1 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.947 OF 2004 SECOND APPEAL NO.947 OF 2004 SECOND APPEAL NO.947 OF 2004 WITH WITH WITH CIVIL APPLICATION NO.391 OF 2008 CIVIL APPLICATION NO.391 OF 2008 CIVIL APPLICATION NO.391 OF 2008 Victor Anton Pinto .. Appellant V/s. Alexander Anton Pinto & Ors. .. Respondents Mr.Anil Singh i/b.Mr.D.R.Shah for the Appellant. Mrs.Shakuntala Joshi for the Respondent No.1. CORAM : R.M. SAVANT, J. CORAM : R.M. SAVANT, J. CORAM : R.M. SAVANT, J. DATE : JULY 8TH, 2008. DATE : JULY 8TH, 2008. DATE : JULY 8TH, 2008. P.C. P.C. P.C. . This appeal arises out of the Judgment and decree 25th February, 2004 passed by the learned District Judge, Sindhudurga, The Appellant is the Original Defendant No.2, the Respondent No.1 herein is the Original Plaintiff who had filed Regular Civil Suit No. 116 of 2002 claiming 1/3rd share in the property bearing House No.266 and House No.367. In so far as the House No.266 is concerned, the Defendants accepted that the suit House No.266 is a joint family property. However, in so far as House No.367 is concerned, it was 2 the case of the Defendant No.2 that the house constructed has been purchased out of the funds of the Defendant No.2 which he used to remit to his mother the Defendant No.2. The Trial Court decreed the suit on the basis of the evidence before it and came to the conclusion, the fact that the said house No.367 was constructed out of the funds given by the Defendant No.2, was not proved. The Trial Court thereafter held that the Plaintiff was entitled to 1/3rd share. The finding of fact arrived by the Trial Court was on the basis of the conduct of the parties and also on the basis that the property i.e. the said house No.367 stood in the name of the mother. 2. The Defendant No.2 carried the matter by way of Appeal by filing Regular Civil Appeal No.116 of 2006. The learned District Judge, Sindhudurg-Oros confirmed the finding of the Trial Court and came to the conclusion that on the basis of the evidence on record it could not be said that the Defendant No.2 had contributed an amount of Rs.6,00,000/- which is the cost of the House No.367. The Appellate Court also observed that the conduct of the Defendant No.2 in not getting the property mutated in his name, was a factor to be taken into consideration. The Appellate Court 3 therefore confirmed the finding of the Trial Court. 3. The learned counsel for the Appellant relied upon the Judgment of the Apex Court in case of D.S.Kakshmaiah & Anr. V/s.L.Balsubramanyam & Anr., D.S.Kakshmaiah & Anr. V/s.L.Balsubramanyam & Anr., D.S.Kakshmaiah & Anr. V/s.L.Balsubramanyam & Anr., (2003) 10 Supreme Court Cases 310, (2003) 10 Supreme Court Cases 310, (2003) 10 Supreme Court Cases 310, wherein it is held that the property cannot be presumed to be joint family property merely because of existence of a joint family, burden to prove the property to be joint lies on the person who asserts so. However, in the instant case, as indicated above, the Court below on the opinion and on the basis of the material that was before them had came to the conclusion that the case of the Defendant No.2 that the said house property i.e. House No.367 was constructed out of the funds given by him, could not be accepted. The only conclusion thereafter was that the said property was constructed out of the family funds. In my view, therefore, the reliance on the said Judgments in the facts of the instant case is misplaces. 4. The Courts below have recorded findings of facts. The challenge in the Appeal does not raise any substantial question of law. 4 5. The Second Appeal is, accordingly, dismissed. 6. In view of the dismissal of the Second Appeal, the Civil Application No. 391 of 2008 does not survive and is disposed of as such. (R.M. SAVANT, J.) (R.M. SAVANT, J.) (R.M. SAVANT, J.)