APPEAL FROM ORIGINAL DECREE No. 863 of 1993 (R).

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Against the judgment dated 29th May, 1993 and decree signed on10th June, 1993 passed by Shri Mahendra Narayan Singh, 2nd Additional Subordinate Judge, Jamshedpur in Partition Suit No. 122 of 1990.

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Ravindra Taunk and others … … … … … Appellant

Versus

Smt. Vasanti B. Taunk and others … … … … Respondents

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For the Appellants : M/s. P.K. Prasad, Senior Advocate, Rahul Gupta and Ayush Aditya,

Advocate.For the Respondents No. 1,2 and 4 : Mr. Lalit Kumar Lal, Advocate.For the Respondent No. 3 : M/s. S.N. Das, Advocate.For Respondents No. 5 to 9 & 12 : M/s. Indrajit Sinha, D.K.

Chakravorty, Rohit Roy andHarjeet Singh, Advocate.

For the Respondents No. 10 & 16 : M/s. Manjul Prasad, SeniorAdvocate and S.L. Agrawal,Advocate.

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P R E S E N T

THE HON’BLE MRS. JUSTICE POONAM SRIVASTAV

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C.A.V. ON 19.04.2012. PRONOUNCED ON 25.4.2012.

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Poonam Srivastav, J. The instant appeal arises out of the judgment and decree dated

29.5.1993 and 10.6.1993 respectively passed by Shri Mahendra Narayan

Singh, 2nd additional Subordinate Judge, Jamshedpur in Partition Suit No.

122 of 1990.

2. The suit was filed for partition of the joint Hindu family properties

which consists of 13 properties. The plaintiff instituted the suit on the

ground that common ancestor of the parties Nanji Govindji Taunk died on

25th March, 1955 and all the aforesaid 13 properties are joint Hindu

family property and, the plaintiff and defendants are co-sharers. The

plaintiff claimed that the properties are liable to be partitioned. The

plaintiff claimed following reliefs:-

(a) for a a preliminary decree for 1/7th share in the

properties

described in Schedule 'B';

(b) for appointment of a survey knowing pleader

2.

commissioner to demarcate the plaintiff's 1/7th share in

the said schedule "B" properties;

(c) for a final decree on the basis of the pleader

commissioner's report and allotment chart;

(d) for costs of the suit;

(e) for any other relief or reliefs to which the plaintiff may

be entitled under law and equity.

3. Nanji Govindji Taunk left behind his widow i.e. 2nd wife Jetu Bai and

four sons from the wed lock and three sons from the wed lock of 1st wife

Heji Bai, who predeceased her husband in the year 1920. The

genealogical table of Late Nanji Govindji Taunk, at the time of institution

of the partition suit is detailed below:--

NANJI GOVINDJI TAUNK

(died on 25.03.1955)

Heji Bai Jetu Bai(predeceased in 1920) (died on 05.06.1974)

3 sons 4 sons

Ranchhod N.Taunk, Shyamji N. Taunk, Lakshman N. Taunk Govardhandas N. Taunk(died on 27.05.79) (Def. No. 4) (died on 11.10.73) (Plaintiff)

* Ratilal R. Taunk - son * Girish L. Taunk - son * Balram N. Taunk (Def. No. 10) (Def. No. 5) (Def. No. 1)

* Jayant R. Taunk - son * Nagilal L. Taunk - son * Nandlal N. Taunk (Def. No. 11) (Def. No. 6) (Def. No. 2)

* Jayo - daughter * Nitin L. Taunk - son * Hansraj N. Taunk (Def. No. 12) (Def. No. 7) (Def. No. 3)

* Must. Kokila - daughter * Must. Manjula - daughter (Def. No. 13) (Def. No. 8)

* Pushpa - daughter * Hansa - daughter (Def. No. 14) (Def. No. 9)

* Renu - daughter (Def. No. 15)

* Raji Bai - widow (Def. No. 16)

4. All the brothers were arrayed as defendants in Title (Partition) Suit

No.122 of 1990. The suit was decreed in respect of Item Nos. I, II, III and

V holding that these properties i.e. Item No. I-Holding No. 70, Contractor's

Area, Bistupur, Jamshedpur; Item No. III-Holding No. 105, Contractor's

Area, Bistupur, Jamshedpur and Item No. V is No. 6, S.B. Shop Area,

Bistupur, Jamshedpur are joint and, therefore, the plaintiffs and the

defendants are all entitled for an equal share (1/7th share) in the said

property. (So far the findings in respect of Property Nos. I, II, III and V are

3.

concerned, there is no dispute between the present plaintiff-appellants

and the defendant-respondents).

5. The suit was dismissed in respect of Property No. IV- Nalanda Hotel,

S.B. Shop Area, Bistupur, Jamshedpur; Item No. VII All House Properties

(one godown on "N" Road, West near Khalsa Club, P.S. Bistupur,

Jamshedpur. Item No. VI-Natraj Building, Bistupur, Jamshedpur; Item No.

VIII-TMG 10 and 11, Bistupur, Jamshedpur; Item No. IX-Godown at

Northern Town, Bistupur, Jamshedpur; Item No. X-House at Khasmahal,

Jugsalai, Jamshedpur; Item No. XI-Land measuring 2068 acres at

Asanboni, Chandil; Item No. XII-Land measuring 1.02 acres at Pardih,

Mango, Jamshedpur and Item No. XIII-Land measuring 65ft. x 45ft, Falidih,

Raipur, M.P. were held as not joint family properties.

6. One written statement was filed on behalf of defendants no. 1, 2

and 4; two separate written statements were filed on behalf of defendant

no. 3 and defendant no. 10. Defendants No. 5, 6 and 7 did not file their

written statement and did not contest the suit. The plaint was amended

after the entire evidence was recorded on 16th March, 1993 and the

amendment was incorporated. Subsequent to the aforesaid amendment,

defendants no. 10 and 16 and defendant nos. 1, 2 and 4 filed additional

written statements.

7. Issues were framed on 6th May, 1991 and the suit proceeded on

the basis of these pleadings.

After the suit was dismissed in respect of the properties other than

Property Nos. I, II, III and V which were held to be the joint Hindu family

property, the instant appeal was preferred. Defendants-respondents no.

5, 6 and 7 filed a counter claim in this Court on 14.10.2004 under Order

XLI Rule 22 of the Code of Civil Procedure which was dismissed vide order

dated 9th March, 2011 and the same was challenged in the Hon'ble

Supreme Court. The contesting parties have informed that it is still

pending. Previously, this Court postponed the hearing of the appeal on

account of pendency of the Special Leave Petition before the Supreme

Court. Subsequently, I. A. No. 1811of 2011 was preferred by the plaintiff-

appellants wherein they made a prayer that the appellants want to

withdraw the appeal in respect of Item No. VII. The appellants

unequivocally stated in the interlocutory application that the findings

arrived at by the court below were acceptable to him. This interlocutory

application (I.A. No. 1811 of 2011) was challenged on behalf of the

defendants-respondents no. 5, 6 and 7.

8. Shri Indrajit Sinha, Advocate on behalf of respondent nos. 5, 6 and

7, vehemently argued that he has a right to challenge withdrawal of the

4.

appeal in respect of one property which apparently is collusive. Shri

Indrajit Sinha brought to my notice an order passed by this Court in I.A.

No. 165 of 2005 dated 5th May, 2005 where the parties were injuncted

from alienating the property during the pendency of this appeal. This

order was passed during the pendency of the cross objection. Since the

cross objection has been rejected and the special leave petition is

pending, the subsequent I. A. at the instance of of the plaintiffs was

moved in collusion with respondent no. 1,only with a view to deprive

defendant nos. 4, 5 and 6 from the property and to circumvent the order

of injunction granted by this Court. They claimed that they have a share

in the property and further assertion of Mr. Indrajit Sinha is that though

no written statement was filed on their behalf, but he has a right to

advance his argument and challenge the judgment under Order XLI Rule

33 of the Code of Civil Procedure. Emphasis on behalf of respondents no.

5, 6 and 7 is that this is a partition suit and, therefore, all the parties are

plaintiffs and have an equal claim and share in the properties. Thus, in

view of Order XXIII Rule 1 (5), it clearly prohibits abandonment of part of

claim under sub-rule (1) or to withdraw part of the claim without the

consent of the other plaintiffs (partners of the partition suit). Learned

counsel has also stressed that though defendants no. 5, 6 and 7 failed to

prefer a written statement as well as their counter claim is rejected, the

said defendants cannot be deprived to contest the appeal under Order

XLI Rule 33 of the Code of Civil Procedure.

9. Learned counsel has relied on a decision of the Apex Court in the

case of Chandramohan Ramchandra Patil and others vs. Bapu Koyappa

Patil and others 2003 SCC 552. Paragraph 13 of the observation of the

Apex Court is quoted below:--

"In a suit for partition, plaintiff and defendants are parties of equal status. If the right of partition has been recognised and upheld by the court, merely because only some of the plaintiffs have appealed and not all, the court was not powerless. It could invoke provisions of Order 41 of Rule 4 read with Order 41 of Rule 33 of the Code of Civil Procedure. The object of Order 41 of Rule 4 is to enable one of the parties to a suit to obtain relief in appeal when the decree appealed from proceeds on a ground common to him and others. The court in such an appeal may reverse or vary the decree in favour of all the parties who are in the same interest as the appellant".

10. This is in support of the contention that the withdrawal by the

plaintiff at this stage of appeal which arises out of a partition suit smacks

of fraud and with an ulterior motive to deprive the defendants from their

share. It is also submitted that this Court has a right to examine these

aspects before the plaintiff-appellants is permitted to withdraw part of

the relief claimed in the suit so far it relates to property no. VII. Further

argument is that in a partition suit, all the defendants-plaintiffs have

equal rights; and, therefore, in the instant case, the suit cannot be

5.

withdrawn without consent of all the parties.

11. Shri P.K. Prasad, Senior Advocate assisted by Mr. Ayush Aditya,

Advocate argued that if this contention of learned counsel appearing on

behalf of respondents no. 5, 6 and 7 is accepted, then Order XXIII Rule 1

of the Code of Civil Procedure will never be applicable in any partition

suit whatsoever.

12. After hearing the respective counsel at length, I have also noticed

that injunction was granted during the time when cross-objection was

pending. Respondent No. 1 was also restrained from alienating the

property. Subsequently this cross-objection was rejected firstly because

no written statement was filed and secondly it was preferred at a very

belated stage. The appellants' counsel requested to await the decision of

Hon'ble Supreme Court in the pending S.L.P. on the cross-objection and

thereafter proceed with the final hearing.

13. Shri Indrajit Sinha gave statement on the basis of instruction of his

client that he will not press S.L.P. before the Apex Court in case he is

permitted to participate in the appeal and contest the appeal within the

four corners and ambit of Order XLI Rule 33 of the Code of Civil

Procedure. Respondents No. 5, 6 and 7 were arrayed as defendants

before the trial court and they are also parties. Admittedly they also have

an equal share in the property being descendants of the common

ancestor. It goes without saying that the power of the court under Order

XLI Rule 33 is inherent and a decree and order can be made not

withstanding that the appeal is only to a part of the decree and in favour

of all or any of the respondents or parties, although such respondents or

parties may not have filed any appeal or objection. Evidently Mr. Indrajit

Sinha has stated that he will not press S.L.P., therefore, this appeal can

be heard without awaiting the result of the Apex Court. Respondents No.

5, 6 and 7 are, therefore, permitted to advance their argument regarding

the properties in question including Property No. VII irrespective of the

fact that the plaintiff wants to withdraw his claim over the said property.

This Court while disposing of I.A. No. 168 of 2005 was also satisfied that

respondent no.1 or any of the party cannot be allowed to alienate the

property during the pendency of the appeal and, therefore, an order of

status quo was passed. This Court while deciding the instant appeal has

to ensure substantial justice and, therefore, the interlocutory application

moved at the behest of the plaintiff for withdrawal of his claim over

Property No. VII, even if allowed, respondents no. 5, 6 and 7 are entitled

to raise their objection within the ambit of Order XLI Rule 33 C.P.C. The

share and claim of the respective parties shall, therefore, be examined

6.

subsequently while deciding different properties at a later stage. The

plaintiff shall, however, make no claim over the property no. VII. His I.A.

stand disposed of in the aforesaid terms.

14. The plaint case as pleaded by the plaintiff-appellants is that all the

parties to the suit are Hindus and are governed by the Hindu Succession

Act. The common ancestor Late Govindji Kanji Taunk had two sons,

namely, Kachraj Govindji Taunk and Nanji Govindji Taunk. There was

amicable partition between the two brothers and they had separate

earning, residence and there was a severance of joint status. The suit

was instituted for partitioning the property of Nanji Govindji Taunk and

his heirs and legal representatives. The genealogical chart has already

been detailed above. The assertion in paragraph 7 of the plaint is that

Nanji Govindji had a large business out of his own income. Several

immovable properties and pucca houses were constructed and he also

left large number of movable properties in the shape of business of

different variety. The properties were acquired in his own name and some

in the name of the members of his joint family. In paragraph 12 of the

plaint, it is submitted that with effect from 1.1.1958, all the brothers

except Ranchhod decided to start a contract business in the name and

style of "Nanji Govindji & Sons". During continuation of the said firm,

some land at Asanboni and Pardih situated at National Highway No. 33

was purchased. Six brothers also purchased some land for Orchard and

cultivation purpose in the name of joint family members, namely,

Rajendra Shyamji and Govardhan Das Nanji, the plaintiff in the name of

Nanji Govindji & Sons. Thus the total land measuring about 21.70 acres

was purchased with an understanding that all the six brothers will enjoy

the fruits of the said property. It is further pleaded that about ten years

before the suit was instituted, Shyamji Nanji was put incharge of the land

to manage the same on behalf of the joint family but since last five years

till the day the suit was instituted, usu fructs of the land was not being

shared. The joint family also purchased Plot No. 65 in Khasmahal area

and constructed a bungalow in the year 1965. Further contention is that

the joint family acquired the land at "N" Town, Jamshedpur and also at

"N" Road, Bistupur near Khalsa Club for godown purposes in the

intervening period commencing from 1962 to 1968. In paragraph 15, the

contention raised on behalf of the plaintiff is that the contract and other

business used to be run in partnership in different names and joint family

members were partners of the said partnership business. In paragraph

17, the plaintiff has pleaded that during the period 1978-1979, the three

brothers suggested to reduce the number of partners in all the three

7.

firms for the purpose of income tax facility but no actual division took

place; only the returns were filed in different names with different

partners. Defendant No. 4 is alleged to have made a wrongful gain. The

plaintiff was deliberately segregated from all the business and he was

only concerned with the business Taunk Trading Co. and Taunk Brothers

which is being carried out from a rented premises. The allegation in

paragraph 19 of the plaint is that all the other five brothers claimed that

there is already a partition between the brothers and, therefore, this led

to institution of the suit being Title (Partition) Suit No. 122 of 1990.

15. Defendant Nos. 5 to 9 and 11 to 15 did not appear and file a written

statement. Defendants No. 1, 2 and 4, 3, 10 and 16 had contested the

suit by filing three written statement. As already stated above, one

written statement on behalf of defendants no. 1, 2 and 4 was jointly filed.

Defendants No. 3 filed a separate written statement and also adopted the

stand taken by defendants no. 1, 2 and 4. Defendant Nos. 10 and 16

preferred a separate written statement after the plaint was amended on

12.5.1993. An additional written statement was preferred by defendants

no. 10 and 16 and defendant nos 1, 2 and 4. The amendment was made

in paragraph 9 to the effect that Item Nos. I to V and VIII of Schedule B

properties were acquired by Nanji Govindji Taunk during his life time

between the year 1927 to 1948. Item Nos. 4 and 8 of the said schedule

were acquired by Nanji Govindji Taunk in the name of his son Shyamji N.

Taunk for the benefit of the joint family in the year 1939 and 1948

respectively. The properties described as Item Nos. 6, 7 and 9 to 13 were

acquired from the joint family fund/ properties of Nanji Govindji Taunk

and thus the Hindu undivided family of Nanji Govindji Taunk is still in

existence and there has been no partition of the properties between the

coparceners of the said Hindu undivided family. Each brother is entitled

to 1/5th share of all the properties.

16. The plaintiff has examined altogether two witnesses. P.W. 1 is the

plaintiff himself and P.W. 2 is J.B. Makwa. The exhibits detailed below are

the documents relied upon by the plaintiff:-

(i) Exts. 1, 1/A and 1/B are the three notices of the plaintiff dated

23.08. 1984, 12.09.1984 and 01.09. 1990 respectively.

(ii) Exts. 2 to 2/O are the registration receipts of the Post and

Telegraph Department.

(iii) Exts. 3 to 3/M are the acknowledgement receipts.

(iv) Ext. 4 is a registered envelop.

(v) Ext. 5 is the registered sale deed no. 4370 dated 14.07.1965

executed by vendor Dilip Kumar Aikhat in favour of Nanji

8.

Govindji & Sons.

(vi) Ext. 6 is the certified copy of ledger of Union Bank of India

pertaining to the month of July 1960.

(vii) Ext. 7 is a certificate dated 15.05.1991 issued by the

aforesaid bank.

(viii) Ext. 8 is a certificate of the Post and Telegraph department.

(ix) Exts. 9 and 9/A are assessments of income tax pertaining to

the year 1982-83 and 1981-82.

(x) Ext. 10 is page nos. 17 to 23 of a written roll of Nanji Govindji.

(xi) Ext. 11 is a letter dated 23.12.1980.

(xii) Exts. 13 to 13/D are the 5 nos. of slips in respect of mutation.

17. The contesting defendants have also examined eight witnesses,

namely, Nanalal Taunk (D.W. 1), Chitranjan Mandal (D.W. 2), Sahdeo

Pandey (D.W. 3), Raj Govind Singh (D.W. 4), Nagin Taunk (D.W. 5),

Hemant Taunk (D.W. 6), Suresh Sharma (D.W. 7) and Ratilal Taunk (D.W.

8), out of whom D.W. 1 is defendant no. 2 and D.W. 8 is defendant no.10.

D.Ws. 2, 3, 4, 5 and 6 are totally formal witnesses. D.W. 7 is Manager of

Nalanda Hotel. The contesting defendants have exhibited the following

documents:-

(i) Exts. A and A/1 are the two unregistered documents of

mutual settlement dated 31.07.1980 and 14.03.1976

respectively.

(ii) Exts. B and B/1 are the letters dated 5.6.1980 and 1.1.1984

addressed to Shyamji and his other brothers by

Govardhandas Taunk respectively.

(iii) Ext. C is an unregistered dissolution of partnership deed

dated 31st October, 1978.

(iv) Exts. D to D/3 are four unregistered agreements all dated 1st

November, 1978.

(v) Ext. E is a receipt dated 13.02.1956 issued by Ranchhod Nanji

Taunk and Exts. E/1 to E/4 are the four receipts dated 13.02.

1956 issued by Navyug Uddyog.

(vi) Exts. F and F/1 are two deeds of mutual agreement dated

17.03.1976.

(vii) Ext. G is an application made for obtaining certificate u/s 230

(1) of the Income Tax Act.

(viii) Exts. H to H/12 are various signatures.

(ix) Ext. I is the Income Tax Assessment Order dated 4.4.1957.

(x) Ext. J is a register of sale deed.

(xi) Ext. K is a partnership agreement.

9.

(xii) Ext. L is a certificate issued by Govardhandas Nanji Taunk;

Ext. L/1 is a certificate issued by Nalanda Hotel; and

Ext. L/2 is a certificate issued by Taunk Brothers.

(xiii) Exts. M and M/1 are the two documents pertaining to the

assessment year 1981-82.

(xiv) Ext. N is an unregistered deed of partnership dated 30th

October, 1973 and Ext. N/1 is a partnership deed dated 1st

April, 1979.

(xv) Exts. O to O/7 are the documents pertaining to Income Tax

assessment.

(xvi) Ext. P is a notice of dissolution of partnership and its

reconstitution.

(xvii) Exts. Q to Q/3 are four unregistered deeds of relinquishment.

(xviii) Exts. R and R/1 are two certificates issued by the Income Tax

department in respect of payment of income tax.

(xix) Exts. S and S/1 are two Demand Notices U/S 156 of the

Income Tax Act.

18. The following issues were framed by the learned court below:-

(1) Is the suit maintainable in its present form?

(2) Is the suit barred by limitation?

(3) Is the suit barred under the Specific Relief Act?

(4) Has the plaintiff any cause of action against defendant

no. 10?

(5) Is the plaint liable to be rejected for failure of the

plaintiff to plead material facts and particulars?

(6) Is the suit barred by principles of estoppel, waiver and

acquiescence?

(7) Which properties of Schedule 'B' of the plaintiff were

acquired by Nanji Govindji Taunk in his own name or

were acquired by heirs in the name of members of joint

family?

(8) Is the suit barred for acquiescence?

(9) To what relief, if any, the plaintiff is entitled?

19. I have gone through the pleadings, oral and documentary

evidences, the respective arguments of the counsel. The questions

formulated for decision in the instant appeal are as follow:--

(i) If the claim of the plaintiff that the entire property

mentioned in Schedule B of the plaint are joint property and

continues as joint even today and partnership business was

acquired from the joint Hindu family nucleus and, therefore,

10.

the business including partnership firm are liable to be

distributed amongst all the six brothers?

(ii) If the plaintiff has discharged his onus by means of the

oral and documentary evidence to substantiate the aforesaid

questions and thereby entitled for a share in all the

properties?

20. The plaintiff and all the defendants have not disputed regarding

Property Nos. (I), (II), (III) and (V). All the parties to the suit/appeal agreed

that the aforesaid properties were purchased by their common ancestor

and, therefore, each one of them have equal share in the aforesaid

properties. The trial court has also recorded its finding that admittedly

Item No. (I) was acquired in the year 1927; Item No. (II) in February,

1945; Item No. (III) in January, 1931 and Item No. (V) in June, 1938. I am

in complete agreement with the findings of the trial court in respect of

the aforesaid properties in respect of Item Nos. I, II, III and V. There is no

controversy between the respective parties and, therefore, I need not

record any finding so far these properties are concerned. The judgment

and decree of the court below are confirmed in respect of Item Nos. I, II,

III and V.

21. Mr. Manjul Prasad, learned senior counsel, has addressed on behalf

of respondents no. 10 and 16. Respondent No. 10 (Ratilal R. Taunk) is son

of Late Ranchhod N. Taunk and respondent no. 16 Raji Bai widow of Late

Ranchhod N. Taunk. Ranchhod N. Taunk is one of the sons of Nanji

Govindji Taunk from his first wife Heji Bai. Ranchhod N. Taunk died on

27.5.1979 leaving behind his widow Raji Bai, two sons and four

daughters, defendants no. 10 to 16. The claim of respondents no. 10 and

16 is only in respect of Item No. VI, beside the properties held to be joint

Hindu family property which is a house property known as "Natraj

Mansion". This is one of the properties described in Schedule B of the

plaint. The entire case of respondents no. 10 and 16 rests on the

additional written statement which was filed subsequent to the

amendment in the plaint. The plaintiff has though included this property

no. VI in Schedule B claiming this also to be a joint family property and

share of all other parties. It is contended that Ranchhod N. Taunk had

separated during the life time of his father. The additional written

statement on behalf of defendant nos. 10 and 16 also proceeds on an

assertion that 'Natraj Mansion' is built on a lease hold land. this was

never a joint family property. It is for this reason that this property is not

assessed under the income tax and wealth tax of Nanji Govindji Taunk

HUF. It is asserted that land was taken by means of a registered lease

11.

deed (Ext. K/1) and four persons i.e. Minoo Rustamji Patel, Ratilal R.Taunk

(defendant no. 10), second wife Raji Bai (defendant no. 16) and Homi

Home Patel had obtained lease from M/s. TISCO Limited pursuant to an

agreement dated 1st July, 1961 (Ext. X). The terms and conditions are

incorporated in the registerd lease deed. The building Natraj Mansion was

constructed by a separate fund and separate earnings long after the

death of Nanji Govindji Taunk. Ranchhod N. Taunk father of defendant no.

10 Ratilal R. Taunk had disassociated himself from the family in the year

1954 and he was never associated with any of the partnership firm. The

claim of partition on behalf of these defendant-respondents is only in

respect of the properties acquired by Nanji Govindji Taunk himself before

his death. The further contention of Mr. Manjul Prasad that the plaintiff

did not controvert the assertions of defendant nos. 10 and 16 nor

disputed any document, therefore, it amounts to implied admission.

Defendant No. 10 Ratilal R. Taunk appeared as a witness and was

examined as P.W. 8 and the plaintiff also does not dispute the claim of

respondents no. 10 and 16.

22. A number of exhibits have been produced to substantiate the

investment by Ranchhod N. Taunk and also that none of the parties to

the suit have claimed any right or interest in Property No. VI. The

judgment of the trial court in respect of property no. VI is hereby

confirmed. The plaintiff has not been able to substantiate that Natraj

Mansion is qua from the nucleus of the joint Hindu family and so far the

claim of the plaintiff is rejected in respect of Property No. VI.

23. The plaintiff has asserted in respect of Item No. XIII which is a land

measuring 65ft x 45ft situated at Faldih, Raipur (M.P.). In paragraph 27-A

of the plaint, it is pleaded that the property was purchased while in

jointness and this land was purchased in the name of Dilip N. Taunk son

of Nana Lal Taunk-defendant no. 2 and the plaintiff has got 1/7th share .

Defendant No. 2 filed additional written statement stating that the

property was acquired in the name of Dilip N. Taunk who is not a party to

the suit and it was also purchased from the individual separate fund. and

it has no concern whatsoever with the joint family property. The findings

recorded by the trial court that since he is not impleaded as a party,

therefore, the claim of the plaintiff cannot be considered and it was

rejected. I am in complete agreement with the finding of the trial court,

so far Item No. XIII is concerned and it does not require any

reconsideration. Hence I confirm the judgment and decree in respect of

Item No. XIII.

24. Item No. IV (Nalanda Hotel) situate at S.B. Shop Area, Bistupur in

12.

the town of Jamshedpur is claimed by defendant no. 3 (Hansraj N. Taunk).

Defendant No. 3 has claimed Item No. IV to be his exclusive property

after reconstitution of the firm Shyamji N. Taunk. The argument on behalf

of the appellant is that Item No. IV has been admittedly acquired by the

common ancestor Nanji Govindji Taunk from his own funds in the name of

his son Shyamji N. Taunk (defendant no. 4). Defendant No. 4 has not

appeared as a witness in support of his case. M/s. Nalanda Hotel, a

registered partnership firm was constituted only on 30.10.1973 by Ext. N.

Later on Shyamji N. Taunk (defendant no. 4) by a registered sale deed

dated 12.3.1974 (Ext. J) sold the said property in favour of M/s. Nalanda

Hotel. It was admitted by D.W. 1 in para 33 that Item No. IV, M/s. Nalanda

Hotel belonged to the joint family. The defendants have claimed that by

virtue of reconstitution of partnership deed from time to time, one or

other partners retired and ultimately Item No. IV (Nalanda Hotel)

remained the exclusive business of defendant no. 3.

25. The learned court below has recorded its findings on the basis of

Exts. 9 and 9/A, which are Income Tax and Wealth Tax returns for the

assessment years 1981-82 and 1982-83 and the conclusion in the

judgment is that Item No. IV was not mentioned as property belonging to

HUF in the said document. Therefore, this goes to prove that the partition

cannot be claimed in respect of Item No. IV.

26. Mr. S.N. Das, Advocate has also submitted that the plaintiff never

challenged the transfer (Ext. J) and reconstitution of the firm "Nalanda

Hotel" (Ext. N/1 dated 1st April, 1979) and the validity of the transfer

was, in fact, not disputed but the plaintiff has only claimed in the year

1990 that the property belongs to undivided joint family property. This

claim has been staked after a lapse of 17 years, whereas, limitation

under article 59 of the Limitation Act, 1063 is only for three years and,

therefore, the claim in respect of Item No. IV of Schedule B is barred by

limitation.

27. The emphatic submission by Mr. P.K. Prasad is that transfer by co-

parcerner (defendant no.4-Shyamji N. Taunk), without the consent of the

other coparceners is void. In the case of Thamma Venkata Subbamma vs.

Thamma Rattamma and others [1987 (3) SCC 294], the Apex Court ruled

that if in a joint Hindu family, one brother and brother's sons and

daughters constitute a HUF, a gift of the donner of undivided coparcenary

interest to his brother amounts to relinquishment or renuniciation of his

share in favour of other coparceners and the Apex Court held that such a

relinquishment to be valid. In that judgment, Article 264 from Mulla's

Hindu Law, fifteenth edition at page 357, it was clearly stated that such

13.

renunciation is not invalid even if certain conditions are laid down. The

only embargo is renunciation or relinquishment must of course be

genuine. Therefore, assuming the argument of Mr. P.K. Prasad to be

correct that these transfers were only for the income tax purposes then

the onus was on the plaintiff himself to establish that it was not genuine.

In the circumstances, this decision is of no help to the plaintiff.

28. The assertion of the plaintiff's counsel regarding the question of

limitation is also negated as in a partition suit, there is no question that a

claim of share in a HUF can be said to be either barred by limitation or for

want of any declaration within the limitation period. The findings by the

trial court regarding Item No. IV is recorded in paragraphs 38 to 48 of the

judgment. Various documents have been taken into consideration and

also the pleadings on behalf of the plaintiff-appellant in paragraphs 7, 8,

9, 15 and 16. I have also gone through the specific assertion on behalf of

the plaintiff and also schedule of the plaint. Paragraph 30 which is the

relief clause clearly mentions house property. A separate written

statement was submitted by D.W. 3-Hansraj N. Taunk. The pleading on

behalf of the defendant is specific that the sale deed was executed in the

year 1974. I have also specifically examined the statement of P.W. 1. The

claim of the plaintiff that there will be a presumption of jointness cannot

be accepted specially since the plaintiff has already been paid the

amount of Rs. 1,07,784. 85 Paise by cheque No. 110585 dated 31.7.1980

of Union Bank of India. The plaint is absolutely silent regarding this

payment though the plaintiff has tried to negate these aspects in his

statement. I have perused the findings of the trial court and there is no

reason for disagreeing with the said findings. It is also admitted by the

plaintiff that initially he was a partner in the firm having 11 per cent

share and the payment by cheque has been accepted by the court below

and, therefore, I do not find any reason to set aside the said finding.

29. Argument of Mr. P.K. Prasad regarding Item No. IV Nalanda Hotel

was purchased by Nanji Govindji Taunk, the common ancestor, from his

own funds in the name of his son Shyamji N. Taunk. Nanji Govindji Taunk

died on 25.3.1955. On his death, the said property will devolve upon all

his seven sons. Shyamji N. Taunk-defendant no. 4, along with his six

brothers will have 1/7th share each. Transfer by a Karta binds all the

coparceners only if the transfer is for a legal necessity. There is no

pleading of legal necessity in the written statement of defendants no. 1,2

and 4 and written statement of defendant no. 3. Mulla's Hindu Law clearly

provides that the onus of proving legal necessity lies upon the purchaser.

In the absence of a legal necessity, the sale deed (Ext. J) dated

14.

12.3.1974 will therefore, be void. Neither the vendor Shyamji N. Taunk,

defendant no. 4 nor the subsequent claimant Hansraj N Taunk, defendant

no. 3 have appeared as a witness in support of the sale transaction to

support its validity of the sale evidenced by Ext. J dated 12.3.1974.

30. The amount of Rs. 1,07,748.85 Paise, alleged to have been paid,

was only a book transfer and the same amount was returned by the

plaintiff Govardhandas Nanji Taunk which is proved by Exts. 6 and 7

which shows that a total sum of Rs. 1, 54, 408.66 Paise which includes

the book value transfer in respect of Item No. IV. At any rate, admittedly

Item No. IV was acquired by common ancestor Nanji Govindji Taunk and ,

therefore, at best his son Shyamji N. Taunk will have 1/7th share. Sale

(Ext. J) cannot be valid beyond 1/7th share of defendant no. 4. Rest

brothers will accordingly inherit 1/7th share each. This assertion on

behalf of the plaintiff is far fetched. The argument on the question of

'Legal necessity' amounts to carving out an altogether new case. The

plaintiff instituted the suit on the ground that all the properties of the

Taunk family is purchased by a Hindu Joint Family nucleus and, therefore,

each son has equal share. This is disputed by the brothers on the ground

that separate business commenced in the different name and style and

from the independent sources. The partners are also different, thus the

plaintiff is bound to prove its plaint assertion and not to derive arguments

from the defendants' defence.

31. Learned counsel on behalf of respondent no. 3 has stressed that

Nanji Govindji Taunk died on 25.3.1953 and also that he had purchased

Item No. IV in the name of Shyamji N. Taunk. The plaintiff was a partner

of Nalanda Hotel having 11% share consisting of eight partners, each one

of them having equal share only. Nitin L. Taunk had 12% share in the said

partnership constituted on 30.10.1973 (Ext. N). It is also admitted fact

that Shyamji Nanji Taunk Son of Late Nanji Govindji Taunk sold and

transferred to M/s. Nalanda Hotel for a valuable consideration. The

plaintiff, by means of a cheque, has received his entire share of the said

firm and since then he is not concerned whatsoever in Item No. IV of

Schedule B of the plaint. He has also stressed on the return of income tax

and wealth tax where only Nanji Govindji Taunk (P.W. 1) shown as Hindu

undivided family. Exts. 9 and 9/A are admitted documents and, therefore,

the plaintiff cannot challenge the finding of the trial court in the instant

appeal. The decisions cited by the appellants have no application

whatsoever. In case there is a disputed title, which cannot be decided in

partition suit and, therefore, the judgment of the trial court that Item No.

IV is not from nucleus of HUF is correct and calls for no interference.

15.

32. The submission on behalf of the plaintiff in respect of Item No. VIII,

Plot No. TMG 10 and 11 measuring 10977 sq. ft. (Navyug Udyog).

According to the plaintiff, this property was also acquired by the common

ancestor Nanji Govindji Taunk in the name of Shyamji N. Taunk-defendant

no. 4 in the year 1948. In the written statement of defendants no. 1, 2

and 4 at paragraph 30, the defendants have contended that this property

was acquired by Shyamji N. Taunk and made construction thereon.

33. The submission on behalf of the plaintiff is that in a suit for

partition, possession of one co-sharer is possession of another co-sharer.

There is no case of exclusion or ouster pleaded by the defendants. There

is no case of previous partition. As such even if defendant no. 4 is in

possession, in law, it amounts to possession of all the co-sharers. In item

No. VIII, defendant no.2-D.W. 2 Nanalal N. Taunk is a defendant where he

claims to carry on business of Navyug Udyog. Exts. E/1 to E/4 shows

payment of rent by Navyug Udyog to Shyamji N. Taunk-defendant no. 4.

These exhibits are from May, 1990 to December, 1990 which is evident

that when dispute amongst the parties was going on since March, 1979;

and ultimately suit was filed on 30.10.1990 after giving a legal notice.

Legal notice had already been given on 12.9.1984 (Ext. 1). Therefore,

Exts. E/1 to E/4 were totally unreliable and appears to have been created.

Ext. 9 (Income Tax Return for the Assessment year 1982-83) and Ext. 9/A

(Wealth Tax Return for the Assessment year 1981-82) have been filed by

Nanji Govindji Taunk (HUF). Therefore, these documents show that HUF

continued to exist all throughout. The plaintiff (P.W. 1) as well as

defendant no. 2(D.W. 1) have admitted that the firms were constituted

and reconstituted right from 1954 onward only for the purposes of tax.

This contention on behalf of the plaintiff is a bald assertion and cannot be

accepted on the face of it.

34. So far as Item Nos. 7, 9, 10, 11 and 12 are concerned, the plaintiff

has pleaded in para 9 of the plaint that these properties were acquired

out of the joint property funds/property of Nanji Govindji Taunk and the

HUF of Nanji Govindji Taunk is still existing.

35. Further submission on behalf of the plaintiff is that on perusal of

Ext. K, it appears that the parties were carrying on joint family business

in the name and style of M/s. Nanji Govindji & Sons, Govardhan Brothers

and Taunk Brothers. These three family businesses were converted into

partnership by Ext/ K with effect from 3.11.1954. Clause 1 of Ext. K takes

within its sweep, the different businesses of contract business, jewelery

business, hardware business, ready made garments business, radio

business etc. Clause 9 prohibits any partner from transferring any

16.

property or any interest of any partner. Thus by Ext. K, the joint family

business i.e. M/s. Nanji Govindji & Sons, Govardhan Brothers and Taunk

Brothers got converted into partnerships which stand admitted by D.W. 1,

Nandlal N. Taunk in para-64. This partnership continued to exist and was

dissolved by a deed of dissolution dated 31.10. 1978 (Ext. C). This Ext. C

shows that on 31.10.10978, the three joint family businesses which had

been converted into partnership by Ext. K was again agreed to be

divided between the partners. At the relevant time, M/s. Nanji Govindji &

Sons was allotted to defendant no.4-Shyamji N. Taunk and Girish N.

Taunk son of Lakshaman N. Taunk. similarly M/s. Taunk Brothers was

allotted to 4th and 5th partners i.e. Balram N Taunk-defendant no. 1 and

Nanalal N. Taunk-defendant no. 2 whereas M/s. Taunk Trading Company

was allotted to 3rd and 6th partners i.e. Govardhandas N. Taunk, the

plaintiff and Hansraj N. Taunk, defendant no. 3. In Ext. C it has been

provided that with effect from 1.11.1978 i.e. (from the very next day),

these new partnerships as per allotment in Ext. C shall come into

existence. Accordingly, on 1.11.1978, Ext. D was executed by all the six

parties agreeing to bifurcate their joint family businesses which was

converted into partnership businesses by Ext. K. Immediately on the

same day, i.e. on 1.1.1978, three more agreements were executed by the

parties as per the allotment which has been marked as Ext. D (with

respect to M/s. Nanji Govindji & Sons); Ext. D/1 (with respect to M/s.

Taunk Brothers) and Ext. D/2 (with respect to M/s. Taunk Trading Co.) and

Ext. D/3 (with respect to Nanji Govindji & sons).

36. Thus execution of the deed of dissolution on 31.10.1978 (Ext. C)

and execution of four agreements (Ext. D series) on the very next day i.e.

1.11.1978 itself goes to establish that these were only meant for creation

of different partnership firms for the purposes of avoiding tax liability and

for increasing the income of the business which has been admitted in

para 64 by D.W. 1. Ext. F dated 14.3.1976 whereby agricultural land of

Asanbani were transferred to defendant no. 4 and Ext. F/1 dated

14.3.1976 and Item No. X-Khas Mahal Plot No. 65 belonging to the firm

were transferred to the plaintiff-appellant. All these documents are

unregistered and have been created only for avoiding liability of tax so as

to increase the income of the family. Thus all the properties i.e. Item Nos.

VI to XIII having been acquired during continuance of the joint family

business by Ext. K in the shape of partnership will definitely be joint

family properties and will be available for partition.

37. The argument and contention on behalf of the plaintiff in nut shell

is that there is a presumption in a Hindu family that property is joint and

17.

a sufficient nucleus for acquisition of the property is established. Further

submission is that the evidence of the witnesses proceed on an

assumption that common ancestor Nanji Govindji Taunk had a flourishing

business of his own and was able to constitute a nucleus which led to

acquisition of a number of properties and the partnership firm claimed by

the defendants to be exclusive of the respective partners cannot be

accepted for the reason that these firms were constituted from the

nucleus of the joint family; there is no proof about separate and exclusive

earning of the respective partners and, according to paragraph 233 of

Mulla's Hindu Law, Eighteenth Edition, the onus is on the person to

establish that certain property is not from joint nucleus, who claims that

the property was acquired from the personal earnings. Paragraph 233 of

Mulla's Hindu Law Eighteenth edition at page 232 is quoted below:-

"233. PRESUMPTION AS TO COPARCENARY AND SELF- ACQUIRED PROPERTY

(1) Presumption that a joint family continues joint.__Generally speaking, the normal state of every Hindu family is joint. Presumably every such family is joint in food, worship and estate. In the absence of proof of division, such is the legal presumption. In other words, given a joint Hindu family, the presumption is, until the contrary is proved, the family continues joint. The presumption of union is the greatest in the case of father and sons."

38. For want of necessary proof, the statement of the witnesses cannot

be accepted. Great emphasis is on the question of legal necessity; or in

absence of any legal necessity contended by the defendants, sale by

Karta, in the instant case, is void and thus was unable to discharge the

onus of substantiating that the sale was made for a legal necessity.

Reliance has been placed on a number of decisions viz., AIR 1981

Allahabad 335; AIR (34) 1947 Privy Council 189;AIR 1954 SC 379; AIR

1965 SC 289; AIR 1969 SC 1076.

39. On the basis of a decision of the Apex Court in Srinivas Krishnarao

Kango vs. Narayan Devji Kango and other (AIR 1954 SC 379), learned

counsel has submitted that proof of existence of a joint family though

does not lead to presumption that property held by any member of the

family is joint and the burden rests upon any one asserting, but when it is

established that the family possessed some joint property from its nature

and a relative value may have formed a nucleus from which the property

in question may have been acquired, the burden shifts on the party

alleging self acquisition to establish affirmatively that the property was

acquired without the aid of the joint family property. While ruling this,

reliance was placed on a decision of the Privy Council in Appalaswami vs.

18.

Suryanarayanamurti and others (AIR (34) 1947 Privy Council 189).

Reliance has also been placed in the case of K.V. Narayanaswami Iyer vs.

K.V. Ramakrishna Iyer and others (AIR 1965 SC 289). Emphasis is on the

proposition by the Apex Court that the legal position is well settled that if,

in fact, on the date of acquisition of the property, the joint family has

sufficient nucleus for acquiring the property in the name of any member

of the joint family should be presumed to be acquired out of the family

funds and, therefore, to form part of the HUF unless a contrary is shown.

Another decision cited by Mr. P.K. Prasad is Mudigowda vs. Ramchandra

(AIR 1969 SC 1976). Paragraph 5 of the judgment is quoted hereinbelow:-

" It is now well established that an agreement between all the coparceners is not essential to the disruption of the joint family status, but a definite and unambiguous indication of intention by one member to separate himself from the family and to enjoy his share in severalty will amount in law to a division of status. It is immaterial in such a case whether the other members assent or not. Once the decision is unequivocally expressed, and clearly intimated to his co-sharers, the right of the coparcener to obtain and possess the share to which he admittedly is entitled, is unimpeachable.

If, however, the expression of intention is a mere pretence or a sham, there is in the eye of law no separation in the joint family status".

40. The decision in the case of Appalaswami (Supra), it is categorically

held that the principle laid down is proof of existence of a joint family

does not lead to the presumption that the property held by any member

of the family is joint; the burden rests upon any one asserting that any

item of property is joint to establish this fact, but where 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

with the aid of the joint family property.

41. Thus the assertion on behalf of the plaintiff-appellant on the basis

of the aforesaid decisions as well as during course of argument, the

repeated emphasis of the learned counsel that there was no partition

whatsoever and all the properties including the business are an outcome

of joint family nucleus. There is sufficient proof of the fact that the father

of the plaintiff had sufficient means to acquire the property and the

creation of the partnership firm are from the joint nucleus and, therefore,

the claim of the defendants should not be accepted. Thus the judgment

of the trial court is repeatedly criticised.

42. Once again the arguments are controverted by Mr. L.K. Lal,

appearing on behalf of defendants no. 1, 2 and 4 i.e. the substituted heirs

of respondent no. 1 and substituted heirs of respondent no. 4 and

respondent no.2 as well. Accepting the finding of the court below

19.

regarding Property Nos. I, II, III and V being joint and liable for partition,

he has raised his objection in respect of Property Nos. VII, VIII, IX, X, XI

and XII. These properties were acquired by the firm Nanji Govindji & Sons

and it is not a joint family business. Section 14 of the Partnership Act

provides that the property of the firm is subject to a contract between the

partners which includes all property, right and interest, originally brought

into the stock of the firm or acquired by purchase or otherwise by or for

the firm or for the purpose in course of business of the firm. In case, there

is any objection that the property was not purchased by the firm Nanji

Govindji & Sons, it can only be decided in a separate proceedings and

cannot be a subject matter of a partition suit. His submission in respect of

Item No. VIII purchased in the name of defendant no. 4 is that it was

defendant no. 4 alone who managed the property. It can only be said that

till Nanji Govindji Taunk was alive, the properties purchased by him can

be said to be joint but subsequent to his death, any assertion on the part

of the plaintiff cannot be accepted. He has placed paragraph 228 of

Mulla's Hindu Law sixteenth Edition at page 253 which is quoted below:--

"228. Property jointly acquired.--(1) Where property has been acquired in business by persons constituting a joint Hindu family by their joint labour, the question arises whether the property so acquired is joint family property, or whether it is merely the joint property of the joint acquirers, or whether it is ordinary partnership property. If it is a joint family property, the male issue of the acquirers take an interest in it by birth. If it is the joint property of the acquirers, it will pass by survivorship, but the sale issue of the acquirers do not take interest in it by birth. If it is partnership property, it is governed by the provisions of the Indian Partnership Act, 1932, so that the share of each of; the joint acquirers will pass on his death to his heirs, andk not by survivorship."

43. The assertion in the plaint in paragraphs 7, 8, 9, 13 and 14 are

regarding acquisition from the joint family nucleus. This is replied and

controverted in the written statement that only those properties which

were acquired during the life time of the father are joint and nothing

beyond it. Learned counsel has pointed out that assertion of paragraph 9

of the plaint that the property was purchased from the joint family

nucleus but the evidence is absolutely contrary to it and paragraphs 12,

15 and 16 of the statement of the plaintiff is that the firm acquired the

property and was constituted in the year 1958. The common ancestor

admittedly died in the year 1955 and also retired from the business in the

year 1944. Thus the joint family property has got nothing to do with the

acquisition by the firm Nanji Govindji & Sons. The rival contention

between the defendants no. 2 and 4 vis-a-vis respondents no. 5 to 9

regarding creation of the partnership of Item No. VII which was purchased

by Nanji Govindji & Sons. The plaintiff has surrendered his appeal

regarding Item No. VII which has hotly been objected on behalf of

respondents no. 5 to 9.

20.

44. Mr. Indrajit Sinha, appearing on behalf of these respondents, have

tried to controvert the arguments regarding this property. During the

course of the proceedings, injunction order was passed restraining

respondent no. 1 or any other party from alienating this property or any

other subject matter of the suit during the pendency of the appeal. In

these circumstances, the objection has been raised by Mr. Indrajit Sinha

and Mr. Rohit Roy , Advocate appearing on behalf of respondents no. 5 to

9 that the appellant has given up his claim in respect of Property No. VII

only with a view to circumvent the interim order granted on 5.5.2005.

The argument on behalf of the plaintiff, giving up his claim and assertions

of Mr. L. K. Lal in respect of respondents no. 1, 2 and 4 that it is his

exclusive property and the arguments on behalf of respondents no. 5 to 9

relating to the said property is apparently regarding the question that

whether the conclusion arrived at by the trial court regarding exclusive

ownership of respondents no. 1, 2 and 4 in exclusion of the other

defendants and the plaintiff is beyond the pleadings and the relief

claimed in the instant suit; the controversy raised at the behest of

respondents no. 5 to 9 can only be examined within the ambit of Order

XLI Rule 33 CPC by this Court. The case of the plaintiff as well as the

defendants is that initially the properties shown as Item Nos. VII, VIII, IX,

X, XI and XII were in the name of Nanji Govindji & Sons. The trial court

dismissed the suit in respect of the aforesaid properties. The trial court

has recorded its finding against the plaintiff but has gone further and

recorded finding allocating shares and constituents of the partnership

firm amongst the defendants and also vis-a-vis respective members of

the family.

These findings are recorded on the basis of various deed of

partnership firms. Thee are dissolution deeds, deeds of reconstitution etc.

The objection of Mr. Indrajit Sinha appears to be well founded on the

ground that these are unregistered deed and also without the consent of

all the partners. Section 19 (2) (g) of the Partnership Act placesa

statutory bar.

Apparently there was no such relief claimed in the suit for allocating

the different shares in the partnership firm and also holding as to who are

the partners of which firm and what is the basis or evidence to come to

the said conclusion. In fact, the suit is preferred claiming that all the

properties including his business and partnership firm are from the joint

family nucleus and, therefore, they continued to be a joint family property

and the relief claimed is for partition and allocating 1/7th share to each of

the sons of Late Nanji Govindji Taunk. It is also to be noticed that

21.

defendants no. 5 to 9 did not contest the suit nor file any written

statement. The counter claim preferred in this appeal stands rejected

and, therefore, the arguments available to respondents no. 5 and 9 is

very limited but nothing constrains this Court to go into the questions of

fact, pleadings, relief claimed and appraise the evidence on record. No

doubt, running of several firms does not necessarily imply separation and

no such inference can be drawn merely because there are a number of

business under different names in existence or the claim that

partnership firms were formed for better handing business or to keep it

manageable or for various other reasons, it is well within the scope of the

first appellate court to examine all these aspects.

45. Mulla's on Hindu Law 16th Edition states in para 222:-

"222. Incidents of separate or self-acquired property.-- A Hindu, even if he be joint, may possess separate property. Such property belongs exclusively to him. No other member of the coparcenary, not even his male issue, acquires any interest in it by birth. He may sell it (s), or he may make a gift of it, or bequeath it by will, to any person he likes (t). It is not liable to partition (u), and, on his death intestate, it passes by succession to his heirs, and not by survivorship to the surviving coparceners (v)."

Therefore, it is settled law that there is no presumption that a

family, because it is joint, possess joint property. When in a suit for

partition a party claims that any particular item is joint family property,

the burden of proving it rest on the shoulders of the person asserting it.

46. The properties mentioned Item Nos. VII, IX, X, XI and XII are ,

therefore, not required to be decided separately. The plaintiff's emphatic

assertion is that the burden rests on the defendants to substantiate that

the firms were from the own source of partners lies on the shoulder of the

defendants since the plaintiff has pleaded that Nanji Govindji Taunk had a

successful business from which several properties were purchased which

are admittedly joint today and the trial court has accepted this contention

without any objection. The firms constitute amongst the heirs of Late

Nanji Govindji Taunk have not shown that the firms were constituted by

their separate earning. The only inference that can be draw is that the

property remained joint. The court below has categorically recorded its

findings that certain properties such as Item Nos. I, II, III and V are joint

purchased by Nanji Govindji Taunk. He had a lucrative business but so far

the other properties are concerned, they were much after their father

retired from his business. Thus this alone cannot prove and substantiate

the appellant's claim that business and firms constituted much after his

retirement was also from joint family. I do not agree with the submission

on behalf of the plaintiff appellant.

47. I have carefully scrutinised the evidences and the plaint. The

22.

plaintiff in paragraph 30 has prayed for a preliminary decree for 1/7th

share in the properties described in Schedule B. Thereafter the

consequential relief of appointment of survey knowing pleader

commissioner to demarcate the share and for preparation of final decree.

Schedule B mentions as many as XIII properties. Property No. I relates to

house property situate on lease Holding No. 70, measuring 16,684 sq. ft.

in Contractors' Area, P.S. Bistupur, Town Jamshedpur, District Singhbhum

(East); Item No. II All that house properties situate on Lease Holding No.

117, area measuring 16,566 sq. ft. in Contractors' area, P.S. Bistupur,

Town Jamshedpur, District Singhbhum (East) ; Item No. III. All that house

properties on Lease No. 105, measuring 2,309 sq. ft. in Contractors' area,

P.S. Bistupur, Town Jamshedpur, District Singhbhum (East); Item No. IV:

All that house properties situate (Nalanda Hotel) on Lease 3-SB Shop,

measuring 3,964 sq. ft. in Main Road, P.S. Bistupur, Town Jamshedpur,

District Singhbhum (East); Item No V: All that House Properties situate at

Holding No. Nil, Lease No. 6-SB Shop, measuring 4,182 sq. ft. in P.S.

Bistupur, Town Jamshedpur, District Singhbhum East; Item No. VI: Half of

all that house properties (Natraj Building) situate on Holding No. Nil,

Lease No. A, B, measuring 31,000 sq. ft. in P.S. Bistupur, Town

Jamshedpur, District Singhbhum East; Item No. VII: All that House

Properties situate (one Godown on "N" Road, West, Near Khalsa Club)

measuring 9596 sq. ft. in P.S. Bistupur, Town Jamshedpur, District

Singhbhum (East); Item No. VIII: All that house properties situate on Plot

No. TMG 10 & 11, measuring 10,977 sq. ft. in P.S. Bistupur, Town

Jamshedpur, District Singhbhum East; Item No. IX. All that house

properties situate in 'N' Town, Godown at Northern Town, measuring

14,566 sq. ft. in P.S. Bistupur, Town Jamshedpur, District Singhbhum East;

Item No. XI. All that piece and parcel of lands measuring a total area of

20.68 Acres situate in Mouza Asanboni, P.S. Chandil, District Singhbhum

(W); Item No. XII. All that piece and parcel of land measuring a total area

of 1.02 Acres in Mouza Paridih, P.S. Mango, District Singhbhum (East);

Item No. XIII. All that piece and parcel of land measuring 65" x45"

together with the building structures standing thereon bearing Khesra No.

258 at Faladih, District Raipur valued at Rs. 70,000/-.

48. It is thus evident that the relief claimed in suit is only to the house

property even if the amendment on 12.5.1993, paragraph 9 was

amended but not the relief clause. It is thus clear that no relief or claim

regarding the partnership firm which was admittedly constituted after the

common ancestor retired from the family business is pleaded. It is

admitted by the plaintiff in his statement that Nanji Govindji Taunk retired

23.

from the business in the year 1944. Thereafter the properties acquired by

him during his life time continued to be joint family property but

thereafter the firm Nanji Govindji & Sons was constituted at a very late

stage and thus no presumption can be drawn whether these business

were commenced from the joint family nucleus.

49. In view of the aforesaid settled principles of law, it is to be tested

that whether Property Nos. VII to XII, which are in fact not house

properties but are partnership business can be said to be joint Hindu

family property. The admitted position is that the father of the original

plaintiff acquired certain movable and immovable properties and

engaged in several construction and Hardwares business. The firms Nanji

Govindji & Sons was a firm floated constituting six brothers as partners,

seventh son Ranchhod N. Taunk had separated during the life time of his

father. Gobardhan Brothers and Taunk Brothers were also constituted by

six partners. Since certain difference arose in the year 1954, the family

business carried on in the name of three firms was partitioned and a deed

was executed on 29.10.1954. The firm Nanji Govindji & Sons was a

partnership firms under the provision of Indian Partnership Act, 1932 and

was constituted with the aid of separate capital. The terms and conditions

are duly recorded in the deed marked as Ext. K which is dated 3.11.1954.

It is thus clear that these firms could not be the subject matter of the

partition suit since it is not a joint Hindu family property. The plaintiff has

neither pleaded nor proved by evidence that the income of the firm

blended with joint Hindu family property. On the contrary, prior to the

institution of the suit, a notice was given by the defendants to the

plaintiff for partition of joint family property which is marked as Exts. 1, 1/

a, 1/b, and 1/c and asked for partition in the immovable property. These

properties marked as item nos. I. II, III and V, this is not disputed by any

of the parties to the suit or this appeal.

I uphold and confirm the judgment of the trial court. The remaining

properties other than shown as Item Nos. I, II, III and V are not joint family

property and not acquired from HUF funds. The partners/sons of Nandji

Govindji Taunk acquired from their independent income. Once it is

concluded that there was a disruption of joint family, then merely saying

that HUF continues is not sufficient. Admittedly one brother Ranchhod N.

Taunk separated long back and has his independent earning, the

conclusion is definitely that the joint family disintegrated.

The decision of the Supreme Court in the case of Kalyani vs.

Narayanan [1980 Suppl SCC 298 (Para 28)] wherein it has been held as

under:

24.

"28. Once disruption of joint family status takes place as Lord Westbury puts it in Appovier's case, it covers both a division of right and vision of property. If a document clearly shows the division of rights and status its legal construction and effect cannot be altered by evidence of subsequent conduct of parties."

  50. In view of what has been stated above and also on a close perusal

of the evidence and the pleadings, the submission of Mr. P.K. Prasad that

besides the properties number shown as Item Nos, I, II, III and V held to

be acquisition of a joint Hindu family, it cannot be accepted that the

remaining properties are also joint family acquisition. Admittedly, there is

no dispute regarding Property Nos. VI and XIII. If there is no separation,

Ranchhod N. Taunk should also have constituted as member of the family

business commenced at a later date. The trial court khas recorded a

finding that Property No. VI Natraj Mansion shown in schedule B in the

relief clause of the plaint is exclusive property of Ranchhod N. Taunk

and his heirs. Similarly the property shown at Item No. 13 situate at

Raipur (M.P.) belongs to Dilip N. Taunk who was not even arrayed as

party to the suit and all the remaining parties to the suit and appeal have

not objected to the said assertion and, therefore, I am in complete

agreement with the said finding.

51. The argument on behalf of the plaintiff-appellant that there is a

presumption of property being joint and acquired from a Hindu joint

family nucleus has not been established and proved by the appellant,

hence not sustainable. The firm Nanji Govindji & Sons was constituted

consisting of six partners. The two other firms, namely, Govardhan

Brothers and Taunk Brothers were also constituted and the obvious

conclusion is that the capital was partitioned and a deed of partition was

executed on29.10.1954 wherein it was also agreed that immovable

properties by Nanji Govindji Taunk would be left joint. Business in the

name and style of Nanji Govindji Taunk has two branches, namely

Govardhan Brothers and Taunk Brothers. The firm Nanji Govindji & Sons

was established under the provision of Indian Partnership Act, 1932 with

the aid of divided and separated capital. The terms and conditions of the

partnership were duly recorded in an Indenture of partnership dated

3.11.1954 marked as Ext. K; perusal of the same establishes that on and

from 29th October, 1954, partnership was separated from the joint Hindu

family and, therefore, any acquisition or profit made by the firm was

exclusive property of the firm and the disposal thereof would strictly have

to be in terms of sections 14 and 15 of the Partnership Act.

52. The findings of the trial court regarding respective shares and

contract in the partnership firms, its constitution and reconstitution etc.,

25

was neither pleaded in the plaint nor relief was claimed, but the plaintiff

has asked for 1/7th share in each of the property. Therefore, in my view,

the findings arrived at by the trial court deciding and allocating the

different partnership firm to the respective defendants is a finding which

is beyond the pleadings and the relief claimed in the plaint. The suit was

by the plaintiff claiming 1/7th share in all the properties. In my view, no

decree could have been passed in respect of the business which are

admittedly partnership business and cannot be termed to be the H.U.F.

properties as claimed in the relief clause. Thus, in my view, the findings

of the court below regarding the remaining properties cannot be upheld.

The respective shares and the claim in the partnership firm can be

contested in a separate suit in accordance with the Partnership Act but

not in the appeal. The validity of certain partnership deeds which are

unregistered and also challenged by Mr. Indrajit Sinha cannot be

adjudicated in this appeal as it is not the relief claimed in the instant suit.

The findings recorded by the trial court is beyond the pleading, any

evidence read by the trial court is not within the frame of the pleadings

of the suit and cannot be taken into consideration. Hence this part of the

judgment is set at naught. However, no findings regarding share can be

assessed in this appeal. The parties shall continue with the present

constitution of the firms till the respective claims are decided in a suit

under the Partnership Act, 1932.

53. In these circumstances, it is, therefore, concluded that:

(i) The decision of the court below regarding property nos.

I, II, III and V being joint and acquired by common ancestor in

that capacity is upheld and each of the sons of Nanji

Govindji Taunk are entitled for 1/7th share.

(ii) Item No. VI is an exclusive property of Late Ranchhod

N. Taunk and at present is the exclusive property of

respondent nos. 10 and 16 and no other family member has

a share in it.

(iii) Property No. XIII is also not partiable and does not

constitute Hindu Undivided Family Property.

(iv) The plaintiff has not been able to substantiate that the

partnership business shown in Schedule B are acquisition of

HUF nucleus and, therefore, he has also a share in the said

property and the suit and appeal is, therefore, dismissed.

26.

54. In the result, this appeal fails and is, accordingly, dismissed in

terms of the findings recorded above. No order as to costs.

(Poonam Srivastav, J.)

Jharkhand High Court, Ranchi.The 25th April, 2012.AKS/AFR/Cp.3.