(PER: THE HON'BLE MR. JUSTICE C M JOSHI)
suit filed for partition came to be decreed.
2. The factual matrix that is necessary for the purpose
3. The case of the plaintiffs as per the pleadings is as
injunction. The said suit came to be decreed and the
only licencees in occupation of the property. The said suit came
Gopal were dispossessed from the property. Gopal met with an
minor children. Being stripped of any partition in the joint family
also entitled to get share in all the suit schedule properties.
4. On service of summons, defendant No.1 appeared
and filed the written statement. Defendant No.2 to 4 remained
5. The defendant No.1, in her written statement, denied
is incorrect one. It was her case that the suit properties are the
had never contributed any amount to purchase the properties.
dismissed. It was contended that she has already filed a suit in
executing the decree, she had taken the possession. Therefore,
the Trial Court to dismiss the suit. On the basis of the above
5. Whether the suit is hit under Order 2 Rule 2 CPC?
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6. What order or decree?"
6. The natural mother of plaintiffs, being their minor
guardian, was examined as PW1 and one witness was examined
on her behalf as PW2. Ex.P1 to Ex.P14 were marked. Defendant
No.1 got herself examined as DW1 and one witness is examined
as DW2. Ex.D1 to Ex.D8 were marked. After hearing the
arguments of both the sides, the Trial Court answered issue No.1
and 4 in the affirmative, issue No.3 and 5 in the negative and
held that the plaintiffs are jointly entitled for 1/6th share in the
suit schedule properties.
7. Being aggrieved, the defendant No.1 approached the
First Appellate Court in R.A.No.62/2009 and by impugned
judgment, the First Appellate Court dismissed the appeal
confirming the judgment of the Trial Court. It is against the said
judgment, the defendant No.1 is before this Court in this second
appeal.
8. After hearing the counsel for the appellant, the
following substantial question of law was framed by this Court.
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(i) Whether the Courts below failed to consider
that the suit was hit by the principle of res
judicata in view of the decree obtained in
O.S.No.306/2004 (wrongly shown as
O.S.185/2006) by the appellant No.1 against
the respondent Nos.1 to 3?
(ii) Whether both the courts below are justified in
allowing the claim of the plaintiffs when the
plaintiffs have failed to prove the legal title to
the suit property?
9. Heard the arguments of learned counsel for
appellants and respondents.
10. The learned counsel appearing for the appellant
submitted that the alleged joint family of Fakirappa and
Ramappa did not have sufficient nucleus to enable them to
purchase the suit schedule properties. Except the oral say of the
plaintiffs, there is nothing else to show that they were jointly
running mutton shop and from the income generated, the suit
schedule properties were purchased. It is contended that when a
party alleges that a particular property is the joint family
property, though there is presumption about the joint family,
there is no such presumption that the property held is also joint
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family property. This aspect was not proved by the plaintiffs and
therefore, the impugned judgment is not sustainable in law. He
further argues that the appellant had filed a suit in
O.S.No.306/2004 seeking possession of the property and the
said suit came to be decreed. In pursuance to the execution
filed, the appellant had obtained possession of the property. In
the said suit, it was held that the suit schedule property is the
property of the appellant/defendant No.1. Therefore, the said
finding in O.S.No.306/2004 having become final, it acts as res-
judicata and the same issue cannot be revisited again. He
submits that provisions of the Order II Rule 2 of the CPC were
not considered by both the Courts below. Therefore, he submits
that the impugned judgments are not sustainable in law.
11. Per contra, learned counsel appearing for the
respondents submits that the Trial Court as well as the First
Appellate Court have considered the grounds now raised by the
appellant. He submits that in the suit filed by the
appellant/defendant No.1, the question whether the suit
schedule property is the joint family property or not, was not
involved. In the said suit, the Court considered that the property
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stands in the name of the defendant No.1 in the revenue records
and City Municipal Corporation records and held that it belongs
to the plaintiff therein. It was not a comprehensive suit where
the question as to whether it is a joint family property or not
could be entertained and therefore, the principle of res-judicata
is not applicable. So far as the provisions of Order II Rule 2 of
CPC is concerned, he submits that the said provisions of Order II
Rule 2 of CPC cannot be made applicable to the defendants in
the suit. The present respondents were the defendants in
O.S.No.306/2004 and therefore, it was open to them either to
make a counterclaim or to file a separate suit. Therefore, in the
present case, the provisions of Order II Rule 2 of CPC cannot
bind or fetter the plaintiffs to file the present suit for partition.
Therefore, he contends that the grounds alleged by the
appellant-defendant No.1 are not sustainable. Insofar as the
contention that the nucleus is not proved by the plaintiffs, he
submits that the oral testimony of the plaintiffs and the
defendants would be the only basis to establish the nucleus. All
along it is the case of the plaintiff herein that it was Fakirappa
who was looking after the entire family affairs and it was
Ramappa, who was working at the instance of Fakirappa in
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running the mutton shop. When there is oral evidence of the
witnesses on this aspect, the onus shifts upon the defendant
No.1 to establish that the property was purchased out of self-
acquired income of Fakirappa. The standard of evidence,
required to prove that certain property to be a joint family
property, is different than the standard of evidence required to
prove that a particular property is the individual property.
Therefore, he submits that no infirmity can be found in the
judgment of the Trial Court as well as the First Appellate Court.
Hence, he seeks dismissal of the appeal.
12. So far as the question of res-judicata is concerned, It
was not raised before the Trial Court and no issue was framed
regarding the said contention. However, while considering Issue
No.4 regarding Court fee, the Trial Court considers this aspect. It
is noticed that the question whether the suit schedule property is
the joint family property or not was not decided in
O.S.No.306/2004. Therefore, when the contention is based on
the joint acquisition of the property by Fakirappa and Ramappa,
it held that there is no impediment to consider the contention of
the plaintiffs.
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13. So far as Order II Rule 2 of CPC is concerned, an
issue was framed in the form of issue No.5 in O.S.No.185/2006
and the Trial Court observes that in O.S.No.306/2004 the
question of title was not decided and no issues were raised on
the aspect of the joint acquisition of the property. In paragraph
24, the Trial Court observes as below:
"24. ........ Here while discussing main issues 1 to 3, I have
discussed the relief and nature of the suit in previously
filed suit O.S.No.306/04 that title question was not at all
decided there and no issues were raised on this point.
Though it was contended by the defendant in that suit
that in his own right as a member of joint family as a
owner and possessor he was in possession of the property
in question. But scope of that suit relief claimed do not
cover the complex question of title with regard to
ancestral joint family property coparcenary right, birth
right of the parties and their share in the properties. All
these questions are to be decided in a properly
constituted partition suit and not in a suit filed by
defendant No.1 basing on the point of license. Therefore it
cannot be said that dispute decided in O.S.No.306/04
between father of plaintiffs and defendant No.1 amounts
to relinquishment of part of claim. Therefore the legal
heirs of deceased Gopal Jorapur have every right to file
present suit in respect of all joint family properties for the
relief of partition. Further more all the properties are not
subject matter in O.S.No.306/04 and even one of the
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property was involved still scope of that suit was limited
and real question of right of succession, nature of the
property, inheritance is expected to be decided in a
properly constituted suit."
14. After observing as above, the Trial Court holds that
the judgment in O.S.No.306/2004 has no bearing on the suit in
O.S.No.185/2006.
15. The First Appellate Court in the impugned judgment
notices that in O.S.No.493/2003 filed by Gopal, the relief of
permanent injunction was sought and the suit came to be
decreed. In the said suit, Gopal had contended that it is the joint
family property and he is in possession of the same.
Subsequently, the defendant No.1-Sharadabai filed
O.S.No.306/2004 seeking possession. The First Appellate Court
notices that it was a mere suit for possession and declaration of
title was not sought by Sharadabai-Defendant No.1. Therefore,
when the question of title was not involved in the earlier suit i.e.
O.S.No.306/2004 and issue regarding the title was not
determined, it holds that the principle of res-judicata does not
apply. In paragraph 19 of its judgment, the First Appellate Court
observes as below:
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"19. ...... If really the relief of declaration were to have
been sought in the said suit, the matter in issue would
have been different and if any findings are recorded by
raising such an issue relating to the right, title and
interest and nature of the properties then it would have
operated as res-judicata. Therefore, when the question
of title was not filed in the earlier suit in
O.S.No.306/2004 and as such it was also not determined
regarding constituting of the joint family and acquiring of
the joint family properties in the said suit by raising
necessary issues on the pleadings of the parties, it
cannot be said that the Plaintiffs in the present suit are
barred from bringing the present suit for partition as it
operates as res-judicata."
16. Let us examine the judgment of the Court in
O.S.No.306/2004. It may be noted that the said suit was filed for
possession but the defendant No.1-Sharadabai had not sought
any declaration of title. It may also be noted that the said suit
pertains to one of the suit schedule properties. There was
nothing on record to show that the question of title and whether
it is a joint family property or not, was not raised at all. An issue
on that aspect was not available for adjudication. Though the
defendant i.e. Gopal had contended that the property was
acquired jointly by Ramappa and Fakirappa, since there was no
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such counterclaim, the issue was not raised. The burden was to
be upon the plaintiff i.e., Sharadabai.
17. It is trite law that to invoke the principles of res-
judicata, the issue in question in the present suit should be the
same as involved in the earlier suit and it has been determined
on merits. Admittedly, it was a suit for possession and question
of title was not at all involved. Therefore, no fault can be found
in respect of the finding of the Trial Court as well as the First
Appellate Court on the question of res-judicata. Therefore, this
Court finds that either the principles of res-judicata come into
paly or the provisions of Order II Rule 2 of CPC bar the plaintiffs
to claim partition.
18. So far as the nature of property is concerned, the
learned counsel appearing for the appellant places reliance on
the recent judgment in the case of Angadi Chandranna v.
Shankar and others1 wherein it was held as below:
"13. Further, it is a settled principle of law that there is
no presumption of a property being joint family property
only on account of existence of a joint Hindu family. The
2025 SCC OnLine SC 877
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one who asserts has to prove that the property is a joint
family property. If, however, the person so asserting
proves that there was nucleus with which the joint family
property could be acquired, then there would be
presumption of the property being joint and the onus
would shift on the person who claims it to be self-acquired
property to prove that he purchased the property with his
own funds and not out of joint family nucleus that was
available. That apart, while considering the term 'nucleus'
it should always be borne in mind that such nucleus has
to be established as a matter of fact and the existence of
such nucleus cannot normally be presumed or assumed
on probabilities. This Court in R. Deivanai Ammal
(Died) v. G. Meenakshi Ammal12, dealt with the concept of
Hindu Law, ancestral property and the nucleus existing
therein. The relevant paragraphs are extracted below for
ready reference:
"13. First let us consider the nature of the suit
properties, namely, self-acquired properties of late
Ganapathy Moopanar or ancestral properties and whether
any nucleus was available to purchase the properties.
Under the Hindu Law it is only when a person alleging
that the property is ancestral property proves that there
was a nucleus by means of which other property may
have been acquired, that the burden is shifted on the
party alleging self-acquisitions to prove that the property
was acquired without any aid from the family estate. In
other words the mere existence of a nucleus however
small or insignificant is not enough. It should be shown to
be of such a character as could reasonably be expected to
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lead to the acquisition of the property alleged to be part
of the joint family property. Where the doctrine of
blending is invoked against a person having income at his
disposal and acquiring property, the reasonable
presumption to make is that he had the income at his
absolute disposal unless there is evidence to the contrary.
If a coparcener desires to establish that a property in the
name of a female member of the family or in the name of
the manager himself has to be accepted and treated as
property acquired from the joint family nucleus, it is
absolutely essential that such a coparcener should not
only barely plead the same, but also establish the
existence of such a joint family fund or nucleus. Even if
the joint family nucleus is so established, the prescription
that the accretions made by the manager or the
purchases made by him should be deemed to be from and
out of such a nucleus does not arise, if there is no proof
that such nucleus of the joint family is not an income-
yielding apparatus. The proof required is very strict and
the burden is on the person who sets up a case that the
property in the name of a female member of the family or
in the name of the manager or any other coparcener is to
be treated as joint family property. There should be proof
of the availability of such surplus income or joint family
nucleus on the date of such acquisitions or purchases. The
same is the principle even in the cases where moneys
were advanced on mortgages over immoveable
properties. The onus is not on the acquirer to prove that
the property standing in his name was purchased from
joint family funds. That may be so, in the case of a
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manager of a joint family, but not so in the case of all
coparceners. For a greater reason it is not so in the case
of female members.
15. It is a well-established principle of law that
where a party claims that any particular item of property
is joint family property, the burden of proving that it is so
rests on the party asserting it. Where it is established or
admitted that the family possessed some joint property
which from its nature and relative value may have formed
the nucleus from which the property in question may have
been acquired, the presumption arises that it was joint
property and the burden shifts to the party alleging self-
acquisition to establish affirmatively that the property was
acquired without the aid of the joint family. But no such
presumption would arise if the nucleus is such that with
its help the property claimed to be joint could not have
been acquired. In order to give rise to the presumption,
the nucleus should be such that with its help the property
claimed to be joint could have been acquired. A family
house in the occupation of the members and yielding no
income could not be nucleus out of which acquisitions
could be made even though it might be of considerable
value."
19. It is worth to note that when a party approaches the
Court contending that particular property is the joint family
property, the burden of proving the same is on him. Though
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there is a presumption about jointness of the family unless it is
shown to be disrupted, there is no such presumption in respect
of nature of the property being joint family property. For that
purpose, the pleading and the proof are required to confer the
status of the joint family property and it is necessary that the
nature of acquisition of the property has to be established. The
existence of sufficient nucleus for the joint family to acquire the
property in question would be a relevant aspect in the case.
Once such burden is discharged by the plaintiff, the onus shifts
on the defendant, who claim that it is the self-acquired property.
20. In the case on hand, the plaintiffs contend that
Fakirappa and Ramappa were together running mutton shop and
out of the earnings from the said business, they purchased the
suit schedule property in the name of Fakirappa. The Trial Court
observes that 'A' schedule property bearing CTS No.1939 and
1940 are the house properties and open space and it was
purchased by Fakirappa through registered sale deed dated
11.09.1953. It is pertinent to note that the defendant No.1
nowhere states that there was a partition between Fakirappa and
Ramappa. Therefore, the jointness of Fakirappa and Ramappa
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has to be accepted. The plaintiffs contend that Fakirappa and
Ramappa were running mutton shop and out of earnings from
the said business, they had sufficient nucleus and therefore, they
purchased the property. On this aspect, apart from the testimony
of PW1, the testimony of PW2-Durgaji Kalal, who was aged about
75 years at the time he deposed, throws some light. He states
that Fakirappa and Ramappa were hardworking and their
relationship was cordial. He states that out of their joint
earnings, the suit schedule properties were purchased. The
cross-examination of PW2 does not show anything that the suit
schedule properties were self -acquired properties of Fakirappa.
A feeble suggestion was made to him that Ramappa had
properties at Dharwad and he says that he has no idea of the
same.
21. The testimony of DW1 is that she asserts that the
suit schedule property was purchased by her husband Fakirappa.
A photograph was confronted to her as per Ex.P7 and she
identified Fakirappa. The said photograph at Ex.P7 is that of the
marriage of Gopal and his wife Saroja (PW1). She also denies the
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Ex.P8, the marriage invitation card, which showed the name of
Fakirappa as father of Gopal.
22. The testimony of the DW2/Durgamma states that the
suit properties are of the ownership of Fakirappa and denies that
they are the joint family properties.
23. The Trial Court at paragraph 16 of its judgment
considers in detail the testimonies of the witnesses and notes the
admission of DW2 that Ramappa used to butcher and sell
mutton. Therefore, the Trial Court disbelieves the testimony of
the defendant that Ramappa had never come to Hubli and doing
any business. The Trial Court observes that there is some grain
of truth in the contentions of the plaintiffs that their grandfather-
Ramappa was also doing mutton vending business along with
Fakirappa. The Trial Court also observes that admissions of DW1
regarding the photographs in which Fakirappa was shown to be
attending the marriage of Gopal falsify the testimony of DW1.
Therefore, it opines that the suit schedule properties were
acquired during the jointness of Fakirappa and Ramappa.
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24. It is pertinent to note that the plaintiffs were in
possession of the suit schedule property and then the defendant
obtained the possession under a decree of the Court. The
relationship though at some point of time was denied, it was not
a contentious matter in the present suit. It is evident that
Fakirappa and Ramappa though they hail from Dharwad, they
had their business at Hubli. The reliability of the testimony of the
plaintiffs and their witness PW2 was weighed by the Trial Court
in length and it came to the conclusion that the property was
acquired by the joint exertion of Fakirappa and Ramappa. This
factual aspect considered by the Trial Court cannot be found fault
with for simple cause. The nature of the business did not warrant
any documentary evidence on that aspect. Obviously, it was the
testimony of the witnesses and their demeanor in the Court
which weighed the Trial Court to lien in favour of the plaintiff.
This Court also finds that the testimony of the DW1 and DW2
was not trustworthy since DW1 evaded to answer as to why her
husband Fakirappa was seen in the marriage of Gopal. Therefore,
the conclusions reached by the Trial Court that the suit schedule
properties are the properties acquired by Fakirappa and
Ramappa cannot be faulted.
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25. This conclusion of the Trail Court based on the oral
testimony of the witnesses, has been reiterated by the First
Appellate Court and it also came to the conclusion that there is
no reason to interfere with the finding of the Trial Court. The
First Appellate Court, while re-appreciating the evidence on
record, has towed the line of the Trial Court and has held that no
fault can be found with the conclusions of the Trial Court. This is
precisely the concept as held by the Apex Court in the case of
Santosh Hazari v. Purushottam Tiwari2. It is settled principle
of law that the First Appellate Court cannot traverse a different
way in appreciating the evidence and replace its own finding to
that of the Trial Court. Under these circumstances, the
conclusions reached by the Trial Court that there is material to
show that Ramappa and Fakirappa together were doing mutton
vending business, but the property was acquired in the name of
Fakirappa out of the income derived from the business cannot be
faulted. The testimony of DW1 and DW2 do not effectively rebut
the evidence placed on record. It is not the case of the defendant
that the joint family of Fakirappa and Ramappa did not exist. It
(2001) 3 SCC 179
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is the case of the defendant that Ramappa was residing at
Dharwad and he never came to Hubli while Fakirappa was living
with the defendant No.1 at Hubli. This contention is falsified by
the cross-examination of DW2 and the suit filed by defendant
No.1 in O.S.No.306/2004. Therefore, the First Appellate Court is
justified in holding that the suit schedule properties are jointly
acquired by Ramappa and Fakirappa.
26. If that be so, the plaintiffs are entitled for a share in
the suit schedule properties. The question that defendant No.2, 3
and 4 have relinquished their rights in favour of Gopal has been
considered by the Trial Court and it holds that it is an interse
matter between the plaintiffs and defendant No.2 to 4 and
defendant No.2 to 4 having not questioned the said contention of
the plaintiff, it do not require any consideration.
27. For the aforesaid reasons, both the substantial
questions raised are answered in the negative and affirmative,
respectively.
28. In the result, the appeal fails and as such, dismissed.
No order as to costs.
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29. In view of disposal of the appeal, pending
interlocutory applications, if any, do not survive for consideration
and are disposed of.
SD/-
(C M JOSHI)
JUDGE
YAN
CT:PA
