JUDGMENT
Irshad Hussain, J.
1. This is an appeal against the judgment dated 14-5-1998 passed by the then Civil Judge (Senior Division), Almora in original suit No. 74/1997. Appellant-plaintiffs suit for partition and for rendition of accounts was dismissed.
2. Plaintiff filed a suit for partition claiming I/3rd share in plot serial No. 99/95 popularly known as ‘Dan Singh Estate’ at Ranikhet Cantonment, District Almora and for rendition of the accounts in relation to compensation and sale proceeds of his part of the plot realized by defendant No. 1 so as to pay l/3rd share to him.
3. Plaintiff and the defendants are real brothers and their ancestral property is situate in village Kharak, District Almora. Their father died in the early nineteen forties. Plaintiff alleged that at that time defendant. No. 1 was major and on the death of the father he became ‘Karta’ of the Hindu undivided Family. In the year 1948 plaintiff went to Delhi and in 1949 started a canteen in the office of Deputy Auditor General, 3-Man-singh Road, New Delhi. Plaintiff further pleaded that he repaid all the debts of the HUF and supported the defendants (Who were residing in ancestral village; that the defendant No. 2 was looking after the agricultural work in village as agreed between the three brothers and plaintiff and defendant No. 1 were engaged in business in Delhi; that the defendant No. l had no independent business or profession or occupation till 1971; that in the year 1954 he started Qutub Restaurant and earned handsome profits from it and that the defendant No. l used to assist him in running the said restaurant but all the profits earned remained with the defendant No. 1 and in joint bank accounts.
3A. It was further alleged that in the year 1962 the defendant No. 1 purchased a plot of land in auction at Ranikhet, popularly known as ‘Dan Singh Estate’ and its price of Rs. 26,000/- was paid by defendant No. 1 from the joint funds of the family. The defendant No. 1 also purchased some agricultural land in the village, mutation of which was made in the names of all the three brothers. Due to some litigation the names of all the three brothers were however not entered against plot of land purchased at Ranikhet. In June, 1987 plaintiff asked the defendant No. 1 to give him possession of the l/3rd share and to effect the partition of the joint property but the defendant No. 1 refused to do so and illegally claimed himself to be the exclusive owner of the property at Ranikhet. The defendant No. 1 had sold part of the said ‘Dan Singh Estate’ at Ranikhet whereas some part of it was damaged in fire. The defendant No. 1 received compensation which along with the sale proceeds legally belong to the joint family.
4. Plaintiff further alleged that the Qutub Restaurant at Delhi started in 1954, the I. T. D. C. Canteen started in 1955, the Taj Restaurant started in 1957 and the I. N. A. Canteen started in 1970 were all joint ventures run by him and the defendant No. 1 for the joint family; that the defendant No. 1 also received compensation of the land acquired by Delhi Administration at village Hauz Rani, Delhi; that the plaintiff sent notice for partition on 14-10-1987 but the defendant No. 1 refused for the same vide his reply dated 19-10-1987 and that since the agricultural land is situate in village Kharak and Mason within the jurisdiction of the revenue Court, the suit for partition of property situate at Ranikhet and for rendition of the accounts is, therefore, instituted against the defendants.
5. The defendants filed separate written statements. Defendant No. 2, supported the stand taken by the elder brother, the defendant No. 1. The defendant No. 1 contested the suit, inter alia, on the grounds that there never had been Hindu Undivided Family of the plaintiff and the defendants; that all the brothers were minors at the time of the death of their father, who had left only about 60 Nalis of un-irrigated land in village Kharak; that in the year 1940 he went to get some employment; that during the period from 1940 to 1945 he served at Hotel Minerva, Fatehpuri, Delhi and Regent Restaurant and Bar at Cannaught Circle, New Delhi and earned money from his employment; that with his own efforts he then independently started a canteen in the Ministry of Defence Headquarters, New Delhi and that in the year 1954 plaintiff joinded police service in Delhi but on account of bad habits was, in or about the year 1962, dismissed from the service.
6. The defendant No. 1 further pleaded that in the year 1965 he took the canteen of Indian Tourism Development Corporation at Qutub Minar on contract for a period of four years; that the plaintiff or any body else had no concern with it; that he engaged plaintiff an employee but opened a joint bank account so that during his absence financial transactions in respect of his canteen may not suffer; that later on in the year 1968 the plaintiff was admitted as partner of Taj Restaurant in Agra and when in the year 1970 plaintiff refused to carry on the busi:ness in partnership, the accounts were settled and sum of Rs. 10,000/- towards full and final payment of the share was paid to the plaintiff; that thereafter the plaintiff started his business in February, 1970 under the name and style ‘Unique Restaurant at Green Park Extension, New Delhi; that the property I suit was purchased by him out of his own funds in his individual capacity and it Was accordingly mutated in his name; that he raised loans amount to Rs. 13.10 lacs from the U.P.E.C. for raising construction over the plot and has been paying the instalment and that the property in suit having been legally acquired and mutated in his name in the year 1963, the suit is barred by limitation and is liable to be dismissed with cost. The plea that the suit is under valued and Court fee paid is insufficient was also raised.
6A. On the pleading of the patties, learned Trial Court framed 10 issues. During trial, the parties led evidence in support of their respective cases and upon conclusion of the trial, the learned Civil Judge recorded the findings that the parties to the suit are not the members of the Hindu Undivided Family, under issue No. 1 and that the suit property was not purchased from the earnings or funds of the H.U.F. but, the defendant No. 1 out of his own earnings and the same being his self-acquired property, is not liable to be partitioned under issue Nos. 3, 5 and 6 taken together for decision. Since these were the main issues on these findings the plaintiff was not held entitled to the reliefs claimed and therefore the suit was dismissed. Plaintiff was directed to make good the deficiency of the Court fee.
7. Challenging the judgment of the trial Court: plaintiff preferred this appeal. Learned Counsel appearing on behalf of the appellant submitted that the learned trial Court was not justified in recording the finding that the business which defendant No. 1 was carrying was his separate business and the property in suit was purchased out of his self-earnings and the property did not belong to joint family. It was further submitted that the finding that the parties were not members of Hindu Undivided Family was also not based on proper appreciation of the legal aspects of the case and therefore the judgment of the trial Court is liable to be set aside and the suit of the plaintiff is liable to be decreed. On the other hand learned Counsel appearing on behalf of the defendant respondent submitted that the learned trial Court was justified in holding that there did not exist Hindu Undivided Family and the property in suit was not acquired out of its income.
8. The submissions of the learned Counsel for the parties may be divided into the following main points for decision of this appeal:–
(1) The finding of the learned trial Court that the parties to the suit are not the members of Hindu Joint Family, is incorrect and if So, its effect on the rights of the parties.
(2) The property in suit is not the self acquired property of the defendant No. 1 and the finding to the contrary is incorrect.
(3) The property in suit even if self-acquired by the defendant No. 1 was thrown in to the common stock with the intention of abandoning his separate claim and by virtue of blending it is converted into joint family property? If so, its effect?
Point No. 1 : It is settled that the Hindu Joint Family consists of common ancestor and all his lineal male descendants. The existence of the common ancestor is necessary for bringing a joint family into existence but, for its continuance an ancestor is not a necessity. The death of the common ancestor does not mean that the joint family will come to an end. Normally a joint family is joint in food, worship and estate, yet if it is not joint in food, worship and in estate or in any one or all of them, it does not necessarily imply that it has ceased to be a joint family. In the instant case it cannot be doubted that the three brothers who are parties to the suit and their father constituted a Hindu Joint Family and it continued to be so when in the early nineteen forties their father Hari Krishna Sharma expired. Even the defendant No. 1 took stand that at that time all the three brothers were minors. The family possess agricultural land measuring approximately sixty Nalis (less than three acres) which is unirrigated. After the death of the father, the defendant No. 2 remained in the village and at different times the plaintiff and the defendant No. 1 went to Delhi to earn livelihood. Even if by that way they got separated in food, worship and in estate, the same would not indicate that their family ceased to be a Hindu Joint Family. The village properties consisting of land and house are still joint and this also characterize the existence of joint family. Although the defendant No. 1 denied the joint status but there is no strong piece of evidence to severance of the joint status as regards the joint family consisting of these brothers is concerned. The statement of Bhola Dutt Sharma (D.W.1), the defendant No. 1 that the village land arid house were partitioned in the year 1944 after the death of their father is not convincing and it does not repose confidence in the claim. The reason is that the mutual partition among minor brothers at the time was not possible. Moreover some land of the village was also purchased in the name of all the three brothers in the year 1953. and this aspect also run counter to the claim of partition. It appears that the learned trial Judge on the basis of pleadings of the parties and his conclusion on the appreciation of the evidence on record that the defendant No. 1 had acquired separate property, came to the conclusion that these three brothers did not constitute Hindu Joint Family and return findings to that effect under issue No. 1.
9. As argued by the learned Counsel for the appellant the approach of the learned trial Court was not legally justified because a member of the joint family may have and acquired separate property and also because there is no presumption that the property held by a member of joint family is a joint family property. Since there had not, been any severance of the joint status the fact that defendant No. 1 has his own independent and self acquired property would not have been taken to conclude that though the parties to the suit are real brothers they are not members of Hindu Joint Family. In our view the finding on the point No. 1 of the trial Court is incorrect and is not based on the proper appreciation of legal aspects of the matter and the facts admitted to the parties. However our view on this point shall have no bearing on the finding on other points which alone in the face of the facts of the case will be deciding factor for the relief, if any, available or not to the appellant-plaintiff.
Point Nos. 2 and 3 :–The all important question is as to whether the business of running of canteens etc. was not the separate business of defendant No. 1 and it belongs to joint family consisting of the three brothers as alleged by the plaintiff. It is well settled and as also reiterated by the Bench of three Hon’ble Judges of the Apex Court in the case of G. Narayana Raju v. Chamaraju; , there is no presumption under Hindu Law that a business standing in the name of any member of the joint family is a joint family business even if that member is the manager of the joint family. The business remains free and separate unless and until it could be shown that the business grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate. Further the property which was originally self acquired may become joint property only in case if it is thrown in to the joint stock with the intention of abandoning all separate claims up to it. Considering the settled legal position, the evidence led by the parties need to be appreciated and analyzed to come to any conclusion and give answer in regard to these point Nos. 2 and 3.
10. The property in suit known as Dan Singh Estate situate at Ranikhet Cantonment, District Almora was purchased in auction sale held by the Court and it stands transferred exclusively in the name of defendant No. 1. In short the stand of the plaintiff is that the property was purchased out of the joint family funds and therefore even though the property was mutated only in the name of defendant No. 1, the same still belongs to the Hindu Joint Family and he has l/3rd share in it. Considering, the claim made by the plaintiff it has to be seen whether the joint family had sufficient nucleus at the time of the acquisition of the property in the name of defendant No. 1. On the appreciation of the evidence led in the suit, the opinion formed by the learned trial Court was that joint family had no sufficient nucleus which may have enabled the plaintiff and the defendant No. 1 to start any business and even to acquire any property as such the property in suit purchased in the year 1962-63. We also find ourselves in full agreement with the view because the ancestral property of the joint family consisted of about sixty Nalis of un-irrigated land and a house in village Kharak, District Almora and the plaintiff Khyali Ram (P.W.1) himself testified that there was hardly any sufficient income from the agricultural land and the yield used to be hardly sufficient for the family for a period of six months of the year only. Not only this, the stand of the parties to the suit has been that after the death of the father on account of financial hardship, the plaintiff and defendant No. 1 at different times went to Delhi to earn their livelihood by taking some employment as may be available to them or by their engagement in some other vocation. Therefore, it is established beyond doubt from the evidence that the yield from the nucleus was not at all sufficient to start any business by any of the member of the joint family and further that the nucleus was being very small and inadequate from which no property could have been acquired as belonging to the joint family.
11. The learned trial Court on the basis of the evidence on record also did not accept the claim of the plaintiff that after the death of the father he came to Delhi in the year 1947 and soon after started business of running canteens beginning with a canteen in the office of Deputy Auditor General, 3-Mansingh Road, Delhi from the year 1949. The learned trial Court rather find favour with the claim of the defendant No. 1 that the plaintiff in fact did not start any canteen in the year 1949 as he was at that time even a minor boy of about 13-14 years prosecuting his studies in Inter College Jalali, District Almora and further that when later on the plaintiff came to Delhi he joined police service in the year 1954 but was dismissed from the service in or about the year 1962 on disciplinary ground. Although the learned Counsel for the appellant persuasively urged that the conclusions drawn by the learned trial Court are not based on proper appreciation of the evidence on record but having considered the submission in the light of the material on record, we find ourselves in agreement with the view of the learned trial Court on the above issue also. The reason is that the claim of the defendant No. 1 is corroborated by the copy of school leaving certificate, paper No. 190-C, a public document. The copy was issued under the authority and signature of the Principal of the Government Inter College Jalali, District Almora and the copy of the school leaving certificate of the plaintiff indicate that his date of birth was 3-4-1935 and he passed his Junior High School, that is, class-8th from this institution in the year 1949 and further that he was a regular student of the college since the year 1948. Earlier he had studied in Mission School Pali. Mere denial by the plaintiff is not sufficient to displace the cogent and reliable evidence in that regard and we are not inclined to believe that the plaintiff came to Delhi in the year 1947 and got himself engaged in some employment. Moreover the plaintiff has not filed any documentary evidence to rebut the evidence of the defendant No. 1 although the plaintiff stated that that he had continued his studies in Delhi privately in the year 1947 and passed his High School examination. If he had passed the High School examination he could have filed the High School certificate to prove his age and also to dispute the claim made by the defendant No. 1. Since he has not deliberately filed his High School certificate, adverse inference can also be raised against him and in the totality of the circumstances of the case the only inference which can be drawn is that the plaintiff continued to be in the village till 1949 where he was studying and he did not start any business himself in that year in Delhi.
12. As regards the claim of the defendant No. 1 that the plaintiff was in police service from the year 1954 up to the year 1962, it is to be seen that the defendant No. 1 sought to obtain the plaintiffs service record from the office of the Deputy Commissioner of Police, Central District, Delhi, but it appear from the letter dated 29-3-1989 of Deputy Commissioner of Police, Central District, Delhi, paper No. 135-C/1, that the same could not be made available to him for want of disclosing the purpose for which the record or the certificate was required. The said authority by this letter asked the defendant No. 1 to indicate his relationship with Sri Khyali Ram (Plaintiff) and the purpose for which the certificate was required from Deputy Commissioner of Police office. As argued by the learned Counsel for the respondent defendant No. 1 the certificate regarding the service tenure etc. of the plaintiff was not supplied on account of confidential reason because the purpose for obtaining the certificate could not be disclosed by the defendant No. 1. At any rate the letter of the Deputy Commissioner of Police, clearly Indicate that it was not denied that Sri Khyali Ram son of Sri Hari Krishna (Plaintiff) had been in police service at Delhi. In the face of the oral evidence of defendant No. 1 to this effect and the documentary evidence referred above, the mere denial again of the plaintiff is not sufficient to displace the evidence of the defendant No. 1. Moreover plaintiffs own witness and relation Radha Ballabh (P.W.2) although knew the plaintiff very well gave evasive reply when cross-examined on this point by merely saying that he has no knowledge that the plaintiff was in police service in Delhi during the period 1954 to 1962. Therefore, on account of preponderance of the probabilities emerging from the cumulative effect of the evidence in this regard sufficiently establish that the plaintiff was in police service during the said period and question of his, during that period, starting any canteen business stand ruled out. There can be no gain-saying that the view taken by the learned trial Court Was justified.
13. Plaintiff in support of his allegation that he had run a canteen in the office of Comptroller and Auditor General of India, 3- Mansingh Road, New Delhi during the period 1950 to 1954 placed reliance on a certificate dated 4-9-1989, paper No. 84-C, said to have been Issued by the office of the Comptroller and Auditor General of India. Learned Counsel for the defendant No. 1 respondent rightly argued that the certificate appears to be a got. up document, as it could not be believed that a Government canteen could have been allotted to a minor boy of 15 years of age in the year 1950. As stated above the school leaving certificate of the plaintiff satisfactorily prove that the date of birth of the plaintiff is 3-4-1935 and there was no question of the minor plaintiff having been permitted to run a canteen from 1950 to 1954 to the office of Comptroller and Auditor General of India, New Delhi. This certificate is shown to have been issued on behalf of the Comptroller and Auditor General of India by one Sri Narotam Sharma who has not been shown to be the person authorized to issue a certificate to the effect that Sri R.K. Sharma s/o Sri Hari Krishna Sharma was running a canteen attached with 3 Kapoorthala House in the office of the Comptroller and Auditor General of India, Mansingh Road, New Delhi from 1950 to 1954. Plaintiff was also cross-examined in regard to the credential and authority of said Narotam Sharma whereupon plaintiff testified that Narotam Sharma was an auditor in the office but he could not remember whether Sri Narotam Sharma was in the service or not during the year 1952 to 1954. The shaky and discrepant evidence of the plaintiff thus further create suspicion in the genuineness of the certificate and in the face of the facts of the case we feel no hesitation in coming to the conclusion that this is a got up document and was merely obtained with an attempt to support the false claim made by the plaintiff.
14. It is also the case of the plaintiff that he had also run C.P.W.D. canteen at Qutub Minar, Delhi during the period 1954 to 1964, and canteen of Indian Tourism and Development Corporation from the year 1965. Again there is no reliable evidence on record to show that the plaintiff was the allottee of these canteens or that these canteens were run as joint family business of the parties to the suit. Plaintiff also gave out that canteen of Indian Tourism Development Corporation was allotted in the name of defendant No. 1 but other canteen was run in the name of Sharma Brothers. Again no paper has been filed to show that the business of C.P.W.D. canteen from the year 1954 to 1964 was run as joint family business. There is definite statement of defendant No. 1 Bhola Dutt Sharma (D.W.1) that all these canteens were run by him individually and neither the plaintiff nor any other person has any proprietary interest or otherwise in the business of these canteens. He also gave out that the joint account in the bank was opened with the plaintiff to facilitate smooth running of his business in case he remains out of station for some personal work or any other reason. He also gave out that since he was having four electric connections in his name and another electric connection was opened in the name of the plaintiff who was working with him as an employee and not as a partner or proprietor of the canteen. Plaintiff himself admitted that the canteen at Qutub Minar was in the name of defendant No. 1. Since the plaintiff was working as an employee of defendant No. 1 an application in that capacity showing himself to be the manager of the Qutub Restaurant was given to the Assistant Executive Engineer (R) Delhi Electric Supply Undertaking, Sub District Office, Mehrauli, New Delhi on 9-2-1966, paper No. 82-C, for transfer of the connection in his name with the consent letter of the person in whose name the connection was then standing and since the electric connection got transferred in the name of the plaintiff it would not mean that the business of Qutub Restaurant, was the business of the joint family of the parties. On account of the transfer of the electric connection in the name of the plaintiff, the bills were issued in his name and good number of which have been filed on record by the plaintiff which at any rate do not support the claim of the plaintiff. Likewise the registration certificate of establishment issued under the provisions of Delhi Shops and Establishments Act, 1954 the paper No. 103-C, relied upon by the plaintiff, cannot be taken to prove that the Qutub Restaurant was run as joint family business merely because his name in the column of the occupier/employer got. to be mentioned. This document; also fully establish that the plaintiff was not shown the occupier/employer right from the year when the canteen was allotted. Paper No. 140-C is the cash memo of purchase of Espresso Coffee Machine on 12-7-1965 and the cash memo was issued in the name of the plaintiff C/o Qutub Restaurant, New Delhi which may at the most indicate that it was purchased for the said restaurant and it would not indicate that the plaintiff was the proprietor or allottee of the restaurant. Since the defendant No. 1 has claimed that the plaintiff was employed by him to assist in the running of the Canteen and if the Coffee Machine was purchased through the plaintiff, the cash memo could not be taken to prove the plaintiffs proprietary interest in the business.
15. Paper No. 89-C is the life insurance police in the name of plaintiff with his address of Qutub Minar Restaurant, Mehrauli, New Delhi and paper No. 90-C is the receipt of the payment of the instalment of the policy with the same address. Again this document could only be taken to prove the address of the plaintiff but not at all any proprietary right or interest in the business of the canteen at Qutub Minar and the learned Counsel for the appellant plaintiff tried in vain to make capital out of these documents to support the argument that the business of canteen at Qutub Minar was run jointly by the parties as joint family business.
16. Paper No. 106-C dated 11-7-1988 is a certificate issued by State Bank of India, Agra, to the effect that Sri Bhola Dutt Sharma (defendant No. 1) and Sri Khyali Ram Sharma (Plaintiff) maintained a saving bank account in that branch. This certificate relate to the period when a restaurant known as ‘Taj Restaurant’ was run at Agra as a partnership venture by the plaintiff and the defendant No. 1 and it does not have any connection when the defendant No. 1 was running the canteen at Qutub Minar, Mehrauli, New Delhi. According to the defendant No. 1 the ‘Taj Restaurant’ at Agra was run in partnership with the plaintiff which came to an end in the year 1970 when the plaintiff got himself separated and after accounting received a sum of Rs. 10,000/-towards full and final settlement of his share in that business and acknowledge it in writing dated 1-1-1970 paper No. 134-C. Plaintiff admitted this fact but claimed that this amount of Rs. 10,000/- was in fact received by defendant No. 1. The written acknowledgment further support the case of the defendant No. 1 who has come out with specific averment that this restaurant was run in the name of his son Bishan Dutt and when the plaintiff received the sum of Rupees 10,000/- and on final accounting the plaintiff had relinquished his half share in the Taj Restaurant business in favour of the said son of the defendant No. 1. Therefore, this business can also not be taken to be the business of joint family of the parties. This apart, during that period the joint account was opened from which also the plaintiff cannot take any benefit to support his contention.
17. In regard to the canteen at I.N.A. plaintiff claimed that it was stated as a joint venture with defendant No. 1 for joint Hindu family in the year 1970. He also filed pass book of syndicate Bank, paper No. 86-C, in regard to an account in his name having his address of Super Bazar, Cafe Unit I.N.A. Colony, New Delhi. Mere having any account in the bank and address given of I.N.A. Colony would not indicate that I.N.A. canteen was started and run as business of joint Hindu family. Moreover the admission of the plaintiff himself belie his claim. Paper No. 139-C/l is the copy of the statement of the plaintiff in regard to the proceedings of suit No. 831/1985 filed in the Court of Rent. Controller, Delhi against the plaintiff by his landlord Ms. Madhu Vishwanath in which the eviction of the plaintiff was claimed. In the statement, the plaintiff gave out that he never had any business of restaurant in I.N.A. Super Bazar but it was of his nephew Sri B.D. Sharma (son of defendant No. 1). Plaintiff was confronted with his statement to prove it as admission and then he testified that in I.N.A. Super Bazar the Cafe House was in the name of Sri Bishan Dutt and merely gave an evasive reply in regard to his earlier statement by saying that he could not remember that he gave such statement in that judicial proceeding that he never had any restaurant business in I.N.A. Super Bazar. Evasive reply thus may be taken to prove his admission referred above leading to the inference that this canteen was also not run as a joint family venture but it was run by the defendant No. 1 in the name of his son Bishan Dutt.
18. From above it is thus evident that the plaintiff has failed to discharge the burden and thereby to prove that the business of the canteens and restaurants was used to be carried by him and the defendant No. 1 as joint family business.
19. Paper No. 204-C/l purporting to be an agreement executed by the plaintiff and the defendant No. 1 and paper No. 205-C/l purporting to be the general power of attorney executed by the defendant No. 1 were filed by the plaintiff to show that in these documents it has been admitted by defendant No. 1 that the parties are real brothers and as members of the joint Hindu family they own and possess various properties. The execution of these documents has been denied by the defendant No. 1 but at any rate these do not contain any admission that the property in suit was purchased and acquired out of the funds of the joint family and therefore, these also do not support the cause of the plaintiff. If any power of attorney was executed by the defendant No. 1 in favour of the plaintiff to manage his property in village Hauz Rani, New Delhi, it would not indicate that the defendant No. 1 admitted that all the properties even standing in his name belong joint family. The learned trial Court also took similar view and rightly read these documents in favour of the defendant No. 1.
20. Paper No. 209-C/l, said to be the will executed by Smt. Anandi Devi, the mother-in-law of the plaintiff and the defendant No. 1, was filed to show that the defendant No. 1 owe a sum of Rs. 51,000/- to the executant which she bequeathed to the plaintiff but the same sum was continued to be retained by the defendant No. 1 as ‘Karta’ of the Hindu Joint Family, to which even the property acquired in the name of defendant No. 1, belong. We fail to understand as to how this will could have been taken to support this stand of the plaintiff and that too when there is specific and positive denial by the defendant No. 1 in his evidence that he owed no sum to his mother-in-law Smt. Anandi Devi. This document was also rightly not taken to support the cause of the plaintiff.
21. The learned trial Court then considered the claim of defendant No. 1 that after receiving the sum of the Rs. 10,000/- in the year 1970 as a result of accounting of the Taj Restaurant business at Agra, the plaintiff started his business of Unique Restaurant at Green Park, New Delhi. Plaintiff also admitted this fact in his evidence and the judgment dated 15-9-1987 (paper No. 1390C/1) passed in the eviction proceedings against the plaintiff further prove that the plaintiff was running his independent business of restaurant at Green Park, New Delhi in rented premises.
22. From above it is evident that the plaintiff has failed to prove by his evidence that the canteen and restaurant business was run by him and the defendant No. 1 as joint family business and out of the earning from the business the property in suit was purchased in the name of defendant No. 1. The statement of plaintiff that he had also paid certain amount of money to defendant No. 1 for purchase of said property is not reliable. According to him, sum of Rs. Nineteen or twenty thousand was given in the year 1961. He has not obtained any receipt from defendant No. 1. He further went on to depose that he could not tell as to how much money till date had been given by him and he has no accounts for that also. There is clear denial from the side of defendant No. 1. The evidence of plaintiff being indefinite does not repose confidence and does not appear reliable.
23. It is also of significance that the defendant No. 1 has got other property also in his exclusive name as is evident from paper No. 132-C/l pertaining to land in village Hauz Rani, regarding which no claim has been raised by the plaintiff alleging it to be the joint family properly having been purchased or acquired out of the earnings of the joint family business. No doubt vide sale deed dated 28-3-1963 (paper No. 73-C and sale deed dated 26-6-1953 (paper No. 74-C) small plots of land in village Kharak of District Almora for consideration of Rs. 1000/- eaeh were acquired in the name of the three brothers, the plaintiff and the defendants, but these sale deeds also do not indicate that there was nucleus of joint family out of which these plots were acquired and therefore these sale deeds also will be of no help to the cause of the plaintiff.
24. The oral evidence of defendant No. 1 and his witness Bhawani Dutt (D.W.2) supported by the documents referred above also fully rebut the claim of the plaintiff that the canteen and the restaurant business was ever run as joint family business. The evidence of defendant No. 1 is also definite in regard to the payment of the consideration of the property in suit; payment of freehold fee amounting to Rs. 1,11,200/- deposited with the concerned authority; taking loan from U.P.F.C. to construct a hotel in that property; payment of its installments and his throughout meddling with the affairs of the said property. Even the plaintiff admitted these facts in his evidence and since the joint family had no nucleus at the time of the acquisition etc. of the property in suit, it is the self acquired property of the defendant No. 1. There is also absolutely nothing to indicate that the defendant No. 1 has ever thrown that property in to the joint stock with the intention of abandoning his separate claim in the self acquired property and therefore the learned trial Court on the appreciation of the evidence rightly held that the property in suit does not belong to the joint Hindu family and the plaintiff is not entitled to claim any share in it and have the property partitioned. The amount of compensation or any sale proceed obtained by the defendant No. 1 also exclusively belonged to him and therefore the plaintiff was also not entitled to claim rendition of the accounts from the defendant No. 1. In other words we are also of the firm view that the plaintiff has failed to establish that the property in suit is not the self acquired property of the defendant No. 1 since there has not been any blending of the property and it was never converted into the joint family property by abandoning of the separate claim by defendant No. 1, the plaintiff having no share in it was not entitled to the relief claimed in the suit.
25. Both the above point Nos. 2 and 3 are thus answered against the appellant plaintiff.
26. In view of the above answers to the points for decision the appeal fails and is to be dismissed accordingly.
27. The appeal is dismissed with costs. The judgment and decree dated 14-5-1998 passed by Civil Judge (Senior Division) Almora in original suit No. 74/1997 is hereby affirmed.