Saturday 27 September 2014

When coparcener is competent to execute will deed in respect of his property?



Once it is held that the plaintiff has failed to establish 
(1) that the suit property is the joint family property, or (2) that it 
is   acquired   with   the   nucleus   of   the   joint   family   property,   or 
(3) that Shri Vishnu Pathak has blended the suit property in the 

joint family property, the question of the suit property losing the 
character   as   the   self­acquired   property   of   Shri   Vishnu   Pathak, 
does not arise.  As a result, Shri Vishnu Pathak was competent to 
execute   the   registered   will   at   Exhibit   191   and   the   registered 
codicil   at   Exhibit   192,   ultimately   bequeathing   the   property   in 
favour   of   his   unmarried   daughters   Ku.   Suman   Pathak   and 
Ku.   Nalini   Pathak.     Obviously,   when   the   said   two   daughters 
could   not   get   any   share   in   the   partition   at   Exhibit   213,   the 
intention to make provision for unmarried daughters was made 
clear by executing the will and codicil at Exhibits 191 and 192. 

Neither   the   parties   have   advanced   any   argument   on   the 
authenticity   of   the   said   will   and   codicil,   which   are   proved   in 
accordance   with   law,   nor   have   insisted   upon   framing   any 
substantial question of law arising out of the findings recorded by 
the Courts below.  The Courts below have held that Shri Vishnu 

Pathak was not competent to execute these two documents to the 
extent of the share of other coparcener in the suit property.  Once 
it is held that the suit property remained to be the self­acquired 
property of Shri Vishnu Pathak, then the only course left upon is 
to   dismiss   the   suit   by   holding   that   Shri   Vishnu   Pathak   was 
competent to execute the will and codicil at Exhibits 191 and 192 
in respect of the entire property.



IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR

Second Appeal No.279 of 2009

 Ku. Suman Vishnu Pathak,

Versus

 Smt. Usha w/o Prabhakarrao Koparkar,




CORAM : R.K. DESHPANDE, J.


Date of Pronouncing the Judgment : 29­10­2012



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 
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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 
10­5­1973   bequeathing   the   suit   property   in   their   favour.     The 
appellant Nos.3 to 7 are the original defendant Nos.26 to 30, who 
The   two   sons   of   Kashinath   Pathak,   viz.   Satish   and 
2.
Nos.1 and 2.  
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claimed to have purchased the suit property from the appellant 
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; 
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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. 
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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 6­3­2000.  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 
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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 
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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 Judge­1, Yavatmal, by his judgment and order 
dated 31­3­2009.  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 
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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 
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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 
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Municipal Council, Yavatmal, on 5­11­1917.   It is held by both 
the Courts  below that  when the suit property  was  acquired on 
5­11­1917,   the  income of Vishnu  Pathak from all sources was 
Rs.1,741.50   and   his   income   was   neither   sufficient   to   jointly 
purchase the suit property with Ganesh Pathak nor there is any 
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evidence on record to show he had funds to construct the house 
on   Plot   No.17.     It   is   further   held   that   the   preponderance   of 
probabilities is that the property was acquired and construction 
thereon was made with the aid of the joint family funds and the 
surrounding   circumstances   do   not   justify   that   it   was   a 
self­acquired property of Vishnu Pathak.
6.
The Appellate Court has relied upon the oral evidence of 
PW   3   Moreshwar   Pathak,   who   deposed   that   he   had   taken 
education at Yavatmal during 1942 to 1946 and was residing with 
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Vishnu Pathak.   He further deposed that all the sons of Vishnu 
Pathak were saving money and sending it to Sadashiv Pathak at 
Konkan and hence Sadashiv Pathak started purchasing lands and 
money lending business.   He deposed that during 1921 to 1923, 
Vishnu   Pathak   constructed   his   share   from   the   income   of   the 
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properties at Konkan and from his advocacy.  He further deposed 
that the suit plot was allotted to Vishnu Pathak as his share in 
HUF.       It  is  held that  if  Plot  No.19  was  purchased  jointly by 
Ganesh Pathak and Vishnu Pathak, then the same could not have 
been acquired only in the name of Ganesh Pathak.   It is further 
held that the onus shifted upon the defendant Nos.17 and 19, who 
had failed to enter the witness­box and to examine any witness on 
this   point.     No   evidence   is   brought   on   record   to   show   as   to 
whether Vishnu Pathak raised such huge funds within a span of 
nine years.  The Courts below have, therefore, drawn an adverse 
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7.
inference that the suit property was the HUF property.
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Originally, it was Plot No.19, which was acquired from 
the Municipal Council, Yavatmal, on 5­11­1917, exclusively in 
the name of Ganesh Pathak.  On 19­11­1920, Ganesh Pathak and 
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Vishnu Pathak executed a partition­deed at Exhibit 208 dividing 
Plot   No.19   in   two   parts,   which   were   subsequently   separately 
numbered  as Plot Nos.16 and 17 at the time of preparation of 
revenue   records.     Plot   No.16   was   admeasuring   12,225   sq.ft., 
whereas Plot No.17 was admeasuring 10,541 sq.ft.   Plot No.16 
was in the name of Ganesh Pathak, whereas Plot No.17 was in the 
name of Vishnu Pathak.  Both the Courts below have considered 
the partition­deed at Exhibit 208, which contained a recital that 
Plot No.19 was purchased jointly by Ganesh Pathak and Vishnu 
Pathak,   who   had   contributed   equally,   and   hence   it   was   their 
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self­acquired   property.   Subsequently,   on   29­10­1923,   a 
partition­deed was executed at Exhibit 228 by all the five sons of 
Sadashiv Pathak recording the partition of the entire joint family 
property   amongst   themselves   in   the   year   1920.     In   the   said 
partition­deed, there is a recital that Plot Nos.16 and 19 were the 
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self­acquired properties of Ganesh Pathak and Vishnu Pathak and 
hence were excluded from the properties available for partition. 
Both the Courts below have held that the words ‘self­acquired 
properties’ used in both these deeds at Exhibits 208 and 228 do 
not convey their natural meaning.
8.
  The  argument  of   the  defendant  Nos.17   and  19  based 
upon   Section   32(3)   of   the   Evidence   Act   that   the   statement   of 
Ganesh Pathak contained in the registered document of division 
of property at Exhibit 208 that Plot No.19 was jointly purchased 
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and   owned   by   himself   along   with   Vishnu   Pathak   and   the 
statements of all the five sons of Sadashiv Pathak contained in the 
partition­deed   at   Exhibit   228   that   Plot   No.19   was   the 
self­acquired property of Ganesh Pathak and Vishnu Pathak and 
the other sons of Sadashiv Pathak had no right in it, is rejected by 
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the Courts below on the ground that the suit property was held to 
be the joint family property and no evidence is brought on record 
to   show   that   it   was   the   self­acquired   property.     The   decisions 
relied upon by the defendant Nos.17 and 18 were held to be not 
applicable on that count.
9.
Relying upon the orders of assessment of income­tax at 
Exhibits 222 and 223, the orders in appeal by the Income­Tax 
Authorities at Exhibits 214 and 218, and the income­tax returns at 
Exhibit 230, it has been held that Vishnu Pathak got income­tax 
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rebate by showing that all the earnings were thrown in common 
hotchpotch and he is to be assessed as Karta of Hindu Undivided 
Family (HUF).  Hence, whatever separate income Vishnu Pathak 
had,   was   blended   in   the   income   of   HUF.     Relying   upon   the 
partition­deed   dated  23­2­1950  at  Exhibit   213 between  Vishnu 
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Pathak,   his   two   sons  and   wife,  it  is   held  that  HUF   of  Vishnu 
Pathak existed till 1950, of which he was Karta. 
In   view   of   the   aforesaid   findings   and   the   contentions 
10.
raised   by   the  learned  counsels  before  this Court,  which  are  in 
this Court passed an order on 18­10­2012, framing the substantial 
questions of law, which is reproduced below :
conformity with the arguments raised before the Courts below, 

After hearing the learned counsels for the parties  
at length, the following substantial questions of law are  
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framed :
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(1) Is it not that the statement made by Late Shri  
Ganesh   Pathak,   who   is   dead,   in   the   Deed   of  
Partition   Exhibit   208   that   the   suit   property   was  
acquired   by   Late   Shri   Ganesh   Pathak   and   Shri  
Vishnu   Pathak   jointly   as   their   self­acquired  
property,   was   against   pecuniary   and   proprietary  
interest of the persons making it and would it be  
relevant   and   admissible   in   evidence   under  
sub­section (3) of Section 32 of the Evidence Act ?
(2) Is it not that the statement made by Late Shri  
Vitthal Pathak, Shri Ramchandra Pathak and Late  
Shri Laxman Pathak, who are dead, in the Deed of  
Partition   Exhibit   228   that   the   suit   property   was  
acquired   by   Late   Shri   Ganesh   Pathak   and   Shri  
Vishnu Pathak as their self­acquired property, was  
against  pecuniary  and proprietary  interest  of  the  
persons   making   it   and   would   it   be   relevant   and  
admissible   in   evidence   under   sub­section   (3)   of  
Section 32 of the Evidence Act ?
(3) Whether the Courts below have misconstrued  
the term ‘self­acquired 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  
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shifting   the   onus   while   deciding   the   question  
whether   the   suit   property   was   a   joint   family  
property   of   Sadashiv   Pathak   or   a   self­acquired  
property of Vishnu Pathak and committed an error  
of law in drawing an adverse inference that the suit  
property was the joint family property ?
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(5) Is it not that 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 self­earned  
suit   property   by   Late   Shri   Vishnu   Pathak   in   the  
joint   family   property   could   be   recorded   by   the  
Courts below ?
(6) Is it not that the self­earned 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 is it not that the Courts below lost sight of this  
vital aspect of the matter ?
The   matter   is   adjourned   to  25­10­2012  so   as   to  
enable the learned counsel for the parties to address on  
the aforesaid substantial questions of law.” 
11.
The   relevant   factual   position,   which   is   not   in   dispute, 
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needs to be stated :
A joint family of Late Shri Sadashiv Pathak consisted of 
himself   and   his   five   sons,   viz.   (i)   Vitthal,   (ii)   Ramchandra, 
(iii) Ganesh, (iv) Laxman, and (v) Vishnu.  There existed a joint 
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family   property,   which   was   managed   by   Sadashiv   Pathak   at 
Konkan.     Vitthal   and   Ramchandra,   the   two   sons   of   Sadashiv 
Pathak, were in service at Bombay and had their separate income, 
the   third   son   Ganesh   settled   himself   as   Priest   (Purohit)   at 
Yavatmal   prior   to   1900,     the   fourth   son   Laxman   settled   at 
Konkan,   and   the   fifty   son   Vishnu   came   to   Yavatmal   in   the 
year   1914   from   Konkan  and  started  his  legal  practice.    In  the 
year   1915,   a   land   at   Pimpalgaon,   District   Yavatmal,   was 
purchased  in the name of Ganesh Pathak.   On 5­11­1917, Plot 
No.19, Survey No.77 Sheet No.38/D, admeasuring 22,725 sq.ft. 
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the Municipal Council, Yavatmal.  
12.
of land was acquired on lease in the name of Ganesh Pathak from 
Plot No.19 was partitioned in two parts between Ganesh 
Pathak and Vishnu Pathak by a registered deed of partition dated 
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29­11­1920, which is proved and marked as Exhibit 208.   The 
two parts were separately registered as Plot No.16, admeasuring 
12,225   sq.ft.   in   the   name   of   Ganesh   Pathak;   and   Plot   No.17, 
admeasuring   10,541   sq.ft.   in   the   name   of   Vishnu   Pathak. 
Sadashiv Pathak died in the year 1920 and thereafter in the year 
1920 itself there was a partition of the joint family properties held 
by Sadashiv Pathak amongst the five sons.  It was duly recorded 
in the registered deed of partition executed on 20­10­1923, which 
is proved and marked as Exhibit 228, which excluded Plot Nos.16 
and 17 apart from other self­acquired properties of the members 
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13.
of the joint family from the properties available for partition.
In   the   background   of   the   aforesaid   undisputed   factual 
position, I would like to consider the substantial question of law 
at Serial No.(4) in respect of burden of proof, shifting of onus and 
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drawing of an adverse inference.   It is the party who comes to 
Court to get a decision on any legal right or liability depending 
upon the existence of certain facts, which he assert, carries the 
burden of proof.  This principle is laid down in Section 101 of the 
Evidence Act.  
14.
Before dealing with the question as to whether the onus 
in the present case is shifted upon the defendants in the facts of 
the present case, the relevant portion of the decision of the Privy 
Council   in   the   case   of  Appalaswami  v.  Suryanarayanamurti, 
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same is, therefore, reproduced below :
reported in AIR 1947 PC 189 at Page 192, needs to be seen.  The 
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The   Hindu   law   upon   this   aspect   of   the   case   is  
well settled. Proof on the existence of a joint family does  
not lead to the presumption that property held by any  
member of the family is joint, and the burden rests upon  
anyone asserting that any item of property was joint to  
establish the fact.   But where it is established 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   burden   shifts   to   the   party   alleging  
self­acquisition   to   establish   affirmatively   that   the  
property was acquired without the aid of the joint family  
property.”  
The aforesaid portion is quoted and followed in the subsequent 
decision of the Apex Court in the case of  Srinivas Krishnarao  
Kango  v.  Narayan   Devji   Kango   and   others,   reported   in 
AIR 1954 SC 379.  The portion in para 10 in the decision in the 
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case of Srinivas Krushnarao Kango, cited supra, is also relevant 
and the same is, therefore, reproduced below :
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“(10)
Whether  the  evidence  adduced  by  the plaintiff  
was sufficient to shift the burden which initially rested on  
him of establishing that there was adequate nucleus out of  
which the acquisitions could have been made is one of fact  
depending   on   the   nature   and   the   extent   of   the   nucleus.  
The important thing to consider is the income which the  
nucleus   yields.   A   building   in   the   occupation   of   the  
members of a family and yielding no income could not be  
a nucleus out of which acquisitions could 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 from the foundations  
of   the   subsequent   acquisitions.   These   are   not   abstract  
questions of law, but questions of fact to be determined on  
the evidence in the case.”
The decision of the learned Single Judge of this Court in the case 
of  Harihar Diwakar Choube (deleted since dead) and others  v. 
Govind   Diwakar   Choube   and   others,   reported   in 
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2010(4) Mh.L.J. 524, follows the decision of the Allahabad High 
Court   in   the   case   of  Mangal   Singh  v.  Harkesh   and   another, 
reported in AIR 1958 Allahabad 42, wherein it has been held that 
the presumption arises only if nucleus is substantial and is such 
that its yield could provide in whole or at any rate in considerable 
15.
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part the money necessary for acquiring the property in question.
In view of the aforesaid decisions, it is for the  plaintiff, 
who has come before the Court alleging that the suit property was 
the   joint   family   property   of   Sadashiv   Pathak,   in   which   he   is 
entitled to have 1/36th share, has to establish that the suit property 
was   the   joint   family   property.   Merely   because   there   is   an 
evidence available on record that there existed HUF of Sadashiv 
Pathak or Vishnu Pathak till 1969, that by itself would not make 
the property standing in the name of individual member of a joint 
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family to be the joint family property.  The burden rests upon the 
plaintiff to establish the fact that the suit property was the joint 
family property. 
It is a case of the plaintiff that the joint family possessed 
16.
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some  joint  family  property, which from  its nature and relative 
value, formed the nucleus, from which the property in question is 
acquired.    Hence  it  is for the plaintiff  to prove that  there was 
sufficient  joint  family nucleus,  from and out  of which the suit 
property could have been acquired.  It is only after the possession 
of  an  adequate  nucleus is shown  that  the onus shifts  upon the 
person,   who   claims   the   property   as   self­acquisition   to 
affirmatively establish that the property was acquired without any 
aid   of   the   joint   family   estate.     If   the   plaintiff   fails   to   adduce 
evidence, sufficient to satisfy the Court to the required standard 
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or degree of proof to shift onus on the other side, then she is not 
entitled to any benefit of doubt or to rely upon the weaknesses of 
the defendants either in adducing the evidence or discharging the 
Even if the findings recorded by the Courts below are 
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17.
onus.
accepted   as it  is,  the facts  of the present  case will have to be 
judged in the light of the aforesaid law laid down by the Apex 
Court and by this Court.  The suit property was acquired initially 
on   5­11­1917   in   the   name   of   Ganesh   Pathak.     The   Appellate 
Court has held in para 109 of its judgment that the facts showing 
the   source   of   earning   of   Vishnu   Pathak   for   acquiring   the   suit 
property prior to 1915 or 1917 are more relevant and important 
than the facts showing the source of income after both the years. 
Hence, the nucleus available during this period shall be relevant. 
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There is no evidence on record to show as to the value of the 
property acquired.  On a specific question being put to the learned 
Senior Advocate Shri C.S. Kaptan appearing for the respondent 
No.1/plaintiff, he has fairly conceded that there is no evidence on 
record   to   show   the   exact   income   derived   from   the   ancestral 
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property.     Merely   because   HUF   possessed   certain   ancestral 
properties,   that   by   itself   is   not   enough.     There   has   to   be   the 
evidence of adequate or substantial nucleus, the nature and extent 
of nucleus, which is totally absent in the present case. 
18.
There is nothing on record to show how much amount 
was thrown  and   when and how it was thrown in the common 
hotchpotch   by   the   brothers   Vitthal   Pathak   and   Ramchandra 
Pathak from Bombay.   There is also nothing on record to show 
what   was   the   income   derived   by   Ganesh   Pathak   from   his 
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profession   as  Priest   (Purohit).   There  is evidence  available  on 
record that Vishnu Pathak had some income from his profession. 
In   para   19   of   the   judgment   and   order   of   the   Trial   Court,   the 
finding   is   recorded   on   the   basis   of   Exhibit   228   partition­deed 
dated 20­10­1923 and the oral evidence of DW 1 Paithankar that 
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Vishnu   Pathak   kept   tenants   in   the   bungalow   and   accepted 
donation from friends.   The Appellate Court in para 109 of its 
judgment   and   order   recorded   the   finding   that   the   income   of 
Vishnu  from all sources was Rs.1,741.50. The Trial Court  has 
recorded the finding in para 13 of its judgment and order that the 
plaintiff and her witnesses deposed that Sadashiv Pathak sent the 
money to Ganesh Pathak and Vishnu Pathak to acquire the HUF 
property at Yavatmal, but their evidence in this regard is hearsay 
and cannot be relied upon.  
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As per Section 104 of the Evidence Act, the burden of 
19.
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proving any fact necessary to be proved in order to enable any 
person to given evidence of any other fact, is on the person, who 
wishes   to   give   such  evidence.    In order  to prove  that  the  suit 
property   was   the   joint   family   property,   the   plaintiff   has   to 
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establish,   in   the   facts   of   the   present   case,   that   there   existed 
adequate   nucleus   out   of   which,   acquisition   could   have   been 
made.     The   plaintiff   has   failed   to   establish   the   existence   of 
adequate nucleus.  The vital link of nucleus is missing.  The oral 
evidence of PW 3 Moreshwar relied upon by the Appellate Court 
was short of establishing nucleus.  The findings recorded by the 
Courts below clearly show that Vishnu Pathak had his separate 
income and the sources to raise the funds.   In view of this, the 
question of shifting of onus or calling upon the defendants to lead 
evidence, does not at all arise.  Similarly, the question of drawing 
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an adverse inference for failure of the defendant Nos.17 and 19 to 
lead   evidence   in   such   situation,   also   does   not   arise.   It   is, 
therefore, held that the Courts below have committed an error of 
law   in   applying   the   principles   of   burden   of   proof,   shifting   of 
onus, and drawing of an adverse inference. Hence, the substantial 
20.
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question of law at Serial No.(4) is answered accordingly.
The entire thrust of the findings recorded by the Courts 
below   is   that   there   is   no   evidence   brought   on   record   by   the 
defendant   Nos.17   and   19   to   show   that   Vishnu   Pathak   had 
sufficient   income   to   purchase   the   suit   property.     The   Courts 
below have held that it is a common knowledge that an Advocate 
struggles to establish himself  at the initial period of his career 
unless he inherits the practice from his father and others.   It is 
further  held  that there is nothing on record  to show how long 
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Vishnu Pathak was a Junior Advocate, and in the absence of any 
proof,   it   is   difficult   to   digest   that   Vishnu   Pathak   along   with 
Ganesh Pathak purchased the suit property at Pimpalgaon after a 
period of one year of commencement of his legal practice.  The 
Courts below have held that there is a strong probability that with 
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the   aid   of   funds   provided   by   Sadashiv   Pathak,   the   properties 
shown in the name of Ganesh Pathak were purchased.   All this 
investigation  by  the Courts below into the earnings  of Ganesh 
and Vishnu Pathak was uncalled for, when the onus of proof did 
not shift upon the defendant Nos.17 and 19.  Apart from this, all 
such   findings   by   the   Courts   below   are   based   upon   mere 
conjectures and surmises.   There is no evidence brought to my 
notice to support such findings.  The same cannot be allowed to 
stand and, therefore, quashed and set aside.
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The substantial questions of law at Serial Nos.(1), (2) 
21.
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and (3) in respect of the partition­deeds at Exhibits 208 and 228 
being   common,   can   be   decided   together.     It   is   an   undisputed 
position that Sadashiv Pathak died in the year 1920 and when the 
suit was filed, none of the sons of Sadashiv Pathak were alive. 
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Even Kashinath, the son of Vishnu Pathak, expired on 29­4­1978 
and the suit in question was filed in the year 1981 by Smt. Usha 
Koparkar, the daughter of Kashinath Pathak.  
22.
In   the   light   of   the   aforesaid   factual   position,   the 
provision of Section 32(3) of the Evidence Act is required to be 
seen and it is reproduced below :
“32. Cases in which statement of relevant fact by  
person   who   is   dead   or   cannot   be   found,   etc.,   is  
relevant.­­   Statements,   written   or   verbal,   of   relevant  
facts made by a person who is dead, or who cannot be  
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found,   or   who   has   become   incapable   of   giving  
evidence,   or   whose   attendance   cannot   be   procured  
without an amount of delay or expense which, under  
the   circumstances  of   the  case,  appears   to  the   Court  
unreasonable,   are   themselves   relevant   facts   in   the  
following cases:­­
...          ...          ...
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(3) or   against   interest   of   maker.­­When   the  
statement   is   against   the   pecuniary   or   proprietary  
interest   of  the  person  making   it, or  when,  if  true,  it  
would   expose   him   or   would   have   exposed   him   to   a  
criminal prosecution or to a suit for damages.”
The argument based upon Section 32(3) of the Evidence Act was 
considered   by   the   Apex   Court   in   its   judgment   in   the   case   of 
Bhagwati   Prasad  Sah  and  others  v.  Dulhin  Rameshwari  Kuer  
and another, reported in AIR 1952 SC 72.  The relevant portion 
contained in para 13 is reproduced below :
“13. ... We think, however, that the statements could  
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be admitted under Section 32(3) of the Evidence Act.  
The   statements   of   a   particular   person   that   he   is  
separated   from   a   joint   family,   of   which   he   was   a  
coparcener, and that he has no further interest in the  
joint property or claim to any assets left by his father,  
would be statements made against the interest of such  
person, and, after such person is dead, they would be  
relevant under Section 32(3) of the Evidence Act.  The  
assertion that there was separation not only in respect  
of himself but between all the coparceners would be  
admissible as a connected matter and an integral part  
of the same statement (vide Blackburn, J. in Smith v.  
Blakey).     It   is   not   merely   the   precise   fact   which   is  
against interest that is admissible but all matters that  
are “involved in it and knit up with the statement. ...”
23.
In   the   light  of  the   provision   of  Section  32(3)   of   the 
Evidence Act and the above decision of the Apex Court, the facts 
of this case will have to be analyzed. The partition­deed Exhibit 
208 is dated 19­11­1920 registered on 21­12­1920 and bears the 
signatures of Ganesh Pathak and Vishnu Pathak.  It is in respect 
of Block No.19 (Plot No.19 of which the suit property is the part) 
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at Yavatmal, admeasuring 22,725 sq.ft. and the field at Mouza 
Pimpalgaon, District Yavatmal.  These properties in the name of 
Ganesh Pathak are divided between Ganesh Pathak and Vishnu 
Pathak.     The   deed   recites   that   the  properties  are   acquired  and 
owned   jointly   by   them   and   no   other   person   has   any   right   of 
24.
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ownership in it.
The partition­deed at Exhibit 228 is dated 29­10­1923 
and   is   also   registered.     It   is   signed   by   Vitthal,   Ramchandra, 
Ganesh, Laxman and Vishnu, all the sons of Sadashiv Pathak.  It 
divides all the joint family properties of Sadashiv Pathak amongst 
the sons.  It recites that the ancestral properties described therein 
are   voluntarily   and   by   consent,   have   been   partitioned   in   the 
month of March, 1920, of which the details are recorded in the 
partition­deed.  After stating the division of properties in detail, it 
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is stated that apart from the ancestral properties, there are certain 
immovable properties, which are self­acquired properties of some 
of   the   members   of   the   joint   family,   which   are   owned   and 
possessed   by   them   exclusively,  and  no   other   member   has   any 
right in it.   The details of such properties acquired by Vitthal, 
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Ganesh,   Ramchandra   and   Vishnu   are   also   stated.     There   is   a 
specific recital that the properties at Pimpalgaon and Yavatmal 
are jointly owned and possessed by Ganesh and Vishnu and the 
same are already divided between them.  It is stated therein that 
no other member of the joint family has any right in it.
25.
Thus, it is apparent that the statements contained in the 
partition­deed at Exhibit 208 are signed by Ganesh Pathak.  The 
partition­deed at Exhibit 228 is signed by all the sons of Sadashiv 
Pathak.     Shri   S.P.   Dharmadhikari,   the   learned   Senior   Counsel 
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appearing for the appellants, is right in submitting that if all such 
properties   described   as   ‘self­acquired   properties’   in   both   the 
deeds   are   held   to   be   the   joint   family   properties,   then   all   the 
coparceners of HUF of Sadashiv Pathak and their successors shall 
be entitled to claim share in the said properties. All of them are 
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not parties to the suit.   All these statements are thus against the 
pecuniary or proprietary interest of the persons, who have signed 
the   deed   in   respect  of   the  suit   property   and  were  dead   before 
filing   of   the   suit.   Hence,   the   statements   are   relevant   and 
admissible in evidence under Section 32(3) of the Evidence Act. 
The   substantial   question   of   law   at   Serial   Nos.(1)   and   (2)   are, 
therefore, answered accordingly to that extent.  
26.
Now coming to the substantial question of law at Serial 
No.(3)   regarding   interpretation   of   the   terms   contained   in   the 
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Deeds   of   Partition   at   Exhibit   208   and   228   is   concerned, 
undisputedly, the terms of these partition­deeds indicate that the 
properties   at   Pimpalgaon   and   Yavatmal   (consisting   of   the   suit 
property)   were   owned   and   possessed   jointly   by   Ganesh   and 
Vishnu   Pathak.     Both   of   them   have   contributed   equally   for 
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acquiring those properties.  The Courts below have construed the 
description   of   those   properties   in   the   documents   as   the 
self­acquired properties, to be the joint family properties.  
27.
The   principle  of  interpretation  of  a  document  is laid 
down by the Apex Court in its judgment in the case of  Kamla  
Devi  v.  Takhatmal and another, reported in  AIR 1964 SC 859. 
The relevant portion contained in para 8 of the said judgment  is 
reproduced below :
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“8.  ... Section 94 of the Evidence Act lays down a  
rule of interpretation of the language of a document  
when   it   is   plain   and   applies   accurately   to   existing  
facts.  It says that evidence may be given to show that  
it was not meant to apply to such facts.  When a Court  
is   asked   to   interpret   a   document,   it   looks   at   its  
language.   If the language is clear and unambiguous  
and applies accurately to existing facts, it shall accept  
the ordinary meaning, for the duty of the Court is not  
to delve deep into the intricacies of the human mind to  
a certain one’s undisclosed intention, but only to take  
the meaning of the words used by him, that is to say his  
expressed intentions.  Sometimes when it is said that a  
Court should look into all the circumstances to find an  
author’s intention, it is only for the purpose of finding  
out   whether   the   words   apply,   accurately   to   existing  
facts.  But if the words are clear in the context of the  
surrounding circumstances, the Court cannot rely on  
them to attribute to the author an intention contrary to  
the   plain   meaning   of   the   words   used   in   the  
document. ...”
28.
In the light of the aforesaid principles for interpretation 
of   documents,   the   findings   of   the   Courts   below   holding   the 
‘self­acquired properties’ as the joint family properties will have 
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to be seen.   Perusal of the documents at Exhibits 208 and 228 
leave no scope to interpret the self­acquired properties of Ganesh 
and   Vishnu   Pathak   as   the  joint   family   properties,   as   has   been 
done by the Courts below.   The language of the documents is 
very clear and unambiguous and applies accurately to the existing 
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facts   to   hold   that   those   properties   were   the   self­acquired 
properties of Ganesh and Vishnu Pathak.  There is no occasion to 
search for the circumstances to gather the intention of the parties 
to   find   out   as   to   whether   the   properties  described   as   the   self­
acquired properties in Exhibits 208 and 228 can be construed to 
be the joint family properties of Sadashiv Pathak.   The Courts 
below   have,   therefore,   misconstrued   the   term   ‘self­acquired 
properties’  employed in the Deeds of Partition at Exhibits 208 
and 228 to hold that it does not convey natural meaning.   It is 
held   that   the   term   ‘self­acquired   properties’   in   the   said   deeds 
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cannot   be   construed   as   the   joint   family   properties.     The 
substantial   question   of   law   at   Serial   No.(3)   is,   therefore, 
answered accordingly.  
Section  92 of the Evidence Act  states  that  when the 
29.
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terms of any such disposition of properties required by law to be 
reduced to the form of a document have been proved, according 
to Section 91 of the said Act, no evidence of any oral agreement 
or statement shall be admitted, as between the parties to any such 
instrument or their representatives in interest, for the purpose of 
contradicting, varying, adding to, or subtracting from its terms. 
Undisputedly,   the   documents   at   Exhibits   208   and   228   are   the 
registered documents relating to disposition of properties, which 
have been proved.  The documents being 30 years’ old, the same 
would carry presumption under Section 90 of the Evidence Act. 
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In view of this, no evidence of any oral agreement or statement 
can   be   admitted   in   evidence   from   the   parties   to   any   such 
instrument or their representatives in interest, for the purpose of 
contradicting, varying, adding to, or subtracting from the terms of 
the documents.    The Courts below have admitted the evidence 
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from   the   representatives   in   interest   of   the   parties   to   the 
documents at Exhibits 208 and 228 to contradict the terms of the 
said documents to hold that the properties were the joint family 
properties   and   not   the   self­acquired   properties   of   Ganesh   and 
Vishnu Pathak.  In view of this, the findings of the Courts below 
Pathak   being   based   upon   inadmissible   evidence,   cannot   be 
sustained.
holding the suit property to be joint family property of Sadashiv 
30.
Now   I   shall   proceed   to   deal   with   the   substantial 
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questions   of   law   at   Serial   Nos.(5)   and   (6)   in   respect   of   the 
intention   of  Late  Shri  Vishnu  Pathak  to abandon  or waive  his 
proprietary   interest   in   the   suit   property   and   blending   of 
self­earned suit property in the joint family property.   The first 
document considered by the Courts below is the partition­deed 
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dated 23­2­1950 at Exhibit 213 amongst Vishnu Pathak, his two 
sons, viz. Kashinath and Yashwant, and wife.  It is not disputed 
and   I   have   also   gone   through   the   said   document   to   find   out 
whether   the   suit   property   was   the   subject­matter   of   partition. 
There   is   not   even   a   whisper   of   the   suit   property   in   this 
partition­deed.   It is not the case putforth by any of the parties 
that it was a partial partition of HUF properties.  The exclusion of 
the suit property from the partition­deed, which is signed by all 
the coparceners of HUF of Vishnu Pathak, is an indication that 
the suit property was the self­acquired property of Vishnu Pathak.
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31.
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The   portion   of   the   property   was   occupied   by   the 
tenants.     The   assessment   lists   of   the   Municipal   Council   at 
Exhibits 230 to 233 and 223 show that the imposition of tax is 
upon Vishnu Pathak and the suit property, even after partition in 
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the year 1920, always stood exclusively in the name of Vishnu 
Pathak.  The municipal assessment at Exhibit 235 for the period 
1959­62 shows increase of tenants in the suit property.  It is the 
finding recorded by the Trial Court in para 44 of its judgment that 
these documents indicate that the construction was made around 
the   main   bungalow   of   the   suit   property   during   the   period 
1951­62.  The reliance is placed upon the evidence of the plaintiff 
and her witness PW 3 Moreshwar.   Assuming these facts to be 
correct, I proceed to deal with the findings, which are against the 
appellants.
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32.
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The   Courts   below   have   relied   upon   the   orders   of 
assessment of income­tax at Exhibits 222 and 223, the orders in 
appeal by the Income­Tax Authorities at Exhibits 214 and 218, 
and the income­tax returns  at Exhibit  230 to hold that Vishnu 
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Pathak as a Karta of the joint family had demanded to assess him 
as  HUF   and   not   as individual.    His  case  was  accepted  by the 
Income­Tax Authorities and he was held entitled to have rebate 
as HUF assessee.  The orders are relied upon to hold that Vishnu 
Pathak had himself accepted that he and his son Kashinath Pathak 
were practicing lawyers and they used to throw their income from 
all the sources in the common hotchpotch.  Hence, the finding of 
the Courts below is that the additions to the suit property was 
made from the income thrown  in the common hotchpotch and 
this conduct of Vishnu Pathak has clearly established that he has 
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abandoned and waived his proprietary interest in the suit property 
by blending his income in the income of the joint family; as a 
result, the suit property has lost its character as the self­acquired 
I   have   gone   through   the   orders   of   assessment   of 
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33.
property.
income­tax at Exhibits 222 and 223,  the orders passed in appeal 
by the Income­Tax Authorities at Exhibits 214 and 218, and the 
income­tax   returns   at   Exhibit   230.     Exhibit   214   is   the   order 
passed by the Appellate Assistant Commissioner of Income­Tax 
on   18­2­1950   in   respect   of   the   Assessment   Year   1949­50.     It 
shows that up to the year 1942­43 Vishnu Pathak was assessed as 
individual.  For the years 1943­44 and 1944­45, though his status 
was   shown   as   HUF,   the   assessment   was   made   as   individual. 
Thereafter,   for   the   Assessment   Years   1945­46   onwards   till 
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1948­49, his status was shown as individual.  In the year 1949­50, 
again he was shown as constituting HUF of himself and his son 
Kashinath Pathak.  The finding is recorded in the said order that 
the   sources   of   income   are   from   house   property,   interest   on 
securities, dividends, and legal profession; the last one being the 
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biggest source of income.  It is the further finding recorded that 
the house property consists of one bungalow, which is used as 
own residential  house;  one outhouse, which is let; and a shop, 
which is also let, in Yavatmal.  It is clearly observed that this is 
not the ancestral property.    It further records that all the earnings 
go   into   the   family   hotchpotch,   including   those   from   house 
property   and   other   sources.     Same   is   the   order   passed   by   the 
Appellate Authority at Exhibit 218.   The assessment of Vishnu 
Pathak was as HUF.  The Courts below have heavily relied upon 
these documents to hold that the income from the house property 
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and from profession was thrown in the common hotchpotch and 
the additions to the properties were made out of the income of 
HUF.  Hence, the property had lost its character as self­acquired 
The law of blending of income in common hotchpotch 
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34.
property and it was blended in the joint family property.
or   throwing   of   self­acquired   property   in   the   joint   stock   is 
well   settled.     The   decision   of   the   Apex   Court   in   the   case   of 
G.   Narayana   Raju   (dead)   by   his   legal   representative  v. 
G. Chamaraju and others, reported in AIR 1968 SC 1276, needs 
to be seen.  The relevant portion is contained in para 6 of the said 
decision, which is reproduced below :  
“(6) ...   It   is   a   well­established  doctrine   of   Hindu  
Law that property which was originally self­acquired  
may become joint property if it has been voluntarily  
thrown   by   the   coparcener   into   joint   stock   with   the  
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intention  of  abandoning   all  separate   claims   upon  it.  
The   doctrine   has   been   repeatedly   recognised   by   the  
Judicial  Committee  (See  Hurpurshad  v. Sheo  Dayal,  
(1876)   3   Ind   App   259   (PC)   and   Lal   Bahadur   v.  
Kanhaia   Lal,   (1907)   34   Ind   App   65   (PC).     But   the  
question whether the coparcener has done so or not is  
entirely a question of fact to be decided in the light of  
all   the   circumstances   of   the   case.     It   must   be  
established that there was a clear intention on the part  
of the coparcener to waive his separate rights and such  
an   intention   will   not   be   inferred   merely   from   acts  
which may have been done from kindness or affection  
(See the decision in Lala Muddun Gopal v. Khikhindu  
Doer,   (1891)   18   Ind   App   9   (PC).     For   instance   in  
Naina Pillai v. Daivanai Ammal, AIR 1936 Mad 177  
where in a series of documents self­acquired property  
was described and dealt with as ancestral joint family  
property, it was held by the Madras High Court that  
the mere dealing with self­acquisitions as joint family  
property   was   not   sufficient   but   an   intention   of   the  
coparcener must be shown to waive his claims with full  
knowledge of his right to it as his separate property.  
The   important   point   to   keep   in   mind   is   that   the  
separate property of a Hindu coparcener ceases to be  
his separate property and acquires the characteristics  
of his joint family or ancestral property, not by mere  
act of physical mixing with his joint family or ancestral  
property, but by his own volition and intention by his  
waiving   or   surrendering   his   special   right   in   it   as  
separate   property.     A   man’s   intention   can   be  
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discovered only from his words or from his acts and  
conduct.     When   his   intention   with   regard   to   his  
separate property is not expressed in words, we must  
seek   for   it   in   his   acts   and   conduct.     But   it   is   the  
intention that we must seek in every case, the acts and  
conduct   being   no   more   than   evidence   of   the  
intention. ...”
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It is thus held that it must be established that there was a clear 
intention   on   the   part   of   the   coparcener   to   waive   his   separate 
rights and such an intention will not be inferred merely from the 
acts, which may have been done from kindness or affection.  The 
decision   of   the   Madras   High   Court,   which   is   quoted   and 
followed, shows that mere dealing with self­acquisitions as joint 
family   property   was   not   sufficient,   but   an   intention   of   the 
coparcener   must   be   shown   to   waive   his   claims   with   full 
knowledge of his right to it as his separate property.  The separate 
property   of   a   Hindu   coparcener   does   not   acquire   the 
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characteristics  of joint family or ancestral  property, but  by his 
volition and intention by his waiving or surrendering his special 
right   in   it   as   separate   property.     It   is   the   intention,   which   is 
In the decision of the Apex Court in the case of  D.S.  
35.
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evidence of the intention.
required   to   be   seen,   the   acts   and   conduct   being   no   more   the 
Lakshmaiah  and another  v.  L. Balasubramanyam and another, 
reported   in  (2003)   10   SCC   310,   it   has   been   held   in   paras   19 
and 20 as under : 
“19. Another   contention   urged   for   the   respondents  
was that assuming Item 1 property to be self­acquired  
property of Appellant 1, he blended the said property  
with   the   joint   family   property   and,   therefore,   it   has  
become   joint   family   property.     Assuming   the  
respondents   can   be   permitted   to   raise   such   a   plea  
without   evidence   in   support   thereof,   the   law   on   the  
aspect   of   blending   is   well   settled   that   property  
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separate or self­acquired of a member of a joint Hindu  
family  may  be impressed  with  the character  of  joint  
family property if it is voluntarily thrown by the owner  
into   the   common   stock   with   the   intention   of  
abandoning his separate claim therein; but to establish  
such abandonment a clear intention to waive separate  
rights must be established.   From the mere fact that  
other members of the family were allowed to use the  
property jointly with himself, or that the income of the  
separate   property   was   utilised   out   of   generosity   to  
support  persons   whom   the  holder   was  not   bound  to  
support,   or   from   the   failure   to   maintain   separate  
accounts, abandonment cannot be inferred, for an act  
of   generosity   or   kindness   will   not   ordinarily   be  
regarded  as an admission  of  a legal  obligation  (see  
Lakkireddi   Chinna   Venkata   Reddi   v.   Lakkireddi  
Lakshmama   and   K.V.   Narayanan   v.   K.V.  
Ranganandhan).”
“20. In the present  case,  the respondents  have not  
led   any   evidence   on   the   aforesaid   aspects   and,  
therefore,   it   cannot   be   held   that   the   first   appellant  
blended Item 1 property into the joint family account.”
It is thus held that mere fact that other members of the family 
were allowed to use the property jointly with himself or that the 
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income of the separate family was utilised out of generosity to 
support the persons whom the holder was not bound to support, 
or   from   the   failure   to   main   separate   accounts,   abandonment 
cannot be inferred, for an act of generosity or kindess will not 
In the present case, except relying upon the orders of 
36.
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ordinarily be regarded as an admission of a legal obligation.
the Income­Tax Authorities at Exhibits 213 and 214, no evidence 
is referred to by the Courts below and the parties have also not 
brought to my notice any other evidence to show the intention of 
Vishnu   Pathak   to   treat   the   suit   property   as   the   joint   family 
property.  As pointed out earlier, there is a clear finding recorded 
in   the   order   at   Exhibit   214   that   the   suit   property   is   not   the 
ancestral   property.     On   the   contrary,   the   evidence   brought   on 
record in the form of municipal assessment lists at Exhibits 223, 
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230 to 233 and 235, the Deed of Partition at Exhibit 213, the 
registered will dated 30­12­1970 at Exhibit 191 bequeathing the 
suit property in favour of the daughters Smt. Saroj Pathak, Ku. 
Suman Pathak and Ku. Nalini Pathak, and the registered codicil 
dated 10­5­1973 at Exhibit 192 bequeathing the suit property in 
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favour of the unmarried daughters Ku. Suman Pathak and Ku. 
Nalini Pathak, making provision for them.  This clearly indicates 
that Vishnu Pathak, by his own acts and conduct, treated the suit 
property as his self­acquired property throughout.   There is no 
evidence   on   record   showing   the   clear   intention   of   Late   Shri 
Vishnu Pathak to abandon and waive his proprietary interest in 
the suit property, and merely because he has blended his income 
from house property in the income of the joint family property, 
the character of the suit property as the self­acquired property of 
Vishnu   Pathak   does   not   get   lost   to   become   the   joint   family 
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property.     The   substantial   questions   of   law   at   Serial   Nos.(5) 
and (6) are, therefore, answered accordingly.
37.
The reliance is placed by Shri C.S. Kaptan, the learned 
Senior Counsel appearing for the respondent No.1/plaintiff, upon 
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the   decision   of   the   Apex   Court   in   the   case   of  Mallesappa  
Bandeppa   Desai   and   another  v.  Desai   Mallappa   alias  
Mallesappa and another, reported in  AIR 1961 SC 1268.   The 
portion relied upon by him is contained in para 15 of the said 
decision, which is reproduced below :
“(15) In   this   connection   it   is   necessary   to   bear   in  
mind that respondent 1 has not shown by any reliable  
evidence that the expenses for the said litigation were  
borne by him out of his pocket.  It is true that both the  
courts have found that respondent 1 purchased certain  
properties for Rs.600/­ in 1925 (Ex. B­4).  We do not  
know   what   the   income   of   the   said   properties   was;  
obviously it could not be of any significant order; but,  
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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 coparceners. ...”
This   decision   is   clearly   distinguishable   and   the   principles   laid 
down therein cannot be invoked to hold that the burden of proof 
lies upon Vishnu Pathak to establish that the suit property was his 
self­acquired  property.   In the aforesaid decision, it was a suit 
filed by one coparcener against another.   It has been held that 
when a manager claims that any immovable property has been 
acquired by him with his own separate funds and not with the 
help of joint family funds, of which he was in possession and 
charge, it is for him to prove by clear and satisfactory evidence 
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60
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his  plea  that   the  purchase  money  proceeded  from  his separate 
funds.   The onus of proof must in such a case be placed on the 
manager and not on his coparceners.   In the present case, when 
the suit property was acquired in the year 1915 or even at the 
time of partition  in the year 1920, Vishnu Pathak was not the 
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Karta or Manager of HUF.  It was the HUF of Sadashiv Pathak, 
the father of Vishnu Pathak.  It is only after the partition of 1920 
that the HUF of Vishnu Pathak was reconstituted.  Once it is held 
that the plaintiff in the present case has failed to establish the suit 
property to be the joint family property of Sadashiv Pathak, the 
suit property will not become the joint family property, merely 
because   the   HUF   of   Vishnu   Pathak   was   reconstituted   in   the 
year 1920.    The principles laid down in the said decision are, 
therefore, not applicable to the present case.
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61
In   the   decision   of   the   Apex   Court   in   the   case   of 
38.
sa279.09.odt
Mst. Rukhmabai  v.  Lala Laxminarayan and others, reported in 
AIR 1960 SC 335, it has been held in para 5 as under :
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“(5) ...   But   there   is   no   presumption   that   any  
property, whether moveable or immoveable, held by a  
member   of   a   joint   Hindu   family,   is   joint   family  
property.  The burden lies upon the person who asserts  
that a particular property is joint family property to  
establish   that   fact.     But  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.”
39.
In  the   subsequent  decision  of the Apex  Court  in the 
case of Achuthan Nair v. Chinnammu Amma and others, reported 
in AIR 1966 SC 411, it has been held in para 7 as under :

40.
i
“(7) ...Under Hindu law, when a property stands in  
the name of a member of a joint family, it is incumbent  
upon those asserting that it is a joint family property  
to establish it.   When it is proved or admitted that a  
family   possessed   sufficient   nucleus   with   the   aid   of  
which  the member might have made the acquisition,  
the law raises a presumption that it is a joint family  
property   and   the   onus   is   shifted   to   the   individual  
member to establish that the property was acquired by  
him without the aid of the said nucleus.  This is a well  
settled proposition of law. ...”
In the decision of the Apex Court in the case of Saroja 
v. Santhilkumar and others, reported in (2011) 11 SCC 483, the 
question  was whether the properties in question were the joint 
family properties belonging to Late Shri Ratna Mudaliar or were 
the self­acquired properties of his son Arumugha Mudaliar.  The 
Apex Court held in para 8 of the said decision that the properties 
stood   in   the   name   of   Arumugha   Mudaliar   and   there   was   no 
documentary evidence to show that the properties were inherited 

by him, or that the properties originally belonged to his father 
Late Shri Ratna Mudaliar.  In the absence of such evidence, the 
Court rejected  the contention that the properties were the joint 
family   properties   and   not   the   self­acquired   properties   of 

Thus, there is a consistent view of the Apex Court that 
41.
Arumugha Mudaliar.
if the property  stands in the name of a coparcener of a Hindu 
Undivided Family, then presumption is that it is his self­acquired 
property,  unless  it is shown that  it is acquired  with the aid of 
nucleus of the joint family property.  The principles laid down by 
the   Apex   Court   in   these   decisions   are   attracted   in   the   present 
case, rather than the principles laid down by it in its decision in 
the case of  Mallesappa Bandeppa Desai and another  v.  Desai  
Mallappa alias Mallesappa and another, cited supra.

Once it is held that the plaintiff has failed to establish 
(1) that the suit property is the joint family property, or (2) that it 
is   acquired   with   the   nucleus   of   the   joint   family   property,   or 
(3) that Shri Vishnu Pathak has blended the suit property in the 

joint family property, the question of the suit property losing the 
character   as   the   self­acquired   property   of   Shri   Vishnu   Pathak, 
does not arise.  As a result, Shri Vishnu Pathak was competent to 
execute   the   registered   will   at   Exhibit   191   and   the   registered 
codicil   at   Exhibit   192,   ultimately   bequeathing   the   property   in 
favour   of   his   unmarried   daughters   Ku.   Suman   Pathak   and 
Ku.   Nalini   Pathak.     Obviously,   when   the   said   two   daughters 
could   not   get   any   share   in   the   partition   at   Exhibit   213,   the 
intention to make provision for unmarried daughters was made 
clear by executing the will and codicil at Exhibits 191 and 192. 

Neither   the   parties   have   advanced   any   argument   on   the 
authenticity   of   the   said   will   and   codicil,   which   are   proved   in 
accordance   with   law,   nor   have   insisted   upon   framing   any 
substantial question of law arising out of the findings recorded by 
the Courts below.  The Courts below have held that Shri Vishnu 

Pathak was not competent to execute these two documents to the 
extent of the share of other coparcener in the suit property.  Once 
it is held that the suit property remained to be the self­acquired 
property of Shri Vishnu Pathak, then the only course left upon is 
to   dismiss   the   suit   by   holding   that   Shri   Vishnu   Pathak   was 
competent to execute the will and codicil at Exhibits 191 and 192 
in respect of the entire property.
43.
For   the   reasons   stated   above,   the   second   appeal   is 
allowed.  The judgment and decree dated 6­3­2000 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 31­3­2009 passed in Regular Civil Appeal No.55 of 
2000   by   the   learned   Ad   hoc   District   Judge­1,   Yavatmal, 
confirming the judgment and decree passed by the Trial Court, 
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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.

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