TaxTMI 
TaxTMI 
2025 (4) TMI 1709
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..... By the impugned order, the High Court allowed the Regular Second Appeal thereby setting aside the judgment and decree dated 21.02.2006 passed by the Civil Judge (Senior Division), Challakere [Hereinafter referred to as "the First Appellate Court"] in Regular Appeal No.291 of 2002 and affirming the judgment and decree dated 21.12.2001 passed by the Civil Judge (Junior Division) and Judicial Magistrate First Class, Challakere [Hereinafter referred to as "the trial Court"], in O.S.No.169 of 1994. 3. The appellant herein is Defendant No.2 and the Respondent Nos.1 to 4, who are the sons and daughters of Defendant No.1 (C. Jayaramappa), are the plaintiffs. For the sake of convenience, the parties are referred to as per their rank in the aforesaid suit. 4. Defendant No.1 and his two brothers viz., C. Thippeswamy and C. Eshwarappa, after the death of their father and uncle, who was issueless, divided the joint family properties under a registered partition deed dated 09.05.1986. Subsequently, Defendant No.1 purchased the suit property from his elder brother C. Thippeswamy by way of a registered sale deed dated 16.10.1989. Thereafter, Defendant No.1 sold the suit property to Defenda....
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....-acquired property of Defendant No.1. 6.2. It is further submitted that after the execution of the sale deed dated 11.03.1993 by Defendant No.1 in favour of Defendant No.2 in respect of the suit property, the plaintiffs, who are the sons and daughters of Defendant No.1, had filed the suit for partition and separate possession, without seeking the relief of cancellation of the said sale deed. Though the trial Court framed an issue, it decided that the said issue does not arise for consideration, as in a suit for partition, there is no necessity to seek a relief of declaration of sale deed executed in favour of third parties as null and void. In this connection, the learned counsel referred to a decision of this court in Murugan & Ors. v. Kesava Gounder (Dead) Through LRs. & Ors.[(2019) 20 SCC 633], wherein, it was held that a specific prayer for setting aside the sale deed is mandatory in the suit for declaration and separate possession. 6.3. It is also submitted that the High Court erred in arriving at the finding that Defendant No.1 got the suit property under the will dated 18.12.1978 and the same blended into the joint family properties since then. Whereas, the property re....
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....which was acquired/purchased by Defendant No.1, remains ancestral property and the plaintiffs have a right over the same. In this regard, the learned counsel placed reliance on the decision of this Court in Yudhishter v. Ashok Kumar [(1987) 1 SCC 204] 7.3. It is also submitted that even assuming but not admitting that joint family property once divided through partition, no longer remains as such and is considered self-acquired, the court must examine the facts and evidence to determine how Defendant No.1 acquired the suit property for Rs.15,000/- in 1989, either using nucleus funds/joint family funds or with a loan obtained from DW.3. According to the learned counsel, there was no reasonable possibility that within a period of just three years, the Defendant No.1 could have accumulated a sum of Rs.15,000/- solely by doing coolie work or by cultivating the land allotted to him by way of partition, and acquired the suit property. Further, no convincing and reliable material was produced that Defendant No.1 obtained loan from DW.3. That apart, there were contradictions and inconsistencies in the defendants' side's deposition only to suggest that the suit property was acquired usin....
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....that the suit property was acquired by Defendant No.1 using joint family funds and should therefore be treated as ancestral; he cannot sell it without the consent of the plaintiffs; and plaintiffs 1 and 3, being coparceners of the joint family, have a share in the suit property, while plaintiffs 2 and 4 have a right to maintenance from it, the plaintiffs instituted the suit bearing O.S.No.169 of 1994 for partition and separate possession. The defence raised was that the suit property was self-acquired property of Defendant No.1 and hence, Defendant No.1 has the right to sell it to Defendant No.2. Before the trial Court, on the side of the plaintiffs, PW1 to PW3 were examined and Exs.P1 to P3 were marked; and on the side of the defendants, DW1 to DW4 were examined and Exs.D1 to D10 documents were marked. Upon analysing the same, the trial Court decreed the suit in favour of the plaintiffs, which was reversed by the First Appellate Court. However, the High Court set aside the judgment passed by the First Appellate Court and restored the judgment of the trial Court. Therefore, this appeal came to be filed by the appellant / Defendant No.2. 11. On the basis of the pleadings and subm....
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....stained. 27. This Court in Kondira Dagadu Kadam v. Savitribai Sopan Gujar reported in MANU/SC/0278/1999 : 1999:INSC:192 : AIR 1999 S.C. 2213 held: The High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence. 28. It is thus clear that Under Section 100, Code of Civil Procedure, the High Court cannot interfere with the findings of fact arrived at by the first Appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence. 29. The High Court in the Second Appeal can interfere with the findings of the trial Court on the ground of failure on the part of the trial as well as the first appellate Court, as the c....
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.... SCC 545 this Court explained the concept in the following words: It must be tested whether the question is of general public importance or whether it directly and substantially affects the rights of the parties. Or whether it is not finally decided, or not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law. 32. It is not that the High Courts are not well-versed with the principles governing Section 100 of the Code of Civil Procedure. It is only the casual and callous approach on the part of the courts to apply the correct principles of law to the facts of the case that leads to passing of vulnerable orders like the one on hand." 12.1. In the present case, in our view, the so-called substantial question of law framed by the High Court does not qualify to be a substantial question of law, rather the exercise of the High Court is a venture into the findi....
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....w, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents and involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law. (iii) The general Rule is that the High Court will not interfere with findings of facts arrived at by the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence....
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.... law that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The 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 Ammal [AIR 2004 MADRAS 529], 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 ance....
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....trine of blending of self-acquired property with joint family has to be carefully applied with reference to the facts of each case. No doubt it is settled that when members of a joint family by their joint labour or in their joint business acquired property, that property, in the absence of a clear indication of a contrary intention, would be owned by them as joint family property and their male issues would necessarily acquire a right by birth in such property. But the essential sine qua non is the absence of a contrary intention. If there is satisfactory evidence of an intention on the part of the acquirer such property to treat it as his own, but not as joint family property, the presumption which ordinarily arises, according to the personal law of Hindus that such property would be regarded as joint family property, will not arise. 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 t....
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....e available surplus income and the alleged joint family properties. The person who comes to Court with such bare allegations without any substantial proof to back it up should fail. 17.It is also a well-established doctrine of Hindu Law that property which was originally self-acquired may become joint property if it has been voluntarily thrown by the coparcener into the joint stock with the intention of abandoning all separate claims upto it. But the question whether the coparcener has done so or not is entirely a question of fact to be decided in the 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. The important point to keep in mind is that the separate property of a Hindu coparcener ceases to be his separate property and acquires the characteristics of his joint family or ancestral property, not by mere act of physical mixing with his joint family or ancestral property, but by his own volition and intention by his waiving or surrendering his special right in....
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.... SCR 243 : AIR 1953 SC 495]. The burden of proof that the property was ancestral was on the plaintiffs alone. It was for them to prove that the will of Ashabhai intended to convey the property for the benefit of the family so as to be treated as ancestral property. In the absence of any such averment or proof, the property in the hands of donor has to be treated as self-acquired property. Once the property in the hands of donor is held to be self-acquired property, he was competent to deal with his property in such a manner he considers as proper including by executing a gift deed in favour of a stranger to the family." 15. With regard to coparcenary property, the principle laid down by this Court in Rohit Chauhan v. Surinder Singh & Ors. [(2013) 9 SCC 419] would be relevant as follows: "11. ....In our opinion coparcenary property means the property which consists of ancestral property and a coparcener would mean a person who shares equally with others in inheritance in the estate of common ancestor. Coparcenary is a narrower body than the joint Hindu family and before the commencement of the Hindu Succession (Amendment) Act, 2005, only male members of the family used t....
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....f he was the sole surviving coparcener but the moment plaintiff was born, he got a share in the father's property and became a coparcener. As observed earlier, in view of the settled legal position, the property in the hands of Defendant 2 allotted to him in partition was a separate property till the birth of the plaintiff and, therefore, after his birth Defendant 2 could have alienated the property only as karta for legal necessity. It is nobody's case that Defendant 2 executed the sale deeds and release deed as karta for any legal necessity. Hence, the sale deeds and the release deed executed by Gulab Singh to the extent of entire coparcenary property are illegal, null and void. However, in respect of the property which would have fallen in the share of Gulab Singh at the time of execution of sale deeds and release deed, the parties can work out their remedies in appropriate proceeding." 16. In the instant case, the plaintiffs raised a specific plea throughout the proceedings that the suit property was purchased by Defendant No.1 using family nucleus viz., income derived from the lands allotted to the share of Defendant No.1; income derived from doing coolie work; cash....
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....ised was that Defendant No.1 acquired the suit property with the aid of his own funds and loan obtained from DW3- Narasimhamurthy. DW1- Chandrashekar clearly stated in his deposition that Defendant No.1 obtained a loan from DW3, out of which, he purchased the suit property and that he repaid the loan amount through a sale deed executed in respect of 4 acres of land to DW3 and out of the balance amount, he performed his daughter's marriage. It was also stated by DW1 that apart from the suit property, Defendant No.1 had various lands and a house as well. DW2 Lakshmanappa stated in his evidence that he had signed the partition deed (Ex. P1) executed among Defendant No.1 and his brothers in 1986; and he denied the payment of Rs.10,000/- to the share of Defendant No.1. He further deposed that Thippeswamy, elder brother of Defendant No.1, residing in Bangalore, sold his share to Defendant No.1 as he was unable to look after the same. His evidence also establishes that Defendant No.1 obtained loan from DW3 and he sold his land to him for repayment of the said loan in 1993 by executing a sale deed (Ex. D1), in which, DW2 was a witness; and at that time, the wife and children of Defendant N....
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.... of PW1 and PW2 in demonstrating that the suit property was an ancestral property. The mere existence of sons and daughters in a joint Hindu family does not make the father's separate or self acquired property as joint family property. It was also the claim of the defendants that Defendant No.1 performed the marriage of his daughter with the funds received as sale consideration, which according to us, is the role of a Kartha, and therefore, has to be treated as act of necessity and duty. This fact has not been objected to by the plaintiffs. 19.1. It is also to be mentioned here that when the income derived from the joint family property or when a joint family property is sold and the sale consideration is utilised for maintenance and education within the joint family, the same are to be treated as out of necessity as it is the duty of every Kartha to do so. Hence, it is sufficient to satisfy the legal necessity if the Kartha had sold the property and used the funds for upbringing the children. That apart, under the customary practices and tradition in this country, it is the father who performs the marriage of his children and therefore, the expenses incurred for that purpos....