KONDIRAM BIKHU KIRDATversusKRISHNA BIKHU KIRDAT

                       KONDIRAM BIKHU KIRDAT                                     A
                                       v.
                         KRISHNA BIKHU KIRDAt

                              OCTQBER 4, 1994

                 [K.RAMASWAMY, S.C. AGRAWAL AND                                  B
                       N. VENKATACHALA, JJ.]

       Hindu law-l'aTtition of joint family property-Brothers remaining in
joint possession till severance of status-Held, they had joint family nucleus
and properties must be deemed to be joint family properties.                     c
       The Plaintiff filed a suit claiming equal share of joint family proper-
ties. The trial court decreed the suit only in respect of two items and held
that the other Items had already been partitioned between the plaintiff and
his brother the defendant. The appellate court found that the plaintiff was
entitled for partition or all the suit properties subject to contributing half   D
the consideration paid by the defendant for purchase of three Items. The
defendant contended before the Supreme Court that except three items
already partitioned the remaining were self-acquired properties.

         Partly allowing the appeal, this Court                                  E
       HELD : The brothers bad joint family nucleus and continued to
acquire the respective properties. So the properties must be deemed to be
joint family properties. Except three items or self-acquired properties of
the defendant, for which there was no question or the plaintifl's contribu-
tion, 11ll other properties are liable to be partitioned in equal moiety.        F
                                                                   [217-A, CJ
         CIVIL APPELLATE JURISDICTION : Civil Appeal No. l381l of
1990.

     From the Judgment aod Order dated 16.1.90 of the Bombay High                G
Court in S.A. No. 33 of 1990.

         G. Vishwaoath Iyer aod A.S. Bhasme for the Appellaot.

         Ms, Suruchi Agarwal for Ms. Manik Karaojawala for the Respon-
dents.                                                                           H
                                      213
    214                   SUPREME COURT REPORTS· [1994] SUPP. 4 S.C.R.

A         The following Order of the Court was delivered :

           Unsuccessful defendant No.1, Kondiba, is the appellant before us.
    The original plaintiff, Krishna, the appellant's real brother laid Suit No. 135
    of 1976 in the trial court, namely, Civil Judge, Senior Division, Satara for
    partition of the properties by metes and bounds in equal share and for
B
    separate possession thereof. The trial court decreed the suit only in respect
    of two items, the land bearing Survey Nos. 131/3 and 218/7-B while declar-
    ing that items 1, 3 and 6 have already been partitioned between the
    defendant and Krishna, the original plaintiff. On appeal, at the instance of
    Krishna the appellate court, on evaluation of evidence recorded the finding
c   in paragraphs 12 and 13 of the judgment (pages 82-85 of the paper book)
    thus :

             "12. Thus, the evidence on record and the strong presumption in
             favour of joint family leads me to hold that the joint family
D            comprised of deceased plaintiff Krishna and defendant Kandi
             existed till upto 10.11.1964 and all the suit houses, suit open plot
             purchased during the period from 29.11.1945 till upto 22.4.1960
             were joint family properties having 1/2 share to deceased plaintiff
             Krishna and the defendant. The perusal of 7 x 12 extract of the
             suit lands at serial Nos. 1 to 8 clearly discloses that many of them
E            have facility of canal water and well water and capable to provide
             cash crops like rice, chilly kardai, Dhana and ground-nuts.
             Moreover, even the tenanted lands at serial Nos. 9 to 12 described
             in para lB were also in the possession and cultivation of plaintiff
             and defendant till upto 1963. The said yield surely enabled theft
F            after severance of the joint family to purchase the erstwhile"family
             tenanted lands on 27.1.1967 under the sale deed Exh. 131. So far
             the suit lands at serial Nos. 7, 8 are concerned. The deceased
             plaintiffs after severance of joint family effected on 10.11.1964 has
             filed the instant suit on 26.4.1976 namely within 12 years for his
             1/2 share for all those suit properties in general and more and
G            more particularly the suit lands bearing revision survey No. 221/4B
             and 152/5 which have been purchased for Rs. 2,500 by the defen-
             dant as a tenant in common brother Krishna on 27.1.1967. In such
             state of affairs, the plaintiffs are surely entitled to 1/2 share even
             out of the lands described at serial Nos. 5, 7, 8 in para lB of the
H             plaint of course subject to payment of Rs. 1,250 as contribution
        K.B. KIRDATv. KRISHNAB. KIRDAT                         215

towards their price paid by the defendant.                           A

13. The suit houses and plot are part and parcel of erstwhile big
building (wada) belonged to Patluba Kirdat and the map in respect
of said Wada available from the Reg. Civil Suit No. 930 of 1940
instituted by defendants instant paternal brother or Laxman K.irdat B
against the defendant's, his father Bhiku and two uncles in at Exh.
66. It clearly disclosed that the deceased Bhiku owned C.T.S. Nos.
144 and 147 shown in that map. The C.T.S. No. 144 is bounded by
C.T.S. No. 141 and 142 to West and by C.T.S. No. 143 to South
while the C.T.S. No. 147 is bounded by C.T.S. No. 146 to North.
The said Laxman K.irdat under the decree obtained the passage C
to his C.T.S. No. 142 through C.T.S. No. 144 and to his C.T.S. No.
146 through C.T.S. No. 147 and the said passage caused loss of 2
khans one khan from each C.T.S. No. 144 and 147. There is also
no quarrel that despite title to C.T.S. No. 147, the deceased
plaintiff neither sold his share therein under the sale-deed Exh. 97 D
nor even included it in the suit for his share therein. But the sale
deeds on record clearly discloses that C.T.S. No. 141, 142 and 143
are purchased during the period from 29.11.1945 to 11.2.1956 when
the joint family comprised of plaintiff and defendant existed.
Moreover, the C.T.S. No. 310-D described at serial No. 4 in Para
1A of the plaint has been also purchased on 22.4.1960 from lady E
Savitribai when the joint family existed with full force of monitory
neclues of all the suit lands in possession of the said family till
1960. It is also on record that in the year 1964 itself the plaintiff
No. 1 was suggested, found to be victim of leprosy land this
circumstance also caused the deceased plaintiff to sell his interest F
out of C.T.S. No. 144 and to construct his own house in the C.T.S.
No. 373. The map Exh. 47/l clearly shows that the C.T.S. Nos. 141,
142 are bound by public.lane to west and in case of partition, the
plaintiffs can avail their own separate entrance from West side
providing the defendant to have the accesses through main door
of entire Wada to East side getting C.T.S. No. 143 to his share G
during equitable partition. Thus, it is obvious that the suit proper-
ties were acquired prior to severance of joint family effected on
10.11.1964 and they were owned by deceased plaintiff and defen-
dant as tenants in common and the deceased plaintiff within 12
years has exercise his right to 1/2 share in each of the suit property H
    216                   SUPREME COURT REPORTS [1994) SUPP. 4 S.C.R.

A            in the capacity as tenant in common against the defendant. All
             these clinching circumstances contained me to set aside the decree
             of <he lower court allowing the appeal and I pass the following
             order."

B          Consequently it directed partition of suit properties described at
    serial Nos. 1 to 4 in para 1A of the plaint and at serial Nos. 1 to 8 in para
    lB of the plaint subject to Krishna or thereafter his legal representative
    depositing a sum of Rs. 1, 250 towards their contribution of the price of
    consideration of Rs. 2,500 made by the defendant for purchasing lands
    mentioned at serial Nos. 5, 7 and 8 in para 1B of the plaint under sale-deed
C   Exh. 131. Accordingly directed the partition by metes and bounds by
    appointing Court Commissioner etc. Thus this appeal by special leave.

          It is contended by Mr. Vishwanatha Iyer, learned Senior counsel for
  the appellant that having entered into military service and after his dis-
D charge, the appellant continned to contribute for the acquisition of the
  properties in his own name and, therefore, items except items at serial Nos.
  1, 3 and 6, which were already partitioned, remained to be his self-acquired
  properties. Therefore, there is no joint family nucleus for acquisition of
  these properties and accordingly the trial court was right in declining
  partition of the items except those mentioned in the preliminary decree
E granted by the trial court. We find no force in the contention. It is seen
   that Kondiba and Krishna were in military service. While they were in
  service, their father was enjoying the properties and acquired other proper-
   ties individually and collectively of the appellant and Krishna and that
   properties remained to be joint. Admittedly, both the appellant and
F Krishna were discharged in 1948 from the military service. Since Krishna
   had suffered disability of hearing, he remained in the family and the finding
   of the appellate court is that he continued to cultivate not only the
   properties acquired by them but' also tenanted properties. Thereafter
   Krishna continued to remain in joint possession alongwith the appellant of
   all the properties till he sold the properties to the appellant by registered
G sale deed on November 10, 1964. Thus it can be seen that till the date of
   severance in stains there is no individual enjoyment of the properties or
    assertion of their rights in respect of any specified item of the property. It
   is seen that during the life time of the father, both the brothers remained
   joint and after the demise of the father, by which date both the brothers
H were discharged from military service, Krishna continued to maintain
                 K.B. KIRDATv. KRISHNAB. KIRDAT                       217
properties not acquired only by them but also tenanted land. Therefore, it A
is clear that they had joint family nucleus and continued to acquire the
respective properties. So they must be deemed to be joint family properties
as found by the.appellate court. After the severance in status, admittedly,·
the appellant had purchased items 5, 7, and 8 of para 1B of the plaint in
his own individual names. Therefore, though the appellate court had B
clubbed those properties also into the joint family properties, it was not
right in treating those properties to be joint family properties. Accordingly
only items 5, 7 and 8 mentioned in paragraph 1B of the plaint shall be
declared to be self-acquired properties of the appellant. All other proper-
ties are joint family properties and liable to be partitioned in equal moiety
between the appellant and the Krishna and the legal representatives of C
Krishna would take half share in the properties. The decree of the appel-
late court is modified accordingly to that extent. Since items 5, 7 and 8 para
1-B of the plaint are declared to be self-acquired properties of the appel-
lant, the question of respondents' contribution of Rs. 1250 does not arise.
The decree of the appellate court is accordingly modified. In other respect D
it is confirmed. The appeal is partly allowed. No costs.

S.M.                                               Appeal partly allowed.