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Govind Dhondo Kulkarni v. Vishnu Keshav Kulkarni
Factual and Procedural Background
The applicant claimed to be the adopted son of Dhondo Grovind (Dhondo Govind) Kulkarni and filed a suit seeking partition and possession of his half share in the suit property. Defendants contested the adoption (arguing it either did not occur or was invalid) and contended that most of the suit property was self-acquired, not joint family property. The plaintiff valued the claim in the trial Court at Rs. 12,012-8-0.
The trial Court found that the adoption had been proved but held it invalid and held that the whole of the property (except two houses and two lands) was not joint family property. On the basis that adoption was invalid, the trial Court dismissed the plaintiff's suit.
The plaintiff appealed to the High Court (F.A. No. 169 of 1941). The High Court set aside the trial Court's decree in part: it declared the adoption by defendant No. 1 to be proved and valid and held that only a small portion of the immovable properties (the first house in para. 1, cl. A, and two Kulkarni watan lands described in para. 1, cl. C) were joint family property. The High Court therefore allowed the plaintiff's claim as to some properties and rejected it as to remaining properties.
The applicant then applied for leave (certificate) to appeal to His Majesty in Council. The central question before the High Court was whether to grant the certificate required under s. 110 of the Code of Civil Procedure so that the applicant could appeal to the Privy Council.
Legal Issues Presented
- Whether the statutory monetary threshold under s. 110 (value of subject-matter in the Court of first instance and value in dispute on appeal to His Majesty in Council being Rs. 10,000 or upwards) is satisfied.
- Whether it is necessary for the applicant to show that the appeal involves "some substantial question of law" under s. 110, given that the decree of the High Court varied the decree of the trial Court (and specifically whether a variation that operates in the applicant's favour can be treated as a decree of affirmance).
- Whether, on the facts of this case (dispute whether property is joint family or self-acquired), the appeal raises any substantial question of law (as opposed to questions of fact), particularly in light of authorities on the "nucleus" principle for joint-family acquisition.
Arguments of the Parties
Applicant's Arguments
- The applicant argued that he should not be required to show the appeal involves a substantial question of law because the decree of the High Court did not “affirm” the decision of the trial Court but rather varied it (variation in his favour), and therefore s. 110's proviso requiring a substantial question of law should not apply.
- Applicant's counsel (Mr. Bengeri) relied upon s. 233, sub-s. (2) of Sir Dinshah Mulla's Principles of Hindu Law (1940 ed.) and contended that a substantial question of law did arise — specifically, that a recognized nucleus (said to yield about Rs. 100–125) existed and that, once a nucleus is established, a presumption follows that subsequently acquired property may be joint family property unless shown otherwise.
- In support of the contention that a variation in the High Court's decree should permit a right of appeal without showing a substantial question of law, counsel relied upon the Privy Council authority Annapurnabai v. Ruprao and on full-bench High Court decisions (Raja Brajasunder Deb v. Raja Rajendra Narayan Bhanj Deb; Jaggo Bai v. Harihar Prasad Singh) interpreting that Privy Council ruling.
Opponents' Arguments
- The opponents contested the applicant's valuation of the value-in-dispute on appeal only by argument; they did not file a counter affidavit contesting the applicant's stated valuation of Rs. 10,043-5-6.
- Substantively, opponents argued (relying upon Kapurji Magniram v. Pannaji Debichand and related authority) that the question of whether the decree "affirms" the decision of the Court immediately below must be assessed in law and that, where the decree appealed from affirms (or is to be regarded as affirming) the decision below, the applicant must show the appeal raises a substantial question of law; in the present case the opponents contended the appeal did not raise such a question because the principal disputes were factual (whether properties were joint family or self-acquired) and thus no substantial question of law arises.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Rajah Tasadduq Rasul Khan v. Manik Chand | That the expression "the decision" in para 3, s. 110 of the Code of Civil Procedure means a decree and not merely the reasons of a judgment. | The Court relied on this authority to treat the relevant inquiry under s. 110 as whether the decree appealed from (or part of it) affirms the decree of the court immediately below. |
| Raja Brajasunder Deb v. Raja Rajendra Narayan Bhanj Deb | Authority taking the view that where a High Court reverses in part and maintains the remainder of the lower Court's decision, the High Court's decree cannot be said to affirm the decision of the lower Court. | Cited as presenting a contrary judicial view on whether variation by the High Court amounts to affirmance; Court considered it among the conflicting authorities. |
| Kapurji Magniram v. Pannaji Debichand (Kapurji Maganiram) | Authority (Bombay High Court) holding that leave to appeal to Privy Council may be refused where, even though there was a variation by the High Court, the matter in dispute involved concurrent findings of fact; interpreted Annapurnabai and refused leave in that instance. | The Court treated this as binding on the question whether a variation in favour of a petitioner necessarily entitles him to appeal without showing a substantial question of law; the Court relied on it to support refusal of leave. |
| Annapurnabai v. Ruprao | Privy Council authority dealing with the effect of variation of a lower court's decree and the conditions under which leave to appeal should be granted. | Cited both by the applicant and by the Court; the Court interpreted the Privy Council decision as not entitling a petitioner to appeal to the Privy Council simply because of a slight variation by the High Court and used it to support the conclusion that not every variation gives a right of appeal without showing a substantial question of law. |
| Bhagwan Singh v. The Allahabad Bank Ltd. | Cited in the course of the discussion of Kapurji Magniram (referred to by Sir Amberson Marten in that case). | Referred to as part of the reasoning in Kapurji Magniram; no separate application by the Court beyond that citation. |
| Babubhai Girdharlal v. Ujamlal Hargovandas | Principle that where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus for subsequent acquisitions, the burden shifts to the party alleging self-acquisition to show the property was acquired without aid of the joint family property. | The High Court accepted this principle and applied it to conclude that the nucleus here (income about Rs. 100–125) was insufficient to account for acquisition of the larger properties, thus weighing against finding a substantial question of law. |
| Vythianatha v. Varadaraja | The nucleus principle: mere existence of a nucleus is not enough; the nucleus must be of such value as could reasonably have formed the basis of acquisition of the property in question; only then does the onus shift. | Quoted and applied alongside Babubhai Girdharlal to determine that the small nucleus in this case could not have reasonably supported acquisition of the disputed properties. |
| Appalaswami v. Suryanarayanamurti | Recent Privy Council judgment accepting the principle in Babubhai Girdharlal (and noting the nucleus/burden-shifting rule); judgment delivered by Sir John Beaumont. | The Court noted that Appalaswami confirmed the Babubhai principle; this supported the Court's conclusion that the small nucleus here did not shift the burden so as to create a substantial question of law. |
| Jaggo Bai v. Harihar Prasad Singh | Full-bench authority (Patna/Allahabad context) interpreting Annapurnabai as granting a right to appeal where the High Court's decree varied the lower Court's decree. | Cited by the applicant's counsel as supportive authority; the Court considered it among the conflicting authorities but preferred the line of authorities that do not treat every variation as conferring a right to appeal without showing a substantial question of law. |
| Kailasa Tever v. Kasivishwanatham; Wahid-ud-din v. Makhan Lal | Madras and Lahore High Court authorities holding that if a High Court varies the trial Court's decree in favour of the petitioner, and the petitioner appeals against that part of the decree which confirmed the trial Court, the High Court's decree is to be regarded as one of affirmance (not variation). | These cases were cited to support the view that a variation in favour of the petitioner may still be treated as an affirmance for the purposes of s. 110, requiring a substantial question of law to be shown. |
Court's Reasoning and Analysis
The Court engaged a stepwise analysis, strictly applying s. 110, Code of Civil Procedure:
- Value requirement under s. 110: The Court first required that both the value of the subject-matter in the Court of first instance and the value of the subject-matter in dispute on appeal to His Majesty in Council be Rs. 10,000 or upwards. The plaintiff had valued his claim in the first instance at Rs. 12,012-8-0 and, in an affidavit dated December 3, 1947, stated the value of the subject-matter on appeal to the Privy Council as Rs. 10,043-5-6. The opponents filed no counter-affidavit challenging this valuation. On that basis the Court found the monetary threshold satisfied.
- Whether a substantial question of law must be shown: The Court turned to whether the applicant must show that the appeal involves "some substantial question of law" — a requirement that arises under s. 110 where the decree appealed from "affirms" the decision of the Court immediately below. The Court analysed the meaning of "affirms" and noted a conflict of judicial opinion on whether a High Court decree that varies the lower Court's decree (even if the variation is in the appellant's favour) can be said to "affirm" the decision below for the purposes of s. 110.
- Evaluation of conflicting authority: The Court reviewed the conflicting authorities: some High Court decisions (Patna/Allahabad full benches) had construed Annapurnabai v. Ruprao as giving a right to appeal whenever the High Court varied the trial Court's decree, while decisions from Bombay, Madras and Lahore supported the contrary view that a variation in the petitioner's favour may nonetheless be regarded as an affirmance for s. 110's purposes. The Court treated the line of authority represented by Kapurji Magniram and the Bombay view (and the Madras/Lahore view) as authoritative and persuasive in this context.
- Character of the disputed issues: The Court observed that the portion of the dispute which would go to the Privy Council related to properties as to which both Courts ultimately rejected the plaintiff's claim (i.e., those held to be self-acquired property). The Court emphasised that the question whether certain property is joint family property or self-acquired property is essentially a question of fact. Consequently, the Court found that the appeal did not raise a substantial question of law merely because factual issues were contested.
- Nucleus principle and burden of proof: The Court considered the applicant's contention that a nucleus existed (said to yield ~Rs. 100–250) sufficient to support a presumption that later acquisitions might be joint family property. The Court applied the nucleus principle as stated in Babubhai Girdharlal and Vythianatha v. Varadaraja (and as accepted by the Privy Council in Appalaswami v. Suryanarayanamurti): the nucleus must be of such value as could reasonably have formed the basis for acquiring the properties in question before the onus shifts. Having found that the alleged nucleus yielded only about Rs. 100–125 annually (insufficient for maintenance and inadequate to account for acquisition of the disputed properties), the Court concluded that the nucleus was inadequate and so no shift of burden occurred that would raise a substantial question of law.
- Conclusion on necessity of showing a substantial question of law: Because the Court regarded the High Court's decree as, in effect, affirming the trial Court's decree with respect to the bulk of the properties (those held to be self-acquired) — and because the dispute on those properties turned on concurrent or essentially factual findings and not on substantial legal questions — the Court held that the applicant was required to show a substantial question of law and had failed to do so.
- Final practical outcome: For these reasons the Court refused the application for leave to appeal to His Majesty in Council and discharged the rule with costs. A concurring opinion (Jahagirdar, J.) agreed with the same analysis and conclusions, reiterating the interpretation of "decision" as "decree" and the factual character of the disputed issues.
Holding and Implications
Holding: The application for leave to appeal to His Majesty in Council is refused; the application fails and the rule is discharged with costs.
Implications:
- Direct effect on the parties: The applicant is not granted the certificate required under s. 110 and therefore cannot proceed to appeal to His Majesty in Council on the matters covered by this application; the High Court's disposition as to the bulk of the properties (that they were self-acquired and that the plaintiff's claim as to them is rejected) stands, and the plaintiff's successful claim is limited to those few properties the High Court identified as joint family property.
- On precedent and legal principle: The Court applied and relied upon existing authorities (including Rajah Tasadduq Rasul Khan v. Manik Chand; Babubhai Girdharlal v. Ujamlal Hargovandas; Vythianatha v. Varadaraja; and Appalaswami v. Suryanarayanamurti) to interpret s. 110 and the nucleus principle. The judgment does not purport to create a new legal doctrine but applies existing principles to the facts before it; no new binding precedent beyond the Court's application of existing authorities is announced in this opinion.
Rule discharged. (Order delivered; Jahagirdar, J. concurred.)
Dixit, J.:—
This is an application for leave to appeal to His Majesty in Council and the facts giving rise to the application are briefly these.
The applicant claiming to be the adopted son of one Dhondo Grovind Kulkarni filed a suit to recover by partition possession of his half share in the suit property. The plaintiff's claim was opposed on several grounds. It was contended that the plaintiff was not adopted in fact, that plaintiff's adoption was invalid and that in any case the suit property with the exception of two houses and two lands was not joint family property. The plaintiff valued his claim in the Court of first instance at Rs. 12,012-8-0. The trial Court held that the plaintiff had proved his adoption but his adoption was invalid. The trial Court also held that the whole of the property in suit was joint family property. But since the plaintiff's adoption was invalid, the trial Court dismissed the plaintiff's suit. From that decision the plaintiff filed F.A No. 169 of 1941 in this Court and this Court set aside the decree of the Court below and declared that the plaintiff's adoption by defendant No. 1 was proved and was valid. This Court further held that out of the immoveable properties described in the plaint, only the first house in para. 1, cl. A, and the two Kulkarni watan lands R.S Nos. 256/5 and 311/7 at Kudnur described in para. 1, cl. C, were joint family properties. The result was that the plaintiff's claim was allowed with respect to some of the properties and that his claim in respect of the remaining properties was rejected. The plaintiff now applies for leave to appeal to His Majesty in Council and the question is whether we should grant him the certificate he has applied for.
This question has to be answered by reference to s. 110 of the Code of Civil Procedure. That section, so far as material, provides:—
“In each of the cases mentioned in clauses (a) and (b) of s. 109, the amount or value of the subject-matter of the suit in the Court of first intance must be ten thousand rupees or upwards, and the amount or value of the subject-matter in dispute on appeal to His Majesty in Council must be the same sum or upwards,
and where the decree or final order appealed from affirms the decision of the Court immediately below the Court passing such decree or final order, the appeal must involve some substantial question of law.”
The first requirement according to s. 110 is that the value of the subject-matter of the suit in the Court of first instance must be Rs. 10,000 or upwards. This part of the requirement is satisfied. The further requirement is that the value of the subject-matter in dispute on appeal to His Majesty in Council must also be the same sum or upwards. The applicant in his affidavit stated that the value of the subject-matter on appeal to His Majesty in Council was Rs. 10,043-5-6. This will appear from an affidavit filed by him on December 3, 1947. The opponents have not by a counter affidavit challenged this valuation. It is, therefore, clear that the value of the subject-matter in dispute on appeal to His Majesty in Council is also Rs. 10,000 or upwards. The first requirement of s. 110 is, therefore, fulfilled.
The next question is whether it is necessary for the applicant to show that the appeal involves some substantial question of law. It is urged on behalf of the applicant that it is not necessary for him to show that the appeal involves a substantial question of law because it is contended that the decree appealed from did not affirm the decision of the Court immediately below the Court passing such decree. The expression “the decision” occurring in s. 110 means “the decree”. See Rajah Tasadduq Rasul Khan v. Manik Chand. A simple case of affirmance would be where the decree appealed from confirms the decree of the Court immediately below the Court passing such decree. A case in the opposite sense would be where the decree appealed from reverses the decree of the Court immediately below the Court passing such decree. Another case may arise where the decree appealed from varies or modifies the decision of the Court immediately below the Court passing such decree, and the question is whether in such a case it is necessary for the applicant to show that the appeal involves some substantial question of law.
The expression “affirms” occurring in s. 110 has given rise to sharp conflict of judicial opinion. One view is that if the decree appealed from varies the decision of the lower Court to the prejudice of the applicant it is not a decree of affirmance, but another view is that it would be a decree of affirmance if the variation is in favour of the applicant. In Raja Brajasunder Deb v. Raja Rajendra Narayan Bhanj Deb a special bench of the Patna High Court took the view that where the decree of the High Court reversed in part the decision of the lower Court whilst maintaining it with regard to the remainder of the claim, the decree of the High Court cannot be said to affirm the decision of the Court below. A reference to that decision shows that the learned Judges of the Patna High Court reviewed the case-law upon the point. In that case the case in Kapurji Magniram v. Pannaji Debichand was cited, but it was not apparently followed.
On behalf of the opponents it is urged, relying upon Kapurji Magniram's case, that this question is concluded by authority. In that case the facts were that this Court varied the decree of the lower Court in favour of the applicant and the applicant being dissatisfied With the decision desired to appeal to their Lordships of the Privy Council. In the appeal the applicant challenged a havala item of Rs. 18,000 upon which there was a concurrent finding both of the trial Court as well as of this Court. Sir Amberson Marten after referring to the case in Annapurnabai v. Ruprao and the case in Bhagwan Singh v. The Allahabad Bank Ltd. refused the application. It is true that in that case there were concurrent findings of the Courts upon the havala item of Rs. 18,000 which was the item in dispute on appeal to His Majesty in Council. But the fact remains that although there was in that case a variation in the decision of the lower Court, leave was refused.
In the present case the dispute before their Lordships of the Privy Council would be concerning the claim of the plaintiff with respect to properties in regard to which his claim has been rejected by both the Courts. The trial Court dismissed the plaintiff's suit on the ground that the plaintiff's adoption was invalid. This Court while holding that the plaintiff's adoption was valid held that the whole of the property with the exception of two houses and two lands mentioned in cl. A and C of para. 1 of the plaint was the self-acquired property of the contending defendants. The question whether certain property is joint family property or self-acquired property is, I think, essentially a question of fact. The appeal, therefore, does not involve a question of law, much less substantial question of law. But Mr. Bengeri on behalf of the applicant argues, relying upon s. 233, sub-s. (2) of Sir Dinshah Mulla's Principles of Hindu Law, 1940 edition, that in this case a substantial question of law does arise. According to the plaintiff's guardian the income from the two lands, which are held to be ancestral lands, would at present be about Rs. 200 or Rs. 250. It is not suggested that the house property yields any income. This Court, therefore, after taking into consideration the income of what can be said to be joint family property came to the conclusion that the remaining property could not have been acquired with this nucleus. A reference to the judgment shows that this Court accepted the principle of the case in Babubhai Girdharlal v. Ujamlal Hargovandas and in support of the view this Court also accepted the principle laid down in Vythianatha v. Varadaraja. It is, therefore, clear that the house property and two lands which were held to be ancestral property was not sufficient to form a nucleus with the help of which new properties could have been acquired. The principle of Babubhai Girdharlal's case has been accepted by their Lordships of the Privy Council in the recent judgment of the Board in Appalaswami v. Suryanarayanamurti. It may be of interest to note that the Judgment has been delivered by Sir John Beaumont who decided the case in Babubhai Girdharlal v. Ujamlal Hargovandas. Having regard to these considerations, we are unable to hold that the appeal raises a substantial question of law.
In this case the variation in the decision of the Court below is in favour of the applicant. The view which we take is that even though the decree appealed from varied the decision of the lower Court, the decree must be regarded to be one of affirmance. That being our view, it is necessary for the applicant to show that the appeal involves some substantial question of law. But as, in our opinion, the applicant is unable to show that the appeal involves a substantial question of law, we must refuse the leave asked for.
The result is that the application fails and the rule must be discharged with costs.
Jahagirdar, J.:—I agree.
The principal question in this application is whether the decree appealed from affirms the decision of the trial Court. The petitioner has filed the suit to recover possession of his half share by partition alleging that he is the adopted son of one Dhondo Govind Kulkarni who died joint with the other defendants. His contention was that he was adopted by defendant No. 1, the widow of Dhondo, and he had a share in the joint family property. The defendants contended that the Plaintiff's adoption had not taken place and was invalid and that the bulk of the suit property was the self-acquired property of defendants. The trial Court held that the plaintiff's adoption had taken place but was invalid on account of the unchastity of defendant No. 1 and that the entire suit property was joint family property. But it dismissed the suit as it came to the conclusion that the adoption was invalid. The petitioner went in appeal to the High Court. The High Court held that the adoption was valid and it also found that the bulk of the property in suit was the self-acquired property of the contending defendants. It, therefore, allowed the appeal in respect of the property which was found to be joint family property, and it may be stated here that the property which is found to be joint family property is a very small portion of the entire suit property.
Now, the petitioner has filed this application for leave to appeal to the Privy Council and he contends that as the decree of the High Court has varied the decree of the trial Court, he is entitled to go in appeal without being put to the necessity of showing that there is some substantial question of law. The question, therefore, is whether the decree against which he wants to prefer an appeal can be said to have affirmed the decision of the trial Court.
Apart from authorities if we merely look at the section it appears to me clear that the present decree is a decree of affirmance. The wording of s. 110 last paragraph of the Code of Civil Procedure is this:—
“Where the decree or final order appealed from affirms the decision of the Court immediately below the Court passing such decree or final order, the appeal must involve some substantial question of law.”
Now, what is the decree here appealed from? The decree appealed from cannot be that part of the decree which has allowed the appeal in favour of the petitioner. It must be that part of the decree which has affirmed the decision of the Court immediately below the Court passing such decree. So here the decree appealed from is that part of the decree of the High Court which confirmed the decree of the triad Court dismissing the Plaintiff's claim with regard to the bulk of the suit property which has been held to be separate property of the contending defendants. On this point the decisions of the trial Court and the High Court are concurrent. The trial Court dismissed the entire suit and the Appeal Court has also dismissed the Plaintiff's suit so far as the property held to be the self-acquired property of the defendants was concerned. It is, therefore, clear that with regard to the property which is the subject-matter of the appeal to the Privy Council, the decisions of both the Courts are concurrent. It was possible to have argued, though it was not argued here, that the decisions of the two Courts are different. The trial Court had held that the entire suit property was the joint family property, whereas the High Court has held that the bulk of the property was the self-acquired property of the contending defendants. But it has been authoritatively decided that the word “decision” in para 3, s. 110 of the Code of Civil Procedure means a decree and not a judgment. See Rajah Tasadduq Rasul Khan v. Manik Chand Therefore, though the reasons for the ultimate decision of the suit may be entirely different, the decree of the trial Court as well as the appellate Court is the same, viz. it dismissed the suit of the plaintiff with regard to the self-acquired property. Mr. Bengeri, the learned advocate for the petitioner, relies upon the Privy Council case in Annapurnabai v. Ruprao and contends that as the decree of the trial Court is varied by the High Court, he is entitled as a matter of right to go in appeal to the Privy Council whether that portion of the decree of the High Court varying the decree of the trial Court is in favour of the petitioner or not. And Mr. Bengeri also relies upon two full bench cases of Patna and Allahabad High Courts (Raja Brajasunder Deb v. Raja Rajendra Narayan Bhanj Deo) and Jaggo Bai v. Harihar Prasad Singh where this Privy Council ruling in Annapurnabai v. Ruprao has been interpreted. According to those two High Courts whenever there is a variation of the decree by the High Court, whether it is in favour of the petitioner or not, the petitioner gets a right to appeal to the Privy Council without being put to the necessity of showing any substantial question of law. But the Bombay High Court in Kapurji Maganiram v. Pannaji Debicand has taken the view that if the variation is in favour of petitioner, it cannot be said that the decree of the High Court has varied the decree of the trial Court within the meaning of s. 110, Civil Procedure Code. The head-note in that case runs thus:—
“Under s. 110 of the Civil Procedure Code, to warrant the grant of leave to appeal to His Majesty in Council, there must he a substantial question of law in cases where there are concurrent findings of facts which are appealed from. It is not enough that the decree of the lower Court is varied by the High Court on points not covered by the appeal to the Privy Council.”
In this case Annapurnabai v. Ruprao was cited and their Lordships did not interpret the ruling to mean that any slight variation of the decree with regard to the property, which is not the subject-matter of the appeal before the Privy Council would entitle the petitioner to go in appeal. This decision is binding on us. And again the Madras and Lahore High Courts in Kailasa Tever v. Kasivishwanatham and Wahid-ud-din v. Makhan Lal have held that if the decree is varied in favour of the petitioner and if the petitioner goes in appeal against that part of the decree which confirmed the decision of the trial Court, then the decree of the High Court is one of affirmance and not of variation.
Now, looking broadly it appears to me that the view taken by the Bombay, Madras and Lahore High Court is the correct one. Supposing the entire appeal has been dismissed, it would not have given the petitioner a right to appeal and it would be very strange that if the appeal is partly allowed in his favour, he gets the right to appeal as a matter of course. We, therefore, think that the petitioner in this particular case is not entitled to a certificate unless he satisfies us that there is a substantial point of law.
It is contended by Mr. Bengeri that it is shown here that there was some nucleus which was yielding an income of Rs. 100 to Rs. 125 and his contention is that the moment he proves that there was some nucleus there should be a presumption that all the property of the family which has been subsequently acquired is the joint family property, whether the nucleus was capable of yielding any income or not. But this is not what the cases have laid down. The latest pronouncement of their Lordships of the Privy Council is in Appalaswami v. Suryanarayanamurti. There Sir John Beaumont giving the judgment on behalf of the Board has observed (p. 192):—
“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 is question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property.”
And he has relied upon the cases Babubhai Girdharlal v. Ujamlal Hargovandas, and Vythianatha v. Varadaraja. In the last mentioned case it is laid down:—
“A party alleging that property held by an individual member of a joint Hindu family is joint family property must show that the family was possessed of some nucleus with the aid of which the property in question could have been acquired. Mere existence of a nucleus, however small or insignificant, is not enough. It should be shown that the nucleus was of such value as could have reasonably formed the basis of the acquisition of the property in question. If this is shown, and only then, the onus shifts to the party alleging self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate.”
These two cases have been quoted with approval in Appalaswami v. Suryanarayanamurti, We have, therefore, to see whether in this case the nucleus was such as would have enabled the defendants to acquire property out of the income thereof. It has been found that the annual income of the nucleus was only Rs. 100 or Rs. 125. This could have been hardly sufficient for the maintenance of the family and it is clear that out of the income of this property the defendants could not have acquired the property in dispute. We, therefore, hold that the petitioner has failed to show that the appeal involves any substantial question of law.
The rule is, therefore, discharged with costs.
Rule discharged.
J.G.R
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