JUDGMENT
B.S. Patil, J.
1. This appeal is directed against the Judgment and Decree dated 16.06.2000 passed in O.S. No. 62/1996. The defendant No. 1 who is aggrieved by the allotment of share made by the impugned Judgment is assailing the same urging several grounds.
2. For the sake of convenience, the parties will be referred to by their ranks obtained in the Court below. Few facts, which are essential for the purpose of disposal of this appeal may be set out as under:
The plaintiff who are the wife and two minor children of defendant No. 1 filed the suit for partition and separate possession of their 1/8th share in ‘B’ schedule property and 3/4th share in ‘C’ schedule property. Though the other defendants were arrayed as parties in the suit, the grievance with regard to other defendants was limited only in respect of ‘B’ schedule property. The Court below has decreed the suit allotting 3/4th share from out of 13/120th share in so far as ‘B’ schedule property is concerned. There is no grievance as regards this portion of the Judgment. Therefore, it is unnecessary to deal with the allotment of share made in respect of ‘B’ schedule property. What essentially falls for consideration in this appeal is the grievance of the defendant No. 1 with regard to the allotment of share made in respect of ‘C’ schedule property.
3. Plaintiff No. 3 is the wife of defendant No. 1 Plaintiffs 1 and 2 are the minor children born out of the wedlock between defendant No. 1 and plaintiff No. 3. It is contended by plaintiff No. 3 for herself and on behalf of her minor sons that defendant No. 1 completely deserted them and was taken to bad habits; that it was plaintiff No. 3 who was taking care of the minor children. Defendant No. 1 by misusing the properties and assets of the family was causing loss to the interest of the minors, that there was a family kirana business carried on at Bagalkot and the defendants had contributed to the said business out of which the ‘B’ schedule property was acquired. It is the further case of the plaintiffs that when the plaintiffs and defendant No. 1 started living separately at Guledgud, it was the plaintiff No. 3 being a government servant working in Health Department getting a salary of Rs. 3,000/- p.m. who contributed to the family consisting of herself, her husband and the minor children for the education of the children and for starting a business of her husband who was an unemployed person. It is her further case that she has raised loan and advanced funds to defendant No. 1 to start cycle business in the name of ‘Deepak Cycle Stores’. She, however, asserts that she has taken loan on her salary to start another business in the name of ‘Tilak Enterprises’ for selling of furniture and other articles.
4. It is contended by the plaintiff that a sum of Rs. 20,000/- has been kept in the Krishna Finance Corporation at Guledgud in the name of Defendant No. 3 as a shareholder in the said Corporation. Defendant No. 1 has got fixed Deposit of Rs. 20,000/- each with Syndicate Bank, Guledgud, Sangli Bank, Guledgud and Lakshmi Bank, Guledgud, which amount, according to the plaintiff No. 3 are obtained from out of the income from the business from ‘Tilak Enterprises’ and ‘Deepak Cycle Stores’ Contending that the 1st defendant was unwilling to give the income for the maintenance of the family and for the livelihood and upbringing of the minor children, the plaintiffs approached the Court seeking for their legitimate share in the ‘C’ schedule properties.
5. The 1st defendant has filed his written statement. He has admitted the relationship between the parties. He has denied the allegations that he deserted the company of his wife and children and was taken to bad habits. He has further denied the allegations that he was misusing the family properties and funds. He admits that plaintiff No. 3 was in service in Health Department, but denies the allegations that he was maintained by plaintiff No. 3 and that out of her savings, the suit plot was purchased at Mudhol. He denies the plaint allegations that he made a request to plaintiff No. 3 to raise loan out of her salary to help him to start the business and that the business in the two shop premises were started out of the funds advanced by plaintiff No. 3 . The claim made by the plaintiff for 3/4th share in the suit schedule ‘C’ properties was also denied by him. He contended that his father migrated to Bagalkot and started a kirana shop there on his own and that it is his further case that he went to Sureban town and with the help of relatives and friends and by raising loan, he established a cycle shop there. At that stage, he came in contact with plaintiff No. 3, who belonged to another community and that he married her by way of registered marriage. After the marriage, he disposed of his establishments at Sureban and came to Guledgud. Out of the sale proceeds obtained from the sale of business establishment at Sureban, he established a cycle shop at Guledgud and subsequently, out of the earnings of the said shop and also by getting financial assistance from the Banks and other institutions, he established a Steel Furniture Shop at Guledgud. He asserts that all the properties have been acquired by him with his own earnings. His case is that he has raised loan for establishing the business. He has expressed his willingness to maintain plaintiffs 1 and 2 and has contended that plaintiff No. 3 has illegally kept plaintiff Nos. 1 and 2 in her custody in order to facilitate her to present the suit. His further assertion is that since all the suit properties are self-acquired properties, the present suit for partition is not maintainable. On the basis of pleadings of both the parties, the Court below has framed as many as six issues. As already adverted to herein above, since I am not concerned with the allotment of share made with regard to ‘B’ schedule property, the issue that become relevant for the purpose of adjudication of the controversy in this appeal are limited only to issue Nos. 2 and 3. The said issues read as under:
“2. Whether the plaintiffs prove that the suit schedule-C properties are the self-acquired properties of themselves and the defendant No. 1 as is alleged?
3. Whether the plaintiffs prove that they are entitled to get share in the suit schedule-C and B properties by way of partition as is claimed?”
6. On behalf of the plaintiffs, P.Ws. 1 and 2 are examined and Exs. P.1 to P.32 are marked and on behalf of the defendants, D.Ws. 1 to 3 are examined and Exs. D.1 to D.12 are marked.
7. The Court below has answered issue No. 2 in the affirmative holding that the ‘C’ schedule properties were the joint family properties of the plaintiffs -1 to 3 on the one hand and defendant No. 1 on the other. As regards issue No. 3, the Court below has held that the plaintiffs are entitled to 3/4th share in the ‘C’ schedule properties. There are 8 items mentioned in ‘C’ schedule to the plaint. Item No. 1 is a plot bearing No. 14 in Sy. No. 540 measuring 30’X40′ situated at Mudhol. The other items from Sl. Nos. 2 to 8 are the movables share capital, Fixed Deposits and cash of Rs. 30,000/-. As regards C-schedule property, the Court below has proceeded to decree the suit allotting 3/4th share to each of the plaintiffs and defendant No. 1.
8. I have heard the learned counsel for both the parties.
9. Sri Hebballi, learned Counsel for the appellants contends that the Court below has seriously erred in appreciating the evidence both oral and documentary while coming to the conclusion that the plaintiffs were entitled to the share in the suit schedule ‘C’ properties. It is his contention that there is no specific stand taken by the plaintiffs regarding the nature and extent of the contribution. He submits that plaintiffs-1 and 2 have no right for partition as admittedly plaintiff No. 3 has contributed to the business and that the said business was not an ancestral business. Elaborating his contention Mr. Hebballi further contends that admittedly there is no joint family nucleus from which ‘C’ Schedule property could have been acquired. Even if is admitted for the sake of argument that a portion of contribution had come from plaintiff-3, he asserts that the same will not change the characteristic of the properties both movable and immovable to that of as joint family properties. At best, it will remain as joint property of the plaintiff No. 3 and defendant No. 1.
10. It is his further contention that by obtaining loan from the Banks, he has established the business and that there are withstanding loans which were required to be discharged. Mr. Hebballi further contends that the findings recorded by the Court below on issue No. 2, particularly regarding the cash, shares and other valuables are not preceded or supported by any acceptable reasons assigned. It is his contention that in the absence of any findings regarding the acquisition of the fixed deposits and the source from which they have came to be acquired, the Court below was not justified in holding that these properties were liable to be partitioned.
11. Sri. Basavaraj G. Godachi, learned counsel for the respondents has contended that though ‘C’ schedule properties are purchased in the name of defendant No. 1 they are purchased from out of the contributions made by plaintiff No. 3. It is his contention that admittedly plaintiff No. 3 having been an employee in Government service was and earning member. She was a member of the joint family which consisted of her husband, herself and the two children. It is his contention that if the property is acquired from out of the savings of the family or from the contributions from the members of the family, unless they are intended to be treated as exclusive acquisitions by the said members it has to be presumed that the acquisition is for and on behalf of the joint family. Drawing our attention to the evidence on record, he has contended that out of the contributions made by plaintiff No. 3, defendant No. 1 has started the business and the purchase of the plot and as also the acquisitions of other valuables including the savings are the result of the joint contributions.
12. Having heard the learned counsels on either side in great details and having perused the evidence and the materials placed on record, the points that arises for my consideration in this appeal are:
i) Whether the Judgment and Decree passed by the Court below allotting 3/4th share to the plaintiffs in Item No. 1 of the ‘C’ schedule property suffers from any illegality or perversity so as to warrant interference by this Court?
ii) Whether the Court below was justified in decreeing the suit in respect of items 2 to 8 of the suit schedule ‘C’ properties?
POINT NO. 1:
13. A perusal of the pleadings and the evidence on record would indicate that the controversy between the plaintiff on the one hand and defendants No. 1 on the other surrounds on the nature of the acquisitions made in respect of ‘C’ schedule property. While the plaintiff No. 3 who is examined as PW-1 contends that these properties are the joint family properties as they have been acquired out of the contributions made by her from our of the salary which she was periodically getting as a government servant and from the income derived from the business namely the cycle shop and M/s. Tilak Enterprises, a furniture shop at Guledgud for which she had contributed by raising loan from out of her salary, account, the 1st defendant himself has in his written statement and in the deposition given by him before the Court asserts that establishment of the business was on account of his contribution which he made by raising loans from several banks. Both the parties have produced documentary evidence to show that they have raised loans. While the plaintiff has produced document at Ex.P.3, a certificate from Guledgud Lakshmi Co-operative Bank dt. 10.7.1997 showing that plaintiff No. 3 took a loan of Rs. 3,000/- on 3.8.1989 and repaid the same later; Ex.P.4 a certificate dt. 1.7.1997 from Sri Basaveshwara Urban Co-operative Bank, Bagalkot, stating that plaintiff No. 3 took loan of Rs. 10,000/- on 5.3.1990 and repaid the same later Ex.P.5 a certificate from the very same Sri. Basaveshwara Bank stating that on 1.9.1992 she took a loan of Rs. 9,900/- and repaid the same later and further relied on Exs. P.22 to Exs.P.29, the letters written by plaintiff No. 3 to defendant No. 1 to disclose that the salary amount due to her was periodically received by defendant No. 1 and contended that the amount so realised was by way of bank loans and from out of the salary payable to plaintiff No. 3 was in fact invested for the establishment of the two shops by defendant No. 1 apart from using the same for the ,maintenance of the family. Per contra, the defendant No. 1 who is examined as DW-1 had produced several documents to show that he has availed loans from different banks for the purpose of establishing the shops. References can be made here to Ex.D.1, certificate from Sangli Bank Ltd., Guledgud, dt. 30.05.1996 whereunder defendant No. 1 is called upon to pay the loan installments; Ex.D.3, a letter from Syndicate Bank, Guledgud, disclosing that a sum of Rs. 24,400/- was the outstanding balance of loan in respect of M/s. Tilak Enterprises as on 26.4.1996; Ex.D.4 is yet another certificate in respect of the defendant No. 1 showing a loan account of Rs. 12,873/- as on 26.4.1996; Ex.D.5 is the letter from the Guledgud Lakshmi Co-operative Bank Ltd., stating that there was a loan of Rs. 60,000/- availed by defendant No. 1 as on 24.4.1996; Ex.D.6 is yet another letter from Om Shiva Finance and Traders (R), Guledgud, showing that defendant No. 1 availed loan of Rs. 4,000/- from the said institution. Ex.D.7 is another letter from Sangameshwara Credit Corporation (R), Guledgud, stating that a loan of Rs. 20,000/- was availed on 24.4.1996. Ex.D.8 is another letter from Amruth Finance Corporation (R) stating that defendant No. 1 had availed loan of Rs. 30,000/-. A perusal of these documents clearly disclose that both plaintiff No. 3 and defendants No. 1 have raised loans from different banks and organizations. But the question remains as to whether plaintiff No. 3 and defendant No. 1 have established the business in the shop in question by utilizing the loan amount obtained by both of them or the investment was made exclusively by defendant No. 1 as contended by him. The evidence on record clearly discloses that the plaintiff No. 3 was earning regular income. She was maintaining the family out of the income derived by her by way of salary. There was no reason why she should raise the loan from her salary account unless there was a need or necessity for entering into some venture wherein the family had to make an investment for future income. While DW-1 has specifically spoken about this aspect, the defendant No. 1 has not come forward with any plausible explanation as to why the plaintiff No. 3 was made to raise the loan. The loan raised by defendant No. 1 no doubt has to be regarded as for the purpose of making investment for the business in question as there is nothing to show that the loan availed by him was not used for the business. In the result, the only inference on the facts and circumstances of the case could be that both plaintiff No. 3 and defendant No. 1 used their resources for the purpose of establishment of the business. Whatever be the extent of investment by both the parties, what emerges on the careful perusal of the evidence and pleadings on record is that both of them have together contributed for starting the business and the version of defendant No. 1 that it was on account of his exclusive efforts and investment that the business came to be started cannot be believed. In fact, in the cross-examination the defendant No. 1 who is examined as DW-1 has made a very important admission which clinches the issue on this aspect. He has admitted that in the two shops namely M/s. Tilak Enterprises and M/s Deepak Cycle Shop himself, his wife Shivalila and his two sons had rights. Unless Shivalila had made investments from out of her income and also from the amount raised by her as loan from the Bank, there was no reason for DW1 to admit the said fact.
14. The admission of DW-1 is sufficient to prove that Shivalila had made contribution for establishing the business in question. Further the letters exchanged between PW-1 to DW-1 which are produced at Ex.P. 22 to 29 also show that defendant No. 1 has periodically utilized the salary payable to PW.1 i.e, plaintiff No. 3. He has in fact admitted in his evidence that he used to draw the amount from the account of PW.1 and was using the same for family purpose. However, when pointedly questioned as to how much he was withdrawing from the account, he has pleaded his inability to answer the same. Therefore, the irresistible conclusion that follows is that plaintiff No. 3 being the wife of defendant No. 1 has permitted him to utilize the salary for family needs and also for starting business for the family.
15. The next contention that is urged by Sri Hebballi is that even assuming that the contribution was made by the wife for the purpose of establishing the business, it has to be held that the business established and the properties acquired as mentioned in the ‘C’ Schedule out of the income of the business were the joint acquisitions of the husband and wife and the plaintiffs 1 and 2, will not get any share in the said property as they do not partake the characteristic of joint family property. Mr. Hebballi, elaborating this point contends that in the absence of any family nucleus from out of which these properties are acquired and in the wake of the clear evidence that the properties are acquired out of the joint contributions made exclusively by the wife and defendant No. 1, at best it could be regarded as joint properties owned in common by these two persons and the suit for partition cannot lie at the instance of either the wife or the minor son in respect of such property.
16. This contention of the learned Counsel sounds attractive on its face value. But, on a detailed examination of the same, in the back ground of the facts of this case dissuades from accepting the same. The question that arises now is as to what is the nature of the property acquired by some of the members of a joint family by their joint earnings or joint labour. Is it to be regarded as joint family property or the joint property of the acquirers. Useful reference can be made to paragraph 228 at page 336 of the commentary of the learned Author Mulla on Hindu Law and also paragraph 298 at page 632 of the 14th Edition of Hindu Law and Usage written by the Learned Author Mayne. An examination of the legal position on this aspect leads to the conclusion that property jointly acquired by the members of a joint family with the assistance of the joint funds will become the joint family property. If the properties are acquired by joint labour or on account of joint business by some of the members of a joint family, such property has to be regarded as a coparcenery or joint family property unless it is established that there was a clear intention indicated by the acquires to treat that property as the co-ownership of only the acquires and not that of the family. Thus when members of a joint family by their joint labour or out of their business acquire property, that property, in the absence of a clear indication of a contrary intention, would be owned by them as a joint family property. Their male issue would necessarily acquire right by birth in the said properties. Some of the authorities on this point are; MADHAVAIAH CHETTY v. DAMODHAR, AIR 1928 MAD 412, PRAGADA KRISHNAMURTHY v. PRAGADA SEETAMA AND ORS., AIR 1937 MAD 29, SADHANCHANDRA DAS S/o LATE DURGA CHARAN DAS v. GOWRISHANKAR DAS S/O LATE DURGA CHARAN DAS AND ORS., ILR 1977(4) BOMBAY 880, GULABRAO ANANDRAO v. RAMDI, ILR 1960 BOMBAY 67, JAYALAKSHMI v. GOPAL PATTAR, . A perusal of these decisions would clearly indicate that in such a situation the joint acquisitions made by the members of the joint family either by their joint labour or by their joint contributions would tantamount to joint family property unless a clear intention to the contrary is expressed by them.
17. Therefore, the question that is required to be addressed in the instant case is whether plaintiff No. 3 and defendant No. 1 the husband and wife had any intention to treat this business and the income derived out of it and the acquisitions made out of the same as their joint property as to be absolutely owned by both of them as co-owners or had they treated it as the property and assets of the joint family consisting of themselves and their children. Answer to this question cannot detain the court any more because the very admission of DW-1 stating that in the two shops himself, his wife and two sons had the rights would make it clear that whatever investment they had made in the business and the establishment of the business itself was for the benefit of the entire family and they did not intend to treat the business as a co-ownership of PW-1 and DW-1. Therefore, it has to be clearly held that the business and the acquisitions made out of the income derived from the business were the joint family properties. Thus, point No. 1 is answered accordingly holding that the Court below is fully justified in allotting 3/4th share to the plaintiffs in the immovable property mentioned at Item No. 1 of Schedule ‘C’ to the plaint.
POINT N0.2:
18. The next question that arises for consideration in this case is as to whether the movable properties mentioned in schedule ‘C’ to the plaint are proved to have been in existence and whether the plaintiffs have proved their right over the same. Expect narrating in the plaint ‘C’ schedule at item Nos. 2 to 5 and 8 that certain share capital amount, fixed deposit amount and hard cash belong to the joint family in which the plaintiffs have got their share, no other particulars or details are furnished to establish that these securities or amounts either in the form of fixed deposits or by way of cash or securities are available to the family. The particulars of the share certificates could have been furnished by the plaintiffs. The plaintiffs could have taken steps to furnish the details of the alleged fixed deposit amounts. The evidence of PW-1 does not throw any light on this aspect of the matter. Therefore, it is not possible to hold that these items of movable properties mentioned at item Nos. 2 to 5 and 8 of the plaint ‘C’ schedule were available for partition for the family. In the absence of proof of this, the plaintiffs are not entitled to any decree for partition of these properties. However, as regards the valuables found in the shop premises namely M/s. Deepak Cycle Stores and M/s. Tilak Enterprises and other movables that allegedly belonged to the family, an inventory has been taken by appointing a Commissioner which is marked as Ex.P.21. The plaintiffs are entitled for their distinct share in these properties as reflected in the reported of the Commissioner. The Court below has proceeded to decree the suit holding that the plaintiffs are entitled for 3/4th share in ‘C’ schedule properties. However, the last portion of the order passed discloses that the Court below has directed partition in respect of the movable properties as per the report of the Court Commissioner. If the entire direction as contained in the Judgment is understood in its proper perspective, it appears that the Court below confined the partition of the movable properties only with regard to the items mentioned in the report of the Court Commissioner. At any rate, as already held above, the plaintiffs are not entitled to partition of the movables shown at items 2 to 5 and item 8 of the suit schedule ‘C’ properties as the existence and availability of the same to the family has not been established by the plaintiffs. In this view of the matter, point No. 2 raised for consideration is answered accordingly.
19. In the result, I pass the following:
ORDER
The appeal filed by the appellant is allowed in part. The Judgment and decree passed by the Court below is set aside only in so far as it pertains to ordering partition and separate possession in respect of Items 2 to 5 and 8 of plaint ‘C’ schedule properties. In all other respects, the Judgment and Decree passed is affirmed. No costs.