govardhandas nanji taunk vs balram n. taunk & ors. on 25 april, 2012

Jharkhand High CourtGovardhandas Nanji Taunk vs Balram N. Taunk & Ors. on 25 April, 2012 APPEAL FROM ORIGINAL DECREE No. 863 of 1993 (R). --- 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 --- 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 and Harjeet Singh, Advocate. For the Respondents No. 10 & 16 : M/s. Manjul Prasad, Senior Advocate and S.L. Agrawal, Advocate. --- PRESENT THE HON'BLE MRS. JUSTICE POONAM SRIVASTAV --- C.A.V. ON 19.04.2012. PRONOUNCED ON 25.4.2012. ---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 SubordinateJudge, Jamshedpur in Partition Suit No. 122 of 1990.

2. The suit was filed for partition of the joint Hindu family properties which consists of 13properties. The plaintiff instituted the suit on the ground that common ancestor of the parties NanjiGovindji Taunk died on 25th March, 1955 and all the aforesaid 13 properties are joint Hindu familyproperty and, the plaintiff and defendants are co-sharers. The plaintiff claimed that the propertiesare 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';

Govardhandas Nanji Taunk vs Balram N. Taunk & Ors. on 25 April, 2012

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(b) for appointment of a survey knowing pleader commissioner to demarcate theplaintiff'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 sonsfrom the wed lock and three sons from the wed lock of 1st wife Heji Bai, whopredeceased her husband in the year 1920. The genealogical table of Late NanjiGovindji 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 in1920) (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 on11.10.73) (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 of1990. The suit was decreed in respect of Item Nos. I, II, III and V holding that theseproperties 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, theplaintiffs and the defendants are all entitled for an equal share (1/7th share) in thesaid property. (So far the findings in respect of Property Nos. I, II, III and V areconcerned, there is no dispute between the present plaintiff-appellants and thedefendant-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 measuring2068 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 notjoint family properties.



6. One written statement was filed on behalf of defendants no. 1, 2 and 4; two separate writtenstatements were filed on behalf of defendant no. 3 and defendant no. 10. Defendants No. 5, 6 and 7did not file their written statement and did not contest the suit. The plaint was amended after theentire 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 4filed 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 Vwhich 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 underOrder 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 haveinformed that it is still pending. Previously, this Court postponed the hearing of the appeal onaccount 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 appellantswant to withdraw the appeal in respect of Item No. VII. The appellants unequivocally stated in theinterlocutory application that the findings arrived at by the court below were acceptable to him. Thisinter locutory appl icat ion ( I .A . No. 1811 o f 2011) was chal lenged on behal f o f thedefendants-respondents no. 5, 6 and 7.

8. Shri Indrajit Sinha, Advocate on behalf of respondent nos. 5, 6 and 7, vehemently argued that hehas a right to challenge withdrawal of the appeal in respect of one property which apparently iscollusive. Shri Indrajit Sinha brought to my notice an order passed by this Court in I.A. No. 165 of2005 dated 5th May, 2005 where the parties were injuncted from alienating the property during thependency of this appeal. This order was passed during the pendency of the cross objection. Since thecross objection has been rejected and the special leave petition is pending, the subsequent I. A. atthe instance of of the plaintiffs was moved in collusion with respondent no. 1,only with a view todeprive defendant nos. 4, 5 and 6 from the property and to circumvent the order of injunctiongranted by this Court. They claimed that they have a share in the property and further assertion ofMr. Indrajit Sinha is that though no written statement was filed on their behalf, but he has a right toadvance his argument and challenge the judgment under Order XLI Rule 33 of the Code of CivilProcedure. 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, inview 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 partitionsuit). Learned counsel has also stressed that though defendants no. 5, 6 and 7 failed to prefer awritten statement as well as their counter claim is rejected, the said defendants cannot be deprivedto 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 ChandramohanRamchandra Patil and others vs. Bapu Koyappa Patil and others 2003 SCC 552. Paragraph 13 of theobservation of the Apex Court is quoted below:--



"In a suit for partition, plaintiff and defendants are parties of equal status. If the rightof partition has been recognised and upheld by the court, merely because only someof the plaintiffs have appealed and not all, the court was not powerless. It couldinvoke provisions of Order 41 of Rule 4 read with Order 41 of Rule 33 of the Code ofCivil Procedure. The object of Order 41 of Rule 4 is to enable one of the parties to asuit to obtain relief in appeal when the decree appealed from proceeds on a groundcommon to him and others. The court in such an appeal may reverse or vary thedecree 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 appealwhich arises out of a partition suit smacks of fraud and with an ulterior motive to deprive thedefendants from their share. It is also submitted that this Court has a right to examine these aspectsbefore the plaintiff-appellants is permitted to withdraw part of the relief claimed in the suit so far itrelates to property no. VII. Further argument is that in a partition suit, all the defendants-plaintiffshave equal rights; and, therefore, in the instant case, the suit cannot be withdrawn without consentof all the parties.

11. Shri P.K. Prasad, Senior Advocate assisted by Mr. Ayush Aditya, Advocate argued that if thiscontention of learned counsel appearing on behalf of respondents no. 5, 6 and 7 is accepted, thenOrder XXIII Rule 1 of the Code of Civil Procedure will never be applicable in any partition suitwhatsoever.

12. After hearing the respective counsel at length, I have also noticed that injunction was grantedduring the time when cross-objection was pending. Respondent No. 1 was also restrained fromalienating the property. Subsequently this cross-objection was rejected firstly because no writtenstatement was filed and secondly it was preferred at a very belated stage. The appellants' counselrequested to await the decision of Hon'ble Supreme Court in the pending S.L.P. on thecross-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 pressS.L.P. before the Apex Court in case he is permitted to participate in the appeal and contest theappeal 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 alsoparties. Admittedly they also have an equal share in the property being descendants of the commonancestor. It goes without saying that the power of the court under Order XLI Rule 33 is inherent anda decree and order can be made not withstanding that the appeal is only to a part of the decree andin favour of all or any of the respondents or parties, although such respondents or parties may nothave filed any appeal or objection. Evidently Mr. Indrajit Sinha has stated that he will not pressS.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 theproperties in question including Property No. VII irrespective of the fact that the plaintiff wants towithdraw his claim over the said property. This Court while disposing of I.A. No. 168 of 2005 wasalso satisfied that respondent no.1 or any of the party cannot be allowed to alienate the propertyduring 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 interlocutoryapplication 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 ofOrder XLI Rule 33 C.P.C. The share and claim of the respective parties shall, therefore, be examinedsubsequently while deciding different properties at a later stage. The plaintiff shall, however, makeno 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 Hindusand are governed by the Hindu Succession Act. The common ancestor Late Govindji Kanji Taunkhad two sons, namely, Kachraj Govindji Taunk and Nanji Govindji Taunk. There was amicablepartition between the two brothers and they had separate earning, residence and there was aseverance of joint status. The suit was instituted for partitioning the property of Nanji GovindjiTaunk and his heirs and legal representatives. The genealogical chart has already been detailedabove. The assertion in paragraph 7 of the plaint is that Nanji Govindji had a large business out ofhis own income. Several immovable properties and pucca houses were constructed and he also leftlarge number of movable properties in the shape of business of different variety. The propertieswere acquired in his own name and some in the name of the members of his joint family. Inparagraph 12 of the plaint, it is submitted that with effect from 1.1.1958, all the brothers exceptRanchhod 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 NationalHighway No. 33 was purchased. Six brothers also purchased some land for Orchard and cultivationpurpose 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 acreswas purchased with an understanding that all the six brothers will enjoy the fruits of the saidproperty. It is further pleaded that about ten years before the suit was instituted, Shyamji Nanji wasput incharge of the land to manage the same on behalf of the joint family but since last five years tillthe day the suit was instituted, usu fructs of the land was not being shared. The joint family alsopurchased Plot No. 65 in Khasmahal area and constructed a bungalow in the year 1965. Furthercontention 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 to1968. In paragraph 15, the contention raised on behalf of the plaintiff is that the contract and otherbusiness used to be run in partnership in different names and joint family members were partners ofthe said partnership business. In paragraph 17, the plaintiff has pleaded that during the period1978-1979, the three brothers suggested to reduce the number of partners in all the three firms forthe purpose of income tax facility but no actual division took place; only the returns were filed indifferent 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 thebusiness 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 isalready 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 on12.5.1993. An additional written statement was preferred by defendants no. 10 and 16 and defendantnos 1, 2 and 4. The amendment was made in paragraph 9 to the effect that Item Nos. I to V and VIIIof Schedule B properties were acquired by Nanji Govindji Taunk during his life time between theyear 1927 to 1948. Item Nos. 4 and 8 of the said schedule were acquired by Nanji Govindji Taunk inthe name of his son Shyamji N. Taunk for the benefit of the joint family in the year 1939 and 1948respectively. The properties described as Item Nos. 6, 7 and 9 to 13 were acquired from the jointfamily fund/ properties of Nanji Govindji Taunk and thus the Hindu undivided family of NanjiGovindji Taunk is still in existence and there has been no partition of the properties between thecoparceners of the said Hindu undivided family. Each brother is entitled to 1/5th share of all theproperties.

16. The plaintiff has examined altogether two witnesses. P.W. 1 is the plaintiff himself and P.W. 2 isJ.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 Govindji & Sons.

(vi) Ext. 6 is the certified copy of ledger of Union Bank of India pertaining to themonth 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 and1981-82.

(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 aretotally formal witnesses. D.W. 7 is Manager of Nalanda Hotel. The contesting defendants haveexhibited the following documents:-

(i) Exts. A and A/1 are the two unregistered documents of mutual settlement dated31.07.1980 and 14.03.1976 respectively.

(ii) Exts. B and B/1 are the letters dated 5.6.1980 and 1.1.1984 addressed to Shyamjiand 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 IncomeTax 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.

(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 byTaunk Brothers.

(xiii) Exts. M and M/1 are the two documents pertaining to the assessment year1981-82.



(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. Rand R/1 are two certificates issued by the Income Tax department in respect ofpayment of income tax. (xix) Exts. S and S/1 are two Demand Notices U/S 156 of theIncome 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 ofaction against defendant no. 10?

(5) Is the plaint liable to be rejected for failure of the plaintiff to plead material factsand particulars? (6) Is the suit barred by principles of estoppel, waiver andacquiescence?

(7) Which properties of Schedule 'B' of the plaintiff were acquired by Nanji GovindjiTaunk in his own name or were acquired by heirs in the name of members of jointfamily?

(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 ofthe 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 theplaint are joint property and continues as joint even today and partnership businesswas acquired from the joint Hindu family nucleus and, therefore, the businessincluding 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 documentaryevidence to substantiate the aforesaid questions and thereby entitled for a share in allthe 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 theircommon ancestor and, therefore, each one of them have equal share in the aforesaid properties. Thetrial 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 amin complete agreement with the findings of the trial court in respect of the aforesaid properties inrespect 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 anddecree 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 and16. Respondent No. 10 (Ratilal R. Taunk) is son of Late Ranchhod N. Taunk and respondent no. 16Raji Bai widow of Late Ranchhod N. Taunk. Ranchhod N. Taunk is one of the sons of Nanji GovindjiTaunk from his first wife Heji Bai. Ranchhod N. Taunk died on 27.5.1979 leaving behind his widowRaji Bai, two sons and four daughters, defendants no. 10 to 16. The claim of respondents no. 10 and16 is only in respect of Item No. VI, beside the properties held to be joint Hindu family propertywhich is a house property known as "Natraj Mansion". This is one of the properties described inSchedule B of the plaint. The entire case of respondents no. 10 and 16 rests on the additional writtenstatement which was filed subsequent to the amendment in the plaint. The plaintiff has thoughincluded this property no. VI in Schedule B claiming this also to be a joint family property and shareof all other parties. It is contended that Ranchhod N. Taunk had separated during the life time of hisfather. The additional written statement on behalf of defendant nos. 10 and 16 also proceeds on anassertion that 'Natraj Mansion' is built on a lease hold land. this was never a joint family property. Itis for this reason that this property is not assessed under the income tax and wealth tax of NanjiGovindji Taunk HUF. It is asserted that land was taken by means of a registered lease deed (Ext.K/1) and four persons i.e. Minoo Rustamji Patel, Ratilal R.Taunk (defendant no. 10), second wifeRaji Bai (defendant no. 16) and Homi Home Patel had obtained lease from M/s. TISCO Limitedpursuant to an agreement dated 1st July, 1961 (Ext. X). The terms and conditions are incorporatedin the registerd lease deed. The building Natraj Mansion was constructed by a separate fund andseparate earnings long after the death of Nanji Govindji Taunk. Ranchhod N. Taunk father ofdefendant no. 10 Ratilal R. Taunk had disassociated himself from the family in the year 1954 and hewas never associated with any of the partnership firm. The claim of partition on behalf of thesedefendant-respondents is only in respect of the properties acquired by Nanji Govindji Taunk himselfbefore his death. The further contention of Mr. Manjul Prasad that the plaintiff did not controvertthe assertions of defendant nos. 10 and 16 nor disputed any document, therefore, it amounts toimplied admission. Defendant No. 10 Ratilal R. Taunk appeared as a witness and was examined asP.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. Taunkand 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 hasnot been able to substantiate that Natraj Mansion is qua from the nucleus of the joint Hindu familyand 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 45ftsituated at Faldih, Raipur (M.P.). In paragraph 27-A of the plaint, it is pleaded that the property waspurchased while in jointness and this land was purchased in the name of Dilip N. Taunk son of NanaLal Taunk-defendant no. 2 and the plaintiff has got 1/7th share . Defendant No. 2 filed additionalwritten statement stating that the property was acquired in the name of Dilip N. Taunk who is not aparty to the suit and it was also purchased from the individual separate fund. and it has no concernwhatsoever with the joint family property. The findings recorded by the trial court that since he isnot impleaded as a party, therefore, the claim of the plaintiff cannot be considered and it wasrejected. I am in complete agreement with the finding of the trial court, so far Item No. XIII isconcerned and it does not require any reconsideration. Hence I confirm the judgment and decree inrespect of Item No. XIII.

24. Item No. IV (Nalanda Hotel) situate at S.B. Shop Area, Bistupur in the town of Jamshedpur isclaimed by defendant no. 3 (Hansraj N. Taunk). Defendant No. 3 has claimed Item No. IV to be hisexclusive property after reconstitution of the firm Shyamji N. Taunk. The argument on behalf of theappellant is that Item No. IV has been admittedly acquired by the common ancestor Nanji GovindjiTaunk from his own funds in the name of his son Shyamji N. Taunk (defendant no. 4). DefendantNo. 4 has not appeared as a witness in support of his case. M/s. Nalanda Hotel, a registeredpartnership 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 favourof M/s. Nalanda Hotel. It was admitted by D.W. 1 in para 33 that Item No. IV, M/s. Nalanda Hotelbelonged to the joint family. The defendants have claimed that by virtue of reconstitution ofpartnership 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 areIncome Tax and Wealth Tax returns for the assessment years 1981-82 and 1982-83 and theconclusion in the judgment is that Item No. IV was not mentioned as property belonging to HUF inthe said document. Therefore, this goes to prove that the partition cannot be claimed in respect ofItem 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 ofthe transfer was, in fact, not disputed but the plaintiff has only claimed in the year 1990 that theproperty belongs to undivided joint family property. This claim has been staked after a lapse of 17years, 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 (defendantno.4-Shyamji N. Taunk), without the consent of the other coparceners is void. In the case ofThamma Venkata Subbamma vs. Thamma Rattamma and others [1987 (3) SCC 294], the ApexCourt ruled that if in a joint Hindu family, one brother and brother's sons and daughters constitute aHUF, a gift of the donner of undivided coparcenary interest to his brother amounts torelinquishment 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 renunciation is not invalid even if certainconditions are laid down. The only embargo is renunciation or relinquishment must of course begenuine. Therefore, assuming the argument of Mr. P.K. Prasad to be correct that these transferswere only for the income tax purposes then the onus was on the plaintiff himself to establish that itwas 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 apartition suit, there is no question that a claim of share in a HUF can be said to be either barred bylimitation or for want of any declaration within the limitation period. The findings by the trial courtregarding Item No. IV is recorded in paragraphs 38 to 48 of the judgment. Various documents havebeen taken into consideration and also the pleadings on behalf of the plaintiff-appellant inparagraphs 7, 8, 9, 15 and 16. I have also gone through the specific assertion on behalf of the plaintiffand also schedule of the plaint. Paragraph 30 which is the relief clause clearly mentions houseproperty. A separate written statement was submitted by D.W. 3-Hansraj N. Taunk. The pleading onbehalf of the defendant is specific that the sale deed was executed in the year 1974. I have alsospecifically examined the statement of P.W. 1. The claim of the plaintiff that there will be apresumption of jointness cannot be accepted specially since the plaintiff has already been paid theamount of Rs. 1,07,784. 85 Paise by cheque No. 110585 dated 31.7.1980 of Union Bank of India. Theplaint is absolutely silent regarding this payment though the plaintiff has tried to negate theseaspects in his statement. I have perused the findings of the trial court and there is no reason fordisagreeing with the said findings. It is also admitted by the plaintiff that initially he was a partnerin the firm having 11 per cent share and the payment by cheque has been accepted by the courtbelow 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 NanjiGovindji 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 uponall his seven sons. Shyamji N. Taunk-defendant no. 4, along with his six brothers will have 1/7thshare 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 andwritten statement of defendant no. 3. Mulla's Hindu Law clearly provides that the onus of provinglegal necessity lies upon the purchaser. In the absence of a legal necessity, the sale deed (Ext. J)dated 12.3.1974 will therefore, be void. Neither the vendor Shyamji N. Taunk, defendant no. 4 northe subsequent claimant Hansraj N Taunk, defendant no. 3 have appeared as a witness in support ofthe 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 thesame amount was returned by the plaintiff Govardhandas Nanji Taunk which is proved by Exts. 6and 7 which shows that a total sum of Rs. 1, 54, 408.66 Paise which includes the book value transferin respect of Item No. IV. At any rate, admittedly Item No. IV was acquired by common ancestorNanji 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 inherit1/7th 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 institutedthe suit on the ground that all the properties of the Taunk family is purchased by a Hindu JointFamily nucleus and, therefore, each son has equal share. This is disputed by the brothers on theground that separate business commenced in the different name and style and from theindependent sources. The partners are also different, thus the plaintiff is bound to prove its plaintassertion 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 on25.3.1953 and also that he had purchased Item No. IV in the name of Shyamji N. Taunk. Theplaintiff was a partner of Nalanda Hotel having 11% share consisting of eight partners, each one ofthem having equal share only. Nitin L. Taunk had 12% share in the said partnership constituted on30.10.1973 (Ext. N). It is also admitted fact that Shyamji Nanji Taunk Son of Late Nanji GovindjiTaunk sold and transferred to M/s. Nalanda Hotel for a valuable consideration. The plaintiff, bymeans of a cheque, has received his entire share of the said firm and since then he is not concernedwhatsoever in Item No. IV of Schedule B of the plaint. He has also stressed on the return of incometax 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 ofthe trial court in the instant appeal. The decisions cited by the appellants have no applicationwhatsoever. 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 forno interference.

32. The submission on behalf of the plaintiff in respect of Item No. VIII, Plot No. TMG 10 and 11measuring 10977 sq. ft. (Navyug Udyog). According to the plaintiff, this property was also acquiredby the common ancestor Nanji Govindji Taunk in the name of Shyamji N. Taunk-defendant no. 4 inthe year 1948. In the written statement of defendants no. 1, 2 and 4 at paragraph 30, the defendantshave contended that this property was acquired by Shyamji N. Taunk and made constructionthereon.

33. The submission on behalf of the plaintiff is that in a suit for partition, possession of oneco-sharer is possession of another co-sharer. There is no case of exclusion or ouster pleaded by thedefendants. 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. 2Nanalal N. Taunk is a defendant where he claims to carry on business of Navyug Udyog. Exts. E/1 toE/4 shows payment of rent by Navyug Udyog to Shyamji N. Taunk-defendant no. 4. These exhibitsare from May, 1990 to December, 1990 which is evident that when dispute amongst the parties wasgoing 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 totallyunreliable and appears to have been created. Ext. 9 (Income Tax Return for the Assessment year1982-83) and Ext. 9/A (Wealth Tax Return for the Assessment year 1981-82) have been filed byNanji Govindji Taunk (HUF). Therefore, these documents show that HUF continued to exist allthroughout. The plaintiff (P.W. 1) as well as defendant no. 2(D.W. 1) have admitted that the firmswere constituted and reconstituted right from 1954 onward only for the purposes of tax. Thiscontention 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 theplaint that these properties were acquired out of the joint property funds/property of Nanji GovindjiTaunk 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 theparties 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 intopartnership by Ext/ K with effect from 3.11.1954. Clause 1 of Ext. K takes within its sweep, thedifferent businesses of contract business, jewelery business, hardware business, ready madegarments business, radio business etc. Clause 9 prohibits any partner from transferring anyproperty or any interest of any partner. Thus by Ext. K, the joint family business i.e. M/s. NanjiGovindji & Sons, Govardhan Brothers and Taunk Brothers got converted into partnerships whichstand admitted by D.W. 1, Nandlal N. Taunk in para-64. This partnership continued to exist and wasdissolved 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 againagreed to be divided between the partners. At the relevant time, M/s. Nanji Govindji & Sons wasallotted 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-defendantno. 1 and Nanalal N. Taunk-defendant no. 2 whereas M/s. Taunk Trading Company was allotted to3rd 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), thesenew 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 wasconverted into partnership businesses by Ext. K. Immediately on the same day, i.e. on 1.1.1978, threemore 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) andExt. 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 fouragreements (Ext. D series) on the very next day i.e. 1.11.1978 itself goes to establish that these wereonly meant for creation of different partnership firms for the purposes of avoiding tax liability andfor increasing the income of the business which has been admitted in para 64 by D.W. 1. Ext. Fdated 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 transferredto the plaintiff-appellant. All these documents are unregistered and have been created only foravoiding liability of tax so as to increase the income of the family. Thus all the properties i.e. ItemNos. VI to XIII having been acquired during continuance of the joint family business by Ext. K in theshape 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 presumptionin a Hindu family that property is joint and a sufficient nucleus for acquisition of the property isestablished. Further submission is that the evidence of the witnesses proceed on an assumption thatcommon 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 firmclaimed by the defendants to be exclusive of the respective partners cannot be accepted for thereason that these firms were constituted from the nucleus of the joint family; there is no proof aboutseparate and exclusive earning of the respective partners and, according to paragraph 233 of Mulla'sHindu Law, Eighteenth Edition, the onus is on the person to establish that certain property is notfrom 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 normalstate 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 isproved, the family continues joint. The presumption of union is the greatest in thecase of father and sons."

38. For want of necessary proof, the statement of the witnesses cannot be accepted. Great emphasisis on the question of legal necessity; or in absence of any legal necessity contended by thedefendants, sale by Karta, in the instant case, is void and thus was unable to discharge the onus ofsubstantiating that the sale was made for a legal necessity. Reliance has been placed on a number ofdecisions viz., AIR 1981 Allahabad 335; AIR (34) 1947 Privy Council 189;AIR 1954 SC 379; AIR 1965SC 289; AIR 1969 SC 1076.

39. On the basis of a decision of the Apex Court in Srinivas Krishnarao Kango vs. Narayan DevjiKango and other (AIR 1954 SC 379), learned counsel has submitted that proof of existence of a jointfamily though does not lead to presumption that property held by any member of the family is jointand the burden rests upon any one asserting, but when it is established that the family possessedsome joint property from its nature and a relative value may have formed a nucleus from which theproperty in question may have been acquired, the burden shifts on the party alleging self acquisitionto 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.Suryanarayanamurti and others (AIR (34) 1947 Privy Council 189). Reliance has also been placed inthe 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, infact, on the date of acquisition of the property, the joint family has sufficient nucleus for acquiringthe property in the name of any member of the joint family should be presumed to be acquired outof the family funds and, therefore, to form part of the HUF unless a contrary is shown. Anotherdecision cited by Mr. P.K. Prasad is Mudigowda vs. Ramchandra (AIR 1969 SC 1976). Paragraph 5 ofthe judgment is quoted hereinbelow:-

" It is now well established that an agreement between all the coparceners is notessential to the disruption of the joint family status, but a definite and unambiguousindication of intention by one member to separate himself from the family and toenjoy 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 isunequivocally expressed, and clearly intimated to his co-sharers, the right of thecoparcener to obtain and possess the share to which he admittedly is entitled, isunimpeachable.

If, however, the expression of intention is a mere pretence or a sham, there is in theeye 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 laiddown is proof of existence of a joint family does not lead to the presumption that the property heldby any member of the family is joint; the burden rests upon any one asserting that any item ofproperty is joint to establish this fact, but where it is established that the family possessed somejoint property which from its nature and relative value may have formed the nucleus from which theproperty in question may have been acquired, the burden shifts to the party alleging self acquisitionto 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 aswell as during course of argument, the repeated emphasis of the learned counsel that there was nopartition whatsoever and all the properties including the business are an outcome of joint familynucleus. There is sufficient proof of the fact that the father of the plaintiff had sufficient means toacquire 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 isrepeatedly criticised.

42. Once again the arguments are controverted by Mr. L.K. Lal, appearing on behalf of defendantsno. 1, 2 and 4 i.e. the substituted heirs of respondent no. 1 and substituted heirs of respondent no. 4and respondent no.2 as well. Accepting the finding of the court below 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 itis not a joint family business. Section 14 of the Partnership Act provides that the property of the firmis 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 firmor for the purpose in course of business of the firm. In case, there is any objection that the propertywas not purchased by the firm Nanji Govindji & Sons, it can only be decided in a separateproceedings 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 theproperty. It can only be said that till Nanji Govindji Taunk was alive, the properties purchased byhim can be said to be joint but subsequent to his death, any assertion on the part of the plaintiffcannot be accepted. He has placed paragraph 228 of Mulla's Hindu Law sixteenth Edition at page253 which is quoted below:--

"228. Property jointly acquired.--(1) Where property has been acquired in businessby persons constituting a joint Hindu family by their joint labour, the question ariseswhether 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. Ifit is a joint family property, the male issue of the acquirers take an interest in it bybirth. If it is the joint property of the acquirers, it will pass by survivorship, but thesale issue of the acquirers do not take interest in it by birth. If it is partnershipproperty, it is governed by the provisions of the Indian Partnership Act, 1932, so thatthe share of each of; the joint acquirers will pass on his death to his heirs, andk not bysurvivorship."

43. The assertion in the plaint in paragraphs 7, 8, 9, 13 and 14 are regarding acquisition from thejoint family nucleus. This is replied and controverted in the written statement that only thoseproperties 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 waspurchased from the joint family nucleus but the evidence is absolutely contrary to it and paragraphs12, 15 and 16 of the statement of the plaintiff is that the firm acquired the property and wasconstituted in the year 1958. The common ancestor admittedly died in the year 1955 and also retiredfrom the business in the year 1944. Thus the joint family property has got nothing to do with theacquisition by the firm Nanji Govindji & Sons. The rival contention between the defendants no. 2and 4 vis-a-vis respondents no. 5 to 9 regarding creation of the partnership of Item No. VII whichwas purchased by Nanji Govindji & Sons. The plaintiff has surrendered his appeal regarding ItemNo. VII which has hotly been objected on behalf of respondents no. 5 to 9.

44. Mr. Indrajit Sinha, appearing on behalf of these respondents, have tried to controvert thearguments regarding this property. During the course of the proceedings, injunction order waspassed restraining respondent no. 1 or any other party from alienating this property or any othersubject matter of the suit during the pendency of the appeal. In these circumstances, the objectionhas been raised by Mr. Indrajit Sinha and Mr. Rohit Roy , Advocate appearing on behalf ofrespondents no. 5 to 9 that the appellant has given up his claim in respect of Property No. VII onlywith a view to circumvent the interim order granted on 5.5.2005. The argument on behalf of theplaintiff, giving up his claim and assertions of Mr. L. K. Lal in respect of respondents no. 1, 2 and 4that it is his exclusive property and the arguments on behalf of respondents no. 5 to 9 relating to thesaid property is apparently regarding the question that whether the conclusion arrived at by the trialcourt regarding exclusive ownership of respondents no. 1, 2 and 4 in exclusion of the otherdefendants and the plaintiff is beyond the pleadings and the relief claimed in the instant suit; thecontroversy raised at the behest of respondents no. 5 to 9 can only be examined within the ambit ofOrder XLI Rule 33 CPC by this Court. The case of the plaintiff as well as the defendants is thatinitially the properties shown as Item Nos. VII, VIII, IX, X, XI and XII were in the name of NanjiGovindji & Sons. The trial court dismissed the suit in respect of the aforesaid properties. The trialcourt has recorded its finding against the plaintiff but has gone further and recorded findingallocating shares and constituents of the partnership firm amongst the defendants and also vis-a-visrespective members of the family.

These findings are recorded on the basis of various deed of partnership firms. Thee are dissolutiondeeds, deeds of reconstitution etc. The objection of Mr. Indrajit Sinha appears to be well founded onthe 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 thepartnership firm and also holding as to who are the partners of which firm and what is the basis orevidence to come to the said conclusion. In fact, the suit is preferred claiming that all the propertiesincluding his business and partnership firm are from the joint family nucleus and, therefore, theycontinued to be a joint family property and the relief claimed is for partition and allocating 1/7thshare to each of the sons of Late Nanji Govindji Taunk. It is also to be noticed that defendants no. 5to 9 did not contest the suit nor file any written statement. The counter claim preferred in thisappeal stands rejected and, therefore, the arguments available to respondents no. 5 and 9 is verylimited but nothing constrains this Court to go into the questions of fact, pleadings, relief claimedand appraise the evidence on record. No doubt, running of several firms does not necessarily implyseparation and no such inference can be drawn merely because there are a number of businessunder different names in existence or the claim that partnership firms were formed for betterhanding business or to keep it manageable or for various other reasons, it is well within the scope ofthe 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 othermember of the coparcenary, not even his male issue, acquires any interest in it bybirth. He may sell it (s), or he may make a gift of it, or bequeath it by will, to anyperson he likes

(t). It is not liable to partition (u), and, on his death intestate, it passes by successionto 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, possessjoint property. When in a suit for partition a party claims that any particular item is joint familyproperty, 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 bedecided separately. The plaintiff's emphatic assertion is that the burden rests on the defendants tosubstantiate that the firms were from the own source of partners lies on the shoulder of thedefendants since the plaintiff has pleaded that Nanji Govindji Taunk had a successful business fromwhich several properties were purchased which are admittedly joint today and the trial court hasaccepted this contention without any objection. The firms constitute amongst the heirs of Late NanjiGovindji Taunk have not shown that the firms were constituted by their separate earning. The onlyinference that can be draw is that the property remained joint. The court below has categoricallyrecorded its findings that certain properties such as Item Nos. I, II, III and V are joint purchased byNanji 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 andsubstantiate 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 plaintiff in paragraph 30 hasprayed for a preliminary decree for 1/7th share in the properties described in Schedule B. Thereafterthe consequential relief of appointment of survey knowing pleader commissioner to demarcate theshare and for preparation of final decree. Schedule B mentions as many as XIII properties. PropertyNo. I relates to house property situate on lease Holding No. 70, measuring 16,684 sq. ft. inContractors' Area, P.S. Bistupur, Town Jamshedpur, District Singhbhum (East); Item No. II All thathouse 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 houseproperties on Lease No. 105, measuring 2,309 sq. ft. in Contractors' area, P.S. Bistupur, TownJamshedpur, District Singhbhum (East); Item No. IV: All that house properties situate (NalandaHotel) 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, LeaseNo. 6-SB Shop, measuring 4,182 sq. ft. in P.S. Bistupur, Town Jamshedpur, District SinghbhumEast; 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 SinghbhumEast; Item No. VII: All that House Properties situate (one Godown on "N" Road, West, Near KhalsaClub) measuring 9596 sq. ft. in P.S. Bistupur, Town Jamshedpur, District Singhbhum (East); ItemNo. 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 propertiessituate in 'N' Town, Godown at Northern Town, measuring 14,566 sq. ft. in P.S. Bistupur, TownJamshedpur, District Singhbhum East; Item No. XI. All that piece and parcel of lands measuring atotal area of 20.68 Acres situate in Mouza Asanboni, P.S. Chandil, District Singhbhum (W); ItemNo. 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 theamendment on 12.5.1993, paragraph 9 was amended but not the relief clause. It is thus clear that norelief or claim regarding the partnership firm which was admittedly constituted after the commonancestor retired from the family business is pleaded. It is admitted by the plaintiff in his statementthat Nanji Govindji Taunk retired from the business in the year 1944. Thereafter the propertiesacquired by him during his life time continued to be joint family property but thereafter the firmNanji Govindji & Sons was constituted at a very late stage and thus no presumption can be drawnwhether 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. VIIto XII, which are in fact not house properties but are partnership business can be said to be jointHindu family property. The admitted position is that the father of the original plaintiff acquiredcertain movable and immovable properties and engaged in several construction and Hardwaresbusiness. 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 inthe year 1954, the family business carried on in the name of three firms was partitioned and a deedwas executed on 29.10.1954. The firm Nanji Govindji & Sons was a partnership firms under theprovision of Indian Partnership Act, 1932 and was constituted with the aid of separate capital. Theterms and conditions are duly recorded in the deed marked as Ext. K which is dated 3.11.1954. It isthus clear that these firms could not be the subject matter of the partition suit since it is not a jointHindu family property. The plaintiff has neither pleaded nor proved by evidence that the income ofthe firm blended with joint Hindu family property. On the contrary, prior to the institution of thesuit, a notice was given by the defendants to the plaintiff for partition of joint family property whichis marked as Exts. 1, 1/ a, 1/b, and 1/c and asked for partition in the immovable property. Theseproperties marked as item nos. I. II, III and V, this is not disputed by any of the parties to the suit orthis appeal.

I uphold and confirm the judgment of the trial court. The remaining properties other than shown asItem Nos. I, II, III and V are not joint family property and not acquired from HUF funds. Thepartners/sons of Nandji Govindji Taunk acquired from their independent income. Once it isconcluded that there was a disruption of joint family, then merely saying that HUF continues is notsufficient. Admittedly one brother Ranchhod N. Taunk separated long back and has his independentearning, 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 (Para28)] wherein it has been held as under:

"28. Once disruption of joint family status takes place as Lord Westbury puts it inAppovier's case, it covers both a division of right and vision of property. If adocument clearly shows the division of rights and status its legal construction andeffect 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 thepleadings, the submission of Mr. P.K. Prasad that besides the properties number shown as ItemNos, I, II, III and V held to be acquisition of a joint Hindu family, it cannot be accepted that theremaining properties are also joint family acquisition. Admittedly, there is no dispute regardingProperty Nos. VI and XIII. If there is no separation, Ranchhod N. Taunk should also haveconstituted as member of the family business commenced at a later date. The trial court khasrecorded a finding that Property No. VI Natraj Mansion shown in schedule B in the relief clause ofthe plaint is exclusive property of Ranchhod N. Taunk and his heirs. Similarly the property shown atItem No. 13 situate at Raipur (M.P.) belongs to Dilip N. Taunk who was not even arrayed as party tothe suit and all the remaining parties to the suit and appeal have not objected to the said assertionand, 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 beingjoint 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 sixpartners. The two other firms, namely, Govardhan Brothers and Taunk Brothers were alsoconstituted and the obvious conclusion is that the capital was partitioned and a deed of partitionwas executed on29.10.1954 wherein it was also agreed that immovable properties by Nanji GovindjiTaunk 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 establishedunder 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 partnershipdated 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 orprofit made by the firm was exclusive property of the firm and the disposal thereof would strictlyhave 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., was neither pleaded in the plaint nor relief was claimed, butthe plaintiff has asked for 1/7th share in each of the property. Therefore, in my view, the findingsarrived at by the trial court deciding and allocating the different partnership firm to the respectivedefendants is a finding which is beyond the pleadings and the relief claimed in the plaint. The suitwas by the plaintiff claiming 1/7th share in all the properties. In my view, no decree could have beenpassed in respect of the business which are admittedly partnership business and cannot be termedto be the H.U.F. properties as claimed in the relief clause. Thus, in my view, the findings of the courtbelow regarding the remaining properties cannot be upheld. The respective shares and the claim inthe partnership firm can be contested in a separate suit in accordance with the Partnership Act butnot in the appeal. The validity of certain partnership deeds which are unregistered and alsochallenged by Mr. Indrajit Sinha cannot be adjudicated in this appeal as it is not the relief claimed inthe instant suit. The findings recorded by the trial court is beyond the pleading, any evidence readby the trial court is not within the frame of the pleadings of the suit and cannot be taken intoconsideration. Hence this part of the judgment is set at naught. However, no findings regardingshare can be assessed in this appeal. The parties shall continue with the present constitution of thefirms 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 jointand acquired by common ancestor in that capacity is upheld and each of the sons ofNanji Govindji Taunk are entitled for 1/7th share.

(ii) Item No. VI is an exclusive property of Late Ranchhod N. Taunk and at present isthe exclusive property of respondent nos. 10 and 16 and no other family member hasa share in it.

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



(iv) The plaintiff has not been able to substantiate that the partnership businessshown in Schedule B are acquisition of HUF nucleus and, therefore, he has also ashare in the said property and the suit and appeal is, therefore, dismissed.

54. In the result, this appeal fails and is, accordingly, dismissed in terms of the findings recordedabove. No order as to costs.

(Poonam Srivastav, J.) Jharkhand High Court, Ranchi.

The 25th April, 2012.

AKS/AFR/Cp.3.



govardhandas nanji taunk vs balram n. taunk & ors. on 25 april, 2012

Documents

taunk son

taunk ors

taunk govardhandas

ravindra taunk

nanji govindji taunk

parties nanjigovindji

partition suit

senior advocate