Whether the appellant could be treated as a bona fide
purchaser. Bona fide purchaser is that person who takes
reasonable care to ascertain that the transferor had the power
to make transfer and he had acted in good faith and also that
the true owner had consented to such transfer. Since true
owners are challenging the transfer, there is no question of
consent. Let us see if there is evidence of appellant’s acting in
good faith and whether he had taken reasonable care. I find
that this is a fit case of lack of good faith and not even a
reasonable care has been taken. It appears, on the other hand,
that defendant no.1 entered into contract of purchase of the
property with open eyes. The reason for saying so is that the
appellant does not enter into witness box to make out the case
in pleading and second in his own plaint vide Exh.36, he had
made an averement and assertion that the shop and the
property belonged to the joint family. This clearly shows that
defendant no.1 has had full knowledge of the property being
owned by the family and not by defendant no.2 alone. The
appellant, therefore, could not be treated to be a bona fide
purchaser. Although I find that the property is not a joint
family property as such, all the same it is jointly acquired
property in which each one of them has equal share. In the
circumstances, there is no difficulty in confirming the judgment
and decree as passed by the court below.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.109 of 1997.
Kausabai wd/o Rajaram Waradkar,
V
Gayabai wd/o Gundaji Mogre,
CORAM: C.L.Pangarkar, J.
DATED : 13th April, 2010.
Citation:2010(4) MHLJ 46
1. This is a second appeal by original defendant no.1. The
parties shall hereinafter be referred to as the plaintiff and the
defendants.
2. The facts giving rise to the appeal are as follows
Plaintiff no.1 is the mother of plaintiff no.2 and
defendant no.2. Defendant no.1 is the transferee of the suit
property. According to the plaintiffs, defendant no.2 was not
the sole owner of the suit property and inspite of that he has
sold the the suit property to defendant no.1. According to the
plaintiffs, they have 2/3rd share in the suit property. It is their
contention that the plaintiffs and defendant no.2 were the
members of the joint Hindu family when the suit property was
alienated by defendant no.2. They contend that they had
purchased jointly a plot of land for construction of the house
and they constructed a house thereon. The same was
constructed from joint family funds though in the name of
defendant no.2. The plaintiffs contend that in the year 1949,
plaintiff no.1 along with her two sons was turned out of the
house by husband and since then she was living with her
mother and sisters. It is their contention that plaintiff no.1
started business in grains and she was supporting the family.
Thereafter, the plaintiff and defendant no.2 together started a
business in the name and style ‘Mogre Brothers’ and a branch
of the said shop was opened by the plaintiff and defendant no.
2 at village Tembhurda also in the rented house. The said shop
was run by plaintiff nos.1 and 2. Defendant no.2, however,
used to manage the said shop only on weekly market day.
Further, it is contended that in the year 1968, a wholesale and
retail shop of grocery was started in the name and style Kisan
Kirana Bhandar. That was also a joint family business and
former name ‘Mogre Brothers’ was changed. It is contention of
plaintiffs that the suit property was purchased out of the
earning from the said shop and the plaintiffs have, therefore,
2/3rd share in them.
3. Defendant nos.1 and 2 filed a joint written statement in
the suit. According to the defendants, the suit property was
selfacquired property of defendant no.2 and plaintiffs had no
concern with the same. It is contended that defendant no.2
had started the grocery business and had even started a branch
at Thembhurda. House, according to him, was constructed in
1967 itself and he was paying the taxes. The defendants
further contend that there was never any joint family, much
less a Hindu joint family. The joint family funds were not used
for the construction of the house or plot and the plaintiffs have
no share whatsoever in the suit property.
4. The learned Judge of the trial court found that the house
was constructed from joint family funds, the plaintiffs had 2/3rd
share in it and the saledeed, therefore, was not binding on the
plaintiffs. Holding so, he decreed the suit. An appeal was
preferred by the defendants and the appeal came to be
dismissed. Feeling aggrieved thereby, this second appeal has
been preferred.
5. I have heard the learned counsel for the appellants and
the respondents.
6. The appeal was admitted by this court (Kulkarni,J.) on
the following substantial questions of law.
1) Both the learned courts below have erred in
holding that the suit property is purchased from
the joint family funds in the year 1966 from one
Mahadeo Gadge and hence, it is a joint family
property and further that the plaintiffs/
respondents 1 and 2 have 2/3rd share in the suit
property. The learned courts below while
deciding this issue have not considered the fact
that respondent no.1 had started her business
after separating herself from her husband and
hence, such business under Hindu Law is not a
joint family business as there was no joint family
or joint family business in existence at the time
of starting of such business.
2) The learned courts below have failed to consider
a very important aspect that joint Hindu family
cannot be constituted in the facts and
circumstances of the present case. It is liable to
be seen that it is an admitted fact that plaintiff
no.1 Gayabai had left her husband and come to
Warora along with two sons and started residing
with her sister Gangubai. It is alleged that she
started the business with the help of her sister
Gangubai. Hence, there cannot be a
presumption as contemplated in law of a joint
Hindu family. Thus, the finding of the courts
below that the plaintiffs and defendants no.2
were members of the joint family at the time of
alienation of the suit property is an error
apparent in law.
3) The learned courts below failed to consider that
admittedly the property which was sold to
appellants was in the name of Vithal and Vithal
had ja right to sell the property. It has also come
in the evidenced that it was Vithal, who had
constructed the house. The learned courts
below have unnecessarily observed that Vithal
has not produced any document to support the
construction. The fact remains that since the
suit property was in the name of Vithal and he
had purchased this property, the question of his
right to sell the same does not arise.
4) The learned courts below have erred in holding
that there was a joint family business and suit
property was only purchased in the name of
Vithal. Assuming that this is admitted, it is only
to be held as a benami transaction and the
plaintiffs have no right in the property, which
stands in the name of Vithal.
5) It is liable to be seen that there is no nucleus
established to show that it is a joint family
property. Even otherwise, the learned courts
below should have considered that this property
was his separate property and Vithal had raised
funds by starting his business in 1959 and
hence, the suit property which was purchased in
1996 as an open plot was Vithal’s separate
property. Thus, the learned courts below should
have held that Vithal was lawful and exclusive
owner of the suit property and he had a right to
sell the suit property.
7. It is the case of the plaintiffs that plaintiff no.1’s husband
and no.2’s father turned the plaintiffs and defendant no.2 out
of the house and therefore, all three of them started living with
the mother and sister of plaintiff no.1. The plaintiffs
specifically averred in para no.5 of the plaint to the following
effect.
“That the plaintiffs and the defendant no.2
were the members of the joint Hindu family
when the suit house was alienated to the
defendant no.1.”
8. Thus, they contend that they constitute a joint Hindu
family. In fact, law presumes that every Hindu family is a joint
family unless otherwise shown. In the instant case, however,
the controversy seems to have arisen because the father does
not live with the family. Normally, a joint family consists of
father, mother and sons and their wives. Here, admittedly,
father had long back turned the plaintiffs and defendant no.2
out of the house and he is living separately. The question is
whether the mother and two sons could constitute a joint
family and that seems to be the question of law raised. I see no
reason why they cannot. If two brothers, upon death of father,
can constitute a joint family, there is no reason why two
brothers in this case with their mother cannot constitute a joint
family, when father deserts them. Even if one of the
coparceners decides to break away from the rest of the family,
the other coparceners can constitute a joint Hindu family. Even
otherwise in the instant case father had deserted them, he has
not separated as such from the family. I find that the two sons
with their mother and even wives can constitute the joint
Hindu family. In the instant case, it could be said that the
plaintiffs and defendant no.2 constituted a joint Hindu family.
9. The plaintiffs’ case is that plaintiffs and defendant no.2
were turned out of the house. If the pleadings in the plaint are
seen, it could be gathered that the plaintiffs do not plead that
family possesses any ancestral property at all. It is not even
their case that the father had given anything to them from any
ancestral property. There is, therefore, no pleading of the
plaintiffs that any kind of nucleus was available for blending
the suit property, in order that any property possessed or
owned by the family should become the joint family property.
There has to be some nucleus available from which that
property could be purchased. Since in this case the plaintiffs
did not possess any ancestral incomegivingproperty, it could
not be said that the suit house was a joint family property as
such.
10. The distinction has to be made between joint family
property and the property acquired by joint efforts. The suit
property could in no case be treated as joint family property. It
is to be seen if it is a jointly acquired property or not.
Defendants contend that defendant no.2 was alone running his
own business, while plaintiff claims that the business run was
family business and from its income the property is acquired.
From the evidence on record, the suit property could certainly
be said to be the jointly acquired property. It is the case of the
plaintiffs that plaintiff no.1 started the business and started
earning. DW 1 Vitthal admits in the crossexamination that his
mother was dealing in grains and was earning. He also admits
that his mother and aunt paid him money for starting business.
If mother was also doing the business, as is accepted by the
defendants, it is difficult to accept the theory of defendant no.2
that he was alone running the shop. Admittedly, there were
two shops at two different places. It is, therefore, difficult to
accept that defendant no.2 alone could run both the shops at
the two different places. The theory of the plaintiffs that the
shops were joint and run by all has, therefore, to be accepted.
There is another strong reason why the property has to be
treated as jointly acquired property. Defendant no.1 had filed
the suit against defendant no.2 and plaintiff no.1 in respect of
recovery of rent of shop of plaintiffs and defendant no.2. The
certified copy of the plaint in that suit is Exh.36. In plaint para
no.2, following averements are made.
“Defendant no.2 is the mother of defendant no.1
and they constitute joint family. Defendants carry
on retail grocery business”
These contents are admitted in the written statement filed at
Exh.37. Obviously, defendant no.2 admitted in that suit that
the shop was a joint family business. Even in para 17 of the
said written statement there is a clear averement that
defendants were running the shop and house was
reconstructed by the defendants. DW 1 Vitthal in crossexamination
admits that he had filed such a written statement
and that he had stated therein that house belonged to joint
family. With this evidence, I do not think that any more
evidence is required to conclude that the business was joint
and the property was purchased from that business income. If
the business was joint and the property is acquired from
earning of joint business, it must be assumed that each of the
members has an equal share in it unless otherwise shown.
This takes me to the next substantial question of law i.e.
Whether the appellant could be treated as a bona fide
purchaser. Bona fide purchaser is that person who takes
reasonable care to ascertain that the transferor had the power
to make transfer and he had acted in good faith and also that
the true owner had consented to such transfer. Since true
owners are challenging the transfer, there is no question of
consent. Let us see if there is evidence of appellant’s acting in
good faith and whether he had taken reasonable care. I find
that this is a fit case of lack of good faith and not even a
reasonable care has been taken. It appears, on the other hand,
that defendant no.1 entered into contract of purchase of the
property with open eyes. The reason for saying so is that the
appellant does not enter into witness box to make out the case
in pleading and second in his own plaint vide Exh.36, he had
made an averement and assertion that the shop and the
property belonged to the joint family. This clearly shows that
defendant no.1 has had full knowledge of the property being
owned by the family and not by defendant no.2 alone. The
appellant, therefore, could not be treated to be a bona fide
purchaser. Although I find that the property is not a joint
family property as such, all the same it is jointly acquired
property in which each one of them has equal share. In the
circumstances, there is no difficulty in confirming the judgment
and decree as passed by the court below. The appeal is,
therefore, dismissed. No order as to costs.
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