Allowed

Shri Shamsing Bahadursing Pardeshi and Another v. Shri Magansing Bhadursing Pardeshi and Others

Bombay HC17 Aug 2004SA/540/1988

Case brief

AI extract

What is this about?

In a second appeal concerning partition, the bench held that once the existence of a joint family nucleus with sufficient income to potentially acquire the disputed land was established, the burden shifted to the claimant. The lower courts erred in deciding the land was self-acquired without clear evidence of separate funds.

What did the court decide?

The second appeal was allowed and the decree of the appellate court was modified to order partition of the land bearing Gat no.43 along with the joint family property.

Shri Shamsing Bahadursing Pardeshi and Another Vs Shri Magansing… — Partition | Bombay HC (2004)

¶1

-1-

¶2

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 540 OF 1988

¶3

 Shamsing Bahadursing Pardeshi & Anr. .. Appellants
 vs.
 Shri Magansing Bahadursingh Pardesh
 & Ors. .. Respondents.
 ----
 Shri P.K. Dhakephalkar and Shri Amol Mhatre, Advocates
 for the Appellants.
 Shri Shriram S. Kulkarni, Advocate for Respondnet no.2

¶4

 CORAM : ABHAY S. OKA, J.
 DATE : 17TH AUGUST, 2004.

¶5

ORAL JUDGEMENT :

¶6

 1. On 4th July, 1989 this Court admitted the Second
 Appeal by observing that " the legal question involved

¶7

-2-

¶8

 is whether survey no.43 of village Lohoner is the joint
 family property or the self acquired property of the
 Defendant no.2?"

¶9

 2. The Second Appeal is preferred by the
 unsuccesful Original Plaintiff. The Respondents are the
 Defendants. For the purpose of understanding the
 factual controversy it will be necessary to refer to the
 genealogy of the parties which is as follows :

¶10

 Bahadursing (died on 17th September, 1963)

¶11

AND

¶12

 Mishribai (widow of Bahadursingh-Plff.no.2./Appl. no.2)

¶13

 -----------------------------------------------------

¶14

 Shamsing Magansing Govindsing Leelabai
 Plff no.1 Deft no.1 Deft.no.2 Deft.no.3
 Apll.no.1 Resp.no.1 Resp.no.2 Resp.no.3

¶15

 3. The Appellant no.1 and the Respondents no.1 and 2
 are the real brothers. The Respondent no.3 is the real
 sister of the Appellant no.1 and Respondnet no.1 and 2.
 The Appellant no.2 herein is the mother of Appellant
 no.1 and the Respondent nos.1 to 3. The case of the
 Appellants is that Bahadursing the husband of Appellant
 no.2 and the father of Appellant no.1 and the

¶16

-3-

¶17

 Respondents died on 17th September, 1963. the land
 bearing Gat no.32 and 43 alongwith Gram Panchayat house
 no.262 constituted joint family properties which are not
 partitioned. The case of the Appellants is that land
 bearing Gat no.43 is purchased by Respondent no.2 from
 the income of the joint family on 7th February, 1966.
 The Appellants claimed 12/25th share in the joint family
 property. The Appellants filed a suit for partition and
 separate possession.

¶18

 4. The Respondents no.1 filed written statement and
 resisted the suit. The case of Respondent no.1 is that
 he was suffering from mental illness and the Respondent
 no.2 gave medical treatment to him by incurring heavy
 expenditure. It is his case that Respondent no.2 made
 expenditure for repayment of loan, for the marriage of
 Appellant no.1, for maintenance of the Appellant no.2 as
 well as for the maintenance of the joint family. A case
 is made out that Respondent no.2 had to do labour work
 because the income from the joint family property was
 not sufficient. It is contended that land bearing Gat
 no.43 is a self acquired property of the Respondent
 no.2.

¶19

 5. The Respondent no.2 also filed his separate

¶20

-4-

¶21

 written statement and raised the same contentions. He

¶22

 admitted that land bearing Gat no.32 and house property
 no.262 are the properties of the joint family. He,
 however, contended that land bearing Gat no.43 was his
 self acquired property which was acquired by him from
 his own income and that he has not purchased the same
 from the income of the joint family. He has made out a
 case that area of Gat no.32 is only 19.3 guntas and land
 was yielding Bajra crop of not more than two bags per
 year and therefore the income received was not
 sufficient to maintain the joint family. The Respondent
 no.2 contended that he had spent large amounts on
 medical treatment of Respondent no.1 and on the marriage
 of Appellant no.1.

¶23

 6. The learned Trial Judge held that except the land
 bearing Gat no.43, the suit properties were the joint
 family properties. The learned Judge held that the
 Respondent no.2 purchased the land bearing Gat no.43
 from his own earnings and hence it cannot be a joint
 family property which can be subjected to partition. In
 an Appeal preferred by the Appellants the learned Second

¶24

 Additional District Judge, Nasik held that the
 Appellants have no share in Gat no.43 which is
 exclusively owned by the Respondent no.2. The learned

¶25

-5-

¶26

 Judge held that each Appellant and the Respondent nos.1
 and 2 have 6/25 share in land bearing Gat no.32 and the
 house property. The learned Judge further held that the
 Respondent no.3 has 1/25 share. A cross objection was
 filed by Respondent no.2 which was dismissed by the
 learned Judge. The Appellants have taken exception to
 the Judgments and Decrees of the Courts below by
 preferring this Second Appeal.

¶27

 7. The learned Counsel appearing for the Appellants
 Shri Dhakephalkar submitted that admittedly the
 agricultural land bearing Gat no.32 was the joint family
 property which was admittedly fetching some income. He
 submitted that the existence of nucleus from which
 property bearing Gat no.43 could have been purchased has
 been proved and therefore, the burden shifted on
 Respondent no.2 to establish that he has acquired land
 bearing Gat no.43 from his own income. The Learned
 Counsel further submitted that the Appellate Court has
 not considered the oral evidence on record. Without
 considering and without discussing the oral evidence in
 detail the Appellate Court has confirmed the Decree. He
 submitted that the Judgement of the Appellate Court is
 vitiated as the oral evidence on record is not
 considered and discussed. He submitted that the only

¶28

-6-

¶29

 burden on the Appellants was to prove existence of

¶30

 nucleus. He submitted that once it was established by
 the appellants that the property forming part of the
 nucleus was fetching some income, the entire burden
 shifted on Respondent no.2 to prove that Gat no.43 was
 acquired by him from his own individual income. Relying

¶31

 upon the Judgment of Apex Court in the case of

¶32

 Mallesappa Bandeppa Desai v. Desai Mallappa reported in
 AIR 1961 S.C. page 1268, he submitted that it was for
 the Respondent no.2 to prove by clear and satisfactory
 evidence his plea that the purchase money for acquiring
 land bearing Gat no.43 proceeded from his own separate
 funds.

¶33

 8. Shri Kulkarni, appearing for Respondent no.2

¶34

 submitted that it is not enough for the Appellants to
 prove mere existence of nucleus. What was required to
 be proved was the existence of sufficient nucleus with
 the aid of which joint family property could have been
 acquired. He submitted that unless existence of nucleus
 which is sufficient to acquire the property bearing Gat
 no.43 was established, the burden did not shift on the
 Respondent no.2. He pointed out that the income from
 the joint family property i.e. Gat no.32 was too meagre
 to maintain the family and therefore the Respondent no.2

¶35

-7-

¶36

 was required to work as an agricultural labourer. He
 submitted that a clear findings of facts are recorded by
 courts below which require no interference.

¶37

 9. In reply to the said submissions, the learned
 Counsel appearing for the Appellants submitted that it
 is not pleaded by Respondent no.2 in his written
 statement that he was cultivating the land of Mahadu
 Bhika. In any event he submitted that the evidence of
 Mahadu Bhika shows that the Respondent no.2 cultivated
 his land only for two years. He submitted that the
 findings recorded by the Courts below are perverse.

¶38

 10. I have considered the rival submissions. It is an
 admitted position that Gat no.32 is an agricultural land
 and is admittedly the property of joint family. It is
 also admitted that the said land is yielding some income
 which according to Respondent no.2 is very meagre.

¶39

 11. Considering this admitted position, it will be
 necessary to refer to the findings recorded by the Trial
 Court. As the Appellate Court has not considered in
 detail, the oral evidence, the counsel appearing for the
 parties have take me through the notes of evidence. The
 learned Judge in paragraph no.8 has referred to the

¶40

-8-

¶41

 evidence of the Respondent no.2 in which the Respondent
 no.2 has given details of various steps taken by him for
 the benefit of his family members including Appellant

¶42

 no.1. It is pointed out that the Appellant no.1 was
 only fifteen years of age at the time of demise of his
 father BahadurSing. He has given details of the income
 received by him by undertaking cultivation of the land
 of Mahadu Bhika. According to him he got sum of
 Rs.800/- to Rs.900/- from cultivation of the land of
 Mahadu Bhika for two years and from this amount he
 purchased Gat no.43 from Champabai. At this stage it is
 necessary to know that Champabai purchased the land
 bearing Gat no.43 from BahadurSing. In her deposition
 she has stated that Bahadur Sing was her maternal uncle.
 It is an admitted position that Champabai purchased land
 bearing Gat no.43 at the price of Rs.1,000/- from
 BahadurSing and she sold the said land to the Respondent
 no.2 for the price of Rs.500/-. Mahadu Bhika who was
 examined by Respondent no.2 stated that the Respondent
 no.2 cultivated his land for two years and Mahadu paid
 one half share in the income from his land to the
 Respondent no.2. He has stated that he paid to the
 Respondent no.2 a sum of Rs.500 to Rs.600/-. This
 figure is stated by him in the cross examination. In
 the Examination-in-chief he has stated that Respondent

¶43

-9-

¶44

 no.2 received income of Rs.800/- to Rs.900/-. The Trial

¶45

 Court has referred to the evidence of Respondent no.2 in
 which he has stated that he had to repay the family
 loans. The Trial Court has also referred to the
 evidence of Respondent no.2 that Respondent no.1 was
 required to be admitted in mental hospital and
 Respondent no.2 was required to pay for his medical
 treatment. After considering the entire evidence, in
 paragraph no.11 of the Judgment, the learned Judge
 recorded the following finding, "Considering the number
 of members joint family and land Gat no.32, its income
 cannot be sufficient for the maintenance of joint
 family. Hence, an inference can easily be drawn and
 justified from circumstances which came on record, that
 Defendant no.2 must have purchased the land Gat no.43 by

¶46

 his own income, and not from the income of land Gat
 No.32, which is only 19.3 Gunthas. Hence, Defendant

¶47

 Nos.1 and 2 proved that Gat No.43 is self acquired
 property of Defendant no.2". The Trial Court further
 held that considering the number of members of joint
 family and income received from Gat no.32, the said
 income cannot be sufficient for maintaining the joint
 family. therefore inference was drawn by the learned
 Judge that the Respondent no.2 must have purchased the
 land from his own income. As stated earlier, the Trial

¶48

-10-

¶49

 court has recorded that Respondent no.2 cultivated the
 land of Mahadu for two years and he got about Rs.800/-
 to Rs.900/- as income from the said land. There is no
 specific finding recorded that prior to purchase of land
 bearing Gat no.43 on 7th February, 1966, the Respondent
 No.2 received the said income from Mahadu. I am aware

¶50

 that the scope of an Appeal under Section 100 of the
 Code of Civil Procedure, 1908 is very limited. As no
 specific finding was recorded by the Trial Court in
 favour of Respondent no.2 that the income was received
 from Mahadu of Rs.800/- to Rs.900/- prior to 7th
 February, 1966 with a view to avoid injustice to
 Respondent no.2. I have perused the evidence of Mahadu.
 In examination chief he has stated that when Champabai
 was about to sell the land to Respondent no.2, the
 Respondentno.2 took money from him from the income of
 his land. In the cross examination, what has been
 stated is that Respondentno.2 culivated his land for two
 years and he paid one half share in the crops after
 deducting the expenses. As stated earlier, there is no
 clear finding recorded by the Trial Court that income
 which was received by the Respondent no.2 from
 cultivation of the land of Mahadu was prior to 7th
 February, 1966. Even if the evidence of Mahadu is read
 as it is, there is hardly anything in the said evidence

¶51

-11-

¶52

 to prove that the income was received by the Respondent
 no.2 prior to 7th February, 1966. Apart from the income
 allegedly received by the Respondent no.2 from Mahadu,
 there is no specific finding recorded by the Trial Court
 as regards of any specific income from any other source.
 So far as the Appellate Court is concerned, again there
 is no specific finding as regards the period during
 which the Respondent no.2 cultivated the land of Mahadu.
 It is an admitted position as reflected from both the
 judgments of the Courts below that so far as the
 cultivation of land of Mahadu by Respondent no.2 is
 concerned, no entry to that effect is found in the 7-12
 Extracts. The Appellate Court simply stated that
 Respondent no.2 was cultivating six acres of irrigated
 land of Mahadu and earning about Rs.800/- to Rs.900/-
 per year and from those savings he purchased Gat no.43.
 This finding is recorded without reference to the period
 during which Respondent no.2 cultivated the land of
 Mahadu. It is also to be stated here that it is not the
 case of Respondent no.2 that he made savings from the
 amount which he received from Mahadu.

¶53

 12. Therefore taking into consideration the findings
 recorded by the Trial Court as it is, the legal position
 will have to be examined. Reliance was placed on the

¶54

-12-

¶55

 paragraph nos. 17 and 18 Judgement of the Apex court
 reported in (2003) 10 S.C.C. page 310 (D.S. Lakshmaiah
 v/s L. Balasubramaniyam) which read thus:

¶56

 17. In view of the aforesaid discussion, the
 Respondents having failed to discharge the
 initial burden of establishing that there was
 any nucleus in the form of any income whatsoever
 from Item 2 property and no other nucleus was
 claimed, the burden remained on the Respondents
 to establish that Item I property was joint
 family property. In this view, the fact that
 the first Appellant has not led any evidence to
 establish his separate income is of no
 consequence insofar as the claim of the
 Respondents is concerned. Under these
 circumstances, for failure to lead evidence, the
 Respondents claim of Item I to be joint family
 property would fail as rightly held by the first
 appellate Court.

¶57

 18. The legal principle, therefore is that
 there is no presumption of a property being
 joint family property only on account of

¶58

-13-

¶59

 existence of a joint Hindu family. the one who
 asserts has to prove that the property is a
 joint family property. If, however, the person
 so asserting proves that there was nucleus with
 which the joint family property could be
 acquired , there would be presumption of the
 property being joint and the onus would shift on
 the person who claims it to be self-acquired
 property to prove that he purchased the property
 with his own funds and not out of joint family

¶60

 nucleus that was available. "

¶61

 13. In the case of Mallesappa Bandeppa Desai v.

¶62

 Desai Mallappa (supra) the Apex Court in paragraph no.15
 held that "But 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 coparcerners".

¶63

-14-

¶64

 14. It is also necessary to refer to the Judgment of
 the Apex Court reported in AIR 1969 SC page 1076 (Mudi
 Gawda v/s. Ramchandra Rawagowda Sankh) the said judgment
 is rendered by a bench constituting of three Hon’ble
 Judges of the Apex Court. Relying upon the said judgment
 in the context of the law laid down by the Apex Court, a
 contention was raised by the learned Counsel for the
 Respondent no.2 that it is not enough for the Appellants
 to prove the existence of joint family property forming
 nucleus. According to learned Counsel it must be
 established by the Appellants that the income received
 from the property forming part of the nucleus was
 sufficient from which the property in dispute could have
 been acquired. In the case of Mudi Gowda vs. Ram
 chandra Ravagowda Sankh (supra) the Apex Court held that
 the requirement of law is that the joint family property
 must be such as with its aid the property in question
 could have been acquired. If such fact is established
 the burden will shift on the person who claims that the
 property is self-acquried property. It must be noted
 here that Respondent no.2 is claiming to have acted as
 ‘Karta’ and manager of the joint family. In this context
 the law laid down by the Apex Court in the case of
 Mallesappa Desai is very relevant. The Apex Court held
 that where a manager claims that an immovable property

¶65

-15-

¶66

 has been acquired by him with is own separate funds of

¶67

 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. The Judgment of Apex
 Court in the case of D.S. Lakshmaiah & Ors. vs. L.
 Balasubramanyam & Ors (supra) cannot be read as authority
 for a proposition that a co-parcener who asserts that
 there was an existence of nucleus, burden is on him to
 prove that the quantum of income received from the
 nucleus was such that with the said income the property
 in dispute could have been acquired. What is required to
 be shown is the existence of nucleus with the aid of
 which the property could have been acquired as held by
 the larger bench of the Apex Court in the case of Mudi
 Gowda (supra). It is not the finding of the Court below
 that no income was being derived from the land bearing
 Gat no.32. The finding of the Courts below is that the
 income was not sufficient. As stated earlier there is no
 specific finding recorded by the Courts below that prior
 to the acquisition in 1966, the Respondent no.2 had such
 earning from which he could have paid Rs.500/- to
 Champabai for acquiring the land in question.

¶68

-16-

¶69

 15. Therefore taking into consideration the findings
 of the Courts below as it is, it is clear that the
 existence of nucleus was established by the Appellants.
 When the burden shifted on Respondent no.2 it was for
 him to establish as held by the Apex Court in the case
 of Mallesappa by producing clear and satisfactory
 evidence that the entire purchase money proceeded from
 his separate funds. In my view, therefore, the courts
 below committed clear error of law by holding that the
 land bearing Gat no.43 was not the property of the joint
 family. Hence, the Appellants must succeed.

¶70

 16. Hence, I pass the following order. The Second
 Appeal is allowed. the Decree passed by the Appellate
 Court is modified to the extent that alongwith land
 bearing Gat no.32 and the house property, land bearing
 Gat no.43 shall be also partitioned. There will be no
 orders as to costs.

¶71

 . C.C. expedited.

¶72

 sd/-

¶73

JUDGE

Shri Shamsing Bahadursing Pardeshi and Another v. Shri Magansing Bhadursing Pardeshi and Others

Case brief

What is this about?

What did the court decide?

Shri Shamsing Bahadursing Pardeshi and Another v. Shri Magansing Bhadursing Pardeshi and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Bandu Dhondu Katkar Vs Maruti Deo (Pandharicha)

Shri Dinkar S. Kajale and Anr. Vs Shri Ganpati R. Kadam and Ors.

B.B.Paymaster and Ors. Vs Baurawa Sangappa Kadappati and Anr.

The Chief Officer, Phaltan Municipal Council Vs the State of Maharashtra and Ors.

Vasudeo Vitthal Relekar Vs Arunsidhayya Jangam and Ors.

Navnath Dadarao Govardhankar Vs Devu Bali Arekar (Desd) Lrs.