VENKATARAMA AYYAR, J. - (1.) THIS appeal arises out of a suit for partition instituted by the appellant in the court of the Civil Judge Senior Division, Bijapur. The relationship of the parties will appear from the following genealogical table: JUDGEMENT_379_AIR(SC)_1954Image1.jpg Siddopant and Krishnarao were members of a joint undivided family. Krishnarao died in 1897 leaving behind a widow, Rukminibai, who is the sixth defendant in the suit. Siddopant died in 1899 leaving him surviving his son, Gundo, who died in 1901 leaving behind a widow, Lakahmibai, who is the fifth defendant. On 16th December, 1901, Lakshmishmibai adopted Devji, who died on 6/05/1935, leaving three sons, defendants Nos. 1 to 3, and a widow, Akkubai, the fourth defendant. On 26/04/1944, Rukminibai adopted the plaintiff, and on 29/06/1944, he instituted the present suit for partition claiming a half share in the family properties.
(2.) SIDDOPANT and Krishnarao represented one branch of a Kulkarni family and were entitled for their share of the Watan lands, to the whole of S. No. 138 and a half share in S. Nos. 133 and 136 inthe village of Ukamnal and a half share in S. Nos. 163, 164 and 168 in the village of Katakanhalli. The other branch was represented by Swamirao, who was entitled for his half share of the Watan lands, to the whole of S. No. 137 and to a half share in S.Nos. 133 and 136 in the village of Ukamnal and to a half share in S. Nos. 163, 164 and 168 in the village of Katakanhalli. Siddopint purchased a house under Exhibit D- 36 and lands under Exhibits D-61 and D-64, and constructed two substantial houses. His grandson, Devji, also built a house. All these properties are set out in Schedules A and B to the plaint, A Schedule consisting of houses and house sites and B Schedule of lands. It is the plaintiff's case that these properties were either ancestral, or were acquired with the aid of joint family funds. He accordingly claims a half share in them as representing Krishnarao. Swainirao died about 1903 issueless, and on the death of his widow shortly thereafter, his properties devolved on Devji as his nearest agnate, and they are set out in Schedule C to the plaint. The plaintiff claims that by reason of his adoption he has become a preferential heir entitled to divest Devji of those properties, and sues to recover them from his sons. -In the alternative, he claims a half share in them on the ground that they had been blended with the admitted Joint family properties. The defendants denied the truth and validity of the plaintiff's adoption. They further contended that the only ancestral properties belonging to the family were the Watan lands in the villages of Ukamnal and Katakanhalli, that the purchases made by Siddopant were his self-acquisitions, that the suit houses were also built with his separate funds, and that the plaintiff was not entitled to a share therein. With reference to the properties in Schedule C, they pleaded that the. plaintiff could not by reason of his adoption divest Devji of the properties which had devolved on him as heir. They denied that those properties had been blended with the joint family properties. Both the courts below have held that the adoption of the plaintiff is true and valid, and that question is no longer in dispute before us. They have also held that the purchases made by Siddopant and the houses built by him were his self-acquisitions, as was also the house built by Devji. The trial court held that the plaintiff was entitled to a half share in S. Nos. 639 and 640 in Schedule A on the ground that they belonged to the family as ancestral properties; but the High court held that that had not been established. As regards the properties set out in Schedule C, while the trial court decided that the appellant was entitled to them exclusively under the decision of the Privy council in Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil(1), the High court held following a full bench decision of that court in Jivaji Annaji v. Hanmant Ramchandra(2), that they belonged exclusively to Devji, and that the plaintiff could lay no claim to them. Both the courts a reed in negativing the contention of the plaintiff that there had been a blending of these properties with the joint family properties. In the result, the High court granted a decree in favour of the plaintiff for partition of the admitted Watan ,lands, and otherwise dismissed the suit. The present appeal is preferred against this decision. The first contention that has been urged on behalf of the appellant is that the finding of the courts below that the properties purchased by Siddopant and the houses constructed by him and Devji were self-acquisitions, is erroneous, firstly because the burden was wrongly cast on the plaintiff of proving that they were made with the aid of joint family funds, and secondly because certain documents which had been tendered in evidence by the plaintiff had been wrongly rejected as inadmissible. On the first question, the argument of the appellant is that as the family admittedly possessed income-producing nucleus in the ancestral Watan lands of the extent of 56 acres, it must be presumed that the acquisitions standing in the name of Siddopant were made with the aid of joint family funds, that the burden lay on the defendants who claimed that they were self-acquisitions to establish that they were made without the aid of joint family funds, that the evidence adduced by them fell far short of it, and that the presumption in favour of the plaintiff stood unrebutted. For deciding whether this contention is well-founded, it is necessary to see what the findings of the courts below are regarding the extent of the ancestral properties, the income they were yielding, the amounts that were invested by Siddopant in the purchases and house constructions, and the other resources that were available to him.
(3.) ON the question of the nucleus, the only properties which were proved to belong to the joint family were the Watan lands of the extent of about 56 acres, bearing an annual assessment of Rs. 49.00. There is no satisfactory evidence about the income which these lands were yielding at the material period. Rukminibai, P.W. 6, and Akkubai, D.W. 1, gave conflicting evidence on the point. But neither of them could have had much of first-hand knowledge, as both of them came into the family by marriage long after the nineties, and were then very young. The lessee who cultivated the lands of Swamirao, who owned, a share in the Watan lands equal to ' that of Siddopant and Krishnarao, deposed that the net income was Rs. 30.00 per annum. ON a consideration of the entire evidence, the trial court put the annual income at Rs. 150.00. ON appeal, the learned Judges of the High court were also of the opinion that the income from the lands could not have been considerable. They characterised the oral evidence of P.W. 6 and D.W. I on the point as worthless. They observed that the assessment of less than a rupee per acre was an indication that the lands were of poor quality. They referred to the fact that both the brothers were obliged to go to the State of Hyderabad for earning their livelihood, and that Krishnarao had been obliged to borrow under Exhibits D-89 and D-90 even petty amounts like Rs. 26.00 and Rs. 10.00 on onerous terms, and they accordingly concluded that the income from the lands could not have beep sufficient even for maintenance. Coming next to the acquisitions, on 21st May, 1871, Siddopant purchased under Exhibit D-36 a house for Rs. 200.00 from his mother-in-law. On 11th May,1885, he purchased under Exhibit D-61 S. No. 23 Ukamnal village for a sum of Rs. 475.00. On 23rd July, 1890, he purchased under Exhibit D- 64 lands bearing S. Nos. 2025 and 2140 for Rs. 2,400.00. In this suit, we are concerned only with S. No. 2025. Apart from these purchases, he constructed two houses, one on S. Nos. 639, 640 and 641, and another on S.Nos. 634 and 635. D.Ws. 2 and 3 have deposed that these constructions would have cost between Rs. 20,000.00 and Rs. 25,000.00, and both the courts have accepted this evidence. It was argued for the appellant that these witnesses had no first-hand knowledge ofthe constructions, and that their evidence could not be accepted as accurate. But making all allowances for inexactitude, there cannot be any doubt that the buildings are of a substantial character. After 1901, Devji built a house on S. Nos. 642, 644 and 645 at a cost estimated between Rs. 2,000.00 and 4,000.00. Thus, sums amounting to about Rs. 30,000.00 had been invested in the acquisition of these properties and construction of the houses. Where did this money come from ? The evidence is that Siddopant was a Tahsildar in the State of Hyderabad, and was in service for a period of 40 years before he retired on pension. Though there is no precise evidence as to what salary he was drawing, it could not have been negligible, and salary is the least of the income which Tahsildars generally make. The lower courts came to the conclusion that having regard to the smallness of the income from the ancestral lands and the magnitude of the acquisitions made, the former could not be held to be the Foundation for the latter, and on the authority of the decision of the Privy council in Appalaswami v. Suryanarayanamurti (1) held -that the initial burden which lay on the plaintiff of establishing that the properties of which a division was claimed were joint family properties had not been discharged. The law was thus stated in that case: ' The Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established 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 burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property: See Babubhai Girdharlal v. Ujamlal Hargovandas (1), Venkataramayya v. Seshamma(2) Vythianatha v. Vdradaraja (3).' It is argued for the appellant that in that case the father had obtained under the partition deed, Exhibit A, properties of the value of Rs. 7,220.00, that he acquired properties of the value of Rs. 55,000.00, and that nevertheless, it was observed by the Privy council that ' the acquisition by the appellant of the property under Exhibit A, which as between him and his sons was joint family property, cast upon the appellant (the father) the burden of proving that the property which he possessed at the time of the plaint was his self-acquired property '; and that therefore on proof that there existed ancestral lands of the extent of 56 acres, the burden was shifted on to the defendants to establish self-acquisition. ;