JUDGMENT
1. The plaintiffs are the appellants in both these appeals. AS No.2664 of 1984 has been filed by the appellants against the decree and judgment in OS No.32 of 1974 on the file of the II Additional Subordinate Judge, Vijayawada. AS No.2577 of 1984 has been filed by the plaintiffs/appellants against the decree and judgment in OS No.87 of 1974 on the file of the II Additional Subordinate Judge, Vijayawada. Since both the appeals raise a common question whether the suit schedule properties are joint family properties and if so, whether the plaintiffs are entitled for their shares, these two appeals are disposed off by a common judgment. For the sake of convenience, the parties to these appeals would be referred in accordance with their ranking in the suits.
AS No.2664 of 1984 :
2. The plaintiffs are the appellants. Suit OS No.32 of 1974 has beep filed on the file of II Additional Subordinate Judge, Vijayawada for partition and separate possession of plaintiffs 2/9th joint share
in plaint ‘A’ schedule property. The averments in the plaint are briefly set-out here under:
The plaintiffs are brothers and are undivided sons of the second defendant. First defendant is the father of the second defendant and husband of the third defendant. Plaintiffs and defendants 1 to 3 constitute a Joint Hindu Family of which the grandfather of the plaintiffs i.e., the first defendant is the Manager. The first defendant is the adoptive son of late Mudda Subbayya Pantulu who was a Lawyer of Vijayawada Bar. As an advocate he did well for himself and acquired large wealth in the shape of houses and real estate at Vijayawada and several parts of Krishna District. He and his wife had no issues and therefore, adopted the first defendant, educated him, got him married and settled in life. The first defendant also joined the Bar and his father Mudda Subbayya Pantulu died in 1931, possessed of items 1 to 10 of ‘A’ schedule property besides other vast real estate in the form of Agricultural lands and gardens. The first defendant joined the legal profession in 1932 and being the adopted son of a rich lawyer he spent the amounts lavishly. He disposed off most of the properties referred to in the plaint schedule before 1958 though there was no legal necessity or family benefits. In short the first defendant disposed off the plaint schedule properties from 1964 without any legal necessities or for the benefits of the family. It is the case of the plaintiff, that though the first defendant was an advocate he was not managing the family properties, even as an ordinary prudent man would do. The series of transactions and sale deeds would clearly prove that the defendant was squandering the family properties and therefore, those sale transactions are void. In view of the mismanagement by the first defendant depriving the family of enormous properties, a suit for partition of ‘A’ schedule
properties has been filed through their next friend for partition of plaint schedule properties into metes and bounds and delivery of 2/9th share of the plaint ‘A’ schedule properties and for profits. Hence, the suit.
3. The first defendant in the suit died before filing the written statement. The second defendant who is the son of the first defendant filed written statement fully supporting the case of the plaintiff and expressed no objection for passing a preliminary decree for partition. The third defendant who is the grandmother of the plaintiffs filed a detailed written statement supporting the case of the plaintiffs and prayed for a decree for partition and separate possession and claimed 4/9th share in items 2, 5, 6, 7, 8, 9 and 10 and also sought for a declaration that mortgage items 2 and 3 dated 16-10-1969 and mortgage of item 3 dated 15-7-1971 in favour of 10th and 22nd defendant as invalid. The alienees who are arrayed as defendants resisted the suits and contends that the sales are true and valid and binding on the plaintiffs. It is their contention that he was prudent, wordly wise and he was an advocate with sufficient standing and was managing the properties with due care and caution. The first defendant led a life befitting the status of the family and the position occupied by him both as an advocate and as one highly respected in political and social spheres. The alienations were just, fair and it is neither illegal nor void nor tainted with any immorality. They are all bona fide purchasers for value and as such their rights cannot be defeated. The plaintiffs have no cause of action and the suit is speculative venture with a view to blackmail the bona fide purchasers and hence the suit is liable to be dismissed.
4. The trial Court framed appropriate issues addressing itself as to whether ‘A’ schedule properties are joint family properties and whether the alienations made are not
binding on the plaintiff’s. The trial Court has put the parties to trial and based on the oral and documentary evidence has decreed the suits in part granting preliminary decree for partition of items 1 of plaint ‘A’ schedule into 81 equal shares and granting plaintiffs 1 and 2, (24) shares and also granting decree for items 2 to 4 of plaint ‘A’ schedule property dividing them into nine equal shares and granting plaintiffs (2) shares each and dismissed the rest of the claim. Aggrieved by the decree in dismissing the balance claim the present appeal is filed.
AS No.2577 of 1984
5. The plaintiff is the appellant OS No.87 of 1974 was filed by the plaintiff on the file on the II Additional Subordinate Judge, Vijayawada for partition and separate possession of 4/9th share in various items of suit schedule property. The plaintiff is also the 3rd defendant in OS No.32 of 1974 on the file of the II Additional Subordinate Judge, Vijayawada and her claims and pleadings are identical in both suits. The averments in plaint are briefly as follows:
The first defendant is the son of the plaintiff and the fourth defendant is her only daughter married even in 1957. The second son of the plaintiff Rama Subrahmanya Jaya Narasimham died on 20-3-1966 intestate and unmarried. He was 20 years old at that time. The defendants 2 and 3 are the minor sons of the first defendant. The husband of the plaintiff, Mudda Narayana Sarma (M.N. Sharma for short) died on 3-1-1973 intestate. On the death of her second son on 20-3-1966, his l/3rd share and interest in the joint family properties described in the schedule filed devolved on the plaintiff, the sole heir under the Hindu Succession Act, 1956. Again on the death of her husband his l/3rd share and interest devolved upon the first defendant, the fourth defendant and the plaintiff. Thus
the plaintiff became entitled to 4/9th share in the joint family properties.
6. The husband of the plaintiff M.N. Sarma, was adopted by late Mudda Subbayya Panthulu who was one of the leaders of Vijayawada Bar. As an advocate he earned a lot and acquired vast properties, like wet and dry lands, gardens, houses, house sites in and around vijayawada. As he did not have children he brought up Sarma adopted him and got him educated and also got him married and he became an advocate and joined Vijayawada Bar in and around 1932. His father who died in 1931, possessed of not only the plaint schedule properties but also other vast properties. He was also having vast properties purchased by the father-in-law of the plaintiff in the name of her mother-in-law Venkaia Subbamma. It forms part of joint family property. It was all along being treated as being enjoyed by the joint family. Late M.N. Sarma took a Gift deed dated 3-5-1932 in his favour from his mother, to avoid all possible disputes for the said property. Nevertheless, it was being treated as joint family property for him and his sons. He had thus thrown the said property into common hotch pot, and the grandsons were enjoying the same as of right. Thus, items 4 to 9 of plaint ‘A’ schedule also formed part of the joint family estate. Item 10 of ‘A’ schedule was acquired by Sarma for the joint family from out of the joint family funds. Late M.N. Sarma became the manger of the joint family on his father’s death in 1931. Having born rich with a silver spoon in his mouth, he was leading a luxurious life. In short it is the case of the plaintiff that he made several alienations from 1965 including the suit schedule properties and those alienations were not for any legal necessities. Hence, they are invalid and not binding on the plaintiffs and her grandsons. The maternal uncle of the first defendant having realised that the first defendant has been wasting and mis-managing the properties has arranged to file the suit as a next friend.
At that point of time, the plaintiff came to know the various alienations done by the first defendant. The plaintiff asserts that various alienations of the joint family properties made by the first defendant, after the death of her second son are not valid and binding and hence they are invalid. Late M.N. Sarma had no right or authority to alienate her share in anyway. The plaintiff is therefore, entitled to ignore all the said illegal alienations and get her share separated on partition, for which, this suit is filed.
7. The alienees have resisted the suit contending that late M.N. Sarma as a leading advocate, led a dignified life and conducted himself commensurate with the status of the family and his standing as an advocate. The plaintiff is well aware of the alienations and it has been done with the knowledge of the plaintiff. In fact there was a registered partition between the plaintiffs and the eldest son of late M.N. Sarma and it is incorrect to state that late M.N. Sarma has disposed off all the plaint schedule properties for his personal uses and hence they are void. It is the contention of the alienees that the transactions under the partition deed and the gift deed clearly establish a right of M.N. Sarma and all the properties were sold for a valuable consideration according to the prevailing market price at that point of time. It is also incorrect to state that the transactions and alienations made by M.N. Sarma were vitiated on account of fraud or undue influence exercised by any of the alienees and M.N. Sarma always conducted himself as a prudent lawyer and was wordly wise. It is further contended that items 4 to 7 of the plaint A schedule were purchased under the sale deed 12-5-1905 by late Vankata Subbamma are the Streedhana properties of the said Venkata Subbamma The alienees/defendants further contended that on enquiry they came to know that late Venkata Subbamma had sufficient funds and Streedhana of
her own for which the property was acquired by her on 12-5-1905. In short the alienees have contended that the sales were for a valid consideration and late M.N. Sarma had the right to dispose of the properties since they are his exclusive properties.
8. Basing on the pleadings the trial Court has framed appropriate issues, as to whether the plaint schedule properties are the joint family properties and whether the plaintiff had acquired any right in the properties on the death of her husband and put the parties to trial.
9. The trial Court on an eloborate enquiry, decreed the suit in part holding that there will be a preliminary decree for partition of items 1 to 4 of the plaint ‘A’ schedule and separate possession of the plaintiff 1/3rd share in items 2 to 4 of the plaint A schedule and 12/27 the share in items 1 of the plaint A schedule. The trial Court dismissed rest of the plaintiff’s claim. Aggrieved by that portion of the decree dismissing the plaintiffs claim, the present appeal is filed.
10. In both these appeals, the only question that falls for consideration is whether the property the subject-matter in these appeals are the joint family properties and whether the plaintiffs are entitled for their share.
11. The learned Counsel for the appellant Sri T. Veera Bhadraiah has eloborately contended that the properties in question, even though acquired and stood in the name of the late M.N. Sarma, nevertheless, they are put into common hotch pot. It is his contention that they were purchased out of joint family funds and hence, they assume the character of a joint family properties, as they were thrown in the common hotch pot. He placed strong reliance on Ex.B6 to Ex.B9, account books for the year 1954-55, 1955-56, 1959-60 and
1960-61. He also took me to Ex.Bl to Ex.B5, the Income-Tax orders for a period of five years and contended that in the Income-Tax orders it was shown that they are joint family properties and hence it should be deemed that they partake the character of a joint family and hence the alienations of M.N. Sarma are illegal and void. He also contended that by virtue of the income-tax orders there is unequivocal declaration on the part of late M.N. Sarma giving up his interest in the self-acquired property and throwing them into common notch pot. He placed strong reliance on Gundlapalli Mohan Rao and others v. Gundlapalli Satyanarayana and others, . In the aforesaid decision the Division Bench found that the facts in that case were sufficient to establish that there is an unequivocal declaration on the part of the first defendant giving up or abandoning his interest in the self-acquired property and throwing it in the common stock, thus impressing it with the character of coparcenary property and when once it is done, it ceases to be the separate or self-acquired property and acquires the character of joint family property. They also relied on the tax returns filed for couple of years and held that it partook the character of a joint family. The learned Counsel for the appellant also brought to my notice another decision of the Supreme Court reported in Goli Eswariah v. Gift Tax Commissioner, . The Supreme Court had laid down the criteria for determining as to when a coparcener throws the self-acquired property into common hotch pot. The Supreme Court has held as follows:
“The separate property of a Hindu coparcener ceases to be so and acquires the characteristic of a joint family or ancestral property not by any physical mixing with his joint family or ancestral property but by his own volition and intention by his waiving and surrendering his separate rights in it as separate
property. The act is a unilateral act. No longer he declares his intention the property assumes the character of joint family property. The doctrine is peculiar to Mitakshara School of Hindu law. When a coparcener throws his separate property into the common stock he makes no gift under T.P. Act. There is no donor or donee and no question of acceptance of property thrown into the common stock arises.”
12. From the aforementioned discussion, it is clear that by intention and conduct there should be unequivocal declaration by the coparcener to throw his self-acquired property into the common hotch pot. 13. In a decision reported in YendapaUi Venkata Raju (Died) and another v. Yendapalli Yedukondalu Alias Venkateswarlu and others, AIR 1958 AP 147, this Court held thus: "It is not sufficient to show that the family possessed some joint property. What is essential is that the property should be of such a nature and value as to form the nucleus for the acquisitions claimed to be joint. It is only when this is established that the onus is shifted on to the person asserting exclusive title to the property." It is, therefore, necessary to state that it is the conduct and intention of the parties which looms large in deciding this issue. 14. The learned Counsel, M/s. A. Ramalingeswara Rao, P. V.R. Sarma, O. Manohar Reddy appearing for the respondents placed reliance on the judgment of a Division Bench of A.P. High Court reported in J. V. Vijayabhaskar v. J. Keshava Rao (Died) and others, (DB), wherein it was observed 'as follows: "By declaring his status in the income-tax and wealth-tax returns as Hindu undivided family, it could not be said that the first defendant had blended his private properties with that of the joint family properties. No evidence was adduced, at any rate, Court's attention has not been drawn to the existence of any coparcenary property other than Ex.B16 properties. Declaration of status in the income-tax returns is not always decisive of the real status of the individual. It is always a question of fact which must be decided taking into consideration the entire facts and surrounding circumstances."
15. From the afore-mentioned judgment of this Court it is clear that mere filing of income-tax returns is not always decisive of the real status of the individual but the Court should look into the conduct and intention of the parties. In the present case late M.N. Sarma has been alienating the properties from 1958 and the always described these properties in the sale deeds as his self-acquired properties. The concept of blending is peculiar to the Mithakshara School of joint Hindu family and it has to be inferred from the conduct and intention of the parties. It is essential to note that a Hindu joint family is not a creature of statute or a contract. No statute can override the settled legal principles based on facts and circumstances of each case. The property which was originally separate or the self-acquired property of a member of a joint family may by operation of doctrine of blending become joint family properly, if it has been voluntarily thrown by him into the common stock with the “intention of abandoning of all claims upon it”. A clear intention to waive his separate rights be established and it may not be inferred from the mere fact of his allowing the other members of the family to use it conjointly with himself nor from the fact that the income of the separate property was used by the members of the joint
family. The basis of the doctrine of blending is the existence of a coparcenary and a coparcenary property as well as existence of the separate property of a co-parcener. This doctrine cannot be applied unless the conduct and intention of the parties unequivocally declares his intention to throw the property into the common hotch pot waiving his personal right. In the present case, late M.N. Sarma has not in any way abandoned his rights by unequivocal intention to treat them as joint family properties and impress them with the character of joint family property by his conduct. The question whether a person has thrown his self-acquired property in the common stock with unequivocal intention to treat them as joint family property is purely a question of fact and depends on the facts of each case. The recitals in Ex.A13 dated 2-10-1970 clearly shows that he has been dealing with the properties as his self-acquired properties and the properties which he acquired by a gift from his adoptive mother and hence it is difficult to hold that late M.N. Sarma has thrown his self-acquired properties into the common hotch pot. Therefore, I am of the opinion that the trial Court has rightly decreed the suit in part and dismissed insofar as items of the property which are the subject-matter of these appeals.
16. In the light of the above discussion, it has to be held that items 4 to 11 of plaint schedule are not the joint family properties of the plaintiff and defendants 1 to 3 in the suit. Both the appeals are devoid of merits and are accordingly dismissed. No order as to costs.