{"id":105583,"date":"2010-04-13T00:00:00","date_gmt":"2010-04-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/second-appeal-no-109-of-1997-vs-unknown-on-13-april-2010"},"modified":"2018-04-24T19:10:07","modified_gmt":"2018-04-24T13:40:07","slug":"second-appeal-no-109-of-1997-vs-unknown-on-13-april-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/second-appeal-no-109-of-1997-vs-unknown-on-13-april-2010","title":{"rendered":"Second Appeal No.109 Of 1997 vs Unknown on 13 April, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Second Appeal No.109 Of 1997 vs Unknown on 13 April, 2010<\/div>\n
Bench: C. L. Pangarkar<\/div>\n
                                       1\n\n        IN THE HIGH COURT OF JUDICATURE AT BOMBAY.\n                     NAGPUR BENCH, NAGPUR.\n\n\n\n\n                                                                              \n                 SECOND APPEAL NO.109 of 1997.\n\n\n\n\n                                                      \n    APPELLANTS :    1. Kausabai wd\/o Rajaram Waradkar,\n                        aged about 50 years, Occu: Cultivation,\n                        r\/o Chinchala, Post Tembhurde, Tq.\n\n\n\n\n                                                     \n                        Warora, Distt.Chandrapur.\n\n                     2. Mangla w\/o Keshao Thaori, \n                         aged about 33 years, Occu: Cultivation,\n\n\n\n\n                                          \n                         r\/o Tembhurde, Post Tembhurde, Distt.\n                         Chandrapur.\n                            \n                     3. Diwakar s\/o Rajaram Waradkar,\n                         aged about 27 years, r\/o Chinchala,\n                           \n                         Tq.Warora, Distt.Chandrapur.\n\n                     4. Vandana d\/o Rajaram Waradkar,\n                         aged about 22 years, r\/o Chinchala,\n          \n\n\n                         Post Tembhurda, Tq.Warora, Distt.\n       \n\n\n\n                         Chandrapur.\n\n                       (Legal representatives of Ori.Deft.no.1\n                        Rajaram s\/o Shioram Waradkar)\n\n\n\n\n\n                                 ..VERSUS.. \n\n    RESPONDENTS: 1. Gayabai wd\/o Gundaji Mogre,\n                     aged about 70 years, Occu: business,\n\n\n\n\n\n                     r\/o Warora, Tq.Warora, Distt.Chandrapur.\n\n                       2.  Bapurao s\/o Gundaji Mogre,\n                            aged about 43 years, Occu: business,\n                            r\/o Warora, Tq.Warora, Distt.Chandrapur.\n\n                       3.  Vithal s\/o Gundaji Mogre,\n                            aged about 50 years, Occu: Labourer, r\/o\n                            Warora, Tq. Warora, Distt.Chandrapur.\n\n\n\n                                                      ::: Downloaded on - 09\/06\/2013 15:50:39 :::\n                                             2\n\n\n    =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-\n\n\n\n\n                                                                                    \n    Mr.Jawade Advocate for the appellants.\n    Mr.Anjan De Advocate for the respondents.\n\n\n\n\n                                                            \n    =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-\n                            CORAM:  C.L.Pangarkar, J.\n<\/pre>\n
                            DATED :   13th April, 2010.\n<\/p>\n
    ORAL JUDGMENT:\n<\/p>\n
    1.    This is a second appeal by original defendant no.1.  The <\/p>\n
    parties shall hereinafter be referred to as the plaintiff and the <\/p>\n
    defendants.\n<\/p>\n
    2.    The facts giving rise to the appeal are as follows –\n<\/p>\n
          Plaintiff   no.1   is   the   mother   of   plaintiff   no.2   and <\/p>\n
    defendant no.2.   Defendant no.1 is the transferee of the suit <\/p>\n
    property.   According to the plaintiffs, defendant no.2 was not <\/p>\n
    the sole owner of the suit property and inspite of that he has <\/p>\n
    sold the the suit property to defendant no.1.  According to the <\/p>\n
    plaintiffs, they have 2\/3rd share in the suit property.  It is their <\/p>\n
    contention   that   the   plaintiffs   and   defendant   no.2   were   the <\/p>\n
    members of the joint Hindu family when the suit property was <\/p>\n
    alienated   by   defendant   no.2.   They   contend   that   they   had <\/p>\n
    purchased jointly a plot of land for construction of the house <\/p>\n
    and   they   constructed   a   house   thereon.     The   same   was <\/p>\n
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\n                                                 3<\/span><\/p>\n
    constructed   from   joint   family   funds   though   in   the   name   of <\/p>\n
    defendant no.2.   The plaintiffs contend that in the year 1949, <\/p>\n
    plaintiff no.1 along with her two sons was turned out of the <\/p>\n
    house   by   husband   and   since   then   she   was   living   with   her <\/p>\n
    mother   and   sisters.     It   is   their   contention   that   plaintiff   no.1 <\/p>\n
    started business in grains and she was   supporting the family.\n<\/p>\n
    Thereafter, the plaintiff and defendant no.2 together started a <\/p>\n
    business in the name and style ‘Mogre Brothers’ and a branch <\/p>\n
    of the said shop was opened by the plaintiff and defendant no.\n<\/p>\n
    2 at village Tembhurda also in the rented house.  The said shop <\/p>\n
    was run by plaintiff nos.1 and 2.    Defendant no.2, however, <\/p>\n
    used   to   manage   the   said   shop   only   on   weekly   market   day.\n<\/p>\n
    Further, it is contended that in the year 1968, a wholesale and <\/p>\n
    retail shop of grocery was started in the name and style Kisan <\/p>\n
    Kirana   Bhandar.     That   was   also   a   joint   family   business   and <\/p>\n
    former name ‘Mogre Brothers’ was changed.  It is contention of <\/p>\n
    plaintiffs   that   the   suit   property   was   purchased   out   of   the <\/p>\n
    earning from the said shop and the plaintiffs have, therefore, <\/p>\n
    2\/3rd share in them.\n<\/p>\n
    3.     Defendant nos.1 and 2 filed a joint written statement in <\/p>\n
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\n                                               4<\/span><\/p>\n
    the suit.   According to the defendants, the suit property was <\/p>\n
    self-acquired property  of defendant no.2 and plaintiffs had no <\/p>\n
    concern with the same.   It is contended that defendant no.2 <\/p>\n
    had started the grocery business and had even started a branch <\/p>\n
    at Thembhurda.   House, according to him, was constructed in <\/p>\n
    1967   itself   and   he   was   paying   the   taxes.     The   defendants <\/p>\n
    further   contend  that   there   was  never   any  joint   family,   much <\/p>\n
    less a Hindu joint family.  The joint family funds were not used <\/p>\n
    for the construction of the house or plot and the plaintiffs have <\/p>\n
    no share whatsoever in the suit property.\n<\/p>\n
    4.     The learned Judge of the trial court found that the house <\/p>\n
    was constructed from joint family funds, the plaintiffs had 2\/3rd <\/p>\n
    share in it and the sale-deed, therefore, was not binding on the <\/p>\n
    plaintiffs.     Holding   so,   he   decreed   the   suit.   An   appeal   was <\/p>\n
    preferred   by   the   defendants   and   the   appeal   came   to   be <\/p>\n
    dismissed.   Feeling aggrieved thereby, this second appeal has <\/p>\n
    been preferred.\n<\/p>\n
    5.     I have heard the learned counsel for the appellants and <\/p>\n
    the respondents.\n<\/p>\n
    6.     The appeal was admitted by this court (Kulkarni,J.) on <\/p>\n
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\n                                            5<\/span><\/p>\n
    the following substantial questions of law.\n<\/p>\n
            1) Both   the   learned   courts   below   have   erred   in <\/p>\n
               holding that the suit property is purchased from
\n               the joint family funds in the year 1966 from one
\n               Mahadeo Gadge and hence, it is a joint family <\/p>\n
               property   and   further   that   the   plaintiffs\/
\n               respondents 1 and 2 have 2\/3rd share in the suit
\n               property.     The   learned   courts   below   while <\/p>\n
               deciding this issue have not considered the fact <\/p>\n
               that   respondent   no.1   had   started   her   business
\n               after   separating   herself   from   her   husband   and <\/p>\n
               hence, such business under Hindu Law is not a
\n               joint family business as there was no joint family
\n               or joint family business in existence at the time <\/p>\n
               of starting of such business.\n<\/p>\n
            2) The learned courts below have failed to consider
\n               a very important aspect that joint Hindu family <\/p>\n
               cannot   be   constituted   in   the   facts   and
\n               circumstances of the present case.  It is liable to
\n               be seen that it is an admitted fact that plaintiff <\/p>\n
               no.1 Gayabai had left her husband and come to
\n               Warora along with two sons and started residing
\n               with her sister Gangubai.   It is alleged that she
\n               started the business with the help of her sister
\n               Gangubai.     Hence,   there   cannot   be   a
\n               presumption as contemplated in law of a joint
\n               Hindu   family.     Thus,   the   finding   of   the   courts <\/p>\n
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\n                                    6<\/span><\/p>\n
       below   that   the   plaintiffs   and   defendants   no.2 <\/p>\n
       were members of the joint family at the time of
\n       alienation   of   the   suit   property   is   an   error <\/p>\n
       apparent in law.\n<\/p>\n
    3) The learned courts below failed to consider that <\/p>\n
       admittedly   the   property   which   was   sold   to
\n       appellants was in the name of Vithal and Vithal
\n       had ja right to sell the property.  It has also come <\/p>\n
       in   the   evidenced   that   it   was   Vithal,   who   had <\/p>\n
       constructed   the   house.     The   learned   courts
\n       below   have   unnecessarily   observed   that   Vithal <\/p>\n
       has not produced any document to support the
\n       construction.     The   fact   remains   that   since   the
\n       suit property was in the name of Vithal and he <\/p>\n
       had purchased this property, the question of his <\/p>\n
       right to sell the same does not arise.\n<\/p>\n
    4) The learned courts below have erred in holding
\n       that there was a joint family business and suit <\/p>\n
       property   was   only   purchased   in   the   name   of
\n       Vithal.  Assuming that this is admitted, it is only
\n       to   be   held   as   a   benami   transaction   and   the <\/p>\n
       plaintiffs   have   no   right   in   the   property,   which
\n       stands in the name of Vithal.\n<\/p>\n
    5) It is  liable  to be  seen that there  is no  nucleus
\n       established   to   show   that   it   is   a   joint   family
\n       property.     Even   otherwise,   the   learned   courts
\n       below should have considered that this property <\/p>\n
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\n                                               7<\/span><\/p>\n
                  was his separate property and Vithal had raised <\/p>\n
                  funds   by   starting   his   business   in   1959   and
\n                  hence, the suit property which was purchased in <\/p>\n
                  1996   as   an   open   plot   was   Vithal’s   separate
\n                  property.  Thus, the learned courts below should <\/p>\n
                  have held that Vithal was lawful and exclusive
\n                  owner of the suit property and he had a right to
\n                  sell the suit property.\n<\/p>\n
    7.<\/p>\n
          It is the case of the plaintiffs that plaintiff no.1’s husband <\/p>\n
    and no.2’s father turned the plaintiffs and defendant no.2 out <\/p>\n
    of the house and therefore, all three of them started living with <\/p>\n
    the   mother   and   sister   of   plaintiff   no.1.     The   plaintiffs <\/p>\n
    specifically averred in para no.5 of the plaint to the following <\/p>\n
    effect.\n<\/p>\n
              “That   the   plaintiffs   and   the   defendant   no.2
\n              were the members of the joint Hindu family
\n              when   the   suit   house   was   alienated   to   the
\n              defendant no.1.”\n<\/p><\/blockquote>\n
    8.    Thus,   they   contend   that   they   constitute   a   joint   Hindu <\/p>\n
    family.  In fact, law presumes that every Hindu family is a joint <\/p>\n
    family unless otherwise shown.   In the instant case, however, <\/p>\n
    the controversy seems to have arisen because the father does <\/p>\n
    not live with the family.   Normally, a joint family consists of <\/p>\n
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\n                                                  8<\/span><\/p>\n
    father,   mother   and   sons   and   their   wives.     Here,   admittedly, <\/p>\n
    father had long back turned the plaintiffs and defendant no.2 <\/p>\n
    out of the house and he is living separately.   The question is <\/p>\n
    whether   the   mother   and   two   sons   could   constitute   a   joint <\/p>\n
    family and that seems to be the question of law raised.  I see no <\/p>\n
    reason why they cannot.  If two brothers, upon death of father, <\/p>\n
    can   constitute   a   joint   family,   there   is   no   reason   why   two <\/p>\n
    brothers in this case with their mother cannot constitute a joint <\/p>\n
    family,   when   father   deserts   them.     Even   if   one   of   the <\/p>\n
    coparceners decides to break away from the rest of the family, <\/p>\n
    the other coparceners can constitute a joint Hindu family.  Even <\/p>\n
    otherwise in the instant case father had deserted them, he has <\/p>\n
    not separated as such from the family.  I find that the two sons <\/p>\n
    with   their   mother   and   even   wives   can   constitute   the   joint <\/p>\n
    Hindu   family.     In   the   instant   case,   it   could   be   said   that   the <\/p>\n
    plaintiffs and defendant no.2 constituted a joint Hindu family.\n<\/p>\n
    9.     The plaintiffs’ case is that plaintiffs and defendant no.2 <\/p>\n
    were turned out of the house.  If the pleadings in the plaint are <\/p>\n
    seen, it could be gathered that the plaintiffs do not plead that <\/p>\n
    family possesses any ancestral property at all.   It is not even <\/p>\n
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\n                                                 9<\/span><\/p>\n
    their case that the father had given anything to them from any <\/p>\n
    ancestral   property.     There   is,   therefore,   no   pleading   of   the <\/p>\n
    plaintiffs that any kind of nucleus was available for blending <\/p>\n
    the   suit   property,   in   order   that   any   property   possessed   or <\/p>\n
    owned by the family should become the joint family property.\n<\/p>\n
    There   has   to   be   some   nucleus   available   from   which   that <\/p>\n
    property could be purchased.   Since in this case the plaintiffs <\/p>\n
    did not possess any ancestral income-giving-property, it could <\/p>\n
    not be said that the suit house was a joint family property as <\/p>\n
    such.\n<\/p>\n
    10.    The   distinction   has   to   be   made   between   joint   family <\/p>\n
    property and the property acquired by joint efforts.   The suit <\/p>\n
    property could in no case be treated as joint family property. It <\/p>\n
    is   to   be   seen   if   it   is   a   jointly   acquired   property   or   not.\n<\/p>\n
    Defendants contend that defendant no.2 was alone running his <\/p>\n
    own business, while plaintiff claims that the business run was <\/p>\n
    family business and from its income the property is acquired.\n<\/p>\n
    From the evidence on record, the suit property could certainly <\/p>\n
    be said to be the jointly acquired property.  It is the case of the <\/p>\n
    plaintiffs   that   plaintiff   no.1   started   the   business   and   started <\/p>\n
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\n                                             10<\/span><\/p>\n
    earning.  DW 1 Vitthal admits in the cross-examination that his <\/p>\n
    mother was dealing in grains and was earning.  He also admits <\/p>\n
    that his mother and aunt paid him money for starting business.\n<\/p>\n
    If mother was also doing the business, as is accepted by the <\/p>\n
    defendants, it is difficult to accept the theory of defendant no.2 <\/p>\n
    that he was alone running the shop.   Admittedly, there were <\/p>\n
    two shops at two different places.   It is, therefore, difficult to <\/p>\n
    accept that defendant no.2 alone could run both the shops at <\/p>\n
    the two different places.   The theory of the plaintiffs that the <\/p>\n
    shops were joint and run by all has, therefore, to be accepted.\n<\/p>\n
    There   is   another   strong   reason   why   the   property   has   to   be <\/p>\n
    treated as jointly acquired property.  Dependant no.1 had filed <\/p>\n
    the suit against defendant no.2 and plaintiff no.1 in respect of <\/p>\n
    recovery of rent of shop of plaintiffs and defendant no.2.  The <\/p>\n
    certified copy of the plaint in that suit is Exh.36.  In  plaint para <\/p>\n
    no.2, following averements are made.\n<\/p>\n
          “Defendant   no.2   is   the   mother   of   defendant   no.1
\n          and they constitute joint family.   Defendants carry
\n          on retail grocery business”\n<\/p><\/blockquote>\n
    These contents are admitted in the written statement filed at <\/p>\n
    Exh.37.   Obviously, defendant no.2 admitted in that suit that <\/p>\n
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\n                                              11<\/span><\/p>\n
    the shop was a joint family business.   Even in para 17 of the <\/p>\n
    said   written   statement   there   is   a   clear   averement   that <\/p>\n
    defendants   were   running   the   shop   and   house   was <\/p>\n
    reconstructed   by   the   defendants.     DW   1   Vitthal   in   cross-\n<\/p>\n
    examination admits that he had filed such a written statement <\/p>\n
    and  that   he   had  stated  therein   that   house   belonged  to  joint <\/p>\n
    family.     With   this   evidence,   I   do   not   think   that   any   more <\/p>\n
    evidence   is   required  to  conclude   that   the   business  was  joint <\/p>\n
    and the property was purchased from that business income.  If <\/p>\n
    the   business   was   joint   and   the   property   is   acquired   from <\/p>\n
    earning of joint business, it must be assumed that each of the <\/p>\n
    members   has   an   equal   share     in   it   unless   otherwise   shown.\n<\/p>\n
    This   takes   me   to   the   next   substantial   question   of   law   i.e. <\/p>\n
    Whether   the   appellant   could   be   treated   as   a   bona   fide <\/p>\n
    purchaser.     Bona   fide   purchaser   is   that   person   who   takes <\/p>\n
    reasonable care to ascertain that the transferor had the power <\/p>\n
    to make transfer and he had acted in good faith and also that <\/p>\n
    the   true   owner   had   consented   to   such   transfer.     Since   true <\/p>\n
    owners   are   challenging   the   transfer,   there   is   no   question   of <\/p>\n
    consent.  Let us see if there is evidence of appellant’s acting in <\/p>\n
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\n                                                   12<\/span><\/p>\n
    good faith and whether he had taken reasonable care.   I find <\/p>\n
    that   this   is   a   fit   case   of   lack   of   good   faith   and   not   even   a <\/p>\n
    reasonable care has been taken.  It appears, on the other hand, <\/p>\n
    that defendant no.1 entered into contract of purchase of the <\/p>\n
    property with open eyes.  The reason for saying so is that the <\/p>\n
    appellant does not enter into witness box to make out the case <\/p>\n
    in pleading and second in his own plaint vide Exh.36, he had <\/p>\n
    made   an   averement   and   assertion   that   the   shop   and   the <\/p>\n
    property belonged to the joint family.  This clearly shows that <\/p>\n
    defendant no.1 has had full knowledge of the property being <\/p>\n
    owned by the family and not by defendant no.2 alone.   The <\/p>\n
    appellant,   therefore,   could   not   be   treated   to   be   a   bona   fide <\/p>\n
    purchaser.     Although   I   find   that   the   property   is   not   a   joint <\/p>\n
    family   property   as   such,   all   the   same   it   is   jointly   acquired <\/p>\n
    property in which each one of them has equal share.   In the <\/p>\n
    circumstances, there is no difficulty in confirming the judgment <\/p>\n
    and   decree   as   passed   by   the   court   below.     The   appeal   is, <\/p>\n
    therefore, dismissed.  No order as to costs.\n<\/p>\n
                                                                        JUDGE.\n<\/p>\n
    chute<\/p>\n
                                                                       ::: Downloaded on – 09\/06\/2013 15:50:39 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Second Appeal No.109 Of 1997 vs Unknown on 13 April, 2010 Bench: C. L. Pangarkar 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY. NAGPUR BENCH, NAGPUR. SECOND APPEAL NO.109 of 1997. APPELLANTS : 1. Kausabai wd\/o Rajaram Waradkar, aged about 50 years, Occu: Cultivation, r\/o Chinchala, Post Tembhurde, Tq. Warora, Distt.Chandrapur. 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