SHRINIVAS RAMACHANDRA NADIG Vs. VISHNU NAGESH NADIG

JUDGEMENT

(1.) In the village of Malgi in the District of North Kanara, there was a. certain Vithal Shabayya, who had four sons by name Ramachandra, Venkatrao, Govind and Vaman. These five persons were members of a joint Hindu Family. Govind separated from the joint family in the year 1906. Varma , died in the year 1915, leaving an only son by name Gajanan. After the death of Vithal Shabayya, Ramachandra, Venkatrao, and Gajanan, son or Varnan, entered into a partition and divided the joint family properties belonging to them onder a partition deed dt.21-7-1930 marked as Ex.76 in the suit. Ramachandra had three sons by name Sheshgiri, Shrinivas and Nagesh, Sheshgiri having been given away in adoption to another family. The branch of Ramachandra consisted of Ramachandra, Shrinivas & Nagesh. Nagesh died in the year 1938, leaving behind him his widow Shantabai, who is defendant 7, his son Vishnu, the plaintiff and Shakuntala and Sheshikala, his two daughters. Ramachandra died on 8-4-1956. At the time of his death, the surviving members of his branch were Shrinivas, defendant 1, Gowribai. his wife, (defendant 2), Sarojini, daughter of Shrinivas (defendant 3), Viswanath (defendant 4), Hari (defendant 5) and Jagadeesh (defendant 6), sons of Shrinivas, Shantabai (defendant 7) and Vishnu, the plaintiff. It may be mentioned here that Shankuntala and Shasikala the two sisters of the plaintiff had been given in marriage by March 1961.

(2.) Vishnu, son of Nagesh, referred to above, filed Spl. C. S. No.55 of 1962, out of which this appeal arises, on the file of the Civil Judge, Sr. Dn., Karwar, for partition and separate possession of his half share in the properties described in the schedule attached to the plaint, claiming that all those properties were joint family properties. By the time the suit was filed, his two sisters Shakuntala and Shasikala had been given away in marriage and had ceased to be members of a joint Hindu family. The suit was originally instituted against defendants 1 to 6 only. Later on, Shantabai, the mother of the plaintiff was added as the 7th defendant. In the plaint, the plaintiff alleged that even though Ramachandra was the senior male member of the family, the first defendant, who was the elder son of Ramachandra, was managing the family properties since Ramachandra was too old to manage and was an invalid. It was urged in the plaint that the family owned large number of properties, which included not merely the properties that were allotted to the branch of Ramachandra under the partition which took pace in the year 1930, but also certain other items of properties which had been acquired from out of the joint family funds. The plaintiff stated in his plaint that his father was staying away from the family for some time before his death, at Hubli where he was practising as a doctor and after his death, he and his mother continued to stay away from the family. According to him, the joint family was getting a large income from the family, properties, including a rice mill which was situated on item No.13 of plaint 'A' schedule, bearing S. No.3 of Malgi village. The plaint refers to some correspondence, to which we will advert later, which had taken place between the plaintiff and defendant 1 before the institution of the suit, regarding the settlement of their respective claims in the joint family properties. The plaintiff urged that all the properties in schedule were liable to be partitioned between himself and his mother on the one hand and defendants 1 to 6 on the other in equal shares and the parties must be put in possession of their respective shares in the joint family properties. When the suit was instituted, a commissioner was appointed by the Court to take an inventory ef the moveables in the family house and the report of the Commissioner is marked as Ex.26 in the suit. We should have stated earlier that there was a further averment in the plaint that besides the ancestral lands obtained under the family partition of 1930, the family bad come into possession of the properties inherited by defendant 2 from her parents and that defendant 2 did not look upon those properties as her own separate estate, but gave them for the use and management of the joint family and that the income derived from both the sets of lands was brought to the common stock and for all practical purposes the property of defendant 2 and its income became the joint family property.

(3.) Defendants 1 and 2 filed a common written statement. They admitted the relationship between the parties set out in the plaint. But they denied the case of the plaintiff that all the plaint schedule properties were joint family properties, which were liable to be partitioned. They denied that the first defendant was the manager of the family from 1930. On the other hand, according to them it was Ramachandra, who was functioning as the manager of the family till his death in the year 1956. Ramachandra was stated to be hale and healthy and capable of managing the affairs of the family till his death. It was denied that the second defendant had parted with the properties, which she had inherited from her father in favour of the joint family. It was urged that in the year 1930, when the partition took place in the family, the income which the family was deriving from the properties which fell to its share, was very meagre and was not enough to maintain the joint family. It was further urged that defendant 2 got large number of properties from her father and very often, the income which they derived from the properties of the second defendant had to be used in order to supplement the income of the joint family for its maintenance. They pleaded that ths properties which are purchased after 1930 either in the name of first defendant or in the names of defendants 3 to 5 were acquired from out of the monies belonging to the defendant 2, and they could not, therefore, be the properties of the joint family. So far as the rice mill, which is constructed on item No. 13 of the 'A' schedule and which is also shown as item No.1 of the plaint 'B' schedule, and other moveables are concerned, it is pleaded that they all belong to defendants 1 to 6 alone. It was also urged that in or about the year 1958 or 1959, there was an oral partition between the plaintiff on the one hand and defendants 1, 3, 4 and 5 on the other, under which the plaintiff agreed to take certain items of properties to his share in addition to one bit of land belonging to defendant 2, in lieu of certain item of joint family property, which he agreed to give up in favour of defendant 1, and that a sum of Rs.400 was sent immediately thereafter to the plaintiff, who was at the time in Bombay being the income from the share, which had been allotted to the plaintiff at the oral partition. Defendants 1 and 2 also aver in the course of their written statement that there were some discussions and correspondence which had taken place between the plaintiff, defendant 1 and some others, who were interested in the plaintiff. It is urged that in the belief that the plaintiff had separated himself from the family at the time of the oral partition referred to above, a registered partition deed (Ex.81) had been executed by defendants 1 to 6, distributing the properties of the joint family, which according to them had fallen to their share under the oral partition and some other properties, which belonged to defendant 1 and his branch and defendant 2. In substance, their case was that apart from the properties which fell to Ramachandra's branch in the partition, no other property was liable to be divided. Defendants 4 and 5 adopted the written statement of defendants 1 and 2. Defendant 7, the mother of the plaintiff, supported the case of the plaintiff. On the basis of the allegations in the pleadings referred to above, the Court below framed a number of issues. Of them, the two material issues, according to us, were the following: (1). Whether the plaintiff establishes that defendant 1 was de facto manager of the joint family from 1930 onwards? (2a). Does plaintiff prove that there was sufficient nucleus of the ancestral property, to facilitate the acquisition of the suit properties? (2b) . If so, does defendant 1 prove that all the suit properties except serial No.6 are his separate and self acquired properties? The rest of the issues, in a way, are dependent on the answers to the above two issues.