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TMI Blog2010 (4) TMI 1183X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 she was living with her mother and sisters. It is their contention that plaintiff No. 1 started bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned 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 property is purchased from the joint family funds in the year 1966 from one Mahadeo Gadge and hence, it is a joint fam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 5) It is liable to be seen that there is no nucleus established to show that it is a joint family property. Even otherwise, the learned courts below should have considered that this pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rothers, 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 family. In the instant case, it could be said that the plaintiffs and defendant No. 2 constituted a joint Hindu family. 9. The plaintiffs' case is that plaintiffs and defendant No. 2 were turned out of the house. If t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to be treated as jointly acquired property. Dependant No. 1 had filed the suit against defendant No. 2 and plaintiff No. 1 in respect of recovery of rent of shop of plaintiffs and defendant No. 2. The certified copy of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant's acting in good faith and whether he had taken reasonable care. I find that this is a fit case of lack of good faith and not even a reasonable care has been taken. It appears, on the other hand, that defendant No. 1 entered into contract of purchase of the property with open eyes. The reason for saying so is that the appellant does not enter into witness box to make out the case in pleading and second in his own plaint vide Exh. 36, he had made an averment and assertion that the shop and the property belonged to the joint family. This clearly shows that defendant No. 1 has had full knowledge of the property being owned by the family and not by defendant No. 2 alone. The appellant, therefore, could not be treated to be a bona fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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