THE COMMISSIONER OF INCOME TAX vs. THE BELGAUM TALUKA RURAL INDUSTRIAL

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 24TH DAY OF SEPTEMBER, 2021 PRESENT THE HON’BLE MR. JUSTICE P.B.BAJANTHRI AND THE HON’BLE MR. JUSTICE M.G.S. KAMAL R.F.A.No.100032/2014 (PAR/POS) Between:

Shri Somashekhar S/o.Pawadeappa Guddad, Age: 60 years, Occ: Retired, Now R/at.Mrutyunjaya Nagar, Banagar Street, Dharwad-580 006.

... Appellant (By Shri K.L.Patil, Advocate)

And:

Channappa S/o.Pawadeppa Guddad, Since deceased, Rep. by his L.Rs,

1(a) Smt.Dakshayani W/o.Channappa Guddad,

Age: 62 years, Occ: Housewife,

R/o. Mrutyunjaya Nagar, Banagar Street, Dharwad-580 006.

1(b) Sri.Mallikarjun S/o.Channappa Guddad,

Age: 37 years, Occ: Business, R/o.Mrutyunjaya Nagar, Banagar Street, Dharwad-580 006. R

: 2 : 1(c) Smt.Danamma W/o.Arun Patil,

Age: 39 years, Occ: Housewife, R/o.Mrutyunjaya Nagar, Banagar Street, Dharwad-580 006.

Age: 62 years, Occ: Business, r/o.Mrutyunjaya Nagar, Banagar Street, Dharwad-580 006.

Age: 55 years, Occ: Business, R/o.Mrutyunjaya Nagar, Banagar Street, Dharwad-580 006.

Age: 65 years, Occ: House wife,

R/o.No.24, Veenita Nilaya, 9th Cross, II Main, Sadashivanagar, Belgaum-590 001.

Age: 60 years, Occ: Business,

R/o.APMC Market Yard, Ramadurga-591 123,

Dist: Belgaum. ... Respondents (Shri R.H. Angadi, Advocate for R1(a to c), R2 & R3; Respondent No.4 & 5 are served)

This RFA is filed under Section 96 of CPC against the Judgment and Decree dtd.30.11.2013 passed in O.S.No.248/2006 on the file of the Principal Senior Civil Judge and CJM, Dharwad, dismissing the suit filed for partition, separate possession and mesne profits.

This RFA being heard and reserved for judgment, coming on for pronouncement of judgment, this day, M.G.S. Kamal, J., delivered the following:

: 3 : JUDGMENT 1. This regular first appeal under Section 96 of CPC is filed by the appellant/plaintiff aggrieved by the Judgment and Decree dated 30.11.2013 passed in O.S.No.248/2006 on the file of Principal Senior Civil Judge and CJM, Dharwad, dismissing the suit of the appellant/plaintiff for partition and separate possession and mesne profits. 2. The properties subject matter of the above suit are: (A-1) Partnership business, its assets and properties named as P.C.Guddad and Sons, Mrityunjaya Nagar, APMC Yard, Dharwad, which is a Commission Agency business in food grains. (A-2) Property bearing Sy.No.65/41, Area measuring 3 guntas 113/9 Annas, in which a RCC building of above mentioned business premises is situated. (B-1) Residential area bearing Survey No.593/1A, 593/1B, 593/1C and 593/1D, Area measuring 10 gunta 30 Annas, in which an old residential house measuring approximately 4500 sq. ft., with teak wood and other valuable building materials was situated. At present, it has been demolished and reconstruction is in progress in CTS No.593/1B and 593/1C at Mrutyunjaya Nagar, Dharwad by defendant Nos.1 and 3. (B-2) Property bearing CTS No.93/32/HYG in Hosayellapur area measuring 725.64 sq.

: 4 : mtrs., along with open site and RCC building constructed thereon at Mahishi Road, Dharwad. (C-1) 2 gunta open site in APMC Yard, Dharwad. (C-2) Site and semi constructed building situated within the limits of Amargol village of APMC Yard, Hubli. (C-3) Open Site measuring about 2 Guntas situated in Manjunath Co-operative Housing Society, behind Ozone Hotel, Navalur, in the name of Basavaraj Guddad. (C-4) Open site measuring about 2 guntas situated in Concorde Co-operative Housing Society, Sutagatti, Taluk: Hubli, in the name of Mallikarjun Channappa Guddad. (D-1) Cash invested in Mrityunjaya Finance Bank, APMC Yard, Dharwad, in the name of Channappa Guddad from the firm. (D-2) Gold ornaments approximately weighing about 200 tollas (D-3) Household furniture and articles. (E-1) Motor Vehicles: Sl.No. Name

Reg. No. 1

M-80

CN-269 2

Motorcycle

CRU-1069 3

TVS Scooty

KA-25/S-80 4

Bajaj Scooter

KA-25/E-5694 5

LML Scooter

KA-25/L-562 6

LML Scooter

KA-25/K-9988 (F) Share in yearly profits from the firm as on this day.

: 5 : 3. For the purpose of convenience, the parties would be referred to as per their ranking before the trial Court. 4. THE CASE OF THE PLAINTIFF IS: (a) That the Original Popositus one Pawadeppa Guddad, the father of plaintiff and defendants was carrying on the business of commission agency in APMC Yard, Dharwad. The said business was in the name of family partnership firm and was a joint family business of the plaintiff and the defendants. That all the suit schedule properties are the joint family properties of the plaintiff and defendants. The income received from the commission agency business was utilized by Pawadeppa Guddad and the defendants for acquisition of the suit properties and there is no other occupation or source of income for any of the defendants to acquire the properties. Hence, all the suit properties are joint family properties in which plaintiff and defendants are entitled to equal 1/5th share therein.

: 6 : (b) That the plaintiff was also a member of the partnership business. That plaintiff being an Engineering Graduate was employed in KPCL during the year 1978. That on account of his service, he had to reside outside his joint family along with his wife and children. In view of the joining the service, original propositus-Pawadeppa Guddad removed the name of the plaintiff from the family partnership deed for the purpose of convenience. (c) That the original propositus out of love and affection had given a portion of open site bearing CTS No.593/2 at Mrutyunjaya Nagar to the plainitff by way of registered gift deed during the year 1986. That the plaintiff has constructed a house on the said portion of the property by availing loans and from his savings made out of his salary from service. That the original propositus passed away leaving behind the plaintiff and defendants to succeed to the suit schedule properties. That upon the death of the original propositus, the family business and the properties were maintained and managed by Defendant Nos.1 to 3.

They were

: 7 : managing and maintaining the books of accounts, income and expenditure, profit and other incidental activities pertaining to the business and the family properties. However, they have not given any account or the details with respect to business turnover or the profit derived therefrom. (d) That the Income Tax returns/assessment from the year 1978-79 in respect of firm have been filed in the name of the plaintiff even after his retirement from the firm. (e) During the month of January 2004, Defendants 1 and 3 had insisted the plaintiff to sign certain documents on the pretext of the same being required for the purpose of demolition and construction of new house on the assurance that they will help the son of the plaintiff in pursuing his post graduation studies. Reposing faith and confidence in defendants, plaintiff had signed the said documents.

But, however, unfortunately misusing the same, defendants are making adverse claim against the interest of the

: 8 : plaintiff by asserting that the partition had been effected and that the plaintiff did not have any share in the properties. That the defendants are therefore, denying to partition and allot the legitimate share of the plaintiff having 1/5th share in the joint family properties. That the plaintiff has not received even a single paisa from the family business. All requests and pleadings of the plaintiff for partition and separate possession of the suit schedule properties yielded no result. Hence, he is constrained to file the suit for partition and separate possession and mesne profits. 5. CASE OF THE DEFENDANTS: (a) On service of summons, defendants appeared through their counsel and defendants 1 to 3 filed the joint written statement admitting the relationship that the plaintiff and defendants are the sons of late Pawadeppa Guddad. However, denied all other averments made in the plaint. It is contended that propositus Pawadeppa Guddad and his genitive father originally belong to Gadag village in Dharwad Taluk. The deceased Pawadeppa Guddad came to Dharwad as

: 9 : he was given in adoption to one Shri Channaveerappa Guddad and his wife Smt.Shivalingavva Guddad. By virtue of adoption, Pawadeppa Guddad became the adoptive son of Shri Channaveerappa Guddad and Smt. Shivalingavva Guddad. (b) That the property described in Para No.2(B1) of the plaint, totally measuring 13 guntas 61 square yards originally belonged to one Shri Mohammadgous Saheb, S/o.Dadasaheb Kanti of Dharwad. That aforesaid Smt.Shivalingavva Guddad had purchased the said property from the aforesaid Sri.M.D.Kanti in terms of registered deed of sale dated 08.09.1909. After demise of Smt.Shivalingavva Guddad, Pawadeppa Guddad who was their adoptive son succeeded to the said property and the said property became separate property of Pawadeppa Guddad. The said property was assigned with new CTS No.593. The said Pawadeppa Guddad sold a portion of said land measuring about 3 guntas 39 square yards touching western end consisting of a zinc sheet chappar through registered deed of sale dated 02.04.1938 to one Gangappa, son of Sannabailappa

: 10 : Navalur of Dharwad. Subsequently, said Pavadeppa Guddad re-purchased the said portion from said Gangappa through registered sale deed dated 22.04.1942. Thus, their father again became the owner of entire extent of 13 guntas 61 square yards of land in CTS No.593 which is situated in Banagar Oni, Haveripeth, Dharwad. Thus, this is a separate property purchased out of independent earnings of Pavadeppa Guddad and plaintiff had no right title and interest in the said property. (c) That the said Pawadeppa Guddad had gifted a portion measuring 90 ft. x 40 ft. in terms of registered deed of gift dated 25.03.1986 in favour of the plaintiff. The said portion was assigned with CTS No.593/2/MN. The remaining portion of the said land was assigned with CTS No.591/1/MN and continued in the name of Pawadeppa Guddad.

After demise of Pawadeppa Guddad, names of defendants and the plaintiff as legal heirs of Pawadeppa Guddad were entered in the revenue records.

: 11 : (d) That the plaintiff and defendant No.2 gave up their right with regard to remaining portion of CTS No.593/1/MN. Accordingly, plaintiff and the defendant No.2 jointly executed a relinquishment deed dated 15.03.2004 in favour of Defendants 1 and 3 which transaction was reported to the CTS authorities and the names of plaintiff and defendant No.2 were thus deleted from the revenue records and the names of Defendants 1 and 3 were entered thereon. Further, on account of complaints and insistence by the plaintiff for additional land, to pacify him and to avoid inconvenience, defendants 1 and 3 agreed to give an additional portion of 105 square yards on the northern side, abutting the property bearing CTS No.593/2, to the plaintiff. Accordingly, they jointly executed a registered deed of gift on 29.11.2004. As the plaintiff had already separated and had got constructed a house for himself in CTS No.593/2 and the same did not have passage for the purpose of access from the main road, in order to help the plaintiff, defendants 1 and 3 ear- marked around 12 feet width passage in the deed of

: 12 : gift dated 29.11.2004 by way of right of easement in favour of the plaintiff. (e) It is further contended that the aforesaid 105 square yards portion was renumbered as CTS No.593/1A and remaining area came to be divided in two portions between defendant Nos.1 and 3. CTS No.593/1B came to the share of defendant No.1 and CTS No.593/1C came to the share of defendant No.3. 12 feet passage is numbered as 593/1D and it belong to defendant Nos.1 and 3, However, the plaintiff is given the right to use the passage. (f) That the plaintiff completed B.E in Surathkal Engineering College in about 1975-76 and thereafter, joined service in Mysore Power Corporation presently called KPTCL. That the plaintiff constructed residential house in CTS No.593/2 during the year 1987-88. Thereafter, defendant No.2-Shivappa resided in the said house along with his wife and children as he had got separated from his parents. Defendant No.2 vacated the said house and shifted to his own house constructed

: 13 : in CTS No.93/32, Mahishi Road, Malamaddi, Dharwad in 1996. Presently, the house of the plaintiff is occupied by himself and his family. (g) That portion of property bearing CTS No.593/1B is in the name of defendant No.1. Defendant No.1, on obtaining permission in the year 2005, had demolished the old structure existed thereon and constructed a new RCC house. CTS No.593/1C stands in the name of defendant No.3-Basavaraj. Said defendant No.3 has also on obtaining permission in the year 2005, demolished the old structure and constructed new RCC house. Thus, defendant No.1 and defendant No.3 have got constructed new houses out of their own funds. (h) That the defendant No.2 – Shivappa Guddad had purchased open site bearing CTS No.93/32 under deed of sale dated 02.01.1996. After obtaining sanctioned plan, he has constructed a new house thereon in the year 1997 and he has been residing in the said house with his family and the said property was purchased by the defendant No.2 out of his own funds.

: 14 : (i) That M/s.P.C.Guddad and sons is not joint family business at all as claimed by the plaintiff. Deceased Pavadappa Guddad had engaged in business of jaggery and sweet oil on a very small scale in a rented premises which he closed in about 1950-51 as he suffered losses. At that time, Defendant No.1 was about 7 years and plaintiff and other defendants were not born. Deceased Pavadeppa Guddad due to financial constraint could not provide education to defendant No.1. In or about 1959- 60, deceased Pavadeppa Guddad had started business of commission agency on a small scale in a rented premises and was maintaining his family. In the year 1961, Pavadeppa Guddad purchased open site from Dharwad Municipality bearing CTS No.65/41 which is shown at Para 2(A2) of the plaint. That the defendant No.1 joined his father in commission agency business and assisted him and gained experience. By the year 1965-66, defendant No.1 was grown up.

That Pavadeppa Guddad had not received any property or money from his genetive family. He did not get any income yielding property or money from the adoptive

: 15 : family except property in CTS No.593 which he got from his adoptive mother, which consisted of an open site with old tiled houses and the same was being used by Pavadeppa Guddad as residence. (j) That the father and son under the circumstances, decided to carry on the commission agency business as partners. Accordingly, entered into a partnership agreement during the year 1966 and started the business in the name of M/s.P.C.Guddad and sons. It was started in a rented premises belonging to one Sri. Contractor of Alanavar situated in Old Dalal Market near Legal Practice, Dharwad. Both the partners were active partners and shared profit and loss equally. Both partners invested the required capital equally. The firm had maintained the accounts of the partnership business in the ordinary course of business. In or about the year 1968, both partners constructed a shop and godown in the open CTS No.65/41 situated in APMC yard. Pavadeppa Guddad contributed CTS No.65/41 into the stock of the firm asset and shop and godown were got constructed by investing the

: 16 : partnership money belonging to Pavadeppa Guddad and another partner his son Channappa. Shop and godown got constructed out of the partnership firm and the same became property of the firm consisting of Pavadeppa Guddad and his son Channappa Guddad. It is therefore submitted that CTS No.65/41 and the firm business M/s.P.C. Guddad and sons are not joint family properties as alleged by the plaintiff. Both the partners shifted the firm business from the rented premises in old Dalal Market to the newly constructed shop and godown in CTS No.65/41 in the year 1968. Until 1968-69, Pavadeppa Guddad and his son Channabasappa Guddad were only two partners and the firm was an unregistered partnership firm. By the year 1968-69, plaintiff and defendant Nos.2 and 3 were born and business of the firm was slowly improving. As such, the two partners decided to get the firm registered under the provisions of Indian Partnership Act and admitted plaintiff and defendant Nos.2 and 3 as beneficiaries of the firm. On 19.07.1969, the firm was registered under the name of M/s.P.C.Guddad and sons

: 17 : showing Pavadeppa Guddad and Channabasappa Guddad as partners with plaintiff and defendant Nos.2 to 3 as minor beneficiaries. (k) That in the year 1967, defendant No.1 got married and started residing separately in a portion of old house bearing CTS No.593.

That CTS No.65/41 consisting of shop and godown and a partnership firm business belonged to the two partners, Pavadeppa Guddad and defendant No.1-Channabasappa Guddad. Plaintiff and defendant Nos.2 and 3 though were nominally admitted as minor beneficiaries were not given any share in the shop or godown. (l) That after the plaintiff joined the service, to avoid technical difficulty, he retired from the firm on 31.10.1978 and was witnessed by a written deed dated 03.02.1979. In view of the change in the constitution of the firm, the accounts came to be settled. The plaintiff retired and the firm came to be reconstituted with effect from 01.11.1978 with four partners namely; i) Pavadeppa Guddad

: 18 : ii) Channappa Guddad iii) Shivappa Guddad iv) Basavaraj Guddad with equal contribution and profit and loss sharing at 1/4th each. (m) That the reconstituted firm continued till the death of Pavadeppa Guddad on 04.09.1989. Thereafter, the firm was again reconstituted with the surviving partner on 25.10.1989 between defendant Nos.1 to 3 with 1/3rd share each. The change in the constitution of the firm has been intimated to the Registrar of Firms. Thus, M/s.P.C.Guddad and sons, a partnership carrying on commission agency business in CTS No.65/41 is not a joint family business. It is the business in which defendant Nos.1 to 3 are the partners and the plaintiff has no share or interest in the business. (n) That in Para 2(C1), the plaintiff has shown open site measuring 2 guntas situated in APMC Yard, Dharwad, claiming it to be joint family property. That the said property bearing Plot No.84, measuring east to

: 19 : west 30 mtrs, north to south ` mtrs. The said plot originally belonged to agricultural produce market committee, Dharwad and was purchased by defendant No.2-Shivappa Guddad as partner of the firm on lease- cum-sale agreement on 02.02.1998. This property is purchased by the firm consisting of defendant Nos.1, 2 and 3 as its partners and the same is thus not joint family property. (o) In Para 2(C2), the plaintiff has referred to site and semi-constructed building at Amargol, APMC, Hubli, claiming the same to be joint family property. The said property bears C-3, Plot No.17, Amargol APMC. The said property is also purchased by defendant No.2 as partner of the firm in terms of registered lease-cum- sale agreement dated 06.11.1998. The said property belongs to Defendant Nos.1 to 3. After the purchase, defendant Nos.1 to 3 undertook construction, which is in the incomplete stage. The said property is not joint family property.

: 20 : (p) In Para 2(C3), plaintiff refers to open site measuring 2 guntas, standing in the name of Defendant No.3-Basavaraj Guddad. The said property bears plot No.32 of Block No.168 of Navalur village situated behind Ozone Hotel. The said property originally belonged to Manjunath Co-operative Housing Society, Dharwad and was purchased by Defendant No.3 under registered sale deed dated 20.05.1994. The sale consideration was paid by defendant No.3 himself and the property belongs to Defendant No.3 and is not a joint family property. In Para 2(C), plaintiff has referred to an open site measuring 2 guntas standing in the name of Mallikarjuna Guddad. This property bears plot No.70 of Block No.52+59A situated within the limits of Sutagatti village, Hubli Taluk. The said property was purchased by Mallikarjun, Channabasappa Guddad from Concorde Developers under a registered deed of sale dated 18.02.2005, but the sale consideration was paid by defendant No.1 drawing necessary amount from the firm in his account. The said property is also not joint family property.

: 21 : (q) In Para 2(D1), the plaintiff had claimed cash investment in Mruthyunjaya Finance, Dharwad in the name of Defendant No.1. It is submitted that during the year 1987, defendant No.1 invested Rs.12,500/- as his capital in the said finance institution. As the said finance institution suffered loss, the investment so made has become dead investment. At any rate, the said investment is by defendant No.1 and is not a joint family investment. (r) At Para 2(D2), plaintiff has referred to gold ornaments of about 200 tolas claiming the same to be joint family property. Plaintiff and defendants 1 to 3 are separated and have got separate residence. There are not gold ornaments as alleged in the said paragraph. (s) At Para 2(D3), plaintiff has claimed furnitures and articles. There are no joint family furnitures and articles available for partition. (t) In Para 2(E1), plaintiff has referred to motor vehicles at Sl.Nos.1 to 6. The said motor vehicles are

: 22 : not joint family properties. Therefore, not liable for partition. All six vehicles which are standing in the names of defendant Nos.1, 2 and 3 have become old and worn out vehicles and have become scrap. Thus, there are no joint family properties available for partition and sought for dismissal of the suit. ISSUES FRAMED BY THE TRIAL COURT: 6. The Trial Court based on the aforesaid pleadings, framed the following issues for consideration: 1. Whether the plaintiff proves that propositus Pawadeppa was running business for Joint Family of Plaintiff and Defendants? 2. Whether the plaintiff proves that the family of the plaintiff and defendants acquired properties out of nucleus of joint family business? 3. Whether the defendants prove that Pawadeppa acquired properties through his adoptive mother? 4. Whether the defendants prove that the defendant (it ought to be plaintiff) was given site measuring 90 x 40 by the gift deed executed by Pawadeppa? 5. Whether defendants No.1 and 2 prove that property bearing CTS No.593/1B and CTS No.93/32 are their self-acquired properties? 6. To what decree or order?

: 23 : EVIDENCE AND CONCLUSION BY THE TRIAL COURT: 7. The trial Court recorded the evidence. The appellant/plaintiff examined himself as PW1 and exhibited 103 documents marked as Exs.P1 to P103. The defendant No.2 examined himself as DW1 and exhibited 26 documents marked as Exs.D1 to D26. The trial Court answered issue Nos.1 and 2 in the Negative and issue Nos.3, 4 and 5 in Affirmative and consequently dismissed the suit of the plaintiff by the impugned judgment and decree dated 30.11.2013. Being aggrieved by the same, the appellant/plaintiff is before this Court. SUBMISSION OF THE LEARNED COUNSEL FOR THE PLAINTIFF: 8. Learned counsel for the plaintiff reiterating the grounds urged in the appeal submitted: (a) That the trial Court erred in not appreciating the material evidence produced to justify the contention that the suit properties are the joint family properties of the plaintiff and defendants in joint possession and ownership thereof.

: 24 : (b) That the trial Court erred in not appreciating that the original propositus-Pawadeppa Guddad had started family business under the name and style “M/s.P.C. Guddad & Sons” and after his demise, defendant No.1 managed the joint family business and that it is out of the said family business, the suit schedule properties were acquired. (c) That after completion of his studies, the plaintiff had joined KPTCL as Engineer and had formally retired from the Partnership Firm. That even after his retirement, the income tax returns of the Firm as submitted to the authorities disclosed the name of the plaintiff as partner; that except the income from the joint family business set up by the original propositus, there is no other source of income even as admitted by DW1, which the trial Court has not taken note of. (d) That the trial Court erred in not taking into consideration the fact that there is no partition during or after the lifetime of the father of the plaintiff and defendants.

: 25 : (e) That the plaintiff was residing outside from the joint family since 1978 till his retirement on 30.04.2013, on account of his service. (f) That the trial Court erred in not appreciating that admittedly there is no independent source of income to the defendants except the source from the joint family to acquire other properties. The trial Court failed to consider Ex.P11, the registered partition deed between defendants, to which the plaintiff was not a party and that the defendants behind the back of plaintiff created such documents. That even as per Ex.P11, the defendants have clearly admitted that the suit schedule properties are the joint family properties acquired from the nucleus of the joint family business. He further relied upon the following decisions of the Hon’ble Apex Court in the case of: (i) MALLESAPPA BANDEPPA DESAI VS. DESAI MALLAPA ALIAS MALLESAPPA reported in AIR 1961 SC 1268, (ii) APPASAHEB PEERAPPA CHANDGADE VS. DEVENDRA PEERAPPA CHANDGADE & ORS reported in AIR 2007 SC 218

: 26 : (iii) MADANLAL (DEAD) BY LRS. AND OTHERS VS. YOGA BAI (DEAD) BY LRS. reported in AIR 2003 SC 1880.

SUBMISSION OF THE LEARNED COUNSEL FOR THE DEFENDANTS 9. Learned counsel for the defendants justifying the impugned judgment and decree passed by the trial Court submitted: (a) That the appellant has not made out any grounds warranting interference by this Court. That the plaintiff had miserably failed to establish and prove the fact that the suit schedule properties are the joint family properties. (b) That on and from the year 1978-79, the plaintiff retired from the partnership business. That the plaintiff had not been participating in the partnership business. That upon the demise of the father of the plaintiff and defendants, his share has been given to the mother of the plaintiff and defendants. As such, the plaintiff has no right, title and interest in the aforesaid business.

: 27 : (c) That the plaintiff had been given portion of the property in CTS No.593 even during the lifetime of the father of the plaintiff and defendants, in which portion, the plaintiff has constructed a residential house and residing there with his family. The plaintiff having executed the relinquishment deed in favour of defendant No.2 along with defendant Nos.1 and 3 in respect of remaining portion in CTS No.593, he cannot claim any share therein (d) That all other suit schedule properties were acquired from the independent sources of the defendants. That there was no joint family nucleus as claimed and contented on behalf of the plaintiff, he relied upon the judgment of the Co-ordinate Bench of this Court in the case of DANDAPPA RUDRAPPA HAMPALI AND OTHERS VS. RENUKAPPA ALIAS REVANAPPA AND OTHERS reported in AIR 1993 KAR 148. Hence, sought for dismissal of the appeal.

: 28 : 10. Heard the learned Counsels for the respective parties. 11. On consideration of the rival submissions made by the learned counsel for the parties, the questions that would arise for our consideration are as under: “1. Whether the judgment and decree passed by the trial Court in dismissing the suit of the plaintiff is sustainable? 2. Whether the appellant/plaintiff is entitled for share in the suit schedule properties?” 12. ADMITTED FACTS WHICH EXISTED DURING THE LIFE TIME OF PAWADEPPA GUDDAD: (a) Regarding partnership business of M/s.P.C. Guddad and Sons and property bearing CTS No.65/41 [suit item Nos.(A-1) and (A-2) properties]: Admittedly the deceased Pawadeppa Guddad was originally carrying the business of jagarry and sweet oil and thereafter he started business of commission agency. In or about 1961 he had purchased the property bearing CTS No.65/41 from the Dharwad Municipality, whereupon he constructed a shop and a godown and carried on the business thereon. Thus,

: 29 : there is no dispute that initially the business of jagary and sweet oil and thereafter the business of commission agency was established and carried on by late Pawadeppa Guddad and acquired the aforesaid property and used it for the business purpose. That the defendants and plaintiff joined the business of Pawadeppa Guddad and the firm came to be known as M/s. P.C. Guddad and sons. (b) Regarding property bearing CTS No.593 [suit item Nos. (B-1) property] It is not in dispute that Pawadeppa Guddad was given in adoption to one Shri Channaveerappa Guddad and his wife Smt.Shivalingavva Guddad of Dharwad. That the property bearing CTS No.593 measuring 13 gunta 61 square yards situated at Banagar Oni, Haveripeth, Dharwad was the absolute property of Smt.Shivalingavva Guddad, the adoptive mother of the said Pawadeppa Guddad. That upon her demise, the said Pawadeppa Guddad succeeded to the said properties, which became his separate property. That the said Pawadeppa Guddad and his family were living

: 30 : in the house existed thereon. That the said deceased Pawadeppa Guddad had sold certain portion measuring the 3 guntas 39 square yards out of the said property in terms of sale deed dated 02.04.1938 in favour of one Gangappa S/o.Sannabailappa Navalur of Dharwad, which he repurchased in terms of sale deed dated 22.04.1942. Thereby once again he became the absolute owner to the entire extent of land in CTS No.593 measuring 13 guntas 61 square yards. It is also not in dispute that out of the aforesaid 13 guntas 61 square yards, the said Pawadeppa Guddad during his lifetime had given a portion measuring 90’ feet X 40’ feet to the plaintiff in terms of the deed of gift dated 25.03.1986, which portion was numbered as CTS No.593/2/MN and the remaining portion was assigned the number as CTS No.593/1/MN which continued to be in the name of Pawadeppa Guddad. 13. ADMITTED FACTS SUBSEQUENT TO DEMISE OF PAWADEPPA GUDDAD: (a) As regards property in CTS No.593 (Suit item No.(B-1) property]

: 31 : That after the demise of the said Pawadeppa Guddad in the year 1989, the names of the defendants and plaintiff were mutated in the revenue records in resepct of CTS No.593. That the defendant No.2 and plaintiff had executed and registered relinquishment deed dated 15.03.2004 in terms of which, they relinquished their right, title and interest in respect of the portion of land in CTS No.593/1/MN in favour of defendant Nos.1 and 3. Pursuant to which, the name of plaintiff and defendant No.2 had been deleted and only the names of different Nos.1 and 3 were continued. It is also admitted that subsequently defendant Nos.1 and 3 conveyed an extent of 105 square yards on the Northern side abutting CTS No.593/2 (which portion was gifted to the plaintiff by late Pawadeppa Guddad) to the plaintiff by jointly executing the registered deed of gift dated 29.11.2004, the plaintiff thus has put up construction on the portion of the land conveyed to him by his father and two brothers as above and has been in exclusive possession of the same. (b) As regards, the properties namely:

: 32 : (i) 2 gunta open site in APMC Yard, Dharwad (C-1); it is stated that this property was purchased by defendant No.2, as partner of M/s. P.C. Guddad and sons on 20.11.1997 as per Ex.D19. (ii) Site and partially constructed building situated in the limits of Amargol village of APMC Yard, Hubli (C-2); it is stated that this property was purchased by defendant No.2, as partner of M/s.P.C. Guddad and sons on 06.11.1998 as per Ex.D20. (iii) Open site measuring 2 guntas situated in Manjunath Co-operative Housing, behind Ozone Hotel Navalur (C-3); it is stated that this property was purchased by defendant No.3, as partner of M/s. P.C. Guddad and sons on 20.05.1994 as per Ex.D21; and (iv) open site measuring about 2 guntas situated in Concorde Co-operative Housing Society, Sutagatti Taluk, Hubli (C-4), it is stated that this property was purchased on 18.02.2005 in the name of Mallikarjuna Channappa Guddad S/o. defendant No.1 as per Ex.D22.

In the back drop of these admitted facts rival contentions of the parties needs to be appreciated. It is to be noted that though there is no much dispute regarding setting up of business and acquisition of property by Pawadeppa Guddad, there is variation in

: 33 : the versions of the plaintiff and defendants in narrating the facts. 14. According to the plaintiff the property in CTS No.65/41 was purchased by late Pawadeppa Guddad from and out of the income derived by conducting family business and was used for the purpose of the business; plaintiff and defendant Nos.1 to 3 joined the said business, which was the only source of income. The remaining properties were purchased by defendants in their individual names from and out of the aforesaid family business and as such they are joint family properties and he is having share therein. 15. On the other hand, according to the defendants that the late Pawadeppa Guddad had initially started business of jaggery and sweet oil, had incurred loss and again he started commission agent business in the name of M/s.P.C. Guddad & Sons along with defendant No.1. It is further contended that though the property in CTS No.65/41 was purchased by late Pawadeppa Guddad, he had contributed the said property as his

: 34 : capital contribution to the partnership business in the year 1968-69, which he had set up along with defendant No.1 and there by restricting his ownership only to half of the said properties. It is also the case of the defendant No.1 that he had actually participated in the partnership business being equal in entitlement too that of his late father and defendant Nos.2 and 3 also participated in the family partnership business, had acquired properties independently and the said properties cannot be construed as joint family properties. Thus, there was no joint family nucleus as such. That the plaintiff though had been included in the partnership business only for the beneficial purpose. After the completion of his graduation in the year 1978-79, he had returned to the partnership firm and had not participated in the partnership business. As such, there was no joint family or joint family properties available for the partition. 16. POSITION OF LAW: (a) The Hon’ble Apex Court in the case of APPASAHEB PEERAPPA CHANDGADE VS. DEVENDRA

: 35 : PEERAPPA CHANDGADE & ORS (Supra) at paragraph Nos.9 and 12 has held as under:

“9. So far the legal proposition is concerned, there is no gain saying that whenever a suit for partition and determination of share and possession thereof is filed, then the initial burden is on the plaintiff to show that the entire property was a joint Hindu family property and after initial discharge of the burden, it shifts on the defendants to show that the property claimed by them was not purchased out of the joint family nucleus and it was purchased independent of them. This settled proposition emerges from various decisions of this Court right from 1954 onwards.” Thus, it is settled law that there can be a presumption of joint family but to establish the joint family properties, initial burden lies on the plaintiff. If once the plaintiff discharges the initial burden, the same shifts upon the defendants to prove otherwise. (b) The Division Bench of Bombay High Court in the case of MANILAL NARSINHADAS AND OTHERS VS. BAI SUSHILA reported in AIR 1956 BOMBAY 402, at para 5 has held that where a family was undisputably a joint family and both the sons used to actively help

: 36 : their father in carrying on the business it must be regarded as the joint business of the family. (c) Similarly, the Division Bench of Madras High Court in the case of C.SUNDARAM VS. RUKMINI AMMAL AND OTHER reported in AIR 1975 MADRAS 83, at paragraph Nos.9 and 11 has held as under: “9. Though the first defendant stated at one stage that the steel trunk business was started with joint exertions, that cannot obviously be true for the reason that in the year 1920 when the business was first started he could only be below ten years of age. Having regard to the admitted fact that there was no joint family nucleus to enable the father to start the business as a joint family venture and the business not having been started with the joint exertions of the first defendant, we can only proceed on the 'basis that the business in question was started by the father with the funds of his own. It is now well settled that when the members of a joint family, by their joint labour, or in their joint business acquired property, that property, in the absence of a clear intention to the contrary, would be owned by them as joint family property and their male issue would acquire a right by birth in such property. But if a single individual acquired properties by his own exertions without any assistance from the ancestral property, his male issue will certainly take no interest in it. In Sudarsanam Maistry v. Narasimnalu Maistry. (1902) ILR 25 Mad 149, a Bench of this court held that the property acquired by all the members of the family by their joint labour would, in the absence of an indication of intention to the contrary, be taken to be the joint family property. The same principle was followed in Muni-sami Chetti v.

: 37 : Muruthammal, (1911) ILR 34 Mad 211, as well as in Rajagopala v. Seshayya, AIR 1935 Mad 366. In Krishna v. Rengachari, Anantanarayanan and Ramamurti JJ. expressed the view that if members of a joint family who are joint in status carry on business and acquire property by their joint labour and exertions without the aid of any ancestral nucleus the presumption is that the property so acquired by them would be joint family property in which the son of the acquirer would get a right by birth, unless it is proved that the acquirers intended to own the property as co-owners between themselves in which case alone it will be joint property as distinguished from joint family property. The same view has been taken in Santhalingam v. Meenakshi Ammal, 1970-2 Mad LJ 85. It is in the light of the above legal position the evidence in this case has to be considered. 11. The learned counsel for the appellant relies on the decision in Haridas v. Devkuvarbai, AIR 1926 Bom 408. In that case one Narayandas started business in Bombay as a piece-goods merchant without the aid of any joint family nucleus and amassed considerable wealth. While he was carrying on business his son Haridas was associated with him in the business. The trial court found that as the father advanced to old age more burden of the business was shouldered by the son and less by the father, and that the father and son lived and messed jointly. On these facts tt held that the business was the joint family business and all the properties acquired with the income therefrom are the joint family properties. The High Court affirmed that view holding that where a father and his son acquired the property by their joint labour and are, besides, joint in food and worship, they must be regarded as having constituted a Hindu joint family even though -there may not have been any nucleus of property which has come down from his father or grandfather, and expressed:

: 38 : "For the formation of a coparcenary in Hindu law, such a nucleus is not absolutely necessary, provided the persons constituting it stand in the relation of father and son and other relation requisite for a coparcenary system, and these persons by living, messing and worshipping together, and throwing all the property acquired jointly into one common stock, manifest their intention to deal with one another and with outsiders as members of a coparcenary system under the Hindu Law." The decision in Manilal v. Bai Sushila, was also relied on. In that case also a father was carrying on a business of his own. His two sons also joined the business later and the question arose as to whether the property acquired with the income of the said business could be treated as joint family property. The court held that as the father and two sons indisputably lived as members of a joint family and both the sons used to actively help the father in carrying on the business started by him without any remuneration for the work done by them, it must be regarded as joint family business. The learned Judges in that case distinguished an earlier decision of the Allahabad High Court in Kailashi v. Shankar, AIR 1945 All 164, in which it was held that if a business is started by an adult member of the family separately, the mere fact that his sons who are dependent on him and are being maintained by him gave him some help in the carrying on of the business would not necessarily make the business cease to be his own business and make it the joint business of himself and his sons, but the father and the sons may so conduct themselves that from their conduct it may be apparent that the business of the father had become the joint business of the father and the sons by some arrangement between them, with respect, we are inclined to agree with the view expressed in AIR 1945 All 164 rather than the view of the learned Judges in AI.R 1956 Bom 402. It is not every help and assistance given by the son to the father in

: 39 : business without remuneration, will lead to the presumption that the separate business of the father has become the Joint family business. The conduct of the father and the sons with reference to the business should be such as would show an intention on the part of the father to give up his exclusive ownership of the business end to make it the joint business of him self and his sons. It is well established that the burden of proving that a member of a joint Hindu family threw his self-acquired property into the common stock lies on the person making the assertion and this burden can only be discharged by proof of the fact that the owner of the property clearly expressed his intention to abandon his separate and exclusive right in the property in favour of the members of the joint family and that the intention may be expressed by words or may be inferred from the conduct of the parties. In this case the defendant himself has stated that the licence for the business was issued in the name of his father till his death and that the income- tax and sales tax returns were submitted and assessments made in the name of the Hindu undivided family of himself and his son. He has also admitted that he has joined in execution of certain mortgages with his father for the purpose of the business because the creditors insisted that he should also join in the execution of the mortgages. The income of the business also has been utilised for the purpose of purchasing properties in his father's name. Further, in all the correspondence the first defendant has signed for and on behalf of his father who is shown as the proprietor of the business. On his evidence and the other evidence available in the case it is clear that the father had at no stage till his death given up his exclusive ownership of the business and made it a joint family business. In this connection it will be relevant to note the initial case put forward by the first defendant at the stage of the probate proceedings and later in this suit. While residing the plaintiff's claim for partition the first defendant had set up a case of outright Rift to him of the business by the father

: 40 : even during his lifetime and that can only be on the basis that the business was the exclusive business of the father right through till his death. The first defendant in his deposition has clearly admitted that there was no gift at all. Apart from this the properties purchased with the income of the business were also claimed by the first defendant as having been got by him under the will executed by his father. That also can only be on the basis that the income derived from the business with which the suit properties bad been purchased was exclusively of the lather's, and that the business and the income there from belonged exclusively to the father and not to the joint family of himself and his father. On the materials we are not in a position to say that the assistance given by the first defendant to the father who was conducting the business during his lifetime is such as to lead to the inference that the father gave up his exclusive right in the business and made it a joint family business. We are, therefore, of the view that the court below is right in holding that the business was the exclusive business of the father Chockalinga Naicker and that the suit properties which have admittedly been acquired with the income of the business are his exclusive properties and that the plaintiff is entitled to a one-fourth share in the suit properties.”

(d) The Co-ordinate Bench of this Court in the case of DANDAPPA RUDRAPPA HAMPALI AND OTHERS VS. RENUKAPPA ALIAS REVANAPPA AND OTHERS reported in AIR 1993 KAR 148, at paragraph Nos.16, 17 and 36 has held as under:

: 41 : v.Suryanarayanamurti, AIR 1947 PC 189 the Privy Council held at p. 192: "Proof of the existence of a joint family does not lead to the presumption that property half by any member of the family is joint, and the burden rests upon any one asserting that any item of property is joint to establish the fact. But there it is established 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 burden shifts to the party alleging self acquisition to establish affirmatively that the property was acquired without the aid of the joint family property." 17.1 Therefore the initial burden is to establish the existence of some joint family property, capable of being the nucleus from which new property or asset could have been acquired; it is not sufficient to show that the joint family possessed some assets; it is necessary to prove that the assets of the joint family may have formed the nucleus from which the disputed assets may have been acquired. Whether joint family assets could have formed the nucleus, again, depends upon their nature and relative value. Existence of such joint family property which could have formed the nucleus for the acquisition of new assets, by itself would not lead that the new assets acquired by any member of the family would be joint family property, because, such a member may not have control or command over the joint family assets. The idea is that the member who acquired the new assets may have utilised the joint family assets to acquire further assets; this is possible only if the said member was in a position to utilise the joint family asset to acquire further asset or assets. 17.2 In the case of the manager of the joint family or any other member who was in management of the family affairs or in possession of sufficient joint family assets, it is

: 42 : likely that the joint family property or part thereof, formed the nucleus from which he acquired other assets and in such a case, burden will be on him to prove that the acquisition by him was without the aid of the joint family property. 36. Existence of sufficient family asset so as to form a nucleus for further acquisition is a question of fact. Such a fact can be proved by direct evidence or circumstantial evidence. However, circumstantial evidence should be clear, unequivocal and clinching, as otherwise, there is every danger of the self-acquisitions of a person being lost to another who claims a share in it, based on the past prosperity of the family. Suit is filed nearly 48 years after the death of the father. All these years defendants 1, 9 and 13 and the children of the 1st defendant have been working hard, and in the process they were able to acquire some properties. The plaintiff, though, was nearly 50 years of age has not contributed anything for the savings of these defendants. He has taken shelter under a vague plea that he was assisting his brothers in their business; a plea, which we would presently show cannot be accepted. Obviously, the plaintiff realised that with the crossing of middle-age, time has come for him to prepare for his old age. The need for security in life has pursuaded him to look at the green pastures developed by his brothers, who spent their entire life in hard toil and industry, while, the plaintiff seems to have spent a bachelor's leisurely life as a social worker.” The Hon’ble Apex Court in the case of BHAGWAT SHARAN (DEAD THROUGH LEGAL REPRESENTATIVES) VS. PURUSHOTTAM AND OTHERS reported in (2020)6 SCC 387, has held as under:

: 43 :

“The law is well settled that the burden lies upon the person who alleges the existence of the Hindu Undivided Family (HUF) to prove the same. It is clear that not only jointness of the family has to be proved but burden lies upon the person alleging existence of a joint family to prove that the property belongs to the Joint Hindu family unless there is material on record to show that the property is the nucleus of the joint Hindu family or that it was purchased through funds coming out of this nucleus.”

In the light of the above settled legal principles, when the pleadings and evidence of the parties is seen, it becomes clear that Pawadeppa Guddad who succeded to the property in CTS No.593 (B-2) through his adoptive parents used the same for residence of his family. He was doing jaggary and sweet oil business and started commission agency business. He sold portion of land in CTS No.593 to one Gangappa on 02.04.1938 and repurchased the same on 22.04.1942. He purchased property in CTS No.65/41 (A-2) in the year 1961. He constituted partnership firm of M/s. P.C. Guddad and sons. All his sons became partners in 1969. 17. Even as pleaded by the defendants in their written statement, the property bearing CTS No.65/41 (A-2) was purchased by Pawadeppa Guddad and the same had

: 44 : been contributed by the said Pawadeppa Guddad as his capital contribution to the business of the partnership. It is in the written statement that initially the business was being run on rented premises in Dalal Street of Dharwad and thereafter the business was shifted by constructing office premises and godown on the aforesaid property and the business was run thereon until the demise of the said Pawadeppa Guddad and continued thereafter. That the partnership firm originally constituted by the said Pawadeppa Guddad and defendant No.1, which was reconstituted by inducting defendant Nos.2, 3 and plaintiff. That the same came to be reconstituted again on plaintiff joining the service after completion of his education. 18. Further, referring to the plaint schedule properties, the defendants in written statement paragraph Nos.31 to 34 even while contending that the said properties were acquired after the demise of Pawadeppa Guddad and the plaintiff had no share therein, have however categorically pleaded that the

: 45 : said properties were purchased from and out of the fund of the partnership firm. 19. As regards the property bearing CTS No.93/32/HYG in Hosayellapur Area measuring 725.64 sq. mtrs. along with open site and RCC building constructed thereon (B-2); it is contended that the same was acquired by defendant No.2 out of his own earning. However, no evidence regarding defendant No.2 having independent source is forthcoming. In the cross-examination of PW1, he has answered that this was the property acquired by defendant No.2. This has been taken to be an admission on the part of plaintiff No.1. This contention cannot be countenanced as admittedly defendants had no source of income other than the income from the family business. 20. Thus, there is no dispute of the fact that Pawadeppa Guddad was initially carrying on business of jaggery and sweet oil and thereafter started commission agent business and purchased the property bearing CTS No.65/41 in the year 1961 which he had

: 46 : contributed as his capital contribution to the business of the firm. It has been categorically admitted by DW1 in his deposition that except the said business there was no other source of income to the family. 21. Thus, the plaintiff has discharged the initial burden of the existence of joint family nucleus out of which the other properties had been acquired. 22. As regards, the claim of the plaintiff being the partner of the partnership firm M/s. P.C. Guddad and sons, it is to be noted that he was admitted along with defendant Nos.2 and 3 as partners of the firm effective from the year 1969. He continued as a partner of the firm till he retired in the year 1978 on joining his service. However, his name has been continuously reflected in the assessment/income tax returns from the year 1969 till date, as evidenced in the documents produced by the plaintiff and admitted by the defendants as per Exs.P59 to P103. 23. Though it is contended on behalf of the defendants that they have calculated and settled the share of the

: 47 : plaintiff in the partnership firm and had given the same to him in the year 1979; they have not produced any documents to that effect. However, admittedly the name of the plaintiff being reflected as a partner and an amount ranging around 1,78,000/- is being shown to his credit in all the income tax returns. 24. Excerpts of the cross examination of DW1 (English translation of Kannada deposition) are extracted hereunder: Recorded on 19.10.2011: “It is true that M/s. P.C. Guddad and Sons is the partnership firm. It is true that the said firm is registered partnership firm. It was registered for the first time in 1969. In 1969, my father and his four sons started the said firm. It is true that even before the commencement of the firm my father was doing business. My elder brother was not doing any business before joining business with my father. ... I have the partnership deed of 1969. The partnership firm that started in 1969 continued till 1978. It is true that my father and my other brothers did not have any source of income other than business of the firm. My father was a partner in partnership firm that started in 1979. All partners have 1/4th share. .... In 1979, after setting the accounts, we have paid the due of the plaintiff. There are no documents for such settlement of accounts. It was paid on brotherly faith. It is true that income tax is paid from 1969 till date. It is also true that the commercial tax is also paid. It is

: 48 : true that balance sheet is submitted every year along with income tax and commercial tax returns. It is true that income tax returns are submitted in each partner’s name. Recorded on 07.01.2012: ... Exs.P49(a) and P49(b) are marked. It is true that all their income tax is paid in the name of the plaintiff from the expenses of the firm. We have the documents for submitting the income tax returns. It is true that income tax is paid on the income of the firm payable to the plaintiff. In 1969, the plaintiff was a minor. It is true that whenever a partner retires, his share of money is accounted and determined. There is no document from the plaintiff having retired from the firm. It is true that the documents now shown to me are the documents for having paid income tax subsequent to 1978...... My father passed away in 1989. He was not a partner of the firm at the time of his death. He was partner only till 1978. My father was partner till his death. After the death of my father, the amount due and payable to him has been given to my mother. There may be documents/accounts in this regard. I do not know, it is true that at that no amount is paid by the plaintiff. No consent or signature of the plaintiff is obtained as he was not a partner. We have paid the amount to our mother after valuation of the property. No possibility to say as to how much was paid. My mother passed away in 2002. I do not know, whom did my mother give her share of property... ... To the question, M/s. P.C. Guddad and sons firm was originally established by your father; witness answered, my father and brother together established. I do not know the age of my brother at the time. He was aged more than 18 years. ... ... It true that other than M/s. P.C. Guddad and sons business there was no other business

: 49 : or income. It is also true that defendant Nos.1 and 3 also had no other business or income. It is incorrect to state that the property were purchased from the income of the partnership firm.

Recorded on 24.01.2012: Joint family means my father and us means children. There was no partition between our father and us during his lifetime. Witness further states, there was no properties for partition. ... ... at the time of my father’s death, he has 1/4th share in M/s. P.C. Guddad and Sons. ... after the demise of my father, the property which was in his name has been registered in all his children. After the demise of our father, accounts have been settled with respect to his share in the firm. Upon a question, at the time of settling the accounts you have not asked the plaintiff, the witness replied, since he had no share, asking of share does not arise. There are documents with regard to the accounts regarding my father’s share. It is true that there is no documents in this regard. It is incorrect to suggest that I did not produce the account documents with an intention that if the same are produced before the Court the truth will be known and share of the plaintiff needs to be given. It is true that till the year 2005, in the balance sheet we have shown the amount payable to Somashekhar Guddad. ... ... It is true that in the balance sheet for the year 2005, Rs.1,78,000/- is shown as payable to the plaintiff. Upon the question as to why the said amount is shown, the witness answered that after retirement from the partnership he has not taken the said amount. ... Upon a question that the godown was also constructed from the income of the firms business, witness replied that we have

: 50 : constructed in our name from the funds of the partnership. ... ... upon the question that though everyone stayed separately the business was being run at the same place, the witness replied that it was being run in partnership. ... ... it is true that I constructed a house and thereafter moved into the said house, I was not paying rents when I was residing in the house of the plaintiff. I was maintaining the said house. It is incorrect to suggest that since the brothers had not separated, there was no talk regarding payment of rents. To the suggestion that the joint family was separated only for food, witness replied that isn’t it ours a joint family. ... to the question the house was constructed spending Rs.30 lakh, the witness replied that Rs.15 to 20 lakhs must have been spent and out of Rs.5 lakh from bank and the remaining amount was from the partnership firm and the loan taken on Life Insurance Policy.

: 51 : 26. It is contended on behalf of the defendants at paragraph Nos.24 and 25 of the written statement that the Pawadeppa Guddad who had engaged himself in jaggery and sweet oil business and closed the same in the year 1950-51, at which time, defendant No.1 was aged about 7 years, that the said Pawadeppa Guddad started business of commission agency in the rented premises and in the year 1961 he had purchased open site from the Dharwad Municipality and defendant No.1 joined his father in commission agency business and assisted his father and gained experience, that by about the year 1965-66, defendant No.1 was grown up and decided to carry on commission agency business as a partner, accordingly in the year 1966, they had started partnership business, that upon the contribution of the property bearing CTS No.65/41 by Pawadeppa Guddad to the partnership firm, he became entitled to only for ½ share, while the defendant No.1 become entitled to only for ½ share of the property. 27. The aforesaid contention of the defendants cannot be accepted to the extent of defendant No.1 becoming

: 52 : equal partner with that of his father even as in the year 1966. From the aforesaid pleadings in the written statement, it is clear that the Pawadeppa Guddad had started the business and had acquired the property at CTS No.65/41 in the year 1961, at which time, the defendant No.1 was still a minor. The fact that Pawadepa Guddad had earlier sold a portion of CTS No.593 to Gangappa on 02.04.1938 and repurchased the same on 22.04.1942 within four years and again purchased property in CTS No.65/41 in 1961, indicate that he must have had good business and income therefrom. There is no evidence regarding the so called loss of business which was purportedly improved by defendant No.1 as sought to be made out. It is normal, as in the instant case, that in a joint family business, elder son to join and assist the business set up by the father. That by itself cannot be interpreted to convey that the son becoming independent and equal partner with that of the father, more so, when the business had been set up by the father, who had acquired the property and had put the same into the partnership

: 53 : firm in the nature of utilizing the said land for the purpose of running the business for the benefit of entire family, there has been no contribution of any nature whatsoever by the defendant No.1. Such a plea is not even available as the defendant No.1 who was minor at that time. Subsequent constitution of the partnership firm with defendant No.1 alone under the circumstance, would not give any credence to the claim of defendant No.1 to have become the partner equal to that of the father. In any event the partnership firm admittedly reconstituted with the remaining three sons joining the business including the plaintiff with equal entitlement in the business, suit schedule properties as narrated above have been acquired subsequent to the demise of Pawadeppa Guddad admittedly from and out of the source of the business as specifically narrated by the defendants in paragraph Nos.31, 32 and 34 of the written statement. 28. CONCLUSION: (a) All members of the family stayed with the Pawadeppa Guddad under one roof in their old house in

: 54 : CTS No.593. Worked and earned in the business set up by him under the name and style of M/s. P.C. Guddad and Sons for the benefit of the entire family. All the four sons joined the said family business. Plaintiff moved out of the family due to his joining the service. Defendant No.2 stated to have stayed separate on and from the year 1996. Defendant Nos.1 and 3 constructed their homes during 2005. All these events prior to and subsequent to demise of Pawadeppa Guddad i.e., in the year 1989. The business which was started by said Pawadeppa Guddad continued even after his demise. All the sons including the plaintiff are shown as the partners of the business having specific capital share in the firm as reflected in the income tax returns being filed in the name of the firm by the defendants. There has been no partition either during the life time of Pawadeppa Guddad or after his demise. (b) In view of the aforesaid settled legal position and under the facts and circumstances of the case, it is clear that the family of plaintiff and defendants is a joint family, having joint family business and joint

: 55 : family properties and assets that the suit properties were acquired from and out of the source of the joint family partnership business established and run by the father of the plaintiff. Therefore, it cannot be accepted that the suit properties were not joint family properties only to deny the claim of the plaintiff. Thus, we are of the considered view that the suit properties were joint family properties acquired from and out of the joint family funds and the same are amenable for partition. (c) Further in view of the plaintiff having executed registered deed of relinquishment along with defendant No.2 as per Ex.P10, relinquishing his share, right, title and interest in the portion of the land bearing CTS No.593/1/MN in favour of defendant Nos. 1 and 3, he is not entitled for any share in the said property. (d) As regards the claim of the plaintiff in respect of the cash investments, gold ornaments and household furnitures, no satisfactory evidence is forthcoming justifying the claim of the plaintiff, as such, the same cannot be considered.

: 56 : (e) The plaintiff and defendant Nos.1 to 4 are held entitled for 1/5th share in the suit schedule properties available for partition. (f) We having held that the partnership business of M/s. P.C. Guddad and sons belonging to the joint family and in view of the admission made by the defendants that the share of the plaintiff in a sum of Rs.1,78,000/- has not been given and the same is reserved, earmarked and set apart from the year 1979 and also in view of the name of the plaintiff being reflected in the assessment/income tax returns as per Exs.P59 to P103 and in view of share of Pawadeppa in the business not having been settled, it is just and proper that the defendants be directed to render the account of the firm on and from the year 1979 till date. (g) The trial Court has not adverted to any of these aspects of the matter in the impugned judgment and decree while dismissing the suit. Therefore, the same is unsustaianble. 29. For the aforesaid analysis, we pass the following:

: 57 : ORDER (i) The appeal filed by the appellant/plaintiff is hereby allowed; (ii) The Judgment and Decree dated 30th November 2013, passed in O.S. No.248/2006 by the Principal Senior Civil Judge and CJM, Dharwad is hereby set aside; (iii) The plaintiff is held entitled for 1/5th share in item Nos. (A-1), (A-2), (B-2), (C-1), (C-2) (C-3), (C-4), (E-1) and (F) of the suit schedule properties; described in paragraph 2 of the plaint; (iv) There shall be an enquiry under Order 20 Rules 12(ba), 17 and 18(2) of the CPC with regard to mesne profit, accounts of the partnership business of M/s.P.C. Guddad and sons; and with regard to determination/division and allotment of the share of the plaintiff. (v) Draw preliminary decree accordingly.

Sd/- JUDGE

Sd/- JUDGE bnv* & Vnp*