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 anywere 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
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
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
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, V Gayabai wd/o Gundaji Mogre,
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
DATED : 13th April, 2010.
Citation:2010(4) MHLJ 46
