Karnataka High Court
Ramachandra S/O Bhimanna Giragavi vs Vithal S/O Bhimanna Giragavi Ors on 21 February, 2013
Bench: N.Kumar, H.G.Ramesh
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 21ST DAY OF FEBRUARY 2013
PRESENT
THE HON'BLE MR. JUSTICE N.KUMAR
AND
THE HON'BLE MR. JUSTICE H.G.RAMESH
REGULAR FIRST APPEAL No.5030 OF 2011(PAR)
BETWEEN:
RAMACHANDRA
S/O BHIMANNA GIRAGAVI
AGE: 63 YEARS,
R/O KALYAN NAGAR,
TAKKE CROSS, BIJAPUR.
... APPELLANT
(BY SRI ASHOK S.KINAGI, ADVOCATE)
AND:
1. VITHAL
S/O BHIMANNA GIRAGAVI
AGE: 68 YEARS,
R/O AYYAIPPA NAGAR,
TAKKE CROSS, BIJAPUR.
2. PUNDALIK
S/O BHIMANNA GIRAGAVI
AGE: 66 YEARS,
R/O SAINIK SCHOOL,
1ST GATE, SHASTRI NAGAR,
BIJAPUR.
2
3. KRISHNA
S/O BHIMANNA GIRAGAVI
AGE: 59 YEARS,
R/O SAINIK SCHOOL,
1ST GATE, SHASTRI NAGAR,
BIJAPUR.
4. LAXMAN
S/O BHIMANNA GIRAGAVI
AGE: 56 YEARS,
R/O AYYAIPPA NAGAR,
TAKKE CROSS, BIJAPUR.
5. LAXMIBAI
W/O NINGAPPA SHIRASHYAD
AGE: 70 YEARS,
R/O SAINIK SCHOOL,
1ST GATE, SHASTRI NAGAR,
BIJAPUR.
6. SHARADABAI
W/O LATE YASHWANTRAO PATIL
AGE: 61 YEARS,
R/O C/O GIRAGAVI,
NEAR SAINIK SCHOOL ROAD,
SHASTRI NAGAR, BIJAPUR.
7. SUSHALABAI
W/O GOUDAPPA HALIGERI
AGE: 57 YEARS,
R/O C/O B.M.PATHAN BUILDING,
HULIYAL LAYOUT,
NEAR MULLA KIRANI SHOP,
VINAYAKNAGAR, BAGALKOT.
8. SUMITABAI
W/O VITHAL AWATHI
AGE: 53 YEARS,
R/O C/O V.B.AWATI,
SENIOR AUDITOR,
BHAVASAR NAGAR, BIJAPUR.
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9. SUBHADRA
W/O KALLAPPA KALADAGI
AGE: 51 YEARS,
R/O C/O K.M.KALADAGI,
HIGH SCHOOL TEACHER,
PO: HULGUR, TQ: SAVANUR,
DISTRICT DHARWAD.
10. LAXMIBAI
W/O VITHAL GIRGAVI,
AGE: 60 YEARS,
R/O AYYAPPA NAGAR,
TAKKE CROSS, BIJAPUR.
11. GODAVARI
W/O KRISHNA GIRGAVI
AGE: 56 YEARS,
R/O SAINIK SCHOOL GATE,
BIJAPUR.
12. VIJAYALAXMI
W/O LAXMAN GIRGAVI
AGE: 54 YEARS,
R/O AYYAPPA NAGAR,
TAKKE CROSS, BIJAPUR.
13. VISHWANATH
S/O SATAVEERAPPA
MAREGUDDI,
AGE: 42 YEARS,
R/O KALYAN NAGAR,
BIJAPUR.
14. SHASHIKALA
W/O VIJAY HEGADE,
AGE: 45 YEARS,
R/O GURUPRASAD,
SUFARI SHOP,
OPP: LAXMI TEMPLE,
BIJAPUR.
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15. VIDYA
W/O VASUDEV GALAGALI
AGE: 45 YEARS,
R/O SHASTRI NAGAR,
BIJAPUR.
16. CHANAVEERAYYA
S/O SIDLINGAYYA
ANNIGERIMATH,
AGE: 30 YEARS,
R/O SHAHU NAGAR,
BIJAPUR.
17. ASHOK S/O
PUNDALIK MUDALAGI
AGE: 55 YEARS,
R/O SHASTRI NAGAR,
BIJAPUR.
...RESPONDENTS
(SRI D.P.AMBEKAR & V.M.BIRADAR, ADVOCATES
FOR C/R1 & 10)
(SRI AMEET KUMAR DESHPANDE, ADV. FOR C/R2
TO 4 & R11 & R12)
THIS RFA IS FILED U/S 96 R/W ORDER 41
RULE 1 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 28.6.2011 PASSED IN
O.S.NO.284/2006 ON THE FILE OF THE I ADDL.
SENIOR CIVIL JUDGE, BIJAPUR, DISMISSING THE
SUIT OF THE PLAINTIFF.
THIS RFA COMING ON FOR HEARING THIS DAY
N.KUMAR J., DELIVERED THE FOLLOWING:
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JUDGMENT
This is a plaintiff's appeal against the judgment and decree of the trial Court which has dismissed the suit of the plaintiff for partition both on the ground of limitation as well as on the ground that the schedule properties are not joint family properties. For the purpose of convenience, the parties are referred to as they are referred to in the plaint.
2. Sri Bhimanna had five sons and five daughters. He died on 8.5.1983 leaving behind plaintiff, defendants No.1 to 4, the sons, defendants No.5 to 9, the daughters and Ningawwa is widow who died on 4.4.2002 as his legal heirs. Defendant No.10 is the wife of defendant No.1. Defendant No.11 is the wife of defendant No.3 and defendant No.12 is the wife of defendant No.4. They are all impleaded as parties, as some of the suit-schedule properties stand in their name. Defendant Nos.13 to 17 are purchasers of some 6 of the suit schedule properties, therefore, they are also included as defendants in the suit.
3. The case of the plaintiff is that Bhimanna died on 8.5.1983. On the date of his death he was running a saw-mill. It was a Hindu joint family business, dealing with Timber and Mate rials, under the name and style " B.K. Giragavi Timber and Furniture Merchant". The Hindu joint family consisting of plaintiff and defendant Nos.1 to 4 was carrying on the saw-mill business in the suit property bearing CTS No.241/C/1 of Ward No.4 of Bijapur city for last 50 years making very good profits in the entire district of Bijapur having good reputation. Not only the plaintiff was assisting in the day-to-day affairs of the business, he was contributing monetarily to the defendant Nos.1 to 4 for running of saw-mill business. The said Hindu joint family was entering into the Government contracts and making very good profits. Their father performed the marriage of the defendant Nos.1 to 9 out 7 of the income derived from the joint family saw-mill business. The joint family was owning schedule 'A' property shown at Sl.No.1 bearing CTS No.41 of Ward No.4 of Bijapur City. The said property was purchased by deceased Bhimanna on 6.9.1947 from its previous owner Sri Maruti Babuji Jadhav. Subsequently, defendant No.1 had created a false gift deed in his name said to have been executed by deceased Bhimanna and submitted false wardi to the CTS authorities to enter his name in CTS records. It is not a registered document. Therefore, no right, title and interest has been passed to the defendant No.1. Subsequently defendant No.1 had executed false gift in favour of defendant No.4. The defendant No.4 colluding with defendant No.1 sold CTS No.41 to the defendant No.16 on 02.02.2006 for a sum of Rs.3,25,000/-. Defendant No.16 was quite aware of the facts that the plaintiff has got share in the same, still he purchased the property. The said transaction was done without plaintiff's knowledge and consent 8 and legal necessity of the Hindu joint family with an intention to defeat the share of the plaintiff. CTS No.50/A of ward No.4 of Bijapur City as shown at Sl.No.2 of plaint schedule-A was purchased by deceased Bhimanna during his lifetime. Subsequently, defendant No.2 has created a false gift deed in his name alleged to have been executed by deceased Bhimanna on 15.10.1979 and submitted a false wardi and got his name entered in the CTS record. It is also not a registered document. Subsequently the defendant No.2 has sold the suit property to defendant No.17 for a sum of Rs.85,000/- on 8.11.1991. Defendant No.17 was aware of the right of the plaintiff in the suit property and the said transaction was entered into with an intention to defeat the share of the plaintiff. Therefore, said sale is also not binding on him.
4. CTS No.51/A of ward No.4 of Bijapur as shown in the plaint schedule at Sl.No.3 was purchased 9 in the name of defendant No.1 on 18.09.1982 from its previous owner Appanna Shankar Gavali during the lifetime of deceased Bhimanna. The consideration amount has flown from the profits derived from the Hindu joint family saw-mill business. Therefore, plaintiff has right, title and interest in the suit property. CTS No.241/C/1 shown in the plaint schedule 'A' at Sl.No.4 was taken on lease by the deceased Bhimanna from one Desai family. It is there they were carrying on saw-mill business. After the death of Bhimanna plaintiff and defendant Nos.1 to 4 are residing in different houses for the purpose of cooking only, but other affairs were carried on in the name of B.K.Giragavi Timber and Furniture Merchant. They were all joint in respect of business function and worship etc. There was no partition in the joint family by metes and bounds even today. After the demise of Bhimanna, suit property bearing CTS No.241/C/1 of schedule 'A' shown at Sl.No.4 has been purchased in the name of defendant Nos.1 and 2 from one Desai 10 family in the year 1986 from the income of the business. In fact, the said property was purchased in two bits under two registered sale deeds. One more property was purchased in the name of Saraswatibai. Similarly two other bits were also purchased by defendant Nos.1 and 2. Thus, consideration amount for the above said five sale deeds is paid out of the joint family saw-mill business and earnings of the plaintiff and defendants No.1 to 4. Therefore, the plaintiff has equal right, title and interest in all those properties. An area of 2209 Sq.ft. is purchased in the name of defendant No.2 under registered sale deed dated 12.12.1986 from one Arvindrao Desai. Similarly the plaintiff has set out in the plaint the particulars of the other properties purchased and the persons in whose name they have been purchased. The plaintiff contends that he has got 1/5th share in all the suit scheduled properties.
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5. The plaintiff has been serving in the Prison department and he is a Government servant. He used to stay in different places wherever he was transferred during the service. However, he was occasionally visiting Bijapur and he was participating in the joint family saw mill business. The relation between plaintiff and defendant Nos.1 to 4 was not cordial. For the last 2-3 years, the plaintiff asked the defendant Nos.1 to 4 to effect the partition of all the properties and give him his separate share in the suit properties, but they were not prepared to give his share. Defendant Nos.2 to 4 entered into nominal family arrangement with plaintiff on 27.10.1999 by allowing nominal rights of the plaintiff. A family arrangement memo was accordingly prepared and duly signed and executed by the plaintiff and defendant Nos.2 to 4. It is made in the presence of the elders and two of them are Sri Shirshyad and Shindhe attested the said memo as panchas. It was a temporary arrangement, not conclusive. As defendant No.1 was not in a mood to 12 give the legitimate share of the plaintiff in the suit properties at that time. Plaintiff was insisting upon the defendant Nos.1 to 4 to effect partition in all the suit properties and give him his separate share, but the defendants No.1 to 4 avoided. The joint family has been running family saw-mill business for the last 60 years in the name and style " B.K. Giragavi Timber and Furniture Merchant", Bijapur. The scheduled properties at Sl.Nos.1 to 5 were purchased by the deceased Bhimanna and started saw-mill business. The whole family of the plaintiff and defendants has been depending upon these machines i.e., Bend-saw machines vertical and horizontal accessories, wood planning machine, groove cutting machine, log cutting machine. These items are used regularly for the progress of joint Hindu family saw mill business. The plaintiff and defendants No.1 to 4 are earning daily Rs.1,000/- to 1500/- from the said business. Therefore suit was filed seeking partition and separate possession of his 1/5th share in the schedule to the 13 plaint in schedule 'A' 4 items of immovable property bearing CTS numbers set out with the extent of the property with market value, similarly schedule 'B' also contains 5 items of landed properties, schedule 'C' contains the particulars of the movable properties.
6. After service of summons defendants entered appearance. The 1st defendant filed his written statement. It is his specific case that deceased Bhimannal inherited no ancestral property. The family originally hails from Giragavi village. As there was hardly sufficient means for livelihood to feed the members of the family in the village, Bhimanna left the village and came to Bijapur to earn his livelihood when he was still very young. In due course, he learnt carpentry work and began to work as a carpenter in a small way, working as a helping hand with others initially and later on, on his own. On account of his good nature and hard work he earned goodwill of customers and began to work independently. In a 14 small way in due course he began his independent timber business. On account of growing family, he could barely make the two ends meet and was able to manage hand-to-mouth existence. Later, even when defendant Nos.1 and 2 were still very young, they also began to help their father in his work and business. It was only deceased Bhimanna and defendants No.1 and 2 who were working and feeding the family. Slowly, the business improved and began to grow. Later, they took a big portion of property bearing CTS No.241/C/1 shown at Sl.No.4 of schedule "A" of the plaint on lease and established their business therein. Ultimately, when the business grew considerably and defendant Nos.1 and 2 came of age, deceased Bhimanna and defendant Nos.1 and 2 constituted themselves into a partnership firm under the name and style M/s Giragavi and sons and also established a shop in the form of show-room. They also purchased necessary machinery and set up a saw-mill for the business and began to take carpentry work on contract basis for 15 supply from the Government and other institutions. On account of the hard and sincere labour and efforts of the partners of the firm, the business grew considerably by leaps and bounds. None of the other members of the family were either working or assisting in the business in any manner.
7. The business of the said firm, from even before the constitution of the firm was never a family business, as is being made out by the plaintiff. Throughout the business was a venture of the partners of the firm and it was not a partnership consisting of members of the joint family. The partners used to take respective shares from out of the profit of the firm and the business. The defendants No.1 and 2 have acquired properties standing in their names respectively on their own money received by them from out of the profit. The said properties are not the joint family properties as claimed by the plaintiff. On the death of their father in the year 1983 defendant Nos.1 16 and 2 have reconstituted the firm. Since then till today there are only two partners in the firm and all the properties in the business including the machinery of the mill etc., are the properties of the firm of which only defendants No.1 and 2 are the partners.
8. So far as the plaintiff is concerned, soon after his study i.e., after completing his SSLC examination in 1965 he joined service. Initially he worked at Delhi. Thereafter, he has been in Government service from about 1967-68 and has been working in various places such as Raichur, Dharwad, Bangalore etc., and presently at Bijapur and still he is in service. Even in Bijapur he is living separately with his family consisting of himself, his wife and three children. One daughter is married. The plaintiff has also built a house in the year 1993-94 at Bijapur. In view of all this, the plaintiff was not in a position to either to assist or help the timber business either by personal 17 labour or monetarily and he has never done so. The plaintiff's claim in this regard is false.
9. So far as suit properties are concerned, this defendant is only concerned with suit properties shown at Sl.No.3 and 4 of schedule "A" of the plaint i.e., house property situated at CTS No.51/A and the open space from out of CTS No.241/C/1. It was purchased in the year 1982 from its former owner from out of his own earning received by him from the business of the firm M/s B.K.Giragavi and sons as one of its partners. It is his self-acquired property. It is not a joint family property. The other property is a big open site. This was formerly owned by the five branches of one Desai family, each having 1/5th share. One portion was taken by deceased Bhimanna and defendant Nos.1 and 2 on lease where they were carrying on the business. After the death of Bhimanna, they have purchased the properties in their individual capacity under various sale deeds from the members of Desai family. The 18 defendant Nos.1 and 2 have paid the consideration amount from their own earnings. The defendant Nos.1 and 2 are jointly owning the said properties. After the sale, by filing the suit OS No.139/1989 against the owners of the remaining 1/5th joint share, they obtained a decree. Final decree proceedings are pending. It is also not a joint family property. The land bearing Sy.No.736/2 measuring 5 acres 5 guntas was purchased by defendant No.1 along with others in the year 1990 under a registered sale deed. Defendant No.10 paid the consideration amount within her own income. She had her own source. She owns a garden land measuring 13 acres bearing R.S.No.100 of Nagthan village in Bijapur taluka, which she inherited from her mother and under a partition between brothers, sisters and herself. She is the exclusive owner of the same. Defendant No.10 also got an area measuring 3 acres in RS No.736/2D. Thus, she is the absolute owner. In 2003 she got converted the said land into non-agricultural by order dated 4.7.2003 19 passed by the Deputy Commissioner, Bijapur and presently a layout plan has been got approved. Thus, defendant No.10 is the exclusive owner of these properties. Defendant No.1 has spent huge sum of money for all this. The timber and furniture business was or is not the joint family business as averred. He does not even know the correct name of the business. He was not assisting the day-to-day affairs of the business and he has not contributed to any extent to the said business. The property bearing CTS No.41 and CTS No.50/A are not and never the joint family properties. CTS No.51/A exclusively belongs to the defendant having purchased the same in the year 1982. Plaintiff has no share in the said property. CTS No.241/C/1 belongs to 2nd defendant. This defendant is in no way connected with temporary family arrangement memo relied on by the plaintiff. He is not a party to the same. Even if there is one, it is bad in law, it cannot be looked into for more than one reason. It is in the nature of gift and unregistered. The 20 plaintiff is not in possession of the area measuring 2676 sq.ft. from out of the said property. The allegation that the plaintiff had constructed shed is false. Therefore, he denied all the allegations and sought for dismissal of the suit.
10. The defendant No.10 adopted the written statement filed by 1st defendant by filing a memo.
11. 2nd defendant has filed a separate detailed written statement traversing all the allegations in the plaint and virtually he has adopted the written statement of the 1st defendant. He contends that the suit property which stands in his name are all his self acquired property acquired out of his share in the income derived from partnership business. Further he contended that the suit of the plaintiff is barred by time. He denied the plaintiff's right to any portion of the plaint schedule property. He also asserts there is no joint family business. The business that is carried out is a partnership business. Further it is averred 21 that the plaintiff has not included the house property bearing CTS No.741-E/11 of Bijapur city and therefore, the suit of the plaintiff suffers from non inclusion of all the joint family properties. The Court fee paid is not sufficient. Suit is not properly valued. He wanted suit is to be dismissed with exemplary costs.
12. On the aforesaid pleadings the trial court has framed as many as 23 issues. However, after noticing most of the issues are unwarranted, he proceeded to recast necessary issues as under;
RECASTED ISSUES:
1. Whether plaintiff proves that after the death of Bhimanna Giraganvi the Hindu joint family consisting of plaintiff and defendants-1 to 9 was continued, If so till how long same has been continued?
2. Whether plaintiff further proves that suit properties are joint family properties of himself and defendants-1 to 12, as they were acquired out of joint family source of 22 income i.e., M/s. B.K.Giraganvi Timber and Furniture Merchant Partnership Firm?
3. Whether plaintiff further proves that he is entitled for 1/5th share in the suit schedule properties?
4. Whether defendants-1 to 4, 6 and 10 to 12 prove that suit is barred by limitation?
5. What order or decree?
13. The plaintiff in order to substantiate his claim examined himself as PW-1 and produced 50 documents, which are marked as Ex.P.1 to P.50. On behalf of the defendants, the defendant No1 was examined as DW-1 and 2nd defendant was examined as DW-2. 12th defendant Vijaylaxmi was examined as DW-3, 11th defendant Godavari was examined as DW-4 and they also produced 47 documents, which are marked as Ex.D1 to D47. The trial court on appreciation of aforesaid oral and documentary evidence on record held the suit of the plaintiff is governed by article 110 and that suit is not filed within 23 12 years from the day the right to share arose and therefore, it held the suit is barred by law of limitation. Thereafter, it proceeded to assess the evidence on record and recorded a categorical finding that there is no joint family property available for partition. The business that is being carried on is a partnership business, it is not a joint family business and therefore, the properties which are acquired in the name of other members of the family do not constitute a joint family property and therefore, it negatived the claim of the plaintiff for 1/5th share in all the plaint scheduled properties. Accordingly, the suit of the plaintiff came to be dismissed. Aggrieved by the said judgment and decree the plaintiff is in appeal.
14. The learned counsel appearing for the appellant assailing the said judgment and decree of the trial court contended that the material on record establishes that the father commenced the business of carpentry, the children assisted the father in the said 24 business. Thereafter, the business that was carried on was converted as a partnership business. It was a joint family business. It is from the income of the business all the properties, which are standing in the name of defendant Nos.1 and 2 and their family members are purchased. Admittedly, there is no partition in the family. The father died intestate and therefore, plaintiff being a member of the joint family is entitled to 1/5th share in all the plaint schedule properties which are joint family properties. Even if it is held that the partnership firm is not joint family property, the defendants admits that their father had 40% share in the partnership firm and the 40% share is in the hands of defendants No.1 and 2 to continue the very same business and out of the income of the business they have acquired the scheduled properties, they partake the character of a joint family business, joint family property and therefore, the plaintiff is entitled to a share in the suit property. He further contended that in fact, the claim of the plaintiff was 25 accepted by defendant Nos.2 and 4. The family arrangement was entered into wherein he was given a share. Acting on the said document mutation entries were changed. Because, the 1st defendant did not agree, the partition could not be amicably effected and therefore, he submits seen from any angle the finding of the trial Court that the plaintiff has failed to establish that the business is a joint family business and that the properties are of joint family properties is erroneous and requires to be set aside.
15. Per contra, the learned counsel appearing for the defendants contended that admittedly the business of carpentry was started by the father, he was the Karta of the joint family. There is no presumption in law that the business carried on by a member of a joint family be it as Karta is joint family business. Having regard to the nature of the business, it is pure labour, which was involved in the business, and father being a carpenter carried on the said business. He took the 26 assistance of sons. But once the sons were grown up i.e., defendants No.1 and 2, a partnership was constituted wherein 40% was of father and 30% each of the defendant Nos.1 and 2 because of the labour invested by them in carrying on the said business. Other members of the family, plaintiff and other defendants had no right in the said business. Therefore, the business was exclusively belongs to the partners of which the father and two sons and other members of the family had no right. After the death of the father, partnership was reconstituted and carrying on the business and they have purchased the properties in their name. 10th defendant got properties under a partition and out of the income of the said properties, she purchased several properties, they are all her self-acquired properties. Neither plaintiff nor defendants No.1 to 4 have any right. In that view of the matter, the trial court was justified in dismissing the suit of the plaintiff.
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16. In the light of the aforesaid facts and the rival contentions, the points that arise for consideration in this appeal are;
1) Whether the business carried on by the father and defendants No.1 and 2 is it a joint family business or a partnership business among three persons and consequently the properties acquired out of the income from the said business is a joint family property or properties of defendants No.1 and 2 in whose name the title is stands?
2) Whether the finding of the trial court that the suit is barred by time is justified?
17. POINT NO.1:- The evidence on record clearly establishes that Bhimanna who was a resident of Giragavi village left his ancestral place in search of employment, he came to Bijapur. He learnt carpentry. After becoming independent, he started the business in carpentry. He also started carrying on business in Timber. In fact, on 7.7.1943 he purchased RS No.65 measuring 18 acres 4 guntas, which is not the subject 28 matter of the suit. Defendant No.1 was born in the year 1940. In 1946-47 Bhimanna started carrying on the business under the name and style " B.K.Giragavi Timber and Furniture Merchant". On 6.9.1947 he purchased CTS No.41 under a registered sale deed. In 1954 he took CTS No.241/C/1 from one Desai on lease for the purpose of carrying on the saw-mill. It was in the year 1964 the plaintiff said to have joined his father in his carpentry business. Admittedly, he was with his father only for three years. Thereafter, he went in search of employment to Delhi and he was successful in getting employment. Because he was always posted outside Bijapur, he and his family members have never lived together with their father and they have been living at various places where he was posted. In 1973, a partnership firm came into existence with Bhimanna and his two sons Defendant Nos.1 and 2. According to the defendants, the share of the father was 40%, the share of each son was 30%. On 18.9.1982 1st defendant purchased CTS 51/A. On 29 8.5.1983 Bhimanna died. Thereafter, on 7.6.1983 the firm was reconstituted with Defendant Nos.1 and 2. On 25.6.1986 the brothers have purchased properties under five different sale deeds in the name of different persons. Similarly, all the subsequent acquisitions are made either in the name of Defendant Nos.1 and 2 or their family members. The evidence discloses, when Bhimanna started the business, he did not have the assistance of any joint family nucleus. It was his business, it is his self acquired business. When the sons joined their father and contributed their labour, then also there was no contribution of joint family nucleus in the said business. The entire business was started with the labour, having regard to the fact that the nature of business was carpentry. Ex.P.13 on which reliance is placed by the plaintiff to show that he also participated in the said business makes the position clear. Ex.P.13 is a certificate issued by Bhimanna on 24.02.1967 certifying that the plaintiff has been working in his workshop of furniture making 30 as a Carpenter for the last more than three years. He is able to carry out the work of making small items of furniture and other wood-works independently. He is a hard-working and sincere worker, and bears good moral character. He wished him all prospects. It is in the letterhead of B.K.Girgavi Timber & Furniture Merchant. The said document makes it clear, plaintiff neither recognized as a partner nor a member of the joint family. It does not disclose that he was working there, as a partner or member of joint family. Therefore, this document does not establish that the business carried on by his father was the joint family business. It is admitted by the defendant Nos.1 and 2 that after they were grown up, they started assisting their father in carpentry business. In other words, they gave their labour. After some time all of them decided to constitute a partnership firm. Father got 40% share and each son get 30% share each. The said status continued till the death of his father. After the death of father, firm was reconstituted with defendants 31 No.1 and 2. Though the plaintiff has pleaded that he has contributed money to the business, there is no iota of evidence on record to substantiate the said plea. When he was away on account of employment, he has not contributed labour also. Though he has stated that whenever he came to Bijapur, he was attending the business, which is not supported by any acceptable evidence on record. It is in this context, we have to necessarily look into the law. In Mulla's Hindu Law 21st edition, reprint 2012 at page 363 dealing with presumption as to business carried on by a member it is held as under;
" There is no presumption that a business carried on by a member of a joint family is a joint family business. Even if a coparcener starts a business on the joint property, with the consent of other coparceners, and the other coparceners do not make any capital contribution to such business, it is held to be not a business started by the caparceners. Nor is there any presumption that business carried on by such a member 32 in partnership with a stranger in joint family business. There is no presumption that a business standing in the name of or started by even a manager is joint family business, nor can there be a presumption that the user of joint family property for running an individual business by the kartas, would make such business by the kartas, a joint family business. More particularly when the joint family had not invested any moneys in such business, nor was there material to show that the business was in any way detrimental to the family. Therefore such a business by the kartas was his self acquisition. However, if the joint family funds are utilised in opening a new branch, then the new branch will be regarded as part of the old business."
The Apex Court in case of G. Narayana Raju (dead) by his legal representative -Vs- G.Chamaraju and others reported in AIR 1968 SUPREME COURT 1276 at para-3 it is held as under;
" It is well established that there is no presumption under Hindu Law that business 33 standing in the name of any member of the joint family is a joint business even if that member is the manager of the joint family. Unless it could be shown that the business in the hands of the coparcener 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, the business remains free and separate. The question therefore whether the business was begun or carried on with the assistance of joint family property or joint famkily funds or as a family business is a question of fact."
Again the Apex Court in the case of Chandrakant Manilal Shah and another -Vs- Commissioner of Income- tax, Bombay reported in AIR 1992 SUPREME COURT 66 dealing with the nature of contract inter se between undivided members of family held as under;
" It cannot be said that when a coparcener enters into a partnership with the Karta of a HUF and contributes only his skill and labour, no contribution of any separate asset belonging to such partner is made to meet the requirement of 34 a valid partnership. The aim of business is earning of profit. When an individual contributes cash asset to become partner of a partnership firm in consideration of a share in the profits of the firm, such contribution helps and at any rate is calculated to help the achievement of the purpose of the firm namely to earn profit. The same purpose is, undoubtedly, achieved also when an individual in place of cash asset contributes his skill and labour in consideration of a share in the profits of the firm. Just like a cash asset, the mental and physical capacity generated by the skill and labour of an individual is possessed by or is a possession of such individual. Indeed, skill and labour are by themselves possessions. "Any possession" is one of the dictionary meanings of the word ' Property'. In its wider connotation, therefore, the mental and physical capacity generated by skill and labour of an individual and indeed the skill and labour by themselves would be the property of the individual possessing them. They are certainly assets of that individual and there seems to be no reason why they cannot be contributed as a consideration for earning profit in the business of a partnership firm. They 35 certainly are not the properties of the HUF but are the separate properties of the individual concerned. It cannot be said that an undivided member of the family can qualify for a share of profits in the family business by offering moneys- either his own or those derived by way of partition from the family- but not when he offers to be a working partner contributing labour and services or much more valuable expertise, skill and knowledge for making the family business more prosperous."
18. From the aforesaid judgments it is clear, a partnership business become a joint family business provided it is shown that the said business grew up with the assistance of the joint family estate. Further, a member of the joint family can become a member of a partnership business by contributing cash or his labour. If the contribution of cash is his personal asset, then the business of partnership will not become a joint family business. Similarly, if his contribution is of labour, skill and knowledge to run the business, it is his possession, his separate property and it does not 36 partake the character of joint family business. Therefore, merely because, some of the members of the joint family formed themselves into a partnership, contributed their might either by cash or by way of labour and carried on business would not make the said business a joint family business. In order to make a partnership business a joint family business, it must be demonstrated either the said business in partnership was commenced with the resources provided by the joint family or such a business was continued with the funds provided by the joint family. In other words, the nucleus of the joint family should be provided to carry on the said business. In this background, when we look at the evidence on record, there is no evidence on record to show that the plaintiff has contributed any money either at the commencement of the partnership or at any point of time during the subsistence of the partnership to carry on the business. The father, Carpenter by profession started his business using his labour and skill. On the 37 day he started business, there was no joint family property in existence, there was no coparcenery property, there was no income of the joint family property which was used in starting the business. Whatever the income he has earned in the course of his business is his self-acquisition. If his sons contributed labour and skill with deceased, it is purely personal and that do not change the character of the said business which the father was carrying on. After the sons grown up, when they wanted to carry on the business they have formed a partnership. At the time of forming the partnership, there was no joint family property yielding income. No joint family income was utilised and the partnership was started with their labour and skills and therefore whatever the earnings made by the partners are the separate property, are the self-acquired properties of the partners. If those partners out of the income derived from the partnership business acquired the property, it is the property of those partners. It does not partake the 38 character of joint family business. When the father died and he had 40% share in the said partnership firm, no evidence on record to show that what is the value of 40% share in the partnership firm amounts to, what was the investment made in the said partnership, what was the capital, what is the extent of business, nothing is placed on record. No bank statements, statements of sales tax, returns filed to Income Tax department, invoices are produced. Nothing is placed on record. In the absence of any material to show the value of the 40% share of the father had in the partnership, merely because, father and two other sons continued the business, it cannot be said that the share of the father constituted joint family funds which are utilised by them in the reconstituted firm and thus after reconstitution, the firm has become a joint family business and the property is a joint family property. Therefore, in the light of the aforesaid legal evidence on record and the clear enunciation of law by the Apex Court it is not possible to hold that the business 39 carried on under the name and style B.K.Giragavi Timber and Furniture Merchant is not a joint family business. The trial court on careful examination of both oral and documentary evidence on record, and keeping in mind the settled legal position, has recorded a finding of fact that the partnership business is not a joint family business, and consequently the suit schedule properties are not joint family business. As the said finding is based on legal evidence, and the reasoning recorded is just and proper, no case for interference with the said finding is made out.
19. It is pointed out that there was a family arrangement between plaintiff and defendant Nos.2, 3 and 4 under which they agreed to give 40% share to the plaintiff in one property, that shows the existence of joint family properties. In the first place, the original document is not before the Court. No foundation is laid to lead the secondary evidence. What is before the Court is a xerox copy of the said agreement. 1st 40 defendant is not a party to the said agreement. It is not registered. Therefore, the trial court rightly rejected the same. It is on the basis of the said document-Ex.P31 mutation entry was made. Mutation entry is not a document of title. Ex.P.19 do not confer any right on the plaintiff. Ex.P.32 mutation entry does not confer any title on the plaintiff nor it establishes joint family and rightly the trial court was justified in rejecting the said piece of evidence.
20. That leads us to the question that if the property left by deceased Bhimanna is his self- acquired property, how does it devolve. After his death that property would devolve under Section 8 of the Hindu Succession Act. It is submitted the said property was gifted away by his father during his lifetime as per Ex.D12 and D23 by way of a registered gift deed in favour of Defendant Nos.1 and 2, as there was a mistake in survey number instead of 41 it was shown as 40. Subsequently, Ex.D13 amended gift 41 deed was made. It only shows the father during his lifetime acquired the property and gifted the property in favour of defendant Nos.1 and 2 and that property was not a joint family property. If that property was not a joint family property and it is the self-acquired property of father he gifted the property in favour of defendant Nos.1 and 2. Certainly there is no material on record to show that this joint family ever had any joint family property. For the aforesaid reasons, we are satisfied that the finding recorded by the trial court that the plaintiff has failed to establish that the business and the suit schedule properties are joint family properties is correct and do not call for any interference.
21. POINT NO.2:- When the joint family property is not in existence, Article 110 of the Limitation Act applies only to a case filed by a member of the joint family who has been excluded from a joint family property to enforce a right to share therein. In other 42 words, if a member of joint family ousted from joint family, such a member shall file suit within 12 years from the date of exclusion. Otherwise, the suit is bad. Unfortunately, the trial judge decided the issue of limitation first and then decided the case on merits. Article 110 of Limitation Act is not attracted and it cannot be said that suit is barred by limitation. Therefore, the said finding recorded by the trial judge is erroneous, accordingly it is set aside. In view of the aforesaid facts, question of limitation does not arise on the suit.
22. For the aforesaid reasons, we did not see any merit in the appeal. Accordingly the appeal is dismissed. Parties to bear their own cost.
Sd/-
JUDGE Sd/-
JUDGE NSP