LexMUDIGOWDA GOWDAPPA SANKH & ORS. versus RAMCHANDRA RAVAGOWDA SANKH & ANR.
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MUDIGOWDA GOWDAPPA SANKH & ORS.
v.
RAMCHANDRA RA VAGOWDA SANKH & ANR.
January 9. 1969
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(J. C. SHAH. V. RAMASWAMI AND A. N. GROVER, {J.J
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Hindu Law--Partition-Partition deed s/lani and nominal-Effect of- -
Joint fa1nily having nucleus-Later acquisitions-Income fro1n nucleus.
cdequate for making acquisitions-If cati bi presumed to be joint· family
properties-Alienation-Challenge of in plaint.
A joint family .consisting of two brothers G and A and their wives,.
sons and daughters was possessed of joint family properties. Between the
years 1911 and 1940 several other properties were acquired. In 1930, the
son of A was taken in adoption by G. The adopted son died in 1944,
and both the brothers denied the adoption and purported to effect a parti,
tion. In the partition deed the lands were unequally divided between the
brothers, G getting twice as much as A, but the brothers continued to be·
in joint possession of the. lands. There was no division of their house at
all and the brothers had a joint mess even after the date of partition, After
the partition-deed was executed the two brothers executed various aliena-
tions.
The first respondent. claiming to be the adopted son of another
son of A, filed a suit in 1954 after the death of G and A, challenging the
partition deed a·s fraudulent, that it was never acted upon and· was only
intended to defeat the 'rights of two widows in A's family. The appellants
contested the suit and supported all the alienations.
The trial court decreed the suit except \Vith respect to one sale deed;
and the High Court, in appeal, held in favour of the first respondent even,
\Vith respect to that item.
In appeal to this Court, it was contended that : ( 1) The partition deed:
\Vas not a sham tran·saction; (2) Even if the partition deed was bogus.
there was in law a severance of joint family status; (3) The later· acquisi-
tions between the years 1911 and 1940 were not joint family properties
but belonged exclusively to G; and ( 4) The High Court should not have
reversed the decree of the trial court with respect to the sale d~ed, bed;:tuse
it was not challenged in the plaint.
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HELD : ( 1) The scheme of the partition was to deprive the widows
in A's family of any claim for maintenance out of the joint· family pro-
perties but to limit their rights to the smaller share given to A~ In viey,.-·
of the state of law before the 'decision in Anant v. Shankar, A.I.R. 1943
P.C. 196 the two brothers decided to execute a bogus deed of pai:tition in
order to avoid any legal consequences which may follow if either of the
widows should take a son in adoption.
Therefore, the. deed was not
genuine. [249 D-G; 250 F-GJ
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SUPREME COURT REPORTS
[1969] 3 S.C.R.
(2) In order to operate as a severance of joint ·status, it is necessary
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that the expression of intention to separate himself,
by the
particular
member, must be definite and unequivocal.
If the expression of the
intention is a mere pretence or sham, there is, in the eye of law. no
separation of the joint family status. [251 C-D]
Merla Ramanna v. Chelikani Jagannadha Rao, A.I.R. 1941 P.C. 48,
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applied.
(3) ihere is no presumption that a joint Hindu family, because it is
joint, possesses any joint family property or if there was a· nucleus, any
acquisition made by any member of the joint family is joint family pro~
perty.
It is only after the possession of an GdeqUate nucleus is shown
that such a presumption is drawn and the onus shifts on to the person
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who claims the property as a self-acquisition to make out his claim.
In
the pre·sent case, the income from· the nucleus was more than sufficient
for the purchase of the .various items acquired later, and there was no
proof that G had any separate income of his own oui. of which he could
have acquired those items.
Therefore, the late'r acquisitions were also
joint family properties. [251 E-G; 252 C-D, E-F]
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Appalaswami v. Suryanara,vanamurti, I.LR. [1948] Mad. 440, (P.C.)
applied.
( 4) The first respondent challenged all the alienations in the plaint
and the High Court was right in holding that the sale was without consi·
deration and hence was not genuine and was not binding on the first
respondent. [253 D-E]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 339 of
1966.
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Appeal by special leave from the judgment and order dated
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December 12, 1962 of the Bombay High Court in First Appeal
No. 436 of 1Excerpt shown. Read the full judgment & AI analysis in Lexace.