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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1499 OF 2004

V.K. SURENDRA        …. APPELLANT

VERSUS

V.K. THIMMAIAH & ORS.      ….RESPONDENTS

J UD G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

This appeal has been preferred by defendant No.3  

against the judgment dated 20th January, 2003 passed  

by the High Court of Karnataka in R.F.A. No.319 of  

1998.  By the impugned judgment and decree the High  

Court allowed the appeal, set aside the judgment and  

decree of trial court and decreed the suit declaring  

that defendant Nos.1,2,3 and 4 are entitled to 11/50th  

share each and the plaintiff, defendant Nos.5,6,7,8  

and 9 are entitled to 1/50th  share each in the suit  

schedule properties.

2. The facts of the case are as follows:

The plaintiff­respondent No.4 filed a suit for  

partition and separate possession of 1/10th share in  

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the suit schedule properties by metes and bounds and  

also sought for an enquiry under Order 20 Rule 12  

C.P.C. to ascertain the mesne profits.   She is the  

second daughter of late Shri Kunnaiah whereas  

defendant Nos.1,2,3 and 4, including the appellant  

herein are the sons and defendant Nos.5,6,7 and 8 are  

the daughters of late Shri Kunnaiah. Defendant No.9  

is the son of the first daughter of late Shri  

Kunnaiah.  

3. Plaintiff claimed that the suit schedule  

properties are self­acquired properties of late Shri  

Kunnaiah and, therefore, she is entitled for 1/10th  

share in the suit schedule properties.  

Defendant Nos.1, 2 and 4 filed a joint written  

statement claiming 1/5th  share in the suit schedule  

properties, as according to them the suit schedule  

properties are the ancestral joint family properties.  

The appellant­defendant No.3 filed a separate written  

statement claiming the right over total 32 acres 55  

cents of lands.   According to defendant No.3, the  

suit schedule properties are the self­acquired  

properties of their father, late Shri Kunnaiah who  

bequeathed the same in his favour under a Will dated  

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14th June, 1991.  As per the Will he is entitled for a  

total extent of 32 acres 55 cents of lands in respect  

of which the plaintiff and other defendants have no  

right whatsoever.  The rest of the defendants did not  

choose to file written statement.  

4. The trial court framed the following issues:

“1. Whether the suit schedule properties are  the self­acquired properties of late Shri  Kunnaiah as contended by plaintiff or they  are joint family properties as contended by  defendants 1, 2 and 4 ?

2. Whether the plaintiff is entitled to1/10th  

share as contended by her or she is  entitled to 1/50th  share as contended by  defendants 1, 2 and 4 ?

3. Whether the plaintiff is entitled to the  relief prayed for ?

4. Whether defendants 1, 2 and 4 are entitled  to the reliefs prayed for in the counter  claim ?

5. What decree or order ?” On issue No.1 the trial court has held that the  

suit schedule properties are the self­acquired  

properties of late Shri Kunnaiah. On issue No.2 it  

was held that the Will set up by defendant No.3 has  

been proved and, therefore, the plaintiff was not  

entitled for a share in the suit schedule properties.  

Issue Nos.3 and 4 were accordingly answered in  

negative.

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Two additional issues were also framed by the  

trial court which are as follows:

“1. Whether 3rd  defendant proves that late  Shri Kunnaiah executed a Will dated  14.6.1991 under which the properties  mentioned in para 9 of his written  statement have been bequeathed in his  favour ?

2. Whether the event of the court holding  that the properties were not the self  acquisitions  of late Shri Kunnaiah the  properties in the possession of 3rd  

defendant could be allotted to him, as  prayed for by him in para 2 of the  additional written statement filed on  26.05.1997 ?”

The trial court answered additional issue No.1  

in the affirmative and held that consequently  

additional issue No.2 was not necessary to be  

decided.  

5. In appeal, the High Court considered the  

following three questions:

“i) Whether the suit schedule properties  are the joint family properties of late  Shri Kunnaiah and if so what share is  to be allotted to each of the parties  in the suit ?

ii) Whether the defendant No.3 proves the  execution of the Will dated 14.06.1991  said to have been executed by late Shri  Kunnaiah ?

iii) In the event if the Will dated  14.06.1991 is proved to be valid in law  what is the effect of the said Will on  the suit schedule properties in the  event if the said properties are held  to be joint family properties ?”

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Taking into consideration the evidence on record  

and the stand taken by the plaintiff and the  

defendants, the High Court held that there was no  

evidence on record to prove that the suit schedule  

properties are self­acquired properties of late Shri  

Kunnaiah and it further held that the suit schedule  

properties are joint family properties of late Shri  

Kunnaiah and his children.

6. So far as the Will (Ex.D­17) relied on by  

defendant No.3 the High Court held that late Shri  

Kunnaiah who is the father of defendant Nos. 1 to 4  

had no right whatsoever to bequeath the suit schedule  

properties under a Will or partition without the  

consent of all the co­parceners. Therefore, Ex.D­17  

is not binding on the other co­parcerners.   In  

determining the shares to be allotted to each of the  

parties in the proceedings, the High Court held that  

the sons, defendant Nos.1,2,3 and 4, and late Shri  

Kunnaiah are entitled for 1/5th  share of the suit  

schedule properties. In so far as 1/5th share of late  

Shri Kunnaiah¸ sons and daughters were entitled for  

1/50th share. Regarding defendant No.9 who is the son  

of the first daughter, the High Court held that since  

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he is the only heir to succeed to the estate of first  

daughter, he is also entitled for 1/50th  share. The  

appeal was allowed with the aforesaid observation and  

suit was decreed by the High Court declaring that  

defendant Nos.1,2,3 and 4 are entitled to 11/50th  

share each and the plaintiff, defendant Nos.5,6,7,8  

and 9 are entitled to 1/50th share each.

7. According to the appellant­defendant No.3, when  

late Shri Kunnaiah was a minor, his mother purchased  

certain properties including suit schedule properties  

by a sale deed dated 7th  May, 1918­Ex.D­1, in the  

joint name of herself (Ningamma mother) and son,  

Kunnaiah. Later on Kunnaiah sold certain landed  

properties on 16th July, 1942, properties situated at  

Kaikere village on 19th  March, 1953 and some other  

properties on 4th  November, 1963. These sale deeds  

were not challenged by the plaintiff or the  

defendants. Since, the children of Kunnaiah were  

major, their names were got entered in the Revenue  

records by him in the year 1975 with a view to give  

those properties to the children. To sell some of the  

properties, Kunnaiah got consent of his children as  

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their names were appearing in the Revenue records  

which were sold on   23rd July, 1976.

Further, according to the appellant, Kunnaiah,  

wanted partition of the properties and effected  

division by executing a Will on 20th  January, 1984  

distributing the properties to all the children. The  

respondents were aware of such arrangement. However,  

the said Will was cancelled by late Shri Kunnaiah on  

7th  January, 1991 with the knowledge of all the  

children as Pranesh(defendant No.9), grandson through  

daughter Tayamma was not given property.  

Subsequently, a fresh Will was executed by late Shri  

Kunnaiah on 14th June, 1991(Ex.D­17) whereby the suit  

schedule properties were settled in favour of his  

children, Thimmaiah, B.K. Ramachandra, Ganesh, all  

the daughters and Pranesh son of a predeceased  

daughter. On 9th  July, 1993, Kunnaiah died leaving  

behind him his 9 children, i.e., 4 sons and 5  

daughters. Under the Will­Ex.D­17 dated 14th  June,  

1991, Kunnaih gave away all the properties owned by  

him and the children of Kunnaiah came to the  

possession of their respective portions given to each  

of them under the Will.

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8. Learned counsel for the appellant submitted that  

in absence of any plea taken by the plaintiff or most  

of the defendants that the suit schedule properties  

were ancestral, the High Court was not justified to  

hold that the said properties are the joint family  

properties.   Even assuming the said properties as  

joint family properties, it was open to the father to  

divide the properties under the Will ­Ex.D­17.  The  

respondents were aware of the execution of the Will  

(Ex.D­17) and also the earlier Will which was  

cancelled but they kept quiet for a long time which  

will amount to giving their consent to the father to  

partition the properties, as the same is permissible  

under the Hindu Law.

9. In order to consider whether the suit schedule  

properties are joint family properties or self­

acquired properties of late Shri Kunnaiah, it is  

necessary to  notice the documentary as well as the  

oral evidence produced by the parties.   

10. By the sale deed dated 7th  May, 1918 (Ex.D­1),  

the lands in Sy.No.211 measuring 5 acres 28 cents;  

Sy.No.208 measuring 19 acres 83 cents; Sy.No.209  

measuring 4 acres 89 cents; Sy.No.209/A measuring 27  

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cents; Sy.No.210 measuring 9 acres 28 cents and  

Sy.No.205/2 measuring 5 acres 33 cents of Attur  

Village, Virajapet Taluk, South Kodagu District were  

purchased in the name of Kunnaiah(minor) along with  

her mother late Smt. Ningamma. Kunnaiah was then  

admittedly a minor and was the only son of late Shri  

Thimmaiah. There is no evidence on record to show  

that Kunnaiah who was minor as on the date of  

purchase of the said lands, possessed of any  

immovable property or properties yielding any income  

so as to purchase the lands under Ex.D­1. The  

appellant­defendant No.3 has also failed to adduce  

any evidence to show that late Smt. Ningamma, mother  

of Kunnaiah had any income from movable or immovable  

properties so as to purchase the above said  

properties.   

11. In his evidence, DW.1 deposed that their  

grandfather Thimmaiah owned 1000 batti boomi and 24  

acres, i.e, about 54 acres of land including a house  

in Hoskote. Their grandmother Ningamma was only a  

house wife and she did not own any property in her  

name; out of the income derived from the lands  

situated at Hoskote the suit schedule lands were  

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purchased in the name of his father late Kunnaiah.  

Aforesaid statement made by DW.1 in the examination­

in­chief was not questioned by any of the parties  

during the cross­examination.

DW.1, in his statement further stated that out  

of the income of lands aforesaid, the lands in Attur  

were purchased in the year 1918. After the death of  

Thimmaiah, Smt. Ningamma mother of Kunnaiah was  

managing the affairs of the family as there was no  

other male member living with her except Kunnaiah who  

was minor.  

12. It is true that late Kunnaiah had sold some  

properties at Hoskote under the registered sale deed  

dated 16th July, 1942 by Ex.D­7. The reason for sale  

of the said lands under Ex.D­7 was mentioned, that is  

to discharge the loan borrowed by him for the purpose  

of purchasing the lands at Kaikere village and to  

improve the lands.   It is not the case of the  

appellant that Kunnaiah had owned land in his own  

name in Hoskote. The properties at Hoskote were  

belonging to his grand father Thimmaiah. In this  

background the High Court has rightly held that the  

properties purchased by Kunnaiah at Kaikere village  

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out of the money received by him from the sale of the  

ancestral lands under Ex.D­7, are the ancestral  

properties.  

Lands at Attur village measuring 1 acre 6 guntas  

in Sy.No.208/3;           4 acres 77 cents in  

Sy.No.210  were sold by late Kunnaiah under Ex.D­3.  

The recital in Ex.D­3 discloses that the above lands  

are the ancestral properties of late Kunnaiah.  For  

that reason before selling the said land under Ex.D­

3, consent of all the sons of Kunnaiah was taken. The  

consent certificate was produced and is marked as  

Ex.D­4. Through the aforesaid evidence the High Court  

rightly came to the conclusion that the recitals in  

Ex.D­3 and consent certificate  Ex.D­4  are binding  

on the persons who were   parties in the said  

documents and, therefore,   when Kunnaiah himself  

admitted in Ex.D­3 that the lands sold under Ex.D­3,  

which were the lands purchased under Ex.D­1, are the  

ancestral properties, the High Court rightly held  

that it was not open for defendant No.3 to say that  

the said lands are self­acquired properties of late  

Kunnaiah.

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13. Similarly, the land measuring 5 acres 33 cents  

of Sy.No.205/2 was sold by Kunnaiah to a person under  

Ex.D­11 on 19th  March, 1953. Kunnaiah had also sold  

the lands measuring 3 acres in Sy.No.208/2 and 4  

acres in Sy.No.208/1 of Attur village to Orange  

Growers Cooperative Society under sale deed dated 4th  

November, 1963 Ex.D­6.   In these sale deeds though  

the properties are described as self­acquired  

properties, it is apparent that both the lands were  

purchased under Ex.D­1. The High Court has noticed  

that Kunnaiah has also himself described the lands in  

Attur village as ancestral properties purchased under  

Ex.D­1. Therefore, the sale deed dated 23rd  July,  

1976, Ex.D­3 and the sale deed dated 4th  November,  

1963, Ex.D­6 cannot be said to be self­acquired  

properties of Kunnaiah merely because they have been  

described as self­acquired properties in those  

evidence.  

14. We have noticed that though the appellant  

examined himself as DW.4 he failed to produce either  

documentary or oral evidence to show the lands at  

items Nos.2,3 and 5, situated at Village Kaikere are  

the self­acquired properties of Kunnaiah. In absence  

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of any division in the family of Kunnaiah and his  

sons, we hold that the family of Kunnaiah continued  

to be the joint family. If a co­parcener of a joint  

family claims that properties are his self­acquired  

properties, the burden is on him to prove that the  

same are the self­acquired properties. In that  

background the High Court has rightly held that  

Kunnaiah had no right to change the character of the  

joint family properties by transferring the same  

either under a Will or a gift to any party without  

the consent of the other co­parceners.  

15. In his deposition DW.1 stated that in the year  

1976 when Kunnaiah was alive, the names of all his  

sons were entered in the Jamabandhi in column No.6.  

He further stated that since their names were in the  

Jamabandhi their consent was asked for the purpose of  

advancement of loan.   DW.2, Krishna, a resident of  

Hoskote deposed in his evidence that the suit  

schedule properties are the ancestral properties of  

Kunnaiah. DW.3, Raja, resident of Bilagunda in his  

evidence has deposed that his father and Kunnaiah’s  

father belong to the same family.   He has further  

stated that the father of Kunnaiah possessed of about  

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30 acres of wet land and 24 acres of garden land in  

Hoskote. He further stated that Kunnaiah had  

purchased the lands in Kaikere village after the sale  

of the lands at Hoskote to the grandfather of DW.2.  

He has further stated that when the lands were  

purchased under Ex.D­1, Kunnaiah was a minor and his  

grandmother purchased those properties as a guardian  

of minor Kunnaiah. DW.4 stated that he, his father  

and brothers are all the members of the joint family.  

He also admitted that the consent letter given by him  

along with his brothers under Ex.D­4 was for the  

purpose of sale of lands under Ex.D­3. He further  

admitted that the lands sold under Ex.D­5 are the  

lands purchased under Ex. D­1 and these are the joint  

family properties. In his evidence, defendant No.3  

(DW.4) deposed that his father had sold about 25  

acres of land and if the above said lands were not  

sold  he and his brothers were entitled for a share  

in the said properties.

16. From the aforesaid statement, it is clear that  

even defendant No.3 (DW.4) admits that the lands sold  

under Ex.D­5 are the joint family properties and if  

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lands were not sold he and his brothers would have  

been entitled for a share.  

17. In the light of discussions as made above, we  

hold that those suit schedule properties are joint  

family properties of Kunnaiah along with 4 sons and  

the co­parceners have equal shares in the properties.  

Accordingly, 4 sons and Kunnaiah are entitled to  

1/5th share of the total properties.   

So far as 1/5th share of Kunnaiah is concerned,  

apart from 4 sons, i.e., defendant Nos. 1, 2, 3 and  

4, the daughters of Kunnaiah are entitled to 1/50th  

share each whereas the sons, i.e., defendant Nos.1,  

2, 3 and 4 are entitled to 11/50th  share each,  

inclusive of their respective shares. Defendant No.9  

who is the son of the first daughter having succeeded  

the estate of his mother, a co­parcener is also  

entitled to 1/50th  share. In this background no  

interference with the impugned judgment is called  

for.   In absence of any merit the appeal is  

dismissed. The parties shall bear their respective  

costs.  

………..………………………………………..J.        (G.S. SINGHVI)

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………………………………………………….J.         (SUDHANSU JYOTI MUKHOPADHAYA)

NEW DELHI, APRIL 10, 2013.

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