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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 ..... 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 1,00,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (V) The suit undivided Hindu family business at Sadalaga, Taluk Chikodi, Dist. Belgaum 1. Dhanalaxmi Stores ₹ 1000-00 2. Kiran Shop in the name and style C.S. Hukeri Rs. 1000-00 (VI) The suit undivided Hindu family movables: 1. Goods truck bearing Reg. No. MEI 7567 ₹ 1,00,000-00 2. A car bearing Reg. No. MHH 30 ₹ 60,000-00 3. Scooter bearing Reg. No. CTL 3597 ₹ 12,000-00 4. Hero Honda Reg. No. CTS 7069 ₹ 15,000-00 5. Ambassador Car bearing No. MZH 9453 ₹ 50,000-00 6. Ambassador Car bearing No. 4334 ₹ 50,000-00 (VII) Share and Bank accounts. 1. Two shares each worth ₹ 1000/- in Panchaganga Sugar Factory Ichalkaranji ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in Schedule B are said to be still undivided. The landed properties of the suit family is described in Item Nos. 1 to 4 of Schedule B (I). The house and open space described at SI. No. 1 of (II) of the B Schedule are the ancestral properties of the joint family. The property at SI. No. 2 of Schedule B(II) was purchased in the name of Defendant No. 5- Gangubai out of the joint family funds on or about 1964-65 which was an open space and subsequently it was got transferred in the name of Defendant No. 2 after constructing RCC building thereon out of the joint family funds. In this building the plaintiff is running joint family shop in the name and style of Dhana Laxmi Stores in the southern portion and in the northern portion has been leased out to Syndicate Bank at Sadalaga. The property at Sl. No. 3- of Schedule B (II) was purchased in the name of Defendant No. 7 in the year 1984-85. Similarly, the suit properties at Sl. Nos. 4 to 7 of Schedule B (II) were purchased in the name of Defendant No. 9 for the benefit of the said undivided family. The properties mentioned in SL No. (III) of Schedule B were purchased and acquired at Belgaum out of the joint family funds for joint fami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t No. 3 became an adult and therefore, he entered into business and then the business further expanded. As the family business expanded, Defendant Nos. 1 2 wanted to corner the entire business including the interests of other defendants. Therefore, the plaintiff thought that it would not be proper to continue in a joint family business and demanded partition and separate possession and share in the family business and also demanded rendition of accounts of the family business. The defendant No. 1 in collusion with defendant Nos. 2 to 11 avoided to have partition on some pretext or the other. Therefore, ultimately, no option was left to the plaintiff except to file a suit for partition and separate possession and taking accounts of the family business. Since the plaintiff's father Peerappa died after the Hindu Succession Act, 1956 came into force, therefore, the male and female both heirs of the deceased Peerappa were entitled to their share and accordingly, the plaintiff claimed that he has 9/48th share. The defendant No. 1 being a shrewd businessman and expert in trade, though he was not the eldest member of the family, with the consent of all other members of the family man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch earlier to the deed of memo of partition dated 19.5.1965 and the father also relinquished his right, title and interest in the house in favour of his sons. It was also submitted that the allegations that the family purchased a house in the name of Defendant No. 5- Gangubai out of the joint family funds in or about 1964-65 and the family constructed RCC building for the joint family with the joint family funds and subsequently the property got transferred in the name of defendant No. 2 were false and frivolous. That the property bearing No. 1946 (New No. 2178) at Sadalga is exclusively absolute separate individual property of defendant No. 5. But now the property bearing old No. 1846A bearing new No. 2178 of Sadalga is absolutely separate individual property of defendant No. 2. The allegation of joint family shop in the name and style of Dhanalaxmi Store and a portion of that building being given to Syndicate Bank at Sadalaga as claimed by the plaintiff was also denied and the claim that Dhanalaxmi Store being joint family property was also denied. It was pointed out that the property belonged to Defendant No. 2 and Defendant No. 2 has leased out a portion to the Bank and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w No. 2178 standing in the name of. Defendant No. 2 the suit property purchased vide Ex.D 48 dated 28.6.1971 standing in the name of Defendant No. 1; the suit property Ex. D.49 dated 24.2.1983 standing in the name of Defendant No. 3 and the suit property vide Ex.50 dated 11.8.1975 standing in the name of Defendant No. 2 are joint family acquisition wherein plaintiff and Defendant No. 9 as co-parceners can seek partition of their specific share in them. It may not be out of place to mention here that Defendant No. 1 is the brother of the plaintiff, defendant No. 2 is the wife of defendant No. 1 while defendant No. 3 is the son of defendant Nos. 1 2. Ultimately the trial Judge concluded as follows: Consequently, each of the plaintiff and the defendant No. 9 is entitled to 3/16th share in the suit properties at Sl. Nos. 1 to 4 shown in para (I), and Sl. No. 1 and 2 and 4 to 7 shown in para (II), and st Sl. Nos. 1,2 and 4 shown in para (III), and at Sl. Nos. 1 to 4 shown in para (VI) of the suit Schedule 'B' The net result is the plaintiff and Defendant No 9 were given 3/16th share by partition metes and bounds. Aggrieved against this judgment and decree the defendant Nos. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laims that the property has been purchased by him through his own source and not from the joint family nucleus. Same proposition has been followed in the case of Mst. Rukhmabai v. Lala Laxminarayan and Ors. wherein it was observed as follows: There is a presumption in Hindu Law that a family is joint. There can be a division in status among the members of a joint Hindu family by definement of shares which is technically called division of status , or an actual division among them by allotment of specific property to each one of them which is described as division by metes and bounds . A member need not receive any share in the joint estate but may renounce his interest therein; his renunciation merely extinguishes his interest in the estate but does not affect that status of the remaining members vis-a-vis the family property. A division in status can be effected by an unambiguous declaration to become divided from the others and that intention can be expressed by any process. Though prima facie a document clearly expressing the intention to divide brings about a division in status, it is open to a party to prove that the said document was a sham or a nominal one not intended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the family which possessed joint property which from its nature and relative value may have formed sufficient nucleus from which the property in question may have been acquired, the presumption arises that it was the joint property and the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family. Therefore, on survey of the aforesaid decisions what emerges is that there is no presumption of a joint Hindu family but on the evidence if it is established that the property was joint Hindu family property and the other properties were acquired out of that nucleus, if the initial burden is discharged by the person who claims joint Hindu family, then 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 by cogent and necessary evidence. 9. In this legal background, we have to examine what exactly has been proved in the present case. As per the finding given by the trial court there is no two opinion that Peerappa was the main person who held various agricultural lands and out of that c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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