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2012 Supreme(Bom) 2061
In the High Court of Bombay at Nagpur
R.K. DESHPANDE, J.
Ku. Suman Vishnu Pathak & Others
Versus
Smt. Usha w/o Prabhakarrao Koparkar & Others
Second Appeal No.279 of 2009
Decided on : 29-10-2012
For the Appellants:S.P. Dharmadhikari, Senior Advocate, assisted by B.B. Mehadia, Advocate.
For the Respondent:R1, C.S. Kaptan, Senior Advocate, R2 & R3, A.S. Jaiswal, R4, R.S. Kolansiwale, Advocate.
The burden of proof lies upon the person who asserts that a particular property is joint family property to establish that fact.
Headnote:
HINDU LAW - JOINT FAMILY PROPERTY - BURDEN OF PROOF - SHIFTING OF ONUS - ADVERSE INFERENCE - SELF-ACQUIRED PROPERTY - BLENDING OF INCOME - INTENTION TO ABANDON OR WAIVE PROPRIETARY INTEREST - INTERPRETATION OF DOCUMENTS - PRESUMPTION OF JOINT FAMILY PROPERTY - NUCLEUS OF JOINT FAMILY PROPERTY - WILL AND CODICIL - COMPETENCY TO EXECUTE.
Fact of the Case:
Plaintiff claimed partition and separate possession of 1/36th share in the suit property, i.e. Plot No.17 at Yavatmal, claiming that the suit property, which stood in the name of Vishnu Pathak, was acquired by nucleus of joint family funds and hence she was entitled to share in it. The defendants claimed to be the owners of the suit property on the basis of the codicil executed by Vishnu Pathak on 10-5-1973 bequeathing the suit property in their favour.
Finding of the Court:
1. The plaintiff has failed to establish that the suit property was the joint family property of Sadashiv Pathak, or that it is acquired with the nucleus of the joint family property, or that Shri Vishnu Pathak has blended the suit property in the joint family property. 2. The suit property remained to be the self-acquired property of Shri Vishnu Pathak. 3. Shri Vishnu Pathak was competent to execute the will and codicil at Exhibits 191 and 192 in respect of the entire property.
Issues: 1. Whether the suit property was the joint family property of Sadashiv Pathak or a self-acquired property of Vishnu Pathak? 2. Whether the onus in the present case is shifted upon the defendants in the facts of the present case? 3. Whether the Courts below have misconstrued the term ‘self-acquired properties’ employed in the Deeds of Partition at Exhibits 208 and 228 to hold that it does not convey natural meaning? 4. Whether the Courts below have correctly applied the principle of burden of proof and shifting the onus while deciding the question whether the suit property was a joint family property of Sadashiv Pathak or a self-acquired property of Vishnu Pathak and committed an error of law in drawing an adverse inference that the suit property was the joint family property? 5. Whether in the absence of any evidence of clear intention of Late Shri Vishnu Pathak to abandon and waive his proprietary interest in the suit property, no finding of blending of self-earned suit property by Late Shri Vishnu Pathak in the joint family property could be recorded by the Courts below? 6. Whether the self-earned property of an owner could be retained by him as his separate property and that the character of the property does not get changed to joint family property merely because the owner blends the income of such property with the income of the joint family and whether the Courts below lost sight of this vital aspect of the matter?
Ratio Decidendi: 1. The burden of proof lies upon the person who asserts that a particular property is joint family property to establish that fact. 2. If he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the members of the family setting up the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint family property. 3. The presumption arises only if nucleus is substantial and is such that its yield could provide in whole or at any rate in considerable part the money necessary for acquiring the property in question. 4. The self-acquired property of an owner could be retained by him as his separate property and that the character of the property does not get changed to joint family property merely because the owner blends the income of such property with the income of the joint family.
Final Decision: The second appeal is allowed. The judgment and decree dated 6-3-2000 passed by the learned 2nd Joint Civil Judge, Junior Division, Yavatmal, in Regular Civil Suit No.80 of 1981, as well as the judgment and order dated 31-3-2009 passed in Regular Civil Appeal No.55 of 2000 by the learned Ad hoc District Judge-1, Yavatmal, confirming the judgment and decree passed by the Trial Court, are hereby quashed and set aside. Regular Civil Suit No.80 of 1981 filed by the respondent No.1 Smt. Usha w/o Prabhakarrao Koparkar is dismissed with no order as to costs.
1. The respondent Smt. Usha Koparkar is the original plaintiff and the granddaughter of Late Shri Vishnu Pathak, who filed Regular Civil Suit No.80 of 1981 claiming that the suit property, which stood in the name of Vishnu Pathak, was acquired by nucleus of joint family funds and hence she was entitled to share in it. She claimed partition and separate possession of 1/36th share in the suit property, i.e. Plot No.17 at Yavatmal. The appellant Nos.1 and 2 are the original defendant Nos.17 and 19, who claimed to be the owners of the suit property on the basis of the codicil executed by Vishnu Pathak on 10-5-1973 bequeathing the suit property in their favour. The appellant Nos.3 to 7 are the original defendant Nos.26 to 30, who claimed to have purchased the suit property from the appellant Nos.1 and 2.
2. The two sons of Kashinath Pathak, viz. Satish and Vinod, were joined as the defendant Nos.1 and 2; Smt. Nirmalabai w/o Kashinath Pathak was joined as the defendant No.3; the another daughter of Kashinath Pathak, viz. Smt. Megha Gadgil, was joined as the defendant No.4; Smt. Premlabai wd/o Yashwant Vishnu Pathak, was joined as the defendant No.5; and her three sons and the daughter, viz. Deepak, Ashok, Prashant; and Smt. Jyoti of Smt. Premlabai Pathak, were joined as the defendant Nos.6 to 9 respectively; the husband of Smt. Sarojini, the two sons Sudhakar and Prakash and the daughter Aruna were joined as the defendant Nos.10 to 13 respectively; and the other daughters of Vishnu Pathak, viz. Smt. Shaila Modak, Smt. Mangala Ranade, Smt. Kusum Gupta, Ku. Suman, Smt. Saroj and Ku. Nalini were joined as the defendant Nos.14 to 19 respectively in the said suit. The parties shall be hereinafter referred to according to their original status in the Trial Court.
3. Regular Civil Suit No.80 of 1981 was partially decreed by the learned 2nd Joint Civil Judge, Junior Division, Yavatmal, by his judgment and order dated 6-3-2000. The plaintiff and the defendant No.4, the real sister of the plaintiff, are held entitled to 1/48th share each; the defendant Nos.1 and 2, the real brothers of the plaintiff, and the defendant No.3, the mother of the plaintiff, are held entitled to 3/20th share each; and the defendant Nos.17 and 19, the daughters of Vishnu Pathak, are held entitled to 1/4th share each in the suit property. The Commissioner is directed to be appointed for effecting partition of the suit property as per the declaration of the shares. Regular Civil Appeal No.55 of 2000 filed by the appellants has been dismissed by the learned Ad hoc District Judge-1, Yavatmal, by his judgment and order dated 31-3-2009. Hence, this second appeal.
4. Both the Courts below have held that the plaintiff has proved that the suit property was originally acquired by Vishnu Pathak with the aid of the joint family property. It is further held that Late Shri Sadashiv Pathak, the father of Vishnu Pathak was a rich man and acquired 105 acres and 15 gunthas of agricultural lands apart from the residential premises and fruit gardens in Konkan. He was doing roaring money lending business and acquired huge properties by way of mortgage. The other two sons of Sadashiv Pathak, viz. Vitthal and Ramchandra, were working at Bombay. Vitthal Pathak was Matriculate and was employed in the office of the Accountant General at Bombay and he was having another source of income by way of Tuition Classes. The second son Ramchandra Pathak was in service in the Post Office at Bombay.
5. The Courts below have recorded the finding that it was the income derived by Sadashiv Pathak from the joint family property at Konkan and the income thrown in the common hotchpotch by Vitthal Pathak and Ramchandra Pathak working at Bombay that the suit property was acquired on lease from the Municipal Council, Yavatmal, on 5-11-1917. It is held by both the Courts below that when the suit property was acquired on 5-11-1917, the income of Vishnu Pathak from all sources was Rs.1,741.50 and his inco
