# MALLESAPP A BAN DEPP A DESAI AND OTHERS v. DESAI MALLAPPA AND OTHERS

- **Citation:** [1961] 3 S.C.R. 779
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Case number:** Civil Appeal No. 263 of 1956
- **Bench:** P. B. Ga.Tendragadkar, K. N. Wanchoo, K. c. DAS GUPTA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mallesapp-a-ban-depp-a-desai-and-others-v-desai-mallappa-and-others-2093
- **Pages:** 14

## Headnote

Hindu Law-Doctrine of blending-If applies fv property held
by female in limited riRht.
The rule of blending in Hindu Law as ernlved by judicial
decisions can have no application to a property held by a Hindu
female as a limited owner. That rule p0stulates a coparcener
deliberately and intentionally throwing his independently acquired property into the joint family stock so as to form a part
of it.
Although it is unnecessary now to investigate whether there
is any other text on which that rule could be founded, it is quite
clear that the text of Yagnavalkya in a different context and
the commentary thereupon by Vijnyaneshwara, relied on by the
Privy Council in this connection, can have no relation to the said
rule.
Shiba Prasad Singh v. Rani Prayag Kumari Debi (1932) L.R.
59 I.A. 331, disapproved.
Rajanikanta Pal v. ]aga Mohan Pal (1923) L.R. 50 I.A. 173,
relied on.
·
Consequently, where in a partition suit certain immovable
properties acquired by a Hindu female from her father as a
limited owner were claimed to form part of the joint family property of her husband by virtueof the said rule :
Held, that the claim must fail.
Held, further, that a Hindu female owning a limited estate
cannot circumvent the rules of surrender and allow the-members
of her husband's family to treat her limited estate as part of the
joint family property of her husband.
Before the said rule can be invoked, it must be shown that
the owner wanted to extinguish his title to the property in
question and impress upon it the character of joint family
property.

## Text

3 S.C.R.
SUPREi\IE COURT REPORTS
779
MALLESAPP A BAN DEPP A DESAI AND OTHERS
v.
DESAI MALLAPPA AND OTHERS.
(P. B. GA.TENDRAGADKAR, K. N. WANCHOO and
K. c. DAS GUPTA, JJ.)
Hindu Law-Doctrine of blending-If applies fv property held
by female in limited riRht.
The rule of blending in Hindu Law as ernlved by judicial
decisions can have no application to a property held by a Hindu
female as a limited owner. That rule p0stulates a coparcener
deliberately and intentionally throwing his independently acquired property into the joint family stock so as to form a part
of it.
Although it is unnecessary now to investigate whether there
is any other text on which that rule could be founded, it is quite
clear that the text of Yagnavalkya in a different context and
the commentary thereupon by Vijnyaneshwara, relied on by the
Privy Council in this connection, can have no relation to the said
rule.
Shiba Prasad Singh v. Rani Prayag Kumari Debi (1932) L.R.
59 I.A. 331, disapproved.
Rajanikanta Pal v. ]aga Mohan Pal (1923) L.R. 50 I.A. 173,
relied on.
·
Consequently, where in a partition suit certain immovable
properties acquired by a Hindu female from her father as a
limited owner were claimed to form part of the joint family property of her husband by virtueof the said rule :
Held, that the claim must fail.
Held, further, that a Hindu female owning a limited estate
cannot circumvent the rules of surrender and allow the-members
of her husband's family to treat her limited estate as part of the
joint family property of her husband.
Before the said rule can be invoked, it must be shown that
the owner wanted to extinguish his title to the property in
question and impress upon it the character of joint family
property.
CIVIL APPELLATE JURISDICTION:
Civil Appeal No.
263 of 1956.
Appeal from the judgment and decree dated January 6, 1953, of the Madras High Court in A. S. Appeal
No. 7 of 1949.
M. C. Setalvad, Attorney.General of Jndia and Naunit
Lal, for the appellants,
100
z96r
February 9.
780
SUPREME COURT REPORTS
[1961)
A. V. Viswanatha Sastri and B. K. B. Naidu, for
Mallesappa
respondent No. 1.
Bandeppa Desai
M. R. K. Pillai, for respondent No. 2.
v.
Desai Mallappa
1961. February 9. The Judgment of the Court was
delivered by
Gajendragadkar J.
GAJENDRAGADKAR, J.--This appeal has been brought
to this Court with a certificate granted by the_
Madras High Court and it arises from a suit filed
by the ::Lppellants l\fallesappa and Chenna Basappa
::1gainst their uncle Mallappa, respondent 1 and grnndunck Honnappn., respondent 2, for partition. According to the plaint, the family of the appellants and
respondent 1 was an undivir!ed Hindu family until
the d111 e of the suit, and respondent I was its manager.
Tbn ~inccstor of thn family was Desai M,.,,Jiappa.
He
h:i,d three sons, Kari l{amappa who died in 1933,
Virupalrnhapp::L who <lied long ago and Honn11ppa,
respomlent 2.
Kari Ramappa had four sons Gurushantappa (dierl 1913), Bandappa(died 1931),Mallappa
(respondent I) anrl Veerabhadrappa (died 1927).
Guruslrnntappa nrnrried
Parvat!?.amma; the two
appellants are the sons of Bandappa, their mothPr
being Neclarnrna.
They were born in 1926 11nd 1921!
respectively. Their case was that respondent I who
has been the manager of the family for many years
has been trying to deprive them of their legitimate
share in the property and refused their request for
partition, and so they had to file the present suit.
According to them, in the property of the family they
and respondent I were en tit.led to half share each: To
the plaint were attached the schedules describing the
several items of property.
Schedule A consisted of
items I to 163 which included hous0s and lands at
Jonnagiri. Schedule B described the movables while
Schedule C included items 1 to 35 all of which h"'d
been acquired by the family under a document Ex. B-32.
It is in respect of all these properties that the appellants claimed their half share and'Mked for a partition
in that 'behalf.
This claim was resisted by respondent I principally
on the ground that in 1929 Ra.ma.ppa, ·the father of
3 j3.C.R.
SUPREME COURT REPORTS
7Sl
respondent 1 and the grandfather of the appellants
r96r
had effected a partition of the joint family properties
Mallesappa
between respondent 1 and his elder brother Bandappa Bandeppa Desai
who is the appellants' father. That is how, according
v.
to respondent l, the appellants' claim for partition Desai Mallappa
was untenable.
In this way he pleaded separate
-
title to all the properties in suit.
Gajendragadkar J.
On these pleadings the learned District Judge, who
tried the suit, framed eight issues; two of these related
to the question regarding the status of the family.
He found that the plea of partition made by respondent 1 was not proved, and accordingly he declared
that the appellants were entitled to half share in the
properties of the family and passed a preliminary
dean·~ for partition. According to the learned judge,
the appellants were entitled to their half share in the
items of property described in Schedule A excluding
items 63, 64, 65, 86 and 151 and items in paragraph'
14(d) of the written statement of respondent 1 as well
as items of property described in Schedules B and C.
This decree was passed on November 22, 1948.
The said decree was challenged by respon<lent 1 by
his appeal before the Madras High Court. He urged
that the trial court's finding as to the status of the
family was erroneous, and he pleaded that in any
case the appellants were not entitled to any share in
the properties at J onnagiri, items 4 to 61, as well as
the properties acquired under Ex. B-32. The first
argument was rejected by the High Court, but the
second was upheld. In the result the decree passed
by the trial court was confirmed except in regard to
the said two categories of properties. It is this appellate decree which is challenged before us by the
learned Attorney-General on behalf of the appellants.
In order to appreciate the contentions raised before
us it would be necessary to recapitulate briefly the
findings concurrently recorded by the courts below in
respect of the plea of partition set up by respondent 1.
These findings afford a background in the light of
which the pleas raised before us would have to be
considered. It appears that respondent 1 relied on
several documents iB support of his plea that there
782
SUPREME COURT REPORTS
[1961]
1961
was a partition effected by Ramappa in 1929. The
Mallesappa
trial court repelled this argument and observed that
Bandeppa Desai irom 1937 respondent began to do mischief. The
v.
transfer of patta in 1937 on which respondent 1 relied
Desai Mallappa was entirely his work and the appellants' mother
-
Neelamma had not been consulted and had given no
Gajend•agadka, J. consent to it. In the opinion of the trial court respondent 1 through his agents whom he examined as
witnesses in the suit (D. Ws. 2 and 14) managed the
family lands, arr.H1ged to pay cist for them and manipulated entries in the revenue record purporting to
show that N eelamma had paid the said cist as
pattadar. X eelamma was an illiterate and Gosha
woman and it appeared that a certain amount of
coercion had been practised on her as well as deception
in persuading her to execute the original of Ex. B-10
which contained the recital that the house there
described had fallen to the share of . .N' eelamma's husband at a prior partition. The trial court was
satisfied that the said recital had been fraudulently
made and the document had not been read to
Neelamma at all. The deme<1-nour of respondent 1 in
the witness box was also criticised by the trial judge
when he observed that he did not impress the trial
judge as a truthful witness, and in his opinion he was
a powerfu!and influential man in the village who was
able to do a number of things as he wished and so it
was not surprising that hu wa.s able to get a number
of witnesses to speak to separate enjoyment of a few
items of land by the appellants' mother.
'When the question of status of the family was
rea<ritated before the High Court it felt no hesita.tion in
confirming ,the conclusionR of the trial court in regard
to the general conduct of respondent 1, the documents
brought into existence by him, arid the unfair manner
in which he had dealt with the appellants' mother. }'or
the reasons set out by the High Court in its judgment
"and also for the various reas!Jn~ put forward by the
learned District Judge in his exhaustive judgment"
the High Court agreed with the learned judge that the
alleged partition of 1929 had not been proved. Th us
the dispute between the parties has to be considered
I
3 S.C.l{.
SUPREME COUHT J{EPORTS
783
on the basis that until the date of the institution of
the suit the family was an undivided Hindu family
Maltesappo
wit,h respondent 1 as its manager.
IJand,ppa pesai
The first point which has been raiserl before us by
v.
the learned Attorney-General relates to items 4 to 61
Deoai Mallappa
at Jonnagiri. These properties originally belonged to Gajendragadkar J.
Karnam Channappa. He died in 1904, and in dne
course the said property devo!l·erl upon his widow
Bassamma who <lied in 1920.
Bctssamma left behind
her three daughters Channamma,
Nagamma and
Veeramma. Channamma married lfamappa, and as
we have already indicated the couple had four sons
including the appellants' father Bandappa and the first
respondent Mallappa. It is common ground that the
properties at Jonnagiri httd been obtained by Channamma by succession from her father and were held
by her as a limited owner. The appellants' case was
that after Channamma obtained these properties by
succession she allowed the said properties to be thrown
into the common stock of other properties belonging to
her husband's family, and so by virtue of blending her
properties acquired the character of the properties
belonging to her husband's family; in other words,
the appellants' claim in respect of this property is based
on the principle of blending or throwing into the common stock which is recognised by Hindu law. The trial
court relied on some transactions adduced by the
appellants and upheld the plea that Channamma's
properties had become joint family properties in which
the appellants had a half share. The High Court has
reversed this finding, and it has held that the transactions on which the appellants relied do not prove
blending as known to Hindu law. That is why the
appellants' claim to these properties has been rejected
by the High Court.
Before considering the appellants' case in regard to
these properties it is necessary to enquire whether the
doctrine of blending can be invoked in such a case. Is
this doctrine based on any Sanskrit Text of Hindu
Law? According to the decision of the Privy Council
in Shiba Prasad Singh v. Rani Prayag Kumari Debi('),
(I) (1932) L.R . .19 I.A. 331.
784
SUPREME COURT REPORTS
[1961]
19
61
this doctrine is based on the text of Yagna valkya and
Mallesappa
the commentary of Mitakshara; the text of Y agnaBandeppa Desai valkya reads thus: "In cases where the common
v.
stock undergoes an increase, an equal division is
Desai Mallappa obtained" (1). In his commentary on
this text
G . d -- k
Vijnyaneshwara has observed as follows: "Among
•;en ragad •r f. unseparated brothers, if the common stock be improved
or augmented by any one of them through agriculture,
commerce or similar means, an equal distribution
nevertheless takes place; and a double share is not
allotted to the acquirer" ('). Sir Dinshah Mulla, who
delivered the judgment of the Privy Council in the
case of Shiba Prasad Singh (') has observed that the
words of Yagnavalkya mean that "if a member of a
joint family augments jofat property, whatever may
be the mode of augmentation, the property which goes
to augment the joint family property becomes part of
the joint family property, and he is entitled on a partition to an equal share with the other members of the
family, and not to a double share, as in some other
cases dealt with in the preceding verses. This is the
placitum on which the whole doctrine of merger of
estates by the blending of income is founded" (p. 349).
It would thus be seen that according to this decision
the doctrine of blending or throwing into the common
stock is based on the text just quoted.
With very great respect, however, the text of
Yagnavalkya and the comments made by Vijnyaneshwara on it do not appear to have any relation to
the doctrine of blending as it has been judicially
evolved. The context of the discussion both in the text
of Yagnavalkya and in the commentary clearly shows
that what is being discussed is the acquisition of
property by a coparcener with the use of the family
stock ; in other words, taking the benefit of the family
stock and making its use if a coparcener through trade,
agriculture or any other means augments the initial or
or1gmal family stock, the augmentation thus made is
treated as forming part of the original stock and an
accretion to it, and in this augmentation the acquirer
is not given a.ny extra share for his special exertions.
(1) Ch. t,sect. 4, 30.
(2) Mitaksb.ara., ch. 1. sect. 4, p!. 31.
(31 (1932) L.R. 59 l.A. 331.
3 S.C.R.
SUPREME COURT REPORTS
785
This position is clarified by the comm en ts made by
I96I
Sulapani. Sa.ys Sulapani: "that au equal division is
Mallesappa
here specifically ordained; for in a partnership with a IJandeppa Desai
common stock, the difference in the gains of each
v.
individual memlwr is not to be taken into account at
Desai Mallappa
the time of partition." Vijnyaneshwara observes that
-
th. t
t .. t
d d t· b
t'
t th t
t f Gajendragadkarj
i;; ex rn rn en e
o e an excep 1011
o
e ex o
Vasi~htha which allows two shares to the acquirer and
which is cited in the Mayukha (1). It would thus be
clear that the relevant text and the commentary are
not dealing with a case where the separate property of
a coparcener independently acquired by him is thrown
into the common stock with the deliberate intention of
extingui;hing its separate character am! impressing
upon it the character of the joint family property.
The subject-matter of the di"cussion is addition to the
common stock made by the efforts of a copareener with
the assistance of the common stock itself. Therefore,
in our opinion, the said text cannot be treated as the
basis for the doctrine of blending 11s it h11s been judicially evolved.
It is, we think, unnecessary to investigate whether
any other text can be treated as the foundation of the
sai·d doctrine since the said doctrine h:i,s been recognised
in several decisions and has now become a part of
Hindu law. In Raj1mi Kanta Pal v. Jaga Mohan Pal(')
the Privy Council held that "Where a member of a
joint Hindu family blends his self-acquired property
with prop0rty of the joint family, either by bringipg
his self-acquired property into a joint family account,
or by bringing joint family property into his separate
account, the effect is that all the property so blended
becomes a joint family property."
The question which falls for our decision is: Does
this priuciple apply in regard to a property held by a
Hindu female as a limited owner? In our opinion, it
is difficult to answer this question in favour of the
appellants. The rnle of blending postulates that a
coparcener who is interested in the coparcenary property and who owns separate property of his own may
(r) The Vyava.hara Mayukha, Pt. I, by Vishvanath Narayan Mandlik,
p. 215.
(2) (1923) L.R. 50 I.A. 173.
786
SUPREME COURT REPORTS
(1961]
z96z
by deliberate and intentional conduct treat his separate
Mal/esappa
property as forming part of the coparcenary property.
Randeppa Desai If it appears that property which is separately acquirv.
ed has been deliberatrly and voluntarily thrown by
Desai Mallappa the owner into the joint stock with the clear intention
. --
of abandoning his claim on the said property and with
Ga1endragadkar J. the object of assimilating it to the joint family pro.
perty, then the said propert.y becomes a part uf the
joint family est ate; in other words, the separate property of a coparcener loses its separate character by
reason of the owner's conduct and get thrown into
the common stock of which it becomes a part. This
doctrine therefore inevitably postulates that the owner
of the separate property is a coparcener who has an
interest in the coparcenary property and desires to
blend his separate property with the coparcenary
property. There can be no doubt that the conduct
on which a plea of blending is based must clearly and
unequivocally show the intention of the owner of the
separate property to convert his property into an item
of joint family property. A mere intention to benefit
the members of the family by allowing them the use
of the income coming from the said property may not
necessarily be enough to justify an inference of blending; but the basis of the doctrine is the existence of
coparcenary and coparcenary property as well as the
existence of the separate property of a coparcener.
How this doctrine can be applied to the case of a
Hindu female who has acquired immovable property
from her father as a limited owner it is difficult to
understand. Such a Hindu female is not a coparcener
and as such has no interest in coparcenary property.
She holds the property as a limited owner, and on her
death the property has to devolve on the next reversioner.
Under Hindu law it is open to a limited
owner like a Hindu female succeeding to her mother's
estate as in Madras, or a Hindu widow succeeding to
her husband's estate, to efface herself and accelerate
the reversion by surrender ; but, as is well known,
surrender has to be effected according to the rules
recognised in that behalf. A Hindu female owning a
Jjmited estate cannot circumvent the rules of surrender
\!
3 S.C.R.
SUPREME COURT REPORTS
787
and allow the members of her husband's family to
z96z
treat her limited estate as part of the joint property
Malles•PP•
belonging to the said family. On first principles such Ban4eppa Duel
a. result would be inconsistent with the basic notion
v.
of blending and the basic character of a limited Des•i Mallappa
owners' title to the property held by her. This aspect
.
dk 1
of the matter has apparently not been argued before G•1endrag• "' •
the courts below and has not been considered by
them. Thus, if the doctrine of blending cannot be
invoked in regard to the property held by Channamma,
the appellants' claim in respect of the said property
can and must be rejected on this preliminary ground
alone.
However, we will briefly indicate the nature of the
evidence on which the plea of blending was sought
to be supported. It appears that in 1921 a deed of
maintenance was executed in favour of Gurushantappa's widow Parvathamma by the three surviving
brothers of Gurushantappa. This deed was attested
by their father Karr Ramappa.. It is clear that this
deed includes some of the lands which Channamma.
had acquired by succession to her father (Ex. A-10).
Subsequently, on July 5, 1923, some additional properties belonging to Channamma were charged to the
said maintenance (Ex. A-11). It also appears that
pattas in respect of the same lands belonging to Cha.nn11.mma. were obtained in the names of the members
of the family ; and consequently, the said patta.s were
shown in the relevant revenue papers. Broadly
stated, that is the nature of the evidence on which the
plea. of blending rests. It is obvious that even if the
doctrine of blending were applicable it would be im-
. possible to hold that the transactions on which it is
sought to be supported can lead to the inference that
Cha.nna.mma did any act from which her deliberate
intention to give up her title over the properties in
favour of the members of her husband's family can be
inferred. It is not difficult to imagine Cha.nna.mma.'s
position in the family. If her husband and her sons
dealt with her property as they thought fit to do
Channa.mma may not know about it, and even if she
knew a.bout it, may n<1t think it necessary to object
JOI
788
SUPREME COURT REPORTS
[1961]
' 96'
because she would not be averse to giving some
Malluappa
income from her property to her sons or to her
B•xd•PP• Desai widowed daughter-in-law. As we havl) already pointed
. •·
out, the conduct of the owner on which the plea of
.D•sas M•ll•PP• merger can be invoked must he clear and unequivocal,
G•i•Kd•agadkar J. and the evidenc~ ab?ut it ~ust be of such a strong
character as to iust1f:v an mference that the owner
wanted to extinguish his title over the property and
impress upon it the character of the joint family
property. Besides, as we will later point out, Channamma executed a deed of surrender in 1938 and the
said document is wholly inconsistent with the plea
that she intended to give up her title to the property
in favour of her husband's joint family. However,
this discussion is purely academic since we have
already held that the principle of blending cannot be
invoked in respect of the limited estate held by
Channamma. Therefore, we must hold that the High
Court was right in rejecting the appellants' claim in
respect of the properties in J onnagiri.
That takes us to the properties in Schedule C in
respect of which the trial court had decreed the
appellants' claim and the High Court has rejected it.
This property has been obtained by respondent 1 as a
result of the decree passed in 0. S. No. 5 of 1940. The
property originally belonged to Virupakshappa, and in
0. S. No. 5 of 1940 respondents 2 and 1 claiwed a
declaration against the two widows of Virupakshappa,
their daughter and certain alienees. The declaration
claimed was that the wills of Virupakshappa therein
specified were invalid and inoperative and that the
respondents had reversionery right to Virupakshappa's estate after the lifetime of his wiaows an.d
daughter. A further declaration was also claimed
that alienations and gifts specified in the plaint were
invalid beyond tqe lifetime of the widows. and the
daughter of Virupakshappa. This suit ended in a
compromise decree, and it is common ground that
the properties in Schedule C came to the share of
res!>ondent 1 by this compromise decree. The question which has been argued before us in respect of
theve properties is whether or not the appellants
3 S.C.R.
SUPREME COURT REPORTS
789
are entitled to a share in these properties. The
z96z
appellants contend that respondent 1 had joined
respondent 2 in the said suit as representing their
MoUuof>P•
undivided family and the properties acquired by him B•tiMppo Dei•i
under the compromise decree passed in the said suit Duai ;~Uappa
has been allotted to him as representing the whole of
the family. On the other hand, respondent 1 con- Gajerulragadl.., J.
tends that he joined respondent 2 in his individual
character and the decree must enure for his individual
benefit.
.
It is clear that at the time when the said suit was
filed respondent 2 was a presumptive reversioner and
not respondent 1 ; but it appears that respondent 2
wanted the help of respondent 1 to fight the litigation, and both of them joined in bringing the said
suit. It is common ground that respondent 2 asked
Neelamma whether she would like to join ~he litigation. Respondent 2 has stated in his evicfence that
N eelamma was not willing to join the said litigation
and respondent 1 has supported this version. The
High Court thought that the evidence of Neelamma
was also consistent with the story set up by respondent 1.
That is one of the main reasons why the High
Court held that the decree passed in the said suit
did not enure for the benefit of the family. In
assuming that Neelamma supported the version of
respondent 1 the High Court has obviously misread
her evidence. This is what Neelamma has stated in
her evidence : "Defendants 1 and 2 came to me at
the time of filing their suit and said that the expenses
are likely to be heavy and that minors' properties
would not be wasted. I said I had no objection and
gave my consent." The High Court has read her
evidence to mean that she was not prepared to waste
the properties of her minor sons and so she refused
to join the adventure, and in doing so it thought that
the statement of respondent 2 was that the minors'
properties should not be wasted, whereas according
to the witness the said statement was that the minors'
properties " would " not be wasted. It would be
noticed that it makes substantial difference whether
the words used were "would not" or "should not."
790
SUPREME COURT REPOR'i'S
tl!l61]
t96z
We have no doubt that on the evidence as it stands
the inference is wholly unjustified that N eelamma
Mallesappa
refused to i"oin respondents 1 and 2.
Besides, as we
B'nideppa Desai
v.
have already pointed out, the evidence of respond.
Desai Mallappa ents 1 and 2 have been disbelieved by both the courts,
--
and in fact the conduct of respondent 1 whereby he
Gajondraga<lk•• J. wanted to defeat the claims of his nephews has been
very strongly criticised by both the courts. Therefore, we feel no hesitation in holding that the trial
court was right in coming to the conclusion that
respondents 1 and 2 consulted Neelamma and with
her consent the suit was filed and was intended to be
fought by the two respondents not for themselves
individually but with the knowledge that respondent 1
represented the undivided family of which he was the
manager ... If that be so, then it must follow that the
decree which was passed in favour of respondent 1
was not for his personal benefit but for the benefit of
the whole family.
In this connection it is necessary to bear in mind
that respondent 1 has not shown by any reliable
evidence that the expenses for the said litigation were
borne by him out of his pocket. It is true that both
the courts have found that respondent 1 purchased
certain properties for Rs. 600/- in 1925 (Ex. B-4).
We do not know what the income of the said prO,l).lJr.-
ties was; obviously it could not be of any significant
order; but, in our opinion, there is no doubt that
where a manager claims that any immovable property has been acquired by him with his own separate
funds and not with the help of the joint family funds
of which he was in possession and charge, it is for him
to prove by clear and satisfactory evidence his plea
that the purchase money proceeded from his separate
fund. The onus of proof must in such a case be placed
on the manager and not on his coparceners. But,
apart from the question of onus, the evidence given
by respondent 1 in this case has been disbelieved, and
in the absence of any satisfactory material to show
that respondent 1 had any means of his own it would
be idle to contend that the expenses incurred for the
litigation in question were not borne by the joint
3 S.C.R.
SUPREME COURT REPORTS
791
family income. Therefore, apart from the fact that
z96z
Neelamma was consulted and agreed to join the
adventure on behalf of her sons, it is clear that the 8::::.:1;;a"'fi~.;
expenses for the litigation were borne by the whole
v.
family from its own joint fuuds. This fact also shows Desai Mallappa
that the property acquired by respondent I under the
. -
compromise decree was acquir!'ld by him as represent. Ga;end.agadkar J.
ing the family of which he was the manager. The
result is that the view taken by the High Court in
respect of the properties in Schedule C must be
reversed and that of the trial court restored.
That leaves a minor point about three items of property, Serial Nos. 63, 64 and 65, in Schedule A. These
items of property form part of Jonnagiri pllOperty,
and we have already held tilat the appellants cannot
make any claim to the whole of this property. It
appears that though the trial judge paRsed a decree
in favour of the appellants in respect of Serial Nos. 4
to 61 in Schedule A, he did not recognise the appellants' share in the three serial numbers in question
because he held that they were not part of the joint
family property but belonged exclusively to respondent I. It also appears that these properties originally
belonged to the joint family of the parties but they
were sold by Kari Ramappa and his two brothers to
Channappa as long ago as 1898. That is how they
formed part of Channappa's estate. Both the courts
have found that the sale deed in question was a. real
and genuine transaction, and they ha.:¢ rejected
the appellants' case to the contrary. Respondent 1
claims these items under a de~d of surrender executed
in his favour by Channamma (Ex. B. 3) on December 5,
1938. This document is accepted as genuine by both
the courts and it is not disputed that the surrender
effected by it is valid under Hindu law. Indeed this
document is wholly inconsistent with the appellants'
case that Channa.mm& wanted to convert her separate
properties into properties of the joint family of her
husband. Therefore, there is no substance in the
appellants' argument that they should be given a
share in these three items of property.
792
SUPREME COURT REPORTS
[1961]
1961
The result is the appeal is partly allowed and the
decree passed by the High Court is modified by giving
M•llesapp~
the appellants their half share in the properties
B•nd•P:.• Desai described in Schedule C. The rest of the decree passed
Des•i Mall•PP• by the High Court is confirmed. In the circumstances
of this case the parties should bear their own costs.
Gaj•ndragadkar J •
Appeal allowed in part.
February Io.
KASHINATHSA YAMOSA KABADI, ETC.
v.
NARSINGSA BHASKARSA KABADI, ETC.
(J. L. KAPUR, M. HIDAYATULLAH and J. C. SHAH, JJ.)
Hindu Law-Partition-Reference to arbitration out of CourtArbilrator actually dividing some properties and giving possession to
parties-Revocation of reference-Suit for partition, maintainability
of-Documents recording division by arlntrator-Registration, if
necessary-Arbitration Act .. r940 (roof r940), s. 3z-Registration
Act, r908 (r6 of r908), s. r7.
The parties were members of a joint Hindu family possessed
of considerable property movable and immovable. They voluntarily appointed Panchas to determine the shares of the parties
and to divide the property. The Panchas first determined the
shares of the parties and reduced the determination to writing.
It was accepted by the parties and was signed by all of them and
the Panchas. Thereafter, on various dates the Panchas divided
several items of movable and immovable properties and the parties entered into possession of their shares. These divisions were
duly entered in the "partition books" and were signed by the
parties and the Panchas. The Panchas were unable to divide the
remaining properties a.nd with the consent of the parties they
appointed cne G to divide them. G divided some of the properties but he too was unable to divide the remaining properties.
One of the parties served a notice cancelling the authority of the
Panchas and filed a suit for partition of the remaining properties.
Upon an application made by the plaintiff for revoking the reference the Trial Court cancelled :he arbitration as one of the
Panchas was unwilling to proceed with the division. Another
party filed a suit for partition of all the properties contending that
the division made by the Panchas was not binding as the award
had not been made a rule of the court and the reference had been
revoked and as the award was not registered;
Held, that the divisions already made by the Panchas were
binding on the parties and only the remaining properties were
liable to be partitioned. By the reference to the Panchas, the