purchased property in his name and therefore, he became the
absolute owner. We are unable to accept this proposition
because it has come in the evidence that the father Narayan
came from Karnataka to Goa in Portuguese regime and at the
relevant time outsiders were not allowed to take/purchase
immovable property. It has also come on record that the
defendant no.1 and other sons and daughters born and
brought up at Goa. Therefore, it appears that Narayan
purchased the property in the name of defendant no.1
because of the rider. Therefore, it cannot be said that merely
because the property was purchased in the name of the
defendant no.1 he become sole and absolute owner.
IN THE HIGH COURT OF BOMBAY AT GOA
FIRST APPEAL NO. 146 OF 2010
SHRI RAMNATH NARAYAN PAI,
Versus
SHRI EKNATH NARAYAN PAI,
Coram:- F. M. REIS &
K. L. WADANE, JJ
Date of pronouncing the Judgment : 16.09.2015
Citation; AIR 2016(NOC)262 BOM
The present appeal is preferred by the original
defendant nos. 1 and 2 against the judgment and decree
passed by the Civil Judge Senior Division, Vasco, in Special
Civil Suit No. 20/2005/A dated 26.07.2010 by which the
learned Judge has decreed the suit. Hence, the appeal.
2. The description of the suit property is mentioned in
para 15-B and business mentioned in para 15-C of the plaint
are the suit property and herein after referred to as “the suit
property”.
3. The parties are referred to their original status.
4. The claim of the plaintiffs as can be seen from the
pleadings is that one Narayan Pai having four sons and seven
daughters out of which one son namely Srinath died. The
plaintiff nos. 1, 3 and defendant no.1 are the sons of Narayan
and plaintiff no.2 is wife of plaintiff no. 1 and plaintiff no.4 is
the wife of plaintiff no.3. The defendant no.2 is the wife of
defendant no.1. Defendant nos. 3 to 9 are daughters of
deceased Narayan Pai.
5. The defendant nos. 10 and 11 are the purchasers
of the one of the property sold by the defendant no.1. Mr.
Narayan Pai died in the year 1974 and his wife Saraswati died
in the year 1993.
6. The parents of the plaintiffs and defendants were
originally hailing from Honnavar from Karnataka State. The
father of the plaintiffs and defendants namely Narayan Pai
came down to Goa and settled during the Portuguese regime
prior to the liberation of Goa. All the children were born and
brought up in Goa.
7. During the Portuguese regime, Narayan Pai
purchased immovable properties i.e. surveyed under chalta
Nos.46, 47, 48 and 56 of P.T. Sheet No. 91 in the name of the
defendant no.1. The suit property was originally belonged to
the Communidade of Mormugao and in possession and
enjoyment of the family of the plaintiffs and defendants since
1955. During the land survey, when the notice was issued by
the survey authorities in the name of the father of the
plaintiffs, at that time the father had expired in the month of
( August 1975). After the death, the mother was attended by
the defendant no.1 as other sons were minors and presently
the name of the defendant no.1 is recorded in the entire suit
property.
8. During the life lime of Narayan Pai, he set up a
family business i.e. grocery shop however it was closed after
liberation of Goa. Thereafter, Narayan set up another business
at Mundvel under the name and style as M/s Canara Timbers
Depot where all types of mangalore tiles were available and
such business was flourished. Besides the above business, the
family has big house which was rented to the different persons
at different point of time. The above referred business and the
income from the rented house was looked after by Narayan
and after his death all the properties and business was
managed by the sons of Narayan. However, the funds were
exclusively handled by the defendant no.1 who was the elder
brother. After the death of the father, all the brothers were
jointly took another plot at Vasco in the year 1976 or
thereabout and the old business under name and style M/s
Canara Timber was shifted to Vaddem and it was started in the
name of the mother i.e. M/s Saraswati Timber and Tiles Depot
and the entire business from Mundvel was shifted to Vaddem.
The business was looked by all four brothers and it was
sometime called as partnership business but basically it was a
family business.
9. It is further contended by the plaintiffs that they
have family property at Honnavar allotted on the rental basis
of Rs.3000/- per month.
10. From the family funds, the family members had
purchased 9000 square metres plot at Old Goa through
defendant no.1 and the title document is in possession of the
defendant no.1. Likewise, another plot at Dabolim was
purchased from the funds of joint family. In the year 1990
another flat was acquired at Margao and it was purchased from
the family funds. In short, all the immovable properties
mentioned in the plaint at para 15-B are purchased through
the family funds. Therefore, the plaintiff nos. 1 and 3 and
defendant nos.1 and 3 to 9 have equal shares in it as they are
governed under the Hindu Law.
11. The plaintiffs and defendant no.1 to 9 are the
members of HUF governed by the provisions of Hindu Law as
applicable to the State of Karnataka. They are not governed by
the Law of Succession as applicable to the State of Goa. This
is because the father of the plaintiffs was born and married in
Karnataka. During the life time Narayan was karta of Hindu
Joint Family and after his death the defendant no.1 being the
elder son become a karta of Hindu joint family. The suit
properties were purchased with the common funds of the joint
family and thus it is a joint family property purchased on
behalf of the members of the joint Hindu family.
12. It is further contended by the plaintiffs that the
plaintiff nos.1 and 2 are having joint 1/10th share, the plaintiff
nos. 3 and 4 are having 1/10th share, defendant no.1 and 2 are
having 1/10th share whereas the defendant nos. 3 to 9 are
having 1/10th share each. So also the defendant nos.1, and 2,
plaintiff nos. 3 and 4 and plaintiff nos. 1 and 2 are having
1/3rd share each in the business of the joint family namely (1)
M/s Saraswati Timber and Tiles Depot, Vaddem, (2) M/s
Narayan Road and (3) M/s Canara Timbers, Vasco. The family
business namely M/s Narayan Road Line includes trucks,
tempos etc. , but subsequently all the vehicles were sold and
money was collected by the defendant no.1 on the pretext of
paying the bank installments and said money is still not added
in the family income nor paid to the plaintiffs.
8
13. It is further contended that the defendant no.1 was
interfering with all the business and in order to avoid family
dispute and the mismanagement of the joint family income,
the plaintiff nos.1 and 3 and defendant no.1 entered into an
agreement of settlement, original of which was taken by the
defendant no.1. However, no settlement was taken place
thereafter as contemplated under the said agreement. The
said settlement was signed by all the brothers and their
Advocate Mr. D'souza.
14. In the year 2001 a deed of dissolution was
executed between the plaintiff no.3 and defendant no.1
however nothing came pursuant to the said document. The
defendant no.1 was mismanaging the family affairs and the
family funds to suit his own end and he is trying to get unjust
enriched at the cost of the other family members. The
defendant no.1 has started grossly mismanaging the funds and
the same is working to the disadvantage of all. Therefore, the
plaintiffs were intending that all the properties and business
should be separated as the same are belonging to their
parents. Therefore, the plaintiffs have requested the
defendant no.1 orally to settle the dispute amicably but the
defendant no.1 did not pay any heed to the plaintiffs' request.
9
15. The plaintiffs state that although the defendant
no.1 was handling the affairs, all the brothers have
participated in the entire family business soon after the death
of their father. Now the defendant no.1 wants to grab all the
family properties for himself without making the partition. The
family business of the plaintiffs and the defendants was shifted
to Vaddem at that time the plaintiff no.3 was a minor. The
business namely M/s Saraswati Timber was and is of joint
family business set up from the joint family funds. During the
pendency of the suit, the plaintiffs came to know that the
defendant no.1 sold the plot referred to in para 13 to the
defendant no.10 despite notice of pendency of the suit.
Hence, the defendant nos.10 and 11 are made parties to the
suit. In short, it is the contention of the plaintiffs that the
entire suit property is joint family property and therefore its
members are having equal shares as per the succession of the
Hindu Law and therefore, the plaintiffs have prayed for
partition and separate possession of the suit property and thus
have filed the suit.
16. The defendant no.1 contested the suit by filing his
written statement at Exhibit 14 and he has denied almost all
contents of the plaint. It is further the case of the defendant
no.1 that no properties were acquired by the parents however
the property surveyed under Chalta Nos. 46, 47, 56 of PT
sheet no.91 were acquired by his father in his name and for
his benefit. So the defendant no.1 is sole owner of that
property. The defendant no.1 has denied that the joint family
property and the business is joint family business. During the
life time of the father, there was only one house consisting of
16 rooms rented to Tereza High School for the rent of
Rs.4000/- per month and it was for the benefit of the
defendant no.1.
17. After the death of the father, the defendant no.1
took charge of the entire property and he was looking after the
same. The plaintiffs or the mother never managing the
properties or business. The plaintiff no.1 and the deceased
brother Srinath have decided to set up a joint business of
timber and jointly acquired a plot at Vaddem and started M/s
Saraswati Timber in the year 1980. One plot at native place
Honnavar was in the name of the grand mother of the
defendant no.1 who bequeathed it to the defendant no.1 and
now it is exclusively belonging to the defendant no.1. The suit
property particularly the property at Old Goa, Dabolim,
Vaddem, i.e. flat, shops and building consisting of 15 flats
were purchased by the defendant no.1 out of his own earning
and it has nothing to do with the family business or family
income.
18. The plaintiff no.1 was residing in one flat as
gesture of goodwill. So in short it is the case of the defendant
no.1 that the entire suit property is the exclusive property
which he has purchased from his own earning and the plaintiffs
or other defendants have no concern whatsoever with the
same. Along with the written statement, the defendant no.1
has filed counter claim against the plaintiff nos. 1 and 2 and
thereby claimed relief of eviction of the plaintiff no.1 from flat.
19. In order to establish the claim of the plaintiffs, the
plaintiff no.1 has adduced his oral evidence at Exhibit 59 and
relied upon the relevant documents at Exhibit 62 i.e. deed of
partnership, deed of lease at Exhibit 63, agreement of
settlement at Exhibit 64, deed of retirement at Exhibit 65,
deed of dissolution at Exhibit 66, copy of the IT returns at
Exhibit 67, statement of accounts at Exhibit 68. The plaintiff
no.2 deposed at Exhibit 86. The witness Mr. D'Souza, Advocate
at Exhibit 91.
20. As against this, the defendant no.1 entered into
the witness box and filed his affidavit at Exhibit 104. Besides
the above oral as well as documentary evidence, other
12
documents i.e. Form D at Exhibit 114, Form I and XIV at
Exhibit 115, deed partnership dated 4.9.1980 at Exhibit 116,
Form I and XIV at Exhibit 117 and statement of income of
house property at Exhibit 123 is produced on record.
21. Considering the rival pleadings of the parties, the
learned Civil Judge Senior Division, has framed 10 issues and
after hearing both the sides decreed the suit as referred to
above.
22. We have heard the arguments of Mr. N. Sardessai,
learned Senior Counsel appearing for the defendant nos. 1 and
2/appellants and Mr. Timble, learned counsel appearing for
plaintiff nos. 1 to 4 and defendant no.3 to 9/respondents.
23. Considering the pleadings of the parties, evidence
on record and upon hearing the learned counsel appearing for
both the sides at length, the following points arise for our
determination :
POINTS FOR DETERMINATION FINDINGS
1 Whether the plaintiffs and the
defendant no.3 to 9 are entitled for
the partition and separate
possession ?
Yes
2 Whether the defendant
no.1/appellant proves that the suit
property is self acquired property ?
No
13
3 What order ? Appeal is dismissed
with costs.
24. During the course of the arguments Mr. Sardessai,
the learned Senior Advocate, appearing for the appellants has
argued that only one property was purchased by the father of
the defendants in the name of defendant no.1. Therefore,
defendant no.1 has become the absolute owner of that
property. The defendant no.1, by his own earnings,
subsequently has acquired various properties to which, other
defendants and the plaintiffs have no concern. The plaintiffs
have not proved that the suit property is acquired by the
defendant no.1, was purchased from the joint nucleus.
Therefore, it cannot be said that the suit property is belonging
to the Hindu undivided family. The business run by the
plaintiff no.1 and the defendant no.2 was in the partnership.
It does not mean that the business was of a joint family
business. He further argued that the business run by the
defendant no.1 and the plaintiff no.1 was dissolved
subsequently. So, looking to the arguments advanced by Mr.
Sardessai, the learned Senior Advocate appearing for the
appellants, it appears that, whatever the properties acquired
by the defendant no.1 are his self-acquired property,
therefore, entered in revenue record in his name.
25. As against this, Shri Timble, the learned Advocate
appearing for the respondents, has argued that admittedly,
the parties are governed by Hindu Law. Therefore, basically
the property purchased by Narayan Pai in the name of the
defendant no.1 is Hindu Joint Family property. Therefore,
unless and until, the partition between coparceners are
effected and proved, it is to be presumed that the properties
i.e. movable and immovable held by each of the coparceners
is the property of Hindu Joint Family. The learned Advocate
further argued that one of the plaintiffs was accepting rent of
six flats; whereas the defendant no.1 was accepting rent of
remaining six flats and one of the plaintiffs was residing in one
flat. So, by referring the evidence to that effect, Mr. Timble
has argued that all the evidence on record shows that
whatever the properties acquired by the defendant no.1 is the
properties belonging to HUF and it is purchased from nucleus
of HUF. Therefore, the plaintiff nos. 1, 3, defendant no.1 and
defendant nos. 3 to 9 are having equal share in the suit
property, hence, the plaintiffs are entitled for the partition and
separate possession being coparceners.
26. Keeping in mind the arguments advanced by both
the sides, it is necessary to refer to the certain basic principles
of law relating to Hindu and its succession. Admittedly, the
15
parties are governed by Hindu Law.
27. By the amendment to the Hindu Succession Act
2005, now, the daughter of the coparcener is also a
coparcener, in her own right and, in the same manner, as a
son. So, after the amendment of 2005, the status of the
daughters are equated with the sons. So also, there is a
presumption of the Hindu Joint Family, unless a severance is
proved, but such presumption is not regarding Hindu Joint
Family property.
28. There is no escape from the Joint Hindu Family.
May be in one generation, it is broken it is brought to end by
partition, but again in the next generation it comes into
existence automatically. For example, father dies then his
sons and daughters constitute a Hindu Joint Family
automatically. The death of the common ancestor does not
mean that the joint family will come into an end. Upper links
are removed and lower ones are added and in this manner, so
long as the line does not become extinct the joint family
continues and can continue indefinitely, almost till perpetuity.
29. This is referred to, as the father of the
defendants died some time in the year 1975 and prior to that
16
even according to the the defendant no.1, the property at
Vadeem i.e. Chalta no.91 was purchased by his father but in
his name. Therefore, sons and daughters of the deceased
Narayan became members of the joint family.
30. Further, it is necessary to mention here that the
settled law governing Hindus that there is no presumption that
a family because it is joint possessed of joint property and
therefore, the person alleging the property to be joint has to
establish that the family was possessed of some property with
the income and which the property could have been acquired.
But such a presumption is a presumption of the fact which
can be rebutted. But, where it is established and admitted that
the family which possessed joint property which from its
nature and relative value may have formed sufficient nucleus
from which the property in question may have been acquired,
the presumption arises that it was the joint property and the
burden shifts to the party alleging self-acquisition to establish
the affirmatively that the property was acquired without the
aid of joint family.
31. In the present case, there are two aspects to be
taken into consideration. First is that, it is the case of the
plaintiffs that the entire suit property is the joint family
property purchased from the nucleus of HUF. So also, the
business was belonging to the HUF. So, initial burden is upon
the plaintiff to establish and if they succeeded in establishing
such aspect, then burden shifts upon the defendant no.1 to
establish that the suit property is self-acquired property. In
this context, it is for the defendant no.1 to show and prove
that he had an independent source of earning, besides the
earning from the property purchased by his father. If he is in
a position to show, then it can be said that he has discharged
his burden.
32. Character of any joint family property does not
change with the severance of the status of the joint family
and a joint family property continues to retain its joint family
character so long as the joint family property is in existence
and is not partitioned amongst the co-sharers. By a unilateral
act, it is not open to any member of the joint family to
convert into joint family property into his personal property.
33. In the light of the above principle, now, it is
necessary to scrutinize the evidence of parties.
34. To discharge the initial burden, the plaintiff no.1-
Eknath s/o Narayan Pai filed his affidavit in view of his oral
18
evidence under the provisions of Order XVIII Rule 4 of the
Code of Civil Procedure and has reiterated all the contents of
the plaint.
35. During the cross-examination, the plaintiff no.1
has stated that besides the document at Exh. Nos. 67 and 68
he has no other proof to support his claim of HUF. He was
born in the year 1956 in Goa. The construction licence to
construct 14 flats was in the name of the M/s. N.R. Pai and
Sons, a partnership firm. This basically shows that the
construction was in a partnership firm consisting of defendant
nos. 1 and the plaintiffs. This is one of the circumstances to
indicate that the co-sharers or members or the sons were
doing the activities of a business in common. No doubt, the
members of Hindu Joint Family can do the business of
partnership provided that they should establish that they have
contributed a particular capital according to the terms and
conditions of the partnership. In that event, it can be said that
even a member, who are separated from the Joint Hindu
Family are doing the business in the partnership.
36. Exh. 62 is the Deed of Partnership dated 22.11.1979
regarding the business in the name and style of “M/S.
SARASWATI TIMBER & TILES DEPOT” at Vaddem. It was
19
between the plaintiff no.1, defendant no.1 and Shri Srinath
and profit and loss was 33.1/3rd percent. Another Deed of
Retirement-cum-re-construction is at Exh. 35 dated 1.4.1989
by which the plaintiff no.1 Eknath, Srinath retired from the
partnership and the plaintiff no.1 was inducted to continue in
the business with defendant no.1.
37. The next very important document is an Agreement of
Settlement is at Exh.64. According to the plaintiffs, it was/is
family arrangement between the plaintiff and the defendant
no.1 to look after the family business.
38. On perusal of the document (Exh.64) it appears that
it is the settlement between four brothers, namely: plaintiff
no.1, plaintiff no.3, defendant no.1 and Srinath and in the
second paragraph itself there is mention as follows:
“ WHEREAS both the parties are brothers till
date they have been residing in the ancestral
house and attending to the common business
and have at present acquired certain assets”.
“AND WHEREAS the said business was
expanding till the date and have acquired
following assets which they would amicably
like to partition between the parties”.
Then the list of the properties is mentioned i.e. the suit
property. Further, it is mentioned that both the parties being
unable to carry on the business. Therefore, they have
amicably opted for partition the assets and liabilities, on the
terms and conditions and description of the properties are
mentioned in the agreement itself.
39. It is pertinent to note that on perusal of the
contents of this document, it is apparently seen that four
brothers i.e. plaintiff no.1 and 3 and defendant no.1 and
Srinath have amicably partitioned the suit property. However,
it is surprise to note that the parties have not acted as per the
terms and conditions of the Deed (Ex. 65).
40. The defendant no.1 admitted during the crossexamination
stated as follows:-
“It is true that there are properties enlisted in
the said agreement which have been
mentioned as common properties in the
agreement,however, I say that all the said
properties are belonging to him. It is true that
in the agreement it is stated that all the
properties enlisted in the agreement would be
partitioned amongst all four brothers in the
manner set out in the agreement. I say that
pursuant to the said agreement the movables
were partitioned in the manner set out in the
agreement each party to take possession of
the movables allotted to his share.
41. However, the defendant no.1 has further
candidly admitted as follows:-
“I say that the immovables have not been
partitioned though mentioned in the
agreement. I say that we did not proceed with
the partition of immovables as with the
money earned from the properties of
movables, the plaintiff nos.1 and 2 started
spending money on vices. I say that in view
of vices to which the plaintiffs have resorted
to, they are not entitled to partition of the
immovables”.
42. All the above admissions are very material by which
one can say that there was no partition between the cosharers
after the death of Narayan.
43. It is the case of the defendant no.1 that his father
purchased property in his name and therefore, he became the
absolute owner. We are unable to accept this proposition
because it has come in the evidence that the father Narayan
came from Karnataka to Goa in Portuguese regime and at the
relevant time outsiders were not allowed to take/purchase
immovable property. It has also come on record that the
defendant no.1 and other sons and daughters born and
brought up at Goa. Therefore, it appears that Narayan
purchased the property in the name of defendant no.1
because of the rider. Therefore, it cannot be said that merely
because the property was purchased in the name of the
defendant no.1 he become sole and absolute owner.
44. Further it is seen from the record that the
father Narayan was running certain business and
during his life-time it was expanded. Such business
was expanded under the name and style of
“SARASWATI TIMBER & TILES DEPOT” at Vaddem. It has also
come on record the property purchased by Narayan was a
house consisting of 16 rooms and it was let out to one school
at the monthly rent of Rs. 1400/-. Further, it is seen from the
record that after the death of Narayan, the defendant no.1
was looking after the entire business and if he has expanded
business to certain extent from the income of the joint family,
then the extended business has to be termed as joint family
business.
23
45. There is no pleading and evidence on record, that
even though the plaintiffs and defendant no.1 were having
certain properties still the defendant no.1 was doing separate
and independent business by which he was earning. If, it was
so then, definitely even a member of a joint family can earn
separately besides the income of joint family and if from such
separate income one of the coparcener expanded the business
to the large extent, then it can be termed as self-acquired
property.
46. Here, in the present case, there is no pleadings of
the defendant no.1 that he had any source of income, besides
earning of rent from the school and from such earning he has
expanded business and acquired the suit property.
47. So, looking to the contents of the agreement of
settlement (Ex.64) it appears that the parties have not been
acted upon this document.
48. Mr. Sardessai, the learned Senior Advocate
appearing for the appellants has argued that the plaintiffs are
not entitled to seek relief for specific performance as the
agreement of settlement dated 18.6.1989 for want of
limitation. We do not agree with the submission of Mr.
Sardessai, because on the basis of agreement the plaintiffs are
not entitled to seek relief of specific performance.
49. In-spite of execution of the document (Exh. 64) no
partition of family took place. Therefore, the plaintiffs can
asked for partition and separate possession of the properties
independently.
50. Defendant no.1 has admitted during the crossexamination,
that his father expired on 11/11/1974 and all
his children are residing in the house constructed by his father
in the year 1963 at Mundvel bearing Chalta no.46, 47, 48 and
56 of PT Sheet no. 91. Again, it is made clear that the father
constructed the house in 1963 on the land purchased in the
name of defendant no.2 and all the children were residing in
the said property. This is an additional circumstance to
indicate that this property at Mundvel is a joint family property
and subsequently development of business and acquisition of
certain property are from the earning of the income from the
rent house. So, basically, there is nothing on record to show
that the defendant no.1 had any independent business or
earning or any source of income. There are other
circumstances on record to show that some of the plaintiffs
and defendant no.1 were doing the business in partnership.
They were accepting the rent in equal proportionate which
shows the status of the family of the plaintiffs and the
defendants become HUF.
51. Another one of the witnesses Advocate D'souza has
been examined who drafted the agreement of settlement. He
also supports the case of the plaintiffs.
52. The plaintiffs have proved that there was no partition
of the suit property and the defendant no.1 failed to prove that
the suit property is self-acquired property. Hence, Point nos. 1
and 2 are answered accordingly.
53. In view of the above, we are of the opinion that after
the death of Narayan Pai, the coparceners are entitled to have
equal shares in the joint family property i.e. suit property.
Hence, Point nos. 1 and 2 are answered accordingly.
Therefore, we pass the following order :-
O R D E R
The appeal is dismissed with costs.
K.L. WADANE, J F. M. REIS, J
mukund
26
Judgment continued
54. At this stage, learned Counsel appearing for the appellants
seeks for a stay of the operation of the impugned judgment so that no
third party rights are created in respect of the suit property. The
impugned judgment of the Trial Court has only directed that a
preliminary decree be drawn. The partition, if any, as such cannot be
effected immediately. Hence, the prayer stands rejected.
K.L. WADANE, J F.M. REIS, J.
No comments:
Post a Comment