TaxTMI 
TaxTMI 
2010 (4) TMI 1183
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....cording to the plaintiffs, defendant No. 2 was not the sole owner of the suit property and in spite of that he has sold the suit property to defendant No. 1. According to the plaintiffs, they have 2/3rd share in the suit property. It is their contention that the plaintiffs and defendant No. 2 were the members of the joint Hindu family when the suit property was alienated by defendant No. 2. They contend that they had purchased jointly a plot of land for construction of the house and they constructed a house thereon. The same was constructed from joint family funds though in the name of defendant No. 2. The plaintiffs contend that in the year 1949, plaintiff No. 1 along with her two sons was turned out of the house by husband and since then ....
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....the house or plot and the plaintiffs have no share whatsoever in the suit property. 4. The learned Judge of the trial Court found that the house was constructed from joint family funds, the plaintiffs had 2/3rd share in it and the sale deed, therefore, was not binding on the plaintiffs. Holding so, he decreed the suit. An appeal was preferred by the defendants and the appeal came to be dismissed. Feeling aggrieved thereby, this second appeal has been preferred. 5. I have heard the learned Counsel for the appellants and the respondents. 6. The appeal was admitted by this Court (Kulkarni, J.) on the following substantial questions of law. 1) Both the learned courts below have erred in holding that the suit....
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.... to sell the property. It has also come in the evidenced that it was Vithal, who had constructed the house. The learned courts below have unnecessarily observed that Vithal has not produced any document to support the construction. The fact remains that since the suit property was in the name of Vithal and he had purchased this property, the question of his right to sell the same does not arise. 4) The learned courts below have erred in holding that there was a joint family business and suit property was only purchased in the name of Vithal. Assuming that this is admitted, it is only to be held as a benami transaction and the plaintiffs have no right in the property, which stands in the name of Vithal. &....
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....t No. 2 out of the house and he is living separately. The question is whether the mother and two sons could constitute a joint family and that seems to be the question of law raised. I see no reason why they cannot. If two brothers, upon death of father, can constitute a joint family, there is no reason why two brothers in this case with their mother cannot constitute a joint family, when father deserts them. Even if one of the coparceners decides to break away from the rest of the family, the other coparceners can constitute a joint Hindu family. Even otherwise in the instant case father had deserted them, he has not separated as such from the family. I find that the two sons with their mother and even wives can constitute the joint Hindu ....
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....e plaintiffs that plaintiff No. 1 started the business and started earning. DW 1 Vitthal admits in the cross-examination that his mother was dealing in grains and was earning. He also admits that his mother and aunt paid him money for starting business. If mother was also doing the business, as is accepted by the defendants, it is difficult to accept the theory of defendant No. 2 that he was alone running the shop. Admittedly, there were two shops at two different places. It is, therefore, difficult to accept that defendant No. 2 alone could run both the shops at the two different places. The theory of the plaintiffs that the shops were joint and run by all has, therefore, to be accepted. There is another strong reason why the property has ....