Mere existence of Joint Hindu Family does not automatically render all properties as joint family properties. Presumption of jointness must be supported by evidence. Affidavits under oath regarding joint business and property carry significant weight.
["Presumption of jointness needs evidentiary proof","Affidavits under oath regarding HUF business are significant","Inconsistent pleadings undermine partition claims","Joint business operations and property management are key factors"]
[Cites 5 , Cited by 0 ]
Supreme Court of India
Vitthalrao Marotirao Navkhare vs Nanibai (Dead) Thr. Lrs. on 8 April, 2024
Author: Sanjay Kumar
Bench: Sanjay Kumar , Aniruddha Bose
2024 INSC 283 Non-reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. ……... of 2024
(@ Special Leave Petition (C) No. 13989 of 2019)
With
Civil Appeal No. ……... of 2024
(@Special Leave Petition (C) No. 15843 of 2019)
Vitthalrao Marotirao Navkhare … Appellant
Versus
Nanibai (Dead), through LRs, and others … Respondents
JUDGMENT
SANJAY KUMAR, J
1. Leave granted.
2. The plaintiff in Spl. C.S. No. 286 of 2005 on the file of the
learned Civil Judge (Senior Division), Amravati, is the appellant before us.
In one appeal, he assails certain findings recorded by a learned Judge of
Signature Not Verified
Digitally signed by
the Nagpur Bench of the Bombay High Court in the judgment dated
Nirmala Negi
Date: 2024.04.08
16:36:53 IST
Reason:
24.11.2018 in Second Appeal No. 38 of 2009, arising therefrom. In the
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other appeal, his challenge is to the order dated 22.03.2019 of the very
same learned Judge of the Bombay High Court, Nagpur Bench, in Misc.
Civil Application (Review) No. 46 of 2019 in Second Appeal No. 38 of 2009.
3. Spl. C.S. No. 286 of 2005 was filed by the appellant for partition
and separate possession of the suit schedule properties, which included
houses and agricultural lands. Defendant Nos. 1 to 6 in the suit were the
widow and progeny of the plaintiff’s deceased brother, Laxmanrao
Navkhare. Defendant No. 7 was the wife of the plaintiff. Defendant Nos. 1
to 4 filed a counter-claim in the suit seeking a perpetual injunction
restraining the plaintiff from obstructing them from carrying on the business.
By judgment dated 29.02.2008, the Trial Court decreed the suit in part,
holding that the plaintiff was entitled to partition and separate possession of
a half-share in the agricultural land in Survey No. 22/1-A at Mouza
Shendola, Taluk Teosa, District Amravati. According to the Trial Court, this
agricultural land alone was proved to be ancestral property, belonging to
the plaintiff and his deceased brother, while the rest of the properties were
the self-acquired properties of late Laxmanrao. The Trial Court further held
that late Laxmanrao was the sole proprietor of the business concern named
‘Gajanan Automobiles’ and the plaintiff had no interest therein. The
counter-claim of defendant Nos. 1 to 4 was accordingly decreed.
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4. Aggrieved by the judgment of the Trial Court, the plaintiff filed
Regular Civil Appeal No. 69 of 2008 before the learned District Judge-III,
Amravati. By judgment dated 14.11.2008, the Appellate Court held in favour
of the plaintiff on all counts and decreed his suit in its entirety. The plaintiff
was held to have a half-share in all the suit properties. The counter-claim of
defendant Nos. 1 to 4 was dismissed.
5. Assailing this reversing judgment of the Appellate Court,
defendant Nos. 1 to 6 filed Second Appeal No. 38 of 2009 before the
Nagpur Bench of the Bombay High Court. The second appeal was
dismissed, vide judgment dated 24.11.2018. Significantly, the learned
Judge observed therein that the conclusion of the Appellate Court that the
business was joint from 1991 was not a perverse finding. On the strength of
this observation, defendant Nos. 1 to 6 filed a review petition in Misc. Civil
Application (Review) No. 46 of 2019 contending that as the garage
business started by Laxmanrao was a joint business only from 1991,
properties which were acquired prior thereto would not be liable for
partition, as such properties could not be treated as joint properties of late
Laxmanrao and his brother, the plaintiff. They prayed for modification of the
judgment dated 24.11.2018 in Second Appeal No. 38 of 2009 by excluding
two plots of land in Survey No. 17/2 at Mouza Saturna and the agricultural
lands in Survey Nos. 6/1 and 59/07 at Mouza Nimbura. By order dated
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22.03.2019, the very same learned judge, who had dismissed the second
appeal earlier, accepted their plea and held that, while maintaining the
decree for partition and separate possession as passed, the properties
covered by Exs. 205, 224 and 226 in Survey No. 17/2 at Mouza Saturna
and the properties in Survey No. 59/07 at Mouza Nimbora covered by
Ex. 316 and the property in Survey No. 6/1 at Mouza Nimbora covered by
Ex. 317 were liable to be excluded from partition. The aforestated order
dated 22.03.2019 and the observation in the second appeal judgment that
the garage business became joint only in the year 1991 are called in
question presently before us.
6. Parties shall hereinafter be referred to arrayed in the suit.
7. The case of the plaintiff as set out in his plaint in Spl. C.S. No.
286 of 2005 was as follows: Motiram Marotirao Navkhare was survived by
his widow and two sons, namely, Laxmanrao and the plaintiff. At the time of
the death of their father, Laxmanrao and the plaintiff were of tender age.
Thereafter, Laxmanrao and the plaintiff came to constitute a Joint Hindu
Family, of which Laxmanrao was the Karta (Manager). After their
marriages, the brothers lived together along with their mother and other
family members. The joint family started an Auto Garage business, named
‘Gajanan Automobiles’ and ‘Trimurti Auto Garage’ at Badnera Road,
Amravati. The suit properties were purchased from the income of this joint
4
family business. Some of the properties were bought in different names,
including the names of defendant Nos. 2 and 7. According to the plaintiff,
the property on which the garage business was running at that point of time
was also purchased by them jointly though the sale deeds stood in the
names of late Laxmanrao, the plaintiff and defendant No. 2 respectively.
The joint family business was started in the year 1962 and continued as
such since then. The three-phase electric meter connection for the garage
business, set up in the three plots of land, stood in the plaintiff’s name as
did the municipal tax assessment on the file of Amravati Municipal
Corporation. Laxmanrao expired on 15.11.2004 and prior to that, their
mother also passed away. Thereafter, owing to a change in the behaviour
of defendant Nos. 1 to 6, as evidenced by the mutation carried out in their
own names against the joint family properties, the plaintiff addressed legal
notice dated 16.08.2005 calling upon them to partition all the properties
mentioned therein. The defendants, however, contested the plaintiff’s claim
and in their reply legal notices dated 31.08.2005 and 03.09.2005, they
claimed that only one item of the garage property stood in the name of the
plaintiff and none of the other properties were liable to be partitioned.
8. It would be appropriate at this stage to note the contents of the
plaintiff’s legal notice and the response of defendant Nos. 1 to 6 in their
reply notices. In his notice dated 16.08.2005, the plaintiff stated that his
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father, Motiram Marotirao Navkhare, owned ancestral agricultural land
admeasuring 5 acres. After his death, the family relied upon the father’s
brother, Narayanrao Navkhare. In due course of time, Laxmanrao and,
thereafter, the plaintiff started working in a motor garage. Eventually, they
took over the garage on rental basis and started a joint garage business in
the year 1962. They remained joint during the life time of late Laxmanrao
and expanded the garage business by establishing it on their own lands
under the name and style of Gajanan Automobiles and Trimurti Auto
Garage. The three-phase electric meter at the garage stood in the name of
the plaintiff as did the tax assessment in relation thereto on the file of the
Municipal Corporation, Amravati. After the death of Laxmanrao, which was
preceded by their mother’s death, the plaintiff noticed a change in the
attitude of defendant Nos. 1 to 6, as was evident from the mutations gotten
effected by them in relation to the joint properties, leading to the plaintiff’s
demand for a partition which failed to evoke a positive response. The
plaintiff accordingly called upon defendants to partition the
notice-scheduled properties and deliver his half-share therein.
9. By way of their reply legal notice dated 31.08.2005, defendant
Nos. 1 to 4 stated as follows: Late Laxmanrao, by the dint of his own hard
work, built up the garage business by taking a site on rent at Badnera
Road, Amravati, from one Shri Tapar in the year 1964. The garage
6
business was being run under the name and style of Gajanan Automobiles.
Laxmanrao was the sole proprietor of this business and the plaintiff, who
was also a motor mechanic, worked in the said garage on weekly wages.
Shri Tapar filed an eviction suit in relation to the leased land and
Laxmanrao purchased separate land, under three separate sale deeds in
three names. One, in his own name, one in the name of the plaintiff and the
last in the name of his son, defendant No. 2. It was further stated that the
plaintiff got separated in respect of the business establishment after Diwali,
2003, and continued with his own separate establishment in the plot of land
purchased in his name, with no concern with the rest of the business and
the properties of late Laxmanrao. According to defendant Nos. 1 to 4,
“mere joint venture or residence under one roof till 1975 was not by itself
any type of source or nucleus to connect them into a Joint Hindu Family or
Hindu Undivided Family as there were no funds, source or property to hold
as joint family or ancestral family property”. They denied that Laxmanrao
ever acted as the Karta or Manager of the Joint Hindu Family. According to
them, Laxmanrao’s branch, represented by Ashok and another son, was
running the garage business independently as the plaintiff got separated
from January, 2003. They reiterated that even during Laxmanrao’s life time,
the plaintiff got separated in all respects and denied the plaintiff’s claim for
partition and separate possession. In their reply notice dated 03.09.2005,
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defendant Nos. 1 to 4 stated that some recitals in the earlier notice required
correction and they adverted to the corrections that they wished to make.
According to them, the plaintiff got separated after Diwali, 2003, and not in
January, 2003, as was mentioned in certain paragraphs of the earlier
notice.
10. Surprisingly, in their written statement, defendant Nos. 1 to 4
adopted a different stand. They stated therein that, after their father’s
death, Laxmanrao and the plaintiff, who were of tender age, were brought
to Amravati by their uncle. They asserted that, in the absence of any
nucleus of joint family property, late Laxmanrao could not have become the
Karta or Manager. The two establishments, viz., Gajanan Automobiles and
Trimurti Auto Garage, were stated to be of recent origin, having been set up
in the year 1991 on three different plots which stood in three individual
names and, therefore, it could not be said to be a joint family business.
They asserted that there was never any nucleus which could support the
contention of the plaintiff with regard to purchase of joint family properties
and the labour work and automobile repairs undertaken separately by
Laxmanrao and the plaintiff could not be equated to formation of a Joint
Hindu Family or change what was separate property into joint property.
They pointed out that the present garage establishment was in three
different plots. The property at Sl. No. 1(i) of the suit schedule, being the
8
middle portion, stood in the name of the plaintiff and it had the structure,
while the western side portion which was bought in the name of defendant
No. 2 had machinery, equipment and the servicing facility. They claimed
that as the middle portion stood in the name of the plaintiff and was
constructed upon, the electricity meter and water connection were taken in
his name. They asserted that the garage business was not an old business
and was of recent origin, having been established in 1991 under the name
and style of Gajanan Automobiles and Trimurti Auto Garage. They,
however, admitted that Laxmanrao had initially worked at motor garages
and then took land on rent at Badnera Road, Amravati, from Shri Tapar and
started his own exclusive establishment. They claimed that the other suit
schedule properties were purchased by late Laxmanrao independently and
that the plaintiff had no interest or right in the same. They raised a counter-
claim for a permanent injunction restraining the plaintiff from obstructing
them from carrying on the garage business or interfering with their
possession. In that context, they also referred to the fact that late
Laxmanrao had filed an affidavit in Regular Civil Suit No. 127 of 2002,
which was filed by the plaintiff’s son in relation to his marriage proposal.
According to them, as that suit was filed for damages for defamation, it was
necessary for the plaintiff’s son to show his status and, therefore, late
Laxmanrao had stated in his affidavit that there was a joint family business
9
named Gajanan Automobiles. They asserted that the said statement could
not be taken to be an admission by late Laxmanrao for the purposes of this
suit as it had been made only to help the plaintiff’s son. They, therefore,
contented that the said affidavit could not be relied upon in the context of
the present suit.
11. Upon consideration of the aforestated pleadings, the Trial Court
framed the following issues.
‘1. Whether the suit property shown in schedule is joint family
property of plaintiff and defendants and purchased out of
joint family business?
2. Whether the plaintiff has ½ share in the suit property?
3. Whether the plaintiff is entitled for partition and separate
possession in the suit property?
4 Whether the suit ramps is run by the defendant nos. 1 to 4
since beginning?
5. Whether the suit is properly valued by the plaintiff?
6. Whether the defendant nos. 1 to 4 are entitled for
permanent injunction as prayed?
7. What order and decree?’
12. The plaintiff examined himself as PW 1 and also PWs 2 to 5.
Defendant No. 2 deposed as DW 1. Exhibits were marked by both sides.
13. In its judgment dated 29.02.2008, the Trial Court opined that
Laxmanrao was the sole proprietor of the garage business which was
started in the year 1964 in the rented plot belonging to Kesardas Tapar.
10
Thereafter, per the Trial Court, late Laxmanrao vacated the said leased
land and shifted Gajanan Automobiles to Survey No. 17/2 in Mouza
Saturna in the year 1991. The Trial Court held that two plots of land at
Mouza Saturna were purchased by late Laxmanrao and defendant No. 2
from out of their own income and they were their self-acquired properties,
while the plaintiff purchased one plot in his own name. The Trial Court,
however, found that the agricultural land at Mouza Shendola was the
ancestral property of the plaintiff and late Laxmanrao but opined that there
was no income therefrom. Referring to the affidavit given by late
Laxmanrao in the civil suit filed by the plaintiff’s son in connection with his
marriage proposal, the Trial Court opined that the said suit and the partition
suit were different from each other and, therefore, what was stated by late
Laxmanrao in that suit was not binding on defendant Nos. 1 to 6. The Trial
Court, accordingly, held that only the agricultural land at Mouza Shendola
was ancestral in nature and was liable to be partitioned between the
plaintiff and the heirs of late Laxmanrao. The Trial Court found in favour of
defendant Nos. 1 to 4 insofar as their counter-claim was concerned and
held them entitled to a perpetual injunction, as prayed for.
14. However, the Appellate Court of the learned District Judge-III,
Amravati, took a diametrically different view. In his judgment dated
14.11.2008, the learned District Judge framed the following points: -
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‘1. Whether in given set of facts and circumstances of the case
the trial Court has committed error in holding that the
plaintiff has failed to prove that suit property shown in the
schedule is not joint family property of plaintiff and
defendant and have not purchased out of joint family
business?
2. Whether in given set of facts and circumstances of the case
the trial Court has committed error in holding that the suit
ramps in the suit property are being run by defendant no. 1
to 4 since beginning and they are entitled for perpetual
injunction?
3. Whether in given set of facts and circumstances of the case
the trial Court has committed error in holding that the
plaintiff is not entitled for partition and separate possession
of suit properties except the suit property i.e. agricultural
land field survey no. 22/1-A of mouja Shendola?
4. Whether in given set of facts and circumstances of the case
impugned judgment and order of the trial Court is
according to facts and law?
5. What order?’
15. The Appellate Court took note of the evidence of the plaintiff
that his brother, Laxmanrao, and he were residing together and had a joint
mess till the year 1975 but as the premises were inadequate to
accommodate all the family members, Laxmanrao started staying at the
farmhouse at Badnera Road, Amravati, which was purchased out of joint
family business income. The Appellate Court also took note of Laxmanrao’s
affidavit, wherein he had stated that he was the Karta of the joint family and
12
that the garage business was also a joint family business. It held that
though all the documents and licences in relation to the garage business
stood in the name of the late Laxmanrao, that would not suffice to infer that
there was no joint family business in the running of the garage. The specific
suggestion put to the plaintiff that he worked as labour on weekly basis in
the said garage was denied by him and the Appellate Court found that
nothing was placed on record to show that he worked as such. The
Appellate Court also noted that, even according to defendant Nos. 1 to 6,
the plaintiff had separated from the business only after Diwali, 2003,
meaning thereby, that he was in the business jointly prior to that date. The
Appellate Court observed that there would be a presumption of jointness in
a family governed by Hindu law and there were sufficient indications to
show that the plaintiff started working with his brother in the garage
business and, therefore, a reasonable inference could be drawn that there
was a joint family business of late Laxmanrao and the plaintiff. The
Appellate Court concluded that the garage business was a Joint Hindu
Family business and that the suit properties were also joint in nature. The
plaintiff’s suit was accordingly decreed in full and the counter-claim of
defendant Nos. 1 to 4 was dismissed.
16. In Second Appeal No. 38 of 2009, the stand of defendant Nos.
1 to 6 was that there was no joint family business ever. In the judgment
13
dated 24.11.2018, whereby the said second appeal was dismissed, the
learned Judge of the Bombay High Court, Nagpur Bench, framed two
substantial questions of law: -
‘1. Whether respondent/plaintiff has proved that “Gajanan
Automobiles”’ was/is a joint family business of Laxmanrao
and Vitthalrao?
2. Whether non-inclusion of all alleged joint family properties
in suit by the respondent/plaintiff is fatal?’
17. As regards the second question of law framed above, the
learned Judge noted that a plea to that effect had not been raised earlier by
defendant Nos. 1 to 6 in their written statement or even later and, therefore,
it was not permissible for them to raise it for the first time at the stage of the
second appeal.
18. The learned Judge noted that Laxmanrao started the garage
business initially in the year 1964 at the leasehold plot taken from Kesardas
Tapar and the business continued there till the year 1991, when possession
of the leasehold plot was required to be returned to the lessor pursuant to
the eviction decree secured by him. In the meanwhile, Laxmanrao
purchased a plot admeasuring 55 feet x 120 feet in Survey No. 17/02 on
21.04.1982, under the sale deed marked as Ex. 226. Similarly, the plaintiff
purchased 2750 sq. ft. in the same Survey No. 17/02 on 22.06.1982, under
the sale deed marked as Ex. 205. Defendant No. 2 purchased an extent
14
admeasuring 55 feet x 105 feet in Survey No. 17/02, under Sale Deed
dated 06.07.1983 marked as Ex. 224. It was on these three plots that late
Laxmanrao shifted the garage business after eviction from the leasehold
plot of Kesardas Tapar. In this regard, the learned Judge observed: -
‘………...From this evidence on record, it can be gathered that in
the year 1982-83 Laxmanrao, the plaintiff and the defendant No. 2
purchased three separate plots in their respective names and from
1991, the business of Gajanan Automobiles was shifted from the
lease hold premises of Keshardas Tapar to Survey No. 17/2. While
the office as well as the water, electricity meter and bore well were
on the plot of plaintiff, the ramps were located on the plot of the
defendant No. 2. There was no demarcation of three plots and
there was no dispute amongst the said three owners in that
regard. The essentials for running the Garage namely the three
phase meter and the bore well were located in the plaintiff’s plot.
When this factual aspect is considered along with the reply at
Exhibit-91 sent on behalf of the defendants, it becomes clear that
said business was being run jointly by the parties and there was
no bifurcation as such. It has been stated that the Office premises
and the three phase connection was intended to be kept common.
Though it is true that all documents stood in the name of
Laxmanrao and thereafter in the name of the defendant No. 2, the
explanation furnished by the plaintiff is that this was done for the
sake of convenience which appears quite reasonable. It can be
seen that though the defendants have pleaded the aspect of
weekly payments being made to the plaintiff, when he was working
at Gajanan Automobiles, there is no evidence brought on record in
that regard.’
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19. Further, the learned Judge noted that, as per Section 32(5) of
the Indian Evidence Act, 1872, the Affidavit filed by late Laxmanrao in the
plaintiff’s son’s suit could be relied upon and the statement of late
Laxmanrao, on oath, that he was the Karta of the joint family could also be
taken note of. Having said so, the learned Judge then observed as under: -
‘However, it is to be noted that when the entire material on record
is taken into consideration and by applying the principle of
preponderance of probability, the fact that since 1991 the Garage
business was being run from the three plots located on Survey No.
17/2, each plot having been separately and individually purchased
by Laxmanrao, the plaintiff as well as defendant No. 2 and various
vital installations that are necessary for running the Garage being
located in the plaintiff’s plot without there being any demarcation of
each plot, the conclusion drawn by the appellate Court of the
business being joint since 1991 is not a finding which is so
perverse that such finding cannot be arrived at by any person of
ordinary prudence based on the material on record. Though the
initial business was started by Laxmanrao in the lease hold
premises of Keshardas Tapar, the purchase of three separate plots
in the year 1982 and shifting of the entire Garage there in the year
1991 and the same being conducted there without any dispute
from 1991 till at least the death of Laxmanrao in the year 2004 is a
sufficient indication of the business being joint between
Laxmanrao and his young brother.’
(emphasis is ours)
20. In conclusion, the learned Judge held that he found no reason
to interfere with the judgment of the Appellate Court, whereby the plaintiff’s
16
suit for partition and separate possession had been decreed in toto and,
accordingly, dismissed the second appeal.
21. The Review Petition filed thereafter by defendant Nos. 1 to 6
solely turned upon the observation of the learned Judge that the joint
business commenced only from 1991. However, this was not a finding
arrived at by the learned Judge himself but was recorded as a finding of the
Appellate Court in its judgment dated 14.11.2008. However, as has been
forcefully stressed before us by the plaintiff, no such finding finds mention
in the judgment dated 14.11.2008 of the Appellate Court.
22. As a matter of fact, we find that defendant Nos. 1 to 6 never put
forth a consistent plea in respect of the garage business at any stage of the
proceedings. So much so that, even before us, their argument was
prefaced with the assertion that there was never any joint business.
However, as already noted, their stand in their reply notice was to the effect
that there was a partition of the joint business after Diwali, 2003. Even in
their second appeal grounds, their stand was that there was never any joint
business at any point of time between the plaintiff and late Laxmanrao.
23. Further, we may also note that the learned Judge of the
Bombay High Court, Nagpur Bench, initially dismissed the second appeal
by his judgment dated 24.11.2018 and neither that judgment nor the
findings therein were ever challenged by defendant Nos. 1 to 6. They
17
chose to file a review petition basing on a stray observation made in the
said judgment, which was made under the mistaken impression that the
Appellate Court had given a finding that the joint business commenced only
from 1991. Once that observation is set at naught as it was based on a
clear misreading of the Appellate Court’s judgment, the very basis of the
review petition filed by defendant Nos. 1 to 6 would vanish. Surprisingly, the
learned Judge, despite dismissing the second appeal in the first instance,
practically overturned the said decision on a misreading of his own
erroneous finding as to when the joint family business commenced and did
a volte face on his earlier decision.
24. The irrefutable fact also remains that late Laxmanrao himself
filed an affidavit in lieu of his examination-in-chief before a Court of law,
wherein he stated as follows:
“I am a Karta (Manager) of Hindu Joint Family and carrying on business of
Motor Garage under the name and style of ‘Shri Gajanan Automobiles’,
Amravati and ‘Trimurty Auto Garage, Amravati’ and also having some
landed property situated within limits and territorial jurisdiction of Amravati
Municipal Corporation, Amravati.”
He then deposed on oath before the Court and in his
cross-examination, he stated as follows:
“I myself and my brother Vitthalrao (Manohar’s father), we two are
the owners of Gajanan Automobiles Workshop. We both are the
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owners of the house where the workshop is situated. Whatever the
income we get, we get it from the workshop and we spend it.”
25. Be it noted that this deposition was made on 30.06.2003. This
date becomes significant, given the claim of defendant Nos. 1 to 4 that the
plaintiff separated from the joint business during the life time of late
Laxmanrao. There is, however, no evidence whatsoever of any such
partition taking place during the lifetime of late Laxmanrao or even
thereafter. The Appellate Court referred to Section 32(5) of the Indian
Evidence Act, 1872, but we find that the relevant provision is Section 32(3)
and not Section 32(5) of the said Act. Section 32(5) relates to existence of
a relationship and that is not even in issue in the present case. Sections
32(3) of the Indian Evidence Act, 1872, reads as follows: -
‘ Section 32 – Cases in which statement of relevant fact by
person who is dead or cannot be found, etc., is relevant.-
Statements, written or verbal, or relevant facts, made by a person
who is dead, or who cannot be found, or who has become
incapable of giving evidence, or whose attendance cannot be
procured, without an amount of delay or expense which under the
circumstances of the case appears to the Court unreasonable, are
themselves relevant facts in the following cases :
(3) - or against interest of maker.- When the statement is against the
pecuniary or proprietary interest of the person making it or when, if true, it
would expose him or would have exposed him to a criminal prosecution or
to a suit for damages.
19
What is of relevance presently is the statement made by late
Laxmanrao on oath before a Court of law which would be binding not only
upon himself but also upon his successors-in-interest and would, therefore,
have to be construed as having been made against their interest, if they
take a different stand, and would bind them. It is not open to defendant
Nos. 1 to 6 to claim that the affidavit and deposition of late Laxmanrao
should not be used against them as the two suits are entirely different.
Once late Laxmanrao affirmed on oath that he was the Karta of the Joint
Family consisting of himself, his brother, viz., the plaintiff, and their family
members and that the garage business was a joint family business, there is
no avenue left for defendant Nos. 1 to 6 to escape therefrom. The said
affirmation by Laxmanrao would be binding upon them.
26. That apart, we may also note that the three plots where the
business was being run were purchased in individual names in the years
1982 and 1983 and the middle plot was in the name of the plaintiff. The
business is stated to have shifted to these three plots in the year 1991,
after the leasehold plot of Kesardas Tapar was vacated pursuant to an
eviction decree. If it had been the intention of Laxmanrao not to have a joint
garage business then and he wished to set up his brother independently,
as has been claimed by defendant Nos. 1 to 4 at one stage, he would not
have given him the middle plot. Logically, he would not have wanted his
20
own brother to compete with him by opening a separate motor garage next
door. Further, the middle plot being that of the plaintiff, it is completely
unrealistic for defendant Nos. 1 to 4 to contend that he was running a
separate garage there after Diwali, 2003. It is an admitted fact that the
garage business was not started for the first time in the year 1991. It is also
an admitted fact that both the brothers were motor garage mechanics. In
the absence of any fall out between them, as is clear from late
Laxmanrao’s supportive stance in the plaintiff’s son’s suit, it is not
believable that they would not have worked together from the start. As
rightly pointed out by the Appellate Court, if that was not their intention, late
Laxmanrao would not have asked his brother to take the middle plot,
flanked on one side by a plot in his name and on the other side in his son’s
name, while shifting the garage business. Never was it the case of
defendant Nos. 1 to 6 that there was a joint family business only from the
year 1991 but, by taking advantage of the erroneous observation of the
learned Judge in the second appeal judgment on a misreading of the
Appellate Court’s judgment, they built up an entirely new story.
27. In any event, the High Court acting in second appellate
jurisdiction could not have arrived at a new finding of fact without any
foundation being laid therefor and the stray observation made by the
21
learned Judge that the joint family business commenced in the year 1991,
based on a misreading of the Appellate Court’s judgment, cannot stand.
28. Reliance placed by defendant Nos. 1 to 6 upon
D.S.Lakshmaiah and another vs. L. Balasubramanyam and another 1 is
of no avail. That was a case where this Court held that there could be no
presumption that a property is a joint family property only on account of
existence of a Joint Hindu Family. In the present case, however, late
Laxmanrao himself stated on oath before a Court of law that the garage
business was a joint family business. Further, as no evidence was adduced
of the plaintiff working in the garage on weekly wages, the presumption
would be that the brothers worked together and jointly managed the garage
business. Similarly, the decision of this Court in Kiran Devi vs. Bihar State
Sunni Wakf Board and others2 also does not further their case. It was
held therein that a member of a Hindu Undivided Family would be
competent to enter into a contract with a stranger in his individual capacity.
However, the facts in this case manifest that late Laxmanrao did not treat
the garage business as his own independent enterprise at any point of time
and, on the other hand, gave evidence under oath that it was a joint family
business with his brother, the plaintiff.
1
(2003) 10 SCC 310
2
(2021) 15 SCC 15
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29. On the above analysis, we hold that the learned Judge of the
Bombay High Court, Nagpur Bench, made a factually incorrect observation
by misreading the judgment of the Appellate Court and compounded that
error by acting upon such erroneous observation and reviewing the
judgment. The offending observation in the judgment dated 24.11.2018 in
Second Appeal No. 38 of 2009 and the order dated 22.03.2019 in Misc.
Civil Application (Review) No. 46 of 2019 are accordingly set aside. In
consequence, the judgment dated 14.11.2008 of the learned District
Judge-III, Amravati, in Regular Civil Appeal No. 69 of 2008 is upheld.
Both the civil appeals are allowed in the above terms.
Parties shall bear their own costs.
………………………..,J
(ANIRUDDHA BOSE)
………………………..,J
(SANJAY KUMAR)
April 8, 2024;
New Delhi.
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