Amirthalingam vs Uthayathamma and 15 others

S.S. Subramani, J.—Plaintiff in O.S. No. 132 of 1979, on the file of Sub Court, Kumbakonam, is the appellant. Suit filed by him was one for partition. A preliminary decree was passed in respect of some of the items scheduled to the plaint. Not satisfied with the same, plaintiff has preferred this Appeal.

Material averments may be summarised thus:- One Govinda Padayachi had three sons and two daughters. They are, plaintiff, Ganapathi and Ramachandra Padayachi. Ganapathi and Ramachandra Padayachi, are no more, and defendants 1 to 8 are the legal representatives of Ganapathy Padayachi, and defendants 9 to 15 are the legal representatives of Ramachandra Padayachi, namely, widow and children. Two daughters of Govinda Padayachi are Jagadambal and Sarasu. They are respectively defendants 16 and 17. 17th defendant died pending suit, and plaintiff and defendants 1 to 16 were recorded as her legal representatives. It may not be out of place to mention at this stage that apart from the three sons, Govinda Padayachi had one more son by name Gopal Padayachi. He got married with one Kanaga. From the evidence, it is further seen that Gopal Padayachi died a few years after Govinda Padayachi''s death, and his wife Kanaga left the village, and she was not heard by persons who might have normally heard of her, for more than seven years, and therefore, she is presumed to be dead. They had no issue.

It is the case of the plaintiff that Govinda Padayachi died some time in 1957, and thereafter Ramachandra Padayachi took the reins of the family and with the income derived from the family assets, he purchased various items either in his name or in the name of his wife. It is also alleged that the joint family cultivated their own lands, and they were also having leasehold lands. All the joint earnings and funds of the plaintiff and Ganapathy Padayachi were given to the joint family manager Ramachandra Padayachi, It is also said that the family was in possession of properties at Puthagaram village, and the same were sold on 1967, and out of the proceeds, properties were purchased in the name of either Ramachandra Padayachi or his wife. Ramachandra Padayachi died in July 1976, and a few months before that, Ganapathy Padayachi also died. It is also said that the plaintiff, Ganapathy Padayachi and Ramachandra Padayachi were managing the properties and cultivating the same. They were doing paddy business, brick kiln business and were also running grocery shops. After the death of Ramachandra Padayachi, various demands were made for partition of the family assets. But the legal heirs of Ramachandra Padayachi did not yield to the request and this necessitated the filing of the suit. It is said that the plaintiff is entitled to 5/16 shares in the suit properties.

In the written statement filed by second defendant and adopted by defendants 1 and 3 to 8, it is said that none of the plaint items are family items. Item No.1 property belongs to Janaki Ammal, mother of the plaintiff and late Ramachandra Padayachi. It is said that the mother of Ramachandra Padayachi is the sister of first defendant''s father, and, due to close relationship, the property was purchased in the name of Janaki Ammal with the funds provided by first defendant''s father, and the fund contributed by late Ramachandra Padayachi. It is not a family asset. Therefore, plaintiff cannot claim a share as if it belonged to the family. Regarding Item 2, it is said that the same absolutely belonged to late Ramachandra Padayachi. The entire family assets were sold in 1967, and out of the sale proceeds, sale deeds were taken in the names of the brothers and their wives. Items 4 and 5 in the plaint schedule were purchased by Ramachandra Padayachi in the name of his wife out of the sale proceeds, and the same cannot be treated as joint family properties. Plaintiff has already been given his share when the sale deed was executed, and he has also purchased properties in the name of his wife on the very same date. The allegation that the paddy business, brick kiln business and grocery shop business belong to the family, is also denied. All these business belong absolutely to Ramachandra Padayachi and none of the brothers had any share over the same. Item No.7 is only a family house. Regarding Item No.8, the same also absolutely belongs to Ramachandra Padayachi. But the plaintiff had trespassed into the same and continues to be in possession. The other items, namely, Item Nos.9 and 10 also belong absolutely to Ramachandra Padayachi only. Defendant prayed for dismissal of the suit.

Legal heirs of Ganapathy Padayachi, headed by 9th defendant, have filed written statement, admitting the claim made in the plaint, and they also seek a preliminary decree as prayed for in the plaint.

The trial court took oral and documentary evidence Exs.A-1 to A-5 were marked on the side of plaintiff, and Exs.B-1 to B-19 were marked on the side of defendants. Oral evidence consists of deposition of P.Ws.1 to 4 and D.W.1.

After evaluating the entire evidence, the trial Court came to the conclusion that Item No.1 absolutely belonged to Janaki Ammal and that it is not a joint family property, since she is no more, the same has to devolve equally on the sons and daughters, and plaintiff was declared entitled to l/5th share over the same. Item 2 also found to belong to the family in view of the statements in Exs.A-1 and A-2. Exs.A-1 and A-2 are sale deeds executed by Ramachandra Padayachi and his brothers including plaintiff, with regard to admitted family properties. In those sale deeds, Item 2 property was shown as security. There is a statement in those sale deed that the property shown as security absolutely belonged to their vendors. That statement was taken by lower Court as admission regarding the character of the property. Item No.7 was admitted as family item. Regarding Item No.8, though the sale deed was taken in the name of late Ramachandra Padayachi, since the plaintiff has been enjoying the same without any objection, the lower Court assumed that that also must be taken as a family item. A preliminary decree was passed declaring 5/16th shares in Items 2, 7 and 8. All the other items were declared by lower Court as self-acquisitions of late Ramachandra Padayachi. The lower Court further found that the business also absolutely belonged to Ramachandra Padayachi. It further came to the conclusion that the plaintiff miserably failed in his attempt to prove that the property which stood in the name of Ramachandra Padayachi or his wife or second defendant, was purchased out of the income of the family assets. It held that the plaintiff has not let in any evidence regarding the income and expenditure of the family, and there is also no evidence to show that they have supplied any funds. Aggrieved by the judgment and decree, plaintiff has come to this Court with this Appeal.

Before further proceeding to the grounds of appeal, one more finding by the Court below also requires consideration. Even though in the plaint it is said that Govinda Padayachi died in 1957, after the Hindu Succession Act came into force, the lower Court, in paragraphs 30 and 31 of the judgment, held that he might have died some time in between 1950 and 1954, i.e., before that Act came into force and, therefore, the daughters are not entitled to any share.

In the various grounds taken in the Memorandum of Appeal, learned counsel for appellant has taken a contention that Ramachandra Padayachi is the Manager or the Kartha of the family, and it is for him to prove that the acquisition that stood in his name was without the aid of family assets. The argument was that the Kartha of a family stood in a fiduciary capacity, and all purchases were taken by him, though in his individual name, the beneficiary is the family. It was further argued that if the manager himself is in possession of the family assets, whether there was surplus income, is a matter which could be proved only by the Manager. It was further contended that grocery business, brick kiln business, and agriculture, all cannot be conducted by the same person simultaneously and, therefore, the contention of plaintiff that all the three, brothers were assisting one another in all these businesses, has to be accepted, and consequently, the business will have to be considered as a family business.

How far these contentions could be accepted taking into consideration the facts and circumstances of the case, is the only question to be considered in this Appeal.

Before drawing any inference, as suggested by learned Counsel for appellant, we have to consider the evidence adduced in this case. When the plaintiff himself has adduced evidence against drawing any such inference, a decision will have to be based, on the evidence adduced, and hot on the basis of alleged presumptions as argued by learned Counsel.

The only question that requires consideration in this appeal is, whether the plaintiff is entitled to demand partition in respect of those items which were excluded by the decree of the lower Court from the particle items

Before going to the factual position, a few decisions of the Supreme Court and our High Court require consideration regarding the nature of evidence that has to be adduced in such cases.

In ''Mulla - Principles of Hindu Law'' - Volume 1 17th Edition (1998), at page 344, learned Author deals with the ''presumption as to coparcenary and coparcenary property". Sub-Article (2) of Article 233 says that there is ''No presumption that a joint family possesses joint property''. Relevant portion is at pages 345 to 347, which reads thus:-

"There is no presumption that a family, because it is a joint, possesses joint property or any property, when in a suit for partition, a party claims that any particular item of the property is joint family property, or when in a suit or a mortgage, a party contends that the property mortgaged is joint family property and burden of proving that it is so rests on the party asserting it. To render the property joint, the plaintiff must prove that the family was possessed of some property with the income of which the property could have been acquired from which the presumption could be drawn that all the property possessed by the family is joint family property or that it was purchased "with joint family funds, such as the proceeds of sale of ancestral property or by joint labour. None of these alternatives is a matter of legal presumption. It can only be brought to the cognizance of a Court in the same way as any other fact, namely, by evidence. There is at times undiscriminated use of the expression ''presumption'' in this context. It is to be understood to indicate those presumptions of fact, which may be said to arise in considering whether the burden of proof has or has not been discharged by a party. It is not as if there is any general solvent for all cases.

Where it is established or admitted that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the presumption arises that it was joint property and the burden shifts to the party alleging self acquisition to establish affirmative that the property was acquired without the aid of the joint family. However, no such presumption would arise if the nucleus is such that with its help the property claimed to be joint could not have been acquired. In order to give rise to the presumption the nucleus must be such that with its help the property claimed to be joined could have been acquired.

Whether the evidence adduced by a party is sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of the fact depending on the nature and extent of the nucleus. An important element for consideration is the income which the nucleus yielded. A family house in the occupation of the members and yielding no income could not be a nucleus out of which acquisitions could be made, even though it might be of considerable value. On the other hand, a running business in which the capital invested comparatively small might conceivably produce substantial income, which may well for the foundation of the subsequent acquisitions. These are not abstract questions of law but questions of fact to be determined on the evidence in the case. The wide proposition that once the ancestral nucleus is proved or admitted the onus on the member to prove that the property acquired was his self-acquisition cannot be accepted as correct. The existence of some nucleus is not the sole criterion to impress the subsequent acquisitions with family character. What is to be shown is that the family had as a result of the nucleus sufficient surplus income from which the subsequent acquisitions could be made. Alternatively, this may be shown from the nature and relative value of the nucleus itself. This is the second phase in the onus of proof, which lies on the person who sets up the family character of the property. "

(Emphasis supplied)

In Shrinivas Krishnarao Kango Vs. Narayan Devji Kango and Others, their Lordships followed the decision of the Honourable Privy Council in AIR 1947 PC 189 = 60 L.W. 412 (Appalaswami v. Swyanarayanamurthy) wherein it was held thus:-

"The Hindu Law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the 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 without the aid of the joint family property:......."

Their Lordship, thereafter, have held as follows:-

"It is argued for the appellant that in that case the father had obtained under the partition deed, Exhibit A, properties of the value of Rs. 7,220/-, that he acquired properties of the value of Rs. 55,000/- and that nevertheless, it was observed by the Privy Council that ''the acquisition by the appellant of the property under Exhibit A, which as between him and his sons was joint family property, cast upon the appellant (the father) the burden of proving that the property which he possessed at the time of the plaint was his self-acquired property''.

and that therefore on proof that there existed ancestral lands of the extent of 56 acres, the burden was shifted on to the defendants to establish self-acquisition.

Whether the evidence adduced by the plaintiff was sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and the extent of the nucleus. The important thing to consider is the income which the nucleus yields. A building in the occupation of the members of a family and yielding no income could be made, even though it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small might conceivably produce substantial income, which may well from the foundation of the subsequent acquisitions. These are not abstract questions of law, but questions of fact to be determined on the evidence in the case.

In AIR 1947 PC 189= 60 L.W. 412, the nucleus of Rs. 7,220/- included 6/16th share in a rice mill and outstandings of the value of Rs. 3,500/- and as the acquisition in question were made during a period of 16 years it was possible that the joint family income might have contributed therefore. But in the present case, the finding of the Court is that the income from the lands was not sufficient even for the maintenance of the members, and on that, they were right in holding that the plaintiff had not discharged the initial burden which lay on him. But even if we are to accept the contention of the appellant that on proof of the existence of the Watan lands, the burden has shifted on to the defendants to prove that the acquisitions were made without the aid of joint family funds, we must hold on the facts that that the burden had been discharged.

In AIR 1947 PC 189 = 60 L.W. 412, in holding that the father had discharged the burden of proving that the acquisitions were his own, the Privy Council observed:-

''The evidence establishes that the property acquired by the appellant under Exhibit A is substantially intact, and has been kept distinct. The income derived from the property and the small sum derived from the sale of part of it have been properly applied towards the expenses of the family, and there is no evidence from which it can be held that the nucleus of joint family property assisted the appellant in the acquisition of the properties specified in the schedule to the written statement''.

Likewise, in the present case all the ancestral Watan lands are intact, and are available for partition, and the small income derived from them must have been utilised for the maintenance of the members of the family. Whether we hold, as did the learned judges of the High Court, that the plaintiff had failed to discharge the burden which lay on him of establishing sufficient nucleus, or that the defendants had discharged the burden of establishing that the acquisitions were made without the aid of joint family the result is the same. The contention of the appellant that the findings of the Courts below are based on a mistaken view as to burden of proof and are in consequence erroneous, must fail."

The said principle was reiterated in AIR 1959 SC 906 (Mallappa Girimallappa Betgeri and others v. Yellappagouda) where in their lordships held thus:-

"Where the manager of a joint Hindu family acquired certain properties in his own name and there was sufficient nucleus of joint family property out of which those properties might have been acquired and apart from those properties the manager had no other source of income, the presumption arises that the newly acquired properties were the properties of the joint family. Unless that presumption was rebutted, it must prevail."

In Mallesappa Bandeppa Desai and Others Vs. Desai Mallappa and Others, the same principle was reiterated.

In 1964 (1 ) S.C.W.R.856 (K.V. Narayanaswami Iyer v. K.V. Ramakrishna Iyer and others), in paragraph 15, their lordships have held thus:-

"The legal position is well settled that if in fact at the date of acquisition of a particular property the joint family had sufficient nucleus for acquiring it, the property in the name of any member of the joint family should be presumed to be acquired from out of family funds and so to form part of the joint family property, unless the contrary is shown..........."

In Mudi Gowda Gowdappa Sankh Vs. Ram Chandra Ravagowda Sankh, Their lordships have held thus:-

"There is no presumption that a Hindu family merely because it is joint, possesses any joint property. The burden of proving that any particular property is joint family property is joint family, is, therefore, in the first instance upon the person who claims it as coparcenary property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate. AIR 1947 PC 189. relied on."

(Emphasis supplied).

In Baikuntha Nath Paramanik (Dead) by his L.Rs. and Heirs Vs. Sashi Bhusan Pramanik (Dead) by his L.Rs. and Others, in paragraph 10, it was held thus:-

".....When a joint family is found to be in possession of nucleus sufficient to make the impugned acquisitions, then a presumption arises that the acquisitions standing in the name of the persons who were in the management of the family properties are family acquisitions".

In Surendra Kumar Vs. Phoolchand (dead) through and another, of the judgment, it was held thus:-

".........It is no doubt true that there is no presumption that a family because it is joint possessed joint property and therefore the person alleging the property to be joint has to establish that the family was possessed of some property with the income of which the property could have been acquired. But such a presumption is a presumption of fact which can be rebutted. But where it is established or admitted that the family which possessed joint property which from its nature and relative value may have formed sufficient nucleus from which the property in question may have been acquired, the presumption arises that it was the joint property and the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family. Both the Courts below have scrutinised the evidence bearing in mind the aforesaid legal position and have rightly come to the conclusion that the property in question is the joint family property."

(Emphasis supplied)

In Ramakrishna Mardi and Others Vs. Vishnumoorthi Mardi and Others, their Lordships of a Division Bench of this Court considered the question whether an acquisition in the name of ''Kartha'' makes any difference. In para 5, Their Lordships held thus:-

"The proposition of law is well established that it is not enough to show that the family had a nucleus of the family property in order that the later acquisitions made by the manager of the family should have the attribute of family character but what is necessary is that the nucleus must be such as to leave sufficient income therefrom after meeting the expenses as would enable the manager to acquire properties with that. So far as this question is concerned, the only witness examined on behalf of the plaintiff, does not render such useful aid for he is not a member of the family and he could not depose with regard to the actual income from the admitted family properties.

On the other hand, D.W.1, has testified to the fact that when Ramappa became the Yajaman the family owned very little properties and there were about 18 members in the house to be fed, guests to be entertained and ceremonies to be performed. He is not able to say whether any income was left after meeting these expenses. The family was getting 100 Mudies of rice when Ramappa died and this information the witness got from his father as well as from the other members of the Mardi family.

The learned Subordinate Judge was of the view that when once the ancestral nucleus is admitted, the onus lies on the manager of the joint Hindu family to prove that the properties acquired were his self-acquisitions. This is stating the proposition of law in very wide terms. The existence of a nucleus is not the sole criterion to impress the subsequent acquisitions with family character. What has to be shown is that the family had as a result of the nucleus sufficient surplus income from which the subsequent acquisitions could be made".

(Emphasis supplied)

In another Division Bench judgment of this Court reported in 1975 II M.LJ. 184 = 88 L.W. 63 S.N. (Kandaswami Chettiar v. Gopal Chettiar), in para 17, it was held thus:-

".......If a coparcener desires to establish that a property in the name of a female member of the family or in the name of the manager himself has to be accepted and treated as property acquired from the joint family nucleus, it is absolutely essential that such a coparcener should not only barely plead the same, but also establish the existence of such joint family funds or nucleus. Even if the joint family nucleus is so established, the presumption that the accretions made by the manager of the purchases made by him should be deemed to be from and out of such a nucleus does hot arise, if there is no proof that such nucleus of the joint family is not an income yielding apparatus. The proof required is very strict and the burden is on the person who sets up a case that the property in the name of a female member of the family or in the name of the manager or any other coparcener is to be treated as joint family property. Such burden could be said to have been discharged and the usual presumption that such acquisitions are attributable to the joint family nucleus and its income would not automatically arise, but would depend upon proof of the availability of such surplus income or joint family nucleus on the date of such acquisition or purchases. The same is the principle even in case where moneys were advanced on mortgages over immovable properties. That such a presumption would arise only in the above circumstances, are now very well established".

From the above decisions, it is clear that it is for the plaintiff to prove that the family had sufficient nucleus with the aid of which other items of properties could have been acquired. Plaintiff has only proved that the admitted family items were sold by all the brothers under Exs.A-1 and A-2 dated 28.12.1967. There is absolutely no evidence in this case to show as to the income derived from the said properties. There is also no evidence in this case forthcoming to show that the properties covered by Exs.A-1 and A-2 have been utilised in any manner for the acquisition of other items. There is no detriment caused to these items till they were sold by all the brothers in 1967. The evidence that was adduced by plaintiff shows that the items covered by Exs.A-1 and A-2 were all along in the possession of lessees. What was the lease amount, and whether the lease amount was paid promptly, who received the lease amount, whether that was sufficient to meet the expenses of the family, and what is the amount required for the maintenance of members of the family? P.W.1 has not spoken to any of these aspects. Merely because an extent of 3 and odd acres belonged to the family, that by itself is not sufficient to hold that all the future acquisitions must have come from out of the income derived from the items covered under Exs.A-1 and A-2. It is not the existence of the nucleus alone that matters. There must have been surplus income for purchasing other properties and the same must be in the hands of the managing member. The lower Court has held that the plaintiff has miserably failed to substantiate the case.

It is at this juncture, it has to be seen whether the case of the plaintiff that it had family business, is true. When plaintiff was examined as P.W.1, in the cross- examination, he has said that his father was doing only weaving business, and after his death, that business was not continued by any one. Regarding brick kiln business, grocery shop business and firewood business, his case is that none of these business belonged to his father. In Chief- examination itself, he has said thus:

From this statement, it is clear that it is not a family business that was alleged to have been managed by late Ramachandra Padayachi, but it was the joint business of the three brothers, after the death of their father. If it is a joint business, there cannot be any scope for taking a licence in the name of the manager of the family, as alleged by plaintiff. The evidence that has been let in this case shows that all these business only belonged to Ramachandra Padayachi, and it was he who invested the capital and was doing the business. It has also come out in evidence that he has taken lands on lease from Railways and other persons and he was cultivating those lands, and was getting income of his own. He was also running grocery shop. That business also stood in his name. It may not be out of place to mention at this juncture that immediately after the marriage, Ramachandra Padayachi himself purchased an item of immovable property (i.e., Item 10) and shifted his family to that place, after putting up construction. His separate living even while his father was alive, has been proved in this case.

Regarding business, I have already said that there is inconsistency in the case of plaintiff. He only says that after the death of father, all the three brothers were doing business and the income derived therefrom was entrusted to late Ramachandra Padayachi. That will not make it a joint family business. There is also no evidence to show that the plaintiff or late Ganapathy Padayachi ever contributed their mite for the business, and entrusted any amount to Ramachandra Padayachi. Even though the legal representatives of Ganapathy Padayachi are impleaded as his legal representatives and they have been impleaded as party defendants, and they have also aided the plaintiff, no evidence has been let in from their side to show that late Ganapthi Padayachi contributed either financially or by way of labour, for the business, which admittedly stood in the name of Ramachandra Padayachi.

The suit was filed only in 1979 Ramachandra Padayachi died in the year 1976. It is admitted by plaintiff himself that the business that stood in the name of Ramachandra Padayachi is controlled and managed by second defendant in the suit, who is the son of Ramachandra Padayachi. Neither plaintiff nor the legal heirs of Ganapathi Padayachi are allowed to participate in the business, which is now exclusively controlled by second defendant. Plaintiff has no case in the plaint that in the business conducted by second defendant, he has any participation, or that he has got any share in the business. That is also an added circumstances which has to be taken into consideration while dealing with the case of the business stated in the plaint.

In SRI KANNAN RICE MILLS LTD. Vs. COMMISSIONER OF Income Tax, MADRAS., a Division Bench of this Court held that where some funds belonging to the joint family have been made use of to assist a member to start a business, and if the business thrives, it cannot be termed as a family business. Their Lordships held thus:

"If a member of a joint Hindu family is inclined to start a trade and for that purpose he gets assistance by way of a contribution from the joint family funds without any further assistance from the joint family and goes and starts a business of his own individually or in partnership and acquires properties by his own exertions, it will be not justifiable to hold that either the business or his properties would be joint family properties. It is reasonable to extend the principle of 1 Hindu Gains of Learning Act (1930) to such a case".

If that is the position of law, even in regard to a financial assistance from the family, this case is still worse. Plaintiff has no case that the family assisted late Ramachandra Padayachi or contributed in any manner for starting the business.

Even the plaintiff says that whatever amount he received from the business of grocery shop and from agriculture, he gave it to Ramachandra Padayachi. No details were given while he was examined as P.W.1. He does not say the amounts that were paid in a particular year, or whether that amount was utilised for any particular purpose. He is also not in a position to say anything about the income from the agricultural lands. His case also cannot be believed for the added reason that it is even admitted by him and also P.Ws.2 to 4 that the agricultural lands were in the possession of lessees. Hence there could not have been any scope for taking any income from the lands and entrusting the same to Ramachandra Padayachi. Evidence of P.Ws.2 to 4 further shows that grocery shop business and brick kiln business were all run by Ramachandra Padayachi alone, and none of the family members participated in those business. The oral evidence adduced by plaintiff goes against the appellant/plaintiffs case. Infect, the evidence of P.W.3 clearly shows that the business exclusively belonged to Ramachandra Padayachi.

I have already said that under Exs. A-1 and A-2, the admitted family properties at Puthugaram Village were sold by all the brothers for a total consideration of Rs. 9.750/-. Documentary evidence has been filed in this case to show that the sale proceeds were taken by these three brothers, and they purchased properties in their names and also in the names of their wives, i.e., Exs.B-16 to B-18 dated 6.1.1968, i.e., on the same date, a few days after Exs.A-1 and A-2 were executed. The sale deeds have also been taken in such a way that it is in a portion of the same survey number. In this case, plaintiff wanted that the property purchased by Ramachandra Padayachi out of the sale proceeds should also be treating as family property. Even they are described as Items 3 and 4. Items 3 and 4 have been purchased under Ex.B-16 on 6.1.1968. When the brother themselves have divided the sale proceeds, there cannot be any scope for treated Ex.B-16, property alone as a family property. The plaintiffs wife has also purchased under Ex.B-17 a property in Survey No.245/11 having an area of nearly 1 acre 25 cents. He does not want that property to be treated as a joint family property, nor the property purchased by Ganapathy Padayachi under Ex.B.18. Even though in Civil litigations, conduct is not relevant, since we are concerned only with legal rights, I feel that the claim that the property under Ex.B-16 is a family property is without any bona fides and that such a claim has been made only with a view to harass defendants 1 to 9. Items 5 and 6 were purchased under Exs.B-5 and B-6 sale deeds dated 16.10.1981 and 23.11.1966. The purchaser under the deed is the first defendant, i.e., widow of Ramachandra Padayachi. The lower Court has found that even though the document stands in the name of the first defendant, the same was purchased by Ramachandra Padayachi, and the consideration was paid by him. The plaintiff was not successful enough to prove that the sale consideration was contributed by the family or that the purchase was by causing detriment to the family assets. Even though the first defendant has put forward a case that Items 5 and 6 exclusively belong to her, and the case has been found against them, it does not follow that they are particle items. Plaintiff will have to prove that the properties belong to the joint family, over which he has a claim.

The only family asset is the property covered under Exs.A-1 and A-2. As I have said already, no evidence has been let in regarding the income from the property. The finding of the lower Court that Items 5 and 6 are not available for partition is, therefore, to be confirmed. Regarding Items 7 and 8, decree has been granted by the lower Court. Item 9 is covered by Ex.B-7 sale deed which stands in the name of second defendant, dated 7.3.1972. During that time, his father was also alive. No evidence has been let in to show that any family nucleus was used for the purchase of Ex.B-7 property. Exs.A-1 and A-2 are of the year 1967, and properties covered under Exs.B.16 to B-18 were purchased by utilising the sale proceeds, that were obtained under Exs.A-1 and A-2. Ex.B-7 was five years after Exs.A-1 and A-2 and, therefore, there is no scope that Ex.B-7 property might have been purchased with the income derived from family asset. During that relevant time, late Ramachandra Padayachi was alive, and he was also having various business.

Item 10 is covered by Ex.B-1 sale deed dated 10.5.1954. If we go by the case of plaintiff, Govinda Padayachi died only in the year 1957. Ramachandra Padayachi purchased Item 10 in 1954. In such a case, he would not have been the manager. From 1954 onwards, Ramachandra Padayachi was residing separately after purchasing the property under Ex.B-10 is clear from the evidence of P.Ws.2 and 3. Here also, there is no evidence to show that any family asset was utilised for the purchase of the said item.

Regarding the movables, no evidence has been let in by the plaintiff to show that all the items are available. The decisions of the lower Court regarding movables is only to be confirmed.

It was argued by learned counsel for appellant that one of the sisters, i.e., 17th defendant died pending suit and, therefore, her share also must be given to plaintiff. This aspect of the plaintiffs case has been dealt with by the lower Court in paragraphs 31 to 33 of the judgment. It was only thereafter, the Court has declared the share of the plaintiff over the divisible items. Therefore, there cannot be any change in the quantum of shares as argued by learned counsel for appellant.

No other point was argued by learned Counsel for appellant. In the result, I do not find any merit in this Appeal, and consequently the same in dismissed. Taking into consideration the close relationship between the parties and also in view of the fact that there is no appearance for respondents, the parties are directed to bear their respective costs in this Appeal.