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IN THE HIGH COURT OF BOMBAY
Sharad Manohar, J.
Shankar Ramchandra Iparkar since deceased by his heirs.... Appellants.
Versus
Bhanudas Shankar Iparkar others.... Respondents.
Second Appeal No. 382 of 1978, decided on 23/24-6-1986.
Advocates appeared :
M.V. Paranjape with V.D. Govilkar, for applicants.
C.A.Phadkar, for respondents Nos. 327.
M.B. Baadkar, for respondents Nos, 1 and 2
As regards the first argument viz., that defendant No. 1 did not have funds with him to purchase the suit properties with, to my mind, the approach to the question is somewhat topsturvy, almost in the nature of putting the Cart before the horse. It is the plaintiffs who have to come to Court to establish their title to the suit lauds. They can do so only if they prove that the suit lands were properties of the joint family of which joint family they were members. For that purpose, they have to show that though the properties were purchased by defendant No. 1 in his own name, he purchased them with the funds belonging to the joint family property with the help of which the suit lands could be purchased. Point is that the onus of proving of these facts is squarely upon the plaintiffs. If they failed to do so, they are out of Court and whether defendant No. 1 had been successful in establishing his capacity to purchase the laud or not is immaterial in that case. In the present case, not only that the plaintiffs have not succeeded in establishing the nucleus, but really speaking, they have not even pleaded the nucleous. Their Own case made out in the plaint digs the grave of that plea. Even the evidence led by the plaintiffs and defendant No.4 does not carry their case any further. The question as to Whether defendant No. 4 had the financial capacity to purchase the land is, therefore, immaterial.
It is for the plaintiffs to prove in the first instance that the lands in question were purchased with the aid of joint family funds. It is only if they succeeded in proving that fact that the onus to prove that he purchased the lands out of his own funds would shift to defendant No. 1. The plaintiffs having failed to prove their case, the question whether the defendant No. 1 has proved his capacity to purchase or not is really irrelevant.
No authority is cited in support of this proposition. Once it is found that there is no nucleus existing, there is no presumption that the property purchased by co-parcener is a joint family property. There is no Such presumption as urged Mr. Phadkar that any property purchased by any coparcener is presumed to be joint family property even though the joint family as such had no funds to purchase the property with.
What is being confused is the joint family with the joint family property. It may be true that the sheer fact that defendant No. 1 and 4 are the sons of Ramchandra would make them members of the joint family but the fact that they are members of joint family Would not mean that the joint family owned any property. If it was proved that Ramchandra had left any property, the property became joint family Property in the hands of defendant Nos. 1 and 4. But, admittedly, all the properties left by Ramchandra were sold away; the joint family therefore, continued to have no joint family property the aid of which the suit properties could be purchased by defendant No.1. The further contention that defendant No. 1 was the manager of the joint family is neither here not there. The concept of manager has relevance in the Context of the joint family property because it is the property which he manages. In the absence of any joint family property, the managerial position is of no relevance of significance.
If a person is in the conventional sense the "manager" because he happens to be the eldest brother and if he has no joint family property or fund with the help of which he could purchase any other property, no question of any property, purchased by him enuring automatically to the benefit of the joint family would arise at all ; the manager can purchase property and contend legitimately that it is his own personal property and unless the nucleus is proved, his contention shall to be upheld.
This is a cases where the learned Judge has failed to appreciate the evidence and has failed to record a judicial finding. The case is directly and squarely governed by Section 103 of the Code of Civil Procedure and hence this Court has jurisdiction not only to interfere with the finding but even to reappreciate the entire evidence and to arrive at its own finding may; it will be the duty of this Court in the circumstances, as the present one to do so. The bogie of the concurrent finding of fact therefore, need not impede this Court in arriving at a correct finding after appreciation of the evidence.
The provisions of Sections 103 of the Code of Civil Procedure give full jurisdiction to this Court even to re-appreciate the evidence in a case where a particular issue has been left by the lower Court judicially undecided. Moreover, it is a fallacy to contend that there existed any legal evidence to support the so-called concurrent finding of fact relating to existence of nucleus. As stated above, the evidence is, in fact, not even admissible; but even assuming that there existed any such evidence bad to re-appreciated by the lower Court. The failure on the part of the lower Court to appreciate the evidence give jurisdiction and justification to this Court to re-appreciate the evidence by itself.
SHARAD MANOHAR, J.:---The appellants before me are the heirs and legal representatives of original defendant No.1, who has filed this appeal against the decree for partition passed by the trial Court in flavour of plaintiffs and defendant No. 4. The original plaintiffs are respondents Nos,1and 2 and original defendant No. 1 is respondent No. 3 before me. Original defendants Nos. 4 to 7 are respondents Nos. 5 to 8 before me. Original defendants Nos. 2 and 3 appear in this appeal is two-fold capacity (i) their individuals capacity (ii) in their capacity of heirs of deceased defendant Nos. 1.
For the sake of convenience, the parties will be referred to as plaintiffs and defendants.
2. For understanding the claim of plaintiffs, it is useful referring to the genealogy which is as follow :
Ramchandra Hanmanta Laxman
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Shankar Vishwanath
(Deft.No. 1) (Deft.No. 3)
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Bhanudas Nivrutti Ganpat Bhaskar |
(Plff. 1) (Plff. 2) (Deft,2) (Deft,3) |
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| | | | Ramchandra Vasant Ramesh Madhukar
(Deft. No. 5) (Deft. 6) (Deft. 7) (Deft. 8)
One Ramchandra had two brother, Hanmanta and Laxman, reference to Hanmanta and Laxman is only for the purpose of understanding the relationship between the parties and the witnesses. Hanmanta's son Bajirao has been examined by the plaintiffs as witness No. 2. This bajirao also happens to be the brother-in-law of defendant No. 4 (wife's sister's husband). Laxman had a son Ranganath. He also figures , through remotely in this litigation.
However, we are concerned mainly with the branch of Ramchandra because, admittedly, a partition had taken place amongst Ramchandra, Hanmanta and Laxman and the suit property, it is alleged by the plaintiffs, was joint family property in the hands of defendant No. 1 who is the son of Ramchandra.
Ramchandra had to wives Rambai and Krishnabai. From Ramabai, he got one son Shankar, defendant No. 1. From Krishnabai, he got a son Vishwanath, who is defendant No. 4. Shankar also had two wives one Chandrabhaga who died in the year 1942 and the other Manjulabai who died in the year 1952. Ramchandra himself died sometime between 1912 and 1914 . The plaintiffs have stated in the plaint that he died in 1912-13. In the evidence, one of the plaintiffs stated that he died in the year 1914. Shankar got two sons from Chandrabhaga; one Ganpat who is defendant No. 2, born in the year 1929 and other Bhaskar who is defendant No. 3 born in the year 1939.
From Manjulabai, Shankar got two other sons Bhanudas who is plaintiff No. 1 and who was born in the year 1920 and Nivrutti who is plaintiff No. 2 who was born in the year 1922. Ramchandra's other son Vishwanath who is defendant No. 4 has four sons, Ramchandra, defendant No. 5 Vasant defendant No. 6 , Ramesh defendant No. 7 and Madhukar defendant No. 8
3. The plaintiffs filed a suit for partition and possession of the properties mentioned in the plaint, reference to which will be presently as and when required. Contention of the plaintiffs was that Ramchandra died sometime in the year 1912-13 leaving behind his two sons as stated above. It was contended that Ramchandra left behind him some lands, a house and some moveable properties such as bullocks and agricultural implements as also some mango trees. It is this mango trees which played a significant and interesting role in this entire litigation and in a sense, the plaintiffs are trying to reap the fruits of this mango trees by claiming share in this properties because according to the case of the plaintiffs sought to be made out in evidence, it is from the income of these mango trees that all these properties were purchased by defendant No. 1. The pleadings show that there existed no mango trees, the income of which
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