2015(6) ALL MR 113
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
A. P. BHANGALE, J.
Smt. Nanibai wd/o. Laxmanrao Navkhare & Ors. Vs. Vitthalrao Marotirao Navkhare & Anr.
Second Appeal No.38 of 2009
21st July, 2015.
Petitioner Counsel: Mr. M.G. BHANGDE
Respondent Counsel: Smt. S.W. DESHPANDE
Hindu Law - Partial partition excluding suit property from joint family property - Legality - Plaintiff and deceased father of defendants were brothers who formed joint hindu family - They had started Auto Garage business jointly by contributing labour - Out of said business, they purchased suit property - Presumption arises as to jointness of Hindu family property - Even in affidavit of deceased in another case, he deposed about nature of Garage business as joint - No evidence to rebut presumption - Hence, plaintiff entitled to ½ share in suit property - Partial partition, not sustainable.(Paras 7, 8, 9)
P.S. Sairam Vs. P.S. Rama Rao Pissey & Ors., 2004(5) ALL MR 386 (S.C.)=(2004) 11 SCC 320 [Para 5]
Govindrao Gangaramji Ajmire Vs. Dadarao @ shravan Gangaramji Ajmire (D) L.Rs. Indrani wd/o. Shrawan Ajmire & Ors., 2004(3) ALL MR 660=2004 (4) Mh.L.J. 653 [Para 5]
Kenchegowda (Since deceased) by L.Rs. Vs. Siddegowda @ Motegowda, (1994) 4 SCC 294 [Para 5]
S. Satnam Singh & Ors. Vs. Surender Kaur & Anr., 2009 ALL SCR 1=2009 (4) Mh.L.J. 6 [Para 6]
i) Whether the respondent/plaintiff has proved that "Gajanan Automobiles" was/is a joint Hindu family business of Laxmanrao & Vithalrao ?
ii) Whether non-inclusion of all alleged joint Hindu family properties in suit by the respondent /plaintiff is fatal ?
My answer to question no.i) is in the affirmative and question no. ii) in the negative for the following reasons:-
2. This Second Appeal is directed against the Judgment and Order dt.14-11-2008 passed in Regular Civil Appeal No. 69 of 2008 whereby learned District Judge Amravati (the first appellate Court) was pleased to allow the appeal and set aside the Judgment and Order in Special Civil Suit No. 286 of 2005, dt.29-02-2006 passed by the trial Court and to pass a decree whereby the plea for partition was allowed.
3. Motiram Navkhare died leaving behind his widow and two sons i.e. Laxmanrao - aged 7 years and Vithal - aged 1 year. With the support of their mother and uncle, both brothers went with their real uncle to Amravati and started doing labor work at Amravati and started an Automobile Garage for repairs of Automobiles. The Auto Garage business was a joint family business started in the year 1962 in the name as "Gajanan Auto Garage" and also "Trimurti Auto Garage" at Badnera Road, Amravati. They resided at Nanakshahi Wada at Amravati - initially in rental accommodation and later in the acquired house property of their own. Even after their marriage, they resided together with their mother and other members of the family. Due to insufficient accommodation, they constructed a farm house and Laxmanrao went to reside at the farm house, though Vitthal did not shift from the family house. The family business grew and immovable properties were acquired in the name of family members. The dispute arose in Navkhare family between two brothers Vithalrao and Laxmanrao when later died on 15-11-2004 (leaving defendants nos. 1 to 6 as his legal heirs). Defendant nos. 1 to 6 had ill-motive and mala- fide intention to deprive the plaintiff of his half share in the joint Hindu family property. The case pleaded was that the aforesaid two brothers formed joint Hindu family. Laxmanrao was karta (Manager) and the family had started Auto Garage in the name as "Gajanan Automobiles" and "Trimurti Auto Garage" at Badnera Road, Amravati. Both Laxamnrao and Vithalrao, out of the said business of Garage, purchased suit property for the joint Hindu Family. After death of karta of the family Laxmanrao, his legal heirs/legal representatives refused to partition the property. The plaintiff, by the notice, dt.16-08-2005 had called upon the defendants to partition the property. The defendants gave reply dt.31-08-2005 and 03-09-2005 and had refused to partition the property on the ground that Vithalrao was a laborer and was getting weekly payment. Vithalrao had filed Special Civil Suit for partition and separate possession against the defendants. The defendants had disputed existence of nucleus belonging to the joint Hindu Family to acquire the property.
4. Learned Counsel for the appellant submitted that the first appellate Court did not consider the admissions by the witnesses and had misconstrued the reply to the notice. There was a denial of joint family status. According to him, Vithal was a laborer in Chalk Factory from 1961 to 1965 earning Rs.3/- to Rs.4/- a day. In 1968, he was doing Electrician's work. Ownership of Laxman was admitted in cross-examination. First appellate Court did not consider the admissions given by plantiff's witness no.2. Laxman was a tenant and rent receipt was issued to him. There was no any evidence as to nucleus of the joint Hindu family property.
5. Mr.M.G.Bhangde, learned Senior Counsel referred to the ruling in the case of P.S. Sairam vs. P.S. Rama Rao Pissey & others reported in (2004) 11 SCC 320 : [2004(5) ALL MR 386 (S.C.)] (Para 7) to argue that so far as immovable property is concerned, in case the same stands in the name of the individual member, there would be presumption that the same belongs to the joint family, provided it is proved that joint family had sufficient nucleus at the time of its acquisition, but no such presumption can be applied to business. No presumption arise in Hindu Law as to the business in the hand of member of the joint family even if such member is karta (Manager) of the joint Hindu family, unless it is shown that the business in the hand of such member grew up with the assistance of the joint Hindu family property or joint Hindu family funds or that the earnings of the business were blended with the joint Hindu family estate, the business would remain free and separate. Reference is made to the ruling in the case of Govindrao Gangaramji Ajmire vs. Dadarao @ shravan Gangaramji Ajmire (D) L.Rs. Indrani wd/o. Shrawan Ajmire and Others reported in 2004 (4) Mh.L.J. 653 : [2004(3) ALL MR 660]. It is held that the suit is not maintainable without bringing the entire joint family property into common hotchpotch. The case was remanded to the trial Court by Single Judge of this Court to enable the plaintiff to implead necessary parties and also to include the entire joint family house property in the suit. Trial Judge was directed to decide the matter in accordance with law. It is submitted with reference to the ruling in the case of Kenchegowda (Since deceased) by L.Rs. vs. Siddegowda @ Motegowda reported in (1994) 4 SCC 294 that the suit for partial partition is not maintainable when all the joint hindu family property and all the co-sharers are not included in the suit.
6. On the other hand, learned Advocate Mrs.Deshpande refers to the ruling in the case of S. Satnam Singh and Others vs. Surender Kaur and another reported in 2009 (4) Mh.L.J. 6 : [2009 ALL SCR 1] (para 16), wherein it is observed thus -
"Before adverting to the rival contentions of the parties, it must be kept in mind the principle that ordinarily a party should not be prejudiced by an act of Court. It must also furthermore be borne in mind that in a partition suit where both the parties want partition, a defendant may also be held to be a plaintiff. Ordinarily, a suit for partial partition may not be entertained. When the parties have brought on records by way of pleadings and/or other material that apart from the property mentioned by the plaintiff in his plaint, there are other properties which could be a subject-matter of a partition, the Court would be entitled to pass a decree even in relation thereto."
7. Learned Advocate Mrs Deshpande invited my attention to the affidavit dated 6th April, 2002 sworn in by late Laxmanrao Marotirao Navkhare acknowledging himself as a "karta" of the joint Hindu family and carrying on the business of Motor Garage in the name and style as " Shri Gajanan Automobiles" and "Trimurty Auto Garage, Amravati" and also having some landed property situated within limits and territorial jurisdiction of Amravati Municipal Corporation vide document (Exh.96) filed in Regular Civil Suit No.127 of 2002 pending in the Court of Civil Judge (Sr.Dn.), Amravati. There was no reason to file false affidavit when the prestige of the joint Hindu Family was lowered down due to sudden refusal by defendant Anita in that suit to marry with Manohar Vithal Navkhare on 25-04-2002 after their engagement had taken place on 7-03-2002. Laxman had deposed at Exh. 97 in that suit about the nature of the Garage business as joint and of their family having spent huge sum of Rs.40,000/- to Rs.50,000/- for the engagement ceremony of Manohar Vithal Navkhare and Anita. The evidence was brought to the notice of the first appellate Court. It is consistent with the presumption of jointness of the Hindu family of Navkhares, unless contrary is proved i.e. partition. The evidence of the plaintiff clearly indicated that, after demise of Marotrao (their father ), their mother Tulsabai took them to their uncle at Amravati. Tulsabai used to do the labor work. When Laxman and Vithal became majors, they started to assist by doing labor work and repairing vehicles, residing at rental premises in Nanakshahi Wada, Namuna at Amravati. Laxmanrao being elder brother was karta (Manager) of their joint Hindu family. They had purchased property at Badnera Road and had continued their business in the name and style as "Shree Gajanan Automobiles" and "Trimurthy Auto Garage". Joint labour at the business of Auto Garages provided nucleus for Laxmanrao and Vithal to acquire the additional properties for the joint Hindu family.
8. I have considered the rival submissions in the light of the ruling cited. Normally speaking, legal presumption operates that every hindu family is presumed as joint in food, worship and estate unless the fact of division/partition is established. The presumption was stronger when two brothers were carrying on business of garage to repair automobiles jointly by contributing labour. In the facts and circumstance of the present case, there was no sufficient evidence to rebut the strong legal presumption in case of two brothers in the same business of repairing automobiles contributing jointly to it's success and prosperity leading to acquisition of more properties as mentioned in the annexure to the plaint.
9. The trial Court held that the plaintiff was only entitled to claim half share in the agricultural field no.22-1A situated at Mauza Shendora and no other property and restrained the plaintiff from obstructing defendant nos.1 to 4 from carrying on their business. The trial Court failed to appreciate the entire evidence on record in the light of the presumption as to jointness of the Hindu family property. The first appellate Court appreciated the evidence on record correctly to arrive at the logical conclusion that the plaintiff is entitled to 1/2 share and defendants nos.1 to 6 together have 1/2 share in the suit properties described in the schedule annexed with the plaint in the absence of any evidence in rebuttal to the presumption. Preliminary Decree was directed accordingly by sending precept to the Collector to effect the partition by putting the parties in possession of their respective shares. The limited or partial decree passed by the trial Court was rightly set aside. Hence, I do not find merit in the second appeal. It is dismissed with Costs.
10. Learned Senior Advocate for the appellants prays for interim arrangement to continue which was existing during the pendency of appeal. According to him, otherside, though served, did not appear. In these circumstances, status-quo, as ordered on 6th July, 2010, will continue for a period of ten weeks from today.