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TMI Blog2006 (10) TMI 505X X X X Extracts X X X X X X X X Extracts X X X X ..... pany, 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 7,500-00 4. 73/3 8-30 45-23 Out of this 11-30 20,000-00 2-07 (II) T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pipeline ₹ 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 predeceased him in the year 1965. The plaintiff and defendant Nos. 1,4,9 & 10 are sons and defendant Nos. 5, 7 & 11 are the daughters of Peerappa. Defendant No. 2 is the daughter and defendant Nos. 6 & 7 are the sons of defendant No. 5. Defendant Nos. 1 & 2 are the husband and wife and Defendant No. 3 is their son. Another son of Peerappa by name Balappa has gone in adoption outside the joint family. The plaintiff and Defendant Nos. 1, 4, 9 & 10 formed co-parcenary along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Defendant Nos. 6 & 9 up to 1974. As the business at Belgaum prospered being expanded, in the year 1976 a partnership business was floated in the name of "Indu Oil Company" and thereafter, another partnership business in the name and style of "Mahaveer Trading Company" was started by the plaintiff and defendant No. 1. In the year 1967-68 another tobacoo company in the name and style of "Anand Tobacco Company" was managed by Defendant No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant 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 by allotting to his separated sons and estate of coparcenary in due course and the sons possessed and enjoyed separately, got the occupancy rights over these agricultural lands under the Karnataka Land Reforms Act. The assertion that the family owns house and open scape described in Schedule 'B' (II) is false. The allegations that the family owns ancestral house at Sadalaga was also denied. It was submitted that during the life time of Peerappa, partition was eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 aforesaid. The trial court held that the acquisition of the property was from the joint family nucleus which was available with the joint family propitious, all the parties i.e. defendant Nos. 5, 8 and 11 and the sons i.e. defendants Nos. 1,4,9 and 10 and the plaintiff were to share equally and as per principle it was incumbent on the part of defendant Nos. 1 to 3 to prove specifically that it was on account of self-acquired properties came to be purchased. Learned trial Judge further held that there is absolutely no evidence to support th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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 burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property. Therefore, so far as the proposition of law is concerned, the initial burden is on the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 partitioned amongst the co-sharers. By a unilateral act it is not open to any member of the joint family to convert any joint family property into his personal property. 8. In the case of Surendra Kumar v. Phoolchand (dead) through LRs and Anr. their Lordships held as follows: It is no doubt true that there is no presumption that a family because it is joint possessed joint property and therefore the person alleging the property to be joint has to establish that the family was possessed of some property with the income of which the property could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 1 to 3. Therefore I am to state that the suit property acquired vide Ex.D 46, bearing new TMC No. 2178 standing in the name of defendant No. 2 and the suit property purchased vide Ex. D 48 dated 28.6.71 standing in the name of the defendant No. 1, and the suit property vide Ex. D 49 dated 24.2.1983 standing in the name of defendant No. 3, and the suit properties vide Ex.D.50 dated 11.8.75 standing in the name of defendant No. 2 are joint family acquisitions wherein the plaintiff and the deft No. 9 as co-parceners can seek partition of their specific share in them. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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