ivil Appeal No 3704 of 1989
From the Judgment and Order dated 1131987 of the Bombay High Court in Second Appeal No 725 of 1980
437 UR Lalit GA Shah VN Ganpule for the Appellants
DA Dave R Karanjawala Ms M Karanjawala and Jatin der Sethi for the Respondents
The Judgment of the Court was delivered by SAWANTJ
This is a case where the High Court in second appeal has interfered with a pure finding of fact recorded by the First Appellate Court for no worthwhile reason and ignoring the mandatory provisions of Section 100 of the Civil Procedure Code
The only question which was involved in the suit was whether the suit properties in which the plaintiff claimed one fifth share were the ancestral joint family properties or whether they were the self acquired properties of his father Ramchandra
The relevant facts are defendant No 1 Ramchandra had four sons including the plaintiff and a daughter
The three other sons and the daughter are defend ants Nos 2 to 5
One of the sons defendant No 3 appears to support the plaintiff
During the pendency of the suit Ramchandra died and his sons including the plaintiff have been brought on record as his heirs and legal representa tives
The suit properties consisted of lands being i Survey No 211 admeasuring 14 acres 3 gunthas ii Survey No 202 admeasuring 2 acres 36 gunthas iii Survey No 201 admeasuring 3 acres 30 gunthas and two houses all situated at Nizampur Taluka Saaki District Dhuiia
It was the case of the plaintiff in his plaint that a joint family consisting of his father Ramchandra and his brother Supadu owned several houses and a land comprised in Survey No 71 admeasuring about 14 acres
In the partition between Ram chandra and Supadu two houses and Survey No 71 came to the share of Ramchandra The said two houses are included in the suit properties and it is not disputed on behalf of the respondent defendants that they are ancestral properties and the plaintiff has one fifth share in the same
However the case of the plaintiff that Survey No 71 was the ancestral property was vehemently disputed and that has been the sheet anchor of contention of both the parties while the plaintiff claims that rest of the suit properties were purchased by Ramchandra out of the income and subsequently the sale proceeds of the said land since admittedly the said land was sold by Ramchandra in 1953 it is the case of the defendants that the said land was in fact purchased jointly by Ramchandra and his brother Supadu out of their own earnings and in the partition between Ramchandra and Supadu that land came to the share of Ramchandra
Hence according to the defendants even 438 assuming that the rest of the suit properties were purchased with the help of the income from Survey No 71 they were the self acquired properties of Ramchandra
In support of his case that Survey No 71 was the ancestral property the plaintiff relied upon the fact that the said survey No had come to the share
of Ramchandra in a general partition between him and his brother Supadu in 1918
As against this the defendants contended that Ram chandra s father Pandu died in 1904 and since the property all along stood in the name of Supadu it showed that it was purchased after Pandu s death in 1904
They also relied upon the fact that Ramchandra was a skilled goldsmith and was well known for his artisanship and commanded good business
His brother was also a goldsmith and both of them had pur chased the said land with the earning in goldsmithery
It was also their case that Ramchandra s father Pandu had only two houses and no other property nor did he carry on any business even of goldsmithery
Hence there was no question of purchasing Survey No 71 out of the income from the ancestral property by Ramchandra and Supadu and the purchase was with the help of the income which they had earned from the business which they were carrying on by their own skill
It was also shown by the defendants that when Survey No 71 was sold in 1953 no objection whatsoever was taken to the sale nor permission of any of the sons including that of the plaintiff was deemed necessary for the same
They further contended that they had hardly any income from Survey No 71 and the properties which were purchased prior to 1953 could not have been purchased with the help of any such income assuming that it was an ancestral land
According to them therefore the suit properties were purchased only from the income from the business of goldsmithery
The three of the properties were purchased prior to 1953 while the rest were purchased long after 1953 ie in 1961 1965 and 1967
Hence their purchase had no relation to the sale of Survey No 71 in 1953 again assuming that it was an ancestral property
It is for these reasons according to them that the suit properties except the two houses which were admit tedly the ancestral properties were not the joint family properties in which the plaintiff could claim his share
The relevant issues were framed including the issue as to whether defendants proved that the suit properties were self acquired and plaintiff had no share in it
The Trial Court answered the said issue in favour of the plain tiff and decreed the suit against the defendants
Against the said decision the defendants appealed and the First 439 Appellate Court after reappreciating the evidence and point ing out the infirmities in the conclusions arrived at by the Trial Court dismissed the suit except to the extent of the plaintiff s share in the two ancestral houses
It may be mentioned here that although Ramchandra defendant No 1 died during the pendency of the suit he had willed out his properties in favour of the defendants and therefore the plaintiff had no share in the self acquired properties of Ramchandra which could have been granted to him otherwise
The First Appellate Court held that the following circumstances showed that the suit properties except the ancestral houses were the self acquired properties of Ram chandra
The first circumstance was that Survey No 71 was purchased in the name of Supadu which showed that in all probability the property was purchased after the death of Ramchandra s father Pandu
Secondly since there was no record to show that Pandu had any lands or was carrying on any business Survey No 71 must have been purchased by Ramchandra and Supadu with the help of their earnings
It was not disputed and in fact it was admitted that Ramchandra was a skilled goldsmith and was carrying on business of goldsmithery along with his brother Supadu and was earning sufficient income with the help of which he could purchase the properties
Survey No 71 further was sold in 1953 without obtaining the consent of the other members of the family
Had it been the joint family property the vendee would have insisted upon such consent
The High Court interfered with these findings on grounds which were not even made out by the plaintiff either in the plaint or in his evidence and which were contrary to the admissions of the plaintiff himself
The High Court held that since the property had come to the share of Ramchandra in general partition it must be held that it was an ances tral property
The High Court further held that Survey No 71 was yielding sufficient income with the help of which the other properties would have been purchased and further the goldsmithery business was an ancestral business and there fore the properties purchased with the help of such income should also be held to be joint family properties
It may be stated here that the learned counsel appearing for the appellant defendants wanted to produce before us documents to show that in fact Survey No 71 was purchased in the year 1907 by Ramchandra and his brother Supadu after the death of their father Pandu in 1904 and that in the Revenue records the property always 440 stood in the name of Supadu
We did not permit him to pro duce the said documents since no explanation whatsoever was available as to why the documents were not produced before the courts below
However it was not disputed at any time that the property had all along stood in the name of Supadu and therefore the presumption drawn by the First Appellate Court that this showed that in all probability the property was purchased after the death of Pandu cannot be said to be unreasonable
Secondly there is no evidence brought on record by the plaintiff with regard to the quantum of income from Survey No 71
In fact the uncontroverted evidence on record shows that Ramchandra who had entered the witness box had no implements and bullocks for cultivating the land and the land was always cultivated with the help of the labour ers who brought their own implements and bullocks
This shows that the family derived less than normal income from the said land
Secondly it was admitted by the plaintiff that Ramchandra was a skilled goldsmith and was well known in the locality as such and was doing his business as goldsmith and earning sufficient income
It was not his case further that the goldsmithery was the ancestral business
However the High Court ignoring the fact that it was not the case of the plaintiff that goldsmithery was an ancestral business and that it was not his case that the suit proper ties were purchased with the help of the income from the said business held that it was so
What is further the plaintiff s case was that the suit properties were purchased with the income from Survey No 71
Thus it is obvious that the conclusions  which were arrived at by the first Appel late Court were reasonable and legal besides being conclu sions of facts
There was therefore no question of law involved in the second appeal
Yet the High Court chose to interfere with the finding ignoring the mandatory provisions of Section 100 of the Civil Procedure Code that unless it was satisfied that the case involved a substantial question of law it could not entertain it and that before it could entertain it the Court had to formulate such question
We are therefore more than satisfied that the High COurt has erred in law in interfering with the decree passed by the First Appellate Court
We therefore allow the appeal set aside the decision of the High Court and restore the decree passed by the First Appellate Court
Since the parties belong to one family we pass no order as to costs
GN Appeal al lowed


Summary:
The petitioner was carrying on business as a stockist of Baba Brand Tobacco
The petitioner s husband who was a sub dealer of the product was living with her at all mate rial times
A search under section 132 of the Income Tax Act was conducted at their house and valuables and books of account seized
A notice under rule 112A of the Income Tax Rules read with sub section 5 of section 132 of the Act was served on the petitioner
The petitioner filed an application in the High Court under Article 226 of the Constitution claiming return of account books and other valuables to her
On the other hand in the proceedings under Section 1325 of the Act against the petitioner s husband he had claimed that the ornaments belonged to him and that the same could be treated as representing his undisclosed income
The High Court came to the conclusion that the authori sation for search under section 1321 of the Act against the petitioner was not in accordance with law and there fore the seizure of the assets could not be said to have been in accordance with law
The High Court however noted that in view of the order made under section 1325 of the Act against the husband the valuables could not be ordered to be returned to the petitioner
Before this Court it was contended on behalf of the petitioner that if search and seizure were illegal the items of jewellery were liable to be returned On behalf of the Revenue it was contended that in a situation where there was a dispute as to who was the owner of the jewellery and ornaments the decision of the High Court declining to direct their return to the petitioner could not be faulted
394 Dismissing the special leave petition the Court HELD 1 A dispute as to the ownership of jewellery in question cannot be resolved in proceedings under Article 226 of the Constitution in the manner sought for by the peti tioner
397F 2 In the instant controversy the Court is not con cerned whether the proceedings against the husband under section 1325 of the Act are valid or not but irrespective of the validity of the proceedings the evidence or testimo ny wherein the husband has asserted the ornaments and jewel lery to be his cannot be wiped out and does not become non existent
The aforesaid being the factual matrix the High Court was pre eminently justified in declining to direct return of these items of jewellery and other items to the wife
If that is the position then it cannot be said that the High Court has committed any error in law which required rectification by this Court under Article 136 of the Constitution
397E G Assainer  Anr
vs Income Tax Officer Calicut  JR Malhotra  Anr
vs Additional Sessions Judge Jullunder  and Commissioner of Commercial Taxes Board of Revenue Madras vs Ramkishnan Shrikishan Jhaver   distinguished