TMI Blog1947 (7) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... and 2. In the view their Lordships take of the case a further question as to whether respondent No. 3 is entitled to a share in the joint family property does not call for decision. 4. It is common ground that down to the year 1917 the appellant, his father and two brothers were members of a joint Hindu family, and that a partition took place between them on May 14, 1917, upon terms contained in a partition deed which is exhibit A. Further reference to this deed will be made hereafter. 5. The first wife of the appellant died in October, 1983, having had two sons, respondents Nos. 1 and 2, and three daughters by the appellant, and on November 9, 1935, the appellant married a second wife. The second marriage of the appellant was resented by the members of the first wife's family and by some of the members of his own family, and this suit was filed a month after the marriage. 6. By the plaint it was alleged that after the death of the first wife the appellant began to lead a reckless and profligate life, that he ran into heavy debts through his immoral pursuits and had been squandering the family funds, that he contracted a marriage secretly with a girl which was conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the evidence, oral and documentary. He held that none of the allegations of misconduct made against the appellant had been proved and that the suit for partition was not filed in the interest of the minors. He expressed the view that nothing more detrimental to their interests could have been conceived. On those grounds the suit was dismissed, but at the request of the parties the learned Judge considered the evidence, and recorded a finding, as to the extent of the property held jointly by the appellant and his sons. He reached the conclusion that all the plaintiffs could ask for in a partition suit against their father would be a division of the property allotted to him under exhibit A which was substantially intact and unencumbered. 9. In appeal the High Court at Madras while offering no criticism of the views which the learned trial Judge had taken of the evidence, disagreed with both his conclusions. They considered that the filing of the suit was in the interest of the minor plaintiffs on two grounds ; first, because since the filing of the suit the relations between the first wife's family and the appellant had become further estranged and even the relations between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e being that that business was his own. The High Court rejected this contention, and held that before, and at the date of, the partition it was the appellant who was managing the affairs of the joint family and that the presumption was that he was doing business on behalf of the joint family, and the Court continued: Or else it is impossible to understand why the whole of the assets of that business should be treated as joint family assets. There is no getting out of this fact that on the date of the partition the business in aluminium and paddy was treated as a joint family business. 11. This view appears to their Lordships to be mistaken. There is no mention in exhibit A of the business in aluminium and paddy; or of the assets belonging to such business; or of the liabilities incurred in connection therewith. Under exhibit A the joint family property was divided into six parts shown in schedules A to F inclusive. The property in sch. A was allotted to the father, that in sch. B to the appellant, that in sch. C to the appellant's elder brother, that in sch. D to his younger brother, that in sch. E was to be held jointly between the two brothers of the appellant, and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld for ₹ 1,100, which sum he had debited against household expenditure. From the figures which the appellant gave in evidence, which again were not disputed, it is clear that his family expenses far exceeded the income derived from the joint property which he acquired under exhibit A. Between 1918 and 1934 the appellant acquired various properties at a total expenditure of some ₹ 55,000 and it was conceded in the judgment of the High Court that the defendant was a man of enterprise and that it was largely due to his energy and labour that a large fortune had been acquired. The Hindu law upon this aspect of the case is well settled. Proof of the.existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property is joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquire ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
