Sunday, 19 June 2016

What is distinction between joint family property and property acquired by joint efforts?

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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.109 of 1997.
 Kausabai wd/o Rajaram Waradkar,

     ..VERSUS.. 
 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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