1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO.238 OF 2000. Kashinath S/o Sidappa Chaudhari Age : 71 years, Occ : Business & Agri., R/o Khanga Galli, Shivaji Road, Udgir, Tq. Udgir, Dist. Latur. APPELLANT VERSUS 1. Rajendra S/o Sidappa Chaudhari Age : 49 years, Occ : Govt. Service, R/o Shivaji Road, Udgir, Tq. Udgir, Dist. Latur, Previously resident at Latur). 2. Vishwanath S/o Sidappa Chaudhari Age : 65 years, Occ : Agri., R/o Shivaji Road, Udgir, Tq. Udgir, Dist. Latur. RESPONDENTS ----------------------------------------------------------- Mr.R. R. Mantri, Advocate for the appellant. Mr.Chandole, Advocate for Respondent no.1. ----------------------------------------------------------- (CORAM : R.K. DESHPANDE, J.) Date of Judgment Reserved 6th October, 2009. Date of Judgment Pronouncement 15th October,2009. ----------------------------- ORAL JUDGMENT : This second appeal is by the original defendant challenging the judgment and order dated 29.03.2000 passed in Regular Civil appeal No.51/1993 by which, the learned IIIrd Additional District Judge, Latur allowed the appeal and set aside the judgment and decree dated 08.08.1991 2 passed in Regular Civil Suit No.91/1985 by the learned Civil Judge, Junior Division, Udgir and it has been held that the plaintiff and defendant nos.1 and 2 shall have each 1/3rd share in the entire suit properties. The order further directs that the partition of the agricultural land shall be made by the Collector, Latur or any gazetted subordinate of the Collector, deputed by him in this behalf, in accordance with law for the time being in force, relating to partition. The Trial Court had partly decreed the suit for partition and separate possession in respect of the house property only and had dismissed the suit for partition of agricultural land, which is survey no.180 admeasuring 35 Acres and 30 Gunthas. Hence, the defendnat no.1 is in this appeal. The parties to this appeal shall be referred to, per as their original status as `plaintiff’ and `defendants’. 2. The facts leading to the case are as under :- The plaintiff and the defendant nos.2 and 3 are the real brothers and the plaintiff filed suit for partition and separate possession of house property as well as the agricultural land which is survey no.180 admeasuring 35 Acres and 30 Gunthas. The plaintiff alleged that the suit properties are all ancestral properties in which he 3 has 1/3rd share. As against this, the case of the defendant no.1 was that the suit properties were his self acquired properties. It was alleged that the partition of the property was effected in the year 1974 itself and each of brothers got the separate share in the suit house and hence, the question of partition of suit house does not arise. The defendant no.1 further claimed that the land survey no.180 was purchased by him with his own funds vide sale deed dated 26th August, 1975 and thus it was his self acquired property. 3. The Trial Court recorded the finding that the defendants have failed to prove that the suit house was partitioned in the year 1974 as alleged by the defendants. The Trial Court further recorded a finding that the defendant has proved that the land survey no.180 was his self acquired property. With this finding, the Trial Court decreed the suit only in respect of the partition of house property granting 1/3rd share to plaintiff. 4. In Appeal, preferred by the defendants, the Appellate Court maintained the finding of the Trial Court regarding partition of the house property and in addition to it reversed the finding of the Trial Court in respect of agricultural land i.e. survey no.180 and it was held that 4 the same was also ancestral property and granted 1/3rd share in the said property to the plaintiff. Thus the defendants are in appeal. 5. This Court admitted the instant Second Appeal on 29.06.2009 and framed the following substantial question of law:- “When there is no nucleus with the family and the plaintiff comes with the case that the property is acquired from the joint funds, whether it is proper to place the burden of self-acquisition on defendant in the absence of expecting a proof from plaintiff that the property joint acquisition ?” 6. At very outset, Shri. Mantri, the learned Counsel appearing for the appellant has stated that the decree passed by the Trial Court in respect of the house property and maintained by the Appellate Court is not being challenged and it is only the decree passed in appeal in respect of survey no.180 admeasuring 35 Acres 30 Gunthas is being challenged. Thus the arguments are restricted in this appeal only to the question of partition and separate possession of the agricultural land survey no.180. 5 7. It is not in dispute that the parties to the suit are real brothers. The plaintiff has alleged in his plaint that the defendant no.1 is the eldest brother and karta of the family. The plaintiff has alleged that the plaintiff and defendants owned and possessed the agricultural land and houses at Udigr proper jointly, which are prescribed in plaint. It is alleged that the land survey no.180 is purchased out of the family funds in the year 1975 in the name of the defendant no.1 through registered sale deed dated 26.08.1975 bearing no.3146 of Sub-Registrar’s office, Udgir. It is further alleged that the parties are Teli by caste and they do the business of crushing oil seeds and sale of oil and oil cakes and after purchase of land, they have adopted agriculture also. It is alleged that the plaintiff is in service since last 20 years in the co- operative department and has contributed about Rs.10,000/- to the family funds during his service for family business and purchase of land. It is further alleged that the net income from the land and family business is about Rs. 5,000/- p.a. and defendants have not paid the plaintiff his share in cash or any kind during last four year. The plaintiff therefore claimed 1/3rd share in the house property as well as in agricultural land along with the possession of the said share. 6 8. The defendant nos.1 and 2 filed their written statement and took up a stand that the partition of the house property had already taken place and the agricultural land survey no.180 admeasuring 14H and 47 R was purchased by the defendant no.1 alone exclusively with his own funds and that it was not purchased from the joint family funds as alleged in the plaint. It is further stated that this self acquired property of the defendant no.1 was never blended with the joint family property or its fund. The defendant no.1 further stated that the plaintiff has never done business of crushing of oil seeds or sale of oil or oil cake and has not contributed to the purchase of land. 9. The plaintiff examined himself and stated that his family used to earn Rs.5,000/- p.a. from the family business and he got the employment in the year 1963 and initially, he was getting gross salary of Rs.235/- per month and thereafter in the year 1974, Rs.1,200/- per month. He stated that he has spent an amount of Rs.10,000/- for family expenses. He further stated that the sale deed was executed in favour of the defendant no.1. He has further stated that the sale deed was not executed in his capacity as Manager of the joint family or for the benefit of the joint family. He further stated that there is no 7 other ancestral property except the house. In cross examination, he stated that the family used to earn Rs. 5,000/- p.a. is not correct. 10. The defendant no.1 examined himself and has stated that our ancestral business is oil spilling and sale of oil. He further stated that his father expired, when he was five years of age and was eldest amongst the brothers. He has further stated that he himself and the defendant no. 2 were looking after the oil business and the plaintiff never looked after the said business. He stated that the land survey no.180 was purchased by him for consideration of Rs.20,000/-, out of which Rs.8,500/- were initially paid and Rs.11,500/- were paid at the time of execution of sale deed. He further stated that he was having Rs.8,000/- with him and he borrowed some amount from one Prabhu Chillarge, the uncle of wife and he sold 14 tolas of gold belonging to his wife, to purchase the agricultural land. The sale deed dated 26.08.1975 was produced on record at Exhibit-33. He stated that the land was purchased one and half years after the partition. 11. The Trial Court rejected the theory of the defendants that the house property was already partitioned in January, 1974. So far as the agricultural land is 8 concerned, the Trial Court recorded the findings that the plaintiff has failed to establish that he had contributed any funds for purchase of agricultural land and thus in absence of the nucleus of family property, the suit land can not be held to be a joint family property. According to the Trial Court, the suit house was not yielding any income of the family and the defendants have established that the suit land was purchased by the defendant no.1 which is self acquired property. 12. The Appellate Court confirmed the finding in respect of the house property by disbelieving the theory of partition in the year 1974. The Appellate Court held that the case of the defendant no.1 that he had borrowed Rs. 8,000/- from Prabhu Chillarge does not appear to be true and probable. The Appellate Court has further held that the evidence of defendant no.1 does not inspire confidence and the same is far from reality. The Appellate Court also disbelieved the version of the plaintiff that he had contributed money for purchase of the land in the name of the defendant no.1. However, taking into consideration the fact that the crushing of oil seeds and sale of oil cakes and refined oil is the ancestral business which the father of the plaintiff and defendant no.1 were doing, it was held that the defendant no.1 had purchased the suit land with 9 the income, which was obtained from the oil business. 13. Shri. Mantri appearing for the appellant has urged that, undisputedly, the sale deed dated 26.06.1975 in respect of survey no.180 stands exclusively in the name of defendant no.1. In the record of right also, the properties undisputedly are shown in the name of defendant no.1. He has urged that the burden to establish that the agricultural land was ancestral property and that it was purchased with the nucleus of the joint family funds, is upon the plaintiff, which he has failed to discharge. According to him, the registered sale deed produced on record when clearly indicates that the defendant no.1 is the exclusive owner of the property, it was for the plaintiff to establish that the same was purchased with the nucleus of the funds of the joint family. 14. As against this, Shri.Chandole, the learned Counsel appearing for the respondent no.1-plaintiff has urged that, the defendant has in clear term admitted in his evidence that he was running the ancestral business of oil spilling and selling oil and it is the income derived from that business which is being utilised for purchase of the property. He further urged that he was in service in the Co-operative Department and had contributed the amount of 10 Rs.10,000/- in the family funds for family business and for purchase of land. He therefore supported the findings of the Appellate Court and urged for dismissal of appeal. 15. Both the parties have led their evidence and since the plea was raised by the defendants that the suit house was partitioned in the year 1974 and the suit land was the self acquired property of the defendants, the issues were framed casting the burden of poof upon the defendants. Accordingly, the defendants led their evidence first and thereafter, the plaintiff has examined himself. The parties have brought on record, the evidence to establish their respective case. In view of this, the issue of burden of proof, has lost its significance. It can not therefore be said that it was for the plaintiff to establish that there was nucleus of joint family fund, out of which the suit land was purchased. In view of this, the said contention of Shri.Mantri, the learned Counsel appearing for the defendants, is rejected. 16. It is not in dispute that the house property was the ancestral property of the plaintiff and the defendants and the theory of partition of this house property, having taken place in the year 1974, has been rejected by both the Courts below. Shri.Mantri, the learned Counsel appearing 11 for the appellant has not challenged the finding of facts in respect thereof and the same is therefore confirmed. Once the theory of partition of the house property is rejected, it will have to be presumed that the suit property was the joint family property which was not partitioned. The defendants have in categorical terms admitted that the business of spilling of oil and sale of oil and oil cake was the ancestral business, which their father was doing and they have taken over it. It is also not in dispute that the defendants were deriving income from this ancestral business. Except this business and house property, there were no other properties owned and possessed by the joint family of the plaintiff and the defendants or the self acquired properties of the defendants, which could form an independent source of income to purchase the suit land. The Apex Court in its decision reported in A.I.R. 1954 S.C. 379(Srinivas Krishnarao Kango V/s Narayan Devji Kango and others), in para no.8, has held as under :- “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 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 12 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.” In view of the findings recorded by the Courts below, which has been accepted by the parties in this appeal also that there was no partition of the joint family property effected and the fact that the defendant no.1 has in categorical terms admitted that the business of spilling of oil and sale of oil and oil cakes was the ancestral business, which their father was doing and they have taken it over, the burden shifted upon the defendants, who alleged that it was the self acquired property. In the aforesaid Judgment of the Apex Court, in para no.10, the Apex Court has observed as under :- “Whether, the evidence adduced by the plaintiff was sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and the extent of the nucleus. The important thing to consider is the income which the nucleus yields. A building in the occupation of the members of a family and yielding no income could not be a nucleus out of which acquisitions could be made, even through it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small might conceivably produce substantial income, which may well form the foundation of the subsequent acquisitions. There are not abstract questions of law, but questions of fact, to be determined on the 13 evidence in the case.” Thus, from the aforesaid observations, it is clear that it was running ancestral business which was taken over by the defendants and the said business was yielding sufficient income to form the nucleus. 17. It is the finding of the Appellate Court that the suit land was purchased for consideration of Rs.20,000/-. The defendant no.1 in his evidence has stated that an amount of Rs.8,500/- were paid by way of earnest at the time of execution of agreement. He has further stated that he was having an amount of Rs.8,000/- with him. He further stated that he made the payment of price of the land within a span of nine months and in those days, he was saving annually Rs.10,000/- to Rs.11,000/-. The Appellate Court recorded a finding that the defendants have failed to prove that an amount of Rs.8,000/- was borrowed by him from Prabhu Chillarge and that 14 tolas of gold were sold to purchase the suit land. The statement of the defendant no.1 , in his evidence that he borrowed an amount of Rs.8,000/- for payment of earnest money is not supported by the defendant no.2, who has stated in his evidence that an amount of Rs.5,000/- was paid at the time of execution of 14 the agreement. The Appellate Court has, therefore, rightly disbelieved the evidence of the defendant no.1 that he had borrowed an amount of Rs.8,000/- from Prabhu Chillarge and had sold 14 tolas of gold to purchase the suit land. The said finding is based upon the evidence available on record, therefore can not be disturbed in the second appeal. 18. The Trial Court basically accepted the contentions of the defendants that the suit land was self acquired property of the defendant no.1 for the reason that the plaintiff has failed to prove that he paid an amount of Rs.10,000/- for purchase of the suit property and that the suit house was not yielding any income to the family. The Trial Court believed the theory of the defendant no.1 about purchase of suit property by borrowing the hand loan of Rs. 8,000/- from Shri.Prabhu Chillarge. One more fact which appears to be weighed to the Trial Court is that the plaintiff was carrying on the separate business and was infact employee since 1963 and was separate in mess also. The Apex Court in its decision reported in A.I.R. 1986 S.C. 79 (Bhagwat P. Salankhe V/s Digambar Gopal Salankhe) has observed that the character of any joint family property does not change with severance of the status of the joint family and joint family property continues to retain its 15 joint family character so long as the joint family property is in existence and is not partitioned amongst the co- sharers. It has also been held that by unilateral act it is not open to any member of the joint family to convert any joint family property into his personal property. In view of this, the Appellate Court rightly reversed the finding of the Trial Court and has decreed the suit in its entirety. 19. In view of above, I do not find that any substantial question of law, much less, which is formulated, arises in the present matter, the second appeal is therefore dismissed with cost. (R. K. DESHPANDE ) JUDGE GAS/sa238.00