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TMI Blog1992 (4) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... s with the defendants, they issued a suit notice, Ex.A-15, for division of the joint family properties and having found a negative attitude with the defendants laid the present suit. Respondents 1 to 3 and 10 filed a common written statement contending that it is not true that the plaintiffs and the defendants constitute a joint family, that the plaintiffs have no share in the properties and that they are not entitled to the share claimed, that Purandas having died in 1962 did not leave any properties moveabJe or immoveable behind him and that it is not true that the 1st defendant managed the family business. Late Purandas during his life time settled his properties and business on his sons and since then the parties have been enjoying their properties separately. Late Purandas started two shops, one at Gulzar house and another at Secunderabad. After some time Purandas allowed his sons, Ranchhoddas, Motilal and Babulal, to manage the business at Gulzar house and Dwarakadas i.e., the husband of the 1st plaintiff and father of the 2nd and 3rd plaintiffs, to manage the business at Secunderabad. Late Purandas in the year 1942 migrated to Burhanpur in Madhya Pradesh. Late Purandas settl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn funds. It is also alleged that the suit is misconceived, that the suit schedule properties were acquired from the income of the joint family is false, that the properties were acquired by different members with their own earnings and that the suit, therefore, is liable to be dismissed. 3. The 4th defendant filed a separate writlen statement reiterating the averments made by defendants 1, 2, 3, 5 and 10. 4. Defendants 6, 7 and 8 in their written statement denied the plaint allegations and contended that there are no joint family properties liable for partition. 5. The 9th defendant filed a written statement supporting the case of the plaintiffs and further contending that she is entitled to a share in the plaint schedule properties. 6. The trial Court after framing the relevant issues went on with the trial. During the trial the plaintiffs examined P.Ws. 1 to 3 and marked Exs.A-1 to A-7 while the defendants examined the 1st defendant as D.W. 1 and marked Exs. B-1 to B-28. After considering the entire material available before it. the trial Court held that the plaintiffs and the defendants did not constitute a joint family and that the suit schedule properties are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her marriage. After some time the shop having been shifted to Gulzara House, they used to prepare the perfumes in the ground floor of the house and they used to reside in the first floor. They used to supply the items for sale at the Secundera-bad shop from Gulzara House. Even in the cross-examination she stated that her father-in-law (Purandas) started the business in the name and style 'Purandas Ranchhoddas and sons.' Earlier the shop at Gulzara house was managed by Purandas and later by his sons. The shop at Secunderabad was managed by her husband, Dwaraka Das. After closure of the shop at Seconderabad, they opened another shop at Sultan Bazar. According to P.W. 1 that was opened by Purandas and given to her husband. She denied the suggestion that it is not correct to say that since 1942 the parties carried on the business separately and were living separately. 9. P.W. 2 is the third plaintiff. He is the son of Dwaraka Das and grandson of Purandas. He deposed that his grandfather was having business in perfumes at Gulzara House. Purandas was manufacturing as well purchasing the perfumes for being sold at Gulzara House and Secunderabad. The shop at Gulzara House was b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the second plaintiff sitting in the medical shop. He denied the suggestion that with the help of the second plaintiff he produced Ex.A-17 and was giving false evidence. 11. The 1st defendant examined himself as D.W. 1. He deposed that Purandas was his father and he died in the year 1962. He was doing the business in perfumes. He had two shops one at Gulzara House and the other at Secunderabad. He stated that in the year 1942, his father went away to Berhanpur after giving the shop at Gulzara House to himself, D-6 and the husband of D-10; and the shop at Secunderabad to Dwaraka Das. He deposed that his father did not purchase any properties at Hyderabad. His father started business in the shop at Gulzara House about sixty years back. The witness was working with his father when he started the business. At that time he was fifteen years old. The business was started in the name and style 'Purandas Ranchhod Das and Sons'. The witness added, Purandas is his father's name while Ranchhod Das is his. His father was having business at Secunderabad also. The witness was assisting his father in the entire business after the school hours. In the shop, they were having factory i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siness constitute joint family properties amenable for partition by the sons and their sons as coparceners. 14. In Haridas v. Devkuvarbai AIR 192 Bombay 408, the question before a Division Bench of the Bombay High Court is, whether the property acquired jointly by father and son is joint family property even though there is no nucleus of ancestry property. The Division Bench held that the property acquired jointly by father and son living together becomes joint family property even in the absence of family nucleus for its acquisition. Similar is the question in Lachmi Narain v. Musaddi Lal AIR 1942 Oudh 155. It is held therein that the fact that a firm is a joint family concern is itself a nucleus and the property acquired by the joint labours of the members must be deemed to be the joint family property. To the same effect are the decisions in Suthersanam Maistri v. Narasi-mulu Maistri (1901) 11 Mad LJ 353, Krishnan V. Rengachari and Selvaraj v. Radhakrishna Pillai (1976) 1 Mad LJ 105 : (AIR 1976 Madras 156). In Parbhu Lal v. Bhagwan AIR 1927 Bombay 412, the Bombay High Court held that for formation of a coparcenary under the Hindu Law, a nucleus of property which has come dow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enied the suggestion that since 1942 the parties have been carrying on business separately and living separately. She stated that since 1957 onwards the business was carried (on) partnership basis. She denied the suggestion that there was a family partition long back during the lefttime of her husband. She did not know whether her father-in-law left any will. She denied the suggestion that since 1942 the parties have been carrying (sic) there was any partition of jewellery during the life time of her father-in-law. She denied the suggestion that there was a partition of moveable and immoveable properties that took place some thirty years back. She stated in her cross-examination that even when her husband Dwarakadas was alive and carrying on the business at Secunderabad shop and Sultan Bazar, her father-in-law used to give them ₹ 1,500- per month for the maintenance of the family. After the death of her father-in-law D-2 and D-3 used to pay them ₹ 1,500/-from the income of the shop at Gulzara House. Even after the demise of her husband they continued to pay the amount and they stopped making the payment only some time prior to the laying of the suit. 17. P.W.2 stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rabad shop was a branch of Gulzara House Shop and the sale process were being sent to Gulzara House shop every day. He denied the suggestion that his father was managing the shop at Secunderabad exclusively for himself as a proprietary concern. He stated that al! Ihe books relating to the shop at Secunderabad were sent to D-l and D-6 after the accounting year is over. The license of the medical shop was in the name of the firm 'Purandas Ranchhoddas Sons'. The partners were shown as plaintiffs Nos. 1 to 3. Purandas died in 1962. The witness (P.W. 2) did not know whether the business at Gulzara House after 1942 was changed and continued by different partnerships from lime to time. P.Ws. 1 and 2 stated that the families of the plaintiffs and the defendants were living separately since 20-25 years. 18. D. W. 1 stated that Purandas had two shops, one at Secunderabad and the other at Gulzara House. In the year 1942 Purandas left for Barahanpur in Madhya Pradesh. At that time he gave the shop at Gulzara House to the witness (D. W. I), D-6 and Babulal; and the shop at Secunderabad was given to Dwaraka Das. Fx. B-3 is the settlement-deed executed by Purandas on 1-3-1957. It bea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken from Hindusthan Co-operative Insurance. Ex. B-23 is another entry in the same Cash book at page 260 showing encashment of Ihe cheque covered by the above matured policy. Ex. B-24 is the entry in the ledger for 1954-55 at page 249 for the year 1954-55 relating to the account of Purandas Ranchhoddas. The witness denied the suggestion that he did not pay the premium on the insurance policy relating to his father. In the cross-examination he stated that Babulal during his lifetime and after his death his wife and daughter have no separate properties or business, but they have a share in the house in which he was living and in the land in Ramananthapur. 19. The above evidence shows that as per the plea of the plaintiffs the suit properties are the joint family properties and the same were earned by the joint efforts of Purandas and his sons whereas the case of the defendants, excepting D-9, is that there was a settlement in 1942, which was reduced into writing in 1957. Thus, the specific case of the defendants is that there was a settlement and division of properties among the sons in the year 1942 itself and thereafter in 1957 the settlement deed was executed. Now, we have to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement of the business on the parties. 21. The settlement deed is alleged to have been executed on 1-3-1957. First of all, it does not contain the signature of Dwarakadas, though contains the signatures of all others. It is an unregistered instrument. Except the 1st defendant deposing about this, no independent connected with Ex. B-3 settlement deed is examined to prove Ex, B-3. There is no mention in Ex. A-16 reply given by the defendants stating that the settlement deed was executed by late Purandas in 1957. It is equally to be borne in mind that the settlement deed was executed at Berahanpur on 1-3-57. D.W. I in his cross-examination stated that he wrote Ex. B-25 entry at Hyderabad. The entry is dated 1-3-57. Therefore, the person who wrote the katha (Ex. B-25) at Hyderabad on 1-3-57 cannot be equally present on the same day at Berahanpur in Madhya Pradesh, which is a far off place, and sign Ex. B-3. 22. Another notable feature is, in the written statement filed by D-6, D-7 and D-8 it is mentioned that in or about 1943 Purandas left Hyderabad. He orally partitioned and settled the entire business both at Secun-derabad and Hyderabad among his four sons. In the written statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admitted facts need not be proved. For this proposition of law, the learned counsel sought to place reliance upon the decision in Javer Chand v. Pukhraj Surana, , Dewan Chand v. Jay Pee Finance Corpn., AIR 1977 J K 61, G. Narayana Raju v. Chamaraju, , C. Sundaram v. Rukmani Ammal, , Narayan v. Gopal, , Nagubai v. Shama Rao, , and Ajodhya Prasad v. Bhawani Shanker, (FB). There is absolutely no dispute with the proposition of law that no proof is required in the face of an admission. But the question is whether the admission of execution of a particular document extends to the execution of another document recited in the former document. Firstly in the case on hand there is no evidence except that of D.W. 1 to show that Ex. B-l was filed before the Income-tax Authorities in Madhya Pradesh. Even taking that it was so filed, still the admission of the signature on Ex. B-1 by P.W, 2 cannot be said to be extending even to Ex. B-4, the Will referred to in Ex, B-1. As already commented supra, the attestations to the Will Ex. B-4 are not proved. In Girijadutt v. Gangori Dutt, AIR 1955 SC 347, it is held that in order to prove due attestation of the Will the propounder of the Will has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 52 was paid by the 1st defendant for Purandas. Ex. B-27 is the entry covering the sale-proceeds from the Secunderabad shop made in the accounts books of Gulazara House Shop. Exs. B-23 and R-24 are the credit entries made in the account books in relation to the shop at Gulzara House reflecting the amounts received from Insurance Companies in respect of the policies of Purandas. If really there was a partition or settlement as alleged, there seems to be obviously no need for these entries, more particularly of the sale proceeds from the Secunderabad Shop. As regards the contention with respect to exclusion from the joint family business, we shall deal with the same while discussing the issue in regard to limitation. For all these reasons, we hold that the family is continuing asjoint Hindu family and that there was no settlement or partition brought in among the plaintiff and the defendants. 26. It is next contended by Mr. H. S. Gururaja Rao that Ex. B-14 is a letter written by Gopinath on 6-6-66 stating therein that he has distributed the amounts as stated in the Will. In that it is shown that Dwaraka Das was paid ₹ 15,000/-. Gopinath is not examined to prove this payment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the properties arejoint family properties. Therefore the suit was filed. In the written statement filed by D-1, D-2, D-3, D-5 and D-10 in paragraph 6 it is stated that the business was carried on independantly even long before 1943, late Dwarakadas at Secunderabad and D-1, Motilal, at Gulzara House as partners of the shop. Thus, according to the written statement the business was so carried on independantly by the sons even during the lifetime of Purandas. In view of this, it is pleaded, the suit for partition is wholly untenable and time barred. Except this allegation that the suit is time-barred, there is no specific plea in the written statement that Dwaraka Das was excluded from enjoyment of the joint family properties to the knowledge of Dwaraka Das and his sons. Since there is no plea of exclusion, there is also no issue and consequcnlly no evidence or finding. It is a settled principle of law that when there is no plea, there will be no issue and therefore there cannot be any finding. What amounts to exclusion is a question depending upon the particular facts of each case. The exclusion must be to the knowledge of the person excluded and there should be sufficient (mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and their sons, the income-tax assessment orders and the certificates issued by the Income-tax Authorities show that since 1957 onwards the defendants are doing business exclusively and therefore the suit filed in the year 1976 is barred by limitation as per Art. 110 of the Limitation Act. First of all, there was no issue, evidence or finding on this point. We have also held that once there is a joint family and the properties are joint family properties managed by some members of the joint family, the said properties will not seize to be joint family properties merely because the other members have not managed the said properties, unless it is proved that the other members to their knowledge have been excluded from the joint family. As held by us, the properties are still joint family properties as the alleged settlement or partition pleaded was held to be false. The evidence of D.W, 1 on this point was held to be not believable. The case of the plaintiffs is that though the two shops are there--one at Gulzara House and the other in Secundera-bad -- managed by the defendants and Dwaraka Das, the entire profits were enjoyed by all the members jointly and this is even spoken to by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that there is no exclusion of the plaintiffs also as contended. 28. The next question for consideration is, what are the properties available for partition. In so far as plaint 'A' schedule is concerned it is a geneological tree and has nothing to do with the properties. Plaint 'B' schedule consists of 'B' items. Item No. 1 is in the name of Ranchhod Das. Items Nos. 2 and 3 are in the name of Madan Lal, son of Ranchhod Das. Item No. 4 is in the name of Surender Prasad, son of Ramchand Das. Item No. 5 is in the name of Motilal, son of Purandas. Item No. 6 is in the name of D-1 and D-6. Item No. 7 is in the name of 'Purandas Ranchhoddas and Sons'. Item No. 8 is in the name of the plaintiff. All these items 1 to 8 are houses. It is in the evidence of P.Ws. 1 and 2 that these are all properties purchased from out of the income of the joint family and therefore they are all joint family properties. D. W. 1 in his evidence stated that item No. 1 was purchased by himself and D-6 Babulal with their own earnings. Item No. 2 was purchased by D.W. 1 with his own earnings. He stated that item No. 3 belongs to D-3 and his son. According to D.W. 1 item No. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... funds of the shop. He denied the suggestion that the business and the properties were the self-acquired properties of his father Purandas and that he blended them with the joint family properties and himself and that all of them enjoyed the properties and the business as joint family properties. It is suggested to him that Ex. B-28, registered partition deed, was brought into existence for purposes of income-tax. No doubt, he denied the suggestion. Except the evidence of D-1, there is no other evidence on record to show that the properties are the self-acquired properties. Ex, A-1 is the Municipal Assessment Order for the year 1975-76 in respect of item No. 1 of plaint 'B' schedule. The house is shown in the name of Purandas. Ex. A-2 is the extract from the Assessment Register of property of the Municipal Corporation of Hyderabad in respect of item No. 2 of plaint B schedule. It stands in the name of the 1st defendant. Ex. A-3 is the extract from the assessment register for 1975-76 in respect of item No. 3 of plaint 'B' schedule. It is in the name of Madanlal. It sh'ows that mutation has been effected. Ex. A-4 is the extract from the assessment register in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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