HON’BLE SRI JUSTICE B. PRAKASH RAO & HON’BLE SRI JUSTICE P. DURGA PRASAD L.P.A No.132 of 2001 Date:11.03.2011 Between: Kondadasu Anjaneyulu ….Appellant. And: Kondadasu Nancharaiah and 7 others. …..Respondents. HON’BLE SRI JUSTICE B. PRAKASH RAO & HON’BLE SRI JUSTICE P. DURGA PRASAD L.P.A No.132 of 2001 JUDGMENT: (per Hon’ble Sri Justice P. Durga Prasad) This appeal under Clause 15 of the Letters Patent arises out of the common judgment passed in A.S.No.796 of 1990, A.S.No.1241 of 1990 and C.M.P No.17864 of 1998 in A.S.No.796 of 1990 by the learned Single Judge of this Court on 21.09.1998. The appellant herein is the plaintiff in O.S.No.89 of 1979 and the respondents herein are the defendants in the suit. The appellant-plaintiff has filed the suit for partition of the suit schedule properties into 48 equal shares and for allotment of 9 such share to the plaintiff and for rendering the account of 300 bags of paddy and also of the three crops realized in May, 1978; December, 1978 and May, 1979 from the plaint schedule lands and to render the accounts of the profits of the vegetable commission business carried on in partner ship with the 8th defendant, for ascertainment of future profits until the plaintiff is put in possession of his share in the profits and for interest thereon. The brief averments of the plaint are that the plaintiff and defendants 1 to 4 are the sons; 5th defendant is the wife and defendants 6 and 7 are the daughters of one late Kondadasu Veera Raghavaiah and they constituted Hindu Joint Family. Veera Raghavaiah carried on vegetable commission business until 1965 and after 1965 he has taken the 8th defendant as a partner. The business was the joint family business and the profits were utilized for the purpose of joint family. All the plaint schedule properties belong to the joint family having been acquired out of the funds of joint family business and from other properties which were acquired from time to time with joint family funds. He carried on business under the name and style “Anjaneya Vegetable Merchants and Sons”. After the death of the said Kondadasu Veera Raghavaiah, defendants 2 and 4 have been doing family business. The joint family possessed cash, promissory notes and paddy besides the plaint schedule properties. The plaintiff was entitled for 1/6th shares in the plaint schedule properties himself and also entitled for 1/8th shares out of his father’s 1/6th share. Hence, the suit for partition and for rendering of accounts. The defendants 3 and 8 remained exparte. The defendant No.2 filed a written statement and defendants 1,4 to 7 have adopted the same. The brief averments of the written statement are that the business which was carried on by their father was not joint family business, but it was the business of their father and that the plaint schedule properties were not joint family properties. All the properties standing in the name of their father are acquired with his own exertions. The plaintiff and the 1st defendant were educated and they joined in Government service. Defendants 2 and 4 were under educated and they were taken as partners with specific shares in their father’s wholesale vegetable business. They were also doing retail vegetable business on their own and their father has nothing to with the same. The 2nd defendant acquired Item-III of plaint-B schedule and 2nd defendant along with 4th defendant has acquired Item-VII of plaint-B schedule property and Plaint-A schedule property with their joint money. With regard to Item-VI of plaint-B schedule it is the case of the 2nd defendant that he purchased 0.20 cents out of 34 cents that fell to the share of his paternal uncle and constructed a house. The 2nd defendant has been cultivating the lands of his father and mother as tenant on ‘maktha’ basis. Items 1 and 2 of plaint-B schedule are self-acquired property of their father and plaint-C schedule was the property gifted to their father by his mother. Hence, the plaintiff is not entitled for a share in the business of D.2 and D.4 or the properties purchased by them out of the income derived from their business and the said properties were purchased by defendants 2 and 4 out of their self exertions. All the cattle, carts, agricultural implements, house hold utensils, furniture etc., in the house of this defendant in item-VI of the ‘B’ schedule absolutely belong to this defendant, and whereas all the articles in the portions of late Veeraghavaiah, 3rd defendant and 4th defendant belong to them exclusively as their personal properties. The business that was carried under the name and style of ‘Kodandadasu Veeraghavaiah and sons’ was confined to Veeragahavaiah and defendants 2 and 4 who are also partners in the business along with their father. Some others also were taken into business and the partnership was not given to 8th defendant only but the partner other than Veeraraghavaih defendants 2 and 4 used to vary from time to time. Hence, the admitted properties of late Kondadasu Veera Raghavaiah are to be partitioned according to law and for the remaining extent, the suit is liable to be dismissed. On the above pleadings, the lower court has framed the following issues: 1. Whether the joint family owns the suit properties? 2. Whether D.8 is a partner in vegetable business and if so, is he to account for it? 3. Whether the plaintiff is entitled for any stock of paddy and profits and if so at what rate? 4. Is the family indebted and if so to what extent? 5. What movables are owned by the joint family? 6. To what relief? The plaintiff examined himself as P.W.1 and got marked Exs.A.1 to A.13 on his behalf. The 2nd defendant examined himself as D.W.3 and examined D.Ws.4 to 7 and got marked Exs.B.1 to B.127 on behalf of D.2 to D.4. The 6th defendant himself examined as D.W.8. The 1st defendant examined himself as D.W.1 and 3rd defendant as D.W.2. The lower court by taking into consideration of both oral and documentary evidence held that ‘A’ and ‘C’ schedule properties of Items 1 to 3 and 7 and Western half of Item No.6 and 20 cents of house property out of the Eastern half of the item No.6 of ‘B’ schedule property as the joint family property and Item No.1 to 6, 28, 33, 39, 53 and 55 to 59 of Commissioner Inventory list dated 28.10.1979 are owned by the joint family and thereby decreed the suit partly directing for partition of the above said properties into 48 equal shares and the plaintiff is entitled to 9 shares and directing the 2nd defendant to render account of paddy realized in May, 1978, December, 1978 and May, 1979 in the above said lands; and directing the defendants 2 and 4 to render account of profits of the vegetable commission business, directing the 2nd defendant to pay future profits from the date of the suit till the date of delivery of possession of the immovable properties which are found to be liable for partition. The plaintiff is also entitled to apply for appointment of a Commissioner for accounting the income from the above said 3 crops for accounting the profits from the vegetable commission business and for ascertainment of future profits by a separate application. The suit in other respects is dismissed without costs. Aggrieved by the said decree and judgment, the defendants 2 and 4 have filed A.S.No.796 of 1990 and the defendants 6 and 7 have filed A.S.No.1241 of 1990 before this Court. The learned Single Judge by judgment dated 21.9.1998 partly allowed both the appeals and the judgment and decree of the lower court was modified holding that the plaint ‘A’ schedule property and Items 3 and 7 of the ‘B’ schedule property and 20 cents in the Eastern portion of Item No.6 of the plaint ‘B’ schedule and plaint-‘D’ schedule found at Kurada houses and item-53 are not joint family properties and not liable for partition and the judgment and decree of the court below with regard to remaining items of plaint-B schedule and plaint-C schedules are confirmed. Aggrieved by the said judgment, the present Letter Patent Appeal is filed by the plaintiff in the suit. Now the point that arises for consideration is whether the ‘A’ schedule properties of Items 3 and 7 of the plaint ‘B’ schedule and 20 cents in Eastern portion of Item No.6 of the ‘B’ schedule properties and plaint-D schedule properties found at Kurada house and Item No.53 are joint family properties or not? The learned counsel for the appellants has pleaded that when there is no dispute that late Kondadasu Veera Raghavaiah was doing joint family vegetable business and acquired the properties from out of the income derived from the joint family business and the defendants 2 and 4 have no means to acquire any property of their own except the income derived from the joint family business. As such the above said properties were also acquired by the D.2 and D.4 from out of the joint family income having joint family nucleus as such they are also liable for partition. The learned counsel for the appellants further pleaded that the defendants 2 and 4 have failed to establish that they are the self acquired properties. Therefore, the judgment of the learned Single Judge of this Court is liable to be set aside. The learned counsel for the respondents, on the other hand, has pleaded that the lower court has rightly come to the conclusion that the defendants 2 and 4 are residing separately from 1962 and they are doing their own retail vegetable business and out of the income derived from their business, they acquired the disputed properties and their father never objected them for acquiring the said properties. The respondents’ counsel further pleaded that on the earlier occasion when his father acquired the properties in the name of plaintiff and D.2 when the other brothers objected the same their father has obtained the re-conveyance deed of the said property in his favour and thereafter no properties were acquired in the name from out of the joint family funds, as such the learned Single Judge has rightly come to the conclusion that the disputed properties are the self acquired properties of D.2 and D.4 and they are not liable for partition. There is no dispute between the parties that the plaintiff and D.1 and D.4 are the sons and 5th defendant is wife and D.6 and D.7 are the daughters of late Kondadasu Veera Raghavaiah and they constitute joint family. There is also no dispute that the said late Kondadasu Veera Raghavaiah carried on vegetable commission business till 1965 and after 1965 he has taken 8th defendant as partner of the said business and hence it is a joint family business. According to the appellants, all the suit schedule properties were purchased by their father late Kondadasu Veera Raghavaiah out of the income derived from his joint family business and he carried on the business in the name and style of ‘Anjaneya Vegetable Commission Merchant’s and his father gave shares to D.2 and D.4 in the said vegetable business and out of the said income, the D.2 and D.4 have acquired the properties and as such all the properties are the joint family properties. According to the D.2 and D.4, the business carried on by their father is not a joint family business and it is only a business of their father and the plaintiff and the first defendant was educated and they joined in Government service and as defendants 2 and 4 could continue their shares they were taken as partners with a specific shares in the whole sale vegetable business and thereafter they also started retail vegetable business in which their father has no share or interest and out of the income derived from their business, the 2nd defendant acquired the item-3 of ‘B’ schedule along with the 4th defendant and acquired item No.7 of the ‘B’ schedule properties and ‘A’ schedule properties and with regard to item No.6 of the ‘B’ schedule, the 2nd defendant has pleaded that he has purchased the property out of 34 cents of land which has fell to the share of his paternal uncle and constructed a house. Therefore, it is not a joint family property. The plaintiff and the 1st defendant are educated and they are joined in Government service and the plaintiff was working as Lecturer in P.R. Government College, Kakinada and the first defendant took up Government Service and has been residing at Vijayawada and the defendants 2 and 4 have been assisting their father in his business and also in cultivation in the lands purchased by their father. The defendants 2 and 4 were married in 1960 and after their marriage they shifted their residence to Kurada village, constructed a thatched house at Kurada and started vegetable retail business and also purchased properties in their own names during the life time of late Kondadasu Veera Raghavaiah who died in 1978. The plaintiff examined himself as P.W.1 in support of his case and stated that the business carried on by his father and defendants 2 and 4 is a joint family business. An extent of Ac.5 1/3 cents was their ancestral property and the said property was mortgaged in 1945 by his father, paternal uncle and major sons of Veera Raghavaiah under Ex.A.1 registration extract of mortgage deed, to obtain a loan of Rs.400/- for doing business. The mortgage was later discharged. The said extent of 5 1/3 cents site was exchanged under Ex.A.2 exchanged deed, in 1962 for 68 cents of wet land situate at Kurada. In the said 68 cents of land a house and cattle shed was constructed by his father. Though it is denied by the 2nd defendant that the business was not joint family business, it was, however, admitted in cross-examination that till 1962 Veera Raghavaiah was doing business on behalf of the joint family. P.W.1 in the cross-examination admitted that till 1962 late Kondadasu Veera Raghavaiah doing business on behalf of the joint family but he could not state whether his grant father was also doing vegetable business, but he could not deny the same. Therefore, the family belongs to business community and the wholesale vegetable business done by late Kondadasu Veera Raghavaiah is an ancestral business and it is a joint family business and admittedly their father purchased item Nos.1 and 2 of ‘B’ schedule properties from the income derived from the joint family business and the lower court has rightly held that the said properties are the joint family properties and they are liable for partition. Item No.6 of ‘B’ schedule property is also ancestral property which was obtained after exchange and is also liable for partition between the plaintiff’s father and plaintiff’s paternal uncle. Thus, the plaintiff’s joint family is having only half share in the said extent of 68 cents. According D.2, he has purchased 20 cents of Eastern portion of the item No.6 property from his paternal uncle’s wife and son and therefore, the same is not a joint family property. But the lower court has decreed for partition of the entire property in item No.6 including 20 cents of the Eastern portion of the item No.6 which is said to have been purchased by the 2nd defendant. P.W.1 in the plaint has sought for the partition of the entire 68 cents of the item No.6 of ‘B’ schedule property. In the cross- examination he admitted that in 68 cents which was obtained under exchange as per Ex.A.2, his father’s branch has got half share and his uncle’s branch has got half share. But he denied that in the year 1963 his uncle’s wife and herself as guardian of her minor son on one hand and his father on the other hand partitioned the said 68 cents and that his father got Western 0.34 cents in that partition. But he admitted that his uncle’s branch has to get half share in the said 68 cents and admitted that he intended to give his uncle’s branch share to them during the partition between him and his brothers, the persons belonging to his uncles branch were not added as parties to the suit. He instructed his advocate that the said item is joint to them and to their uncle’s branch and that they are entitled to half share in that land. Therefore, as admitted by the P.W.1 out of 68 cents of item No.6, the plaintiff’s uncle’s branch has got half share and they have got half share and as rightly pointed out by D.2 and D.4 in the partition in the year 1968 under Ex.B.54, the Western half i.e., 34 cents fell to the share of the plaintiff’s father and Eastern half share i.e., 34 cents fell to the share of their paternal uncle’s son represented by his mother Raja Ratnam. According D.2, he has purchased 20 cents on the side of Eastern portion of Item No.6 under Exs.B.55 and 56. Therefore, the said 20 cents in the eastern side of the item B.6 property cannot be termed as joint family property. The contention of the learned counsel for the appellants that the defendants 2 and 4 have no independent income of their own and whatever property that was purchased by them was out of the income of the joint family wholesale vegetable business, as such they are to be treated as joint family properties. The learned counsel for the respondent has pleaded that there is no presumption that the properties held by a coparcener of the joint family are the joint family properties and the person who is claiming the same as joint family properties has to establish that the said properties were having joint family nucleus and then the burden shifts on the persons who is claiming the same as self acquired property to establish the same. The respondent’s counsel in support of his contention has relied upon a decision rendered in Modadugu Venkata Subbamma v. Kanamarlapudi Rattaiah[1] wherein the Single Judge of this Court by relying upon various decisions of Apex Court and other High Courts has observed: A Hindu family unless contrary is proved to be joint family. Nevertheless there can never be a presumption that Hindu Joint family. Nevertheless, there can never be a presumption that Hindu joint family at all times owns and possesses joint property nor can it be said that the property in the hands of members is joint family property liable for partition. This principle is equally applicable when applied to the business carried on by a member of the joint family. A member of a joint undivided family can make separate acquisition of property for his own benefit and, unless it can be shown that the business grew from joint family property or that the earnings were blended with joint family estate they remain free and separate. The question whether a business carried on by a member of a joint Hindu family was begun or carried on with the assistance of joint family property is a question of fact upon which the burden of proof lies upon the plaintiff who claims a share in the business.” The respondent’s counsel also relied upon a decision rendered i n K.L.S.V.E. Annamalai Chetty v. K.L.S.V.E. Subramaniam Chetty and others[2] wherein the Priviy Council held: “Hindu Law Joint Family Coparcener can have self acquisitions. They are separated property unless arising from family business or blended with family estate. A member of a joint undivided family can make separate acquisition of property for his own benefit, and unless it can be shown that the business grew from joint family property, or that the earnings were blended with joint family estate, they remain free and separate.” It was further held: “The burden of proving in an action for partition of joint family property that any particular item of property is joint, primarily rests upon the plaintiff. Circumstances no doubt may readily cause the onus to be discharged, but where this has not been done and in the face of direct evidence accepted by the High Court, Privy Council is not at liberty to speculate as to alternative possibilities.” The respondent’s counsel has relied upon another decision rendered in Appalaswamy v. Suryanarayanamurti and others[3] wherein the Privy Council held: “Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon any one asserting that any item of property is 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.” Therefore, in view of the above said decisions, the burden is on the plaintiff to establish that the disputed properties acquired with the earnings from the joint family and having joint family nucleus and then only burden shifts to defendants 2 and 4 to establish that it is their self acquired property. Therefore, it has to be examined now whether the disputed properties are the joint family properties having joint nucleus. The main contention of the learned counsel for the appellants is that the joint family is having a joint family wholesale vegetable business in which D.2 and D.4 are also partners and any property acquired by them is only from the income derived from the joint family and as such the disputed property is also joint family property. The learned counsel for the respondents, on the other hand has pleaded that even though the defendants 2 and 4 are the partners in the joint family business they are also doing retail vegetable business at Kurada and living separately from the joint family and they acquired the disputed property with their own earnings and as such it cannot be treated as joint family property. The trial court held in favour of the plaintiff holding that all the disputed properties were purchased by D.2 and D.4 out of the earnings from the joint family as they have no other earnings of their own. But the learned Single Judge has observed that the D.2 and D.4 started living from 1962 separately at Kurada and D.2 has started the retail business in vegetable business and thereafter D.4 joined him and they jointly did the retail business and out of the income derived from the said business they acquired the properties and therefore, the disputed properties are not the joint family properties. The learned Single Judge also observed that in the year 1962 D.2 and D.4 were got married and shifted their family to Kurada and started their retail business in vegetables. They have acquired the properties in the year 1973, 1974 and 1976 with the income derived from their own business. D.2 as D.W.3 has categorically stated that he started business separately in Kurada in retail vegetable business and D.W.4 joined him and out of their monies they acquired the properties under Exs.B.98,97 and 94 i.e., in the year 1974, 1973 and 1976 and also the property i.e., 20 cents in item No.6 of the ‘B’ schedule property. To establish their independent business in retail vegetable business he produced a license for doing their vegetable business which is marked as Ex.B.20 and the same stands in the name of 2nd defendant and Exs.B.22, 29 shows that the 2nd defendant paid the rent to the Gram Panchayat from 1971 to 1978 for the site on which they are doing vegetable business. Exs.B.30 and 31 are the rent receipts for the said shops. Ex.B.49 is the license for wholesale vegetable business and Ex.B.50 is the demand notice issued to them for