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TMI Blog1999 (4) TMI 660X X X X Extracts X X X X X X X X Extracts X X X X ..... entatives. It may not be out of place to mention at this stage that apart from the three sons, Govinda Padayachi had one more son by name Gopal Padayachi. He got married with one Kanaga. From the evidence, it is further seen that Gopal Padayachi died a few years after Govinda Padayachi's death, and his wife Kanaga left the village, and she was not heard by persons who might have normally heard of her, for more than seven years, and therefore, she is presumed to be dead. They had no issue. 3. It is the case of the plaintiff that Govinda Padayachi died some time in 1957, and thereafter Ramachandra Padayachi took the reins of the family and with the income derived from the family assets, he purchased various items either in his name or in the name of his wife. It is also alleged that the joint family cultivated their own lands, and they were also having leasehold lands. All the joint earnings and funds of the plaintiff and Ganapathy Padayachi were given to the joint family manager Ramachandra Padayachi, It is also said that the family was in possession of properties at Puthagaram village, and the same were sold on 1967, and out of the proceeds, properties were purchased in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 10 also belong absolutely to Ramachandra Padayachi only. Defendant prayed for dismissal of the suit. 5. Legal heirs of Ganapathy Padayachi, headed by 9th defendant, have filed written statement, admitting the claim made in the plaint, and they also seek a preliminary decree as prayed for in the plaint. 6. The trial court took oral and documentary evidence Exs.A-1 to A-5 were marked on the side of plaintiff, and Exs.B-1 to B-19 were marked on the side of defendants. Oral evidence consists of deposition of P.Ws.1 to 4 and D.W.1. 7. After evaluating the entire evidence, the trial Court came to the conclusion that Item No. 1 absolutely belonged to Janaki Ammal and that it is not a joint family property, since she is no more, the same has to devolve equally on the sons and daughters, and plaintiff was declared entitled to l/5th share over the same. Item 2 also found to belong to the family in view of the statements in Exs.A-1 and A-2. Exs.A-1 and A-2 are sale deeds executed by Ramachandra Padayachi and his brothers including plaintiff, with regard to admitted family properties. In those sale deeds, Item 2 property was shown as security. There is a statement in those s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocery business, brick kiln business, and agriculture, all cannot be conducted by the same person simultaneously and, therefore, the contention of plaintiff that all the three, brothers were assisting one another in all these businesses, has to be accepted, and consequently, the business will have to be considered as a family business. 10. How far these contentions could be accepted taking into consideration the facts and circumstances of the case, is the only question to be considered in this Appeal. 11. Before drawing any inference, as suggested by learned Counsel for appellant, we have to consider the evidence adduced in this case. When the plaintiff himself has adduced evidence against drawing any such inference, a decision will have to be based, on the evidence adduced, and hot on the basis of alleged presumptions as argued by learned Counsel. 12. The only question that requires consideration in this appeal is, whether the plaintiff is entitled to demand partition in respect of those items which were excluded by the decree of the lower Court from the particle items 13. Before going to the factual position, a few decisions of the Supreme Court and our High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at with its help the property claimed to be joined could have been acquired. Whether the evidence adduced by a party is sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of the fact depending on the nature and extent of the nucleus. An important element for consideration is the income which the nucleus yielded. A family house in the occupation of the members and yielding no income could not be a nucleus out of which acquisitions could be made, even though it might be of considerable value. On the other hand, a running business in which the capital invested comparatively small might conceivably produce substantial income, which may well for the foundation of the subsequent acquisitions. These are not abstract questions of law but questions of fact to be determined on the evidence in the case. The wide proposition that once the ancestral nucleus is proved or admitted the onus on the member to prove that the property acquired was his self-acquisition cannot be accepted as correct. The existence of some nucleus is not the sole criterion to impress the subsequent acq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure and the extent of the nucleus. The important thing to consider is the income which the nucleus yields. A building in the occupation of the members of a family and yielding no income could be made, even though it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small might conceivably produce substantial income, which may well from the foundation of the subsequent acquisitions. These are not abstract questions of law, but questions of fact to be determined on the evidence in the case. In AIR 1947 PC 189= 60 L.W. 412, the nucleus of Rs. 7,220/- included 6/16th share in a rice mill and outstandings of the value of Rs. 3,500/- and as the acquisition in question were made during a period of 16 years it was possible that the joint family income might have contributed therefore. But in the present case, the finding of the Court is that the income from the lands was not sufficient even for the maintenance of the members, and on that, they were right in holding that the plaintiff had not discharged the initial burden which lay on him. But even if we are to accept the contention of the appellant that on proof of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r v. K.V. Ramakrishna Iyer and others), in paragraph 15, their lordships have held thus:- The legal position is well settled that if in fact at the date of acquisition of a particular property the joint family had sufficient nucleus for acquiring it, the property in the name of any member of the joint family should be presumed to be acquired from out of family funds and so to form part of the joint family property, unless the contrary is shown........... 19. In AIR 1969 SC 1076 (Mudigowda Gowdappa Sankh and others v. Ramachandra Revgowda Sankh). Their lordships have held thus:- 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 joint family, 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 que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but what is necessary is that the nucleus must be such as to leave sufficient income therefrom after meeting the expenses as would enable the manager to acquire properties with that. So far as this question is concerned, the only witness examined on behalf of the plaintiff, does not render such useful aid for he is not a member of the family and he could not depose with regard to the actual income from the admitted family properties. On the other hand, D.W.1, has testified to the fact that when Ramappa became the Yajaman the family owned very little properties and there were about 18 members in the house to be fed, guests to be entertained and ceremonies to be performed. He is not able to say whether any income was left after meeting these expenses. The family was getting 100 Mudies of rice when Ramappa died and this information the witness got from his father as well as from the other members of the Mardi family. The learned Subordinate Judge was of the view that when once the ancestral nucleus is admitted, the onus lies on the manager of the joint Hindu family to prove that the properties acquired were his self-acquisitions. This is stating the proposition of law in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is also no evidence in this case forthcoming to show that the properties covered by Exs.A-1 and A-2 have been utilised in any manner for the acquisition of other items. There is no detriment caused to these items till they were sold by all the brothers in 1967. The evidence that was adduced by plaintiff shows that the items covered by Exs.A-1 and A-2 were all along in the possession of lessees. What was the lease amount, and whether the lease amount was paid promptly, who received the lease amount, whether that was sufficient to meet the expenses of the family, and what is the amount required for the maintenance of members of the family? P.W.1 has not spoken to any of these aspects. Merely because an extent of 3 and odd acres belonged to the family, that by itself is not sufficient to hold that all the future acquisitions must have come from out of the income derived from the items covered under Exs.A-1 and A-2. It is not the existence of the nucleus alone that matters. There must have been surplus income for purchasing other properties and the same must be in the hands of the managing member. The lower Court has held that the plaintiff has miserably failed to substantiate the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontributed either financially or by way of labour, for the business, which admittedly stood in the name of Ramachandra Padayachi. 27. The suit was filed only in 1979 Ramachandra Padayachi died in the year 1976. It is admitted by plaintiff himself that the business that stood in the name of Ramachandra Padayachi is controlled and managed by second defendant in the suit, who is the son of Ramachandra Padayachi. Neither plaintiff nor the legal heirs of Ganapathi Padayachi are allowed to participate in the business, which is now exclusively controlled by second defendant. Plaintiff has no case in the plaint that in the business conducted by second defendant, he has any participation, or that he has got any share in the business. That is also an added circumstances which has to be taken into consideration while dealing with the case of the business stated in the plaint. 28. In AIR 1953 Mad 723 - 66 L.W 298 (Venkataramayya v. Venkataramanna), a Division Bench of this Court held that where some funds belonging to the joint family have been made use of to assist a member to start a business, and if the business thrives, it cannot be termed as a family business. Their Lordships he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and A-2 were executed. The sale deeds have also been taken in such a way that it is in a portion of the same survey number. In this case, plaintiff wanted that the property purchased by Ramachandra Padayachi out of the sale proceeds should also be treating as family property. Even they are described as Items 3 and 4. Items 3 and 4 have been purchased under Ex.B-16 on 6.1.1968. When the brother themselves have divided the sale proceeds, there cannot be any scope for treated Ex.B-16, property alone as a family property. The plaintiffs wife has also purchased under Ex.B-17 a property in Survey No. 245/11 having an area of nearly 1 acre 25 cents. He does not want that property to be treated as a joint family property, nor the property purchased by Ganapathy Padayachi under Ex.B.18. Even though in Civil litigations, conduct is not relevant, since we are concerned only with legal rights, I feel that the claim that the property under Ex.B-16 is a family property is without any bona fides and that such a claim has been made only with a view to harass defendants 1 to 9. Items 5 and 6 were purchased under Exs.B-5 and B-6 sale deeds dated 16.10.1981 and 23.11.1966. The purchaser under the de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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