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`In the High Court of Bombay at Nagpur
MR. JUSTICE C.L. PANGARKAR
Kausabai wd/o Rajaram Waradkar & Others
Versus
Gayabai wd/o Gundaji Mogre & Others
SECOND APPEAL NO.109 of 1997
Decided on: 13-04-2010
The plaintiffs’ case is that plaintiffs and defendant No. 2 were turned out of the house. If the pleadings in the plaint are seen, it could be gathered that the plaintiffs do not plead that family possesses any ancestral property at all. It is not even their case that the father had given anything to them from any ancestral property. There is, therefore, no pleading of the plaintiffs that any kind of nucleus was available for blending the suit property in order that any property possessed or owned by the family should become the joint family property. There has to be some nucleus available from which that property could be purchased. Since in this case the plaintiffs did not possess any ancestral income giving property, it could not be said that the suit house was a joint family property as such.
Bona fide purchaser is that person who takes reasonable care to ascertain that the transferor had the power to make transfer and he had acted in good faith and also that the true owner had consented to such transfer. Since true owners are challenging the transfer, there is no question of consent. Let Court see if there is evidence of appellant’s acting in good faith and whether he had taken reasonable care. This is a fit case of lack of good faith and not even a reasonable care has been taken. It appears, on the other hand, that defendant No. 1 entered into contract of purchase of the property with open eyes. The reason for saying so is that the appellant does not enter into witness-box to make out the case in pleading and second in his own plaint, he had made an averment and assertion that the shop and the property belonged to the joint family. This clearly shows that defendant No. 1 has had full knowledge of the property being owned by the family and not by defendant No. 2 alone. The appellant, therefore, could not be treated to be a bona fide purchaser. Although the property is not a joint family property as such, all the same it is jointly acquired property in which each one of them has equal share. In the circumstances, there is no difficulty in confirming the judgment and decree as passed by the Court below. The appeal is, therefore, dismissed. No order as to costs.
ORAL JUDGMENT:
1. This is a second appeal by original defendant no.1. The parties shall hereinafter be referred to as the plaintiff and the defendants.
2. The facts giving rise to the appeal are as follows Plaintiff no.1 is the mother of plaintiff no.2 and defendant no.2. Defendant no.1 is the transferee of the suit property. According to the plaintiffs, defendant no.2 was not the sole owner of the suit property and inspite of that he has sold the suit property to defendant no.1. According to the plaintiffs, they have 2/3rd share in the suit property. It is their contention that the plaintiffs and defendant no.2 were the members of the joint Hindu family when the suit property was alienated by defendant no.2. They contend that they had purchased jointly a plot of land for construction of the house and they constructed a house thereon. The same was constructed from joint family funds though in the name of defendant no.2. The plaintiffs contend that in the year 1949, plaintiff no.1 along with her two sons was turned out of the house by husband and since then she was living with her mother and sisters. It is their contention that plaintiff no.1 started business in grains and she was supporting the family. Thereafter, the plaintiff and defendant no.2 together started a business in the name and style ‘Mogre Brothers’ and a branch of the said shop was opened by the plaintiff and defendant no. 2 at village Tembhurda also in the rented house. The said shop was run by plaintiff nos.1 and 2. Defendant no.2, however, used to manage the said shop only on weekly market day. Further, it is contended that in the year 1968, a wholesale and retail shop of grocery was started in the name and style Kisan Kirana Bhandar. That was also a joint family business and former name ‘Mogre Brothers’ was changed. It is contention of plaintiffs that the suit property was purchased out of the earning from the said shop and the plaintiffs have, therefore, 2/3rd share in them.
3. Defendant nos.1 and 2 filed a joint written statement in the suit. According to the defendants, the suit property was self-acquired property of defendant no.2 and plaintiffs had no concern with the same. It is contended that defendant no.2 had started the grocery business and had even started a branch at Thembhurda. House, according to him, was constructed in 1967 itself and he was paying the taxes. The defendants further contend that there was never any joint family, much less a Hindu joint family. The joint family funds were not used for the construction of the house or plot and the plaintiffs have no share whatsoever in the suit property.
4. The learned Judge of the trial court found that the house was constructed from joint family funds, the plaintiffs had 2/3rd share in it and the sale-deed, therefore, was not binding on the plaintiffs. Holding so, he decreed the suit. An appeal was preferred by the defendants and the appeal came to be dismissed. Feeling aggrieved thereby, this second appeal has been preferred.
5. I have heard the learned counsel for the appellants and the respondents.
6. The appeal was admitted by this court (Kulkarni,J.) on the following substantial questions of law.
1) Both the learned courts below have erred in holding that the suit property is purchased from the joint family funds in the year 1966 from one Mahadeo Gadge and hence, it is a joint family property and further that the plaintiffs/respondents 1 and 2 have 2/3rd share in the suit property. The learned courts below while deciding this issue have not considered the fact that respondent no.1 had started her business after separating herself from her husband and hence, such business under Hindu Law is not a joint family business as there was no joint family or joint family business in existence at the time of starting of such business.
2) The learned courts below have failed to consider a very important aspect that joint Hindu family cannot be constituted in the facts and circumstance
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