IMPORTANT POINT
Mere user of the joint family property as a business premises by the karta of the joint family, for running his separate business cannot be said to be in any manner detrimental to the joint family property.

Headnote:(i) Hindu Succession Act, 1956-Section 6 as amended by Section 6A of Hindu Succession (Karnataka Amendment) Act, 1990-Suit for partition in relation to business carried on by his father-Defendant 1 carrying on business in joint family property-Whether business conducted by defendant 1 was his separate business or it belonged to joint family-Whether mere user of joint family property as a business premises by karta of joint family can be said to be detrimental to joint family property-(No)-Joint family had not invested any money in the business at any point of time-Business carried on by defendant 1 cannot be treated to be joint family business.
       Held : The question to be examined in the present case is as to whether mere user of the joint family property (item No.1 property), as a business premises by defendant No.1, who was karta of the joint family, for running his separate business can be said to be in any manner detrimental to the joint family property? Undisputably, the joint family had not invested a single farthing in the business at any point of time as it was started by defendant No.1 by raising loans from the market. Even according to the plaintiff, only a portion of said property was leased to one Md. Sharif in the year 1948 who vacated it in the year 1952. But it is not known during this period what was the rental of the said portion. There is no evidence to show whether after 1952, the said portion which was vacated by Md. Sharif was let out to anybody or remained vacant. So far as the other portion of the said property is concerned, undisputedly, in one part only, defendant No.1 was carrying on business. Apart from that, the trial court found that defendant No.1 along with his first wife and children from her, including the plaintiff, resided therein till the year 1969 when his first wife died and the plaintiff was also carrying on his separate business in the very same property. It further found that as in the year 1970, the defendant No.1 married Sumitra Bai-defendant No.1(e), differences cropped up between the plaintiff and his father as a result of which defendant No.1 shifted to another house and resided therein with his second wife. These facts amply prove that joint family property was being used as business premises not only by karta but also by junior member of the joint Hindu family. There is no material whatsoever to show that user of the same as business premises by defendant No.1 was in any manner detrimental to the joint family property. This being the position, we have no option but to hold that the business carried on by defendant No.1 in the property described as item No.1 in the Schedule cannot be treated to be joint family business and the same remained his separate business throughout, especially in view of the fact that there was neither any case nor evidence to show any blending. In view of our conclusion aforementioned that the business was separate one of defendant No.1, properties enumerated as item Nos. 2, 3 and 4 in the Schedule acquired out of income of the said business, have got to be treated self acquisitions of defendant No.1. (Para 10)
       (ii) Hindu Succession Act, 1956-Section 6 as amended by Section 6A of Hindu Succession (Karnataka Amendment) Act, 1990-Self acquisition of defendant 1-Defendant had right to execute the Will-Absence of signature of testator on Will explained -Defendant 1 was not in position to put his signature on Will because of nervous disability-Defendant was a literate man-Putting his left Thumb Mark on Will did not invalidate the Will. (Para 12)
       (iii) Hindu Succession Act, 1956-Section 6 as amended by Section 6A of Hindu Succession (Karnataka Amendment) Act, 1990-Suit for partition-Son claiming 1/7th share in properties of his father, defendant 1-Defendant had two marriages-From his first wife, he had a son (plaintiff) besides four daughters-From second wife he had a son besides three daughters-Death of defendant 1 during pendency of suit-Determination of share of plaintiff-Plaintiff held entitled to 11/40th share in the property described as item 1 and 1/10th share in property described as item No. 2.
       Held : Explanation I to Section 6 lays down that for the purposes of this Section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of the fact whether he was entitled to claim partition or not. This shows that for determining the interest of a male Hindu, a notional partition has to be assumed and the share in the joint family property, which could have been allocated to him in the notional partition, would devolve upon his heirs. Learned counsel appearing on behalf of the plaintiff-respondent submitted that as daughters of Sadasiva Rao, defendant No.1, by virtue of coming into force of Section 6A of the Karnataka Amendment became coparceners and acquired right equal to son in the coparcenary property, the High Court was not justified in holding that the Karnataka Amendment shall not be applicable and thereby reducing share of the plaintiff-respondent and his sisters. In our view, in the absence of any appeal against the decision of the High Court reducing the share of the plaintiff and his sisters after holding that the Karnataka Amendment was not applicable, it is not open to the plaintiff to challenge the said decision as by its reversal, the share of plaintiff and his sisters would be enhanced. Therefore, it is not possible for this Court to go into correctness of decision of the High Court regarding applicability of the Karnataka Amendment in this appeal, and, consequently, we refrain ourselves from expressing any opinion thereon. Thus, the shares of the parties in the joint family property have to be determined in accordance with the provisions of Section 6 of the Act. In the present case, if a partition would have taken place, in view of the fact that defendant No.1 had, besides his second wife, two sons, he would have been allotted 1/4th share in the joint family property and 1/4th share each would have gone to the two sons-plaintiff and defendant No.2, and defendant No. 1(e), who was mother of defendant No.2. In view of the fact that defendant No.1 died during the pendency of suit, his 1/4th share, which he would have got in the notional partition, would devolve by inheritance upon his ten heirs, who are plaintiff and defendants. Thus the share of the plaintiff, defendant No. 2 and defendant No. 1(e) in the property described as item No.1 in the Schedule, which belonged to the joint family, would be 11/40th each and so far as the seven daughters, namely, defendant Nos. 1(a) to 1(d) and 1(f) to 1(h) are concerned, each one of them would be entitled to 1/40th share therein. In the separate property described as item No. 2 in the Schedule, each one of the ten heirs, including the plaintiff, would be entitled to 1/10th share. In the result, the appeal is allowed in part, impugned judgments and decrees are modified to this extent that the plaintiff shall be entitled to 11/40th share in the property described as item No.1 and 1/10th share in the property described as item No.2, but he shall not be entitled to any share in the property described as item No.3 in the Schedule. (Paras 14 & 15)

JUDGMENT

B.N. Agrawal, J.-In this appeal by special leave, appellants, who were defendant Nos. 1(e) and 2 have assailed the judgment rendered by Karnataka High Court in appeals whereby it has been directed that plaintiff is entitled to 11/30th share in the properties described as item Nos. 1, 2 and 3 in the Schedule appended to the plaint and thereby modifying the decree of the trial court which directed that the plaintiff shall be entitled to 1/8th share in the said properties.

2. Plaintiff filed a suit for partition claiming 1/7th share in the properties described as item Nos. 1 to 4 in the Schedule and for rendition of accounts in relation to joint family business carried on by defendant No. 1 in the name and style of M/s Pissey and Sons and his case, in short, was that one P. Eswar Rao had three marriages and from the second marriage, he had two sons, namely, P.E. Sadasiva Rao (defendant No.1) and P.E. Panduranga Rao. From other two marriages also, P. Eswar Rao had children and he acquired various properties during his life time which were his self acquisitions but the same were put in common hotchpotch. On 29th November, 1947, P.Eswar Rao executed a deed of family arrangement whereby properties bearing holding No. 35 in Commercial Street in the city of Bangalore (described as item No. 1 in the Schedule) and holding No. 262 situate in Cavalry Road within the same city were jointly allotted to P.E. Sadasiva Rao (defendant No.1) and his brother P.E. Panduranga Rao. Subsequently, a suit was filed by P.E. Panduranga Rao in which a compromise was arrived at and item No. 1 property was allotted to defendant No. 1 whereas the other property was allotted to P.E. Panduranga Rao under a compromise decree dated 22nd January, 1963 passed in OS No. 56 of 1961. P.E. Sadasiva Rao had two marriages. From his first wife - Godavari Bai, he had a son P.S. Ramarao Pissey, who is the plaintiff, besides four daughters viz., P. Asha Devi [defendant No. 1(a)], P. Jayalakshmi [defendant No. 1(b)], P.S. Lalitha [defendant No. 1(c)] and P.S. Shantha [defendant No. 1(d)]. From second wife-Sumitra Bai [defendant No. 1(e)], P.E. Sadasiva Rao had a son, namely, P.S. Sai Ram [defendant No. 2] besides three daughters, namely, Rekha [defendant No. 1(f)], Mala [defendant No. 1(g) and Prabha [defendant No. 1(h)]. Defendant No. 1 started a joint family business of textiles and tailoring in a portion of item No.1 property and out of the income of the said business, he acquired item Nos. 2, 3 and 4 properties. Further case of the plaintiff was that even though the suit properties belonged to joint family of defendant No. 1 and his two sons, namely, the plaintiff and defendant No. 2, defendant No. 1 executed a deed of settlement on 23rd February, 1978 whereunder he settled item No. 1 property in favour of defendant No.2. Thereafter, defendant No.2 obtained a Will executed by defendant No. 1 on 29th January, 1993 bequeathing thereunder item No.3 property in favour of defendant Nos. 1(e) and 2 which was fabricated one. As the parties were having difficulty in joint enjoyment of the properties, the same necessitated filing of the present suit.

3. In the said suit, the defendants filed written statement contesting the case of the plaintiff. According to them, item No.1 property was self acquisition of P. Eswar Rao and, consequently, of defendant No.1 who, after raising funds from the market, started his separate business of tailoring in the said property with which the joint family had absolutely no connection whatsoever, more so when the joint family was neither possessed of any fund nor any fund was at all invested in the said business by it at any point of time. According to them, out of the income from the said business, defendant No. 1 acquired other properties which are described as item Nos. 2, 3 and 4 in the Schedule and, therefore, the same are also his self acquisitions, consequently, he had every right to deal with it. Accordingly, deed of settlement dated

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2004 Supreme(SC) 134

IMPORTANT POINTMere user of the joint family property as a business premises by the karta of the joint family, for running his separate business cannot be said to be in any manner detrimental to the joint family property.

Cases Referred (3)

IMPORTANT POINT
Mere user of the joint family property as a business premises by the karta of the joint family, for running his separate business cannot be said to be in any manner detrimental to the joint family property.