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TMI Blog1969 (1) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... Nenappa I, six plots of lands belonged to the joint family. Five of these plots are survey Nos. 43, 59, 65, 66 and 69 measuring 137 acres and 15 gunthas and assessed at ₹ 126/12/- and are located in Borgi Khurd. The other plot survey No. 77 which was in Borgi Budruk measured 14 acres and 24 gunthas and was assessed at ₹ 16/14/-. The total area of the ancestral lands was, therefore,- 151 acres and 27 gunthas assessed at ₹ 143/. Between 1911 and 1940, 12 other pieces of lands in both there villages measuring 137 acres and 39 gunthas and assessed at ₹ 18/10/- were acquired in various names. After Nenappa was murdered in 1944, both the brothers denied his adoption by Goudappa and purported to effect a partition on 28th April, 1944. After the partition deed was executed various alienations were made by the two brothers. On 25th September, 1944 by Ex. 161 Goudappa gifted S. Nos. 61 and 62 of Borgi Budruk and Survey No. 45 of Borgi Khurd to defendant No. 4, Subhadrabai. By Ex. 162, dated 1st October, 1946 Goudappa made a gift of plot survey Nos. 62 and 63 of Borgi Khurd and Survey No. 11/3 of Borgi Budruk to defendant No. 3 who is the daughter of Nenappa II. On 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 43 and 77 was also not binding upon the plaintiff. 3. The first question to be considered in this appeal is whether the partition deed executed by Goudappa and Apparaya on 28th April, 1944 was a sham transaction and not intended to be effective. Both the trial court and the High Court have reached a concurrent finding after an elaborate examination of the evidence that the partition deed was not genuine, and that it was effected for an ulterior purpose in order to defeat the rights of the widows in the joint family. It is manifest that the finding of the lower courts upon this question is essentially a finding upon a question of fact, and in an appeal by special leave it is the normal practice of this Court to accept such a concurrent finding of fact as correct. It was, however, contended by Mr. Sanghi that the finding of the lower courts is vitiated in law because there was no evidence in support of that finding. In our opinion, there is no justification for this argument. In the partition deed it is recited that the lands were partitioned with the help of Panchas but the names of Panchas are not mentioned in the document and none of the Panchas has signed it. As to the divisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operty, but where the partition takes place after the termination of the coparcenary by the death, actually or fictionally, of the last surviving coparcener, the adoption by a widow of a deceased coparcener has not the effect of reviving the coparcenary and does not divest property from the heir of the last surviving coparcener (other than the widow) or those claiming through him or her. But the decision of the Full Bench of the Bombay High Court was expressly over-ruled by the Judicial Committee in Anant v. Shankar. It was held that the power of a Hindu widow does not come to an end on the death of the sole surviving coparcener. Neither does it depend upon the vesting or divesting of the estate, nor can the right to adopt be defeated by partition between the coparceners. The rights of the adopted son relate back to the date of the adoptive father's death and the adopted son must be deemed by a fiction of law to have been in existence as the son of the adoptive father at the time of the tatter's death. If, therefore, there was a coparcenary in existence when the adoptive father died, then whether it came to an end by the death of the last surviving coparcener or by subseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee for instance the decision of the Judicial Committee in Merla Ranumna v. Chelikani Jagannadha Rao and Ors., 5. We pass on to consider the next question arising in this appeal, viz. whether the High Court was right in holding that the 12 pieces of lands were joint family properties and were not the self acquisition of Goudappa. The case of the appellants was that these lands were self-acquisition of Goudappa, but the respondents contended that they were joint family properties. The law on this aspect of the case is well settled. Of course there is no presumption that a Hindu family merely because it is joint, possesses any joint property. The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as coparcenary property. But if the possession of a nucleus of the joint family property is either 'admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is however, subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pa carried on any other business and that these properties were acquired out of that income, the appellants must fail. The case of defendant No. 1 was that Goudappa made these acquisitions out of his business. D.W. 1 did not however state the nature of the business. In cross-examination he said that Goudappa was trading in cotton and this information he had got from Goudappa after his adoption. D.W. 1 was however unable to say with whom Goudappa had dealings in cotton. If Goudappa was doing cotton business it should not have been difficult for the defendants to have produced more direct evidence of persons with whom he had business dealings. The High Court has rejected the evidence of D.W. 3, Imamsaheb as worthless. It is manifest that there is no proof that Goudappa had any separate income of his own out of which he could have acquired the 12 pieces of land. The lower courts were, therefore, right in reaching the conclusion that the 12 pieces of lands belonged to joint family and that the plaintiff was entitled to a share thereof in the partition. 7. It was lastly contended on behalf of the appellants that in any case the High Court should not have allowed the cross-objection o ..... 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