TMI Blog1970 (7) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... eals Nos. 430 of 1965 and 182/67 arising out of O. S. No. 26 of 1956. The main questions to be answered in these appeals are: (1) whether there was sufficient ancestral nucleus which formed the basis for the acquisition of the properties shown in A to D schedules attached to the plaint in O. S. No. 26/56? (2) If there was sufficient ancestral nucleus whether the plaintiff is entitled to a share in the suit schedule properties as claimed by him; and (3) whether, even if there was no sufficient ancestral nucleus which could have formed the basis for the acquisition of the properties shown in A to D schedules, the first defendant by his conduct and action, impressed the suit properties with the character of joint family properties so as to entitle the plaintiff to a share in the suit properties ? Another question that arises incidentally is whether all or any of the suit properties represent the accretions to the estate of late Voleti Chenchuramaiah, which devolved under a will, on the wife of the 1st defendant and the mother of the 3rd defendant, who has now laid claims to all the suit properties. The facts necessary for the disposal of the questions involved are these. The 1st d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the year 1892; that, in the year 1903, there was a partition between himself and his brothers; that he was then a minor; and that, at the time of the partition, he did not get any sizable share so as to constitute the ancestral nucleus from which he could have acquired the suit properties. It is his case that, in order to eke out his livelihood and maintain his wife, whom he married in 1906, he had to first join as a clerk on a monthly salary of Rs. 10 and later become a petty trader selling rice and doing business in cashewnuts; that he was taken only as a working partner in the first instance in a rice mill business ; that later with his own exertions, he purchased the rice mill in question, item No. 1 of the B schedule ; and that it is from out of the income realised from the rice mill that he acquired the suit properties. It is also his case that, apart from the rice mill business, he had some commission agency business. In short, his defence is that there was no ancestral nucleus which could have formed the basis for the acquisition of any of the properties now shown in the plaint schedules. He also denied the claim of his daughter, the 3rd defendant, that, during the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for acquisition of either the rice mill, item No. l of the B schedule, or other properties and as such, the lower court erred in granting a decree to the extent of 3/6th share in favour of the 3rd defendant. Mr. Subbareddi, the learned counsel appearing for the plaintiff-appellant in Appeal No. 188 of 1967, contended that in the partition of 1892 between Ramaiah, the father of the 1st defendant, and his brothers, 4,600 varahas were divided among the brothers ; that the amount that fell to the share of the 1st defendant's father came to be divided in the partition of 1903 between the 1st defendant and his brothers ; that with the aid of that amount and other movables, the 1st defendant invested in the business which he was carrying on in partnership with others; and that, therefore, there was sufficient joint family nucleus which formed the basis for the acquisition of the suit properties. It is further argued by Mr. Subbareddi that the declarations made by the 1st defendant in the income-tax returns submitted by him for the years 1949-50 and 1950-51 as evidenced by exhibit A-8 dated February 28, 1950, and exhibit B-89 dated July 31, 1950, would show that he has treated the proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on November 2, 1908, the 1st defendant and his brothers sold the shops, sites and the house constructed by them in the site purchased by their father for discharging the debt due to the Voleti family by the 1st defendant's family. Therefore, exhibits B-145 and B-146 make it clear that by November 2, 1908, whatever little ancestral property was left behind by Ramaiah, the father of the 1st defendant, was sold to discharge the debts incurred by the sons of Ramaiah. There is no evidence at all to show that any portion or part of the " varahas " that originally fell to the share of Ramaiah, the father of the 1st defendant, at the partition prior to 1892 still remained intact or were available to enable the 1st defendant to invest in the business which he was carrying on in partnership with others or in his own name so as to form the basis for the acquisition of the suit properties. It is significant to remember that the plaintiff was born in 1919 and there is absolutely no evidence, either oral or documentary, to show that in 1914, when his father acquired the rice mill, there was any ancestral nucleus worth the name. Therefore, we are unable to agree with Mr. Subbareddi that there wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat he claimed a share in his mother's properties contending that the income from his mother's properties was also utilised for the purpose of acquiring the suit properties by his father. The plaintiff 's version cannot be relied upon, for he would have no personal knowledge of the management by his father, the 1st defendant, till his mother attained majority, as he was born subsequently in 1919. Even if it is to be said that the 1st defendant was helping his wife in the management of her estate, it will not follow that he was appropriating that income and that the suit properties are the result of those appropriations. Ordinarily, in Hindu families, the property belonging exclusively to a female member would also be normally managed by the manager of the family. Even if it is true that the 3rd defendant's mother did not take part in the management of the property, it would not materially affect the rights or interests of the 1st defendant's wife, as indisputably, the property belonged to her. The Supreme Court in Kanakarathanammal v. Loganatha Mudaliar has observed : " It is true that the actual management of the property was done by the appellant's father ; but that would ine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd in fact it is not their case that the 1st defendant had not purchased the rice mill after the award, exhibit B-10, by borrowing moneys from the local creditors. The rice mill was purchased for Rs. 14,400 and this amount includes the debt of Rs. 4,600 which he was directed to discharge under the award plus the amount of Rs. 9,800 borrowed by him. Therefore, the consideration for the purchase of the rice mill has been explained by him and there is no evidence contra. We are, therefore, unable to agree with Mr. Subbareddi or with Mr. Jagannadha Rao that either the ancestral nucleus of the joint family or the income from the estate of Kamakshamma formed the basis for the purchase of the rice mill, item No. 1 of the B schedule. The lower court, therefore, was in error in holding that the suit properties were acquired by the 1st defendant partly from out of the income appropriated from the estate of Kamakshamma and partly with the aid of the ancestral nucleus of the joint family. The next question to be considered is whether the 1st defendant, at Any time subsequently, either by his declaration or other acts, impressed the suit properties with the character of joint family propertie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing the status of the assessee as an individual from 1924 till 1948. If it is a question of gaining some benefit or advantage for himself, he would have certainly resorted to the method of making an untrue declaration much earlier than 1948. Further, no explanation has been offered by him as to why he had to make such a declaration not once, but in two years, if he did not really intend to impress the property, viz., the rice mill business, with the character of the joint family or coparcenary property. In Pearey Lal v. Nanak Chand , the Privy Council, dealing with a case of similar kind where a son claimed partition in the business started by his father and in view of the absence of the explanation by the father as to why the business was assessed to income-tax as a joint Hindu family business, observed : " Among these there is nothing equal in importance to the respondent's testimony in his examination-in-chief that the cycle business was assessed to income-tax as a joint Hindu family business, and that the assessment notices were in the appellant's possession. He was not cross-examined on these statements and he was not contradicted. All that the appellant said about them i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the assessee was entering into the partnership as the manager of the undivided Hindu family of the assessee and his minor son. " If, as now contended by Mr. Poornaiah, the 1st defendant had no intention of abandoning his rights in the self-acquired property, item No. 1 of the B schedule, viz., the rice mill, there was absolutely no need for him to make a declaration in the manner he did in the income-tax returns. The fact that the Income-tax Officer did not accept his statement is absolutely of no consequence, because it is the conduct of the 1st defendant that matters and so long as he, out of his own volition, declared impressing the self-acquired property belonging to him with the character of coparcenary property, no other formality is required. The fact that he made a feeble attempt to deny fifteen years later, that too in his evidence unable to find any other answer, makes us believe that he abandoned his separate rights in the rice mill, the income from which was being assessed to tax. When once the self-acquired property is impressed with the character of coparcenary property, it ceases to be a separate or self-acquired property. He cannot undo what has been once done, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. " There is another decision which requires to be referred to in this connection. In Civil Appeal No. 695 of 1968 dated May 5, 1970, Hegde J., dealing with the question as to when the self-acquired property gets impressed with the character of coparcenary property, observed: " It becomes joint family property because the coparcener who owned it up till then as his separate property has, by the exercise of his volition, impressed it with the character of joint family or coparcenary property, to be held by him thereafter along with other members of the joint family. " In this case, the facts narrated by us are sufficient to establish that there is an unequivocal declaration on the part of the 1st defendant giving up or abandoning his interests in the self-acquired property and throwing it in the common stock, thus impressing it with the character of coparcenary property and when once that is done, it ceases to be the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the A schedule proceeded from the income derived from the rice mill and that the 1st defendant also has not been questioned regarding the purchase of this item. It is true that there is no plea nor was the 1st defendant questioned as to the source of consideration for purchasing item No. 2 of the A schedule; but, as has been pointed out by the Supreme Court in Mallesappa v. Mallappa, it is for the 1st defendant to show that item No. 2 of the A schedule was purchased with the income from the lands and that no part of the income realised from the rice mill went towards the purchase of that item. This burden, which rests upon the 1st defendant, has not been discharged. Therefore, in view of our finding that the rice mill, item No. 1 of the B schedule, became an item of the joint family property by 1949, we are of the view that the income realised from it was sufficient to enable the 1st defendant to purchase item No. 2 of the A schedule under exhibit B-35. Therefore, this item is also liable to be partitioned between the plaintiff and defendants Nos. 1 and 2, each being entitled to 1/3rd share in it. So far as the other suit items are concerned, they were purchased long prior to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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