TMI Blog1973 (12) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... his own personal name. He further put the havala entry for the amount of Rs. 29,020 which was due from him to a partnership concern named " Dhrangadhra Ginning Pressing Factory " in which he himself was a partner. In the account books of M/s. Bhailal Harjivan which was at that time big proprietary concern, the deceased maintained his own personal account. In this personal account he posted the entries evidencing the above disbursement totalling to Rs. 1,28,699. At annexure " C " we find the above referred entries evidencing this disbursement. By reference to these entries it becomes apparent that they were made on Aso Vad 30th which was the last day of Samvat year 2009. In the beginning of the next Samvat year 2010 the business in the name of M/s. Bhailal Harjivan ceased to be a proprietary business because the same was converted by the deceased into a partnership with two of his major sons. It is an admitted position that, thereafter, in Samvat year 2018, one of the remaining sons became major and, therefore, he was also taken as a partner in this newly formed partnership firm. Ultimately, in Samvat year 2022 the deceased, Bhailal, retired from this partnership and about thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y is quite evident from the facts of the case. It is not in dispute that the provisions of section 10 of the Act would apply to the facts of this case only if distribution of the disputed amount by the deceased amongst his five sons amounts to gift. The contention of the accountable person is that this distribution does not amount to a gift because, when a father distributes his self-acquired property amongst his sons what he actually does is to throw his property into the family hotchpot and then to partition it notionally amongst his sons. Shri Kaji, on behalf of the accountable person, contended that if the account entry which is posted by the deceased in his personal account furnishes satisfactory evidence about the partition, then the antecedent step such as blending his self-acquired property with the family property by the deceased should be presumed to have come into existence. In order to show that such a partition had, in fact, taken place, Shri Kaji has placed reliance upon five circumstances, namely, (i) equal amount was disbursed by the deceased to each of his five sons ; (ii) this amount was distributed in a single transaction and on the same day ; (iii) that accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... throw his self-acquired property into the common stock of the family with the intention of abandoning all his separate claims upon it. But whenever such a blending is alleged a clear intention of such member to waive his personal claims and exclusive rights over such property must be established. The intention to blend his self-acquired property with the family property cannot, therefore, be presumed from the mere fact that the property was distributed amongst the other members of the family. Therefore, the first question is whether there is any evidence in the record of the case to show that the deceased in this case had entertained any such intention. The only evidence on this point is the account entries from the personal account of the deceased for Samvat year 2009, in the account books of the business running in the name of M/s. Bhailal Harjivan. Reference to these entries does not show anything which would give support to the contention of the accountable person that the deceased wanted to throw his self-acquired property into the common stock of the family. It is of course true that out of the total amount of Rs. 99,679 an amount of Rs. 90,005 has been distributed by the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount of Rs. 3,673 is concerned, the same was credited to the personal account of Jayagauri and so far as the amount of Rs. 6,000 is concerned, it was credited to the personal account of the deceased himself. In effect, therefore, both these amounts were intended to be treated as personal credit of Jayagauri and the deceased. The deceased was required to adopt this course of action because, from the next year, the business was to be converted into a partnership business and the intention of the deceased was to see that the partnership business which was to come into existence from the next year should be saddled with the liabilities of these two amounts. Under these circumstances, even the setting apart of these two amounts is not found inconsistent with the theory of gift. From the above analysis of the evidence which is found on the record, it becomes clear that the account entries on which reliance is placed by Shri Kaji are, in no manner, inconsistent with the theory of gift. It is for the accountable person to show that at a particular time the deceased entertained an intention to blend his self-acquired property with the common stock of the family and, therefore, so long a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int family property. The learned advocate, who appears on behalf of the plaintiffs, as a matter of fact conceded that, if the father had executed a document saying that he proposed to make a division of his property between his sons and with that object in view was throwing the self-acquired property into the hotchpot, he could not possibly have contended that, as a matter of fact, any further gift deed is necessary ; but he says that in this case there has never been raised any contention that the father threw his self-acquired property into the hotchpot, and consequently such a contention should not be allowed to be taken up by the mortgagee. Now, we can see that in this case the mortgagee at no time raised a contention that the father threw his self-acquired property into the hotchpot ; but we are not considering the question as to whether in the particular circumstances of this case the father can be regarded to have thrown the property into the hotchpot ; the question which we are considering is a general one, namely, whether in every case in which a father makes a division of his self-acquired property between his sons, whether at the same time he makes a division of joint fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essentially one which should be answered by reference to the intention of the grantor and without any finding of such intention from the facts of the case, there would not be any scope for raising any presumption as to its existence. In other words, it is the intention which would make the difference and not the transaction itself. To put it differently the proof of transaction would, by itself not amount to the proof of intention. In our view, the presumption made by the Bombay decision on which reliance is placed by the Tribunal, is based merely on the fact that there was a transaction which purported to be a transaction of partition. The Supreme Court has ruled out any such presumption in Arunachala's case and, therefore, the ratio of the decision given in the Bombay case, would no more supply to us a correct position in law. We are, therefore, of the opinion that the accountable person cannot rely upon this Bombay decision to induce us to raise a presumption about the intention of the deceased simply because the deceased distributed the amount of Rs. 90,005 equally amongst his five sons. We find that the High Court of Mysore has taken a similar view in S. M. Ananda Rao v. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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