As/1365/1988 Of The Income Tax Officer v. Tippala Yerrayamma

THE HON'BLE SRI JUSTICE P.S.NARAYANAA.S.No.1365 of 1988Date : 18-6-2010 Between :The Income Tax Officer,A.Ward, Visakhapatnam .. AppellantAndTippala Yerrayammaand another .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANAA.S.No.1365 of 1988 ORDER: 1. This Appeal is filed as against the Decree and Judgmentmade in O.S.No.161/81 on the file of learned Principal SubordinateJudge, Visakhapatnam whereby the suit filed by the Income TaxOfficer, Visakhapatnam – the appellant herein/plaintiff, was dismissed. The said suit was filed to set aside the claim order made by the TaxRecovery Officer in O.P.No.104/79-80 dated 29-4-1980. The learnedPrincipal Subordinate Judge, Visakhapatnam in the light of therespective pleadings of the parties, having settled the Issues,ultimately came to the conclusion that the order under challenge doesnot suffer from any illegality and accordingly the suit was dismisseddirecting the parties to bear their own costs. Aggrieved by the same,the present Appeal had been preferred. 2. The learned Standing Counsel representing the appellanthad taken this Court through the respective pleadings of the partiesand the evidence available on record in proper perspective. Thelearned Counsel also would maintain that the learned Judge shouldhave held on Issue No.1 that Items 2 and 3 of the plaint scheduleproperties are purchased in the name of the 1[st] defendant benami forthe benefit of the joint family of the 2[nd] defendant. The Counsel alsohad commented relating to the findings relating to perfection of title byadverse possession as well. The learned Standing Counsel alsowould maintain that in the facts and circumstances of the case,inasmuch as the 2[nd] respondent was a partner representing the jointfamily as such, the findings are to be set aside and the Appeal to beallowed. 3. 3. Per contra, the learned Counsel representing therespondents had taken this Court through the findings recorded by thelearned Principal Subordinate Judge, Visakhapatnam and would mthat in the light of the convincing findings recorded by the trial Court,this is not a fit matter to be interfered with and the Appeal to bedismissed. 4. Heard the Counsel on record. 5. Before taking up further discussion on the Points forconsideration which would arise in this Appeal, it may be appropriateto have a glance at the respective pleadings of the parties, theevidence available on record and the findings recorded by the trialCourt in nutshell. 6. The parties hereinafter would be referred to as ‘plaintiff’ and‘defendants’ as shown in O.S.No.161/81 aforesaid. 7. Pleadings of the parties : Averments made in the plaint : The plaintiff/Income Tax Officer, A-Ward, Visakhapatnam,pleaded in the plaint as hereunder:- The 2[nd] defendant is the husband of the 1[st] defendant and he isthe kartha and father-manager of the joint family consisting of himselfand his four sons viz., T.Ch.Appa Rao, T.Appalaswamy, T.GuruMurthy, T.Venkataramana and his wife the 1[st] defendant and his twodaughters. The 2[nd] defendant had inherited from his fatherconsiderable properties, movable and immovable, including Acs.12-00of agricultural land, a house at Venkannapalem and considerable cashall having fallen to his share in the partition with the brothers. Besidesthe above mentioned ancestral properties the defendant the 2[nd]defendant as karta of Hindu Undivided Family, further made certainacquisitions including the suit schedule properties with the aid of thejoint family nucleus and from the income of the joint family propertiesand its assets. Besides the joint family properties referred to above, the 2[nd] defendant had no personal properties and he never possessedany movable or immovable properties in his personal capacity. Besides the above mentioned properties, the family was runningarrack business since 1963-64 onwards. The 2[nd] defendant was notemployed and was only managing the arrack business of the HinduUndivided Family as its kartha and had been maintaining himself andhis family from out of the income of the joint family properties which heis managing as the kartha and the father-manager of the Hindu JointFamily consisting of himself and his family. While so, in the year 1971,in his capacity as the Joint Family manager, he entered into apartnership with 18 others known as M/s. Visakha Gowda Associationwhich carried on business in Abkari contracts by investing the Hindudivided family funds. The firm M/s.Visakha Gowda Association, now adissolved firm, initially filed a return on 28-8-1971 disclosing a loss ofRs.12,185.00 for the Assessment Year 1971-72. A revised return ofincome was filed by the said firm on 26-11-1971 finally disclosing anincome of Rs.88,890/-. Similarly a return was filed on 19-12-1972 for1972-73 disclosing an income of Rs.72,903/- which was furtherrevised under a return dt.26-3-1975 disclosing an income ofRs.73,403/-. The assessment for the said years could only becompleted by the plaintiff on 28-2-1976 on account of the delayingtactics adopted and on account of the failure of the production of theaccounts and the required data by the said firm in proper time for theassessment years 1971-72 and 1972-73. Finally the firm wasassessed for a total amount of Rs.12,61,921/- as tax and penalties forthe said two assessment years. The properties belonging to the jointfamily were got attached by the plaintiff for realization of the tax arrearsof M/s. Visakha Gowda Association of which the 2[nd] defendant is apartner in the capacity as kartha or manager of the joint family forhimself and his sons. The 1[st] defendant, who is the wife of the 2[nd]defendant, filed objection petition on 30-6-1979 before the TaxRecovery Officer in O.P.No.104/79-80 objecting to the attachment of the plaint schedule properties by setting up the rights of the joint familyin the first instance and later by setting up her own rights in thebuilding proper. In the said objection petition she had also contendedthat the house properties were set apart for the purpose of security andmaintenance and also as marriage provision for her daughters whileadmitting that the said houses were constructed with joint family fundsby her husband, the 2[nd] defendant. The learned Tax Recovery Officerwhile rejecting the contention of the 1[st] defendant that the properties(house properties) were set apart for maintenance of the 1[st] defendantand for marriage purposes of the daughters, erroneously allowed theclaim of the 1[st] defendant regarding half share of Item No.1 houseproperty, situate on Gajuwaka-Anakapalle road on the ground that sheperfected title by adverse possession to the same. Similarly the TaxRecovery Officer, without any justification and contrary to the admittedfacts, held that the site under the buildings covered by Item Nos.2 and3 (i.e., the house sites situate at Balacheruvu road) constituted thestreedhana property of the 1[st] defendant and accordingly raised theattachment with respect to the suit schedule properties. Theconclusions arrived at by the Tax Recovery Officer with regard to thefact that the 1[st] defendant perfected title and became the owner of 50%of the house property on account of adverse possession is contrary tolaw and established facts and probabilities of the case; that the plea ofadverse possession was an afterthought and subsequent developmentand was never set up originally in the petition filed by her. In fact, ithad been established by positive evidence and admissions by theparties that the 1[st] defendant had neither the capacity nor personalincome to purchase the sites in question and to invest any monies forconstruction; that the sites covered by item Nos.2 and 3 werepurchased by the 2[nd] defendant as kartha of the family with the jointfamily funds and the buildings were also constructed from the Hindu Undivided Family funds and the rents received from the propertieswere also disclosed by the 2[nd] defendant and in the return filed by theHindu Undivided Family and the property was right through treated asjoint family property and as such the findings of the Tax RecoveryOfficer that the 1[st] defendant became entitled to 50% of the housecovered by item No.1 of the plaint schedule and consequential raisingof attachment to the item No.1 of the plaint schedule is not proper andcorrect. Similarly, the finding of the Tax Recovery Officer that the 1[st]defendant is the owner of the sites covered by item Nos.2 and 3 iscontrary to law, the established fact and evidence and probabilities. The vacant sites covered by item Nos.2 and 3 were purchased benamifor the benefit of the joint family by investing the joint family funds anda sale deed was simply taken in the name of the 1[st] defendant whohappens to be the wife of the kartha of the family. As alreadysubmitted, the sale proceeds for the purchase of the site flowed fromthe Hindu Undivided Family and the 1[st] defendant never had anyindependent source of income or capacity. The purchase of the suitschedule sites in the name of the 1[st] defendant is benami for thebenefit of the Hindu Undivided Family and the benami nature of thetransaction is clear from the investment of the Joint family funds in theconstruction of the buildings thereon and from the treatment of the saidproperty by the defendants as joint family property. As such the plaintschedule properties are Hindu Undivided Family properties of the 2[nd]defendant’s family and that the 1[st] defendant has absolutely no right orinterest in the same and that the plaintiff is entitled to proceed againstthe said properties in realization of the tax dues of the firm M/s.Visakha Gowda Association of which the 2[nd] defendant, in thecapacity as the kartha and father-manager of the Hindu UndividedFamily had joined the business of the firm as a partner and hence thesuit to set aside the order passed by the Tax Recovery Officer inO.P.No.104/79-80 dt.29-4-1980 in favour of the 1[st] defendant upholding her rights to the suit schedule properties. Averments made in the written statement filed by the 1stdefendant: upholding her rights to the suit schedule properties. Averments made in the written statement filed by the 1stdefendant: It is stated that the allegation that the 2[nd] defendant inheritedproperty is admitted but it is stated that it is not correct to say that theyare considerable properties or that the cash inherited is alsoconsiderable. The cash was about Rs.10,000/-. Further it is statedthat it is no doubt that the 2[nd] defendant made certain acquisitions withthe joint family nucleus. It is also admitted that apart from the jointfamily properties there is no other ancestral property. The allegationthat the family was running arrack business since 16-3-1964 had beendenied as not correct and it is stated that only milk business wascarried on. It is further stated that the further allegation that the saidbusiness was carried on by the 2[nd] defendant as the manager of theHindu joint family also had been denied as not correct. It may be thatthe 2[nd] defendant had been utilizing the income from the joint familyproperty for the keeping of the family but it is not correct to say that theincome from the arrack business was used for the family purposes. The further allegation that in the year 1971 the 2[nd] defendant enteredinto a partnership with 18 others as a firm known as “Visakha GowdaAssociation” in his capacity as joint family manager is absolutelyincorrect. It is admitted that the 2[nd] defendant is a partner in the saidfirm but only in his capacity as an individual. It is further stated that tothe best of information of the 1[st] defendant, the 2[nd] defendant neverentered into a partnership in his capacity as manager of the jointfamily. The 1[st] defendant is not aware of the several assessmentproceedings etc., referred in para 3(c) of the plaint. It is howeveradmitted that an attachment was effected on the plaint scheduleproperty and it was mentioned that the attachment was for income taxarrears of M/s. Visakha Gowda Association. The 1[st] defendantreiterated that the 2[nd] defendant was not a partner of the firm in his capacity as kartha or the manager of the joint family. It is admitted thatthe 1[st] defendant filed objection on 30-6-1979 before the TaxRecovery Officer and it was also admitted that she set up her rights inthe property. In the objections raised by the 1[st] defendant on 30-6-1979, she had only mentioned about the interests of the joint family butthat does not mean that the 1[st] defendant’s right in the said propertynot having been mentioned in the objections raised is deemed to havebeen lost. The order passed by the Tax Recovery Officer is quite validand proper and it cannot be taken exception to. Insofar as item No.1 ofthe plaint schedule property is concerned, half the site was acquiredby her under a registered sale deed dated 19-2-1960 fromG.Venkayyamma and the document was registered as 384/60. In fact,the said Venkayyamma is the mother of the 1[st] defendant and by thenthere was already a house consisting of two rooms etc., and thepremises was enclosed by a compound wall. The remaining half ofthe property belonged to Pilaka Mallayamma, the sister of the 1[st]defendant and she conveyed her interest under a registered sale deeddated 21-8-1961 in favour of the 2[nd] defendant. Therefore on itemNo.1 of the plaint schedule property some remodeling was done in theyear 1964-65 and a first floor was constructed in 1966-67 and the 1[st]defendant contributed half the amount for the construction of the saidproperty and since 1964-65 the premises was leased out and theincome was also being enjoyed in equal halves by both thedefendants and her streedhana and other income was utilized forconstruction of the same and she is absolutely entitled to one half andin any view she was exclusively enjoying the same in her own rightenjoying half of the property to the exclusion of her husband and thesons are entitled to the other half and in that view she had acquiredalternatively title by adverse possession. For the said constructions,he raised money by sale of the gold jewellery and also by investing thecash belonging to her. So far as Item No.2 of the plaint schedule is concerned, the site had been acquired by the 1[st] defendant under aregistered sale deed dated 29-1-1964 executed by Md.Miskin Saheband the said site is the absolute property of the 1[st] defendant andsubsequently on the said site a three storeyed structure had beenconstructed by the 1[st] defendant with her own income and the propertyis also assessed to tax in the name of the 1[st] defendant and the 1[st]defendant is the exclusive owner of the site. Similarly, so far as thethird item of the plaint schedule property is concerned, the title to thesame had been acquired by the 1[st] defendant under a registered saledeed dated 24-6-1964 and the 1[st] defendant alone is exclusivelyentitled to the said site. In that view of the matter the decision of theTax Recovery Officer holding that the site belongs to the 1[st] defendantcannot be found fault with. The Tax Recovery Officer on aconsideration of the relevant material placed before him was fullysatisfied that Items 2 and 3 of the plaint schedule property belonged tothe 1[st] defendant exclusively having been purchased from out of herstreedhana monies and the very fact that the sale deeds of the year1964 under which items 2 and 3 had been purchased had been in hername and subsequently she was assessed to tax on the same clearlyproves that she is the owner of the property. The contention of theplaintiff that the decision reached by the Tax Recovery Officer isopposed to the admitted facts, is not at all correct. There is nothingwrong in the plea of adverse possession on being raised more sowhen it was clearly averred that in respect of Item 1 of the plaintschedule property, she had spent her money and raised theconstruction and only as an alternative plea the plea of adversepossession is raised. The allegation that the 1[st] defendant had not thecapacity to raise the money for the purchase of the site or to raise anymoney for the construction of the building is absolutely false. Theallegations that the sites covered by items 2 and 3 were purchased bythe 2[nd] defendant with the aid of the joint family funds are all false. The allegations that it was all along treated as a joint family property isnot correct. In so far as item-1 is concerned, for the reasons alreadymentioned, one half of the property is owned by her and as such thefinding of the Tax Recovery Officer does not call for any interference. The allegation that items-2 and 3 are purchased benami is also notcorrect. The assertion that the sale deed was nominally taken in thename of the 1[st] defendant because she happens to be the wife of the2[nd] defendant is not at all correct. The assertion that the 1[st] defendanthad no independent source of income is palpably untrue. Her parentsare rich and from time to time they were giving her sufficient funds. Inaddition to it, she has lot of jewellery also, portions of which weredisposed of by her for the acquisition of immovable property. Theallegation that the 1[st] defendant has no interest in any of the threeitems of the plaint schedule is absolutely incorrect. The plaintiff is notentitled to proceed against the properties for the tax arrears allegedlydue from the firm of Visakha Gowda Association. The 1[st] defendantowns considerable other properties which will clearly prove that shehad not only the capacity to buy the sites covered by items 1 to 3 butalso to raise the building on item No.1. The suit as framed is notmaintainable and the suit claim is also barred and hence the suit maybe dismissed with costs. 8. The 2[nd] defendant also filed a written statement on similarlines and hence the averments in the said written statement need notbe repeated again. 9. Issues settled by the trial court : The trial court settled the undernoted Issues : 8. The 2[nd] defendant also filed a written statement on similarlines and hence the averments in the said written statement need notbe repeated again. 9. Issues settled by the trial court : The trial court settled the undernoted Issues : (a)Whether Items 2 and 3 of the suit properties were purchased inthe name of 1[st] defendant benami for the benefit of the jointfamily of 2[nd] defendant by investing joint funds ?the name of 1[st] defendant benami for the benefit of the jointfamily of 2[nd] defendant by investing joint funds ? (b)Whether 1[st] defendant perfected title to the half share in Item-1of suit property by adverse possession ?of suit property by adverse possession ? (c)Whether the 2[nd] defendant entered into partnership business styled as Visakha Gowda Association in his individual capacityor as Kartha of joint family ? (d)Whether the orders of the Tax Recovery Officer are liable to beset-aside ?set-aside ? (e)Whether the suit is barred by time ? (f)To what relief ? 10. Evidence available on record : Witnesses examined for plaintiff : PW-1 – Sri P.Venkateswara Rao, Inspector of Income Tax, A-Ward, Visakhapatnam Visakhapatnam Witnesses examined for defendants : DW-1 – Tippala Apparao (2[nd] defendant) DW-2 – G.Appanna ReddiDW-3 – G.SatyaraoDW-4 – Kaki ApparaoDW-5 – P.Bhoolokareddi Documents marked for plaintiff : Ex.A-1 dated 26-12-1970 – Photostat copy of partnership deedentered into between Perumalla Raghavarao and 18 othersentered into between Perumalla Raghavarao and 18 others Ex.A-2 – dated 23-3-1971 – Photostat copy of application forregistration of M/s. Visakha Gowda Association firm for purposeof Income taxregistration of M/s. Visakha Gowda Association firm for purposeof Income tax Ex.A-3 dated 30-6-1979 – Objection Petition of 1[st] defendant to TaxRecovery Officer, VisakhapatnamRecovery Officer, Visakhapatnam Ex.A-4 dated 3-8-1980 - -do- Ex.A-5 dated 29-4-1980 – Copy of order of Tax Recovery Officer,Visakhapatnam in O.P.No.104/79-80 filed by 1[st] defendantVisakhapatnam in O.P.No.104/79-80 filed by 1[st] defendant Ex.A-6 dated 12-8-1976 – Photostat copy of Return of Incomesubmitted by 2[nd] defendant for Asst. Year 1964-65submitted by 2[nd] defendant for Asst. Year 1964-65 Ex.A-7 dated 12-8-1976 - -do- for 1965-66 Ex.A-8 dated 12-8-1976 - -do- for 1966-67 Ex.A-9 dated 12-8-1976 -do- for 1967-68 Ex.A-10 dated 30-3-1977 – Photostat copy of Asst. order for Asst.Year 1969-70Year 1969-70 Ex.A-11 dated 30-3-1977 - -do- for 1973-74 Ex.A-12 dated 13-12-1977 – Photostat copy of Return of Incomesubmitted by 2[nd] defendant for Asst. Year 1977-78submitted by 2[nd] defendant for Asst. Year 1977-78 Ex.A-13 dated 27-7-1979 - -do- for 1978-79 Ex.A-14 dated 20-11-1976 – Application of 2[nd] defendant toIncome Tax Officer, C Ward, VisakhapatnamIncome Tax Officer, C Ward, Visakhapatnam Ex.A-15 – Statement of investments of 2[nd] defendant and others Documents marked for defendants : Ex.B-1 dated 21-2-1986 – Copy of order of Asst. Commissioner ofIncome Tax, Visakhapatnam for 1972-73Income Tax, Visakhapatnam for 1972-73 Ex.B-2 dated 31-3-1984 – Photostat copy of Assessment order forAsst. Year 1971-72Asst. Year 1971-72 Ex.B-3 dated 31-3-1984 - -do- of Income Tax Officer, Award,Visakhapatnam for 1972-73Visakhapatnam for 1972-73 Ex.B-4 dated 19-2-1960 – Photostat copy of Registration extract ofsale deed for Rs.400/- executed by Gudla Venkayyamma infavour of 1[st] defendant sale deed for Rs.400/- executed by Gudla Venkayyamma infavour of 1[st] defendant Ex.B-5 dated 29-1-1964 - -do- for Rs.1500/- executed byMohammad Saheb in favour of 1[st] defendantMohammad Saheb in favour of 1[st] defendant Ex.B-6 dated 24-6-1964 - -do- for Rs.1000/- executed byG.Nagireddi in favour of 1[st] defendantG.Nagireddi in favour of 1[st] defendant Ex.B-7 dated 28-2-1976 – Photostat copy of Assessment order forfor 1971-72for 1971-72 Ex.B-8 dated 28-2-1976 - -do- for 1972-73 11. Findings recorded by the trial court in nutshell : Ex.B-3 dated 31-3-1984 - -do- of Income Tax Officer, Award,Visakhapatnam for 1972-73Visakhapatnam for 1972-73 Ex.B-4 dated 19-2-1960 – Photostat copy of Registration extract ofsale deed for Rs.400/- executed by Gudla Venkayyamma infavour of 1[st] defendant sale deed for Rs.400/- executed by Gudla Venkayyamma infavour of 1[st] defendant Ex.B-5 dated 29-1-1964 - -do- for Rs.1500/- executed byMohammad Saheb in favour of 1[st] defendantMohammad Saheb in favour of 1[st] defendant Ex.B-6 dated 24-6-1964 - -do- for Rs.1000/- executed byG.Nagireddi in favour of 1[st] defendantG.Nagireddi in favour of 1[st] defendant Ex.B-7 dated 28-2-1976 – Photostat copy of Assessment order forfor 1971-72for 1971-72 Ex.B-8 dated 28-2-1976 - -do- for 1972-73 11. Findings recorded by the trial court in nutshell : The learned Principal Subordinate Judge after referring toseveral decisions ultimately came to the conclusion that in the factsand circumstances of the case it cannot be said that the 2[nd] defendant participated in the business in question as kartha or manager of thejoint family and also further came to the conclusion that the Itemsstanding in the name of the 1[st] defendant cannot be said to be havingkept in her name benami and further recorded certain further findingsrelating to the plea of adverse possession as well and ultimately cameto the conclusion that the order under challenge does not suffer fromany illegality and dismissed the suit. 12. In the light of submissions made by the Counsel on record, the following Points arise for consideration in this Appeal : (a)Whether the findings recorded by the learned PrincipalSubordinate Judge, Visakhapatnam dismissing the suit are tobe confirmed or to be disturbed or set-aside in the facts andcircumstances of the case ?Subordinate Judge, Visakhapatnam dismissing the suit are tobe confirmed or to be disturbed or set-aside in the facts andcircumstances of the case ? (b)If so to what relief the parties would be entitled to ? 13. Point No.1:The 2[nd] defendant is the husband of the 1[st]defendant and the 2[nd] defendant joined as partner in M/s.VisakhaGowda Association. It is the case of the plaintiff that the 2[nd] defendantjoined the said Association as one of the partners ofM/s.VisakhaGowda Association representing the Hindu Undivided Family, in shortreferred to as “HUF" but however specific stand taken by thedefendants is that the 2[nd] defendant joined as a partner in the saidAssociation in his individual capacity and not representing the jointfamily. It is also the specific case that the sites covered by Items 2 and3 were purchased by the 1[st] defendant herself and hence the plea ofbenami cannot be sustained. The learned Judge after appreciating theevidence available on record referred to the undernoted decisions : Sidramappa Vs. Babajappa[[1]],P.Murugavva Vs.S.Somasundaram[[2]], Pichappa Vs. Chokalingam[[3]], RamaKrishna Transport Vs. Income Tax Commissioner[[4]],Shanmukeshwararao Vs. Venkatappaiah and sons[[5]], BenarasBank Vs. Hari Narayan[[6]], A.Robini Vs. Akak Sethumadhavan[[7]],Kanakaratnamala Vs. Logenadha[[8]], G.Narayana Raju Vs. Chamarju[[9]], Lakshmi Ammal Vs. Meenakshi Ammal andothers[[10]]. The learned Judge appreciated in elaboration the oral evidence ofPW-1 and also the oral evidence of DW-1, DW-2, DW-3, DW-4 andDW-5 as well and also recorded further findings in relation todocumentary evidence as well – Exs.A-1 to A-15 and Exs.B-1 to B-8as well and ultimately came to the conclusion that the order underchallenge does not suffer from any illegality whatsoever andaccordingly dismissed the suit. Chamarju[[9]], Lakshmi Ammal Vs. Meenakshi Ammal andothers[[10]]. The learned Judge appreciated in elaboration the oral evidence ofPW-1 and also the oral evidence of DW-1, DW-2, DW-3, DW-4 andDW-5 as well and also recorded further findings in relation todocumentary evidence as well – Exs.A-1 to A-15 and Exs.B-1 to B-8as well and ultimately came to the conclusion that the order underchallenge does not suffer from any illegality whatsoever andaccordingly dismissed the suit. 14. It is true that the 1[st] defendant had not chosen to enter intothe witness box and much comment had been made on this aspect.However the 2[nd] defendant examined himself as DW-1 and theevidence of DW-2, DW-3, DW-4 and DW-5 also is available on recordwhich would clearly establish the advancement of the amounts andhow DW-1 entered into the said partnership as a partner only in hisindividual capacity. The learned Judge in fact had taken intoconsideration the Returns of Income exs.A-6, A-7, A-8, A-9, A-12 andA-13 and observed certain discrepancies though HUF had beenreferred to and ultimately came to the conclusion that by that itself itcannot be said that the 2[nd] defendant entered into the said partnershiprepresenting the HUF. The evidence of DW-2 to DW-5 being clearand categorical, the same had been appreciated and positive findingshad been recorded in this regard. Exs.B-1 to B-8 also had been takeinto consideration. In the light of elaborate and convincing findingsrecorded by the trial court, this Court is not inclined to disturb the saidfindings. 15. On the aspect of plea of benami also, the learned Judgerecorded elaborate reasons and arrived at the correct conclusion.Even on the aspect of the plea of adverse possession or perfection oftitle, in the light of convincing reasons recorded by the trial court, thisCourt is not inclined to disturb the said findings. 16. In the decisionreferred(1) supra where the father carried onfamily kulachar of dyeing without any aid of ancestral nucleus andthough the son assisted him in the business, it was held that the saiddyeing business cannot be called family trade and subsequent startingof clothes business is not an extension of the trade. 17. In the decision referred (2) supra it was held that there is nopresumption that a business carried on by a member of a joint family isthe joint family business or is there is any presumption that a businesscarried on by such a member in partnership with a stranger is a jointfamily business and there is no presumption that a business started byeven the manager is a joint family business but if the joint family fundshad been utilized in opening a new branch, then the new branch willbe regarded as part of the old business. 18. In the decision referred (3) supra it was held that where themanger of a Hindu joint family entered into partnership with a stranger,the other members do not ipso facto become partners. 19. In the decision referred (4) supra it was held that where themanaging member of a joint Hindu family enters into partnership with astranger in relation to a business whose capacity in whole or in part isderived from the property or funds of the joint family, the family as aunit or the entire body of the family members do not ipso facto becomepartners in that partnership business and partnership will be confinedto the strangers and such of the members of the family who actuallyentered into partnership with them and the members of the family intheir personal or individual capacity can quoad their separate propertyenter into partnership with the kartha of the joint family who representsthe joint family. 20. In the decision referred(5) supra it was held : “The principles that emerge from a review of the abovedecisions are that the joint family as such cannot become apartner in the partnership firm and the karta or co-parcenerscan become partners of the firm representing the joint family.The partners alone have to be looked into for the purpose of 20. In the decision referred(5) supra it was held : “The principles that emerge from a review of the abovedecisions are that the joint family as such cannot become apartner in the partnership firm and the karta or co-parcenerscan become partners of the firm representing the joint family.The partners alone have to be looked into for the purpose of the partnership firm or for the transactions with the public. In asituation where a karta or a co-parcener is a partner in thepartnership firm the profits in such a firm belong to the jointfamily and in the event of the assessment under the Income-tax act they are liable to be assessed in the status of the jointfamily. Apart from the other circumstances to get at the factwhere the karta or the co-parcener is a partner representingthe family the crucial consideration is whether the joint familyfunds have been utilised for the pnrpose of becoming a partnereither by way of capital in the partnership firm or otherwise.” 21. In the decision referred (6) supra it was held that thebusiness started by father as manager of the family cannot be said tobe ancestral so as to render the minors interest in the joint familyproperty liable for the debt incurred for the business. 22. In the decision referred (7) supra it was held that wherethere is no proof that the business was the family business and not anew or independent business of the kartha, the loan taken for suchbusiness could not be said to be for the binding necessities or for thebenefit of the family. 23. In the decision referred (8) supra it was held that whereconsideration for sale transaction proceeded for husband and hissubsequent conduct showing his admission that title to the propertyvested in wife, the purchase by wife cannot be held to be benami forhusband but she is herself the owner of the property and the fact thatthe husband was in possession and management of the property orthat he was receiving the rents does not affect the position inasmuchas in ordinary Hindu families property belonging exclusively to afemale member would also be normally managed by the manager ofthe family. 24. In the decision referred (9) supra it was held that it is wellestablished that there is no presumption under Hindu law that abusiness standing in the name of any member of the joint family is ajoint family business and unless it could be shown that the business inthe hands of the coparcener grew up with the assistance of the joint family property or with joint family funds or with the earnings of thebusiness were blended with joint family estate, the business remainsfree and separate. 25. In the decision referred (10) supra it was held that there isno presumption of doing joint family business merely because thebusiness is in the name of a member of a joint family. 26. In the light of the aforesaid legal position and also in thelight of the clear findings recorded on careful appreciation of theevidence of PW-1 apart from Exs.A-1 to A-15 and also the evidence ofDW-1 well supported by DW-2, DW-3, DW-4 and DW-5 and Exs.B-1 toB-8, this Court does not see any reason to disturb the said findings andaccordingly the said findings are hereby confirmed.27. Accordingly the Appeal shall stand dismissed. Buthowever in the peculiar facts and circumstances, let the parties beartheir own costs. _____________________ Justice P.S.Narayana Date : -6-2010 L.R. copy to be marked : YES / No AM [1]AIR 1962 Mysore 38[2]AIR 1957 Madras 100[3]AIR 1934 P.C. 192[4]AIR 1968 A.P. 34[5]1986(2) APLJ 35[6]AIR 1932 P.C. 182[7]AIR 1978 Kerala 119[8]AIR 1965 S.C. 271[9]AIR 1968 S.C. 1276[10]1975 MLJ 199