Goli Eswariah vs Commissioner Of Glft Tax, Andhra ... on 5 May, 1970
9. Opposing the said argument, Mr.R.Margabandhu, learned counsel appearing for the respondent, though fairly conceded that, if the suit property was allotted by Murugammal to his son, first defendant, the plaintiff would not have claimed any share over the property, as it is a separate property of the first defendant, however, he pleaded that the suit property is a joint family property, because the same has been converted by the first defendant as a joint family property, by executing Ex.B31, dated 04.11.1992, release deed. In the said release deed, he added, the defendants have clearly mentioned that the suit property is a joint family property. That apart, after showing his intention that the suit property is a joint family property, the first defendant, at the time of putting a construction in the suit property, has admittedly received the contribution from his son-plaintiff/respondent herein. Though the said contribution was not a huge one, the question to be borne in mind is whether the plaintiff has contributed for construction of house in the suit property. Having received the contribution from the plaintiff, when the first defendant has raised the construction, it goes without saying that he is not only treated the suit property as joint family property, but he has also blended the same by using his money, along with suit property, that is open land, therefore, he contended that the plaintiff, being one of the sons of first defendant, like second defendant and other daughters, he is also equally entitled to have a share on the suit property. Therefore, when he laid a claim asking for 1/3rd share of the suit property, subsequently, after the death of the first defendant, he has also rightly moved an amendment application, asking for 7/18th share, on that basis, to support his argument, he has also relied upon a judgment in the case of Goli Eswariah v. Commissioner of Gift Tax (AIR 1970 SUPREME COURT 1722) for a proposition that the separate property of a Hindu coparcener ceases to be so and acquires the characteristic of a joint family or ancestral property not by any physical mixing with his joint family or ancestral property but by his own volition and intention by his waiving and surrendering his separate rights in it as separate property. Therefore, he pleaded that the suit property is liable for partition as held by the first appellate Court, hence, no interference is called for from this Court. On this basis, he prayed for dismissal of the second appeal.