JUDGMENT
V. Gopala Gowda, J.
1. The appellants were the plaintiffs and respondents were defendants in the Trial Court. For the sake of convenience, the rank of the parties are referred to as in the Trial Court.
2. Plaintiffs filed the suit in O.S. No. 204 of 1985 for partition of 1/3rd share and 1/6th share for the deceased, 9th respondent, who was the 3rd plaintiff in the suit in respect of the suit schedule property. The suit was filed on the plea that the property was acquired out of joint family nucleus. The defendants resisted the suit contending that the suit schedule property is not the joint family property. On the basis of the pleadings, the Trial Court framed issues. Both the parties led evidence by examining witnesses and producing documents. On appreciation of the material evidence on record, the Trial Court by its judgment dated 30-1-1993 decreed the suit. In the appeal filed by the defendants in R.A. No. 19 of 1993, the judgment and decree of the Trial Court was set aside and the suit was dismissed by the First Appellate Court by its judgment dated 6-3-1998 by allowing the appeal. Aggrieved by the same, the plaintiff’s have preferred this second appeal.
3. This appeal was admitted to consider the following substantial question of law.–
(a) Whether the First Appellate Court is justified in reversing the judgment and decree of the Trial Court and dismissing the suit? 4. Heard the learned Counsel for the appellant and perused the judgments and decrees of the Courts below.
5. The Trial Court considered the evidence on record and held that the family business was weaving; that Venkappa owned 30 to 40 hand-looms and after his death the family business was continued and they acquired two power-looms; the suit property was purchased on 31-5-1960 from out of the joint family funds; that in the year 1968 additional structure was put up by raising loan and that the division in the family was in the year 1975. It was only thereafter the business was carried on independently. The Trial Court also held that the plaint and deposition of the Manager of Bank in O.S. No. 81 of 1988 produced as Exs. P. 7 and P. 8 revealed that the joint family had in fact availed loan for the business. Thus, considering all these aspects, the Trial Court held that the suit property was purchased out of joint family nucleus and that the
defendants failed to prove their case that it was the self-acquired property of Tukaram. The findings of the Trial Court are based on both documentary and oral evidence. The conclusions arrived at by the Trial Court are proper and the reasons assigned are cogent.
6. Though the judgment of the First Appellate Court is lengthy, major portion of it is mere narration of facts and evidence. From pages 4 to 8 the contentions advanced by the learned Counsels for the parties is mentioned. From pages 9 to 11 the averments of the plaint are stated. From pages 12 to 14 the stand taken by the defendants in the written statement are narrated. At page 15 the issues framed by the Trial Court are extracted and at page 16 points have been formulated. Case-law is mentioned at pages 17 and 18. In pages 19 to 29 the deposition of the witnesses is stated. It is only thereafter the discussion starts and concludes at page 37. It is thus clear that the First Appellate Court has reversed the judgment and decree of the Trial Court just in 8 pages in a matter in which discussion of evidence of three witnesses, consideration of 13 documents and the pleadings of the parties is involved. This itself is sufficient to hold that the First Appellate Court has not considered the matter in a proper perspective and virtually no reason is assigned for reversing the judgment and decree of the Trial Court. Hence, the judgment and decree of the First Appellate Court cannot be sustained. The same are contrary to the material available on record.
7. Let the reasons assigned by the First Appellate Court to set aside the judgment and decree of the Trial Court be examined. Considering Ex. P. 1, the copy of letterhead of the business, the Court held as under.–
“So, this document cannot be concluded to show that the brothers were doing the business out of the joint family funds. It may best amount to brothers doing the business jointly. Brothers doing business jointly is different from brothers doing business with the joint family funds”.
This kind of reasoning by the First Appellate Court is wholly unexpected. When the brothers do business jointly, it is implied that they are joint. When they are joint, the funds belong to joint family. The funds cannot be separated when there is no separation of the family. The First Appellate Court completely failed to understand this aspect. This clearly exhibits the ignorance of the Presiding Officer even in such small matters.
8. Another important aspect the First Appellate Court ignored is, Exs. P. 7 and P. 8, the plaint and deposition in O.S. No. 81 of 1998 which revealed availment of loan by the joint family for the business. Thus the substantial question of law framed at the time of admitting this appeal is answered in the negative.
9. The appeal is allowed. The judgment and decree of the First Appellate Court is set aside. The suit is restored and the judgment and decree of the Trial Court is restored.