Bombay High Court
Ku. Suman Vishnu Pathak vs Smt. Usha on 29 October, 2012
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Second Appeal No.279 of 2009
1. Ku. Suman Vishnu Pathak,
Aged about 74 years,
Occupation - Household Work,
R/o Rahul Complex,
Flat No.7,
19-20, Madhuban Colony,
Karvey Nagar,
Pune-52. ... Ori. Deft. No.17
2. Ku. Nalini Vishnu Pathak,
Aged about 70 years,
Occupation - Household Work,
R/o Rahul Complex,
Flat No.7,
19-20, Madhuban Colony,
Karvey Nagar,
Pune-52. ... Ori. Deft. No.19
3. Ramesh Kumar Shaligram Ballaha,
Aged about 60 years,
Occupation - Business. ... Ori. Deft. No.26
4. Surendra Kumar Shaligram Ballaha,
Aged about 60 years,
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occupation - Business. ... Ori. Deft. No.27
5. Umesh Kumar Shaligram Ballaha,
Aged about 52 years,
Occupation - Business. ... Ori. Deft. No.28
6. Satish Kumar Shaligram Ballha,
since dead, through his LRs.: ... Ori. Deft. No.29
6(a) Smt. Chhaya wd/o Satishkumar Ballaha (Jaiswal),
Aged about 43 years,
Occupation - Household,
Awadut Wadi,
Yavatmal.
6(b) Sau. Pallavi w/o Mayur Jaiswal,
Aged about 23 years,
Occupation - Household,
Swarg, House No.5/5/48,
Jubli Park,
Aurangabad-431 001.
6(c) Shri Vishal s/o Satish Ballaha (Jaiswal),
Aged about 21 years,
Occupation - Business,
Awadut Wadi,
Yavatmal.
7. Pradeep Kumar Shaligram Ballaha,
Aged about 46 years,
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Occupation - Business.
Nos.3 to 7 are r/o Awadhutwadi,
Yavatmal, Tahsil and District Yavatmal. ... Appellants
Versus
1. Smt. Usha w/o Prabhakarrao Koparkar,
Aged about 63 years,
Occupation - Retired,
R/o 204, Anurag Apartment,
Lokmanya Tilak Road,
Vazira Naka, Near Fish Market,
Boriwali (West),
Mumbai. ... Ori. Plaintiff
2. Satish s/o Kashinath Pathak,
Aged about 60 years,
Occupation - Consulting Engineer,
R/o Plot No.11 and 12,
Vrindawan Society,
Opp. Udyog Bhawan,
Darwha Road,
Yavatmal. ... Ori. Deft. No.1
3. Vinod s/o Kashinath Pathak,
Aged about 57 years,
Occupation - Dy. Superintendent of
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Police,
R/o HB Estate, Hindustan
Builder's Colony,
Sonegaon,
Nagpur. ... Ori. Deft. No.2
4. Smt. Nirmala w/o Kashinath Pathak,
(Deceased) ... Ori. Deft. No.3
5. Smt. Megha Arun Gadgil,
Archies Co-operative Housing Society Ltd.,
Wing-A, Flat No.504, Near Railway Bus
Station, Kalyan (West). ... Ori. Deft. No.4
6. Smt. Premlabai w/o Yeshwant Phatak
(Deceased). ... Ori. Deft. No.5
7. Deepak s/o Yeshwant Phatak,
Aged about 62 years,
Occupation - Service,
R/o R-2, Donson Lane,
Scotch Plains,
New Jersey, USA 07076. ... Ori. Deft. No.6
8. Shri Ashok Yeshwant Phatak,
Mangalya Niwas Co-operative
Housing Society Ltd.,
Behind Holy - Cross School,
Chikenghar, Kalyan (West). ... Ori. Deft. No.7
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9. Shri Prashant s/o Yeshwant Phatak,
Aged about 55 years,
Occupation - Service,
R/o R-2, Donson Lane,
Scotch Plains,
New Jersey, USA 07076. ... Ori. Deft. No.8
10.Smt. Jyoti Sahastrabuddhe,
Aged about 45 years,
Occupation - Service,
R/o 5/8, Yashomangal,
Parshuram Nagar,
Baroda (Gujrat). ... Ori. Deft. No.9
11.Babasaheb M. Athawale
(Deceased). ... Ori. Deft. No.10
12.Sudhakar s/o Babasaheb Athawale,
Aged about 62 years,
Occupation - Service,
R/o Shioranjan, Bhadgaon Road,
At Pachora, Dist. Jalgaon (Khandesh) -
Maharashtra. ... Ori. Deft. No.11
13.Prakash s/o Babasaheb Athawale,
Aged about 54 years,
C/o Sudhakar Athawale,
Shioranjan, Bhadgaon Road,
At Pachora,
Dist. Jalgaon (Khandesh) -
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Maharashtra. ... Ori. Deft. No.12
14. Sau. Aruna w/o Vishwasrao Patankar,
Aged about 65 years,
Occupation - Household,
R/o Shyagi, Flat No.(A),
36, Shivaji Nagar,
Cement Road, Nagpur. ... Ori. Deft. No.13
15.Shaila w/o Hemchandra Modak
(Deceased) : ig ... Ori. Deft. No.14
(a) Hemchandra s/o Vishwanath Modak
(Deceased).
(b) Sau. Sunila Shashank Gurjar,
Aged about 55 years,
R/o C-6, Sahakar Niwas,
Dadar (West), Mumbai-28 -
Maharashtra.
16. Sau. Mangala w/o Prabhakar Ranade
(Deceased) : ... Ori. Deft. No.15
(a) Prabhakar S. Ranade,
Aged about 75 years.
(b) Kiran Prabhakar Ranade,
Aged about 52 years.
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Both R/o Prakash Bungalow,
Near Lucky Restaurant,
Deccan Gymkhana,
Ferguson College Road,
Pune-4.
17. Sau. Kusum Balbir Gupta
(Deceased) : ... Ori. Deft. No.16
(a) Balbindar Singh Gupta,
Aged about 90 years,
Occupation - Retired.
(b) Ku. Pratima Balbir Gupta,
Aged about 58 years.
(c) Anand s/o Balbir Gupta,
Aged about 55 years.
(d) Kalpana w/o Sunil Agrawal,
Aged about 53 years.
(e) Alok Balbir Gupta,
Aged about 50 years.
All R/o 5 MIG-I,
Saubhagya Housing Board
Colony, Padmanabhumpur Puran,
Durg-491001 (Chhattisgarh).
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18. Sau. Saroj w/o Raghunath Phadake,
since dead, through her LRs.: ... Ori. Deft. No.18
(a) Shri Raghunath s/o Purushottam Phadake,
Aged about 76 years,
Occupation - Retired,
Bhaskar Bhawan,
Kelkar Museum,
House No.333, Milan
Mangal Karyalaya,
Shinde Hali Corner,
Shukrawarpeth,
Pune.
(b) Shri Millind Reghunath Phadake,
Aged about 47 years,
Occupation - Business,
Saint Eknath Nagar, Part-II,
Opp. Saint Eknath Sabhagruh,
"Yashoda", Bibwewadi,
Pune.
19. Vishuddha Mudran, through its Manager
Shridhar Vyankatrao Deshpande,
Aged about 48 years,
R/o Shivaji Nagar,
Yavatmal. ... Ori. Deft. No.21
... Respondents
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Shri S.P. Dharmadhikari, Senior Advocate, assisted by
Shri B.B. Mehadia, Advocate, for Appellants.
Shri C.S. Kaptan, Senior Advocate for Respondent No.1.
Shri A.S. Jaiswal, Advocate for Respondent Nos.2 and 3.
Shri R.S. Kolansiwale, Advocate for Respondent No.4.
CORAM : R.K. DESHPANDE, J.
Date of Reserving the Judgment : 25-10-2012
Date of Pronouncing the Judgment : 29-10-2012
JUDGMENT :
1. The respondent Smt. Usha Koparkar is the original
plaintiff and the grand-daughter of Late Shri Vishnu Pathak, who
filed Regular Civil Suit No.80 of 1981 claiming that the suit
property, which stood in the name of Vishnu Pathak, was
acquired by nucleus of joint family funds and hence she was
entitled to share in it. She claimed partition and separate
possession of 1/36th share in the suit property, i.e. Plot No.17 at
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Yavatmal. The appellant Nos.1 and 2 are the original defendant
Nos.17 and 19, who claimed to be the owners of the suit property
on the basis of the codicil executed by Vishnu Pathak on
10-5-1973 bequeathing the suit property in their favour. The
appellant Nos.3 to 7 are the original defendant Nos.26 to 30, who
claimed to have purchased the suit property from the appellant
Nos.1 and 2.
2. The two sons of Kashinath Pathak, viz. Satish and
Vinod, were joined as the defendant Nos.1 and 2; Smt.
Nirmalabai w/o Kashinath Pathak was joined as the defendant
No.3; the another daughter of Kashinath Pathak, viz. Smt. Megha
Gadgil, was joined as the defendant No.4; Smt. Premlabai wd/o
Yashwant Vishnu Pathak, was joined as the defendant No.5; and
her three sons and the daughter, viz. Deepak, Ashok, Prashant;
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and Smt. Jyoti of Smt. Premlabai Pathak, were joined as the
defendant Nos.6 to 9 respectively; the husband of Smt. Sarojini,
the two sons Sudhakar and Prakash and the daughter Aruna were
joined as the defendant Nos.10 to 13 respectively; and the other
daughters of Vishnu Pathak, viz. Smt. Shaila Modak, Smt.
Mangala Ranade, Smt. Kusum Gupta, Ku. Suman, Smt. Saroj and
Ku. Nalini were joined as the defendant Nos.14 to 19 respectively
in the said suit. The parties shall be hereinafter referred to
according to their original status in the Trial Court.
3. Regular Civil Suit No.80 of 1981 was partially decreed
by the learned 2nd Joint Civil Judge, Junior Division, Yavatmal,
by his judgment and order dated 6-3-2000. The plaintiff and the
defendant No.4, the real sister of the plaintiff, are held entitled to
1/48th share each; the defendant Nos.1 and 2, the real brothers of
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the plaintiff, and the defendant No.3, the mother of the plaintiff,
are held entitled to 3/20th share each; and the defendant Nos.17
and 19, the daughters of Vishnu Pathak, are held entitled to
1/4th share each in the suit property. The Commissioner is
directed to be appointed for effecting partition of the suit property
as per the declaration of the shares. Regular Civil Appeal No.55
of 2000 filed by the appellants has been dismissed by the learned
Ad hoc District Judge-1, Yavatmal, by his judgment and order
dated 31-3-2009. Hence, this second appeal.
4. Both the Courts below have held that the plaintiff has
proved that the suit property was originally acquired by Vishnu
Pathak with the aid of the joint family property. It is further held
that Late Shri Sadashiv Pathak, the father of Vishnu Pathak was a
rich man and acquired 105 acres and 15 gunthas of agricultural
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lands apart from the residential premises and fruit gardens in
Konkan. He was doing roaring money lending business and
acquired huge properties by way of mortgage. The other two
sons of Sadashiv Pathak, viz. Vitthal and Ramchandra, were
working at Bombay. Vitthal Pathak was Matriculate and was
employed in the office of the Accountant General at Bombay and
he was having another source of income by way of Tuition
Classes. The second son Ramchandra Pathak was in service in the
Post Office at Bombay.
5. The Courts below have recorded the finding that it was
the income derived by Sadashiv Pathak from the joint family
property at Konkan and the income thrown in the common
hotchpotch by Vitthal Pathak and Ramchandra Pathak working at
Bombay that the suit property was acquired on lease from the
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Municipal Council, Yavatmal, on 5-11-1917. It is held by both
the Courts below that when the suit property was acquired on
5-11-1917, the income of Vishnu Pathak from all sources was
Rs.1,741.50 and his income was neither sufficient to jointly
purchase the suit property with Ganesh Pathak nor there is any
evidence on record to show he had funds to construct the house
on Plot No.17. It is further held that the preponderance of
probabilities is that the property was acquired and construction
thereon was made with the aid of the joint family funds and the
surrounding circumstances do not justify that it was a
self-acquired property of Vishnu Pathak.
6. The Appellate Court has relied upon the oral evidence of
PW 3 Moreshwar Pathak, who deposed that he had taken
education at Yavatmal during 1942 to 1946 and was residing with
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Vishnu Pathak. He further deposed that all the sons of Vishnu
Pathak were saving money and sending it to Sadashiv Pathak at
Konkan and hence Sadashiv Pathak started purchasing lands and
money lending business. He deposed that during 1921 to 1923,
Vishnu Pathak constructed his share from the income of the
properties at Konkan and from his advocacy. He further deposed
that the suit plot was allotted to Vishnu Pathak as his share in
HUF. It is held that if Plot No.19 was purchased jointly by
Ganesh Pathak and Vishnu Pathak, then the same could not have
been acquired only in the name of Ganesh Pathak. It is further
held that the onus shifted upon the defendant Nos.17 and 19, who
had failed to enter the witness-box and to examine any witness on
this point. No evidence is brought on record to show as to
whether Vishnu Pathak raised such huge funds within a span of
nine years. The Courts below have, therefore, drawn an adverse
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inference that the suit property was the HUF property.
7. Originally, it was Plot No.19, which was acquired from
the Municipal Council, Yavatmal, on 5-11-1917, exclusively in
the name of Ganesh Pathak. On 19-11-1920, Ganesh Pathak and
Vishnu Pathak executed a partition-deed at Exhibit 208 dividing
Plot No.19 in two parts, which were subsequently separately
numbered as Plot Nos.16 and 17 at the time of preparation of
revenue records. Plot No.16 was admeasuring 12,225 sq.ft.,
whereas Plot No.17 was admeasuring 10,541 sq.ft. Plot No.16
was in the name of Ganesh Pathak, whereas Plot No.17 was in the
name of Vishnu Pathak. Both the Courts below have considered
the partition-deed at Exhibit 208, which contained a recital that
Plot No.19 was purchased jointly by Ganesh Pathak and Vishnu
Pathak, who had contributed equally, and hence it was their
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self-acquired property. Subsequently, on 29-10-1923, a
partition-deed was executed at Exhibit 228 by all the five sons of
Sadashiv Pathak recording the partition of the entire joint family
property amongst themselves in the year 1920. In the said
partition-deed, there is a recital that Plot Nos.16 and 19 were the
self-acquired properties of Ganesh Pathak and Vishnu Pathak and
hence were excluded from the properties available for partition.
Both the Courts below have held that the words 'self-acquired
properties' used in both these deeds at Exhibits 208 and 228 do
not convey their natural meaning.
8. The argument of the defendant Nos.17 and 19 based
upon Section 32(3) of the Evidence Act that the statement of
Ganesh Pathak contained in the registered document of division
of property at Exhibit 208 that Plot No.19 was jointly purchased
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and owned by himself along with Vishnu Pathak and the
statements of all the five sons of Sadashiv Pathak contained in the
partition-deed at Exhibit 228 that Plot No.19 was the
self-acquired property of Ganesh Pathak and Vishnu Pathak and
the other sons of Sadashiv Pathak had no right in it, is rejected by
the Courts below on the ground that the suit property was held to
be the joint family property and no evidence is brought on record
to show that it was the self-acquired property. The decisions
relied upon by the defendant Nos.17 and 18 were held to be not
applicable on that count.
9. Relying upon the orders of assessment of income-tax at
Exhibits 222 and 223, the orders in appeal by the Income-Tax
Authorities at Exhibits 214 and 218, and the income-tax returns at
Exhibit 230, it has been held that Vishnu Pathak got income-tax
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rebate by showing that all the earnings were thrown in common
hotchpotch and he is to be assessed as Karta of Hindu Undivided
Family (HUF). Hence, whatever separate income Vishnu Pathak
had, was blended in the income of HUF. Relying upon the
partition-deed dated 23-2-1950 at Exhibit 213 between Vishnu
Pathak, his two sons and wife, it is held that HUF of Vishnu
Pathak existed till 1950, of which he was Karta.
10. In view of the aforesaid findings and the contentions
raised by the learned counsels before this Court, which are in
conformity with the arguments raised before the Courts below,
this Court passed an order on 18-10-2012, framing the substantial
questions of law, which is reproduced below :
" After hearing the learned counsels for the parties
at length, the following substantial questions of law are
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framed :
(1) Is it not that the statement made by Late Shri
Ganesh Pathak, who is dead, in the Deed of
Partition Exhibit 208 that the suit property was
acquired by Late Shri Ganesh Pathak and Shri
Vishnu Pathak jointly as their self-acquired
property, was against pecuniary and proprietary
interest of the persons making it and would it be
relevant and admissible in evidence under
sub-section (3) of Section 32 of the Evidence Act ?
(2) Is it not that the statement made by Late Shri
Vitthal Pathak, Shri Ramchandra Pathak and Late
Shri Laxman Pathak, who are dead, in the Deed of
Partition Exhibit 228 that the suit property was
acquired by Late Shri Ganesh Pathak and Shri
Vishnu Pathak as their self-acquired property, was
against pecuniary and proprietary interest of the
persons making it and would it be relevant and
admissible in evidence under sub-section (3) of
Section 32 of the Evidence Act ?
(3) Whether the Courts below have misconstrued
the term 'self-acquired properties' employed in the
Deeds of Partition at Exhibits 208 and 228 to hold
that it does not convey natural meaning ?
(4) Whether the Courts below have correctly
applied the principle of burden of proof and
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shifting the onus while deciding the question
whether the suit property was a joint family
property of Sadashiv Pathak or a self-acquired
property of Vishnu Pathak and committed an error
of law in drawing an adverse inference that the suit
property was the joint family property ?
(5) Is it not that in the absence of any evidence of
clear intention of Late Shri Vishnu Pathak to
abandon and waive his proprietary interest in the
suit property, no finding of blending of self-earned
suit property by Late Shri Vishnu Pathak in the
joint family property could be recorded by the
Courts below ?
(6) Is it not that the self-earned property of an
owner could be retained by him as his separate
property and that the character of the property
does not get changed to joint family property
merely because the owner blends the income of
such property with the income of the joint family
and is it not that the Courts below lost sight of this
vital aspect of the matter ?
The matter is adjourned to 25-10-2012 so as to
enable the learned counsel for the parties to address on
the aforesaid substantial questions of law."
11. The relevant factual position, which is not in dispute,
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needs to be stated :
A joint family of Late Shri Sadashiv Pathak consisted of
himself and his five sons, viz. (i) Vitthal, (ii) Ramchandra,
(iii) Ganesh, (iv) Laxman, and (v) Vishnu. There existed a joint
family property, which was managed by Sadashiv Pathak at
Konkan. Vitthal and Ramchandra, the two sons of Sadashiv
Pathak, were in service at Bombay and had their separate income,
the third son Ganesh settled himself as Priest (Purohit) at
Yavatmal prior to 1900, the fourth son Laxman settled at
Konkan, and the fifty son Vishnu came to Yavatmal in the
year 1914 from Konkan and started his legal practice. In the
year 1915, a land at Pimpalgaon, District Yavatmal, was
purchased in the name of Ganesh Pathak. On 5-11-1917, Plot
No.19, Survey No.77 Sheet No.38/D, admeasuring 22,725 sq.ft.
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of land was acquired on lease in the name of Ganesh Pathak from
the Municipal Council, Yavatmal.
12. Plot No.19 was partitioned in two parts between Ganesh
Pathak and Vishnu Pathak by a registered deed of partition dated
29-11-1920, which is proved and marked as Exhibit 208. The
two parts were separately registered as Plot No.16, admeasuring
12,225 sq.ft. in the name of Ganesh Pathak; and Plot No.17,
admeasuring 10,541 sq.ft. in the name of Vishnu Pathak.
Sadashiv Pathak died in the year 1920 and thereafter in the year
1920 itself there was a partition of the joint family properties held
by Sadashiv Pathak amongst the five sons. It was duly recorded
in the registered deed of partition executed on 20-10-1923, which
is proved and marked as Exhibit 228, which excluded Plot Nos.16
and 17 apart from other self-acquired properties of the members
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of the joint family from the properties available for partition.
13. In the background of the aforesaid undisputed factual
position, I would like to consider the substantial question of law
at Serial No.(4) in respect of burden of proof, shifting of onus and
drawing of an adverse inference. It is the party who comes to
Court to get a decision on any legal right or liability depending
upon the existence of certain facts, which he assert, carries the
burden of proof. This principle is laid down in Section 101 of the
Evidence Act.
14. Before dealing with the question as to whether the onus
in the present case is shifted upon the defendants in the facts of
the present case, the relevant portion of the decision of the Privy
Council in the case of Appalaswami v. Suryanarayanamurti,
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reported in AIR 1947 PC 189 at Page 192, needs to be seen. The
same is, therefore, reproduced below :
" The Hindu law upon this aspect of the case is
well settled. Proof on 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
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."
The aforesaid portion is quoted and followed in the subsequent
decision of the Apex Court in the case of Srinivas Krishnarao
Kango v. Narayan Devji Kango and others, reported in
AIR 1954 SC 379. The portion in para 10 in the decision in the
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case of Srinivas Krushnarao Kango, cited supra, is also relevant
and the same is, therefore, reproduced below :
"(10) 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
though 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 from the foundations
of the subsequent acquisitions. These are not abstract
questions of law, but questions of fact to be determined on
the evidence in the case."
The decision of the learned Single Judge of this Court in the case
of Harihar Diwakar Choube (deleted since dead) and others v.
Govind Diwakar Choube and others, reported in
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2010(4) Mh.L.J. 524, follows the decision of the Allahabad High
Court in the case of Mangal Singh v. Harkesh and another,
reported in AIR 1958 Allahabad 42, wherein it has been held that
the presumption arises only if nucleus is substantial and is such
that its yield could provide in whole or at any rate in considerable
part the money necessary for acquiring the property in question.
15. In view of the aforesaid decisions, it is for the plaintiff,
who has come before the Court alleging that the suit property was
the joint family property of Sadashiv Pathak, in which he is
entitled to have 1/36th share, has to establish that the suit property
was the joint family property. Merely because there is an
evidence available on record that there existed HUF of Sadashiv
Pathak or Vishnu Pathak till 1969, that by itself would not make
the property standing in the name of individual member of a joint
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family to be the joint family property. The burden rests upon the
plaintiff to establish the fact that the suit property was the joint
family property.
16. It is a case of the plaintiff that the joint family possessed
some joint family property, which from its nature and relative
value, formed the nucleus, from which the property in question is
acquired. Hence it is for the plaintiff to prove that there was
sufficient joint family nucleus, from and out of which the suit
property could have been acquired. It is only after the possession
of an adequate nucleus is shown that the onus shifts upon the
person, who claims the property as self-acquisition to
affirmatively establish that the property was acquired without any
aid of the joint family estate. If the plaintiff fails to adduce
evidence, sufficient to satisfy the Court to the required standard
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or degree of proof to shift onus on the other side, then she is not
entitled to any benefit of doubt or to rely upon the weaknesses of
the defendants either in adducing the evidence or discharging the
onus.
17. Even if the findings recorded by the Courts below are
accepted as it is, the facts of the present case will have to be
judged in the light of the aforesaid law laid down by the Apex
Court and by this Court. The suit property was acquired initially
on 5-11-1917 in the name of Ganesh Pathak. The Appellate
Court has held in para 109 of its judgment that the facts showing
the source of earning of Vishnu Pathak for acquiring the suit
property prior to 1915 or 1917 are more relevant and important
than the facts showing the source of income after both the years.
Hence, the nucleus available during this period shall be relevant.
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There is no evidence on record to show as to the value of the
property acquired. On a specific question being put to the learned
Senior Advocate Shri C.S. Kaptan appearing for the respondent
No.1/plaintiff, he has fairly conceded that there is no evidence on
record to show the exact income derived from the ancestral
property. Merely because HUF possessed certain ancestral
properties, that by itself is not enough. There has to be the
evidence of adequate or substantial nucleus, the nature and extent
of nucleus, which is totally absent in the present case.
18. There is nothing on record to show how much amount
was thrown and when and how it was thrown in the common
hotchpotch by the brothers Vitthal Pathak and Ramchandra
Pathak from Bombay. There is also nothing on record to show
what was the income derived by Ganesh Pathak from his
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profession as Priest (Purohit). There is evidence available on
record that Vishnu Pathak had some income from his profession.
In para 19 of the judgment and order of the Trial Court, the
finding is recorded on the basis of Exhibit 228 partition-deed
dated 20-10-1923 and the oral evidence of DW 1 Paithankar that
Vishnu Pathak kept tenants in the bungalow and accepted
donation from friends. The Appellate Court in para 109 of its
judgment and order recorded the finding that the income of
Vishnu from all sources was Rs.1,741.50. The Trial Court has
recorded the finding in para 13 of its judgment and order that the
plaintiff and her witnesses deposed that Sadashiv Pathak sent the
money to Ganesh Pathak and Vishnu Pathak to acquire the HUF
property at Yavatmal, but their evidence in this regard is hearsay
and cannot be relied upon.
sa279.09.odt
19. As per Section 104 of the Evidence Act, the burden of
proving any fact necessary to be proved in order to enable any
person to given evidence of any other fact, is on the person, who
wishes to give such evidence. In order to prove that the suit
property was the joint family property, the plaintiff has to
establish, in the facts of the present case, that there existed
adequate nucleus out of which, acquisition could have been
made. The plaintiff has failed to establish the existence of
adequate nucleus. The vital link of nucleus is missing. The oral
evidence of PW 3 Moreshwar relied upon by the Appellate Court
was short of establishing nucleus. The findings recorded by the
Courts below clearly show that Vishnu Pathak had his separate
income and the sources to raise the funds. In view of this, the
question of shifting of onus or calling upon the defendants to lead
evidence, does not at all arise. Similarly, the question of drawing
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an adverse inference for failure of the defendant Nos.17 and 19 to
lead evidence in such situation, also does not arise. It is,
therefore, held that the Courts below have committed an error of
law in applying the principles of burden of proof, shifting of
onus, and drawing of an adverse inference. Hence, the substantial
question of law at Serial No.(4) is answered accordingly.
20. The entire thrust of the findings recorded by the Courts
below is that there is no evidence brought on record by the
defendant Nos.17 and 19 to show that Vishnu Pathak had
sufficient income to purchase the suit property. The Courts
below have held that it is a common knowledge that an Advocate
struggles to establish himself at the initial period of his career
unless he inherits the practice from his father and others. It is
further held that there is nothing on record to show how long
sa279.09.odt
Vishnu Pathak was a Junior Advocate, and in the absence of any
proof, it is difficult to digest that Vishnu Pathak along with
Ganesh Pathak purchased the suit property at Pimpalgaon after a
period of one year of commencement of his legal practice. The
Courts below have held that there is a strong probability that with
the aid of funds provided by Sadashiv Pathak, the properties
shown in the name of Ganesh Pathak were purchased. All this
investigation by the Courts below into the earnings of Ganesh
and Vishnu Pathak was uncalled for, when the onus of proof did
not shift upon the defendant Nos.17 and 19. Apart from this, all
such findings by the Courts below are based upon mere
conjectures and surmises. There is no evidence brought to my
notice to support such findings. The same cannot be allowed to
stand and, therefore, quashed and set aside.
sa279.09.odt
21. The substantial questions of law at Serial Nos.(1), (2)
and (3) in respect of the partition-deeds at Exhibits 208 and 228
being common, can be decided together. It is an undisputed
position that Sadashiv Pathak died in the year 1920 and when the
suit was filed, none of the sons of Sadashiv Pathak were alive.
Even Kashinath, the son of Vishnu Pathak, expired on 29-4-1978
and the suit in question was filed in the year 1981 by Smt. Usha
Koparkar, the daughter of Kashinath Pathak.
22. In the light of the aforesaid factual position, the
provision of Section 32(3) of the Evidence Act is required to be
seen and it is reproduced below :
"32. Cases in which statement of relevant fact by
person who is dead or cannot be found, etc., is
relevant.-- Statements, written or verbal, of relevant
facts made by a person who is dead, or who cannot be
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found, or who has become incapable of giving
evidence, or whose attendance cannot be procured
without an amount of delay or expense which, under
the circumstances of the case, appears to the Court
unreasonable, are themselves relevant facts in the
following cases:--
... ... ...
(3) or against interest of maker.--When the
statement is against the pecuniary or proprietary
interest of the person making it, or when, if true, it
would expose him or would have exposed him to a
criminal prosecution or to a suit for damages."
The argument based upon Section 32(3) of the Evidence Act was
considered by the Apex Court in its judgment in the case of
Bhagwati Prasad Sah and others v. Dulhin Rameshwari Kuer
and another, reported in AIR 1952 SC 72. The relevant portion
contained in para 13 is reproduced below :
"13. ... We think, however, that the statements could
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be admitted under Section 32(3) of the Evidence Act.
The statements of a particular person that he is
separated from a joint family, of which he was a
coparcener, and that he has no further interest in the
joint property or claim to any assets left by his father,
would be statements made against the interest of such
person, and, after such person is dead, they would be
relevant under Section 32(3) of the Evidence Act. The
assertion that there was separation not only in respect
of himself but between all the coparceners would be
admissible as a connected matter and an integral part
of the same statement (vide Blackburn, J. in Smith v.
Blakey). It is not merely the precise fact which is
against interest that is admissible but all matters that
are "involved in it and knit up with the statement. ..."
23. In the light of the provision of Section 32(3) of the
Evidence Act and the above decision of the Apex Court, the facts
of this case will have to be analyzed. The partition-deed Exhibit
208 is dated 19-11-1920 registered on 21-12-1920 and bears the
signatures of Ganesh Pathak and Vishnu Pathak. It is in respect
of Block No.19 (Plot No.19 of which the suit property is the part)
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at Yavatmal, admeasuring 22,725 sq.ft. and the field at Mouza
Pimpalgaon, District Yavatmal. These properties in the name of
Ganesh Pathak are divided between Ganesh Pathak and Vishnu
Pathak. The deed recites that the properties are acquired and
owned jointly by them and no other person has any right of
ownership in it.
24. The partition-deed at Exhibit 228 is dated 29-10-1923
and is also registered. It is signed by Vitthal, Ramchandra,
Ganesh, Laxman and Vishnu, all the sons of Sadashiv Pathak. It
divides all the joint family properties of Sadashiv Pathak amongst
the sons. It recites that the ancestral properties described therein
are voluntarily and by consent, have been partitioned in the
month of March, 1920, of which the details are recorded in the
partition-deed. After stating the division of properties in detail, it
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is stated that apart from the ancestral properties, there are certain
immovable properties, which are self-acquired properties of some
of the members of the joint family, which are owned and
possessed by them exclusively, and no other member has any
right in it. The details of such properties acquired by Vitthal,
Ganesh, Ramchandra and Vishnu are also stated. There is a
specific recital that the properties at Pimpalgaon and Yavatmal
are jointly owned and possessed by Ganesh and Vishnu and the
same are already divided between them. It is stated therein that
no other member of the joint family has any right in it.
25. Thus, it is apparent that the statements contained in the
partition-deed at Exhibit 208 are signed by Ganesh Pathak. The
partition-deed at Exhibit 228 is signed by all the sons of Sadashiv
Pathak. Shri S.P. Dharmadhikari, the learned Senior Counsel
sa279.09.odt
appearing for the appellants, is right in submitting that if all such
properties described as 'self-acquired properties' in both the
deeds are held to be the joint family properties, then all the
coparceners of HUF of Sadashiv Pathak and their successors shall
be entitled to claim share in the said properties. All of them are
not parties to the suit. All these statements are thus against the
pecuniary or proprietary interest of the persons, who have signed
the deed in respect of the suit property and were dead before
filing of the suit. Hence, the statements are relevant and
admissible in evidence under Section 32(3) of the Evidence Act.
The substantial question of law at Serial Nos.(1) and (2) are,
therefore, answered accordingly to that extent.
26. Now coming to the substantial question of law at Serial
No.(3) regarding interpretation of the terms contained in the
sa279.09.odt
Deeds of Partition at Exhibit 208 and 228 is concerned,
undisputedly, the terms of these partition-deeds indicate that the
properties at Pimpalgaon and Yavatmal (consisting of the suit
property) were owned and possessed jointly by Ganesh and
Vishnu Pathak. Both of them have contributed equally for
acquiring those properties. The Courts below have construed the
description of those properties in the documents as the
self-acquired properties, to be the joint family properties.
27. The principle of interpretation of a document is laid
down by the Apex Court in its judgment in the case of Kamla
Devi v. Takhatmal and another, reported in AIR 1964 SC 859.
The relevant portion contained in para 8 of the said judgment is
reproduced below :
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"8. ... Section 94 of the Evidence Act lays down a
rule of interpretation of the language of a document
when it is plain and applies accurately to existing
facts. It says that evidence may be given to show that
it was not meant to apply to such facts. When a Court
is asked to interpret a document, it looks at its
language. If the language is clear and unambiguous
and applies accurately to existing facts, it shall accept
the ordinary meaning, for the duty of the Court is not
to delve deep into the intricacies of the human mind to
a certain one's undisclosed intention, but only to take
the meaning of the words used by him, that is to say his
expressed intentions. Sometimes when it is said that a
Court should look into all the circumstances to find an
author's intention, it is only for the purpose of finding
out whether the words apply, accurately to existing
facts. But if the words are clear in the context of the
surrounding circumstances, the Court cannot rely on
them to attribute to the author an intention contrary to
the plain meaning of the words used in the
document. ..."
28. In the light of the aforesaid principles for interpretation
of documents, the findings of the Courts below holding the
'self-acquired properties' as the joint family properties will have
sa279.09.odt
to be seen. Perusal of the documents at Exhibits 208 and 228
leave no scope to interpret the self-acquired properties of Ganesh
and Vishnu Pathak as the joint family properties, as has been
done by the Courts below. The language of the documents is
very clear and unambiguous and applies accurately to the existing
facts to hold that those properties were the self-acquired
properties of Ganesh and Vishnu Pathak. There is no occasion to
search for the circumstances to gather the intention of the parties
to find out as to whether the properties described as the self-
acquired properties in Exhibits 208 and 228 can be construed to
be the joint family properties of Sadashiv Pathak. The Courts
below have, therefore, misconstrued the term 'self-acquired
properties' employed in the Deeds of Partition at Exhibits 208
and 228 to hold that it does not convey natural meaning. It is
held that the term 'self-acquired properties' in the said deeds
sa279.09.odt
cannot be construed as the joint family properties. The
substantial question of law at Serial No.(3) is, therefore,
answered accordingly.
29. Section 92 of the Evidence Act states that when the
terms of any such disposition of properties required by law to be
reduced to the form of a document have been proved, according
to Section 91 of the said Act, no evidence of any oral agreement
or statement shall be admitted, as between the parties to any such
instrument or their representatives in interest, for the purpose of
contradicting, varying, adding to, or subtracting from its terms.
Undisputedly, the documents at Exhibits 208 and 228 are the
registered documents relating to disposition of properties, which
have been proved. The documents being 30 years' old, the same
would carry presumption under Section 90 of the Evidence Act.
sa279.09.odt
In view of this, no evidence of any oral agreement or statement
can be admitted in evidence from the parties to any such
instrument or their representatives in interest, for the purpose of
contradicting, varying, adding to, or subtracting from the terms of
the documents. The Courts below have admitted the evidence
from the representatives in interest of the parties to the
documents at Exhibits 208 and 228 to contradict the terms of the
said documents to hold that the properties were the joint family
properties and not the self-acquired properties of Ganesh and
Vishnu Pathak. In view of this, the findings of the Courts below
holding the suit property to be joint family property of Sadashiv
Pathak being based upon inadmissible evidence, cannot be
sustained.
30. Now I shall proceed to deal with the substantial
sa279.09.odt
questions of law at Serial Nos.(5) and (6) in respect of the
intention of Late Shri Vishnu Pathak to abandon or waive his
proprietary interest in the suit property and blending of
self-earned suit property in the joint family property. The first
document considered by the Courts below is the partition-deed
dated 23-2-1950 at Exhibit 213 amongst Vishnu Pathak, his two
sons, viz. Kashinath and Yashwant, and wife. It is not disputed
and I have also gone through the said document to find out
whether the suit property was the subject-matter of partition.
There is not even a whisper of the suit property in this
partition-deed. It is not the case putforth by any of the parties
that it was a partial partition of HUF properties. The exclusion of
the suit property from the partition-deed, which is signed by all
the coparceners of HUF of Vishnu Pathak, is an indication that
the suit property was the self-acquired property of Vishnu Pathak.
sa279.09.odt
31. The portion of the property was occupied by the
tenants. The assessment lists of the Municipal Council at
Exhibits 230 to 233 and 223 show that the imposition of tax is
upon Vishnu Pathak and the suit property, even after partition in
the year 1920, always stood exclusively in the name of Vishnu
Pathak. The municipal assessment at Exhibit 235 for the period
1959-62 shows increase of tenants in the suit property. It is the
finding recorded by the Trial Court in para 44 of its judgment that
these documents indicate that the construction was made around
the main bungalow of the suit property during the period
1951-62. The reliance is placed upon the evidence of the plaintiff
and her witness PW 3 Moreshwar. Assuming these facts to be
correct, I proceed to deal with the findings, which are against the
appellants.
sa279.09.odt
32. The Courts below have relied upon the orders of
assessment of income-tax at Exhibits 222 and 223, the orders in
appeal by the Income-Tax Authorities at Exhibits 214 and 218,
and the income-tax returns at Exhibit 230 to hold that Vishnu
Pathak as a Karta of the joint family had demanded to assess him
as HUF and not as individual. His case was accepted by the
Income-Tax Authorities and he was held entitled to have rebate
as HUF assessee. The orders are relied upon to hold that Vishnu
Pathak had himself accepted that he and his son Kashinath Pathak
were practicing lawyers and they used to throw their income from
all the sources in the common hotchpotch. Hence, the finding of
the Courts below is that the additions to the suit property was
made from the income thrown in the common hotchpotch and
this conduct of Vishnu Pathak has clearly established that he has
sa279.09.odt
abandoned and waived his proprietary interest in the suit property
by blending his income in the income of the joint family; as a
result, the suit property has lost its character as the self-acquired
property.
33. I have gone through the orders of assessment of
income-tax at Exhibits 222 and 223, the orders passed in appeal
by the Income-Tax Authorities at Exhibits 214 and 218, and the
income-tax returns at Exhibit 230. Exhibit 214 is the order
passed by the Appellate Assistant Commissioner of Income-Tax
on 18-2-1950 in respect of the Assessment Year 1949-50. It
shows that up to the year 1942-43 Vishnu Pathak was assessed as
individual. For the years 1943-44 and 1944-45, though his status
was shown as HUF, the assessment was made as individual.
Thereafter, for the Assessment Years 1945-46 onwards till
sa279.09.odt
1948-49, his status was shown as individual. In the year 1949-50,
again he was shown as constituting HUF of himself and his son
Kashinath Pathak. The finding is recorded in the said order that
the sources of income are from house property, interest on
securities, dividends, and legal profession; the last one being the
biggest source of income. It is the further finding recorded that
the house property consists of one bungalow, which is used as
own residential house; one outhouse, which is let; and a shop,
which is also let, in Yavatmal. It is clearly observed that this is
not the ancestral property. It further records that all the earnings
go into the family hotchpotch, including those from house
property and other sources. Same is the order passed by the
Appellate Authority at Exhibit 218. The assessment of Vishnu
Pathak was as HUF. The Courts below have heavily relied upon
these documents to hold that the income from the house property
sa279.09.odt
and from profession was thrown in the common hotchpotch and
the additions to the properties were made out of the income of
HUF. Hence, the property had lost its character as self-acquired
property and it was blended in the joint family property.
34. The law of blending of income in common hotchpotch
or throwing of self-acquired property in the joint stock is
well settled. The decision of the Apex Court in the case of
G. Narayana Raju (dead) by his legal representative v.
G. Chamaraju and others, reported in AIR 1968 SC 1276, needs
to be seen. The relevant portion is contained in para 6 of the said
decision, which is reproduced below :
"(6) ... It is a 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
sa279.09.odt
intention of abandoning all separate claims upon it.
The doctrine has been repeatedly recognised 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 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
Doer, (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 by 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 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
sa279.09.odt
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. ..."
It is thus held that 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 the
acts, which may have been done from kindness or affection. The
decision of the Madras High Court, which is quoted and
followed, shows that 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 separate
property of a Hindu coparcener does not acquire the
sa279.09.odt
characteristics of joint family or ancestral property, but by his
volition and intention by his waiving or surrendering his special
right in it as separate property. It is the intention, which is
required to be seen, the acts and conduct being no more the
evidence of the intention.
35. In the decision of the Apex Court in the case of D.S.
Lakshmaiah and another v. L. Balasubramanyam and another,
reported in (2003) 10 SCC 310, it has been held in paras 19
and 20 as under :
"19. Another contention urged for the respondents
was that assuming Item 1 property to be self-acquired
property of Appellant 1, he blended the said property
with the joint family property and, therefore, it has
become joint family property. Assuming the
respondents can be permitted to raise such a plea
without evidence in support thereof, the law on the
aspect of blending is well settled that property
sa279.09.odt
separate or self-acquired of a 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 the common stock with the intention of
abandoning his separate claim therein; but to establish
such abandonment a clear intention to waive separate
rights must be established. From the mere fact that
other members of the family were allowed to use the
property jointly with himself, or that the income of the
separate property was utilised out of generosity to
support persons whom the holder was not bound to
support, or from the failure to maintain separate
accounts, abandonment cannot be inferred, for an act
of generosity or kindness will not ordinarily be
regarded as an admission of a legal obligation (see
Lakkireddi Chinna Venkata Reddi v. Lakkireddi
Lakshmama and K.V. Narayanan v. K.V.
Ranganandhan)."
"20. In the present case, the respondents have not
led any evidence on the aforesaid aspects and,
therefore, it cannot be held that the first appellant
blended Item 1 property into the joint family account."
It is thus held that mere fact that other members of the family
were allowed to use the property jointly with himself or that the
sa279.09.odt
income of the separate family was utilised out of generosity to
support the persons whom the holder was not bound to support,
or from the failure to main separate accounts, abandonment
cannot be inferred, for an act of generosity or kindess will not
ordinarily be regarded as an admission of a legal obligation.
36. In the present case, except relying upon the orders of
the Income-Tax Authorities at Exhibits 213 and 214, no evidence
is referred to by the Courts below and the parties have also not
brought to my notice any other evidence to show the intention of
Vishnu Pathak to treat the suit property as the joint family
property. As pointed out earlier, there is a clear finding recorded
in the order at Exhibit 214 that the suit property is not the
ancestral property. On the contrary, the evidence brought on
record in the form of municipal assessment lists at Exhibits 223,
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230 to 233 and 235, the Deed of Partition at Exhibit 213, the
registered will dated 30-12-1970 at Exhibit 191 bequeathing the
suit property in favour of the daughters Smt. Saroj Pathak, Ku.
Suman Pathak and Ku. Nalini Pathak, and the registered codicil
dated 10-5-1973 at Exhibit 192 bequeathing the suit property in
favour of the unmarried daughters Ku. Suman Pathak and Ku.
Nalini Pathak, making provision for them. This clearly indicates
that Vishnu Pathak, by his own acts and conduct, treated the suit
property as his self-acquired property throughout. There is no
evidence on record showing the clear intention of Late Shri
Vishnu Pathak to abandon and waive his proprietary interest in
the suit property, and merely because he has blended his income
from house property in the income of the joint family property,
the character of the suit property as the self-acquired property of
Vishnu Pathak does not get lost to become the joint family
sa279.09.odt
property. The substantial questions of law at Serial Nos.(5)
and (6) are, therefore, answered accordingly.
37. The reliance is placed by Shri C.S. Kaptan, the learned
Senior Counsel appearing for the respondent No.1/plaintiff, upon
the decision of the Apex Court in the case of Mallesappa
Bandeppa Desai and another v. Desai Mallappa alias
Mallesappa and another, reported in AIR 1961 SC 1268. The
portion relied upon by him is contained in para 15 of the said
decision, which is reproduced below :
"(15) In this connection it is necessary to bear in
mind that respondent 1 has not shown by any reliable
evidence that the expenses for the said litigation were
borne by him out of his pocket. It is true that both the
courts have found that respondent 1 purchased certain
properties for Rs.600/- in 1925 (Ex. B-4). We do not
know what the income of the said properties was;
obviously it could not be of any significant order; but,
sa279.09.odt
in our opinion, there is no doubt that where a manager
claims that any immovable property has been acquired
by him with his own separate funds and not with the
help of the joint family funds of which he was in
possession and charge, it is for him to prove by clear
and satisfactory evidence his plea that the purchase
money proceeded from his separate fund. The onus of
proof must in such a case be placed on the manager
and not on his coparceners. ..."
This decision is clearly distinguishable and the principles laid
down therein cannot be invoked to hold that the burden of proof
lies upon Vishnu Pathak to establish that the suit property was his
self-acquired property. In the aforesaid decision, it was a suit
filed by one coparcener against another. It has been held that
when a manager claims that any immovable property has been
acquired by him with his own separate funds and not with the
help of joint family funds, of which he was in possession and
charge, it is for him to prove by clear and satisfactory evidence
sa279.09.odt
his plea that the purchase money proceeded from his separate
funds. The onus of proof must in such a case be placed on the
manager and not on his coparceners. In the present case, when
the suit property was acquired in the year 1915 or even at the
time of partition in the year 1920, Vishnu Pathak was not the
Karta or Manager of HUF. It was the HUF of Sadashiv Pathak,
the father of Vishnu Pathak. It is only after the partition of 1920
that the HUF of Vishnu Pathak was reconstituted. Once it is held
that the plaintiff in the present case has failed to establish the suit
property to be the joint family property of Sadashiv Pathak, the
suit property will not become the joint family property, merely
because the HUF of Vishnu Pathak was reconstituted in the
year 1920. The principles laid down in the said decision are,
therefore, not applicable to the present case.
sa279.09.odt
38. In the decision of the Apex Court in the case of
Mst. Rukhmabai v. Lala Laxminarayan and others, reported in
AIR 1960 SC 335, it has been held in para 5 as under :
"(5) ... But there is no presumption that any
property, whether moveable or immoveable, held by a
member of a joint Hindu family, is joint family
property. The burden lies upon the person who asserts
that a particular property is joint family property to
establish that fact. But if he proves that there was
sufficient joint family nucleus from and out of which
the said property could have been acquired, the
burden shifts to the members of the family setting up
the claim that it is his personal property to establish
that the said property has been acquired without any
assistance from the joint family property."
39. In the subsequent decision of the Apex Court in the
case of Achuthan Nair v. Chinnammu Amma and others, reported
in AIR 1966 SC 411, it has been held in para 7 as under :
sa279.09.odt
"(7) ...Under Hindu law, when a property stands in
the name of a member of a joint family, it is incumbent
upon those asserting that it is a joint family property
to establish it. When it is proved or admitted that a
family possessed sufficient nucleus with the aid of
which the member might have made the acquisition,
the law raises a presumption that it is a joint family
property and the onus is shifted to the individual
member to establish that the property was acquired by
him without the aid of the said nucleus. This is a well
settled proposition of law. ..."
40. In the decision of the Apex Court in the case of Saroja
v. Santhilkumar and others, reported in (2011) 11 SCC 483, the
question was whether the properties in question were the joint
family properties belonging to Late Shri Ratna Mudaliar or were
the self-acquired properties of his son Arumugha Mudaliar. The
Apex Court held in para 8 of the said decision that the properties
stood in the name of Arumugha Mudaliar and there was no
documentary evidence to show that the properties were inherited
sa279.09.odt
by him, or that the properties originally belonged to his father
Late Shri Ratna Mudaliar. In the absence of such evidence, the
Court rejected the contention that the properties were the joint
family properties and not the self-acquired properties of
Arumugha Mudaliar.
41. Thus, there is a consistent view of the Apex Court that
if the property stands in the name of a coparcener of a Hindu
Undivided Family, then presumption is that it is his self-acquired
property, unless it is shown that it is acquired with the aid of
nucleus of the joint family property. The principles laid down by
the Apex Court in these decisions are attracted in the present
case, rather than the principles laid down by it in its decision in
the case of Mallesappa Bandeppa Desai and another v. Desai
Mallappa alias Mallesappa and another, cited supra.
sa279.09.odt
42. Once it is held that the plaintiff has failed to establish
(1) that the suit property is the joint family property, or (2) that it
is acquired with the nucleus of the joint family property, or
(3) that Shri Vishnu Pathak has blended the suit property in the
joint family property, the question of the suit property losing the
character as the self-acquired property of Shri Vishnu Pathak,
does not arise. As a result, Shri Vishnu Pathak was competent to
execute the registered will at Exhibit 191 and the registered
codicil at Exhibit 192, ultimately bequeathing the property in
favour of his unmarried daughters Ku. Suman Pathak and
Ku. Nalini Pathak. Obviously, when the said two daughters
could not get any share in the partition at Exhibit 213, the
intention to make provision for unmarried daughters was made
clear by executing the will and codicil at Exhibits 191 and 192.
sa279.09.odt
Neither the parties have advanced any argument on the
authenticity of the said will and codicil, which are proved in
accordance with law, nor have insisted upon framing any
substantial question of law arising out of the findings recorded by
the Courts below. The Courts below have held that Shri Vishnu
Pathak was not competent to execute these two documents to the
extent of the share of other coparcener in the suit property. Once
it is held that the suit property remained to be the self-acquired
property of Shri Vishnu Pathak, then the only course left upon is
to dismiss the suit by holding that Shri Vishnu Pathak was
competent to execute the will and codicil at Exhibits 191 and 192
in respect of the entire property.
43. For the reasons stated above, the second appeal is
allowed. The judgment and decree dated 6-3-2000 passed by the
sa279.09.odt
learned 2nd Joint Civil Judge, Junior Division, Yavatmal, in
Regular Civil Suit No.80 of 1981, as well as the judgment and
order dated 31-3-2009 passed in Regular Civil Appeal No.55 of
2000 by the learned Ad hoc District Judge-1, Yavatmal,
confirming the judgment and decree passed by the Trial Court,
are hereby quashed and set aside. Regular Civil Suit No.80 of
1981 filed by the respondent No.1 Smt. Usha w/o Prabhakarrao
Koparkar is dismissed with no order as to costs.
JUDGE.
PDL
