V.K. SURENDRA versus V.K. THIMMAIAH & ORS.

Citation: [2013] 5 S.C.R. 386 · Decided: 10-04-2013 · Supreme Court of India · Bench: G.S. SINGHVI · Disposal: Dismissed

Judgment (excerpt)

A 
B 
[2013] 5 S.C.R. 386 
V.K. SURENDRA 
v. 
V.K. THIMMAIAH & ORS. 
(Civil Appeal No. 1499 of 2004) 
APRIL 10, 2013. 
[G.S. SINGHVI AND SUDHANSU JYOTI 
MUKHOPADHAYA, JJ.] 
Suit - Partition suit - By daughter - Claiming 1110 share 
C in the property of her deceased father - Claiming that the 
property was self-acquired - The 3 sons of deceased stated 
that the property was ancestral - One of the sons D-3 claimed 
a specific share in the property on the strength of a Will 
executed by the deceased - Trial court held that D-3 was 
D entitled to the share through th~ Will 7 1-(igty Court decreed the 
suit holding that the property was ancestral and the(efore the 
deceased and his four sons were entitled to equal share i.e. 
1!5th - Thus the four sons were entitled to 11!50th share and 
the five daughters and the sole descendant of one of the 
E daughters were entitled to 1!50th share - Held: The High Court 
rightly held that the property was ancestral and not se/f-
acquired - No interference with the order of High Court is called 
for. 
Plaintiff-respondent No.4 filed a suit for partition and 
F separate possession of 1110th share in the suit schedule 
properties. Her case was that the property in question 
was self acquired by her father 'K'. Defendant Nos.1, 2 
and 4 (three out of the four sons of 'K') defended the suit 
claiming the suit property to be ancestral property and 
G claimed 1/5 share therein. Defendant No.3 (fourth son of 
'K') claimed that he was entitled to total extent of 32 acres 
55 cents in the property, stating that the same was 
bequeathed in his favour under a Will by 'K'. Defendant 
Nos.5, 6, 7, 8 (the 4 daughters of 'K') and defendant No.9 
H 
386 
V.K. SURENDRA v. V.K. THIMMAIAH & ORS. 
387 
(descendant through fifth daughter of 'K') did not file any 
A 
written statement. Trial court held that the property was 
self-acquired property of 'K' and defendant No.3 was 
entitled for the share in the property in question. High 
Court decreed the suit holding that the property was 
ancestral property and thus was joint family property of B 
'K' and his children and therefore 'K' had no right to 
bequeath the property to defendant No.3. Thus, the sons 
of 'K' (defendant Nos.1, 2, 3 arid 4) and 'K' himself were 
entitled to 1/5th share. Hence daughters of 'K' and 
descendant through daughter were entitled to 1/50th c 
share and his sons were entitled to 11/50th share. Hence 
the present appeal by appellant-defendant No.3. 
Dismissing the appeal, the Court 
HELD: 1. The appellant who examined himself as 
D 
DW.4, failed to produce either documentary or oral 
evidence to show that the lands were the self-acquired 
properties of 'K'. In absence of any division in the family 
of 'K' and his sons, the family of 'K' continued to be the 
joint family. If a co-parcener of a joint family claims that 
E 
properties are his self-acquired properties, the burden is 
on him to prove that the same are the self-acquired 
properties. In that background the High Court has rightly 
held that 'K' had no right to change the character of the 
joint family properties by transferring the same either 
F 
under a Will or a gift to any party without the consent of 
the other co-parceners. [Para 14) [395-H; 396-A-C] 
2. In his deposition DW.1 stated that in the year 1976 
when 'K' was alive, the names of all his sons were 
entered in the Jamabandhi. DW.2, deposed in his G 
evidence that the suit schedule properties are the 
ancestral properties of 'K'. DW.3, in his evidence has 
deposed that the father of 'K' possessed of about 30 
acres of wet land and 24 acres of garden land. He further 
stated that 'K' had purchased the lands after the sale of H 
388 
SUPREME COURT REPORTS 
[2013] 5 S.C.R. 
A the lands to the grandfather of DW.2. He further stated 
that when the lands were purchased under Ex.D-1,'K' was 
a minor and his grandmother purchased those properties 
as a guardian of minor 'K'. Even the appellant-defendant 
No.3 as DW.4 admitted that the lands sold, under Ex.D-5 
B are the joint family properties and if lands were not sold 
he and his brothers would have been entitled for a share. 
Therefore, the suit schedule properties are joint family 
properties of 'K' along with 4 sons and the co-parceners 
have equal shares in the properties. Accordingly, 4 sons 
c and 'K' are entitled to 1/5th share of the total properties. 
[Paras 15 to17] [396-C-G; 397-A-C] 
3. So far as 1/5th share of 'K' is concerned, apart 
from 4 sons, i.

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