Appeal No 339 of 1966
Appeal by special leave from the judgment and order dated December 12 1962 of the Bombay High Court in First Appeal No 436 of 1967
G L Sanghi and A GRatnaparkhi for the appellants
section T Desai and I N Shroff for the respondents
The Judgment of the Court was delivered by Ramaswami J
This appeal is brought by special leave from the judgment of the Bombay High Court dated 12th December 1962 in First Appeal No 436 of 1958 by which the High Court dismissed the appeal and allowed the cross objections filed by the respondents in the said appeal
247 The relationship of the parties will appear from the following pedigree Neneppa Gowdwppa1
Kashibai ApparayaSidgangawa II 2Sigangawa I died on Widows of Gowdappa 20 12 53 wife of Apparaya time of Apparaya Gangabai Neneppa II Neneppa II Revgowda Subhadra widoed daughter adopted in Sidgangawa baidaug of Gowdappa 1930 died in IIIwife of Reveg ter of Appellant No 1944 owda Respodent No Apparaya 5in 1944 2 Appellant No 3
NeelagangawaMudigowda daughter of alleged to Neneppa II have been Ramchandraadopted Appellant No adopted by to Revegowda by 2
Gowdappa in Sidgangawa III 1948 and became Respodent No the husband of 1
since deceased
Neelagangawa Appellant No1
Goudappa had one daughter by name Gangabai while Apparaya had three children i Nenappa II ii Ravagowda and iii Subhadrabai
In 1930 Nenappa 11 was given in adoption to Goudappa
He had two wives Kashibai and Sidgangawa
Revagowda Married another Sidgangawa
In 1938 Revagowda was murdered
Thereafter Goudappa and Apparaya purported to effect a partition between themselves
At the time of the death of Nenappa 1 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 Rs 12612 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 Rs 1614 
The total area of the ancestral lands was therefore 151 acres and 27 gunthas assessed at Rs 143 Between 1911 and 1940 12 other pieces of lands in both these villages measuring 137 acres and 39 gunthas and assessed at Rs 1810 were acquired in various names
After Nenappa II 248 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 exhibit 161 Goudappa gifted section Nos 61 and 62 of Borgi Budruk and Survey No 45 of Borgi Khurd to defendant No 4 Subhadrabai
By exhibit 162 dated 1st October 1946 Goudappa made a gift of plot survey Nos 62 and 63 of Borgi Khurd and Survey No 113 of Borgi Budruk to defendant No 3 who is the daughter of Nenappa H
On 20th April 1948 by exhibit 159 Apparaya sold survey Nos 77 and 43 to defendant No 3 for a sum of Rs 50001
On the same day by exhibit 160 Goudappa sold survey No 79 for Rs 1000 to Apparaya
Again on 17th May 1948 by exhibit 158 Goudappa made a gift of plot survey Nos 59 and 60 of Borgi Khurd to defendant No 3
By exhibit 117 dated 7th December 1948 Gou dappa by a Vardi transferred survey No 66 of Borgi Khurd to defendant No 6 his widowed daughter
On 15th December 1948 Goudappa gave a portion of plot No 96 to Sidgangawa wife
of Apparava for maintenance
By exhibit 166 dated 25th May 1950 Goudapa and defendant No 1 together sold to defendant No 5 portion of survey No 23 for a sum of Rs 3000 Finally on 19th November 1953 Apparaya executed his last will which is exhibit 168 whereby he bequeathed survey No 79 to defendant No 4 and one house to his daughter defendant No 4
The plaintiff claimed to be the adopted son of Revagouda and brought the present suit on 10th June 1954 challenging the partition deed as fraudulent
He alleged that it was intended to defeat the rights of the widows that it was never acted upon and that the family continued to be joint
The defendants contested the suit on the ground that the partition deed exhibit 157 was a genuine transaction and was acted upon that Apparaya and Goudappa became separate in status and managed their properties separately
The defendants supported all the alienations as being genuine and effective
The trial court came to the conclusion that the 12 pieces of lands which were acquired between 1911 and 1940 formed part of the joint family properties that the partition deed exhibit 157 was not intended to be acted upon but was executed to defeat the rights of the widows
The trial court held that none of the alienations except the sale deed exhibit 159 executed by Apparaya in respect of survey plots Nos 43 and 77 in favour of defendant No 3 was binding on the plaintiff
The trial court accordingly made a decree for partition with appropriate directions
The defendants took the matter in appeal to the High Court
The plaintiff also filed a cross objection with regard to the sale deed exhibit 159
By its judgment dated 12th December 1962 the High Court dismissed the appeal of the defendants and allowed the cross objection of the
plaintiff holding that the sale deed exhibit 159 regarding survey plots Nos 43 and 77 was also not binding upon the plaintiff
249 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 division of the properties Goudappa has been given 101 acres and 39 gunthas while Apparaya has been given 50 acres and 10 gunthas only
The total assessment of lands given to Goudappa is Rs 823 while the assessment of the lands given to Apparaya is Rs 617 
There appears to be no division of the house at all since nothing is mentioned in the partition deed about the house
The unequal division of the lands in the so called partition deed is a strong circumstance which indicates that the transaction was not genuine
It should also be noticed that at the time of the partition deed there were widows of two sons in the family Nenappa the second and Revagouda
At about this time after Nenappa s death the adoption of Nenappa by Goudappa was denied
The scheme of the partition was therefore to deprive the two widows of any claim for maintenance out of the joint family properties but to limit their rights to about 50 acres of land given to Apparaya
There is also evidence that after the partition deed the two brothers continued to be in joint possession of the lands and they lived joint in the same house as before
It appears that the two brothers had a joint mess even after the date of partition
It was contended by Mr Sanghi that therewas no evidence that the two brothers continued to be in joint possession of the lands
But if is not possible to accept this argument as correct
On a perusal of the evidence it is apparent that PWs 1 to 4 all supported the case of the joint possession of the two brothers and their evidence has been believed by both the lower courts
There is another circumstance which strongly lends support of the plaintiff s case on this point
It was at one time supposed that the doctrine of Mitakshara law was that if the last surviving coparcener died and the property passed to his heir such as a widow or a collateral the power of the widow of a predeceased Sup
CI69 17 250 coparcener to
adopt was at an end
Chandra vs Gojarabai and Adivi Suryapnakasarao vs Nidamarty Gangaraju 2
The cases on this point were considered in 1936 by the Full Bench of the Bombay High Court in Balu Sakharam Powar vs Lahoo Sambhaji Tetgura3
It was held in that case that where a coparcenary exists at the date of the adoption the adopted son becomes a member of the coparcenary and takes his share in the joint property 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 Shankar4 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 I 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 latter s death
If therefore there was a coparcenary in existence when the adoptive father then whether it came to an end by the death of the last surviving coparcener or by subsequent partition among the remaining members an adoption validly made by the widow of the deceased coparcener would have the effect of divesting the estate in the hands of the heir to the last surviving coparcener in the first case and of putting an end to the partition in the second case and enabling the adopted son to claim a share in the family properties as if they were still joint
The decision of the Judicial Committee in Anant vs Shankar4 was unexpected and revolutionary in character
It is likely that in view of the fluid and un certain state of the law on this point the two brothers Goudappa and Apparaya decided to execute a bogus deed of partition in order to avoid any legal consequence which may follow if either of the widows should take a son in adoption
We are accordingly of the view that there is proper evidence to support the concurrent finding of the lower courts and there is no reason to disturb that finding
it was also contended on behalf of the appellants that even though the partition deed was bogus there was in law a severance of joint family status and the family could not continue to be joint 1 ILR 3 AIR 1937 Bom
2 ILR 4 ATR 251 after 20th April 1944 which was the date of the partition deed
In other words the argument was that there was a declaration by the coparceners of their intention to separate and that declaration was sufficient to put an end to the joint family
status of the two brothers
In our opinion there is no substance in this argument
It is now well established that an agreement between all the copar ceners is not essential to the disruption of the joint family status but a definite and unambiguous indication of intention by one member to separate himself from the family and to enjoy his share in severalty will amount in law to a division of status
It is immaterial in such a case whether the other members assent or not
Once the decision is unequivocally expressed and clearly intimated to his co sharers the right of the coparcener to obtain and possess the share to which he admittedly is entitled is unimpeach able
But in order to operate as a severance of joint status it is necessary that the expression of intention by the member separating himself from the joint family must be definite and unequivocal
If however the expression of intention is a mere pretence or a sham there is in the eye of law no separation of the joint family status
See for instance the decision of the Judicial Committee in Merla Ramanna vs Chelikani Jagannadha Rao  Ors 1
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 of an adequate nucleus is shown that the onus shifts on to the person who claims the property as self acquisition to affirmatively make out that the property was acquired without any aid from the family estate
In Appalaswami vs Suryanarayanamurti2 Sir John Beaumont observed as follows The Hindu law upon this aspect of the case is well settled
Proof of the existence of a joint family does 1 AIR 1941 PC 48
2 ILR1948Mad 440PC 252 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
See Babubhai Girdharlal vs Ujamlal Hargovandas1 Venkataramayya vs Seshamma2 and Vythianatha vs Varadaraja3
In the present case both the lower courts have found that there was an adequate nucleus of joint family properties from which the acquisitions could have been made
It is admitted that when Nenappa I died the joint family was possessed of 151 acres and 27 gunthas of land assessed at Rs 143
It is further admitted by defendant No 1 that out of the four ancestral lands one land was Bagayat land
Witnesses on behalf of the plaintiff assessed the income between Rs 5000 to Rs 6000 before the first world war
It is also conceded that the family had between 8 to 12 bullocks for the purposes of cultivation and most of the lands were cultivated personally by the family members
Between 1911 and 1940 12 other pieces of lands measuring 137 acres and 39 gunthas assessed at Rs 1810 were acquired in various names
The total price of the sale deeds is Rs 4800 spread over a period of 30 years
In view of this evidence we see no reason to differ from the finding of the lower courts that the income from the nucleus was more than sufficient for the purchase on the different dates
The respondents alleged that these properties belonged to the joint family and unless it is shown by the appellants that Goudappa carried on any other business and that these pro perties were acquired out of that income the appellants must fail
The case of defendant N6
1 was that Goudappa made these acquisitions out of his business
DW 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
DW 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 DW 3 Imamsaheb as worthless
It is manifest that there is no proof that Goudappa had any separate income of his 1 ILR Born708
2 ILR1937 Mad 1012
3 ILR 253 own out of which he could have acquired the 12 pieces of land Me lower courts were thereforeright 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
It was lastly contended on behalf of the appellants that in any case the High Court should not have allowed the cross objection of the respondents with regard to survey plots Nos 43 and 77
Reference was made to paragraph 5 of the plaint in which there was no specific mention of the sale deed executed by Apparaya in favour of defendant No 3 of survey plots Nos 77 and 43
But paragraph 4 should be read along with paragraph 7 of the plaint in which the plaintiff challenged the alienations made in favour of the several parties to the suit and had claimed relief in respect of all the lands mentioned in the schedule to the plaint
Survey plots Nos 77 and 43 are expressly mentioned in the schedule
It is therefore not possible to accept the contention of the appellants that the plaintiff had not challenged the sale deed exhibit 159 with respect to survey plots Nos 77 and 43
The High Court has pointed out that defendant No 3 was a minor at the time of sale that Goudappa had acted as her guardian and that defendant No 3 had no property of her own
The High Court therefore rightly held that the sale must be held to be without consideration and not genuine and was therefore not binding on the plaintiff
For these reasons we hold that the judgment of the Bombay High Court dated 12th December 1962 is correct and this appeal must be dismissed with costs
VPS Appeal dismissed


Summary:
A joint family consisting of two brothers G and A and their wives sons and daughters was possessed of joint family properties
Between the years 1911 and 1940 several other properties were acquired
In 1930 the son of A was taken in adoption by G The adopted son died in 1944 and both the brothers denied the adoption and purported to effect a partition
In the partition deed the lands were unequally divided between the brothers G getting twice as much as A but the brothers continued to be in joint possession of the lands
There was no division of their house at all and the brothers had a joint mess even after the date of partition
After the partition deed was executed the two brothers executed various alienations
The first respondent claiming to be the adopted son of another son of A filed a suit in 1954 after the death of G and A challenging the partition deed as fraudulent that it was never acted upon and was only intended to defeat the rights of two widows in A s family
The appellant  contested the suit and supported all the alienations
The trial court decreed the suit except with respect to one sale deed and the High Court in appeal held in favour of the first respondent even with respect to that item
In appeal to this Court it was contended that  1 The partition deed was not a sham transaction 2 Even if the partition deed was bogus there was in law a severance of joint family status 3 The later acquisitions between the years 1911 and 1940 were not joint family properties but belonged exclusively to G and 4 The High Court should not have reversed the decree of the trial court with respect to the sale deed because it was not challenged in the plaint
HELD  1 The scheme of the partition was to deprive the widows 
in A s family of any claim for maintenance out of the joint family properties but to limit their rights to the smaller share given to A
In view of the state of law before the decision in Anant vs Shankar AIR 1943 PC 196 the two brothers decided to execute a bogus deed of partition in order to avoid any legal consequences which may follow if either of the widows should take a son in adoption
Therefore the deed was not genuine
249 D G 250 F G 246 2In order to operate as a severance of joint status it is necessary that the expression of intention to separate himself by the particular member must be definite and unequivocal
If the expression of the intention is a mere pretence or sham there is in the eye of law no separation of the joint family status
251 C D Merla Ramanna vs Chelikani Jagannadha Rao AIR 1941 PC 48 applied
3There is no presumption that a joint Hindu family because it is joint possesses any joint family property or if there was a nucleus any acquisition made by any member of the joint family is joint family property
It is only after the possession of an adequate nucleus is shown that such a presumption is drawn and the onus shifts on to the person who claims the property as a self acquisition to make out his claim
In the present case the income from the nucleus was more than sufficient for the purchase of the various items acquired later and there was no proof that G had any separate income of his own out of which he could have acquired those items
Therefore the later acquisitions were also joint family properties
251 E G 252 C D E F Appalaswami vs Suryanaravanamurti ILR applied
4The first respondent challenged all the alienations in the plaint and the High Court was right in holding that the sale without consideration and hence was not genuine and was not binding on the first respondent
253 D E