TaxTMI 
TaxTMI 
2006 (10) TMI 505
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....ule-B) namely Mahaveer Trading Company, Indu Oil Mill Company and Srikant Oil Company. The decree in respect of these companies has been granted and these companies have been held to be partnership concerned. So far as item -1 in VI Schedule, namely goods truck bearing No. MEI 7567, separate regular first appeal being RFA No. 428 of 1993 was filed and the same has been disposed of with which we are not concerned. The real dispute between the parties is whether the properties for which a decree was passed by the trial court was joint Hindu family property or those were self-acquired property of the defendants and their children. 2. The case of the plaintiff- Appasaheb was that all the properties mentioned above were the joint family properties and therefore, he sought partition of the said properties. The following properties formed part of Schedule B which read as under. SCHEDULE-'B' (i) Agricultural lands situated within the village limits of Sadalaga, Taluka Chikodi. Sl. No. Sy. No. Area A-Gs Assessment Rs. Ps. Value Rs. 1. 893/3 10-10 40-08 1,00,000-00 2. 72/2 1-00 7-00 10,000-00 3. 52/2 0-30 6-00 7,....
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....alli, Belgaum Rs. 1,000-00 5. Amount in Account No. Ratnakar Bank Branch, Belgaum Rs. 1,000-00 (VIII) The family movables including the cooking apparatuses and utensils etc. in Belgaum and at Sadalaga family house Rs. 10,000-00 (IX) (i) Four she-buffaloes Rs. 6,000-00 (ii) Two bullocks Rs. 2,000-00 (iii) Bullock card and Agricultural implements Rs. 1,000-00 (iv) Motor pump set and pipeline Rs. 10,000-00. The suit was contested by the defendants and they claimed that the properties mentioned in the suit Schedule are self-acquired properties and therefore, there was no question of partition. The trial court however, decreed the suit of the plaintiff as mentioned above. Aggrieved against that order the defendants filed an appeal and in the said appeal the High Court reversed the finding of the trial court and dismissed the suit. 3. In order to appreciate the controversy between the parties, it may be appropriate to reproduce the genealogy. The genealogy of the whole family is as under: The propositus of the said family was one Peerappa. He died in the year 1975 and his wife Kashibai pred....
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.... started Kirana business shop at Sadalaga in the year 1946 out of the joint family funds from various properties. The said business prospered and gave good profit within a short period. Defendant No. 1 during that period acquired experience in business and trade the family thought it better to expand the family business and seek fortune in addition to agriculture and kirana business in larger business centers. In the year 1960 a business shop was started for dealing in bhusari, oil and sugar by investing huge amount out of the joint family in the name of 'D.P. Chandgade' in Chikodi town, the taluka place. That was kept upto 1967 and Chikodi was felt a small place and as such all the brothers and their father intended to shift the business to the vast business center. So the entire business was shifted to Belgaum in 1967 and established the business in Raviwar Peth, Belgaum. The Kirana shop at Sadalaga was looked after by the plaintiff along with defendant No. 9 and defendant No. 6 upto 1967-68. The plaintiff then went to Belgaum along with Defendant No. 1 in the year 1967. The business at Belgaum also prospered. The kirana shop at Sadalaga was being looked after by Defendan....
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....t Schedule 'B' (IV), B (V) and B(VII) taken and the plaintiff's 9/48th share in the profit to be determined and awarded to the plaintiff. (D) Future mesne profits be awarded to the plaintiff. (E) That the costs of the suit be awarded to the plaintiff. 4. The suit was contested by the defendants and the allegations were denied that the family still continues to be undivided Hindu family. It was alleged that the co-parcenary family of defendant No. 1 consists of the plaintiff and defendant Nos. 1,4,9 and 10 and holds the family properties under 'B' Schedule till today as undivided properties. The defendants also denied that the family holds agricultural lands as described in Schedule 'B' (I). It was also pointed out that Peerappa much earlier to the deed of memo of partition dated 19.5.1965 pertaining to the permanent tenancy right over 1/8th share in the lands at Sl. No. 52/3 measuring 6 acres 31 gunthas, Sl. No. 72/2 measuring 6 acres and 5 gunthas, Sl. No. 73/3 measuring 8 acres 30 gunthas at Sadalaga had effected partition and separation under the power of father by relinquishing his right, title and interest amongst his sons alone....
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.... the defendant No. 5 and now it is in the exclusive property of defendant No. 2? 4. Whether the defendants prove that TMC No. 3130/2 of Sadalaga is exclusive property of Defendant No. 7? 5. Whether the defendants prove that M.H. No. 202/235 of Belgaum i.e. Schedule B-III(i) is the self-acquired property defendant No. 1? 6. Whether the defendants prove that CTS No. 687/1 of Belgaum is the self-acquired property of defendant No. 3? 7. Whether defendants prove that suit Schedule B-III (a) property is the self acquired property of the defendant No. 2? 8. Whether the plaintiff is entitled for any share? 9. If so, what is his share and in which properties? 10. To what reliefs the parties are entitled? Additional one issue was framed later which reads as under. 11. Whether the plaintiff proves that suit property bearing Municipal H. No. 764/8A-1 situated at Anagol-Mal (Bhagya Nagar) is also ancestral property? 5. The learned trial Judge affirmed issue No. 1 partly and also answered No. 4 in favour of the plaintiff. The trial Judge also answered issue No. 8 in favour of the plaintiff and granted a decree as aforesai....
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.... son and those properties were not purchased from the family nucleus. The High Court on appreciation of evidence set aside the order of the trial court so far as the appellants before it (i.e. Defendant Nos. 1 to 3) were concerned and dismissed the suit qua them. Hence the present appeal. 6. We have gone through the records and heard learned Counsel for the parties at length. So far the legal proposition is concerned, there is no gain saying that whenever a suit for partition and determination of share and possession thereof is filed, then the initial burden is on the plaintiff to show that the entire property was a joint Hindu family property and after initial discharge of the burden, it shifts on the defendants to show that the property claimed by them was not purchased out of the joint family nucleus and it was purchased independent of them. This settled proposition emerges from various decisions of this Court right from 1954 onwards. 7. In the case of Srinivas Krishnarao Kango v. Narayan Devli Kango and Ors. , their Lordships held that proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the....
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....p the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint family property. Similarly, in the case of Achuthan Nair v. Chinnammu Amma and Ors. , their Lordships held as follows: Under Hindu law, when a property stands in the name of a member of a joint family, it is incumbent upon those asserting that it is a joint family property to establish it. When it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition, the law raises a presumption that it is a joint family property and the onus is shifted to the individual member to establish that the property was acquired by him without the aid of the said nucleus. This is a well settled proposition of law. Similarly, in the case of Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe and Ors. , their Lordships have held that the character of any joint family property does not change with the severance of the status of the joint family and a joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partition....
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....il to see any justifiable reason for the High Court to have taken a contrary view in the matter. The trial court in extensive manner dealt with each subject and came to the conclusion that the properties acquired by defendant Nos. 1 to 3 were not self-acquired properties as neither defendant No. 2 nor Defendant No. 3 i.e. the mother and son had any independent source of income for purchasing these properties. The defendant Nos. 1 to 3 had not been able to establish from evidence that they had sufficient funds out of which such properties could be purchased. The trial court in paragraph 69 of its judgment has definitely held against them. But the High Court has observed that the finding in paragraph 69 of the judgment is vague. With great respect, we do not subscribe the view taken by the High Court. The finding of trial court is categorical & clear it was observed in paragraph 69 of its judgment which is reproduced below: ... it was incumbent on the part of the defendant Nos. 1,2 and 3 to prove specifically that it was on account of self acquisition the said properties came to be purchased. Absolutely there is no evidence in this context to support plea of the defts. Nos. ....