Bombay High Court
Balaji S/O Khushal Charpe vs Keshao S/O Khushal Chapre & Ors on 31 August, 2017
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.194 OF 2008
APPELLANT: Balaji S/o Khushal Chapre, Aged about
46 years, Occ: Business, R/o Deshpande
Ori. Plff. No.1
Layout, Near Wardhaman Nagar, Plot
On R.A. No.574, Ward No.22, Nagpur.
-VERSUS-
RESPONDENTS: 1. Keshao S/o Khushal Chapre, aged about
Ori. Deft. No.1 51 years, Occ: Business,
and 2 on R.A.
2. Smt. Vijaya w/o Keshao Chapre, Aged
about 42 years, Occ: Household,
Both resident of Chapre Mohalla,
Tinkhamba, Timki, Nagpur.
Ori. Plffs No.2, 3 3. Smt. Yamunabai wd/o Khushal Chapre,
to 4 on R.A.
aged about 68 years, Occ: Household,
R/o C/o Shantaram Umredkar,
Tandapeth, Near Naik Talao, Navi Basti,
Nagpur (Deleted)
4. Smt. Parvatibai Shavashankar Katwa,
aged about 60 years, Occ:Household,
R/o Pachpaoli Near Thakkar Gram
Temple, Nagpur.
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5. Smt. Bhagirathibai w/o Shantaram
Umredkar, aged about 54 yea5rs, Occ:
Household, R/o Tandapeth, Near Naik
Talao, Navi Basti, Nagpur.
Shri H. R. Gadhia, Advocate for the appellant.
Shri S. R. Renu Advcoate h/f Shri Rohit Joshi, Advocate for the
respondents.
CORAM: A.S. CHANDURKAR, J.
DATED: AUGUST 31, 2017.
ORAL JUDGMENT :
1. The appellant is the original plaintiff who is aggrieved
by the judgment of the first appellate Court by which the appeal
preferred by the original defendants has been partly allowed and
the decree passed by the trial court has been modified.
2. The facts relevant for adjudicating the appeal are that
one Khushal Chapre was married with one Yamunabai. They had
two sons and two daughters. Said Khushal was professing family
business as a weaver. The plaintiff is the younger son of said
Khushal while the defendant no.1 Keshav is the eldest son.
According to the plaintiff, being elder son the defendant no.1 was
looking after the business of the family. The income of Khushal
from the family business of weaving was about Rs.3500/- per
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month. After meeting the family expenses, there was a saving of
Rs.2500/- per month. According to the plaintiff, by the end of the
year 1979 there was a total saving of Rs.1,80,000/-. The defendant
no.1 purchased a plot at Wanjra layout in the year 1980 for
Rs.43,000/-. After about six months, he purchased another plot
for Rs.27,300/- at Binaki layout. These purchases were made in
his individual name through funds of the family business. As an
objection was raised by the plaintiff to the purchase of properties
in his own name, the defendant no.1 in the year 1985 purchased
two plots from joint family funds. One plot was purchased in the
name of the mother and one in the name of wife of the defendant
no.1. The aforesaid two plots were then sold out and a flat was
purchased at Giripeth in the year 1988 in the name of the wife of
the defendant no.1 for about Rs.80,000/-. On that basis, the
plaintiff sought declaration that various properties were joint
family properties and that he had 1/5th share in the same. A
decree for partition was accordingly prayed for.
3. The defendant nos.1 & 5 filed their written statement
at Exhibit-30. The said defendants denied that the properties
purchased were from joint family funds. It was pleaded that the
defendant no.1 was in service with one Shri Lanjewar in the year
1967 up to 1972. He then joined services with the Maharashtra
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Handloom Corporation from 1973 to 1977. It was pleaded that
said defendant was residing separately and that all properties
purchased were from his own funds.
The defendant nos.2, 3 & 4 filed their written
statement at Exhibit-29 and supported the case of the plaintiff.
The defendant no.2 who was the mother admitted that she had no
source of income.
4. The plaintiff examined himself and one witness.
Similarly, the defendant examined himself and one witness. The
trial Court after considering the evidence on record found that in
the year 1980, the defendant no.1 had purchased two plots in his
own name from the family funds. There were other purchases
made in the year 1985 in the name of the mother and wife of the
defendant no.1. On that basis, the trial Court decreed the suit and
granted 1/5th share from the suit properties to the plaintiff.
In the appeal filed by the defendant nos.1 and 5, the
appellate Court held that except the ancestral house bearing
No.280-A there was no evidence to indicate that the other
properties were purchased from joint family funds. The evidence
led on behalf of the defendant was accepted and the appeal was
partly allowed. Being aggrieved, the plaintiff has filed this appeal.
5. While admitting the appeal the following substantial
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question of law was framed:
Whether the first appellate Court should have
considered the fact that the family has had 25
hand-looms and the father and the sons were
carrying on the business together, it could be still
said that the property acquired in the name of
defendant no.1 was not joint family property?
6. Shri H. R. Ghadia, learned Counsel for the
appellant submitted that from the pleadings of the parties and
the evidence on record, it was clear that the properties
purchased by the defendant no.1 were from joint family funds.
He referred to the evidence on record to indicate that the
family was having twenty five hand looms. Fifteen hand looms
were at the residential house while other ten handlooms were
at the premises of one Narayan Taklikar. It was an admitted
position that neither the mother nor the wife of the defendant
no.1 had any source of income. As the defendant no.1 was the
eldest son, he was looking after the business and on the basis of
income earned from this business, the aforesaid properties were
purchased. According to him, the appellate Court did not
appreciate the evidence in a proper manner while reversing the
decree of the trial Court. The learned Counsel relied on the
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decisions of the Hon'ble Supreme Court in Mudi Gowda
Gowdappa Sankh vs. Ram Chandra Ravagowua Sankh 1969(1)
SCC 386 and D. S. Lakshmaiah and another vs.
L. Balsubramanyam and another 2003(10) SCC 310. On that
basis, it was urged that once it was shown that the family was
doing business of yarn and was gaining income from the same,
the burden was on the defendant no.1 to prove that the
properties purchased were from his own income.
7. Shri S. R. Renu, learned Counsel for the defendant
nos.1 and 5 on the other hand supported the impugned
judgment. It was submitted that the plaintiff had failed to prove
that there was sufficient nucleus of the joint family. The
properties purchased were from the own income of the
defendant no.1 as he was residing separately and was in the
employment. It was on the basis of his own efforts that the
defendant no.1 could purchase the suit properties. Merely
because two properties were purchased in the name of his wife
and his mother, the same would not indicate that they were
joint family properties. The learned Counsel placed reliance on
the decision of the Hon'ble Supreme Court in D.S. Laxmaiah
and another (supra) and judgment in Second Appeal
No.156/1998 decided on 16-12-2013 (Suresh S/o Gadibabu
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Bhambal and others Vs. Baburao S/o Janbaji Bambhal (dead)
through Lrs.). It was thus submitted that there was no reason to
interfere with the judgment of the appellate Court.
8. I have heard the learned Counsel for the parties at
length and I have also perused the evidence on record. Before
answering the substantial question of law, the legal position
with regard to joint family property as laid down by the Hon'ble
Supreme Court may be referred to. In D.S.Laxmaaiah (supra)
after referring to the earlier decision of the Hon'ble Supreme
Court, it was observed that there is no presumption of a
property being joint family property only on account of
existence of joint Hindu family. One who asserts has to prove
that the property is a joint family property. If such person
proves that there was nucleus with which the joint family
property could be acquired then there would be presumption of
the property being joint. The onus would shift on a person who
claims to be a self acquired property to prove that he has
purchased the same with his own funds and not out of joint
family nucleus that was available.
9. In the plaint, it was pleaded that the defendant
no.1 being the eldest son was looking after the family business
alongwith the father Khushal. From 1973 to 1979 said Khushal
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had twenty five hand looms and income of Rs.3500/- per
month was being earned. There was net saving of Rs.2500/-
per month. By the end of 1979, the family had a saving of
Rs.1,80,000/-. In the year 1980 two plots came to be purchased
by the defendant no.1 for a total consideration of Rs.70,000/-.
According to the plaintiff, all this was possible only because the
defendant no.1 was incharge of the family business. The
plaintiff examined himself at Exhibit-50. He deposed in terms
of his pleadings. In the cross-examination, he stated that
fifteen hand looms were being run inside the house while ten
handlooms were at the house of one Narayan Taklikar. The
handlooms were purchased by his father in the year 1973. He
further admitted that the defendant no.1 was working as Dying
Master with Shri Lanjewar in his workshop till 1972. It was
denied that the brother had purchased all properties from his
own funds.
10. The defendant no.1 examined himself at Exhibit-57.
He stated that initially he worked with one Shri Lanjewar and
then as Assistant Dying Master with Handloom Corporation. He
placed on record rent receipts to indicate payment of rent and
separate residence. In his cross-examination, he stated that he
could not produce the salary certificate either from Shri
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Lanjewar or the Handloom Corporation. Though he stated that
he would examine a witness from the aforesaid two entities,
they were not examined. He further admitted that he
purchased a plot for Rs.43,000/- at Wanjra layout and another
plot for Rs.27,300/- from Binaki Layout. Though payments
were made by cash and cheque and he had stated that he was
running a bank account, its details were not furnished. He
admitted that his wife had no source of income and he had not
given financial assistance to his mother to purchase the plot.
The other two witnesses examined on his behalf are for
indicating that the defendant had taken the premises on rent.
11. On consideration of this evidence, the trial Court
held that on the basis of earnings of the family there was a
saving of Rs.1,80,000/-. The properties purchased were from
the family income. The appellate Court on the other hand
proceeded to hold that there was no sufficient income to
indicate that the purchases were from joint family funds.
12. While considering the nature of relief sought by the
plaintiff, the pleadings of the parties and the evidence on
record would have to be considered in the backdrop of the fact
that the income was said to have been earned from the family
business of hand loom yarn. The evidence of the parties was
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recorded in the year 1993 and the defendant no.1 stated his
age at that juncture to be about 43 years. On that basis it can
be gathered that he was born in the year 1950 while the
plaintiff who is his younger brother was born in the year 1953.
Though it is true that the initial burden to prove existence of
nucleus is on the plaintiff, at the same time the stand taken by
the defendant no.1 along with the evidence on record also will
have to be considered. In so far as the House No.280-A is
concerned, it has been held to be the ancestral house by both
the Courts.
13. The plaintiff has deposed about the family having
fifteen looms in the house and ten looms at the place of
Narayan Taklikar. The looms were purchased in 1973. The
defendant no.1 was aged about 23 years at that time. The
looms were purchased by his father. Nothing much has been
elicited in his cross-examination. His admission that his father
used to purchase one yarn from the Handloom Corporation
after 1979 has been misread by the first appellate Court for
disbelieving the case of the family having twenty five Hand
Looms. Failure to examine Narayan Taklikar also cannot wipe
out the entire case of the plaintiff.
14. The purchase of two plots in the year 1980 by the
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defendant no.1 is for a total consideration of Rs.70,300/-. The
defendant no.1 in the year 1980 was aged about 30 years. In
his cross-examination the defendant no.1 admitted that he had
purchased both the aforesaid plots. Though payments were
made partly by cheque and partly by cash, he could not
remember the details. Though he was having a bank account,
the details of the same were not produced. Similarly, it was
admitted that neither his wife nor his mother had any other
source of income. It cannot be lost sight of that the salary
certificates which the defendant no.1 claimed to have been
issued by Shri Lanjewar or the Handloom Corporation were
also not produced. In other words, the defendant no.1 has not
led any evidence to indicate his source of income in the year
1980. Though it can be presumed that he may have been
earning some income, considering the purchase of two plots in
the year 1980 for consideration of Rs.70,300/- coupled with
the absence of any evidence as to his income, it is difficult to
accept the stand that at the age of 30 year, he had earned
aforesaid amount for purchasing the same. It is not the case
that the family had purchased some other properties in that
period. In fact, it is only the defendant no.1 who has purchased
all the properties. Thus, considering the evidence on record led
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by the parties on the touch stone of preponderance of
probability, it will have to be gathered that the purchase of
these two plots was from the family funds.
15. In the plaint it was pleaded that the aforesaid two
plots were sold for Rs.45,000/- and Rs.1,20,000/- respectively.
There was a general denial to this assertion in the written
statement. In the evidence led by the plaintiff, he deposed in
para 3 that after selling those plots, the defendant no.1
purchased a flat in the name of his wife at Giripeth. There is no
specific cross-examination by the defendant on this aspect.
Similarly, in his deposition, except stating that the properties
purchased were from his own income, no details about the
manner of purchase were given. Except a general statement
there is no evidence placed on record to indicate that such
funds were available with him. The details of the bank account
of the defendant no.1 could have been given. It can thus be
gathered from the evidence that after the plots were purchased
in the year 1980 for consideration of Rs.70,300/- the same
were subsequently sold some time in the year 1988 as pleaded
after which the flat at Giripeth came to be purchased. The
defendant no.1 having admitted that his wife had no source of
income, it was for him to place on record the manner in which
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the purchase of this flat was made.
16. In so far as the plots purchased in the name of the
mother and wife of the defendant no.1 is concerned, the same
are shown to have been purchased in the year 1985 for
Rs.2000/- each. Considering the value of these plots, it is likely
that the same were purchased by the defendant no.1 from his
own income in 1985. Similarly in so far as Plot No.132 at
Chambharnala is concerned the same is shown to have
purchased by the defendant no.1 for a sum of Rs.12,500/-. The
plaintiff in his deposition admitted that this plot at
Chambharnala was purchased in the year 1985. Hence, for the
same reason as assigned for the purchase of plots in the name
of the wife and mother and considering the value of this plot
being Rs.12,500/- it will have to be held on preponderance of
probabilities that these properties were purchased by the
defendant no.1 from his own income when he was aged about
35 years of age.
17. On an overall consideration of the pleadings of the
parties and the evidence on record, I find that the plaintiff is
entitled for relief with regard to properties purchased in the
year 1980 by the defendant no.1. These properties were then
sold in 1988 for purchasing another property in the name of
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defendant No.5.
18. In view of aforesaid, the decree passed by the first
appellate Court would be required to be modified. In addition
to the share in the house bearing Corporation No.280-A
situated at Chapre Mohalla, the original plaintiff would also
have equal share in the 3rd floor flat in the building on Plot
No.1057 at Giripeth. In so far as the properties at Manewada
Surveyors Colony and Plot No.32 at Chambharnala the plaintiff
is not entitled for any share. Accordingly, the judgment in
Regular Civil Appeal No.532/2000 is partly modified in
aforesaid terms. The Second Appeal is partly allowed in
aforesaid terms. No costs.
JUDGE
/MULEY/
