  are  daughters and are  married  and staying with their husbands. Therefore, this item  No. 3 will have to be treated as self-acquired property  of defendant No 1.

Admittedly  item  Nos.  1  and  2  of  schedule  ‘B’  are  agricultural lands and were ancestral properties of D.  Yellappa and if at all the plaintiff or defendants Nos. 2  and  3  are  entitled  to  any  share  in  those  2  lands  (illegible)  in the compensation to be awarded by the  land tribunal,  under the Hindu Succession Act and  not under the General Hindu Law.

If  these  two  lands  are  agricultural  properties,  the  plaintiff as well as the defendants 2 and 3 would get  

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their  share either in the compensation or by metes  and bounds only in ½ share of the deceased-father of  Yellappa because he has died somewhere in the year  1978 after coming into force of the Hindu Succession  Act.  In  that  undecided  ½  share  of  properties  they  cannot claim 1/4th share as of right by birth. In the  notional partition it is only the coparceners under the  General  Hindu Law who get  a  share  each and the  ladies  cannot  be  co-parceners  of  the  Joint  Hindu  Family  and therefore  in the  notional  partition,  it  is  this D. Yellappa and Nagaraj alone get half and this  1/2 share  of  Yellappa  goes  to  the  plaintiff  and  defendants 2 and 3 under the Hindu Succession Act  as  their  mother  had  pre-deceased  this  Yellappa  having died in the year 1960. Thus, I hold that the  plaintiff cannot claim 1/4th share. But they can claim  only 1/8th share each in the entire item Nos. 1 and 2  either  by  metes  and  bounds  or  by  way  of  compensation if any by the land tribunal.

Though the plaintiff has claimed share in item No. 5  the  residential  house  of  Bangalore  Town,  on  the  ground that  it  was her  mother's  property,  her  own  document Ex. P. 13 negatives her contention because,  as per the recitals, the finance has flowed from this  Yellappa  himself  though  it  was  purchased  in  the  name of his wife. But it was subsequently transferred  in the name of joint family and he treated it  as his  own  property  and  mortgaged  the  same  to  some  person  by  Ex.  P.  13  and  subsequently  gifted  the  portions  of  those  properties  in  favour  of  plaintiff  herself and also defendants 2 and 3 and defendants 2  and  3  so  also  the  first  defendant  stayed  in  those  houses till they got married and therefore, at the most  it can be said that house No. 100/1 and 100/2 alone  are  available  for  partition  between the  plaintiff  and  defendants except the settled properties in favour of  the  plaintiff  and  defendants  2  and  3.  Thus,  the  plaintiff cannot claim share in the portions that are  

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settled in favour of defendants 2 and 3 and there has  been  a  settlement deed by Yellappa himself between  defendants  2  and  3  by  a  registered  deed  dated  18.7.77 as this fact is  admitted by PW1 as well  as  DW1 though there  is  no  evidence  produced by  the  plaintiff  and  therefore,  I  am  persuaded  to  answer  issue No. 2 in the affirmative.

Now coming to ‘A’ schedule property which according  to the plaintiff is ancestral property and is a grame  tana  area  and  a  residential  house  bearing  Khaneshumari  No.  130 in  Anekal  Taluk.  This  PW1  during the course of  cross-examination admits that  her  father  had  gifted  half  of  schedule  property  in  favour of his own brother-Veerappa and also admits  that  her  father  might  have  sold  remaining  half  schedule  property  in  favour  of  one  Papaiah.  But,  however,  a  suggestion  is  made  that  this  first  defendant  took  possession  of  half  of  ‘A’  schedule  property  from  Papaiah  by  filing  suits.  But  the  plaintiff has not produced any judgment copy of such  suit nor is there any evidence produced to show that  this defendant-1 has taken possession of the half of  the ‘A’ schedule property that was sold by D. Yellappa  himself during his life time.

So therefore, if that is the position, it cannot be said  that  the  plaintiff  has  proved  the  facts  that  ‘A’  schedule property is available for partition and also  that she is entitled for mesne profit also. There is no  material to show that ‘A’ schedule is in the possession  of the first defendant and they cannot also contend  that  the  first  defendant  has  got  income  from  the  agricultural  lands  because,  in  view  of  the  Land  Reforms Act, tenanted lands vest in Govt. with effect  from 1974 and when there is material to show that  the  matter  of  occupancy  rights  in  respect  of  agricultural lands at item -1 to 4 of  schedule ‘B’ is  pending before the Land Tribunal, the plaintiff cannot  

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seek  accounting  from  the  first  defendant.  But  however,  the  contentions  of  the  defendant-1  in  the  written statement that the plaintiff has not produced  the record of rights and index of lands etc., in respect  of  agricultural  land and that if  partition is allowed,  the  same  would  hit  provisions  of  Prevention  of  Fragmentation Act etc., are devoid of any merit and  thus, in view of my discussions, I am persuaded to  answer issue No. 1 in the negative.”

11. The operative portion of the judgment passed by the trial  

Court (as contained in the paper book of the special leave  

petitions) is extracted below:

“The suit of the plaintiff is hereby partly decreed. The  suit of the plaintiff for partition and actual possession  in  ‘A’  schedule  property  and  also  for  partition  and  possession  of  item  Nos.  1  to  9  of  schedule  ‘B’  by  metes and bounds is hereby dismissed. It is hereby  declared that the plaintiff is entitled to 1/8th share in  the compensation to be paid by the Govt, in respect of  item Nos. 1, 2 and 4 and she is also entitled to 1/8 th  share in the un-sold portion of item No. 5 in as much  as  there  are  entitlement  deeds  of  vacant  sites  in  favour  of  plaintiff  herself  and  also  in  favour  of  defendants 2 and 3. The plaintiff shall get her share  partitioned by appointing a Commissioner in the Final  Decree Proceedings in item No. 5. Similarly, the suit  of the plaintiff for mesne profits is hereby dismissed.  But costs of the suit shall come out of the assets of  the joint family properties. It is hereby declared that  defendants 2 and 3 are also entitled to 1/8th share  like the plaintiff in all the properties that are available  for partition as discussed above. Draw a preliminary  decree accordingly.”

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12. During the pendency of the suit filed by respondent No. 1,  

respondent No. 2 filed O.S. No. 2062 of 1981 for declaration  

of  title  in  respect  of  house  bearing  No.  100/2,  Susheela  

Road, Doddamavalli, Bangalore and possession thereof and  

also  for  mesne  profits.  Respondent  No.2  relied  upon  

registered Settlement Deed dated 18.7.1977, which is said  

to have been executed by Shri D. Yellappa giving separate  

portions to her and respondent No.3, and pleaded that she  

was residing in the portion allotted to her and was paying  

taxes etc. but the appellant was trying to interfere with her  

possession.

13. The appellant contested the suit filed by respondent No. 2.  

He pleaded that the suit property was joint family property  

and the deceased had no right to execute settlement deed in  

respect of the joint family property. He further pleaded that  

the  settlement  deed  was  a  fabricated  document  and  the  

same cannot be relied upon for declaring respondent No.2  

as owner of the suit property.  He also raised an objection of  

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limitation and pleaded that the suit filed by the respondent  

No.2 was barred by time.

14. In the second suit, the trial Court framed nine issues and  

one additional issue.  The same (as contained in para 10 of  

the impugned judgment) are extracted below:

“1. Whether the plaintiff  proves that during  the  suit  schedule  property  was  the  self  acquired property of D. Yellappa?

2. Whether the plaintiff  proves that during  the  lifetime  of  D.  Yellappa,  D.  Yellappa  has  executed  a  registered  settlement  deed  dated  18.7.1977 and registered Will dated 28.3.1977  in her favour pertaining to the suit schedule  property as alleged in the plaint?

3. Whether  the  plaintiff  proves  that  the  defendant  trespassed  into  the  suit  schedule  property and proves further that she is entitled  for possession as alleged?

4. Whether  the  plaintiff  proves that  she  is  entitled  for  Rs.1,440/-  and  also  for  mesne  profits with costs thereon?

5. Whether  the  defendant  proves  that  the  alleged Will is a got up one when Yellappa was  not in a fit condition to execute in favour of the  plaintiff?

6.  Whether the defendant proves that the  suit  schedule  property  is  not  self  acquired  property of D. Yellappa?

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7. Whether the defendant proves that he is  in possession of the property in his own right  and not as a trespasser?

7(a) Whether  the  defendant  proves  that  the  suit is not maintainable in law?

8. To what relief the parties are entitled?  

9. Whether  the  plaintiff  is  entitled  for  the  declaration claimed?         

Additional Issues :

1. Whether  the  defendant  proves  that  the  suit is barred by time as he had taken a plea  in O.S. No.151 of 1978 itself denying the title  of the plaintiff as alleged?”

15. Respondent No.2 examined herself as PW-1 and produced 8  

documents marked Ex. P1 to P8.  The appellant examined  

himself as DW-1 and produced 16 documents marked Ex.  

D1 to D16.   

16. The  trial  Court  answered  issue  Nos.  1  to  4,  7(a),  9  and  

additional issue No.1 in the negative and issue Nos. 6 and 7  

in the affirmative.  As regards issue No.5, the trial  Court  

observed that the same does not survive for consideration.  

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In  conclusion,  the  trial  Court  dismissed  the  suit  by  

observing that respondent No.2 has failed to prove that the  

suit property was purchased in the name of the mother vide  

Sale Deed dated 1.2.1950 and she had transferred the same  

to  her father.   The trial  Court  also held that  respondent  

No.2 has failed to prove that the suit property was the self-

acquired  property  of  her  father  and  he  had  the  right  to  

settle the same in her favour.  The relevant portions of the  

judgment rendered by the trial Court in O.S. No. 2062 of  

1981 are extracted below:  

“It is elicited in the cross examination of PW-1 that  the suit  property  was transferred by her mother to  her father but she does not know by what mode it  was transferred. She does not know when her mother  had purchased the property. There must be document  of title regarding the purchase made by her mother  and the plaintiff has denied ignorance about the mode  under  which  the  property  was  transferred  by  her  mother to her father. The contents of Ex.P.l show that  the  property  was  purchased  by  sale  deed  dated  1.2.1950. The said sale deed dated 1.2.1950. The said  sale deed has not been produced by the plaintiff and  therefore  the  plaintiff  has  failed  to  prove  that  it  is  belong to her mother and her mother has transferred  the property to her father.

On the other hand, the evidence of the defendant and  the  documentary  evidence  produced  by  him  show  

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that the property was the joint family property as it  was  purchased  out  of  the  amount  received  by  mortgaging  the  family  properties  to  Salem  Bank  under Ex.D-7.  DW-l has stated in his evidence that  the suit schedule   property was purchased out of the  joint    family funds.    The property was purchased in  the   name   of his   mother during December 1943.  In  December    1943  joint  family  property  was  mortgaged to Salem Bank for purchasing the property  and he has   produced   Ex.D-7 the   mortgage deed  and  he  has  further  stated  that  the  said  amount  obtained  by  mortgaging  was  repaid  out    of  the  income derived from the suit house.    Nothing   has  been   elicited   in the cross-examination of   DW.1 to  disbelieve  his  evidence that the suit property   was  purchased out of the amount received by mortgaging  the   joint family properties.   Ex.  D-7 shows that   on  17.12.1943    D.  Yellappa  and  his  brother  Erappa  mortgaged the properties for borrowing Rs.600/- for  the purpose   of   purchasing a house at  Siddegowda  Lane, Lalbagh,    Doddamavalli Bangalore City in the  name   of the wife of D. Yellappa and the schedule to  the said mortgage deed reads as follows:

I. All    the    piece and parcel    of    land with  the dwelling houses and outhouses, wells, trees  and  drains  thereon  built  and  planted  and  situated together with all rights and easements  appertaining thereto now and hereafter enjoyed  and acquired bearing Municipal Door No. Old 8  and  New  No.  13.  Chintala  Venkatappa  Lane,  Lalbagh, Doddamavalli, Bangalore City, bounded  on  the  North  by  Sarambigamma's  house  and  Chinnayya's  backyard,  South  by  Municipal  Road,  East  by  Ratnakka  and  her  brother  Anjariappa's house and open space and West by  land with public water  tap,  measuring East to  West 35 1/2  feet and North to South 12' x 12'  and admeasurements 443  square feet. Chintala  

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Venkatappa  Lane  is  now  called  Siddegowda  Lane.

II. And house bearing Municipal  Door  No.  2  (Old)  New No.  3 .  Aliraju Munisumappa Road,  Thigalarpet, Bangalore City,  bounded on North  by  Jaragana-halli  Muniswamy's  house  and  Yellamma  Temple,  South  by  Lane  and  Yengatappa  Gowda's  house  and  Rangamma’s  house,  East  by  Municipal  Road  and  Muni  Siddappa's  house  and  West  by  Waste  land  belonging to choultry,  measuring East to West  2 4 ' .  4 " ,  North  to  South  25'.10"  by  admeasurements 626 square feet and which are  at present in possession of the said mortgagors,  1. D. Yellappa and 2 .  Erappa.

It is clear from the above said evidence of   DW-1 and  Ex. D-7 which  clearly   corroborates   his evidence  that    the suit schedule property   was   purchased  out of the money obtained by   mortgaging   the joint  family  properties.   PW-1 has  feigned  ignorance  as  to   whether her father had any   other   source   of  income except  salary  and as  to  whether  the  family  had any   other joint family property at the time of  purchase  of the suit schedule property.    Therefore,  it  is clear that plaintiff  has failed to prove that the  suit schedule property was the self acquired property  of her father and that her father had right to settle  the property   in favour of the plaintiff.    On   the  other hand,  the above said evidence on record clearly  shows   that   the suit property was the   joint   family  property   of D. Yellappa and the defendant.

I have already given   a   finding that plaintiff   has  failed to prove   that   the   suit schedule   property  was the self acquired property   of D.  Yellappa and  defendant has proved that the suit schedule  property  was  the    joint   family    property.  Therefore,  the  burden is upon the plaintiff to   prove the   execution  

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of    the Settlement Deed. PW-1 has stated   in   her  cross-examination that she does   not know who were  the witnesses that have signed Ex.    P.l as   they were  acquaintance of her father.   She   does not   know  who  was  the  scribe  of  the  Settlement  Deed.  It  is  further elicited that she found some   corrections in  the Settlement Deed but she does   not know who  wrote  it.   The  witnesses  have  not  signed  in    her  presence    and    she does not know if    her    father  had intimated   the defendant about the   Settlement  Deed.  The  plaintiff  has  not  signed  the  Settlement  Deed and the and the   witnesses who have attested  the Settlement   Deed have not been examined by the  plaintiff.   The   scribe who   wrote    the   Settlement  Deed has    also    not    been examined   by  the  plaintiff.   There  are    some    corrections  in  the  Settlement Deed and PW-1 has stated that she   does  not know who had carried out the said   corrections  and  she does  not  know who  wrote  the  contents  of  the Settlement Deed as she has feigned ignorance as  to   who was the scribe of the Settlement Deed.  Even  the   contents of the Settlement Deed have not been  proved  and  the  evidence  on  record  clearly  proba- bilities the version of the defendant that the   Set- tlement   Deed   has been concocted by   the  plaintiff.  It is mentioned in the Settlement Deed Ex. P.l that the  property  was  the  self  acquired  property  of  D.  Yellappa.  I have already held that suit property was  not the self-acquired property of D. Yellappa.”

17. The appellant  filed  RFA No.  189 of  1990 and prayed for  

setting  aside  the  decree  passed  in  O.S.   No.  4528/1980  

insofar as the trial Court upheld the claim of partition made  

by  respondent  No.1  qua  Item  No.5  of  Schedule  ‘B’  

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properties. Respondent No. 2 also filed RFA No. 476 of 1991  

and challenged the dismissal of the suit for declaration filed  

by her.   

18. Learned counsel for the appellant argued that the impugned  

judgment is liable to be set aside because the learned Single  

Judge of the High Court committed grave error by granting  

substantive relief to respondent No.1 despite the fact that  

she had not filed appeal or cross-objections to question the  

findings recorded by the trial Court on various issues. She  

further argued that the learned Single Judge committed an  

error by passing a decree in favour of respondent No.2 on  

the basis of Settlement Deed dated 18.7.1977 ignoring that  

she  had  failed  to  prove  that  the  suit  property  was  self-

acquired property of the father and that in O.S. No. 4528 of  

1980  the  trial  Court  had  ruled  that  Item  No.5  of  ‘B’  

Schedule properties was joint family property.   

19. Learned  counsel  for  the  respondents  supported  the  

impugned judgment and argued that the High Court did not  

commit any error by granting relief  to respondent Nos. 1  

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and 2.  She submitted that even though respondent No.1  

had neither filed an appeal against the judgment and decree  

passed by the trial court in O.S. No. 4528 of 1980 nor she  

filed cross-objections in RFA No. 189 of 1990, the learned  

Single Judge had rightly invoked the principle underlying  

Order 41 Rule 33 CPC for the purpose of doing full justice  

to  the  parties.   She  also  defended  the  decree  passed  in  

favour  of  respondent  No.2  and  argued  that  the  learned  

Single Judge did not commit any error by relying upon the  

recital in the settlement deed for the purpose of recording a  

finding that Item No.5 of Schedule ‘B’ properties was self-

acquired property of the deceased.

20. Before adverting to the arguments of the learned counsel for  

the parties and the reasons recorded by the learned Single  

Judge, we consider it proper to take cognizance of some of  

the  additional  documents  filed  by  the  counsel  for  the  

respondents which include copy of the plaint in O.S.  No.  

286 of 1979 (renumbered as O.S. No.4528 of 1980), written  

statement filed in that suit, the issues framed by the trial  

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Court,  depositions  of  respondent No.1 and the  appellant,  

copy of Settlement Deed dated 18.7.1977, orders passed by  

the Karnataka High Court in Writ Petition Nos. 11401 of  

1981, 20067 of 1991 and 20068 of 1991 and order passed  

by  the  Land  Tribunal.   These  documents  show  that  

respondent Nos. 1 to 3 had filed Writ Petition No. 11401 of  

1981 for quashing order dated 9.6.1981 passed by the Land  

Tribunal  whereby  occupancy  rights  were  granted  to  N.  

Bhadraiah  in  respect  of  land  comprised  in  survey  Nos.  

79/2, 108/2 and 205.  By an order dated 28.5.1985, the  

Division Bench of the High Court allowed the writ petition,  

quashed the order of the Land Tribunal and remitted the  

matter  for  fresh  disposal  of  the  application  filed  by  N.  

Bhadraiah  after  giving  opportunity  to  the  parties.   After  

remand, the Land Tribunal passed order dated 29.10.1988  

and again accepted Bhadraiah’s claim for occupancy rights.  

The second order of the Land Tribunal was challenged by  

respondent  Nos.  1  to  3  in  Writ  Petition  Nos.  20067 and  

20068 of 1991, which were allowed by the Division Bench of  

the  High  Court  on  20.1.1994  and  the  matter  was  again  

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remitted to the Land Tribunal  for  fresh consideration.  Of  

course, learned counsel for the parties did not inform the  

Court  whether  the  application  filed  by  N.  Bhadraiah  for  

grant of occupancy rights has been finally disposed of.  

21. The learned Single Judge first considered the issue raised in  

RFA No.476 of 1991, i.e.,  whether Settlement Deed dated  

18.7.1977  executed  by  Shri  D.  Yellappa  was  valid.   He  

referred to a portion of the settlement deed in which the  

executant has mentioned that the house property is a self-

acquired  property  purchased  by  him  on  01.02.1950  and  

proceeded to observe:

“In the light of the above recital in Ex. P.1 the  settlement deed which is extracted above it is too  late for the son to come and contend that it is not  the  self  acquired property  of  their  father.   The  recital  coupled  with  the  evidence  available  on  record  and  the  further  fact  that  Susheela  the  plaintiff  has  been  enjoying  the  property  exclusively would go to show that the plea that  the property in question is ancestral property, set  up by  the  son,  is  not  acceptable  or  believable.  This aspect of the case has not been considered  by the trial Court and as rightly found by the trial  court  in  the  other  suit  and  I  have  also  no  hesitation to hold that, the suit property is self  acquired  property  of  their  father  and  

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consequently,  the  settlement  deed  executed  by  her father in valid and binding on the parties.”

22. While  recording  the  aforesaid  finding,  the  learned  Single  

Judge did not even refer to the detailed reasons recorded by  

the trial Court for holding that respondent No.2 has failed  

to prove that the suit property was self-acquired property of  

the executant because Sale Deed dated 01.02.1950 was not  

produced by her. The learned Single Judge also omitted to  

consider the statement of  respondent No.  2 that  the suit  

property was purchased by her father in the name of the  

mother and she had transferred the same in the name of  

the  father,  which  enabled  him  to  execute  Will  dated  

28.3.1977 and Settlement Deed dated 18.7.1977.  Not only  

this, the learned Single Judge failed to take note of the fact  

that  the  recital  contained  in  the  settlement  deed  was  

contrary to the evidence of the parties which, as mentioned  

above,  was  to  the  effect  that  the  property  had  been  

purchased by the father in the name of the mother and the  

latter had transferred it to the father after some time and  

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that  in  the  judgment  of  O.S.  No.  4528  of  1980  it  was  

categorically held that Item No. 5 of Schedule ‘B’ properties  

was joint family property and respondent No.1 was entitled  

to a share in it.  We are surprised that the learned Single  

Judge ignored the patently contradictory findings recorded  

by the trial Court in the two suits on the issue of nature of  

Item No. 5 of Schedule ‘B’ properties and decreed the suit  

filed  by  respondent  No.  2  by  assuming  that  she  had  

succeeded in proving that her father Shri D. Yellappa was  

competent to execute the settlement deed. In the process,  

the learned Single Judge completely overlooked the detailed  

reasons  recorded by  the  trial  Court  in  O.S.  No.  4528 of  

1980 after considering the mortgage deed Ex. P13 executed  

by Shri D. Yellappa and Erappa in favour of the Salem Bank  

Ltd.  for  the  purpose  of  taking  loan.  Therefore,  it  is  not  

possible to sustain the finding and conclusion recorded by  

the learned Single Judge in RFA No.476 of 1991.

23. We  shall  now  deal  with  the  appellant’s  challenge  to  the  

decree passed in favour of  respondent No.1.   It  is not in  

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dispute  that  respondent  No.1  had  not  challenged  the  

findings  recorded  by  the  trial  Court  on  various  issues  

framed by it.  She also did not file cross-objections in the  

appeal preferred by the appellant. Though, it is possible to  

take the view that even in the absence of an appeal having  

been  preferred  by  respondent  No.1,  the  learned  Single  

Judge could have exercised power under Order 41 Rule 33  

CPC, as interpreted by this Court in Nirmala Bala Ghose v.  

Balai  Chand  Ghose  (1965)  3  SCR  550,  Giani  Ram  and  

others v. Ramjilal and others (1969) 3 SCR 944 and Banarsi  

and others  v.  Ram Phal  (2003)  9  SCC 606,  after  having  

carefully examined the entire record, we are convinced that  

the  impugned  judgment  cannot  be  sustained  by  relying  

upon Order 41 Rule 33.  In the impugned judgment, the  

learned Single Judge has included Item No. 3 of Schedule  

‘B’ properties in the pool of joint family property despite the  

fact that the same had been purchased by D. Yellappa by  

registered sale deed in 1961 in the name of the appellant.  

The  learned  Single  Judge  overturned  the  finding  on  this  

issue  by  adverting  to  some  portions  of  the  averments  

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contained in para 2 of  the written statement filed by the  

appellant,  while  ignoring  the  remaining  averments  

contained in that paragraph as also paragraph Nos. 4 and  

6. The learned Single Judge also failed to take note of the  

fact  that  the  claim  made  by  N.  Bhadraiah  for  grant  of  

occupancy  rights  in  respect  of  agricultural  land  was  

pending before the Land Tribunal. It is not possible for us to  

approve the approach adopted by the learned Single Judge  

in dealing with the claim of respondent No. 1 for partition of  

the suit properties despite the fact that she had failed to  

prove the case set up in the plaint. A substantial portion of  

the judgment of the trial Court as well as the learned Single  

Judge  is  based  on  pure  conjectures.  The  learned  Single  

Judge appears to have been unduly influenced by the fact  

that  N.  Bhadraiah was the  father-in-law of  the  appellant  

and  both  seem  to  have  conspired  to  deprive  the  three  

daughters  of  the  deceased  of  their  shares  in  the  suit  

properties.  

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24. We may have remanded the matter to the High Court for  

fresh  disposal  of  the  appeals  filed  by  the  appellant  and  

respondent  No.  2  but  keeping  in  view  the  fact  that  the  

findings recorded in the two suits regarding Item No. 5 of  

Schedule ‘B’  properties specified in the plaint of  O.S. No.  

4528 of 1980 are contradictory and substantial portion of  

the judgment of O.S. No. 4528 of 1980 is based on surmises  

and conjectures, we feel that ends of justice would be met  

by setting aside the impugned judgment and remitting the  

matter to the trial Court for fresh disposal of the suits filed  

by respondent Nos. 1 and 2.

25. In  the  result,  the  appeals  are  allowed.   The  impugned  

judgment is set aside. The judgments of the trial Court in  

O.S. Nos. 4528 of 1980 and 2062 of 1981 are also set aside  

and  the  matter  is  remitted  to  the  trial  Court  for  fresh  

disposal of the suits.  With a view to avoid the possibility of  

conflicting  findings  regarding  Item  No.5  of  Schedule  ‘B’  

properties specified in the plaint of O.S. No.4528 of 1980,  

we direct the trial Court to club the two suits and dispose of  

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the same by one judgment.  The parties shall be free to file  

applications for additional evidence and bring on record the  

orders passed by the Land Tribunal and the High Court in  

relation to Item Nos. 1 to 4 of Schedule ‘B’ appended to the  

plaint of O.S. No.4528 of 1980.

……..….………………….…J.    [G.S. Singhvi]

……..….………………….…J.   [Asok Kumar Ganguly]

New Delhi, January 05, 2012.

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