The Bombay High Court dismissed the appeal filed against the judgment and decree dated 29/07/2004 and 11/02/2002. A single judge bench of this Court comprising of Hon’ble Justice M.S. Jawalkar held that though the property is purchased in the joint name, plaintiffs failed to discharge the initial burden that there was any nucleus that yielded such income to acquire such property. Therefore, in view of this bench, the property rightly appreciated by both the Courts below as self-acquired property of deceased-defendant No.1.
Brief Facts:
The present second appeal was filed being aggrieved by the judgment and decree dated 29/07/2004 and 11/02/2002. The following substantial question of law was raised in this appeal-
- When the Karta of a family jointly in his name and in the name of his brother purchased the properties through the income of the ancestral property, whether such property becomes joint family property or the self-acquired property of both the joint holders.
- Whether the decrees passed by both the courts below are vitiated on account of the fact that the material evidence which has not been challenged by the defendant, has been ignored?
Contentions of the Appellant:
The learned Counsel for the Petitioner contended that the suit property is the ancestral property and the parties are related to each other. But in order to deprive the plaintiffs/appellants of their share in the joint family property and in getting the joint family property partitioned only amongst the defendants, he has secretly in collusion with other defendants, partitioned the joint family property amongst the defendants alone without the knowledge to the plaintiffs.
Contentions of the Respondents:
The learned Counsel for the respondents/defendants contended that the suit properties are the self-acquired properties by deceased Anandrao and cannot be styled as the properties of joint family property. Defendant No.1, on his own with the help of the brother Bapurao had purchased another suit field of 11 acres and before that, defendant No.1 had on his own purchased the field of 9 acres from the self-acquired property. It was further contended that the sale deed was executed prior to 30 years and had presumptive value. There is no mention that the property is purchased out of the joint family fund.
Observations of the Court
After appreciating all the facts of the case and citing judgments by both the parties, the Court observed that the plaintiffs failed to discharge their initial burden that property acquired jointly by defendant No.1 and his brother out of yield obtained from any nucleus which yielded such income to purchase such property. Therefore, in view of this Court, the properties are rightly held to be self-acquired property by both the Courts below. Further, the Court observed that it is duly established that the defendant was having a business of milk, which he used to cultivate land on Theka and other supporting businesses. The property purchased was not in the capacity of Karta.
As such, in answer to the substantial question of law No.1, the Court held that though the property was purchased in the joint name, the plaintiffs failed to discharge the initial burden that there was any nucleus that yielded such income to acquire such property. In answer to the substantial question of law No.2, the Court answered in the negative.
The decision of the Court:
The Bombay High Court, dismissing the appeal, held neither perversity in the finding recorded nor illegality in the order passed by both the Courts below.
Case Title: Raju s/o Dhanraj Dhote and others vs Sanjay @ Nana s/o Anandrao Dhote and others
Coram: Hon’ble Justice M.S. Jawalkar
Case no.: SECOND APPEAL NO.405/2004
Advocate for the Appellant: Shri M.B. Naidu
Advocate for the Respondent: Shri H.N. Bhondge
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