SAKKAR - (1.) THE following Judgment of the court wasdelivered by
(2.) THE relationship of the parties will appear from the following genealogical table.(See genealogical table on next page.) The branches of Girimallappa and Mirijappa were separate at all times material to this litigation. Sometime in 1943, Ramangouda claiming to have been adopted on 11/10/1942 as a son to Marigoolappa by his widow Basalingawa, filed the suit out of which the present appeal arises against the members ofthe branch of Girimallappa and also Gangawa (Def. No. 8), widow of Karabasappa for partition of the properties belonging to the branch of Girimallappa as a joint family and other reliefs. The suit was contested by the defendants Nos. 1, 2, 3 and 5. In the first place, they challenged the adoption of the plaintiff. Secondly, they denied that all the properties in which Ramangouda claimed ashare were joint family properties. The defendant No. 8 Gangawa, was not really interested in the disputes involved in the suit and does not appear to have taken any part in it. Basalingawa, the adoptive mother of Ramangouda, who was defendant No. 7 in the suit, supported his claim. The suit was heard by the Civil Judge at Dharwar in Bombay who held that Ramangouda had been duly adopted as a son to Marigoolappa by his widow Basalingawa and that the properties claimed by Ramangouda as joint were so. Mallappa, the defendant No. 1, preferred an appeal against907 JUDGEMENT_906_AIR(SC)_1959Image1.jpg this decree to the High court at Bombay. In the High court the challenge to the adoption was abandoned and the only point canvassed was whether 'two of the properties were joint family properties, the rest being accepted as joint. These properties were Kurtakoti properties which will be referredto as the "K" properties and certain other properties acquired by the defendant No. 1 between 1914 and 1929. The High court held that both these properties were joint properties. The defendant No. 1, Mallappa, has come up in appeal to this court against this judgment. The appeal is contend byRamangouda who is respondent No. 1. The only dispute in this appeal is whether the courts below were right in holding that the "K" properties and those that were acquired between 1914 and 1929 were joint properties.
(3.) THE appellant claims both these properties as his separate properties. His case is as follows: On 3/11/1903, that is, soon after her husband's death, Gangawa, thewidow of Karabasappa, whom we shall hereafter refer to as Gangawa adopted him as a son unto her husband Later, doubts having arisen as to the validity of this adoption, the appellant on 12/08/1904 got Gangawa to adopt one Irangouda, the husband of ,a sister of his, as Karabasappa's son. THE"K" properties belonged to Karabasappa. Irangouda, as the owner of the "K" properties by virtue of the aforesaid adoption, transferred them to the appellant by a deed of sale executed on 13/6/1905. THE deed stated that as consideration for the safe the appellant paid to Irangouda Rs. 2,000.00 but this statement was false and in fact the transfer was really by way of gift and entirely without consideration THE other properties were purchased out of the income of the "K" properties. It is on this basis that the appellant contends that none of these properties was joint property. There is no dispute that the "K" properties came to the appellant by transfer under the deed of sale mentioned earlier northat the other properties were acquired out of the income of the "K" properties. Both the courts below however disbelieved the case of the appellant that the "K" properties had been transferred to him without anyconsideration. They came to the conclusion that the consideration mentioned had been paid. They further held that the evidence showed that there was a sufficient nucleus of joint family property, called the Belhode properties, out of which the "K" properties could nave been acquired and that being so, a presumption arose that the "K"' properties acquired in the name of the appellant, the senior member of the joint family, were joint properties and it was for the appellant to discharge the onus of proving that they werenot so. The courts below came to the conclusion that the appellant had not been able to discharge that onus and, therefore, held that the "K" properties were joint family properties. Since the subsequently acquiredproperties had been admittedly purchased with the income of the "K" properties, it followed that they were also joint properties. It is not the practice of this court to set aside findings of fact concurrently arrived at by the courts below. We, therefore, have to proceed on the basis that the appellant has failed to prove that the "K"properties had been transferred to him by Irangouda entirely without any consideration. ;