1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 532 OF 1990 Shri Ramchandra M. Kolte (since deceased through Lrs.) ... Appellants v/s Laxman Mahadeo Kolte & ors. ... Respondents Mr.G.R.Rege i/by Mrs.S.A.Mudbidri for appellants. Mr.A.Y.Sakhare i/byM/s.YKS Legal for Resp. No.1. CORAM: SMT.NISHITA MHATRE, J. DATED: 18TH AUGUST, 2009 ORAL JUDGMENT: 1. The second appeal raises the following substantial questions of law:- (i) Whether it can be presumed that the property is joint family property when the plaintiff had asserted that he had acquired property under a registered sale deed from his father since the property was the self-acquired 2 property of his father ? (ii) Whether there can be a presumption that the property is joint family property only on account of the existence of a joint Hindu family ? 2. The facts in this case, in brief, are as follows:- A suit was filed by the plaintiff, the appellant herein, against the defendants for perpetual injunction restraining the defendants from disturbing his possession over certain lands situated at Village Bhadwan, Taluka Ajara, Dist. Kolhapur. The plaintiff asserted that these lands were self-acquired lands of his deceased father Mahadev Narsu Kolte. The defendants are the brothers of the plaintiff. According to the plaintiff, the father had partitioned the ancestral property during his life time, retaining 3 lands being Gat Nos.1175, 1176 and 1182 with him. According to the plaintiff, these lands were being cultivated by his father during his life time. The plaintiff further contended that he had been 3 bequeathed these properties by his father under the registered will dated 4.11.1974. In these circumstances the plaintiff sought a perpetual injunction from the defendants from obstructing his possession of the suit lands. 3. The defendants contested the suit and claimed that the suit properties were a part of the joint family property and not the self-acquired property of their father, Mahadev. The defendants contended that Mahadev did not have sufficient means to purchase the properties from the income derived from his service in the Forest Department. The defendants therefore contended that they were entitled to a share in the suit properties since they were acquired from the nucleus of all the joint family properties. 4. The Trial Court after considering the evidence on record has decreed the suit. It was held that the plaintiff had proved that his father had executed a will on 15.4.1974 and that the will was valid. It was further held that the suit lands were self-acquired properties of Mahadev and, therefore, the plaintiff was the exclusive owner of the 4 suit lands under the will. The Trial Court, therefore, while decreeing the suit restrained the defendants permanently from disturbing the plaintiff’s peaceful possession of the suit lands. 5. Being aggrieved by the decision of the Trial Court, the defendants preferred an appeal before the Additional District Judge, Kolhapur. That appeal was allowed and the judgment and decree of the Trial Court was set aside. The appellate Court reversed the findings of the Trial Court on the question of the property being the self-acquired property of Mahadev. 6. Taking exception to the judgment and order of the appellate Court, the present second appeal has been preferred by the plaintiff. 7. Mr.Rege, the learned advocate appearing for the plaintiff submits that the appellate Court has erroneously cast the burden on the plaintiff to prove that the property in question was not joint family property. He submits, by relying on the judgment in the case of D.S.Laxshmaiah & anr. v/s L. Balasubramanyam & anr., reported in A.I.R. 2003 SC 5 3800, that the appellate Court has ignored the well settled legal principles that there can be no presumption of a property being a joint family property. He points out that there was adequate evidence on record which had been considered by the Trial Court to conclude that the property was self- acquired property of the plaintiff’s father and that he had willed it to the plaintiff. The learned counsel also points out the judgment in the case of C.V.Vythianatha Iyer v/s C.V.Varadaraja Iyer & ors., reported in A.I.R. 1938 Madras 841, which lays down that there can be no presumption that a property is joint family property merely because there exists a nucleus of ancestral property. The learned counsel then relies on the judgment in the case of Hero Vinoth (minor) v/s Seshammal, reported in A.I.R. 2006 SC 2234, to point out that the present appeal raises a substantial question of law as the appellate Court has ignored a well settled proposition of law by casting the burden of proof on the plaintiff that the property was not joint family property. 8. On the other hand, Mr.Sakhare, learned counsel for the defendants submits that the appellate Court has, by a well reasoned order, found that the Trial 6 Court judgment is erroneous and, therefore, this Court need not interfere with the Appellate Court’s order. He further submits that no substantial question of law arises in the present case requiring this Court to consider the same. The learned counsel further points out that the plaintiff has asserted in his plaint that the suit lands were a part of the self-acquired property of his father and therefore it was for the plaintiff to prove this fact by leading cogent evidence in that behalf. The learned counsel then submits that the Trial Court had erroneously laid the responsibility on the defendants to prove that it was joint family property and, therefore, would not be the self- acquired property of Mahadev. This assumption made by the Trial Court has been corrected by the appellate Court, according to the learned advocate. He points out that the evidence on record indicated sufficiently that Mahadev did not have sufficient means to acquire the property and it was only on the basis of the income generated from the joint family property that he had acquired the suit lands. In such a situation, submits the learned advocate for the respondents that, the suit lands must be considered to be joint family property as it was 7 acquired from the nucleus of the joint family property. 9. With the assistance of the learned counsel for the parties, I have perused the documents on record and the evidence. The question which will have to be addressed is: Whether if the plaintiff seeks a perpetual injunction on the ground that he is the owner of the suit lands, having acquired them under a will, would it be necessary for him to prove that the suit lands are the self-acquired properties of the testator or would it be the responsibility of the defendants to prove their case that these were joint family properties ? 10. A few facts need to be borne in mind in the present case. There is no dispute that the father of Mahadev was employed with the Forest Department. He was earning his salary from that department, out of which he met his household expenses as seen from the evidence on record. It has also been proved that the joint family properties were partitioned earlier and some properties came to the share of Mahadev. He then generated income from these properties to acquire the properties which are the suit lands. 8 These suit lands were bequeathed by Mahadev to his son, the plaintiff. The will has been proved as the attesting witness has also been examined. Thus the plaintiff had discharged the initial burden of proving that the property was the self-acquired property of his father. The onus would then shift to the defendants who asserted that the suit property was a part of the Joint Hindu Family property. 11. The judgment in the case of D.S.Laxshmaiah & anr. (supra), was in respect of a partition suit. The Supreme Court considered a case where the plaintiff had filed the suit for declaration of his share of the joint family property and the partition thereof. The defendants in that case contend that these were self-acquired properties and did not form a part of joint family properties. Considering the evidence on record, the Supreme Court held that the plaintiff had failed to discharge the initial burden of establishing that there was any nucleus in the form of any income from the property which has generated the suit property. The Supreme Court held that the suit property was not joint family property because there was no evidence on record to indicate that the property which fell into the common stock 9 yielded an income sufficient for the purchase of the suit property. While so holding, the Supreme Court has observed in para 18 thus - “18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.” 12. Therefore, it is trite that there can be no presumption that a property is joint family property and it would be for the person who asserts the existence of a joint family property to prove the same. In the present case, even if the submission of Mr.Sakhare that it was for the plaintiff to establish that the property is self-acquired is accepted, in my opinion, the plaintiff has discharged that burden and the onus then shifted to the defendants. The defendants have not proved that the suit property was joint family property. 13. In the case of C.V.Vythianatha (supra), it has been held that, the mere failure of a member to keep 10 separate accounts of his earning will not raise a presumption in favour of blending of self-acquired properties with joint family properties. The fact that the ancestral lands in this case had already been partitioned, has been accepted by the Appellate Court. The plaintiff’s father Mahadev had retained certain lands as his share. These lands constituted a sufficient nucleus from which he could acquire other lands which formed part of his self-acquired property. Merely because the suit lands were acquired from Mahadev’s share of the partitioned property, it cannot be said that the suit lands were also joint family properties or that they formed a part of the common stock of properties. 14. In these circumstances, in my opinion, the Appellate Court has erred in reversing the findings of the Trial Court. 15. The appeal is, therefore, allowed and the decree passed by the Trial Court is confirmed. No costs. ..... 11