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1988 DIGILAW 291 (KER)

DHANA RAO v. KALIDASAN

1988-07-05

BALAKRISHNA MENON, SHAMSUDDIN

body1988
Judgment :- 1. The only question for decision in this appeal by the plaintiff is as to whether the suit properties are joint family properties available for partition among the parties to the suit or are they separate properties of the acquirers. According to the plaintiff, he and the defendants belong to a joint Hindu family of the descendants of one Bhakta Shetty. The 12 items of properties mentioned in the plaint are the acquisitions of Parades! Shetty on behalf of the joint family and are therefore available for partition among the members of the joint family. The suit is resisted by defendants 6, 7 and 9. According to them some of the properties were the acquisitions of their predecessor Paradesi Shetty and some other properties are separate acquisitions of defendant 6 and her son Bapputta Shetty. The court below has found that the plaintiff has failed to prove that the properties are joint family properties and has accordingly dismissed the suit. It is against this that the plaintiff has come up in appeal. 2. There is no dispute about the correctness of the genealogy shown in page 4 of the printed judgment of the court below. Bhakta Shetty, the common ancestor, had two sons Vittala Shetty and Bapputta Shetty. Paradesi Shetty is the son of Bapputty Shetty. He died in the year 1952. The 6th defendant is his widow. They had a son by name Bapputta Shetty. He died in the year 1938, even before the death of Parades Shetty. The 7th defendant is his widow. Defendant 8 is a daughter of Bapputta Shetty and defendant 9 is the daughter of Devayani, a deceased daughter of Bapputta Shetty. Vittala Shetty, son of Bhakta Shetty, had three sons-Angada Shetty, Hari Shetty and Bikkari Shetty. The plaintiff is the son of Bikkari Shetty. Defendants 1 to S are the descendants of Angada Shetty and Hari Shetty. 3. There is no dispute that the suit properties, except two items standing in the names of Bapputta Shetty and defendant 6, are the acquisitions of Paradesi Shetty. According to the plaintiff even those items standing in the names of Bapputta Shetty and the 6th defendant are also acquisitions of Paradesi Shetty in their names. 3. There is no dispute that the suit properties, except two items standing in the names of Bapputta Shetty and defendant 6, are the acquisitions of Paradesi Shetty. According to the plaintiff even those items standing in the names of Bapputta Shetty and the 6th defendant are also acquisitions of Paradesi Shetty in their names. The only ground on which the plaintiff claims the suit properties as joint family properties is for the reason stated in Para.5 of the plaint extracted below: "Paradesi, the head of the family, was the manager of the family properties Angada Shetty grandfather of defendants 1 and 2, Hari Shetty grandfather of defendants 3 to 5 and Bikkari Shetty father of the plaintiff were co-owners of the properties. They were all brokers getting large incomes and were helping with their income from their business and funds the manager to purchase properties. Though purchases of properties were made in the manager's name, Angada Shetty, Hari Shetty and Bikkari Shetty contributed handsomely their mites in the purchase. So all properties are entitled to be partitioned equally amongst the co-owners. Even otherwise after death of Paradasi Shetty, his rights in the properties devolve upon the other co-parceners by survivorship i.e. upon. Angada Shetty. Hari Shetty and Bikkari Shetty whose rights devolve by survivorship upon plaintiff and defendants 1 to 5 after their death. So plaintiff and defendants 1 to S are entitled to partition and separate possession of the plaint schedule properties into 3 shares with mesne profits, since they are the joint owners in possession of the plaint schedule properties." Except for the allegation that Paradesi Shetty was the manager of the family properties, there is nothing on record to show that the family was possessed of any properties except a residential boose in Fort Cochin, where some of the members of the family were living. Even though there may be a presumption that a Hindu family is a joint family, there is no presumption that the family is possessed of joint properties (vide K. Obul Reddy v. B. Venkata Narayana Reddy AIR 1984 SC 1171). The burden is on the plaintiff to prove that the family was possessed of sufficient nucleus with the aid of which the acquisition would have been made. No such proof is forthcoming in the present case. The burden is on the plaintiff to prove that the family was possessed of sufficient nucleus with the aid of which the acquisition would have been made. No such proof is forthcoming in the present case. There is also no proof of any joint exertion for the purpose of acquisition of properties by Paradesi Shetty. Acquisition of property by the joint labour of the members of a joint family enures for the benefit of the joint family. But in the absence of proof that there was any joint labour involved for the acquisition of properties in the present case, it is not possible to hold that the suit properties are joint family properties for the reason of their acquisition by joint labour. 4. The only other ground urged in support of the contention that the properties are joint family properties is that the other members of the joint family, who were all brokers, had contributed their mite for the acquisition of properties by Paradesi Shetty. There is no evidence to prove any such contribution. Even if the members of the family were all brokers and if they had any separate income by their profession as brokers, such income that the members derive by their profession will not be joint family property. The Supreme Court in Lakshmi Chand Khajuria v. Ishroo Devi ((1917) 2 SCC 501) states at page 505: "In support of the contention that the income derived from practice of a hereditary profession should be construed as ancestral property, the learned counsel referred us to two decisions in Ghelabhai Gavrishankar v. Hargowan Ramji, and Hansa Pathak v. Harmandil Pathak. Neither of the cases support the contention of the learned counsel. In the first case the question that arose for consideration was nature of the office of a hereditary priest. It was held that the hereditary right of the priest is immovable property: Chandavarkar J. pointed out that hereditary priesthood vested in particular families is regarded as vritti or immovable property but we do not find any support for the contention that the income of the hereditary priest will also be hereditary property. It was held that the hereditary right of the priest is immovable property: Chandavarkar J. pointed out that hereditary priesthood vested in particular families is regarded as vritti or immovable property but we do not find any support for the contention that the income of the hereditary priest will also be hereditary property. In fact in Hanso Pathak v. Harmandil Pathak it has been made clear that in the United Provinces the income received as amounts paid by Yajmans at their discretion either by way of charity or by way of remuneration for personal services rendered by the priest, cannot be claimed as of right, and cannot amount to a family property. Chief Justice Sulaiman expressed his view that the income received as amounts paid by people at their discretion either by way of charity or by way of remuneration for personal services rendered cannot be claimed as of right, and cannot amount to family property. Mukerji, J. in a concurring judgment after distinguishing Ghalabhai Gavrishankar v. Hargowan Ramji held that the income is "Vidvadhana" which is the same thing as "gains of science" or what has been acquired by exercise of learning and cannot be divided by partition. We agree with the view thus expressed by the Allahabad High Court and find that the income from the practice of a hereditary profession will not be joint family property." The income derived by the members of the family by their profession as brokers is not joint family property and even if it is proved that some of the members bad income from their profession and bad also contributed for the acquisition of properties, the properties do not thereby become joint family properties for that reason alone. In the present case there is also no proof that the other members contributed for the acquisition of properties by Paradesi Shetty. For the aforesaid reasons we see no ground to differ from the view expressed by the court below. The appeal fails and is dismissed, with costs.