Smt. Revamma Wife of Sri Municipal Puttaiah and Sri Renukaiah Son of Sri Bheemaiah Vs. Sri Basha Saab Son of Sri HussaIn Saab and Smt. Hanumakka Wife of Sri Ramaiah - Court Judgment

Excerpt:
- code of civil procedure, 1908. order 20, rule 18: [ajit gunjal, j] suit for partition and separate possession claim that certain property was purchased from nucleus of joint family property held, where it is established or admitted 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 presumption arises that it was joint property and the burden shifts to the party alleging self acquisition to establish affirmative that the property was acquired without the aid of the joint family. however, no such presumption would arise if the nucleus is such that with its help the property claimed to be joint could not have been acquired. in order to give rise to the presumption the nucleus must be such that with its help the property claimed to be joint could have been acquired. whether the evidence adduced by a party is sufficient to shift the burden, which initially rested on him to establish that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and extent of the nucleus. an important element for consideration is the income, which the nucleus yielded. a family house in the occupation of the members and yielding no income could not 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 form the foundation of the subsequent acquisitions. what is required to be shown is that the family had as a result of the nucleus sufficient income from which the subsequent acquisitions could be made. - 4 would support the judgment and decree paused by the appellate court he submits that the plaintiff, during the course of evidence has admitted intelligent and he was also doing arecanut business and he had earned enough money. she would admit that the 1st defendant was in the business of purchase and sate of cattle and was intelligent and he had garnered enough money from the sale of cattle.ajit j. gunjal, j.1. the appeals are admitted to consider the following substantial question of law:whether the lower appellate court was justified in reversing the judgment and decree of the trial court holding that item no. 2 is self-acquired property of defendant no. 1?both these appeals are disposed of by this common judgment. during the course of this judgment, the parties would be referred to as per their ranking in this trial court.appeal no. 883/2006 is filed by the plaintiff. appeal no. 1240/2006 is filed by defendants 2 and 3.2. plaintiff filed a suit for partition and separate possession of 1/6th shore in the suit schedule property. the suit schedule properties are item no. 1 which consists of 0.22 guntas of wet land, one old house and one new house situated at honnudike village; the second item which consists of a dry land measuring 4 acres 35 guntas in sy. no. 114/3 and 3 acres 1 guntas in sy. no. 114/ 4 of tavarekere village; the third item is in respect of movable properties. it is the case of the plaintiff that she is the third daughter of late veeranna. the 2nd defendant and badramma are sisters of the plaintiff, badramma died leaving behind the 3rd defendant as the sole hair. the father of the plaintiff and his brother the 1st defendant did not divide the family properties among themselves. it is the case of the plaintiff that after the death of the plaintiff's father, the 1st defendant continued to be the kartha of the joint family though the members of the joint family are living at different places. the 1st defendant purchased item no. 2 and 3 from the nucleus of the joint family property. the 1st defendant, on 14.03.1988 sold item no. 2 of the suit properties in favour of the 4th defendant without the consent of the plaintiff and the said sale is not binding on them. hence, the present suit for partition and separate possession.3. the defendants filed their written statement. during the pendency of the trial, the 1st defendant died and his widow was brought on record. but however, she also died during trial. the plaintiff and defendants 2 and 3 have become the legal representatives of 1st defendant and his wife. defendants 2 and 3 separately filed their written statement. the 4th defendant also filed a separate written statement. in the written statement, the relationship inter se between the plaintiff and the defendant is admitted. but however, they denied that there is no division between veeranna and the 1st defendant. it is also admitted that the 1st defendant had sold item no. 2 in favour of the 4th defendant on 14.03.1968. it is their further case that deceased veeranna and revanna were residing separately inasmuch as veeranna was permanent resident of kodipalya and revenna was resident of honnudike village. it is their case that veeranna and revanna had acquired some properties together and some properties independently. however, both divided the properties acquired jointly leaving the properties acquired by them individually. in the said partition veeranna got 18 guntas in sy. no. 223/1 and 13 guntas in sy. no. 2272 and kaneshmari no. 318 and 319 at honnudike village. since then, both veeranna and revanna have been enjoying the properties separately, it is the specific case of the 1st defendant that item no. 2 in purchased from his own income and it should be treated as self-acquired property, he further avers that the joint family did not have surplus income to purchase item no. 2. the other defendants i.e., defendants 2 and 3 have supported the case of the plaintiff and also sought for share in the family properties.4. defendant no. 4, who is the purchaser of the suit properly has filed different written statement inter alia contending that he is a bonafide purchaser. since the date of the sale deed, he is in possession. he also avers that he has developed the said land spending considerable amount. he would further assert that item no. 2 was the self-acquired properly of the 1st defendant.5. on the basis of these pleadings, the learned trial judge has framed as many as nine issues and 3 additional issues, the learned trial judge on the basis of evidence has recorded a finding that item no. 2 is a joint family property. he has also further recorded a finding that the plaintiff, along with defendants 2 and 3 are entitled for a share in the suit schedule property. in so far as the sale in favour of defendant no. 4 is concerned, the learned trial judge has held that the sale would bind the share of defendant no. 1 and granted a decree for partition in respect of the remaining half .6. aggrieved by the said judgment and decree, the 4th defendant preferred an appeal. the learned appellate judge, on re-assessing the evidence on record has recorded a finding that item no. 2 is self acquired property of defendant no. 1 inasmuch as defendant no. 1 was doing business and had earned enough money to purchase item no. 2 pursuant to a sale deed in the year 1959, consequently, allowed the appeal. but however, maintained the decree for partition in respect of the other items. as against the said judgment and decree of the appellate court plaintiff and defendants 2 and 3 ate before this court.7. mr. arbatti, learned counsel appearing for the defendants 2 and 3 and mr. m.b. chandrachooda, learned counsel appearing for the plaintiff would submit that the finding recorded by the learned appellate judge that the property is a self-acquired property of defendant no 1 is not based on any evidence. they would further contend that the learned trial judge on the material placed had recorded a finding that item no. 2 is the joint family property. they would further contend that without meeting the reasoning of the learned trial judge, the learned appellate judge has reversed the finding.8. mr. srinivas, learned counsel appearing for defendant no. 4 would support the judgment and decree paused by the appellate court he submits that the plaintiff, during the course of evidence has admitted intelligent and he was also doing arecanut business and he had earned enough money. consequently, he submits that the learned appellate judge was justified in reversing the finding in so far as item no .2 is concerned.9. indeed there is always a presumption that the joint family continues to be joint. the normal state of every hindu family is joint. presumably, every hindu family is joint in food, worship and estate. in the absence of proof of division of a joint hindu family the presumption is. until the contrary is proved, the family continues to be joint but however, it is also to be noticed that there is no presumption that a family, because it is joint, possesses joint property or any property. when in a suit for partition, the one who claims that any particular item of the properly is joint family property, and would assert that the property is joint family property, the burden would rest on him to prove that it is. a joint family. to render the property joint, the plaintiff must prove that the family was possessed of some property with the income from which, the property could have been acquired or from which the presumption could he drawn that all the property possessed by the family is joint family property. where it is established or admitted 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 presumption arises that it was joint property and the burden shifts to the party alleging self acquisition to establish affirmative that the property was acquired without the aid of the joint family. however, no such presumption would arise if the nucleus is such that with its help the property claimed to be joint could not have been acquired. in order to give rise to the presumption the nucleus must be such that with its help the property claimed to be joint could have been acquired. whether the evidence adduced by a party is sufficient to shift the burden, which initially rested on him to establish that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and extent of the nucleus. an important element for consideration is the income, which the nucleus yielded. a family house in the occupation of the members and yielding no income could not be a nucleus out of which acquisitions could be made, even though it might be of considerable value.10. on the other hand, a running business in which the capital invested is comparatively small might conceivably produce substantial income, which may there are no abstract question of law but question of fact to be determined on the evidence in the case. the wide proposition that once the ancestral nucleus is proved or admitted, the onus on the member to prove that fee properly acquired was his self-acquisition cannot be accepted as correct. the existence of some nucleus is not the sole criterion to impress the subsequent acquisitions with family character. what is required to be shown is that the family had as a result of the nucleus sufficient surplus income from which the subsequent acquisitions could be made.11. in the case on hand, it is to be noticed that the properties, which are required to be divided are a small bit of agricultural tend bearing sy. no. 227/1 which would measure 22 guntas, one old house and one new house. apparently, the residential houses certainly would not generate any income, which would form the part of the nucleus of the joint family to acquire item no. 2. it is also not forthcoming in the evidence of plaintiff that, to discharge the initial burden, the joint family property would generate income for the acquisition of item no. 2. in fact it is to be noticed that the joint family owned only one agricultural land, which could be termed as a property, which would generate income. obviously, the joint family consisted of defendant no. 1 and his brother and his children. in fact there must be surplus income after meeting the daily necessities, which could be termed as a nucleus for purchase of the joint family property. in the case on hand, it is to he noticed that the plaintiffs or defendants 2 and 3 have not let in evidence to show that, after meeting the family necessities and expenses, there was surplus income for purchase of item no. 2. it is useful to refer to the evidence of the plaintiff. she would admit that the 1st defendant was in the business of purchase and sate of cattle and was intelligent and he had garnered enough money from the sale of cattle. she also admits that the 1st defendant was doing arecanut business and from that also he was generating enough income and out of the said income he had purchased the property. in view of the paucity, of evidence and also, having recorded a finding that the joint family property namely the agricultural land would not have purchase item no. 2. i am of the view that the said finding recorded by the learned appellate judge cannot be faulted. the substantial question of law, which is framed, is answered accordingly, there is no merit in these appeals.consequently, both the appeals stand dismissed.