TMI Blog2013 (9) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... or Mitakshra, a joint Hindu family, normally joint in food, worship and estate and property of such joint family may consist of ancestral, joint acquisition and self acquired but thrown into a common stock. If one or more more of the family start a business or acquire property without the aid of joint family property, such business or acquisition would be his or their acquisition. It can be however thrown into a common stock or blend with the joint family property in which case the said property becomes the estate of the joint family. If if it not done, the said property would be his or their self acquisition and succession of such property will not be governed by the law of joint family but only by the law of inheritance rights inter se between the members who have acquired such property and would be subject to the terms of the agreement whereunder it was acquired. There is distinction between the joint family property and property acquired by the joint efforts. Court has to see whether it is a jointly acquired property or not. There is no presumption that business carried out by a member of the joint family with the stranger is joint family business. It is a matter for evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endants are accepted - Decided against Appellant. - Notice of Motion No. 166 of 2013 In Suit No. 75 of 2013 - - - Dated:- 27-8-2013 - R. D. Dhanuka,JJ. For the Petitioner : Mr. Shailesh Shah, Sr. Advocate, a/w. Mr. S. U. Kamdar, Sr. Advocate, Ms.Mamta Sudh, Adv., Mr. S.K. Srivastava, Ms. Manorama Mohanty and Mr. Gunjan Shah i/b. S.K. Srivastav Co. For the Respondent : Mr. Aspi Chinoy, Sr. Adv. With Mr. D.D. Madon, Sr. Adv., Mr. Zal Andhyarujina, Adv., Mr. R.V. Gandhi, Mr. B.S. Damodar, Mr. Mahek Karanbar, Adv. B.P. Pathak i/by M/s. Kanga Co. Mr. Girish Godbole, Mr. Vishal Kanade with Mr. Sandip Dhangar i/by Jayesh, R. Vyas, Mr. Kalpesh Nansi, Mr. Bharat Vaishnawa, Mr. P. K. Dhakephalkar, Sr. Advocate with Mr. Vijay Nair, Adv. i/b. Ravi Talreja, Adv. Mr. Kedar Desai i/by Desai Desai Carrimjee Mulla for defendant no. 12.Ms. Kaushika Muthukumar along with Ms. Reema Barve i/by R.G.M. Law Associates for defendant Nos. 13 an 14. Mr. Virag Tulzapurkar, Sr. Advocate for defendant no. 15. Mr. Chirag Balsara, Adv. With Fatima Diamondwala, Ashraf Diamondwala, Hamza Tatli i/by M/s. Diamondwala Co. for Defendant no.17 to 19. Mr. Janak Dwarkadas, Sr. Adv with Mr. Devitji, S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said deceased who were then minor, were admitted to the benefits of the firm. The other partners in the said firm were Mr. Kanayalal and Ramchandra Lokram. The said firm started business of grocery at 257, Narsee Natha Street, 201, New Anant Bhavan, Mumbai 400 009. On 9th October,1973 the said deceased was adjudicated insolvent. In the year 1976, from the earning of kirana commission business carried on by the said firm M/s. Kanayalal Rameshkumar partly and partly from the moneys advanced by Mr. Kanayalal to the said firm, flat at Jolly Maker Apartment at Cuffe Parade, Mumbai was purchased in the name of four brothers who had attained the age of majority. It is the case of the plaintiff that the said firm had directly made payment for consideration for purchase of the said flat. On 13th April, 1982, the said flat at Jolly Maker Apartment was sold for Rs.12,50,000/. (c) In June, 1982, another firm was constituted for carrying out kirana business in the name of M/s. Rameshkumar Gopaldas at the same address where M/s. Kanayalal Rameshkumar was carrying on the business. Defendant Nos. 1, 3 and 4 and plaintiff became partners of the said firm. It is the case of the plaintiff that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing space of M/s. Ahuja Constructions was sold. Out of the sale proceeds of the said office and car parking, office premises at A1, Rajpipla, Santacruz, Mumbai 52 was purchased from which premises the construction business and kirana merchant agency business was also conducted. The said office premises was purchased in the name of Jaigopal Hire Purchase Pvt Ltd also known as Jaigopal Consulting Services Pvt. Ltd. On 14th April, 1996, the said deceased expired. (e) In the year 1997, M/s. Ahuja Developers was reconstituted by including M/s. Keepsade Properties Pvt. Ltd as partner. In the year 1997, defendant no.1 disclosed 32 Crores in the name of five firms/companies under the voluntary disclosure scheme. Defendant No. 1 created Jagdish Bhagwandas Ahuja (HUF) overnight without knowledge of the plaintiff. The said amount of Rs. 32 Crores was utilized to fund the Slum Rehabilitation Project called Ahuja Towers (Prabhadevi) and also for implementation of construction of building known as Ahuja L'Amor Tower at Lokhandwala Extension. (f) On 12th December, 1999 various family concerns executed MOU whereby defendant no. 15 company was empowered to act as common pool company for vario ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On 18th December, 2007, M/s. Cosmos Bank addressed a letter to M/s. Ahuja properties with repsect to the over dues in their account. On 28th January, 2008, plaintiff addressed a letter through his advocate to M/s/ Ahuja Properties Pvt. Ltd calling upon the said bank to forthwith issue share certificates in respect of the shares held by the plaintiff and his wife and requested for inspection of various documents. (h) In the year 2010 M/s. Ahuja Housing and Development Pvt. Ltd was converted into Ashtavinayak Builders and Developers Pvt. Ltd wherein plaintiff has 40% shareholding. In January, 2010, the said Kirana firm cleared outstanding of Tamilnadu Mercantile Bank in the sum of Rs. 8 Crores. On 19th February 2010, defendant No.1 and his wife got the accounts of Kirana funds in the name and style of Rameshkumar Gopaldas frozen where plaintiff and defendant no. 1 were partners and Ganesh international where wife of defendant no. 1 and plaintiff were partners. On 19th February, 2010, M/s. Tamilnadu Mercantile Ltd addressed a letter to the firm M/s. Rameshkumar Gopaldas informing about the freezing of the account by defendant no. 1. By letter dated 1st June, 2010, addressed by plaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 25th February, 2013 (148 of 2013). By an order dated 16th April, 2013 passed by the Division Bench, it is held that in the facts and circumstances of the case, nature of controversy and the observations made by the learned trial Judge, some protection is required to be granted to the plaintiff till the learned Trial Judge decides the nature of matrix and it was not necessary to give any reasons for the ad interim directions which the Division Bench proposed to give in the said order. It was made clear that the Division Bench was not inclined to grant any ad interim injunction against implementation of the slum rehabilitation projects on the lands at item Nos.5 and 26 and of the development project on the land at item no. 14. The Division Bench granted ad interim injunction against creation of third party rights in respect of the office premises at item Nos. 7, 11, 21, 23 and 25 and also the factory premises at item no. 10, over and above the ad interim injunction granted by the learned Single Judge. No ad interim injunction is granted in respect of the residential flat being occupied by other brothers and sisters. Defendant nos. 16 and 17 were directed to earmark those portions i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the moneys earned by M/s/ Kanayalal Rameshkumar and partly from the moneys advanced by Mr. Kanayalal to the said firm, residential flat was purchased in the name of four brothers in Jolly Maker Apartment. The consideration of the said flat was paid by the firm. The flat was sold in the month of April, 1992. There was surplus after purchase of four flats out of the said sale proceeds which surplus was utilized for starting another firm M/s. Rameshkumar Gopaldas in which defendant nos. 1, 3 and 4 and plaintiff were made partners. Since the year 1984, father of the plaintiff and defendant nos. 1 to 8 diversified the said business to construction, marble processing, spices business etc. Defendant no. 1 who was eldest brother was at all material time head of the family. After demise of the father, all the businesses of father were continued by the joint family of the plaintiff and defendant nos.1 to 8. Plaintiff and defendant no. 1 who were partners of M/s. Kanayalal Rameshkumar retired because the plaintiff was also partner of Rameshkumar Gopaldas along with defendant no. 1. The audited balance sheet of Kirana and construction business would indicate that there was transfer of funds f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsequent businesses were started by the family. The income of the firm M/s. Kanayalal Rameshkumar was used in buying flat at Cuffe Parade, Mumbai and starting other businesses. During the period 1969 to 1982, there was no other business started except purchase of flat at Cuffe Parade which was sold in the year 1982. It is submitted by Mr. Shah, learned senior counsel that the partnership deed of 1970 would show presence of all the brothers and thus would show that the business run by joint family either through father or through all efforts of brothers by starting joint family business. In so far as defendant No. 15 to 19 private limited companies are concerned, it is submitted that those companies incorporated are in the nature of glorified partnership and this court shall lift the corporate veil of such companies and declare the properties and business of said companies joint family properties and businesses. It is submitted that the plaintiff and defendants are together in all the firms and businesses which are described in Exh. C to the plaint. (e) Mr. Shah placed reliance on the brochure/profile got printed by the first defendant and submits that defendant no. 1 himself has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed 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 selfacquisition to establish affirmatively that the property was acquired without the aid of the joint family property. Therefore, so far as the proposition of law is concerned, the initial burden is on the person who claims that it was joint family property but after initial discharge of the burden, it shifts to the party who claims that the property has been purchased by him through his own source and not from the joint family nucleus. Same proposition has been followed in the case of Mst. Rukhmabai v. Lala Laxminarayan and Ors. reported in MANU/SC/0186/1959 : [1960]2SCR253 wherein it was observed as follows: There is a presumption in Hindu Law that a family is joint. There can be a division in status among the members of a joint Hindu family by defilement of shares which is technically called "division of status", or an actual division among them by allotment of specific property to each one of them which is described as "division by metes and bounds". A member need not receive any share ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unilateral act it is not open to any member of the joint family to convert any joint family property into his personal property. 11. In the case of Surendra Kumar v. Phoolchand (dead) through LRs and Anr. reported in MANU/SC/0307/1996 : [1996]2SCR15 their Lordships held as follows: 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 selfacquisition to establish affirmatively that the property was acquired without the aid of the joint family. Therefore, on survey of the aforesaid decisions what emerges is that there is no presumption of a joint Hindu fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved; but that presumption can be rebutted by direct evidence or by course of conduct. Reliance is placed on paras 16 and 47 of the said Judgment which read thus : 16. The general principle is that every Hindu family is presumed to be joint unless the contrary is proved; but this presumption can be rebutted by direct evidence or by course of conduct. It is also settled that there is no presumption that when one member separates from others that the latter remain united; whether the latter remain united or not must be decided on the facts of each case. To these it may be added that in the case of old transactions when no contemporaneous documents are maintained and when most of the active participants in the transactions have pressed away, though the burden still remains on the person who asserts that there was a partition, it is permissible to fill up gaps more readily by reasonable inferences that in a case where the evidence is not obliterated by passage of time. 47. In Mayne's Hindu law, 11th edn., the legal position has been neatly stated thus at p. 347 : "So long as a family remains an undivided family, two or more members of it, whether they be members of different branch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be subject to the terms of the agreement whereunder it was acquired. The concept of joint tenancy known to English law with the right of survivorship is unknown to Hindu law except in regard to case specially recognized by it. In the present case, the uncle and the two nephews did not belong to the same branch. The acquisitions made by them jointly could not be impressed with the incidents of joint family property. They can only be cosharers or cotenants, with the result that their properties passed by inheritance and not by survivorship. 5. Mr Shah also placed reliance on a Judgment of Supreme Court in case of Sameer Kumar Pal and Anr. V. Sheikh Akbar and Ors. reported in 2010 AIR SCW 5332 in support of his submission that the plaintiff has to only prove the nucleus has been formed. Reliance is placed on paras 4, 5, 8 and 12 of the said Judgment which read thus : 4. The appellants filed a suit for eviction against the defendants (respondents herein) under section 12(1)(c) (that the tenant has created nuisance), 12(1)(f) (for bona fide requirement of landlord for nonresidential purposes) and 12(1)(g) (bona fide requirements of landlord to carry out repairs) of the M.P. Accom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that the respondents have not paid rent since September, 1992 and decided the issue of default in favour of the appellants. The trial court categorically held that the suit property is not the Wakf property and decreed the suit of the appellants. 8. The High Court in the impugned judgment, without any pleadings or basis, held that the property namely `Madras Hotel' is a joint family property. The High Court erroneously observed that the property namely `Madras Hotel' was purchased by the father of the appellants and his brothers, whereas in fact the property was purchased by the appellants vide sale deed dated 31.12.1991. The assumption of wrong fact has led to total erroneous finding and conclusion. The High Court in para 8 observed as under: "......It is firmly established that the building known as `Madras Hotel' belongs to Laxminarayan Pal and his two sons who are the plaintiffs. That is their joint family property. This building was purchased by Laxminarayan when he was carrying on business with his two brothers and the partition took place long after the acquisition of that building. In that partition that building was allotted to Laxminarayan alone......" 12. The ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s exists. Learned senior counsel submits that there is no proof of separation of the family and/or business. Various firms and companies were formed by family members for various reasons. Forming of various firms and companies for the purpose of carrying on business does mot mean that there was separation of family members. Mr Dhakephalkar also placed reliance on para 5 of the Affidavit in reply filed by defendant No.1 in support of his submission that defendant No.1 had admitted in the said para that out of the income generated from M/s Kanayalal Rameshkumar, the first defendant started other businesses. Mr Dhakephalkar placed reliance on the Judgment of this Court in case of Kausabai wd/o Rajaram Waradkar Ors. Vs. Gayabai wd/o Gundaji Mogre ors. Reported in (2010) (4) Mh.L.J. 46 in support of his submission that a distinction has to be made between joint family property and the property acquired by joint efforts. Even if one of the coparceners decides to break away from the rest of the family other coparceners still can constitute a joint Hindu family. Learned senior counsel also submits that if the business was joint and the property was acquired from earnings of joint busin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The distinction has to be made between joint family property and the property acquired by joint efforts. The suit property could in no case be treated as joint family property. It is to be seen if it is a jointly acquired property or not. Defendants contend that defendant no.2 was alone running his own business, while plaintiff claims that the business run was family business and from its income the property is acquired. From the evidence on record, the suit property could certainly be said to be the jointly acquired property. It is the case of the plaintiffs that plaintiff no.1 started the business and started earning. DW 1 Vitthal admits in the cross examination that his mother was dealing in grains and was earning. He also admits that his mother and aunt paid him money for starting business. If mother was also doing the business, as is accepted by the defendants, it is difficult to accept the theory of defendant no.2 that he was alone running the shop. Admittedly, there were two shops at two different places. It is therefore, difficult to accept that defendant No.2 alone could run both the shops at the two different places. The theory of the plaintiffs that the shops were joint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ull knowledge of the property being owned by the family and not by defendant no.2 alone. The appellant therefore, could not be treated to be a bonafide purchaser. Although I find that the property is not a joint family property as such, all the same it is jointly acquired property in which each one of them has equal share. In the circumstances, there is no difficulty in confirming the judgment and decree as passed by the court below. The appeal is, therefore, dismissed. No order as to costs. 7. Mr. Dhakephalkar, learned senior counsel also placed reliance upon Supreme Court Judgment in case of Madanlal (dead) by LRS. And Ors. v. Yoga Bai (dead) by LRS. reported in 2003(5) Supreme Court Cases 59 in support of his submission that running of various separate firms and companies would not necessarily imply separation. Paras 5 6 of the said Judgment read thus : 5. The High Court has not believed the case of the defendants that there had already been a settlement in respect of the properties in question in 1942. It at least indicates that even according to the contesting defendants, some settlement of the property amongst the members of the family was necessary which had already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entered into between different members of the family in different combinations. It is sought to be established that they have been running their business separately under different partnership. We feel that no such inference can be drawn. In a family which carries on a number of business, it is quite often that it is carried out under different names and styles and often constitutes different companies or partnerships for better handling of business or to keep it manageable or for various other reasons. It is no proof of separation nor are the letters which are sought to be relied upon, written to the incometax authorities and the assessment orders passed by the incometax authorities. It has already come in evidence that even B3 came into existence since the government wanted to inspect the account books. Therefore, once the settlement before the suit for partition was filed is not accepted by means of a finding of fact recorded by the High Court, the case of the defendant falls through. 8. Mr Dhakephalkar, learned senior counsel submits that the third defendant is also entitled to 1/10th share in the properties and business described in ExhibitD C, defendant No.3 being a memb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e profits and funds have been distributed on between the plaintiff and defendant No.1 and nobody else. Defendant No.2 started his own independent business in the year 1985. Defendant Nos.3 and 4 started business in the name and style of Bhagwandas Sons in 1985. Plaintiff purchased a flat at Versova Woodlands in the year 1985 out of his own funds. Defendant No.1 started his first construction venture M/s United Development Agency with outside partners in 1985. Plaintiff started doing business as a sole proprietor of M/s Ahuja Traders which carried on the business of trading in dry fruits and spices in 1986. Defendant No.1 entered into partnership with certain outsiders in the firm viz. CAMS constructions in the year 1988 and carried on the business of construction contractors. In 1989, first defendant entered into partnership firm with certain nonfamily members in the name and style of CAMs Developers and carried on the business of construction contractors. In 1989, the first defendant entered into partnership with eight other partners in the name and style of CAMS India Corporation which included the plaintiff and certain non family member. Mr Chinoy submits that as far as mortga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered/issued and did not invest additional amounts in purchasing the shares. Mr Chinoy submits that to finance the project defendant No.16 Company gave 49% equity to Citi Properties (a Division of Citi Bank) for Rs.198 Crs and took a loan of Rs.225 Crs. It is stated that Rs.195 Crs had been disbursed from ICICI Bank. Presently there are liabilities of Rs.635 Crs in respect of the said project. There are borrowings of Rs.270 Crs in other projects and losses of Rs.135 Crs in defendant No.17 Company. Mr Chinoy submits that for the first time by letter dated 28th January 2008, plaintiff through Advocate sought inspection of various documents and registers of defendant No.17 Company. Since loan taken by Keepsade Private Limited from Cosmos Bank was repaid, flat of the plaintiff on the 12th floor at Soona Villa was released in the month of November 2011. 12. Mr Chinoy, learned senior counsel submits that merely because two brothers were partners in various businesses would not mean that it would be a family business. No other members participated in the business. There was no family contribution in any of the businesses which are claimed as joint family business. Since 1970, parties wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreement of any shareholder including the plaintiff in the business arrived between in any of the companies, who were parties to the proceedings, plaintiff would have independent cause of action. Mr Chinoy submits that during the period 20032010, plaintiff got his personal properties given by him in security which are released. Mr Chinoy pointed out that it was not the case of the plaintiff in the pleadings that since 1985, plaintiff and defendant Nos.1 to 8 distributed any profit or had contributed any amount towards any liability of the business of the partnership firm in which they were independent partners and had contributed towards liability of that particular business and were given their respective share as a partner. Other eight family members have not claimed any share in any of the properties which are subject matter of the suit. It is submitted that onus is on the plaintiff to prove nucleous. If family leaves together and worships together, there is general presumption of joint family. It is submitted that independent businesses are never proved otherwise by cogent and clinching evidence. It is submitted that participation in business by labour service, funding and iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rth in the family activity and the assets secured in exercise of such profession. The family acquired the house in which the studio is at present situate besides agricultural lands of an extent of 6.80 acres in Serukudi village from and out of the business profits. It is claimed that large sums of money have also been deposited by the first defendant in his name in various banks. Soon after the death of the grandfather there were misunderstandings between the plaintiff and the first defendant, who was under the influence of his second wife and by the end of April, 1967 the bickering compelled the plaintiff to demand a division of the joint family properties and allotment of his onethird share to him. The plaintiff also refers to a partition in the family to which he was a party but claims that it is an unstamped and unregistered document and, therefore, would not bind him. As the first defendant refused to effect any proper division of the properties and give his onethird share, though such a demand was made through mediators, he had to file the present action claiming a onethird share in the plaint A to D schedule properties. A schedule properties deal with the materials in the ph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The house and the agricultural lands are not joint family properties and the plaintiff has no interest or right by birth in them. The allegation that the plaintiff assisted his grandfather as well as the first defendant in conducting the alleged photographic business started by Rajagopal Pillai in 1917 is denied. The plaintiff if at all was writing some accounts and beyond that no contribution was made by the plaintiff in acquiring the schedule mentioned properties. The bank deposit of Rs. 10,000 is denied. The first defendant also refers to some mediation at the instance of respectable persons and the fact that a draft partition deed was drawn up whereunder the first defendant was prepared to give the plaintiff an exgratia sum of Rs. 4,501 and five mas of land so that the plaintiff could live upon it and maintain himself. The first defendant also refers to a release deed which the plaintiff had to execute incorporating the terms agreed upon during the course of mediation. Though the plaintiff signed a copy of such deeds and affixed his signature thereto, he wriggled out of the situation and at the instance of his friends, has filed this suit on false allegations. The plaintiff's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and father admitted that he was receiving only a salary of Rs. 25 or Rs. 35 as an employee in the photographic business of his son. The conduct of Rajagopal Pillai throughout gives the lie direct to the plaintiff's case that Rajagopal Pillai was the author of Sri Krishna Studio, Thiruvarur and that his association with the said business of which the first defendant was the proprietor was in the status of a member of an undivided joint family. The plaintiff did not let in any evidence to show that the grandfather handed over at least a camera to the first defendant as an undischarged insolvent or after discharge for him to continue the socalled joint family business. The contention, however, is that the grandfather was also interested in his son's business and that he contributed sufficient labour for raising a presumption that there was a joint family activity. It is not every sporadic or unimpressive contribution by a member of the joint family, may be the father, that would make the resultant activity, a joint family activity. The contribution of labour, service or money by one member of the joint family to the other should be so conspicuous and impressive that on a prima facie, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired from the surplus income, are joint family properties. He did not receive any salary or any remuneration from the first defendant. He also assisted his father during his spare time by writing a few entries in the accounts. Even such association by the plaintiff would not make the commercial activity of his father a joint family business, A conscious, voluntary abandonment by the first defendant of his separate rights in the business should be established. He might have taken some photographs on some occasions. He might have proficiently as a photographer as is seen from Exhibit B70 which is the advertisement given in The Hindu to show that he is an experienced photographer. But all such sporadic acts and exhibitions of proficiency cannot make the business of the father a joint family business. The well established principles as is seen from the pronouncements of the Supreme Court and our High Court is to the effect that there is no presumption that a business conducted by a member of the joint family is a joint family business. On the other hand the presumption is to the contrary. The person alleging such a state of affairs should prove the same by acceptable and clinching evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rove by cogent and convincing evidence that the member or members acquired the property by investing joint family business and only in that event the onus would shift. It was not joint family property. Mr Chinoy submits that if it is joint family business, then all the members of the family are liable for its debts upon the terms and to the extent laid down by Hindu law. A member of the joint undivided family can make separate acquisition of property for his own benefit and unless it is shown that the business grew from joint family property or that the earnings were blended with joint family estate they remain free and separate. Paragraphs 42, 43, 49, 50, 83, 84 and 87 read thus : 42. The core question is whether Buggaiah and his sons own joint family properties in plaint A and C schedules and whether businesses in plaint B schedule are joint family businesses. It is well settled that possession of joint family property is not a necessary requisite for constitution of a Hindu joint family. A family which does not own any movable or immovable properties may nevertheless be a joint family, for, there is always a presumption in Hindu customary law that a Hindu family is a joint fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty and there was coparcenary property with which selfacquired property blended. That is to say, unless there is a coparcenary joint family property, inherited by a member of joint family, there cannot be any blending or showing of selfacquired property into the common hotch pot. There should be a common hotch pot which may come from joint family nucleus or ancestral property. 49. In Rukhmabai v. Laxminarayan (supra), the Supreme Court laid down thus: There is a presumption in Hindu Law that a family is joint. There can be a division in status among the members of a joint Hindu family by definement of shares which is technically called "division in status", or an actual division among them by allotment of specific property to each one of them which is described as "division by metes and bounds". A member need not receive any share in the joint estate but may renounce his interest therein, his renunciation merely extinguishes his interest in the estate but does not affect the status of the remaining members visavis the family property. A division in status can be effected by an unambiguous declaration to become divided from the others and that intention can be expressed by any pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law. Whether or not it can be said that if a joint family is possessed of some joint property, there is a presumption that any property in the hands of an individual member is not his separate individual property but joint property, no such presumption can be applied to a business. A member of a joint undivided family can make separate acquisition of property for his own benefit and, unless it can be shown that the business grew from joint family property or that the earnings were blended with joint family estate they remain free and separate.... The question whether a business carried on by a member of a joint Hindu family was begun or carried on with the assistance of joint family properly is a question of fact upon which the burden of proof lies upon the plaintiff who claims a share in the business. The burden of proving that the business was separate in its inception cannot be cast upon the defendant who asserts it. Jointness may be proved by evidence that the business wax carried on as a family business, by proof that the profits were treated as joint family property being brought to one account or divided among the members. 84. The Privy Council also observed that adverse i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... member of the joint family, may be the father, that would make the resultant activity, a joint family activity. The contribution of labour, service or money by one member of the joint family to the other should be so conspicuous and impressive that on a prima facie examination of such material, a reasonable and prudent person should gain the impression that the two members were so associated with the common object of exploiting a commercial activity to the advantage of the joint family as a whole and in general. 14. Relying upon this Judgment, learned senior counsel would submit that there is no evidence on record or even pleaded by the plaintiff that either plaintiff or other family members shared any profits and liabilities. Mere association of two family members does not mean association of family business. Mr Chinoy also placed reliance on the Judgment of Privy Council in case of Bhuru Mal v. Jagannath and Ors., reported in A.I.R. 1942 Privy Council 13. Relevant paragraph of the Judgment at page Nos.16 and 17 is extracted as under: The first question to be considered is whether the Chief Court were right in reversing the trial Judge's finding that it was not proved that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge and that they were making their living by carrying on a grocer's shop. It is not irrelevant to reflect how many times businesses of substantial size have arisen not merely from small beginnings bu by the activity of an energetic man wholly without capital, content to begin selling goods for others and in due course obtaining credit for small transactions on his own account. Their Lordships are unable to see that the Chief Court have made good their criticism of the learned trial Judge that he has misdirected himself in law as regards nuleus of joint property. On the contrary, they think that he correctly treated the question whether Gobardhan's business was begun or carried on with the assistance of joint family property as a question of fact upon which the burden of proof lay upon the plaintiffs who claim a share int eh businesses. They think the Chief Court misapprehended and misapplied the case in 10 M.L.A. 490 in coming to the conclusion that they were not debarred from casting the burden of proving that the business was separate in its inception upon the defendant who asserts it. In that case each of five brothers was actively engaged int eh management of a bank of the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge. They think that the Chief Court show no sufficient reason for disagreeing with his finding that there was a partition of the Rajwara business in 1898; and that this fact affords some evidence that the business at Macandrewganj was not joint property, since Gobardhan got no share in the Rajwara business and the Macandrewganj business was not partitioned ont hat occasion. But their Lordships look in vain for evidence which establishes that the latter business was ever family property. There is no direct proof that it was so conducted by Govardhan in his lifetime or that its profits and those of the Rajwara Business were ever disposed of or accounted for as joint family property. 15. Mr Chinoy, learned senior counsel placed reliance on the Judgment of Supreme Court in case of G. Narayana Raju V. G. Chamaraju and ors. Reported in AIR 1968 Supreme Court 1276 and in particular paragraphs 1 to 3 in support of his submission that there is no presumption under Hindu law that a business standing in the name of any member of the joint family is a joint family business even if that member is the manager of the joint family. Paragraphs 1 to 3 and 5 of the said Judgment read thus : 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to equal shares as coowners of the joint family business. The suit was mainly contested by the second defendant who asserted that the properties mentioned in all the Schedules of plaint were selfacquisitions of Muniswami Raju and constituted his separate properties. It was alleged that Muniswami Raju was the only earning member of the family at the time of the acquisition of items 1 and 2 of Schedule 'A' properties and the plaintiff and the first defendant were employed in petty jobs in Wesley Press. Muniswami Raju later on employed the plaintiff in his shop as a salaried servant and the latter had no proprietary right in the business of Ambika Stores. After consideration of the oral and documentary evidence the District Judge held that the plaintiff, first defendant and Muniswami Raju were not divided and that the only property which was divisible was item No. 1 of Schedule 'A' and there was not sufficient ancestral nucleus for acquisition of the other properties and that all properties except item No. 1 of Schedule 'A' were the self acquisitions of Muniswami Raju, that Muniswami Raju never blended his properties with that of the joint family, that the plaintiff was only an employ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhuru Mal v. Jagannath MANU/PR/0010/1942 and in Pearey Lal v. Nanak Chand MANU/PR/0008/1948 and of this Court in Chattanatha Karayalar v. Ramachandra Iyer) MANU/SC/0050/1955 : [1955]2SCR477 . In the present case there is a concurrent finding of both the lower courts that the business of Ambika Stores was a separate business of Muniswami Raju and it was neither a joint family business nor treated as joint family business. The concurrent finding of the lower courts on this issue is upon a finding of fact and following the usual practice of this Court, it is not now open to further scrutiny by this Court under Art. 133 of the Constitution. 5. On the other hand, it was contended on behalf of the respondents that the finding of the High Court is supported by proper evidence. The business of Ambika Stores was started by Muniswamiraju as the proprietor thereof at a time when Muniswamiraju himself was comparatively welloff as a result of his partnership with Krishnaswamy Chetty Co. In the year 1925 the partnership with Krishnaswamy Chetty Co. was dissolved by a document Ex. D. The entire business with all the assets and liabilities was taken over by Muniswami Raju while the widow and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same stands in the name of individual member, there would be a presumption that the same belongs to joint family, provided it is proved that the joint family had sufficient nucleus at the time of its acquisition, but no such presumption can be applied to business. Reference in this connection may be made to a decision of this Court in the case of G. Narayana Raju v. G. Chamaraju and Ors. MANU/SC/0113/1968 : [1968]3SCR464 wherein in a suit for partition defence was taken that business of Ambika Stores was separate business of defendant as the business did not grow out of joint family funds or at least by efforts of members of joint family which was accepted by the trial court as well as the High Court. When the matter was brought to this Court in appeal, upholding the judgment of the High Court, the Court observed thus at page 466:" It is well established that there is no presumption under Hindu Law that a business standing in the name of any member of the joint family is a joint family business even if that member is the manager of the joint family. Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that plaintiff has not filed this suit on behalf of all the family members and is not speaking on their behalf in the suit. Mr Dwarkadas placed strong reliance on the letter addressed by the plaintiff on 1st June 2010 to the first defendant and his wife (ExhibitI5). Mr Dwarkadas submits that in the entire letter, plaintiff has described defendant No.1 as equal partner in the kirana business, imputed complete knowledge of books in other transactions and has complete access to the record of the said firm. It is also claimed that in construction and marble business, plaintiff and his wife were equal partners. The plaintiff by the said letter has demanded equal share to that of the first defendant. Mr Dwarkadas submits that on bare reading of the said letter, it is clear that the letter addressed by the plaintiff was not as a coparcener or on behalf of the family but as an individual claiming equal share in the business being conducted by the first defendant. Mr Dwarkadas also invited my attention to para 36 of the rejoinder filed by the plaintiff in support of his submission that even in his rejoinder, the plaintiff has individually claimed shares in defendant No.17 company. Pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said flat has been paid by the defendant No. 1. The allegations about the joint ownership are wholly false within the knowledge of the plaintiffs. Even if the flat is purchased out of the funds of the partnership it would not mean that the flat is jointly owned. In fact, the whole consideration has been paid out of the personal accounts of defendant No. 1. The defendant No. 1 and the deceased were members of the partnership firm along with other partners but the impressions has been given that the partnership firm consisted of only two partners being defendant No. 1 and the deceased. The vague claims made by the plaintiffs cannot enable the plaintiffs to merit any relief. According to the Counsel all these vague claims can be called out from a reading of the rejoinder filed by plaintiff No. 1. In paragraph 4 of the rejoinder it is stated that the funds which are employed for the purpose of the suit flat were joint partnership funds in which the deceased and the first defendants were equal partners. Payments were made directly out of the partnership account or out of the partnership fund transferred by the first defendant into his personal account. The suit premises were in fact pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olumn of ownership it is clearly stated that defendant No. 1 is the sole owner of residential premises on 3rd floor flat Nos. 31 and 32 of the building called Belle View Coop. Housing Society. However, with regard to this valuation report, the plaintiffs have stated that the same has been obtained by the first defendant for purposes other than the wealth tax. This is evidential from the fact that even after the said valuation report was prepared the wealth tax returns of the two brothers continued to show the same basis of valuation. Counsel submits that for whatever reason the valuation report was obtained the evidentiary value cannot be brushed aside. Counsel submits that there is weightily evidence in favour of the defendant No. 1. The agreement with Mrs. Singh is executed solely by defendant No. 1. Society record show that flat No. 32 is the ownership of deceased and flat No. 31 is the ownership of defendant No. 1. All the maintenance bills had been paid by the defendant No. 1. Share certificates show that there are two owners of flat No. 31 and Flat No. 32. Agreement with Chase Bright was entered into by defendant No. 1. The entire amount of compensation paid by Chase Bright h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Simpla. There is no presumption that a new business carried on by a member of a joint family in partnership with a stranger is joint family business. It may be or it may not be. It is a matter for evidence. In the present instance it is clear that the timber business was financed from the family funds. 23. Mr Dwarkadas, learned senior counsel placed reliance on Judgment of Supreme Court in case of Nanchand Gangaram Shetji Vs. Mahalingappa Sadalge and Ors. reported in (1976) 2 Supreme Court Cass 429 and in particular paragraphs 20, 31, 37 to 41 which read thus : 31. Thus the evidence furnished by the incometax returns was conflicting. But the aforesaid endorsement on Ex. 309 was a clincher. It was a statement made ante litem motam. It confirmed the testimony of Def. 2 that the partition had taken place in 19(sic) and this tilted the balance against the contention of the plaintiff. In such evidentiary value, it outweighs the income tax returns, Exs. 310, 311 and 314, in which the status of the assessee is shown as H.U.F. The High Court was therefore, not wrong in holding that all these documents taken together do not show "that the family of the defendants had continued to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay down the law correctly. Counsel main tains that the contrary view taken by the other High Courts in these cases is sound. Pramod Kumar v. Damodar Sahu MANU/OR/0055/1953 : AIR1953Ori179 ; Rangaswami v. Sivprakasam : MANU/TN/0204/1941 : AIR 1941 Mad 925 ; Ramchandrappa v. Narayanappa MANU/TN/0398/1938 : AIR1940Mad339 . 41. Kashiram's case MANU/MH/0138/1944 :AIR 1945 Bom 511 (supra) decided by an eminent single Judge certainly supports the proposition propounded by Mr. Datar. Applying the principle of Section 45 of the Partnership Act, 1932, the learned Judge held that unless intimation of the severance of joint status between the members of the joint family is given to the outside creditors who had dealings with the joint family through its karta, either by public notice or individual notice in that behalf, the karta would be deemed to continue to represent the family and to have power to incur debts for family necessity and to make acknowledgements or partpayments in respect of the same so as to extend the period of limitation. With great respect to the learned Judge, we do not think that this is a correct enunciation of the law on the point. Firstly, the legislature has, in i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr Tulzapurkar placed reliance on the Judgment in case of Mrs Bacha F. Guzdar, Bombay Vs Commissioner of Income Tax, Bombay, XXV Company Cases page 1 and in particular page Nos.5 and 6 in support of his plea that a shareholder does not buy any interest in the property of the company which is a juristic person entirely distinct from the shareholder, though he has a right to participate in the properties if and when the company decide to divide them. It is company's property and not shareholder's. Relevant portion of the said Judgment at page 6 and 7 is extracted as under : There is nothing in the Indian law to warrant the assumption that a shareholder who buys shares buys any interest in the property of the company which is a juristic person entirely distinct from the shareholders. The true position of a shareholder is that on buying shares an investor becomes entitled to participate in the profits of the company in which he holds the shares if and when the company declares, subject to the articles of association, that the profits or any portion thereof should be distributed by way of dividends among the shareholders. HE has undoubtedly a further right to participate in the asset ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the liabilities would be shared when partition takes place by metes and bound. It is submitted that if plaintiff wanted to withdraw from the family business in 2003, plaintiff would not have given security of his two flats in 2006 to secure the loans obtained by the firms and companies. As far as inspection of the income tax returns demanded by defendant no.15 from the plaintiff is concerned, Mr.Shah submits that in those income tax returns filed by the plaintiff, since plaintiff has not disclosed any properties which are subject matter of this proceedings as joint family property and therefore inspection and/or furnishing copies of those income tax returns filed by the plaintiff or his wife and sons would not be necessary. It is submitted that though since 1982, there were separate residence of all the family members, that would not indicate that there is no joint family. Situation prevailing in 1969 has to be considered and not in 1982. Nucleus has to be seen of the year 1969 and not 1982. Mr.Shah submits that the plaintiff has prima facie demonstrated nucleus and thus onus is shifted to defendants to show that properties were self acquired or individual properties which onu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by defendant no.1 was also by using funds from the profit earned by him from other business of the joint family. Mr.Shah submits that court has to only draw presumption that the father started business in 1969 in which all the sons were made partners which would indicate that the business was joint family business. Mr.Shah distinguishes the judgment of Madras High Court relied upon by Mr.Chinoy on the ground that the facts of the said case before Madras High Court in the said matter were different. Mr.Shah laid emphasis on the judgment reported in 2003 (5) SCC 589 in support of his submission that the separate residence would not drew conclusion that there was no family business. In so far as business carried out by the private limited companies which are parties to this proceedings are concerned, learned senior counsel submits that the shares in those business and properties would be ascertained at the time of participation and this court shall lift the corporate veil of those companies which are started by using the funds and income of the joint family business. In so far as judgment reported in AIR 1943 Privy Counsel 40 relied upon by Mr.Dwarkadas is concerned, Mr.Shah submits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could have been acquired, burden shifts to the member of family making a claim that it was his personal property and was acquired without any assistance with joint family property. If it is proved or is admitted that family possesses sufficient nucleus with the aid of which the member might have made that acquisition, it arises presumption that it is joint family property. Such presumption is however presumption of fact and rebuttable. Whether a person is governed by school of Hindu law under Dayabhaga or Mitakshra, a joint Hindu family, normally joint in food, worship and estate and property of such joint family may consist of ancestral, joint acquisition and self acquired but thrown into a common stock. (b) If one or more more of the family start a business or acquire property without the aid of joint family property, such business or acquisition would be his or their acquisition. It can be however thrown into a common stock or blend with the joint family property in which case the said property becomes the estate of the joint family. If if it not done, the said property would be his or their self acquisition and succession of such property will not be governed by the law of jo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nayalal Rameshkumar in the year 1969 was started by the father of the plaintiff and defendant nos. 1 to 8 out of his own funds and remaining businesses and properties which are subject matter of this suit have been started and/or acquired by using the fund generated out of said alleged family business M/s.Kanayalal Rameshkumar. 29. It is case of the plaintiff that father of the plaintiff and defendant nos. 1 to 8 was carrying on kirana business during the period between 1948 to 1969 in the name and style of Moolchand Co. in partnership. In the year 1969 M/s.Moolchand Co. stopped its business as its partners were likely to face insolvency. It is the case of the plaintiff that on 5th December, 1969, father of the plaintiff and defendant nos. 1 to 8 started the firm M/s.Kanayalal Rameshkumar with his eldest son i.e. defendant no.1 and few other partners. Defendant no.1 had just attained the age of majority when the said partnership firm was started by the father. According to the plaintiff the said M/s. Kanayalal Rameshkumar was reconstituted on 20th February, 1970 w.e.f. 5th December, 1969 when the plaintiff and defendant nos. 2 to 4 were minor and were admitted to the benefits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court. The said deceased deposed that he had been adjudicated as an insolvent on 8th October, 1973 in his own petition. Total liabilities were about Rs.25,80,000/due to about 17 creditors. It is stated that his wife was not employed anywhere. His sons Jagdish and Narain were brokers in kirana and remaining three children were prosecuting their studies. He also deposed that he did not own any ancestral or self acquired immoveable property at his native place or anywhere else. He made statement that the business of firm of M/s. Moolchand Co. was closed down in or about 1969 as the said firm had suffered losses in business. He also admitted that since then, he had neither been carrying on any business nor he had been employed anywhere, nor carried on any other business either as a proprietor or as a partner of any firm. The said deceased also admitted that except his income from the said firm M/s. Moolchand Co., he had no other income. Neither the said firm nor he had any post office savings bank account. He had deposed that in his personal capacity, he did not have to recover any money from anybody. He did not own any motor car or cycle or scooter nor any gold, silver or jeweller ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r from the business conducted prior to 1969 or that any income arising thereof was used for commencement of the firm M/s. Kanayalal Rameshkumar and out of income generated from the said business of M/s.Kanayalal Rameshkumar, other businesses were started by the joint family. 33. In my prima facie view since it is a common ground that the said firm Moolchand Co, had large number of creditors and such partners were facing insolvency in 1969, in such bankruptcy situation the said deceased could not have started partnership firm in the name of M/s.Kanayalal Rameshkumar out of his own funds by induction of defendant no.1 and outsiders. The submission of Mr.Shah, learned senior counsel appearing on behalf of the plaintiff in my view is contrary to the statements made by the deceased father on oath in the insolvency proceedings recorded by this court. This court has accepted the evidence laid by the said deceased and other partners of the said firm and has declared each of such parties to those proceedings including the said deceased as insolvents and has ascertained the properties, assets and liabilities and has adjudicated upon the assets of the said firm M/s.Moolchand Co. In my p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... joint family business and acquired joint family properties ? 36. It is not in dispute that the flat in Jolly Maker Apartment, Cuffe Parade, Mumbai was acquired in the name of defendant nos.1 to 4 in the year 1976. Prima facie plaintiff has not been able to demonstrate that the said flat which was purchased in the year 1976 in the name of defendant nos.1 to 4 was acquired out of funds and/or profits of M/s.Kanayalal Rameshkumar. The said flat was admittedly sold in the year 1982 and four separate flats were acquired at Andheri in the name of defendant nos. 1 to 4. Till 1982 there was no other business conducted by the parties. Defendant no.1 started sole proprietary business in the name of M/s.Gautam Overseas in the year 1982. Defendant nos. 1 to 4 and plaintiff started business in the name of M/s.Rameshkumar Gopaldas Co. in the year 1984. Defendant nos. 2 to 4 ceased to be the partners of the said firm M/s.Rameshkumar Gopaldas Co. in the year 1985. Plaintiff and defendant no.1 continued to be the partners of the said firm M/s.Rameshkumar Gopaldas Co. Mr.Shah, learned senior counsel appearing on behalf of plaintiff invited my attention to the capital account, other account s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g upon the plaintiff to disclose his income tax returns and accounts to show as to whether any of the properties standing in the name of various partnership firms and/or companies were claimed as Hindu undivided properties or as to whether any profit and/or loss of such firm and/or companies were claimed to have been received and disclosed by the plaintiff in his personal income tax return and/or books of accounts. It is not in dispute that the plaintiff did not offer any such inspection. It is not in dispute, plaintiff also did not produce any such documents, on record. 39. Mr.Shah, learned senior counsel in fairness conceded that in none of the personal income tax returns and/or books of accounts, plaintiff has claimed any of the properties standing in the name of various partnership firms and/or private limited company described in Exs.B, B1 and C of the plaint as joint Hindu family properties and/or claimed to have been received any profit and/or loss from the said businesses nor has shown any liabilities of any such company and/or firm as that of the plaintiff in his personal income tax returns and books of accounts. In my view, Mr.Dwarkadas, learned senior counsel is right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sinesses or joint properties or otherwise. Though at the conclusion of arguments, Mr.Shah, learned counsel appearing for the plaintiff submits that plaintiff has no objection if all the businesses and/or properties standing in the name of plaintiff, his wife and his sons are treated as properties of joint family properties and/or joint family businesses. In my prima facie view, all the contesting defendants are rights in their objection to such submission being made across the bar at this stage. It is submitted that all the businesses which are described in Exh.B, B1 and C to the plaint are independent and self acquired businesses of the respective parties in whose name it stands and are not Hindu undivided family businesses and/or properties. Objection is also raised on the ground that there is no such pleading made by the plaintiff to the effect that all such properties standing in the name of the plaintiff, his wife and son were also acquired out of the joint family fund and/or joint family properties and as joint family properties and/or businesses. 41. Mr.Dwarkadas, learned senior counsel invited my attention to the letter dated 1st July, 2010 addressed by the plaintiff to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf acquired properties and not joint family properties and/or businesses. Defendant no.1 also through their learned senior counsel Mr.Chinoy made a statement that in respect of the properties of business standing in the name of the plaintiff, his wife and son, no right, title or interest of whatsoever nature is being claimed by the 1st defendant as the same are self acquired by the plaintiff, his wife and son and none of the businesses run by each of them are joint family businesses and/or properties. 43. It has been held by the Supreme Court in case of Surjit Lal Chhabda (supra) that the property of joint family may consist of ancestral property, joint acquisition and/or self acquired thrown into a common stock. Question that arises for consideration of this court is whether prima facie plaintiff has made out a case whether any of the properties described in Exs. B, B1 and C of the plaint are jointly acquired by the members of the family or any of the self acquired properties by the plaintiff and/or by defendants are thrown into a common stock. In my prima facie view, plaintiff has been unable to show even prima facie that any of the properties described in Exs.B, B1 and C and/o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and G.Shetji (supra) and it has been held that legislature in its wisdom excluded joint Hindu trading families from the operation of the Partnership Act. 45. Supreme Court has held in case of Narayana Raju (supra) that unless it could be shown that the business in the hands of other partners grew up with the assistance of joint family properties or joint family funds or that the earnings of the business were blended with the joint family, the business remains free and separate. Supreme Court has held that as far as immoveable properties are concerned, in case the same stands in the name of the individual member, there would be a presumption that the same belongs to the joint family provided it is proved that the joint family had sufficient nucleus at the time of its acquisition but no presumption can be applied to the business. Father of plaintiff and defendant nos. 1 to 4 as demonstrated in the insolvency proceedings had no income that could be used for starting business in 1969. I am bound by the principles of law laid down by the Supreme Court in the aforesaid judgment that there can be no presumption drawn in case of business by the court that the business standing in the nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Courts in the said judgment and the principles laid down therein can be applied to the facts of this case. 47. Andhra Pradesh High Court in case of V.Srisailan (supra) relied upon by Mr.Chinoy, learned senior counsel appearing for the 1st defendant has held that a member who has self acquired property allowed other members of the family to use it conjointly himself, an inference is not permissible from the fact that income of separate property was used to support his close blood relations and members of a joint family. It has been held that even if father gave money to his son to start a business, the same does not lead to an inference that the business had been started by the father. It is held that when the family has a joint family business, the partner in the said business are not allotted share of their own and there is no apportionment of shares of profit whereas in the partnership firm constituted with the members of the joint family, the share in the profit is apportioned. A member of the joint Hindu undivided family can make apportionment of property for his own benefit. In my view, merely because plaintiff or his wife or son are admitted as partners in some of the par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... family or that the same would be a joint family business and/or property. 50. In so far as submission of Mr Shah learned senior counsel that defendant Nos 15 to 19, private limited companies are in the nature of glorified partnership and this Court shall lift the corporate veil of such companies and declare the properties and business of the said companies as joint family properties and businesses are concerned, no corporate veil can be lifted by Court and declare the properties of the companies as joint family properties. Even otherwise, plaintiff has not made out any prima facie case to prove that the said private limited companies are in the nature of glorified partnership and should be declared as joint family properties and businesses. 51. In so far as Judgment of Supreme Court in case of Madanlal (supra) relied upon by Mr Dhakephalkar, learned senior counsel appearing for defendant No.3 in support of his submission that merely because if a family carries on number of businesses, some of the businesses are being carried on in different names and styles and often constitutes difference companies or partnerships for better handling of business, there is no proof of separatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties described in ExhibitD except property at Sr. No.27 described in ExhibitB1 which is in possession of defendant No.2. 54. As far as order of ITAT relied upon by Mr.Shah, learned senior counsel is concerned, in my view the said order would be of no assistance to the plaintiff. One of the company had borrowed money at higher rate of interest and had given loan to sister concern at lower rate of interest. Issue in those proceedings was whether interest claimed as deduction could be allowed by assessing officer. 55. As far as reliance on paragraph (5) of the affidavit in reply of the first defendant by the plaintiff is concerned, on perusal of the paragraph (5) alongwith other paragraphs of the affidavit in reply of the 1st defendant, it is clear that there is no admission on the part of the 1st defendant that the businesses started by the 1st defendant were out of the profits generated from the alleged Hindu undivided family business started in the name of M/s.Kanayalal Rameshkumar. In my view, paragraph (5) cannot be read in isolation. 56. As far as copy of the profile of the 1st defendant annexed to the proceedings by the plaintiff and reliance placed thereof is concerned, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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