JANAKIBAI RAMCHANDRA SALVI Vs. VASANT LAXMAN SALVI

JUDGEMENT

(1.) THESE two appeals arise out of a decree for partition passed by the learned District Judge, Ratnagiri modifying the decree that was passed by the trial Court. A decree came to be passed in a suit filed by Vasant Laxman Salvi for equitable partition and separate possession of his share in the suit -property. The parties are related to each other and it will be more appropriate if reference is made to the genealogy which is referred to in the first paragraph of the judgment of the appellate Court. One Tanbarao died in or about the year 1904 leaving him surviving his widow Sundra alias Kannadiakka and three sons, Ramchandra alias Dada, Laxman alias Aba and Vithal alias Daji. Ramchandra died on or about June 7, 1956 leaving his widow Janaki alias Vahini, defendant No. 7 and three daughters Shalini Malini and Nalini who are not parties to the suit. Laxman died on or about July 27, 1940 leaving him surviving his aunt Anandi defendant No. 8 and six sons and a daughter, namely, Sadanand alias Balasaheb defendant No. 1, Madhukar alias Bapu, defendant No. 2, Vasant the plaintiff, Chandrakant alias Tatya defendant No. 3, Janardan alias Anna defendant No. 4, Ramakant alias Appa defendant No. 5 and daughter by name Shalini, The third brother Vithal alias Daji died on or about August 18, 1944 leaving his widow Rukmini defendant No. 9, a son Pratap alias Nana defendant No. 6 and a daughter Shushila who is not a party to the suit. Vasant, one of the sons of Laxman filed a suit for partition and separate possession of his share. In the plaint initially the contention, of plaintiff Vasant was that the properties described in paragraphs 1A and 1B of the plaint were the joint family properties and he was entitled to a share therein. In the written -statement filed by the defendant No. 1 he contended that certain other properties which stood in the name of Vithal were joint family properties. Thereafter the plaintiff amended the plaint and contended that pieces of land described in paragraph 1C of the plaint (which were same as described by defendant No. 1 as joint family properties) though standing in the name of Vithal were joint family properties and the same also should be partitioned amongst the members of die family. The members of Vithal's branch in the written -statement contended that the properties described in paragraphs 1A and 1B of the plaint were joint family properties, but the properties described in paragraphs 1C and 1D of the plaint were the properties of Vithal and defendants Nos. 6 and 9 alone were entitled thereto. Janaki defendant No. 7 contended that all the properties described in the plaint in paragraphs 1A, 1B, 1C and 1D were purchased by her husband Ramchandra; that in respect of properties described in paragraph 1A the sale -deed was executed in favour of Ramchandra and he has paid the consideration therefor and on the land thereafter a structure was constructed which was described in paragraph 1B of the plaint. According to her contentions both the properties in paragraphs 1A and 1B belonged to Ramchandra and neither the plaintiff nor the other persons belonging to the branches of Ramchandra's brothers were entitled to any share therein. She also contended that the properties described in paragraphs 1C and 1D though were standing in the name of Vithal they were actually purchased out of the funds supplied by Ramchandra and the purchase in the name of Vithal was merely benami and she was also entitled to the same. The trial Court held that all the properties described in paragraphs 1A, 1B, 1C and 1D of the plaint are joint family properties and the plaintiff was entitled to 10.2/3 pies share in the same. The trial Court held that Ramchandra had purchased the property described in paragraph 1A of the plaint on December 7, 1931 from Gangan for the benefit of the joint family and from joint family funds as he was then the manager; that Ramchandra gave Vardi to Talathi in 1942 and thereby allotted and admitted shares of his brother Vithal and nephews, plaintiff and defendants Nos. 1 to 5, who are the sons of Laxman. The trial Court rejected the contention of defendant No. 6, Pratap that the property which stood in the name of his father was exclusively acquired by his father and as such other persons had no share therein. The trial Court also rejected the contention of defendant No. 6, the son of Vithal, that his father paid the price in respect of properties purchased by Ramchandra under the sale -deed dated December 7, 1931 and Ramchandra had therefore given three annas share to his father Vithal. The trial Court also rejected the contention of defendant No. 6 that the properties described in paragraphs 1C and 1D of the plaint were the self -acquired properties of Vithal. The trial Court held that all the suit -properties were the joint family properties of the three brothers Ramchandra, Laxman and Vithal and whatever property was acquired in the name of any one of the brothers was blended in the joint family properties. Accordingly the trial Court held that the plaintiff was entitled to partition and declared that he had 10.2/3 pies share in all the suit -properties. In view of these findings the trial Court declared the share of the plaintiff and directed his share therein to be separated by partition by metes and bounds equitably. Other ancillary directions were also given by the trial Court to effect this partition. Against this decree Janaki, widow of Ramchandra, filed Civil Appeal No. 76 of 1969 and Rukmini widow of Vithal and Pratap their son filed Civil Appeal No. 79 of 1969 in the District Court at Ratnagiri. Both these appeals were inter alia heard together. The learned District Judge confirmed the finding of the trial Court that all the properties described in paragraphs 1A, 1B, 1C and 1D of the plaint were joint family properties. The appellate Court held that the properties purchased under the sale -deed exh. 192 dated July 24, 1920 being properties at serial Nos. 5, 20, 22, 23 and 25 in paragraph 1D of the plaint were not purchased from out of the joint family fund and they were not self -acquired properties of deceased Vithal. Though the consideration amount in respect of this transaction was given: by Ramchandra it was not a transaction benami for Ramchandra. According to the appellate Court Ramchandra abandoned his separate interest and treated this property as a joint family property. The appellate Court also held that the properties purchased under the sale -deeds exhs. 181, 182, 183, 193, 194 and 300 (being the properties described inter alia in paragraph 1D of the plaint) were not purchased from the joint family funds; that they were not self -acquired properties of deceased Vithal; that the consideration therefor was paid by Ramchandra but the transaction was not benami; that Ramchandra had abandoned his separate claim to the said property and thrown the same in the common hotch -potch. The learned District Judge also held that the property purchased under the sale -deed exh. 196 dated November 3, 1941 (being the property at serial No. 1C of the plaint) was not purchased out of the joint family funds; that it was not purchased out of the separate funds of Vithal; that the consideration therefor was paid by Ramchandra but the transaction was not benami in the name of Vithal. The learned District Judge confirmed the finding of the trial Court that Ramchandra abandoned his separate interest in this property and treated it as a joint family property. The learned District Judge also held that the property described in paragraph 1A of the plaint purchased under the sale -deed dated December 7, 1931 (exh. 180) was not purchased out of joint family funds; that Vithal had not contributed his appropriate share towards the purchase of this property; that the consideration therefor was paid by Ramchandra, husband of Janakibai; that the constructions on the said properties were effected out of joint family funds; that Ramchandra treated the properties described in paragraphs 1A and 1B of the plaint as belonging to the joint family. In view of these findings the learned District Judge declared that the plaintiff and defendants Nos. 1, 2, 3, 4, 5 and 8 are each entitled to 9 _l/7 pies share in all the suit properties; that the defendant No. 7 Janakibai is entitled to 5 annas 4 pies share in the suit properties and that defendants Nos, 6 and 9 together are entitled to 5 annas 4 pies share therein. Appropriate directions were given for partition and separate possession of the plaintiff's share in the suit -properties. Direction was also given that the rest of the defendants would be entitled to partition and possession of their respective shares in the suit -properties on payment of necessary Court fees. It is against this decree passed by learned District Judge that Second Appeal No. 259 of 1971 is filed by Janakibai defendant No. 7 and Second Appeal No. 1202 of 1972 is filed by Pratap Vithal Salvi defendant No. 6.

(2.) MR . Abhyankar on behalf of Janakibai defendant No. 7 contended that all the properties described in paragraphs 1A, 1B, 1C and 1D of the plaint were purchased by Ramchandra and they were self -acquired properties of Ramchandra. He, however, submitted that in respect of properties described in paragraphs 1C and 1D of the plaint, even though the sale -deeds were taken in the name of Vithal, the purchase money was paid by Ramchandra, her husband, it was taken benami in the name of Vithal simply because Ramchandra was a Government employee and he did not desire that the immoveable properties purchased should stand in his name even though the consideration amount was paid by him. In short his submission was that the properties described in paragraph 1C and 1D of the plaint, though standing in the name of Vithal, were the properties of Ramchandra and the name of Vithal in respect thereof was merely benami and he had no beneficial or legal interest therein. So far as the properties described in paragraphs 1A and 1B were concerned, not only were they purchased in the name of Ramchandra and were standing in his name but the consideration in respect thereof was also paid by him and therefore none of the other members belonging to the branches of the two brothers of Ramchandra had any interest therein, Mr. Paranjape on behalf of Pratap, defendant No. 6, submitted that the pieces of land described in paragraphs 1C and 1D of the plaint which are standing in the name of Pratap's father, Vithal, were the separate and self -acquired properties of Vithal; that the consideration amount in respect thereof was paid by Vithal from his own earnings and none of the other members belonging to the other branches of the brothers of Vithal had any share or title therein. Mr. Jadhav, on the other hand, on behalf of the respondents Nos. 1 and 8 submitted that the view that has been taken by both the Courts that the properties described in paragraphs 1A to 1D of the plaint are the joint family properties is the correct view and the shares therein given by the learned District Judge in the appeal correctly represent the respective shares of the various parties.

(3.) THE question to be considered is whether these or any of these properties have been rightly held to be joint family properties by both the Courts, in which the parties to this litigation have shares. It is not disputed by any of the parties that if they are joint family properties, then the shares that have been declared by the learned District Judge therein are correct. It is found by both the Courts that the only ancestral properties which belonged to Tanbarao were the lands bearing survey Nos. 33, 7 and 102 situate at Phansopad measuring about 53/4 gunthas and the maximum pieces of agricultural lands that were owned by Tanbarao admeasured 9 1/2 gunthas as indicated in Khata No. 104 exh. 220. If this was the property which was possessed by Tanbarao then naturally it cannot form nucleus for acquisition of the subsequent properties later on. It is well -settled that in a suit for partition when a party contends that a particular property is joint family property, the burden of proving that it is so, rests on the party asserting it. To render the property joint the plaintiff must prove that the family was possessed of some property with the income of which the property could have been acquired or from which the presumption could be drawn that all the properties possessed by the family are joint family properties. Where it is established and admitted that the family possessed some joint family property, which from its nature and relative value had formed the nucleus from which the property in question may have been acquired, a presumption arises that it is a joint property and the burden shifts to the party alleging self -acquisition to establish affirmatively that the property was acquired without the aid of the joint family funds. In order to give rise to the presumption the nucleus must be such that with its aid the property claimed to be joint could have been acquired. However, it is clear that there is no presumption that a family because it is joint possesses joint family property or any property. It is equally clear that property which was originally separate or self -acquired property of a member of a joint family may by the operation of the doctrine of blending become joint family property if it is voluntarily thrown by him into the common stock with the intention of abandoning all separate claims in regard thereto. A clear intention to waive his separate rights must be established and it will not be inferred on the very fact of his allowing other members of his family to use it jointly with him nor from the fact that the income of the separate property was used to support the other members of the family.