Bombay High Court
Suresh vs Kulwant Singh on 16 December, 2013
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.156/1998
1. Suresh s/o Gadibabu Bhambal,
aged about 44 years, occ. agriculture.
2. Ramesh s/o Gadibabu Bhambal,
aged about 41 years, occ. agriculture.
3. Suman wd/o Wamanrao Bhambal,
aged about 36 years, occ. household.
4.
Sanjay s/o Wamanrao Bhambal,
aged about 26 years, occ. service.
5. Shashikant s/o Wamanrao Bhambal,
adult, occ. service.
6. Smt. Chanibai wd/o Ganpatrao Sambre (dead).
LRs of Appellant No.6.
6-A: Smt. Panchfulla w/o Vitthalrao Dhewle,
aged about 45 years, Occ: Household,
resident of Tiwasa, Village Sitargaon,
District Amravati.
6-B: Smt. Nani w/o Rameshrao Tarke,
aged about 40 years, Occ: Household,
resident of Talegaon, Tahsil Talegaon,
District Amravati.
Nos.1 to 6 all r/o Tiwasa, Village Sitargaon,
Dist. Amravati.
7. Smt. Durgabai w/o Suryabhanji Tawle,
aged about 34 yrs. occ. nil r/o Chhindwara (M.P.)
8. Smt. Kantabai w/o Wamanrao Tekade,
aged about 30 years, occ. nil r/o Paradsingha,
Tah. Savner, Dist. Nagpur.
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9. Vasanta s/o Gadibabu Bhambal
aged about 59 years, occ. agriculturist
r/o Peth Budhwar, Katol, Tah. Katol,
Dist. Nagpur. ....... APPELLANTS
...V E R S U S...
1. Smt. Nagabai wd/o Janbaji Bhambal,
aged about 83 yrs. occ. household.
(deleted as per court order dated 05.08.2002).
2. Baburao s/o Janbaji Bambhal (dead).
LRs of Respondent No.2.
a) Thakkubai wd/o Baburao Bhambal,
aged about 65 years, occ. household,
resident Bhutia Darwaja, Dasara Road,
Mahal, Nagpur.
b) Smt. Lata wd/o Baburao Bhambal,
aged about 52 years, occ. service,
resident Bhutia Darwaja, Dasara Road,
Mahal, Nagpur.
c) Smt. Pratibha w/o Devaji Bhagwat
Aged about 52 years, Occ. Household
Resident of C/o Baburao Bhambal
Bhutia Darwaja, Dasra Road,
Mahal, Nagpur.
d) Sau Kanchan Shivshankar Awjhe,
aged about 27 years, occ. service,
resident of c/o Baburao Bhambal,
Bhutia Darwaja, Dasra Road,
Mahal, Nagpur.
e) Harshal d/o Baburao Bhambal,
aged about 25 years, occ. nil,
resident Bhutia Darwaja, Dasara Road,
Mahal, Nagpur.
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f) Ravindra s/o Baburao Bhambal,
aged about years, occ. nil,
resident Bhutia Darwaja, Dasara Road,
Mahal, Nagpur. ....... RESPONDENTS
----------------------------------------------------------------------------------------------------
Shri Masood Shareef, Advocate for Appellants.
None for the Respondents.
----------------------------------------------------------------------------------------------------
CORAM: S.B. SHUKRE, J,
DATE: 16 th
DECEMBER, 2013.
ORAL JUDGMENT
1.
The appellants No.1 to 8 are the legal heirs of original
defendant No.1, deceased Gadibabu and appellant No.9 is the original
defendant No.2. Original respondent No.1 Smt. Nagabai wd/o Janbaji
Bhambal (deleted) and original respondent No.2 deceased Baburao s/o
Janbaji Bhambal (through legal heirs) are the original plaintiffs No.1 and
2. For the sake of convenience, parties to the appeal are hereinafter
referred to as plaintiffs and defendants in the order in which they were
arrayed in the suit.
2. Plaintiffs had filed a suit for partition, separate possession
and damages against the defendants. It was their case that plaintiff No.1
was the mother of plaintiff No.2 and Janbaji, the husband of plaintiff No.
1 and father of plaintiff No.2, was the younger brother of defendant No.
1. Defendant No.2 was the son of defendant No.1. Janbaji and
Gadibabu (defendant No.1) were the sons of Bagaji Bhambal. They had
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inherited a land and one house situated at Mouza Katol. These
properties and other acquisitions have been particularly described in
Schedule-A and Schedule-B to the plaint.
3. According to the plaintiffs, two brothers Janbaji and
Gadibabu were joint in estate, residence and earning. Janbaji died on
05.02.1979 at Katol, leaving behind him the plaintiffs who inherited
undivided interest of Janbaji in the joint Hindu family properties as
mentioned in the schedules annexed to the plaint. They submitted that
till the death of Janbaji, there was no partition of joint family and he was
living at Katol in ancestral house along with defendant No.1. They
submitted that Janbaji, being the younger brother of defendant No.1,
focused his attention only on agriculture and defendant No.1 being
educated, looked after outwardly business of the joint family and other
family affairs. They submitted that there was an agricultural field
bearing Survey No.250, area 8.27 acres, inherited by the family of said
two brothers. It was sold by the brothers to one Kisan Domaji Shimpi
vide registered sale deed for a valuable consideration. They submitted
that in the sale deed, name of one Zunya s/o Bagaji Dhangar has been
shown as executant of the sale deed though, it was not necessary to do
so, as he was not the son of Bagaji Bhambal but one Janaji Bobde, the
first husband of Kalawati, with whom Bagaji Bhambal had performed a
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marriage. They submitted that Thakubai was the first wife of Bagaji
Bhambal and since she did not bear any children, Bagaji Bhambal, after
the death of husband of Kalawati, married with her under the Gandharva
form of marriage and this Kalawati, then brought her two sons from her
first marriage namely Zunya and Sadya with her and since that time they
were residing with Bagaji Bhambal. Thye submitted that Zunya had no
right, title or interest in the property of Bagaji Bhambal and therefore, it
was not necessary to show him as executant of the sale deed by which
the ancestral property, field Survey No.250, was sold away in the year
1946.
4. The plaintiffs further submitted that Bagaji Bhambal died in
the year 1920 and some years later on, agricultural field bearing Survey
Nos.82, 71, 74, 75 and 77 (70), together admeasuring about 19.09 acres,
came to be purchased by Gadibabu (defendant No.1) and Janbaji vide
registered sale dated 09.04.1943 for a valuable consideration of
Rs.2600/-. According to plaintiffs, this property was purchased by the
family with the aid and help of the funds, received and derived from the
joint family property and/or joint family earnings. They further
submitted that since the defendant No.1 was the Karta of the joint Hindu
family, he purchased one more field bearing Survey No.81 admeasuring
11.72 acres with the help of joint family earnings by registered sale deed
sa156.98.J.odt 6/27
dated 23.06.1947 in the name of defendant No.2, who was then minor.
This agricultural field was also purchased by defendant No.1 with the
help of joint family funds of the parties to the suit and therefore, this
property was a joint family property of the parties to the suit. Thy
further submitted that there was also ancestral house situated at Mouza
Peth Budhwar, Katol recorded in the name of defendant No.1 and
Janbaji. The plaintiffs thus, submitted that these properties comprising
agricultural fields as described in Schedule-A to the plaint and house
property as described in Schedule-B to the plaint, being joint family
properties and the plaintiffs being the Class-I heirs of the deceased
Janbaji, brother of defendant No.1, were entitled to claim half share in
the whole property. They also claimed that there were some cattle as
described in Schedule-B which were also of the joint family in which the
plaintiffs had their half share.
5. The plaintiffs submitted that after the death of Janbaji, they
had requested defendant No.1 orally to effect the partition of the said
moveable and immoveable of joint family properties, but to no effect.
They also claimed that they had sent registered notice to the defendants
asking for partition and separate possession, but in vain. They further
submitted that the agricultural fields were earning good income as the
defendants had planted 1000 Orange trees which were giving good yield
sa156.98.J.odt 7/27
every year. The plaintiffs therefore, contended that the defendant No.1,
being in exclusive possession and management of the properties, was
liable to render account of the income of the joint family and to give half
share to the plaintiffs in the net profits earned from the agricultural field.
Accordingly, the plaintiffs filed a suit for partition, separate possession
and damages from the defendants.
6. The defendant No.1 resisted the suit and denied that the suit
properties as described in Schedule-A and Schedule-B, excepting the
house property, were ancestral properties. He submit that in the year
1946, after the death of Bagaji, the only agricultural field left behind by
Bagaji was sold by Janbaji, Gadibabu, and Zunya for a consideration of
Rs.1000/-. He submitted that out of this consideration, an amount of
Rs.400/- was paid to Janbaji, while defendant No.1 and Zunya received
Rs.300/- each. He submitted that after the sale of the agricultural field
bearing Survey No.250 in 1946, the only property that remained with
the joint family was a single storeyed house situated at Peth Budhwar,
Katol. He denied that Janbaji and he himself resided together till 1930.
He submitted that in the year 1930, Janbaji separated and along with his
wife Nagabai went to reside in the house Bhimabai in Peth Budhwar,
Katol and since then, he was never joint in estate, residence and earnings
with Janbaji. He admitted that Janbaji died in the year 1979 while
sa156.98.J.odt 8/27
Bagaji died in the year 1920. According to defendant No.1, except for
the half share of the plaintiffs in the house property left behind by
Bagaji, plaintiffs had no right, title or, interest in the rest of the property,
they being the self-acquired properties of defendant No.1. He denied
that field Survey Nos.82, 71, 74, 75 and 77 (70) were purchased by
Janbaji and he himself with the aid of joint family funds. He submitted
that the entire consideration was paid by him alone and name of Janbaji
was shown as a co-purchaser out of love and affection for younger
brother and also to upgrade the position of the younger brother so that
his son could get a suitable match in marriage. According to him, the
purchase of these fields by registered sale deed in the year 1943 in the
joint names of himself and Janbaji was, so far as Janbaji was concerned,
a benami transaction. He submitted that he worked as a Clerk and then
as a Head Clerk in a company at Katol and had independent source of
earning. He submit that agricultural field bearing Survey No.81 was
purchased by him from his own funds and denied that it was purchased
from out of joint family income. He also denied that the cattle were a
joint family property. Thus, except for the ancestral house, all the
properties as mentioned in Schedule-A and B, were denied by defendant
No.1 to be the joint family properties. He therefore, denied that the
plaintiffs were entitled to claim partition and separate possession in
these properties except in the ancestral house property. He also denied
sa156.98.J.odt 9/27
that plaintiffs were entitled for a money decree for damages as claimed
by them in Schedule-C of the plaint.
7. Defendant No.2 adopted the written statement filed by the
defendant No.1.
8. The trial court framed issues, recorded evidence adduced by
the parties and considering the same and arguments advanced on behalf
of the rival parties, the trial court partly decreed the suit declaring that
the plaintiffs were entitled for partition and separate possession of their
half share in the suit properties mentioned in Schedules-A and B to the
plaint and directed the plaintiffs to be put in possession of the same by
the defendants. The trial court however, rejected the claim of the
plaintiffs for damages of Rs.19,500/-. This judgment and decree was
delivered by the trial court on 21.01.1992. The defendants challenged
the same before the Additional District Judge, Nagpur by filing Regular
Civil Appeal No.190/1992. During the course of argument, it was
conceded that the agricultural fields bearing Survey No.82, 71, 74, 75
and 77 (70) were joint family properties and that there was also no
evidence to show that cattle were belonging to the joint family of Janbaji
and defendant No.1. Thus, the argument were restricted to only filed
Survey No.81 and it was found that it was not proved by the defendants
sa156.98.J.odt 10/27
that it was a self acquired property of defendant No.1. Accordingly, the
first appeal was partly allowed and judgment and decree of the trial
court only to the extent of direction that plaintiffs be put in possession of
half of the cattle mentioned in Schedule-B was set aside and rest of the
judgment and decree of the trial court was maintained. The judgment
and decree in this regard was passed by the First Appellate Court on
28.11.1997. Not satisfied with the same, the appellants are now before
this Court in the Second Appeal.
9. This appeal came to be admitted by this Court on
08.07.1998, upon substantial questions of law as carved out in grounds
No.1 to 3, of the grounds of appeal. The substantial questions of law as
disclosed by grounds No.1 to 3 can be stated as follows:
(i) Whether the First Appellate Court could, in law, draw a
presumption under the provision of Section 114 of the
Evidence Act as to the jointness of the family, when there was
no evidence at all to the effect that the defendant no.1 was the
Karta of the alleged joint family?
(ii) Whether a female family member could claim herself to
be a Karta of the joint family, when there was a male member
in the alleged joint family?
(iii) Whether, before decreeing the claim for partition of the
suit property, the courts below ought to have considered as to
whether there was pleading and proof of existence of
coparcenary at the instance of the respondents-plaintiffs?
sa156.98.J.odt 11/27
10. I have heard Shri Masood Shareef, learned counsel for the
appellants (defendants) and I have carefully gone through the paper
book of the appeal and record of the trial court. None appeared for the
respondents (plaintiffs), through duly served.
11. Considering the pleadings and evidence on record, I think it
appropriate to deal with second substantial question of law formulated
in relation to a female member claiming herself to be a Karta of the joint
family in face of a male member present in the joint family. Upon
perusal of the pleadings of the parties and evidence available on record, I
find that it is no body's case that respondent No.1 (plaintiff no.1) had
claimed herself as or had a right to claim as a Karta of the joint family.
The judgments of both the courts below do not refer to any such aspect
of the case, there being none. Therefore, I find that no substantial
question of law on this issue is involved in the case and therefore, the
second substantial question of law has to be answered in the terms that
this appeal does not give rise to any such question of law.
12. Although in this appeal the defendants have prayed for
setting aside of the decrees of the courts below and dismissal of the suit
in it's entirety, during the course of argument, learned counsel for the
appellants-defendants confined himself to only one of the suit lands,
sa156.98.J.odt 12/27
bearing Survey No.81, purchased in the name of defendant No.2 Vasanta
on 23.06.1947, by virtue of registered sale deed vide Exh.72 to say that
this field was in no way a part of the joint family property and was self
acquired property of the defendants, having been purchased from the
own funds of defendant No.1. He submits that the courts below have
committed a serious error of law in drawing presumption of the jointness
of the family even when there was no proof that defendant No.1 was the
Karta of the family. He submits that when no evidence was brought on
record to prove that defendant No.1 was the Karta of the family, courts
below could not have drawn the presumption under the provisions of
Section 114 of the Indian Evidence Act, 1872 as to the jointness of the
family. He further submits, the courts below, by drawing such a
presumption erroneously, have reached a wrong conclusion that said
agricultural field was of the joint family.
13. Under Section 114 of the Indian Evidence Act, 1872 the
Court may presume the existence of any fact which it thinks likely to
have happened. While drawing such a presumption, the Court is under a
duty to take into account common course of natural events, human
conduct and public and private business, in their relation to the facts of
the particular case. What could be the common course of natural events,
human conduct and public and private business would depend on facts
sa156.98.J.odt 13/27
and circumstances of each case and it would not be possible to close-set
them in a formula of universal application. All that is required for
drawing an inference under Section 114, is, court must ascertain
common course of natural events, human conduct and public and private
business in the context of facts of that case and find out how do they
help in inferring existence of one fact on the basis of another set of facts.
This can be best seen from the illustrations to Section 114.
14.
In this case, it is seen from the evidence available on record
that the plaintiffs have proved their case that defendant No.1 was the
Karta of the family till death of Janbaji in the year 1979. Plaintiff No.1
Smt. Nagabai (Exh.59) has stated that defendant No.1 was the Karta of
the family and while her husband Janbaji used to cultivate the suit land,
defendant No.1 used to sell agricultural produce. There is nothing in her
cross-examination to disbelieve her such version. In fact, her such
version is corroborated by documentary evidence available on record.
There is an extract of record of rights vide Exh.67 which shows that as
per the revenue settlement of the year 1954-1955, defendant No.1 is the
Karta of the joint family of Janbaji and defendant No.1. The 7/12
extracts vide Exh.63 to 65 also disclose that the suit lands stood in the
joint names of defendant No.1 and Janbaji as owners thereof.
sa156.98.J.odt 14/27
15. As against said evidence of plaintiffs, defendant No.1
Gadibabu (Exh.78) in his evidence has stated that Janbaji had separated
from his family in the year 1930 itself and till his death, he remained
separated from his family. He has asserted that he was not the Karta of
the joint family. This oral testimony of defendant No.1 is hard to believe
as it is not consistent with the documentary evidence produced on record
by the parties. He has not explained as to how his name has been shown
as Karta of the joint family in the extract of record of rights vide Exh.67.
If, it is to be believed that in 1930 itself Janbaji had started residing
separately with one Bhimabai, as stated by defendant No.1, there was no
reason for defendant No.1 to purchase lands bearing Survey Nos.82, 71,
74, 75 and 77 (70) in joint names of himself and Janbaji 13 years
thereafter or to be precise, on 09.04.1943. He submits in his written
statement that it was done by him out of love and affection for Janbaji
and to save the family honour and in the hope that Janbaji would see
reason and return to family fold leaving Bhimibai with whom he had
started residing since the year 1930, leaving his own wife, the plaintiff
No.1. But, no evidence has been brought on record by defendants to
prove these averments. In fact, the defendants have conceded to the fact
that they have no evidence to show that these lands were not the joint
family properties. Therefore, the fact that in the year 1943 suits lands
were purchased jointly in the names of defendant No.1 and Janbaji only
sa156.98.J.odt 15/27
corroborated the version of plaintiff No.1 that defendant No.1 was the
Karta of the joint family and her such version appears to be more
probable than the version of defendant No.1 that he was not the Karta of
the joint family.
16. Thus, upon consideration of evidence of both sides, it can be
safely said that the plaintiffs have established their case by brining on
record cogent evidence that defendant No.1 was the Karta of the family.
Once, it is proved that defendant No.1 was the Karta of the family, then
there would be no difficulty in drawing the presumption of the jointness
of the family of defendant No.1 and Janbaji by resorting to the provision
of Section 114 of the Indian Evidence Act, 1872. The reason is that
ordinary human conduct and common course of natural events would
tell us that a family would not have a head or Karta unless the members
of the family intend to stay joint and manage their family affairs jointly.
For smooth management of the affairs of a joint family, appointment of a
Karta or head or professing by one of it's members to be Karta or head
would come as a common course of natural events, some thing that
occurs commonly and according to human conduct in similar set of facts.
Therefore, I find that there has been proof brought on record by the
plaintiffs that defendant No.1 was the Karta of the joint family of
defendant No.1 and Janbaji till the death of Janbaji in the year 1979 and
sa156.98.J.odt 16/27
no error of law has been committed by both the courts below in drawing
presumption of jointness of the family by applying the principles
contained in Section 114 of the Indian Evidence Act, 1872. I find no
merit in the argument of learned counsel for the appellants-defendants
in this behalf. The first substantial question of law is answered
accordingly.
17. Shri Masood Shareef, learned counsel for the appellants-
defendants has submitted that even when there is a Hindu joint family,
there is no presumption in law that merely because it is joint, it possess
joint property. He submits that the burden of proving that any particular
property is of joint family, is, therefore, in the first instance upon the
person who claims it to be so and even when it is proved that there is a
coparcenary property, any subsequent acquisition made by members of
the joint family could not be held to be also the joint family property
unless it is proved or admitted that the joint family possess sufficient
nucleus to enable it to make new acquisition from out of the same. He
submits that in this case there has been neither any pleading that there is
a coparcenary property nor any proof that field Survey No.81 is the
coparcenary property and therefore, the courts below ought not to have
decreed the suit of plaintiffs in respect of this particular property. He
also submits that plaintiffs have not established that there was any
sa156.98.J.odt 17/27
nucleus of the joint family and thus failed to discharge their initial
burden and as such courts below have committed a serious error in
shifting the burden of proving field Survey No.81 as self acquired
property upon the defendants. He further submits that courts below
should not have relied upon the so called contradictions between
evidence of D.W. 1 - Gadibabu (Exh.78) and D.W. 2 - Vasanta (Exh.80).
According to him, when the initial burden has not been discharged by
the plaintiffs, weakness of the case of the defendants or their failure to
prove that field Survey No.81 was their self-acquired property, was
inconsequential. In support, he has placed reliance upon the following
cases:
(i) Mudigowda Gowdappa Sankh and others v. Ramchandra Revgowda
Sankh (dead) by his LRs. and another, A.I.R. 1969 SC 1076.
(ii) Rangamal v. Kuppuswami and another, (2011)12 SCC 220.
(iii) Makhan Singh (D) by LRs. vs. Kulwant Singh, AIR 2007 SC 1808.
(iv) D.S. Lakshmaiah and another v. L. Balasubramanyam and another,
AIR 2003 SC 3800.
18. So far as concerned the argument that plaintiffs have not
pleaded any where about existence of coparcenary property. I must say,
learned counsel for the appellants-defendants is not right in saying so.
There have been clear pleadings made by the plaintiffs that the
sa156.98.J.odt 18/27
agricultural lands were the properties of the joint family of defendant
No.1 and Janbaji. However, as regards the proof of these lands, rather
only one land bearing Survey No.81, given the narrowing down of
controversy to only this land, being a part of the joint family properties,
it would be necessary to examine the evidence in the light of the law laid
down by the Hon'ble Apex Court in the aforestated cases cited by the
learned counsel for the appellants-defendants. Before scrutinizing the
evidence, let us see what principles of law are enumerated in these cases.
19. In the case of Mudigowda (supra) the principle laid down by
the Hon'ble Apex Court is that the burden of proving that any particular
property is joint family property, is in the first instance, upon the person
who claims it as a coparcenary property. The Hon'ble Apex Court has
further laid down that if the possession of a nucleus of the joint family
property is either admitted or proved, any acquisition made by a member
of the joint family is presumed to be the joint family property, provided
the nucleus is shown to be adequate so as to make possible the purchase
of the new property from that nucleus (paragraph 6).
20. In the case of Rangamal (supra), the Hon'ble Apex Court has
held that when initial onus is upon the plaintiff to positively establish his
case on the basis of material available and it is not discharged, no
sa156.98.J.odt 19/27
reliance upon the weakness or absence of defence of the defendant can
be made so as to discharge such onus (paragraph 36).
21. In the case of Makhan Singh (supra), the Hon'ble Supreme
Court has held (paragraph 9) that there is no presumption that the
property owned by the members of the joint Hindu family could a fortiori
be deemed to be of the same character and to prove such a status it has
to be established by the propounder that nucleus of joint family income
is available and that the said property has been purchased from out of
the said nucleus. It is categorically held that burden to prove such a
situation, lays on the party, who so asserts it.
22. In the case of D.S. Lakshmaiah (supra), the Hon'ble Supreme
Court has laid down the same law. In paragraph 18, it has observed
thus, "the legal principle, therefore, is that there is no presumption of a
property being joint family property only on account of existence of a
joint Hindu family. The one who asserts has to prove that the property is
a joint family property. If, however, the person so asserting proves that
there was nucleus with which the joint family property could be
acquired, there would be presumption of the property being joint and the
onus would shift on the person who claims it to be self-acquired property
to prove that he purchased the property with his own funds and not out
sa156.98.J.odt 20/27
of joint family nucleus that was available".
23. In the same case of D.S. Lakshmaiah, the Hon'ble Apex
Court has also observed in paragraph 17 that when the burden to prove
that a property is a joint family is not discharged by the plaintiff, the fact
that the defendant does not lead any evidence to establish his separate
income is of no consequence insofar as the claim as regards joint family
is concerned.
24. It is thus clear that one who asserts that a property is a joint
family property, must discharge his burden either by proving that it is a
joint family property or through establishing existence of sufficient
nucleus of the joint family from which nucleus, new acquisitions could
possible be made. It is also clear that when the initial burden to prove
that a property is a joint family property is not discharged according to
law by the party who so asserts it, no strength can be drawn from the
weakness of the case of other side or failure of the other side to prove it's
case that the property is it's self acquisition, so as to discharge such
initial onus.
25. In the instant case, the initial burden placed upon the
plaintiffs by law, one must say, has not been discharged at all. The
sa156.98.J.odt 21/27
plaintiffs have asserted that field Survey No.81 was purchased from out
of funds of the joint family in the name of defendant No.2. But, there is
no evidence brought on record showing that when the property was
purchased in the year 1947, there was in existence any nucleus of the
joint family and it was adequate for purchase of field Survey No.81. This
Survey No.81 has been purchased for a consideration of Rs.4000/- on
23.06.1947. The plaintiffs have sought to put forward a case that
proceeds of the sale of ancestral land bearing Survey No.250 on
23.06.1947 by sale-deed at Exh.72 were available for at least making up
a part of consideration for which field Survey No.81 was purchased in
the year 1947. The First Appellate Court has considered the sale of
ancestral land in the year 1946 as a relevant fact indicating that some
amount of money was already available in the nucleus of joint family to
enable it to make new acquisition in the year 1947. I think, the First
Appellate Court has misdirected itself in considering the same as a
relevant fact by itself. The law requires that it is not only the nucleus but
adequate nucleus of joint family that must be shown to be in existence.
In the absence of any evidence showing existence of sufficient nucleus of
joint family, no presumption of new acquisition to be the joint family
property can be drawn. In this case, there is no evidence adduced by
plaintiffs in this regard.
sa156.98.J.odt 22/27
26. The field Survey No.250 was sold in the year 1946
admittedly, for a consideration of Rs.1000/- and it is well nigh impossible
to purchase such land from this amount in the year 1947 which was of
higher value and greater in area than the area of field Survey No.250.
Area of field Survey No.250 was about 8 acres and whereas area of field
Survey No.81 was about 11.44 acres. If it is presumed that the proceeds
of said field Survey No.250 were put to use for purchase of field Survey
No.81, still, the source of remaining amount of Rs.3000/-, ought to have
been shown by the plaintiffs as having emerged from the nucleus of the
joint family. At that time, suit lands purchased vide Exh.73, having total
19.9 acres, were already available as joint family properties. So, it was
possible for plaintiffs to show that these lands yielded hand-some income
then. The plaintiffs, however, have not adduced any evidence as to what
income these lands were generating in the year 1946-1947. There is not
even a whisper on the part of the plaintiffs that in the year 1946-1947 or
around that time the joint family was cultivating such crops as would
return good amount of cash. P.W.1 Nagabai (Exh.59) has only stated in
her evidence that there were Orange trees in the suit lands which could
be about 12 years old and since the year 1984, the defendants were
taking crops and earning money by selling them. Even the second
witness of the plaintiffs, P.W.2 Baburao (Exh.76), has given his evidence
on the same lines as P.W.1 Nagabai. His evidence was recorded on
sa156.98.J.odt 23/27
23.08.1991 and he has stated that about 10 years back, the Orange trees
were planted in the suit lands, about 1000 in number, and defendant
No.1 was earning income by sale of the Orange crop. His evidence does
not go as far as back as in the year 1946-1947 when it comes to
generating of sufficient income from the suit lands from that year
onwards. This evidence only shows that defendants were cultivating
cash crops like Oranges only from the year 1984 and not before that and
therefore, is of no use to ascertain income of 1946-1947.
27. Merely because there is a joint family property, it would not
by itself lead to an inference that it generates healthy income capable of
building sufficient nucleus of the joint family. There can be no
presumption in law that a joint family holding joint family property
always has in its possession, such nucleus, as is sufficient to enable it to
make new acquisitions. Apart from the existence of the joint family
property, it must be shown by the party asserting that it generates
income, that it really yields income or is at least capable of generating
good earnings for the joint family by adducing necessary evidence in that
regard. In the instant case, no evidence has been brought on record as
regards level of fertility of the agricultural lands purchased vide Exh.73
or the account of crops that were being taken from these lands since
1946-1947 so as to indicate that these lands were capable of generating
sa156.98.J.odt 24/27
healthy income from that time onwards and so a presumption about
existence of adequate nucleus of the joint family could have been drawn.
In such circumstances, it is seen that the plaintiffs could not show that
the joint family did possess in the year 1946-1947 sufficient nucleus so
as to empower it by purchasing one more land i.e. field Survey No.81. In
effect, plaintiffs failed to discharge initial burden of proof that was on
them and therefore, there was no way in this case that the onus to prove
that field Survey No.81 was defendant's self-acquired property could
have been shifted to them.
28. It appears from the careful reading of the judgments of both
the courts below that they have committed serious error of law in
shifting of burden to prove the character of field Survey No.81 upon the
defendants. The trial court in paragraph 16 of its judgment dated
21.01.1992 observed that it well settled that burden shifts on a person
who alleges that the suit properties are self-acquired properties. The
trial court then went on to scrutinize the evidence of two witnesses of
the defendants and upon finding that there has been material variance
between the pleadings and the evidence adduced by the defendants, the
trial court concluded that the defendants failed to establish that field
Survey No.81 was the property purchased by defendant No.1 from out of
his own income in the name of defendant No.2. The First Appellate
sa156.98.J.odt 25/27
Court drew a presumption of jointness of the property and it appears
that although it has not observed in so many words that the jointness of
the property would be sufficient to draw an inference about existence of
sufficient nucleus of the joint family, the First Appellate Court shifted the
burden of proof in this behalf upon the defendants and then taking
support from weakness in the evidence of the defendants, it held that
since defendants failed to prove that field Survey No.81 was their
self-acquired property, the finding recorded by the trial court that it was
a joint family property was legal and correct. Such an approach adopted
by both the courts below is absolutely against the settled legal principles
discussed earlier. Initially, the burden of proof was upon the plaintiffs
who had propounded the theory that though field Survey No.81 stood in
the name of defendant No.2 as owner thereof, it was in reality a joint
family property with its purchase having been financed through joint
family funds. The plaintiffs ought to have discharged this burden that
was initially on them by establishing the fact that there was in existence
sufficient nucleus of the joint family and it was only after the discharge
of this burden that the defendants could have been called upon to
disprove the fact that field Survey No.81 was purchased with the aid of
joint family funds. The findings recorded by both the courts below as
regards the jointness of field Survey No.81 are, therefore, perverse and
absolutely contrary to the well settled principles of law.
sa156.98.J.odt 26/27
29. In the circumstances, I find that the courts below have
misdirected themselves in decreeing the claim for partition of field
Survey No.81, there being no proof tendered by the plaintiffs in
accordance with law that field Survey No.81 was also a joint or
coparcenary property. The third substantial question of law is, therefore,
answered in these terms. In the result, the appeal deserves to be allowed
partly.
30.
Thus, appeal is partly allowed. Judgment and decree of the
trial Court dated 10.01.1992 passed in Special Civil Suit No.336/1984
declaring that the plaintiffs are entitled for partition and separate
possession of their half share in field Survey No.81 having area of 11.72
acres described in Schedule-A of the plaint and directing the defendants
to put the plaintiffs in possession of half share in field Survey No.81, is
hereby set aside and judgment and decree of the First Appellate Court
dated 28.11.1997 confirming this part of judgment and decree of the
trial Court is also set aside.
31. Judgment and decree dated 28.11.1997 passed in Regular
Civil Appeal No.190/1992 by 4th Additional District Judge, Nagpur
modifying the judgment and decree dated 10.01.1992 passed in Special
Civil Suit No.336/1984 by the trial Court and confirming the judgment
sa156.98.J.odt 27/27
and decree passed by the trial Court, barring the judgment and decree of
the trial Court relating to the partition of plaintiffs half share in field
Survey No.81, as described in Schedule-A of the plaint and their being
put in possession thereof, is hereby confirmed.
In the circumstances of the case parties to bear their own costs.
Decree be drawn up accordingly.
ig JUDGE
NSN
