Gujarat High Court
Babulal Somchand Shah vs Suresh Babulal Shah on 13 August, 2025
NEUTRAL CITATION
C/FA/173/2004 JUDGMENT DATED: 13/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 173 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting Yes No
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BABULAL SOMCHAND SHAH & ORS.
Versus
SURESH BABULAL SHAH & ORS.
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Appearance:
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Appellant(s) No. 4
DELETED for the Appellant(s) No. 1
MR LALJI R MOKARIA(3085) for the Appellant(s) No. 4.1,4.2,4.3
MR RJ GOSWAMI(1102) for the Appellant(s) No. 3
MR DIVYA VORA FOR MR SATYAM Y CHHAYA(3242) for the Appellant(s)
No. 2
MR HD CHUDASAMA(234) for the Defendant(s) No. 1,3
RULE SERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 13/08/2025
ORAL JUDGMENT
1. Present appeal is filed by the appellants - original defendants under Section 96 of the Civil Procedure Code, 1908 against the judgment and order dated 24.12.2003 passed by the learned Civil Judge (S.D.), at Ahmedabad (herein after referred to as "the trial court") in Civil Suit No.4456 of 1990, whereby the learned Judge has decreed the suit in favour of the original plaintiff - respondent No.1 herein.
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2. The brief facts leading to present appeal in nut-shell are as under :
2.1 That, the respondent Nos.1 and 3 and appellant Nos.2 and 3 are the grandsons of one Somchand Harjivandas.
Likewise, the appellant No.3 is the grand-daughter of Somchand Harjivandas. It is the case of the respondent No.1 that Somchand Harjivandas left behind him movable and immovable properties which were received by appellant No.1 herein who is the son of Somchand Harjivandas and the father of the respondent Nos.1 and 3 and appellant Nos.2 and 3. It is stated that one of the immovable properties which was left by Somchand Harjivandas was a property bearing Gram Panchavat No.548 situated in village Ognaj, Ta. Daskroi, Dist.:
Ahmedabad. That, the said property was sold by the appellant No.1 on 25.04.1958 by registered sale deed No.2474 to one Sankalchand Maganlal Patel and out of the said sale proceeds, the appellant No.1 purchased the bunglow No.2 (hereinafter referred to as "the suit property") situated in the respondent No.2 Sripalnagar Cooperative Housing Society. That, the said bunglow was, therefore, an ancestral property.
2.2 It is stated by the respondent No.1 in the plaint that the appellant No.1 either by executing a Will or by other mode had tried to get the said property recorded or transferred in the name of appellant No.2 in the record of the Society and if the appellant No.1 succeeds in doing so, respondent No.1's share in the said property would be adversely affected. The suit was, therefore, filed by the respondent No.1 for the aforesaid reliefs.Page 2 of 23 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 02 2025 Downloaded on : Fri Sep 05 22:59:00 IST 2025
NEUTRAL CITATION C/FA/173/2004 JUDGMENT DATED: 13/08/2025 undefined 2.3 The written statements were filed by the appellant No.1 Exh.33, by the appellant Nos.2, 4 and respondent No.3 at Exh.29 and by the appellant No.3 at Exh.16.
2.4 In the written statement, the basic contention raised by the appellant No.1 was that, the suit property was his self- acquired property. That, he became the member in Sripalnagar Society in 1956 and he purchased 5 share certificates bearing No.8 in that Society on 18.01.1956 and thereafter, in 1956-57, he spent huge amount and constructed the basement as well as ground floor in the said society. That, he obtained finance of Rs.10,700-00 from the Housing Finance Society etc., the monthly installment of which was Rs.72-00 which he had paid. That, the possession of some portion of constructed property was given to him and he let out that portion and he used to pay the monthly installment out of the rentals received by him. That, the appellant No.1 thus self-acquired the aforesaid bunglow and he had not used any other income to purchase the said bunglow. It was also stated by him that the ancestral property which was situated at Ognai village, was sold away by him in the year 1958 for the benefit of the family by a sale deed and the sale proceeds thereof were used by him for the benefit of the family.
2.5 That, after considering the pleadings of both the sides, the trial court had framed the issues referred in para-10, the same were answered in para-15. After considering the oral as well as documentary evidence led before the trial court in the nature of oral evidence of the respondent No.1 at Exh.-68, oral Page 3 of 23 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 02 2025 Downloaded on : Fri Sep 05 22:59:00 IST 2025 NEUTRAL CITATION C/FA/173/2004 JUDGMENT DATED: 13/08/2025 undefined evidence of the appellant No.1 at Exh.-77 and oral evidence of the respondent No.3 at Exh.-85 and the documentary evidence in the nature of registered sale deed No.2474-1958 Exh.-70 produced by the respondent No.1 herein and after considering the decisions referred and relied upon by both the sides, the trial court has allowed the suit and passed the decree in favour of the respondent No.1 - original plaintiff and declared that the respondent No.1 is entitled to 1/5th share in the suit property vide its judgment and decree dated 24.12.2003.
3. Being aggrieved and dissatisfied with the aforesaid judgment and decree dated 24.12.2003, the appellants have preferred the present appeal.
4. Heard learned advocate Mr. Divya Vora, appearing on behalf of Mr. Satyam Chhaya, learned advocate for the appellant No.2, learned advocate Mr. R.J. Goswani, for the appellant No.3 and learned advocate Mr. Lalji Mokaria, appearing for the appellant Nos.4.1, 4.2 and 4.3 - original defendants and learned advocate Mr. H.D. Chudasama, appearing for the respondent Nos.1 (original plaintiff) and 3 (original defendant No.6).
Though served, none has remained present on behalf of the respondent No.2 - Sripalnagar Cooperative Housing Society Ltd.
5. Learned advocate Mr. Vora for the appellant No.2 - original defendant No.2 has submitted that the impugned judgment and order passed by the trial court is contrary to law, Page 4 of 23 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 02 2025 Downloaded on : Fri Sep 05 22:59:00 IST 2025 NEUTRAL CITATION C/FA/173/2004 JUDGMENT DATED: 13/08/2025 undefined facts and evidence on record. He has submitted that the trial court has committed a serious error of law and on facts while passing the impugned judgment and order. He has submitted that the trial court has passed the impugned judgment and order without considering the fact that the suit was filed only with a prayer for partition and permanent injunction without seeking prayer of possession or any ancillary prayer made therein and therefore, the impugned judgment and order passed by the trial court is bad in law and the suit itself is not tenable in the eye of law. He has further submitted that the suit property was a self acquired property of the appellant No.1 after availing financial assistance from the Housing Finance Society, for which, the appellant No.1 had paid installments from the rental income. He has further submitted that the suit property was purchased by the appellant No.1 in the year 1956 by way of purchasing 5 share certificates bearing No.8 from the Sripalnagar Society and thereafter, in 1956-57, the appellant No.1 had constructed bunglow upon the said plot of land and thus, the suit property was not an ancestral property but, it was a self acquired property and therefore, the respondent no.1 - original plaintiff has no right to seek partition in the suit property. He has further submitted that sale proceeds of the ancestral property was also used for the benefit of the family and therefore, the suit property cannot be considered as an ancestral property and thus, the respondent No.1 - original plaintiff cannot seek partition in the suit property. He has further submitted that though the burden of proof always lies upon the respondent No.1 - original plaintiff to prove that the suit property was an ancestral property and Page 5 of 23 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 02 2025 Downloaded on : Fri Sep 05 22:59:00 IST 2025 NEUTRAL CITATION C/FA/173/2004 JUDGMENT DATED: 13/08/2025 undefined not a self acquired property, however, without considering the said aspect the trial court has passed the impugned judgment and order which is bad in law, illegal and unjust. He has also submitted that the trial court has committed a grave error while drawing adverse inference against the appellant No.1 that it is for the appellant No.1 to prove the sale deed in respect of the suit property from the self acquired income and not from the ancestral property. Learned advocate Mr. Vora has referred to the decisions cited before the trial court rendered in case of Ram Saran and another, appellants vs. Smt. Ganga Devi, Respondent, reported in AIR 1972 SC 2685 and in case of Navalram Laxmidas Devmurari vs. Vijayaben Jayantibhai Chavda, reported in [1994] 2 GLR 1755 is support of his submissions. Over and above the grounds agitated in the memo of appeal, learned advocate Mr. Vora has urged that the impugned judgment and order passed by the trial court is erroneous, illegal and unjust and the same is required to be quashed and set aside and the present appeal be allowed.
5.1 Learned advocates Mr. R.J. Goswami and Mr. Lalji Mokharia, appearing for the respective appellants - original defendants, have submitted that if the decree issued by the trial court in favour of the respondent No.1 - original plaintiff be implemented, then they have no objection as such they have supported the case of the respondent No.1. Even the respondent No.3 - original defendant No.6 has also supported the case of the respondent No.1.
6. Per contra, learned advocate Mr. H.D. Chudasama, Page 6 of 23 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 02 2025 Downloaded on : Fri Sep 05 22:59:00 IST 2025 NEUTRAL CITATION C/FA/173/2004 JUDGMENT DATED: 13/08/2025 undefined appearing for the respondent No.1 - original plaintiff, has vehemently opposed the present appeal and submitted that the fact that the Ognaj property was ancestral property and it was sold by the appellant No.1 in 1958 and sale proceeds thereof were received by him in the year 1958 itself, are proved by the respondent plaintiff by way of admission by the appellant No.1 and therefore, it was for the appellant No.1 who had special knowledge as regards the facts and circumstances under which he purchased the suit property, to produce and prove the sale deed in respect of the suit property and since he has not done so, an adverse inference was drawn against him. He has submitted that although the appellant No.1 had come out with the case that he used the sale proceeds of the Ognaj property for the family benefit, he had not proved as to for what benefit the said sale proceeds were used by him. It is argued that the contention of the appellant No. 1 that he came to reside in the suit property in 1956 is a hollow claim inasmuch as, his cross examination indicates that he did not remember the dates whereas he had claimed to have remembered the fact that in the year 1956 he came to reside in the suit property. He has submitted that in his testimony, the appellant No.1 has stated that he incurred funeral expenses out of the said sale proceeds of the Ognaj ancestral property or that as per his say, the said amount was utilised for religious purpose whereas such contentions of the appellant No.1 were totally absent in his written statement. He has submitted that the appellant No.1 has admitted that for the first time he came to Ahmedabad in 1958 for business purpose and therefore, it must be held that it is only in the year 1958 Page 7 of 23 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 02 2025 Downloaded on : Fri Sep 05 22:59:00 IST 2025 NEUTRAL CITATION C/FA/173/2004 JUDGMENT DATED: 13/08/2025 undefined that he occupied the suit property for the first time and thus it was only after the sale of Ognaj property that the suit property acquired by him out of such sale proceeds. He has submitted that the appellant No.1 in his evidence, has stated that the accounts were eaten up by termites and thus it appears that he was not ready and willing to produce the account in respect of sale proceeds of Ognaj property. He has also submitted that the appellant No.1 has failed to produce the loan documents. He has submitted that the appellant No.1 had also not proved as to what other income he had, over and above the rental income and therefore also, his case be not accepted.
6.1 Learned advocate Mr. Chudasama has submitted that the trial court after considering the oral as well as the documentary evidence and after considering the facts of the case has rightly passed the impugned judgment and order in favour of the respondent - plaintiff. He has further submitted that the trial court after considering the provisions of Section 34 of the Specific Relief Act alongwith the proviso of Section 34 (repealed Act section 42) and after considering the decisions of the Hon'ble Apex Court has rightly passed the impugned judgment and order in favour of the respondent - plaintiff and there is no any infirmity or any illegality in the impugned judgment and order passed by the trial court and thus, no interference is required to be called for in the present appeal and the present appeal may be dismissed and the impugned judgment and order passed by the trial court be confirmed. Learned advocate Mr. Chudasama has referred to the decisions cited before the trial court rendered in case of Appalaswami, Page 8 of 23 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 02 2025 Downloaded on : Fri Sep 05 22:59:00 IST 2025 NEUTRAL CITATION C/FA/173/2004 JUDGMENT DATED: 13/08/2025 undefined Appellant vs. Suryanarayanamurli and others, Respondents, reported in AIR (34) 1947 Privy Council 189 and in case of Gopal Krishnaji Ketkar, Appellant vs. Mohamed Haji Latif & Others, Respondents, reported in AIR 1968 SC 1413.
7. I have heard the learned advocates appearing for the respective parties and perused the material placed on record. Before dwelling into the merits of the matter, it is required to be noted herein that the appellant No.1 - original defendant No.1 passed away during the pendency of the present appeal and therefore, his name has been deleted from the cause-title, however, the son and daughter of appellant No.1 being appellant Nos.2 and 3 respectively are already on record. Moreover, appellant No.4 also died during the pendency of the appeal and his legal heirs being appellant Nos.4.1 to 4.3 have been brought on record.
8. It appears from the record that the suit was filed by the respondent No.1 - original plaintiff for partition and permanent injunction and as he had not sought the relief of possession and therefore, the suit was maintainable or not, such contention was not raised before the trial court, however, the trial court has considered the same as a preliminary issue and therefore, the issue involved in the present appeal is that whether the trial court has committed any error while passing the impugned judgment and order in favour of the respondent No.1 or not, whether the trial court while appreciating the evidence led by the parties has committed any error in interpreting the same while passing the impugned judgment Page 9 of 23 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 02 2025 Downloaded on : Fri Sep 05 22:59:00 IST 2025 NEUTRAL CITATION C/FA/173/2004 JUDGMENT DATED: 13/08/2025 undefined and order or not.
9. On perusal of the Record & Proceedings and the paper- book received by the Court and on scrutiny and after examining the facts of the case, it appears that though there was no pleadings by either side with regard to the possession and without seeking relief for possession of the property merely for partition and declaration, the suit was maintainable or not. For that, the trial court in para-17 of the impugned judgment has, after considering the facts and after considering the provisions of Section 34 of the Specific Relief Act alongside the decisions of the Hon'ble Apex Court rendered in case of Ram Saran and another vs. Ganga Devi, reported in AIR 1972 SC 2685 and in case of Navalram Laxmidas Devmurari vs. Vijayaben Jayantibhai Chavda, reported in [1997] 2 GLR 1755, rightly come to the conclusion that inspite of specific relief for possession was not made in the plaint, the suit is maintainable and after detailed discussion, the trial court has come to the conclusion that in the present case, the right to share of the property is involved, the right to share is a substantial right which can stand independently and since the appellants have not dispossess the respondent No.1 and since the appellant No.1 was in possession of the property, the question of seeking relief in nature of possession shall not come in the way of the respondent No.1 and the trial court has rightly held that the suit is maintainable even in absence of the relief for possession in the plaint.
9.1 So far as the issue with regard to the fact that the
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NEUTRAL CITATION
C/FA/173/2004 JUDGMENT DATED: 13/08/2025
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appellant No.1 had sold the ancestral property situated at village Ognaj bearing Gram Panchayat No.548 by way of registered sale deed No.2474 on 25.04.1958 to the tune of Rs.4,851.00 is concerned, out of the said amount, Rs.1,001.00 was paid by the vendee to the vendor on 02.02.1958 and rest of the amount was paid when the sale deed was executed and thus, the appellant No.1 received entire sale consideration in the year 1958, and with the said amount the appellant No.1 had purchased the suit property. To controvert the said fact, the appellant had not produced any evidence to show that it was a self acquired property as has been claimed. On the contrary, the copy of the sale deed at Exh.-70 was produced by the respondent No.1 - original plaintiff, however, at the time of execution of said sale deed, the age of the respondent No.1 - original plaintiff was only 2 years, meaning thereby that, the plaintiff was born before the sale of the suit property situated at village Ognaj and thus, he is a co-sharer of the ancestral property. Thus, after considering the facts and after considering the oral as well as the documentary evidence led before the trial court and after considering the provisions of Sections 114(g) and 103 of the Evidence Act, the trial court has rightly considered the submissions canvassed by the respondent No1 - original plaintiff while passing the impugned judgment and order. The trial court has also considered the fact that the respondent No.1 has proved initial facts and therefore, the burden was shifted upon the defendant No.1 - appellant No.1 herein to prove the fact that the suit property was not an ancestral property but, it was a self acquired property, which was not proved by the appellant No.1 by Page 11 of 23 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 02 2025 Downloaded on : Fri Sep 05 22:59:00 IST 2025 NEUTRAL CITATION C/FA/173/2004 JUDGMENT DATED: 13/08/2025 undefined producing any cogent and material evidence to dislodge the claim of the respondent No.1. It is also required to be noted herein that the trial court in para-23 to 27 of the impugned judgment and decree has considered the fact that the respondent No.1 plaintiff has proved his case that he is the coparcener / co-sharer and the suit property was purchased from the sale consideration received by selling the property situated at village Ognaj and thus, the trial court has after considering the facts and after examining the evidence of the witnesses has rightly passed the impugned judgment and decree in favour of the respondent No.1 plaintiff. The trial court after considering legal provisions and the authorities cited before it has passed the impugned judgment and decree, which is in consonance with the settled legal principles and has not committed any error while passing the impugned judgment and decree.
9.2 At this juncture, it would be fruitful to refer to the provisions of Section 6 of the Hindu Succession Act, 1956 which is reproduced hereunder :
Section 6. Devolution of interest in coparcenary property. --
(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,--
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:Page 12 of 23 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 02 2025 Downloaded on : Fri Sep 05 22:59:00 IST 2025
NEUTRAL CITATION C/FA/173/2004 JUDGMENT DATED: 13/08/2025 undefined Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,--
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter;
and
(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre- deceased son or a pre-deceased daughter, as the case may be.
Explanation. -- For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained Page 13 of 23 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 02 2025 Downloaded on : Fri Sep 05 22:59:00 IST 2025 NEUTRAL CITATION C/FA/173/2004 JUDGMENT DATED: 13/08/2025 undefined in this sub-section shall affect--
(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.
Explanation. -- For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.
(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004. Explanation. -- For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.
9.3 It would also be fruitful to refer to Section 34 of the Specific Relief Act, 1963 which is reproduced hereunder :
34. Discretion of court as to declaration of status or right.--
Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Explanation.--
A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee.
9.4 It would also be appropriate to refer to the recent decision of the Hon'ble Apex Court rendered in case of Angadi Page 14 of 23 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 02 2025 Downloaded on : Fri Sep 05 22:59:00 IST 2025 NEUTRAL CITATION C/FA/173/2004 JUDGMENT DATED: 13/08/2025 undefined Chandranna vs. Shankar, reported in [2025] 3 GLH 232, wherein, the Hon'ble Apex Court had an occasion to consider the issue relating to the ancestral property versus self-
acquired property and has observed and held as under :
Head Note (b) Hindu Succession Act, 1956 - ancestral property vs self-acquired property - dispute regarding characterization of suit property as ancestral or self-acquired -plaintiffs claimed it was acquired using joint family funds while defendant asserted it was self-acquired - Held, after partition under registered deed, properties allotted to parties became their self-acquired properties; thus suit property purchased by Defendant No.1 from his brother was validly sold to Defendant No.2 as self-acquired property with no legal necessity for consent from plaintiffs.
Head Note (c) Hindu Law - doctrine of blending - applicability of doctrine regarding blending of self-acquired property into joint family pool raised by plaintiffs - Held, mere use or enjoyment by family members does not imply abandonment of separate rights; plaintiffs failed to prove that suit property was acquired from joint family nucleus or blended with joint family properties; hence it remained Defendant No.1's self-acquired property.
Head Note (d) Hindu Law - burden of proof in partition suits - determination on who bears burden to prove nature of property in partition suits - Held, party asserting that a property is joint family must prove its character; absence of evidence supporting claims made by plaintiffs led to conclusion that suit property was indeed self-acquired by Defendant No.1.
Head Note (e) Code of Civil Procedure, 1908 - S. 103 - power to determine issues of fact - court's authority to determine factual issues in second appeals questioned Held, High Court erred in exercising jurisdiction under S. 103 without proper findings on substantial questions; First Appellate Court had adequately addressed all relevant evidence and facts.
13. Further, it is a settled principle of law that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, then there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available. That apart, while considering the term 'nucleus' it should always be borne in mind that such nucleus has to be established as a matter of fact and the existence of such Page 15 of 23 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 02 2025 Downloaded on : Fri Sep 05 22:59:00 IST 2025 NEUTRAL CITATION C/FA/173/2004 JUDGMENT DATED: 13/08/2025 undefined nucleus cannot normally be presumed or assumed on probabilities.
This Court in R.Deivanai Ammal (Died) v. G. Meenakshi Ammal12, dealt with the concept of Hindu Law, ancestral property and the nucleus existing therein. The relevant paragraphs are extracted below for ready reference:
"13. First let us consider the nature of the suit properties, namely, self-acquired properties of late Ganapathy Moopanar or ancestral properties and whether any nucleus was available to purchase the properties. Under the Hindu Law it is only when a person alleging that the property is ancestral property proves that there was a nucleus by means of which other property may have been acquired, that the burden is shifted on the party alleging self-acquisitions to prove that the property was acquired without any aid from the family estate. In other words the mere existence of a nucleus however small or insignificant is not enough. It should be shown to be of such a character as could reasonably be expected to lead to the acquisition of the property alleged to be part of the joint family property. Where the doctrine of blending is invoked against a person having income at his disposal and acquiring property, the reasonable presumption to make is that he had the income at his absolute disposal unless there is evidence to the contrary. If a coparcener desires to establish that a property in the name of a female member of the family or in the name of the manager himself has to be accepted and treated as property acquired from the joint family nucleus, it is absolutely essential that such a coparcener should not only barely plead the same, but also establish the existence of such a joint family fund or nucleus. Even if the joint family nucleus is so established, the prescription that the accretions made by the manager or the purchases made by him should be deemed to be from and out of such a nucleus does not arise, if there is no proof that such nucleus of the joint family is not an income-yielding apparatus. The proof required is very strict and the burden is on the person who sets up a case that the property in the name of a female member of the family or in the name of the manager or any other coparcener is to be treated as joint family property. There should be proof of the availability of such surplus income or joint family nucleus on the date of such acquisitions or purchases. The same is the principle even in the cases where moneys were advanced on mortgages over immoveable properties. The onus is not on the acquirer to prove that the property standing in his name was purchased from joint family funds. That may be so, in the case of a manager of a joint family, but not so in the case of all coparceners. For a greater reason it is not so in the case of female members.
14. The doctrine of blending of self-acquired property with Page 16 of 23 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 02 2025 Downloaded on : Fri Sep 05 22:59:00 IST 2025 NEUTRAL CITATION C/FA/173/2004 JUDGMENT DATED: 13/08/2025 undefined joint family has to be carefully applied with reference to the facts of each case. No doubt it is settled that when members of a joint family by their joint labour or in their joint business acquired property, that property, in the absence of a clear indication of a contrary intention, would be owned by them as joint family property and their male issues would necessarily acquire a right by birth in such property. But the essential sine qua non is the absence of a contrary intention. If there is satisfactory evidence of an intention on the part of the acquirer such property to treat it as his own, but not as joint family property, the presumption which ordinarily arises, according to the personal law of Hindus that such property would be regarded as joint family property, will not arise.
15. It is a well-established principle of law that where a party claims that any particular item of property is joint family property, the burden of proving that it is so rests on the party asserting it. Where it is established or admitted that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the presumption arises that it was joint property and the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family. But no such presumption would arise if the nucleus is such that with its help the property claimed to be joint could not have been acquired. In order to give rise to the presumption, the nucleus should be such that with its help the property claimed to be joint could have been acquired. A family house in the occupation of the members and yielding no income could not be nucleus out of which acquisitions could be made even though it might be of considerable value.
16. In a Hindu joint family, if one member sues for partition on the foot that the properties claimed by him are joint family properties then three circumstances ordinarily arise. The first is an admitted case when there is no dispute about the existence of the joint family properties at all. The second is a case where certain properties are admitted to the joint family properties and the other properties in which a share is claimed are alleged to be the accretions or acquisitions from the income available from joint family properties or in the alternative have been acquired by a sale or conversion of such available properties. The third head is that the properties standing in the names of female members of the family are benami and that such a state of affairs has been deliberately created by the manager or the head of the family and that really the properties or the amounts standing in the names of female members are properties of the joint family. While considering the term 'nucleus' it should always be Page 17 of 23 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 02 2025 Downloaded on : Fri Sep 05 22:59:00 IST 2025 NEUTRAL CITATION C/FA/173/2004 JUDGMENT DATED: 13/08/2025 undefined borne in mind that such nucleus has to be established as a matter of fact and the existence of such nucleus cannot normally be presumed or assumed on probabilities. The extent of the property, the income from the property, the normal liability with which such income would be charged and the net available surplus of such joint family property do all enter into computation for the purpose of assessing the content of the reservoir of such a nucleus from which alone it could, with reasonable certainty, be said that the other joint family properties have been purchased unless a strong link or nexus is established between the available surplus income and the alleged joint family properties. The person who comes to Court with such bare allegations without any substantial proof to back it up should fail.
17. It is also a well-established doctrine of Hindu Law that property which was originally self-acquired may become joint property if it has been voluntarily thrown by the coparcener into the joint stock with the intention of abandoning all separate claims upto it. But the question whether the coparcener has done so or not is entirely a question of fact to be decided in the light of all the circumstances of the case. It must be established that there was a clear intention on the part of the coparcener to waive his separate rights and such an intention will not be inferred from acts which may have been done from kindness or affection. The important point to keep in mind is that the separate property of a Hindu coparcener ceases to be his separate property and acquires the characteristics of his joint family or ancestral property, not by mere act of physical mixing with his joint family or ancestral property, but by his own volition and intention by his waiving or surrendering his special right in it as separate property. Such intention can be discovered only from his words or from his acts and conduct."
17. It cannot be disputed that the properties divided among Defendant No.1 and his brothers through partition deed dated 09.05.1986, are joint family properties. However, as per Hindu law, after partition, each party gets a separate and distinct share and this share becomes their self-acquired property and they have absolute rights over it and they can sell, transfer, or bequeath it as they wish. Accordingly, the properties bequeathed through partition, become the self- acquired properties of the respective sharers.
19. As reiterated above, after the joint family property has been distributed in accordance with law, it ceases to be joint family properties and the shares of the respective parties become their self-acquired properties. Hence, the suit property acquired by Defendant No.1 became his self-acquired property, on being sold by his brother Thippeswamy to him, vide sale deed dated 16.10.1989.
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It is the contention of the plaintiffs that the suit property was purchased by Defendant No.1 using family nucleus and thus, should be considered as ancestral property. Whereas, the defence raised was that Defendant No.1 acquired the suit property with the aid of his own funds and loan obtained from DW3- Narasimhamurthy. DW1- Chandrashekar clearly stated in his deposition that Defendant No.1 obtained a loan from DW3, out of which, he purchased the suit property and that he repaid the loan amount through a sale deed executed in respect of 4 acres of land to DW3 and out of the balance amount, he performed his daughter's marriage. It was also stated by DW1 that apart from the suit property, Defendant No.1 had various lands and a house as well. DW2 Lakshmanappa stated in his evidence that he had signed the partition deed (Ex. P1) executed among Defendant No.1 and his brothers in 1986; and he denied the payment of Rs.10,000/- to the share of Defendant No.1. He further deposed that Thippeswamy, elder brother of Defendant No.1, residing in Bangalore, sold his share to Defendant No.1 as he was unable to look after the same. His evidence also establishes that Defendant No.1 obtained loan from DW3 and he sold his land to him for repayment of the said loan in 1993 by executing a sale deed (Ex. D1), in which, DW2 was a witness; and at that time, the wife and children of Defendant No.1 were present. DW3 - Narasimhamurthy in his evidence, stated that Defendant No.1 obtained loan from him for purchase of land of his brother, in October 1989 and he repaid the same by selling his 4 acres of land to him in 1993; and at the time of execution of sale deed by Defendant No.1 to DW3, his wife and children were present. It is the evidence of DW4 - Linganna that Defendant No.1 executed a sale deed in favour of DW3 in respect of 4 acres of land, for the repayment of loan borrowed by him and DW4 was the witness to the said document. He also categorically stated that Defendant No.1 had purchased about 7 acres of land, after obtaining loan from DW3 and prior to the execution of sale deed in favour of DW3. It is categorically stated in the sale deed dated 11.03.1993 that the suit property was a self-acquired property of Defendant No.1. The sale deed (Ex.P2) does not anywhere disclose that the suit property purchased by Defendant No.1 was ancestral property or was purchased from the income received from the joint family property, except for a mere reference to the partition deed (Ex. P1), which according to us, is not sufficient to come to a conclusion that the properties allotted to the share of Defendant No.1 should also be treated as joint family properties, and no evidence was let in by the plaintiffs to prove that the other properties allotted to Defendant No.1 yielded income and that it was only from that entire income that the suit property was purchased. No records have been produced in this regard. Though PW2 stated that during the partition, all the three brothers were allotted Rs.10,000/- each, there was no recital to that effect in the partition deed (Ex. P1) and hence, it cannot be believed. It is well established that the contents in a document would prevail over any contrary oral evidence. Regarding the contention that Mallamma had sold her property in Page 19 of 23 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 02 2025 Downloaded on : Fri Sep 05 22:59:00 IST 2025 NEUTRAL CITATION C/FA/173/2004 JUDGMENT DATED: 13/08/2025 undefined order to help Defendant No.1 to purchase the suit property, except the statement of PW2, there is no evidence in this regard. Further, the said Mallamma was not examined and the sale deed executed by her was not produced to substantiate the same. It is also clear from the depositions on the defendants' side that Defendant No.1 was not having any bad habits and his wife and children were present, at the time of execution of the sale deed. Whereas, there were inconsistencies in the statements of PW1 and PW2 in demonstrating that the suit property was an ancestral property. The mere existence of sons and daughters in a joint Hindu family does not make the father's separate or self- acquired property as joint family property. It was also the claim of the defendants that Defendant No.1 performed the marriage of his daughter with the funds received as sale consideration, which according to us, is the role of a Kartha, and therefore, has to be treated as act of necessity and duty. This fact has not been objected to by the plaintiffs.
19.1. It is also to be mentioned here that when the income derived from the joint family property or when a joint family property is sold and the sale consideration is utilised for maintenance and education within the joint family, the same are to be treated as out of necessity as it is the duty of every Kartha to do so. Hence, it is sufficient to satisfy the legal necessity if the Kartha had sold the property and used the funds for upbringing the children. That apart, under the customary practices and tradition in this country, it is the father who performs the marriage of his children and therefore, the expenses incurred for that purposes are also to be treated as expenses out of necessity. 19.2. At the cost of repetition, the property in dispute is the property purchased by Defendant No.1 from his brother C. Thippeswamy. The High Court rather than ascertaining as to how this property was acquired, it erroneously went into a fact- finding inquiry in the Second Appeal regarding the property received by Defendant No.1 under a Will, a narration of which is found in the recital of the partition deed. The High Court even failed to notice that the partition took place in 1986, whereas, the suit property was purchased only in 1989. This deviation, in our view, has further contributed to the miscarriage of justice. That apart, the High Court ought not to have relied upon disproved circumstances claimed by the plaintiffs against Defendant No.1 alleging that he alienated another property to presume that the suit property was also sold under similar circumstances. In fact, the said sales were not challenged by the plaintiffs. Thus, taking note of the facts and circumstances of the case and also the principles enunciated in the above decisions, in our considered opinion, Defendant No.1 acquired the suit property out of the loan obtained from DW3 and not from the income derived from the nucleus funds or joint family funds, and hence, the suit property should be considered as his self-acquired property. As such, Defendant No.1 has the right to sell the suit property and accordingly, the sale deed executed by him in favour of Defendant No.2 is perfectly valid. That apart, the evidence on record also displays that the object of the Page 20 of 23 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 02 2025 Downloaded on : Fri Sep 05 22:59:00 IST 2025 NEUTRAL CITATION C/FA/173/2004 JUDGMENT DATED: 13/08/2025 undefined sale of the suit property was for the benefit of the family and therefore, we also disagree with the findings of the High Court on this aspect."
9.5 It is also fruitful to refer to one another recent decision of the High Court of Patna rendered in case of Kauleshwar Pd. Singh vs. Pamila Devi D/o Late Baleshwar Prasad Singh, reported in [2025] 0 AIJEL-PT 1761362, wherein, it has been observed and held as under :
Head Note (a) Hindu Succession Act, 1956 - Partition - Joint Hindu Family governed by Mitakshara School of Hindu Law appeal against preliminary decree for partition of joint family property - plaintiffs sought 1/3rd share in joint family property, asserting unity of title and possession, while defendants claimed prior partition and separate ownership of certain properties - held that the trial court found unity of title and possession over the suit properties, rejecting claims of prior partition by defendants - preliminary decree for partition was affirmed, granting 1/3 rd share to plaintiffs and co- plaintiffs, with costs borne by parties - appeal dismissed.
Head Note (c) Evidence Act, 1872 - Burden of Proof - contention regarding acquisition of property as self-acquired versus joint family property - defendants claimed part of land purchased was self- acquired using tilak money - held that burden lay on defendants to prove that the property was self-acquired; evidence indicated that funds used for purchase were derived from joint family resources; thus the land remained joint family property.
23. The law is well settled that only those acquisition would be self-
acquisitions which are acquired "without detrimental" to the joint family property. As a corollary, all acquisitions made by a coparcener with the aid of the joint family property or funds are part of the family property. The initial burden is on the plaintiff to show that there was a sufficient nucleus which yielded very large income and it was from and out of the said surplus, the properties that stand in the name of members of the family were acquired. The Hon'ble Supreme Court in D.S. Lakshmaiah & Anr. vs. L. Balasubramanyam & Anr. reported in 2003 (10) SCC 310 set out the legal position in para 18 as follows:
"18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property Page 21 of 23 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 02 2025 Downloaded on : Fri Sep 05 22:59:00 IST 2025 NEUTRAL CITATION C/FA/173/2004 JUDGMENT DATED: 13/08/2025 undefined being joint and onus would shift on the person who Patna High Court FA No.254 of 1987 dt. 21-03-2025 claims it to be self acquired property to prove that he purchased the property with his own fund and not out of joint family nucleus that was available."
24. It is the case of defendant no.2 that purchase of 9 bigha 16 katha land from Syed Md. Kadri vide registered sale deed dated 29.06.1956 in the name of defendant no.2 and plaintiff no.1 was on payment of Rs.5,000/- out of which Rs.2,500/- was paid from Tilak money of defendant no.2 and other half amount of the joint family fund. He had not joined in the execution of the sale deed dated 30.12.1956 with respect to 1½ bigha of purchased land and 5 katha of other land as his half share in the aforesaid purchased land was his self acquired property.
25. As the plaintiffs have come up with the case that the said property is joint family property even though it stands in the name of defendant no.1 and plaintiff no.1 as the same was purchased through the joint family fund, the onus is on plaintiffs that the ancestral properties were available, ancestral properties derived income and from the income so derived, there was surplus, sufficient enough to purchase the property. Unless these foundational facts are established and the plaintiffs discharges the burden, the onus will not shift on the defendants to prove the contrary."
9.6 It is also appropriate to refer to the decision of the Hon'ble Apex Court rendered in case of Madhusudan Das Vs. Narayanibai (deceased) through LRs. and Ors., reported in [1983] 1 SCC 35, wherein, is has been observed and held as under :
"8. ....In an appeal against a trial court decree, when the appellate court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate court should permit the findings of fact rendered by the trial court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies. The principle is one of practice and governs the weight to be given to a finding of fact by the trial court. There is, of course, no doubt that as a matter of law if the appraisal of the evidence by the trial court suffers from a Page 22 of 23 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 02 2025 Downloaded on : Fri Sep 05 22:59:00 IST 2025 NEUTRAL CITATION C/FA/173/2004 JUDGMENT DATED: 13/08/2025 undefined material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises the appellate court is entitled to interfere with the finding of fact."
10. In view of above settled principles of law, this Court is of the opinion that there is no any space to cause interference in the findings recorded by the trial court and there is no any infirmity or any illegality found in the impugned judgment and decree passed by the trial court and the view taken by the trial court is in consonance with the settled legal principles. Hence, this Court is not inclined to interfere in the impugned judgment and decree passed by the trial court.
11. In the result, the present appeal being meritless deserves to be dismissed and it is accordingly dismissed. The impugned judgment and decree passed by the trial court is hereby confirmed. Interim relief or interlocutory application, if any, stands vacated forthwith. Decree be drawn accordingly. No order as to costs. Record & Proceedings, if received, be sent back to the concerned Court forthwith.
(HEMANT M. PRACHCHHAK,J) Dolly Page 23 of 23 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 02 2025 Downloaded on : Fri Sep 05 22:59:00 IST 2025