1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SHORT CAUSE SUIT NO.1387 OF 2000 1. Kanaiyalal Jethanand Khatri ) 2. Smt. Asha Jethanand Khatri ) both residing at C/o. Shri D.M. ) Jadhav, B-2, New Anand Co-op. ) Housing Society Limited, Maratha ) Colony, K.V. Road, Dahisar (East) ) Mumbai 400 068. ) ....Plaintiffs. V/s 1. Vasudev Shobhraj Khatri ) 2. Jethanand Vasudev Khatri ) 3. Mukesh Vasudev Khatri ) 4. Reena Mukesh Khatri ) 5. Maya Vasudev Khatri ) ) All residing at Nutan Aayojan ) Nagar, Flat No.BB-101, Near ) Liberty Gardens, Malad (West), ) Mumbai – 400 064 ) .... Defendants. Mr. K.R. Parekh i/b K.R. Parekh & Co. for plaintiffs. Mr. R.M. Vasudeo for defendant Nos. 1, 3 to 5. CORAM: V. M. KANADE, J. DATE : 22nd July, 2009. ORAL JUDGMENT: 1. Plaintiffs have filed this suit against defendants for a declaration that properties held by defendants belong to Joint Hindu Family and Plaintiff No.1 is entitled to 1/4th share in the 2 said properties, Bank Accounts and business and also for direction to defendants to give an account of the profits earned in the two cloth business conducted in Shop No.37 and Shop No.B-16, Natraj Market, Sainath Road, Malad (West) and to give appropriate share of the plaintiffs in the said business. Plaintiffs are also claiming maintenance at the rate of Rs 5000/- per month for the 1st Plaintiff and Rs 10,000/- per month for 2nd plaintiff. Plaintiff No.2 also claimed Streedhan properties given in marriage between 2nd plaintiff and 2nd defendant. 2. Defendants filed their Written Statement and denied the contentions of plaintiffs. It was submitted that all the properties were self acquired properties of defendant No.1. It is further contended that defendant Nos. 1, 2 and 3 were carrying on separate business and were filing separate income tax returns in respect of the said business. It was submitted that Shop No.B-16 in Natraj Market was self acquired property of defendant No.1 and it was, later on, sold by him to his son – defendant No.3 for lawful consideration. 3 3. On 2/3/2005, following issues were framed by this Court:- 1. Whether the suit for partition by plaintiffs is maintainable? 2. Whether the plaintiffs prove that plaintiffs and defendants constitute a Joint Hindu Family and that the plaintiffs are entitled to 1/4th share in the suit properties, bank accounts and business? 3. Whether the defendants prove that the suit properties are their self acquired properties and therefore the Plaintiffs are not entitled to claim partition? 4. Whether the defendants prove that the plaintiffs are not entitled to claim maintenance and that the defendants are not liable to maintain the plaintiff? 5. Whether the defendants prove that the plaintiff No.2 left the matrimonial home due to her extra marital affairs with one Mr. Santosh Surve? 6. Whether the plaintiffs prove 4 that they are entitled to return of ornaments given to defendant no.1 on 17/8/1999. 7. Whether the defendants prove that the ornaments in Locker No. 1095 and 59A belong to the defendants and therefore the plaintiffs are not entitled for the same? Thereafter, on 6th July, 2006, this Court framed the following additional issues:- 1 Whether the Plaintiffs prove that, Plaintiff Nos. 1, 2 and 3 constitute co- parcenery? 2 Whether the Plaintiffs prove that, Plaintiff No.1 is the co-parcener of which Defendant No.1 is the Karta? 4. Before the rival contentions are taken into consideration, it would be proper to take into consideration the law on the point of joint family property. It is well settled that unless it could be shown that business in the hands of co-parcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate, the 5 business remains free and separate. The question, therefore, as to whether the business was begun or carried on with the assistance of joint family property or joint family funds is a question of fact which has to be established by person who alleges that the property is a joint family property. The Apex Court in G. Narayana Raju v. G. Chamaraju and others reported in AIR 1968 SC 1276 has observed in paragraphs 3 and 6 as under:- “(3) The first question to be considered in this appeal is whether the business of Ambika Stores was really the business of the joint family and whether the plaintiff was entitled to a partition of his share in the assets of that business. It was contended on behalf of the appellant that the business of Ambika Stores grew cut of a nucleus of the joint family funds or at least by the efforts of the members of the joint family including the appellant. The contention of the appellant has been negatived by both the lower 6 courts and there is a concurrent finding that the Ambika Stores was the separate business of Muniswami Raju and it was neither the joint family business nor treated as joint family business. It is well established that there is no presumption under Hindu Law that business standing in the name of any member of the joint family is a joint family business even if that member is the manager of the joint family. Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free and separate. The question therefore whether the business was begun or carried on with the assistance of joint family property or joint family funds or as family business is a question of fact.- (See the decisions of the Judicial Committee in Bhuru Mal v. 7 Jagannath, AIR 1942 PC 13 and in Pearey Lal v. Nanak Chand AIR 1948 PC 108 and of this Court in Chattanath Karayalar v. Ramchandra Iyer, AIR 1955 SC 799). In the present case there is a concurrent finding of both the lower courts that the business of Ambika Stores was a separate business of Muniswami Raju and it was neither a joint family business nor treated as joint family business. The concurrent finding of the lower courts on this issue is upon a finding of fact and following the usual practice of this Court it is not now open to further scrutiny by this Court under Art. 133 of the Constitution.” “(6) We pass on to consider the alternative argument put forward on behalf of the appellant, namely, that even if the business of Ambika Stores was started as a separate business of Muniswami Raju, it became converted at a subsequent stage into joint family business. It 8 was argued on behalf of the appellant that the business of Ambika Stores was thrown by Muniswami Raju into the common stock with the intention of abandoning all separate claims to it and therefore the business of Ambika Stores lost its character of a separate property and was impressed with the character of joint family property. It is well- established doctrine of Hindu Law that property which was originally self-acquired may become joint property if it has been voluntarily thrown by the coparcener into joint stock with the intention of abandoning all separate claims upon it. The doctrine has been repeatedly recognized by the Judicial Committee (See Hurpurshad v. Sheo Dayal, (1876) 3 Ind App 259(PC) and Lal Bahadur v. Kanhaia Lal (1907) 34 Ind App 65 (PC). But the question whether the coparcener has done so or not is entirely a question of fact to be decided in the light of all the 9 circumstances of the case. It must be established that there was a clear intention on the part of the coparcener to waive his separate rights and such an intention will not be inferred merely from acts which may have been done from kindness or affection (See the decision in Lala Muddun Gopal v. Khikhindu Koer (1891) 18 Ind App 9 (PC). For instance in Naina Pillai v. Daivanai Ammal, AIR 1936, Mad 177 where in a series of documents self-acquired property was described and dealt with as ancestral joint family property, it was held b y the Madras High Court that the mere dealing with self- acquisitions as joint family property was not sufficient but an intention of the coparcener must be shown to waive his claims with full knowledge of his right to it as his separate property. The important point to keep in mind is that the separate property of a Hindu coparcener ceases to be his separate property and acquires the 10 characteristics of his joint family or ancestral property, not by mere act of physical mixing with his joint family or ancestral property, but by his own volition and intention, by his waiving or surrendering his special right in it as separate property. A man’s intention can be discovered only from his words or from his acts and conduct. When his intention with regard to his separate property is not expressed in words, we must seek for it in his acts and conduct. But it is the intention that we must seek in every case, the acts and conduct being no more than evidence of the intention............” Similarly, in the case of K.V. Narayanan v. K.V. Ranganadhan and Ors reported in AIR 1976 SC 1715, it has been held that the property separate or self-acquired by member of a joint Hindu Family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into common stock with intention of abandoning his 11 separate claim therein but the question whether a co- parcener has done so or not is entirely a question of fact to be decided in the light of all the circumstances of the case. 5. In the light of aforesaid settled principle of law, it will have to be seen whether the plaintiffs have proved their case. 6. Plaintiff No.2 examined herself and she was cross- examined by advocate for defendant Nos. 1, 3, 4 & 5. Defendant Nos. 1 and 3 examined themselves in support of their case. 7. Plaintiff No.2 in her evidence did not bring any evidence on record to establish that the suit properties were joint family properties. Reliance was placed on the Ration Card in which it was shown that defendant No.1, defendant No.2 and Defendant No.5 and plaintiffs were residing together at Malad in a Chawl. Secondly reliance was also placed on statement of banks which showed that there were two lockers which stood in the name of daughter-in-law of 12 defendant No.1 and defendant No.1. According to plaintiffs, defendant No.2 was mentally unstable. However, this fact was not brought to the notice of plaintiff No.2 and only after her marriage with defendant No.2, she became aware of this fact while treatment was being given to defendant No.2. It was the case of plaintiffs that defendant No.2 was suffering from schizophernia and there were frequent quarrels between plaintiff No.2 and defendants on account of the fact that defendants have suppressed this fact from plaintiff No.2 before her marriage. Plaintiffs claim that Plaintiff No.2 was driven away from her house. She has stated in her evidence that there was one child out of the said marriage and that the plaintiff No.1 was grandson of defendant No.1 and son of defendant No.2. It is the case of plaintiffs that defendant Nos. 1, 2 and 3 were carrying on business together as a joint family and, in any event, the said property was a coparcenery property since defendant No.1 had acquired these properties from his parents or has purchased these properties from the monies which they received from his parents. 13 8. Plaintiffs have produced on record the following documents:- Sr.No Exhibits Particulars 1. P-1 Birth Certificate of first Plaintiff. 2. P-2 Certificate dated 24.1.1996 issued by Dr. Vijay P. Zhope 3. P-3 Copy of the notice dated 6.9.1999 addressed to the 2nd Defendant by plaintiffs’ advocate. 4. P-4 Reply dated 21.9.1999 received from the advocate of the 2nd Defendant. 5. P-5 Copy of the letter dated 24.11.1999 sent to the Defendant Nos. 1 and 2 by the Plaintiffs’ advocate. 6. P-6 Letter dated 7.12.1999 sent by the first Defendant’s advocate. 7. P-7 Copy of the reply dated 22.12.1999 sent by my advocate. 8. P-8 Letter dated 15.1.2000 sent by the first Defendant’s advocate 9. P-9 Statement with regard to bank accounts, lockers in different banks and other details. On the other hand, defendants have produced in all 89 documents which have been proved. They have produced (i) Share certificate of Malad Natraj Market Co-operative Housing Society Limited in the name of Vasudeo S. Khatri dated 28.12.1983, (ii) Share Certificate of Malad Natraj Market Co-operative Housing Society Limited in the name of Vasudeo S. Khatri dated 28.12.1983, (iii) Consent Terms 14 dated 9.10.1976, (iv) Saral Form No.2D with Statement & Computation of Income and Balance Sheet of Fancy Cloth Stores for the Assessment Year 2000-01 to 2006-07, (v) rent receipt in the name of Reena Mukesh Khatri dated 3.10.1999, (vi) Ration Card of Vasudev Shobhraj Khatri and Mukesh Vasudev Khatri, (vii) Refugee Certificate from Sindhi Community dated 27.8.1949, (viii) Leave and License Agreement of Swadeshi Cloth Stores from 1968 to 1972, (ix) Conducting Agreement for Fancy Cloth Stores dated 12/3/1974, (x) Agreement dated 10/08/1975 between M/s Kala Builders and Defendant No.1, (xi) Xerox copy of the agreement between defendant Nos. 1 and 2 dated 13/02/1984, (xii) Acknowledgment by Income-tax for the assessment years 1977-78 to 1986-87, (xiii) self assessment challans for the years 1989-90 to 1995-96 alongwith copy of the acknowledgment of income tax returns from 1998-99 upto 2005-06, (xiv) Agreement in respect of BB-101 Ayojan Nagar, Malad (West) dated 11.09.1978, (xv) Share Certificate of Nutan Ayojan Nagar Co-op. Hsg. Society Ltd. dated 30.06.1984, (xvi) Memorandum of Hiring of Locker Dena Bank, Malad (West), Locker No.1095 Class A dated 15 13/08/1992, (xvii) Receipt of UCO Bank, Malad (West), Locker No.59A dated 31.01.2006, (xviii) Pass Book of Union Bank of India, Malad (West) SB A/c. No.57514 and several other tax challans of Jethanand Vasudev Khatri and challans for payment of advance tax by Mukesh V. Khatri as an individual. 9. Plaintiffs have not established and they were unable to prove that the property in question was a joint hindu family property or that defendant No.1 was running the business as a joint hindu family business or that he had thrown his own separate income in the joint family business. On the other hand, defendants have produced voluminous evidence to establish their case as pleaded by them in the Written Statement. 10. Plaintiff No.2 has been cross-examined at length and, in cross-examination, she has given several admissions. She has admitted that she has no personal knowledge about the fact of the said business being either a joint family business or that the property was a coparcenery property. 16 11. Defendant No.1, on the other hand, produced all documents to show that the property in question was the self acquired property and the business which he was carrying out was his own business since defendant No.1, 2 and 3 were filing separate income tax returns. Defendant No.1 has stated in his evidence that he along with his parents were residing in Pakistan and, after partition, he came as refugee to Mumbai alongwith his parents. However, his parents died due to ailment while he was coming to India and, as such, he grew up as an orphan and started doing business of selling cut-pieces at Malad and then he slowly increased his business and purchased his first shop and the second shop was given in lieu of the development of the property. The entire documents have been brought on record. Though an attempt was made in cross-examination of defendant No.1 to show that defendant No.2 was helping defendant No.1 in his business and out of joint efforts of defendant Nos. 1 and 2, the suit properties were purchased, the evidence of defendant No.1 was not shaken in any manner and it is established beyond the reasonable doubt that defendant No. 17 2 was 13 years of age and defendant No.3 was 10 years of age which the property was purchased. It is well settled position in law that whoever asserts that the property in question is a coparcenery property or as a joint family property has to establish and prove this fact. Plaintiffs, in my view, have utterly failed to establish this fact since they have been unable to produce any documentary evidence in support of their claim. On the contrary, defendant No.1 has produced voluminous evidence to prove that the said property was self acquired property. 12. So far as the question of maintenance to plaintiff No.1 is concerned, Plaintiff no.1 had already become major and, as such, the question of payment of maintenance to plaintiff No. 1 by defendants does not arise. Plaintiff No.2 is at liberty to claim maintenance from her husband – defendant No.2 herein before the appropriate forum and as such she is not entitled to claim maintenance from defendants in this suit. 13. In the result there is no merit in the claim made by the plaintiffs. Issues Nos. 1 to 7 which were framed on 2/3/2005 18 and the additional Issue Nos. 1 and 2 which were framed on 6/7/2009 are answered as follows:- Issue Nos. 1 to 7 framed on 2/3/2005 and the findings thereon are as under:- 1) Whether the suit for partition by plaintiffs is maintainable? Yes 2) Whether the plaintiffs prove that the plaintiffs and defendants constitute a Joint Hindu Family and that the plaintiffs are entitled to 1/4th share in the suit properties, bank accounts and business? No 3) Whether the defendants prove that the suit properties are their self acquired properties and therefore the plaintiffs are not entitled to claim partition? Yes 4) Whether the defendants prove that the plaintiffs are not entitled to claim maintenance and that the defendants are not liable to maintain the plaintiff? Yes 5) Whether the defendants prove that the plaintiff No.2 left the matrimonial home due to her extra marital affairs with one Mr. Santosh Surve? Not proved 19 6) Whether the plaintiffs prove that they are entitled to return of ornaments given to defendant no.1 on 17/8/1999? No 7) Whether the defendants prove that the ornaments in Locker No.1095 and 59A belong to the defendants and therefore the plaintiffs are not entitled for the same? Yes Additional Issue Nos. 1 & 2 framed on 6 th July 2009 and the findings thereon are as under:- 1) Whether the Plaintiffs prove that the Plaintiff No.1, defendant No.1, 2 & 3 constitute co-parcenery? No 2) Whether the Plaintiffs prove that, Plaintiff No.1 is the co-parcener of which Defendant No.1 is the Karta? No. 14. The suit is dismissed. (V.M. KANADE, J.)