Equivalent Citation: 2013(5)BomCR210, 2013(2)MhLj268
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Second Appeal No. 279 of 2009
Decided On: 29.10.2012
Appellants: Ku. Suman Vishnu Pathak
Vs.
Respondent: Usha
Vs.
Respondent: Usha
Hon'ble Judges/Coram:
R.K. Deshpande, J.
R.K. Deshpande, J.
Law of Evidence - Onus to prove fact - Suit for partition and separate possession of 1/36th share in suit property filed by Respondent No. 1-Plaintiff was partially decreed by trial Court - Appeal against order of trial Court was dismissed by Appellate Court - Hence, present Appeal - Whether Courts below correctly applied principle of burden of proof and shifting onus while deciding question whether suit property was a joint family property of father of Respondent No. 1-Plaintiff's grandfather or a self-acquired property of Respondent No. 1-Plaintiff's grandfather and committed an error of law in drawing an adverse inference that suit property was joint family property - Held, principle regarding burden of proof was laid down in Section 101 of Evidence Act, which provided that the party who came to Court to get a decision on any legal right or liability depending upon existence of certain facts, which he asserted, carried burden of proof - Hence, it was for Respondent No. 1-Plaintiff, who came before Court alleging that suit property was joint family property of father of Respondent No. 1-Plaintiff's grandfather, in which he was entitled to have 1/36th share, had to establish that suit property was joint family property - Merely because there was an evidence available on record that there existed HUF of father of Respondent No. 1-Plaintiff's grandfather or Respondent No. 1-Plaintiff's grandfather till 1969, that by itself would not make property standing in name of individual member of a joint family to be joint family property - Burden rest upon Respondent No. 1-Plaintiff to establish fact that suit property was joint family property - As per Section 104 of Evidence Act, burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact, was on person, who wished to give such evidence - There was no evidence on record to show exact income derived from ancestral property - Merely because HUF possessed certain ancestral properties, that by itself was not enough - In order to prove that suit property was joint family property, Plaintiff had to establish, in facts of present case, that there existed adequate nucleus out of which, acquisition could have been made - Respondent No. 1-Plaintiff failed to establish existence of adequate nucleus - Vital link of nucleus was missing - As per findings recorded by Courts below, Respondent No. 1-Plaintiff's grandfather had his separate income and sources to raise funds - Hence, question of shifting of onus or calling upon Defendants to lead evidence, did not arise - Question of drawing an adverse inference for failure of Appellant Nos. 1 and 2-Defendant Nos. 17 and 19 to lead evidence in such situation, also did not arise - Therefore, Courts below erred in applying principles of burden of proof, shifting of onus, and drawing of an adverse inference
Law of Evidence - Admissibility of statements - Whether statements contained in Deeds of Partition were admissible in evidence under Section 32(3) of Evidence Act - Held, argument based upon Section 32(3) of Evidence Act, was considered by Apex Court in case of Bhagwati Prasad Sah and others v. Dulhin Rameshwari Kuer and another, observing that statements of a particular person that, he was separated from a joint family, of which he was a coparcener, and that he had no further interest in joint property or claim to any assets left by his father, would be statements made against interest of such person, and, after such person was dead, they would be relevant under Section 32(3) of Evidence Act - In present case, statements contained in partition-deed at Exhibit 208 were against pecuniary or proprietary interest of persons, who had signed deed in respect of suit property and were dead before filing of suit - Hence, statements were relevant and admissible in evidence under Section 32(3) of Evidence Act
Law of Evidence - Interpretation of document - Whether Courts below had misconstrued term 'self-acquired properties' employed in Deeds of Partition at Exhibits 208 and 228 to hold that it did not convey natural meaning - Held, principle of interpretation of a document was laid down by Apex Court in case of Kamla Devi v. Takhatmal and another - Language of Deeds of Partition was very clear and unambiguous and applied accurately to existing facts to hold that those properties were self-acquired properties of Respondent No. 1-Plaintiff's grandfather and his brother - There was no occasion to search for circumstances to gather intention of parties to find out as to whether properties described as self-acquired properties in Deeds of Partition could be construed to be joint family properties of father of Respondent No. 1-Plaintiff's grandfather - Therefore, Courts below misconstrued term 'self-acquired properties' employed in Deeds of Partition at Exhibits 208 and 228 to hold that it did not convey natural meaning - Term 'self-acquired properties' in said deeds could not be construed as joint family properties - Documents at Exhibits 208 and 228 were registered documents relating to disposition of properties, which were proved - Documents being 30 years' old, same would carry presumption under Section 90 of Evidence Act - Hence, no evidence of any oral agreement or statement could be admitted in evidence from parties to any such instrument or their representatives in interest, for purpose of contradicting, varying, adding to, or subtracting from terms of documents - Therefore, findings of Courts below holding suit property to be joint family property of father of Respondent No. 1-Plaintiff's grandfather being based upon inadmissible evidence, could not be sustained
Family - Waiver of proprietary rights - Whether in absence of any evidence of clear intention of Late Respondent No. 1-Plaintiff's grandfather to abandon and waive his proprietary interest in suit property, no finding of blending of self-earned suit property by Late Respondent No. 1-Plaintiff's grandfather in joint family property could be recorded by Courts below - Whether self-earned property of an owner could be retained by him as his separate property and that character of property did not get changed to joint family property merely because owner blended income of such property with income of joint family - Held, exclusion of suit property from partition-deed at Exhibit 213, which was signed by all coparceners of HUF of Respondent No. 1-Plaintiff's grandfather, was an indication that suit property was self-acquired property of Respondent No. 1-Plaintiff's grandfather - Apex Court in case of G. Narayana Raju (dead) by his legal representative v. G. Chamaraju and others, had held that it must be established that there was a clear intention on part of coparcener to waive his separate rights and such an intention would not be inferred merely from acts - Mere dealing with self-acquisitions as joint family property was not sufficient, but an intention of coparcener must be shown to waive his claims with full knowledge of his right to it as his separate property - Separate property of a Hindu coparcener did not acquire 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 - Apex Court in case of D.S. Lakshmaiah and another v. L. Balasubramanyam and another, had held that mere fact that other members of family were allowed to use property jointly with himself or that income of separate family was utilised out of generosity to support persons whom holder was not bound to support, or from failure to main separate accounts, abandonment could not be inferred, for an act of generosity or kindness would not ordinarily be regarded as an admission of a legal obligation - In present case, except relying upon orders of Income-Tax Authorities, no evidence was referred to show intention of Respondent No. 1-Plaintiff's grandfather to treat suit property as joint family property - Respondent No. 1-Plaintiff's grandfather, by his own acts and conduct, treated suit property as his self-acquired property throughout - There was no evidence on record showing clear intention of Late Respondent No. 1-Plaintiff's grandfather to abandon and waive his proprietary interest in suit property
Family - Decree of partition - Challenge thereto - Held, if property stood in name of a coparcener of a Hindu Undivided Family, then presumption was that it was his self-acquired property, unless it was shown that, it was acquired with aid of nucleus of joint family property - Once it was held that Respondent No. 1-Plaintiff failed to establish that suit property the joint family property, or that it was acquired with nucleus of joint family property, or that Respondent No.1-Plaitiff's grandfather blended suit property in joint family property, question of suit property losing character as self-acquired property of Respondent No.1-Plaitiff's grandfather, did not arise - Hence, Respondent No.1-Plaitiff's grandfather was competent to execute registered will and registered codicil, bequeathing property in favour of his unmarried daughters - Said will and codicil were proved in accordance with law - Once it was held that suit property remained to be self-acquired property of Respondent No.1-Plaitiff's grandfather, then only course left upon was to dismiss suit by holding that Respondent No.1-Plaitiff's grandfather was competent to execute will and codicil at in respect of entire property - Decree passed by trial Court and order passed by Appellate Court, confirming decree passed by trial Court, were set aside - Appeal allowed
Law of Evidence - Admissibility of statements - Whether statements contained in Deeds of Partition were admissible in evidence under Section 32(3) of Evidence Act - Held, argument based upon Section 32(3) of Evidence Act, was considered by Apex Court in case of Bhagwati Prasad Sah and others v. Dulhin Rameshwari Kuer and another, observing that statements of a particular person that, he was separated from a joint family, of which he was a coparcener, and that he had no further interest in joint property or claim to any assets left by his father, would be statements made against interest of such person, and, after such person was dead, they would be relevant under Section 32(3) of Evidence Act - In present case, statements contained in partition-deed at Exhibit 208 were against pecuniary or proprietary interest of persons, who had signed deed in respect of suit property and were dead before filing of suit - Hence, statements were relevant and admissible in evidence under Section 32(3) of Evidence Act
Law of Evidence - Interpretation of document - Whether Courts below had misconstrued term 'self-acquired properties' employed in Deeds of Partition at Exhibits 208 and 228 to hold that it did not convey natural meaning - Held, principle of interpretation of a document was laid down by Apex Court in case of Kamla Devi v. Takhatmal and another - Language of Deeds of Partition was very clear and unambiguous and applied accurately to existing facts to hold that those properties were self-acquired properties of Respondent No. 1-Plaintiff's grandfather and his brother - There was no occasion to search for circumstances to gather intention of parties to find out as to whether properties described as self-acquired properties in Deeds of Partition could be construed to be joint family properties of father of Respondent No. 1-Plaintiff's grandfather - Therefore, Courts below misconstrued term 'self-acquired properties' employed in Deeds of Partition at Exhibits 208 and 228 to hold that it did not convey natural meaning - Term 'self-acquired properties' in said deeds could not be construed as joint family properties - Documents at Exhibits 208 and 228 were registered documents relating to disposition of properties, which were proved - Documents being 30 years' old, same would carry presumption under Section 90 of Evidence Act - Hence, no evidence of any oral agreement or statement could be admitted in evidence from parties to any such instrument or their representatives in interest, for purpose of contradicting, varying, adding to, or subtracting from terms of documents - Therefore, findings of Courts below holding suit property to be joint family property of father of Respondent No. 1-Plaintiff's grandfather being based upon inadmissible evidence, could not be sustained
Family - Waiver of proprietary rights - Whether in absence of any evidence of clear intention of Late Respondent No. 1-Plaintiff's grandfather to abandon and waive his proprietary interest in suit property, no finding of blending of self-earned suit property by Late Respondent No. 1-Plaintiff's grandfather in joint family property could be recorded by Courts below - Whether self-earned property of an owner could be retained by him as his separate property and that character of property did not get changed to joint family property merely because owner blended income of such property with income of joint family - Held, exclusion of suit property from partition-deed at Exhibit 213, which was signed by all coparceners of HUF of Respondent No. 1-Plaintiff's grandfather, was an indication that suit property was self-acquired property of Respondent No. 1-Plaintiff's grandfather - Apex Court in case of G. Narayana Raju (dead) by his legal representative v. G. Chamaraju and others, had held that it must be established that there was a clear intention on part of coparcener to waive his separate rights and such an intention would not be inferred merely from acts - Mere dealing with self-acquisitions as joint family property was not sufficient, but an intention of coparcener must be shown to waive his claims with full knowledge of his right to it as his separate property - Separate property of a Hindu coparcener did not acquire 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 - Apex Court in case of D.S. Lakshmaiah and another v. L. Balasubramanyam and another, had held that mere fact that other members of family were allowed to use property jointly with himself or that income of separate family was utilised out of generosity to support persons whom holder was not bound to support, or from failure to main separate accounts, abandonment could not be inferred, for an act of generosity or kindness would not ordinarily be regarded as an admission of a legal obligation - In present case, except relying upon orders of Income-Tax Authorities, no evidence was referred to show intention of Respondent No. 1-Plaintiff's grandfather to treat suit property as joint family property - Respondent No. 1-Plaintiff's grandfather, by his own acts and conduct, treated suit property as his self-acquired property throughout - There was no evidence on record showing clear intention of Late Respondent No. 1-Plaintiff's grandfather to abandon and waive his proprietary interest in suit property
Family - Decree of partition - Challenge thereto - Held, if property stood in name of a coparcener of a Hindu Undivided Family, then presumption was that it was his self-acquired property, unless it was shown that, it was acquired with aid of nucleus of joint family property - Once it was held that Respondent No. 1-Plaintiff failed to establish that suit property the joint family property, or that it was acquired with nucleus of joint family property, or that Respondent No.1-Plaitiff's grandfather blended suit property in joint family property, question of suit property losing character as self-acquired property of Respondent No.1-Plaitiff's grandfather, did not arise - Hence, Respondent No.1-Plaitiff's grandfather was competent to execute registered will and registered codicil, bequeathing property in favour of his unmarried daughters - Said will and codicil were proved in accordance with law - Once it was held that suit property remained to be self-acquired property of Respondent No.1-Plaitiff's grandfather, then only course left upon was to dismiss suit by holding that Respondent No.1-Plaitiff's grandfather was competent to execute will and codicil at in respect of entire property - Decree passed by trial Court and order passed by Appellate Court, confirming decree passed by trial Court, were set aside - Appeal allowed
1. The respondent Smt. Usha Koparkar is the original plaintiff and the grand-daughter 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. 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.
2. 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.
3. 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.
4. 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 income was neither sufficient to jointly purchase the suit property with Ganesh Pathak nor there is any 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 self-acquired property of Vishnu Pathak.
5. 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 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 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 witness-box 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 inference that the suit property was the HUF property.
6. Originally, it was Plot No. 19, which was acquired from the Municipal Council, Yavatmal, on 5-11-1917, exclusively in the name of Ganesh Pathak. On 19-11-1920, Ganesh Pathak and Vishnu Pathak executed a partition-deed 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 partition-deed 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 self-acquired property. Subsequently, on 29-10-1923, a partition-deed 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 partition-deed, there is a recital that Plot Nos. 16 and 19 were the self-acquired 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 'self-acquired properties' used in both these deeds at Exhibits 208 and 228 do not convey their natural meaning.
7. 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 and owned by himself along with Vishnu Pathak and the statements of all the five sons of Sadashiv Pathak contained in the partition-deed at Exhibit 228 that Plot No. 19 was the self-acquired property of Ganesh Pathak and Vishnu Pathak and the other sons of Sadashiv Pathak had no right in it, is rejected by 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 self-acquired property. The decisions relied upon by the defendant Nos. 17 and 18 were held to be not applicable on that count.
8. Relying upon the orders of assessment of income-tax at Exhibits 222 and 223, the orders in appeal by the Income-Tax Authorities at Exhibits 214 and 218, and the income-tax returns at Exhibit 230, it has been held that Vishnu Pathak got income-tax 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 partition-deed dated 23-2-1950 at Exhibit 213 between Vishnu Pathak, his two sons and wife, it is held that HUF of Vishnu Pathak existed till 1950, of which he was Karta.
9. In view of the aforesaid findings and the contentions raised by the Learned Counsels before this Court, which are in conformity with the arguments raised before the Courts below, this Court passed an order on 18-10-2012, framing the substantial questions of law, which is reproduced below :
After hearing the Learned Counsels for the parties at length, the following substantial questions of law are framed :
(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 self-acquired property, was against pecuniary and proprietary interest of the persons making it and would it be relevant and admissible in evidence under sub-section (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 self-acquired property, was against pecuniary and proprietary interest of the persons making it and would it be relevant and admissible in evidence under sub-section (3) of Section 32 of the Evidence Act ?
(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) 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 self-earned 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 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 is it not that the Courts below lost sight of this vital aspect of the matter ?
The matter is adjourned to 25-10-2012 so as to enable the Learned Counsel for the parties to address on the aforesaid substantial questions of law.
10. The relevant factual position, which is not in dispute, 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 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 5-11-1917, Plot No. 19, Survey No. 77 Sheet No. 38/D, admeasuring 22,725 sq.ft. of land was acquired on lease in the name of Ganesh Pathak from the Municipal Council, Yavatmal.
11. Plot No. 19 was partitioned in two parts between Ganesh Pathak and Vishnu Pathak by a registered deed of partition dated 29-11-1920, 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 20-10-1923, which is proved and marked as Exhibit 228, which excluded Plot Nos. 16 and 17 apart from other self-acquired properties of the members of the joint family from the properties available for partition.
12. 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 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.
13. 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, reported in AIR 1947 PC 189 192, needs to be seen. The same is, therefore, reproduced below :
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 self-acquisition 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 MANU/SC/0126/1954 : AIR 1954 SC 379. The portion in para 10 in the decision in the case of Srinivas Krushnarao Kango, cited supra, is also relevant and the same is, therefore, reproduced below :
(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 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 MANU/UP/0018/1958 : AIR 1958 All. 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 part the money necessary for acquiring the property in question.
14. 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 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.
15. It is a case of the plaintiff that the joint family possessed 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 self-acquisition 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 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 onus.
16. Even if the findings recorded by the Courts below are 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 5-11-1917 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. 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 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.
17. 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 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 partition-deed dated 20-10-1923 and the oral evidence of DW 1 Paithankar that 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.
18. As per Section 104 of the Evidence Act, the burden of 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 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 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 question of law at Serial No. (4) is answered accordingly.
19. 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 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 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.
20. The substantial questions of law at Serial Nos. (1), (2) and (3) in respect of the partition-deeds 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. Even Kashinath, the son of Vishnu Pathak, expired on 29-4-1978 and the suit in question was filed in the year 1981 by Smt. Usha Koparkar, the daughter of Kashinath Pathak.
21. 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 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:-
.........
(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 MANU/SC/0060/1951 : AIR 1952 SC 72. The relevant portion contained in para 13 is reproduced below :
13.... We think, however, that the statements could 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....
22. 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 partition-deed Exhibit 208 is dated 19-11-1920 registered on 21-12-1920 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) 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 ownership in it.
23. The partition-deed at Exhibit 228 is dated 29-10-1923 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 partition-deed. After stating the division of properties in detail, it is stated that apart from the ancestral properties, there are certain immovable properties, which are self-acquired 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, 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.
24. Thus, it is apparent that the statements contained in the partition-deed at Exhibit 208 are signed by Ganesh Pathak. The partition-deed at Exhibit 228 is signed by all the sons of Sadashiv Pathak. Shri S.P. Dharmadhikari, the learned Senior Counsel appearing for the appellants, is right in submitting that if all such properties described as 'self-acquired 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 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.
25. Now coming to the substantial question of law at Serial No. (3) regarding interpretation of the terms contained in the Deeds of Partition at Exhibit 208 and 228 is concerned, undisputedly, the terms of these partition-deeds 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 acquiring those properties. The Courts below have construed the description of those properties in the documents as the self-acquired properties, to be the joint family properties.
26. 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 MANU/SC/0016/1963 : AIR 1964 SC 859. The relevant portion contained in para 8 of the said judgment is reproduced below :
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....
27. In the light of the aforesaid principles for interpretation of documents, the findings of the Courts below holding the 'self-acquired properties' as the joint family properties will have to be seen. Perusal of the documents at Exhibits 208 and 228 leave no scope to interpret the self-acquired 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 facts to hold that those properties were the self-acquired 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 'self-acquired 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 'self-acquired properties' in the said deeds cannot be construed as the joint family properties. The substantial question of law at Serial No. (3) is, therefore, answered accordingly.
28. Section 92 of the Evidence Act states that when the 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. 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 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 self-acquired properties of Ganesh and Vishnu Pathak. In view of this, the findings of the Courts below holding the suit property to be joint family property of Sadashiv Pathak being based upon inadmissible evidence, cannot be sustained.
29. Now I shall proceed to deal with the substantial 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 self-earned suit property in the joint family property. The first document considered by the Courts below is the partition-deed dated 23-2-1950 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 subject-matter of partition. There is not even a whisper of the suit property in this partition-deed. 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 partition-deed, which is signed by all the coparceners of HUF of Vishnu Pathak, is an indication that the suit property was the self-acquired property of Vishnu Pathak.
30. 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 the year 1920, always stood exclusively in the name of Vishnu Pathak. The municipal assessment at Exhibit 235 for the period 1959-62 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 1951-62. 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.
31. The Courts below have relied upon the orders of assessment of income-tax at Exhibits 222 and 223, the orders in appeal by the Income-Tax Authorities at Exhibits 214 and 218, and the income-tax returns at Exhibit 230 to hold that Vishnu 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 Income-Tax 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 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 self-acquired property.
32. I have gone through the orders of assessment of income-tax at Exhibits 222 and 223, the orders passed in appeal by the Income-Tax Authorities at Exhibits 214 and 218, and the income-tax returns at Exhibit 230. Exhibit 214 is the order passed by the Appellate Assistant Commissioner of Income-Tax on 18-2-1950 in respect of the Assessment Year 1949-50. It shows that up to the year 1942-43 Vishnu Pathak was assessed as individual. For the years 1943-44 and 1944-45, though his status was shown as HUF, the assessment was made as individual. Thereafter, for the Assessment Years 1945-46 onwards till 1948-49, his status was shown as individual. In the year 1949-50, 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 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 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 self-acquired property and it was blended in the joint family property.
33. The law of blending of income in common hotchpotch or throwing of self-acquired 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 MANU/SC/0113/1968 : 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 well-established doctrine of Hindu Law that property which was originally self-acquired may become joint property if it has been voluntarily thrown by the coparcener into joint stock with the 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, MANU/TN/0581/1935 : AIR 1936 Mad 177 where in a series of documents self-acquired property was described and dealt with as ancestral joint family property, it was held by the Madras High Court that the mere dealing with self-acquisitions 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 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....
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 self-acquisitions 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 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 required to be seen, the acts and conduct being no more the evidence of the intention.
34. In the decision of the Apex Court in the case of D.S. Lakshmaiah and another v. L. Balasubramanyam and another, reported in MANU/SC/0639/2003 : (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 self-acquired 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 separate or self-acquired 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 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 kindness will not ordinarily be regarded as an admission of a legal obligation.
35. In the present case, except relying upon the orders of the Income-Tax 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, 230 to 233 and 235, the Deed of Partition at Exhibit 213, the registered will dated 30-12-1970 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 10-5-1973 at Exhibit 192 bequeathing the suit property in 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 self-acquired 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 self-acquired property of Vishnu Pathak does not get lost to become the joint family property. The substantial questions of law at Serial Nos. (5) and (6) are, therefore, answered accordingly.
36. The reliance is placed by Shri C.S. Kaptan, the learned Senior Counsel appearing for the respondent No. 1/plaintiff, upon the decision of the Apex Court in the case of Mallesappa Bandeppa Desai and another v. Desai Mallappa alias Mallesappa and another, reported in MANU/SC/0377/1961 : 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. B-4). We do not know what the income of the said properties was; obviously it could not be of any significant order; but, 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 self-acquired 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 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 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.
37. In the decision of the Apex Court in the case of Mst. Rukhmabai v. Lala Laxminarayan and others, reported in MANU/SC/0186/1959 : AIR 1960 SC 335, it has been held in para 5 as under :
(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.
38. In the subsequent decision of the Apex Court in the case of Achuthan Nair v. Chinnammu Amma and others, reported in MANU/SC/0361/1965 : AIR 1966 SC 411, it has been held in para 7 as under :
(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....
39. In the decision of the Apex Court in the case of Saroja v. Santhilkumar and others, reported in MANU/SC/0049/2011 : (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 self-acquired 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 self-acquired properties of Arumugha Mudaliar.
40. Thus, there is a consistent view of the Apex Court that if the property stands in the name of a coparcener of a Hindu Undivided Family, then presumption is that it is his self-acquired 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.
41. 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 self-acquired 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 self-acquired 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. For the reasons stated above, 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.
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