[Cites 4, Cited by 0]
Jharkhand High Court
Sanjay Kakkar vs Vivek Kakkar on 9 March, 2026
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
2026:JHHC:6173
IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No. 175 of 2024
1. Sanjay Kakkar, aged about 55 years, son of late Kamal Kumar
Kakkar
2. Sonia Kakkar, aged about 54 years, wife of Sri Sanjay Kakkar
both by faith Hindu, by occupation Business and Household
work, both resident of Sahu Market, Bye Pass Road, Chas, P.O.
+ P.S. Chas, District Bokaro, Jharkhand
... ... Plaintiffs/Appellants
Versus
1. Vivek Kakkar, son of late Kamal Kumar Kakkar
2. Binney Kakkar, wife of Vivek Kakkar, both by faith Hindu, by
occupation Business and Home hold work, both resident of
Sahu Market, Bye Pass Road, Chas, P.O. + P.S. Chas, District
Bokaro (Jharkhand)... ... Defendants/Respondents
---
CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Appellants : Mr. R.N. Sahay, Sr. Advocate
: Mr. Kirtivardhan, Advocate
For the Respondents : Mr. Ranjit Giri, Advocate
---
CAV on 09.12.2025 Pronounced on 09/03/2026
This appeal has been filed against the judgement and decree
dated 28.06.2024 (decree signed on 05.07.2024) in Original (Partition)
Suit No.58/2022 by learned Civil Judge (Sr. Division) - I, Bokaro
whereby the suit filed by the plaintiffs has been dismissed on contest.
2. The suit was filed by Sanjay Kakkar, son of late Kamal Kumar
Kakkar, and his wife Sonia Kakkar and defendants are Vivek Kakkar,
son of late Kamal Kumar Kakkar and his wife Binney Kakkar. The
suit was filed seeking preliminary decree for partition of half share of
2026:JHHC:6173
the plaintiffs over the suit property mentioned in Schedule A of the
plaint. The Schedule A of the plaint is quoted as under:
Schedule A
The lands and commercial building situated at Mouza - Chas, P.S. No
- 30, P.S. Chas, District Bokaro, Jharkhand, Khata number, plot
number, area and boundary are as under:
Khata No. Plot No. Area Boundary
84 7217 2 ½ Dec. + 7 ¼ N - By pass road
Dec. = 9 ¾ dec. Chas, S- plot
177 7208 10.75 dec. no.7205
177 7209 03.5 dec. E - proposed rasta
12 feet width
W - building of
Dubeyjee
Total 3 plots Total area 24 decimals
3. 2.50 decimal in plot no. 7217 is standing in the name of the
plaintiff no.2 and the remaining 21.50 decimals aforesaid property is
standing in the name of defendant no.2. The plaintiffs claimed that the
entire suit property is joint family property and claimed ½ share and
the defendant claimed that the property standing in the name of the
defendant no.2 was their self-acquired property and claimed that
partition suit was not maintainable. Admittedly, a portion of the suit
property was jointly leased out by plaintiff no.2 and defendant no.2 to
ICICI Bank.
4. The learned trial court framed the following issues for
consideration:
i. Whether the suit is maintainable in its present form?
ii. Whether the suit is property valued?
iii. Whether there is a valid cause of action to bring the
present suit?
iv. Whether the suit is barred by law of limitation, waiver,
estoppel and acquiescence?
v. Whether plaintiff is entitled for ½ share in the suit
property?
vi. Whether there is unity of title and possession amongst
the parties to the instant schedule property?
vii. Whether plaintiff is entitled to get relief as claim in the
plaint?
2026:JHHC:6173
5. The learned trial court held that the suit was not maintainable,
there was no valid cause of action to file the suit, the plaintiffs were
not entitled to ½ share in the suit property and there was no unity of
title and possession amongst the parties to the scheduled property and
consequently the plaintiffs are not entitled to any claim partition as
prayed for in the plaint and ultimately the suit was dismissed. The
findings of the learned trial court with respect to issue nos.5 and 6 are
quoted as under:
"It is evident from the oral as well as documentary
evidence that Ext. 1 which is a sale deed no. 6567 was
executed in the name of Sonia Kakkar and regarding
which Sonia Kakkar had made a payment of the
consideration amount to the executant of the sale deed.
Similarly, Ext. 2 i.e. sale deed no. 373 in the name of
Binny Kakkar wife of Vivek Kakkar defendant no. 2 and
the consideration amount for the said sale deed of Rs.
4,05,000/- was paid through bank draft by Binny Kakkar
and this factum has been very well mentioned in Ext. 2. It
appears from Ext. 1 and 2 which is two different plots
adjacent to each other and in the said plot of Binny
Kakkar has been given on lease by Binny Kakkar and
Sonia Kakkar to ICICI bank and the said lease deed has
been marked as Ext. 3. But as deposed by P.W. 3 who
happens to be plaintiff no. 1 he has deposed that in Ext. 3
which is a lease deed executed in favour of ICICI bank in
which a declaration has been given that khata no. 84, plot
no. 7217 belongs to Sonia Kakkar which has not been
occupied by ICICI bank but khata no. 177, plot no. 7209
which belongs to Binny Kakkar has been given on lease
by ICICI bank. Even from the perusal of ext. 3 the
description of the schedule property mentioned is khata
no. 84, plot no. 7217 area 7.5 decimals and khata no. 177,
plot no. 7208 area 10.75 decimals and plot no. 7209 area
3.5 decimal total area 20.5 decimals. The owner of the
said property is Binny Kakkar and Sonia Kakkar. As it
appears from the ext. 3 that only a lease has been given by
way of ext. 3 to ICICI bank but there is no joint ownership
of the said property.
Partition is a redistribution or adjustment of pre-existing
right among co-owners/coparcener resulting in division of
lands or other properties jointly held by them. For
partition of any property there must be jointness of the
2026:JHHC:6173
said property and the parties to the partition suit should
have equal right and share over the said property. In a
partition suit the court is required to define the shares of
the parties in a property which is joint properties but in
this case the suit property mentioned in schedule A of the
plaint corresponding to khata no. 84, plot no. 7217, khata
no. 177, plot no. 7208, khata no. 177 and plot no. 7209
area 24 decimals are actually two different plots which
was purchased through sale deed which are marked as
Ext. 1 and 2 respectively and through Ext. 1 plaintiff no. 2
purchased 2 ½ decimals of land. Plaintiff has taken a plea
that in the year 2022 a bantanama was prepared between
both the parties and the said bantanama has been filed
before the court after closure of the evidence which
neither bears the date nor the name of the parties along-
with their signature which is not having any importance
in the eye of the law and this bantanama does not suggest
any light over the partition between both the parties.
The partition of any property can only be taken into
consideration when the property is a joint property and
purchased from a joint family fund or acquire from the
ancestors. Plaintiff in this case could not file any single
chit of paper pertaining to the payment of consideration
amount through joint income. Further even the signature
of father of plaintiff no. 1 and defendant no. 1 is not there
in both the sale deeds. Neither there is any contention with
regard to payment from joint family income in the sale
deed. The property mentioned schedule A were purchased
by plaintiff no. 2 and defendant no. 2 by their own source
of income and this is well mentioned in the sale deed i.e.
ext. 1 and 2 and not only this the plaintiff failed to prove
that the property was purchased from the joint fund Ispat
Scooter firm and even the owners of the properties are
separate and there is no jointness in the said property.
Plaintiff in this case even failed to adduce any single chit
of paper before the court could proved that there is unity
of title and possession amongst the parties in the instant
schedule property.
On the basis of above made discussion, I am of the
opinion that both the issues are decided against the
plaintiff."
I.A no. 14011 of 2025 (additional evidence at 1st appellate stage)
6. The argument of the appeal commenced on 08.12.2025 and I.A
no. 14011 of 2025 seeking to adduce additional evidence to bring on
2026:JHHC:6173
record the renewed lease deed entered into between ICICI Bank on
one side and plaintiff no.2 and defendant no. 2 on the other side. The
plea to adduce additional evidence has been rejected after hearing the
parties on 08.12.2025 itself. The earlier lease deed Exhibit-3 is already
on record. This Court has rejected I.A No.14011 of 2025 on the
ground that the original lease deed Exhibit-3, which is an admitted
document, is already on record and the suit is for partition, therefore,
the renewal of lease has no relevance in this case. The hearing of the
appeal continued and concluded on 09.12.2025 and the order was
reserved.
7. As recorded in the previous order, the learned counsel for the
appellants had stated that the sale deed dated 30.12.2003 has been
exhibited as Exhibit 2, but the deed number is 373 and not 375 and
there is a typographical error in the plaint. It has already been recorded
that the learned counsel for the respondents had no dispute so far as
this aspect of the matter is concerned.
8. Arguments of the appellants.
A. Learned counsel for the appellants has submitted that plaintiff No.2
namely Sonia Kakkar and defendant No.2 namely Binney Kakkar
purchased property mentioned in schedule 'A' to the plaint. Plaintiff
No. 2 purchased 2.5 decimals of the suit land vide registered sale deed
No.6557 dated 20.12.2003 and defendant No. 2 purchased 21.5
decimals of land vide registered sale deed No. 373 dated 30.12.2003
from the same vendor.
B. He has also submitted that both plaintiff No.2 and defendant No.2
have jointly leased out a portion of the building constructed over
schedule 'A' to a bank namely ICICI Bank vide registered lease
Exhibit-3 dated 11.08.2016 for a period of 9 years.
C. Learned counsel for the appellants has submitted that two properties
were purchased by plaintiff no. 2 and defendant no. 2 respectively and
the source of fund was income from the firm namely 'Ispat scooter'
which was the partnership business in which plaintiff no. 1, defendant
no. 1 and their father namely Kamal Kumar Kakkar were the partners.
2026:JHHC:6173
D. Learned counsel for the appellants has referred to the evidence of
P.W. 1, Ramakant Prasad, aged about 51 years, and claims to be the
Manager of Hotel Casablanca situated in Chas Bokaro. He has then
referred to paragraph 4 wherein he has stated that he is the manager of
"this farm and Hotel Casablanca" and submits that the term this farm
in paragraph (4) of the evidence is referring to the firm mentioned in
the plaint i.e. 'Ispat Scooter'. However, in the previous statement there
is no reference to the firm 'Ispat Scooter'. The learned counsel has
referred to paragraph 5 of his evidence to submit that property was
purchased through two sale deeds with the consent of the father-in-law
of plaintiff no. 2 and defendant no. 2 and the source of fund was 'Ispat
Scooter'. It has been also stated by this witness that the purchase of
the property by plaintiff no. 1, defendant no. 1 and their father has
been joint and they were running their business by constructing a
building on the property and have been realizing rent by letting out
other portions of the building and are running their livelihood. So far
as the vacant land is concerned, it is in their joint possession. He has
also stated that in the year 2004 there was a lease agreement with
ICICI bank which was to expire in the year 2016 and upon renewal,
the lease deed is valid till the year 2024-25.
E. The case of the plaintiffs is that the father of plaintiff no.1 and
defendant no.1 used to do a business in the name of "Ispat Scooter" in
which plaintiff no.1 and defendant no.1 were also managing the
business with their father and they lived together from the joint fund
derived from the income of the business of the father of plaintiff no.1
and defendant no.1. They decided to purchase the land from the
income of the said business by which both the brothers also agreed. It
is their further case that the father purchased 2 ½ decimals of khata
no.84, plot no.7217 in the name of plaintiff no.2 vide registered sale
deed no.6557 dated 20.12.2003 and since the date of purchase the
plaintiffs, the defendants and their parents remained in possession of
the property. Thereafter, there was another purchase of land in the
same khata no.84, plot no.7217, area 7 ¼ decimals, khata no.177, plot
no.7208 area 10.75 decimals and khata no.177 plot no.7209 area 3 ½
decimals, total area 21.5 decimals by way of registered sale deed
2026:JHHC:6173
no.373 dated 30.12.2003 in the name of defendant no.2 and since the
date of purchase, the plaintiffs and the defendants along with their
parents came in joint possession of the said property.
F. It was further case of the plaintiffs that before purchase of the land,
the vendor had executed agreement in favour of plaintiff no.1 on
09.07.2003 and at the time of agreement, plaintiff no.1 had paid the
entire consideration amount to the vendor of the sale deed by way of
bank draft and other modes and thereafter the sale deed was executed
in favour of plaintiff no.2 and defendant no.2.
G. It has also been asserted in the plaint that the entire consideration
amount was paid with respect to the entire suit property by plaintiff
no.1 with the consent of his father from the joint fund of income of
business of "Ispat Scooter" and other, and therefore, the plaintiffs
claimed that the property is a joint property of the parties and they
have been coming in possession over the suit property according to
their convenience. However, there has never been partition by metes
and bound.
H. The paragraph 3 of the plaint reveals that it is plaintiff no.1, who
claimed to have paid the entire consideration amount with respect to
the properties standing in the name of plaintiff no.2 and also the
properties standing in the name of defendant no.2 and for this, a
reference has been made to an agreement of sale dated 09.07.2003.
Upon query of this Court, it is not in dispute that the agreement has
not been exhibited.
I. It is the case of the plaintiffs that the father of plaintiff no.1
constructed 3 storied building from the business income. It was their
further case that after construction of the building by the parties, they
let out the 2nd floor of the building to M/s Hotel Casablanca on
monthly rent and other building was let out to one Sri Ram Finance,
ICICI bank etc. and as per mutual consent, they obtained the rent of
the said building according to their convenience. Not only that, the
municipal taxes and other taxes relating to the suit land were also
being paid by the plaintiffs.
J. However, during the course of argument, it is not in dispute that the
arrangement made with other tenants over the building like Sri Ram
2026:JHHC:6173
Finance and other tenants in the building have not been brought on
record. The only tenancy which has been brought on record is with
ICICI Bank which is Exhibit 3 in the present case.
K. The plaintiffs claimed that the suit property is joint property of the
parties and they were in possession over the same according to their
convenience and as such there was complete unity of title, community
of interest and unity of possession between the parties over the suit
land.
L. It was their further case that in the year 2017, the father of the plaintiff
no.1 died in the estate of jointness and after his death, the plaintiffs
and the defendants inherited and succeeded over the entire suit
property according to their convenience.
M. It was their further case that sometimes in the month of February
2022, both the parties decided to amicably partition the suit property
and thereafter a memorandum of partition was prepared according to
their convenience but later on defendants refused to make partition
and claimed 21 ½ decimals which was the property purchased in the
name of defendant no.2.
N. A legal notice through lawyer was also sent by defendant no.1 to the
tenant of the plaintiff namely Sri Ram Finance on 30.06.2022 and
thereafter a panchayati was held between the parties sometimes in 2 nd
week of July 2022 and in the said panchayati, defendant no.1 agreed
to make partition of the suit land but after lapse of two months, the
defendants did not get it partitioned and lastly on 30.09.2022, they
flatly refused to make partition of the suit property by metes and
bound and hence the plaintiffs were compelled to file the suit.
O. The case of the plaintiffs is that the defendants have no right to claim
land or house situated in the area of 21.50 decimals as the entire
property was purchased by the father from income earned from the
business of "Ispat scooter" and the plaintiffs have got every right of
half share over the suit properties. Thus, the plaintiffs claimed that
since the suit property was acquired from joint fund and income
derived from "Ispat scooter" which was being run by the father and
even the multi storied building on the same was constructed from the
same business income, therefore, the property was joined and was
2026:JHHC:6173
liable to be partitioned ½ and ½. Thus, the plaintiffs who are the son
and daughter in law of Kamal Kumar Kakkar, the father, are claiming
½ share of the property and they claimed that ½ share would be of
defendant no.1 and defendant no.2, who are also son and daughter-in -
law of Kamal Kumar Kakkar.
P. The learned counsel for the appellants while assailing the impugned
judgement passed by the learned trial court has made the following
submissions:
a) The details of the property involved in this case have been
projected in a tabular form as under:
Sl. Khata Plot Area in In name of Source of title
No. decimals
01 84 7217 2.50 Sonia Kakkar Registered Sale
(plaintiff deed 6557
No.2) dated
20.12.2003
02 84 7217 7.25 Binney Registered Sale
Kakkar deed 373 dated
(Defendant 30.12.2003
No.2)
03 177 7208 10.75 Binney Registered Sale
Kakkar deed 373 dated
(defendant 30.12.2003
no.2)
04 177 7209 3.50 Binney Registered Sale
Kakkar deed 373 dated
(Defendant 30.12.2003
No.2)
b) While referring to appreciation of Exhibit 3, the lease deed
executed by plaintiff no.2 and defendant no.2 in favour of ICICI
bank, it has been submitted that the impugned judgement
suffers from perversity inasmuch as the learned trial court failed
to mention that plot no.7217 measuring 2.5 decimals is also
included in Schedule I of Exhibit 3. He submits that a bare
perusal of Schedule I of Exhibit 3 clearly demonstrates that plot
no.7217 is very much a part of schedule and consequently such
finding is in direct conflict with the document itself i.e. Exhibit
3. He has submitted that 2.5 decimals of land in plot no.7217
belonged to plaintiff no.2, who had joined with defendant no.2
2026:JHHC:6173
having 21.5 decimals to execute the lease with respect to the
entire property covered by lease deed exhibit-3.
c) During the course of hearing, the learned counsel for the
respondents has also not disputed this aspect of the matter that
the sale deed dated 30.12.2003 included the properties, which
have been mentioned in the aforesaid chart and the property of
plaintiff no.2 in plot no.7217 area 2.50 decimals was also
involved in the lease deed dated 11.08.2016 (Exhibit 3).
However, it has been submitted by the learned counsel for the
respondents that such discrepancy has no bearing in the matter,
inasmuch as the matter relates to partition suit and unity of title,
unity of possession and nucleus of joint family are required to
be seen. The suit properties stood purchased in the name of two
daughters in law of the family, which was subject matter of
partition.
d) The learned counsel for the appellants while proceeding further
to show the erroneous finding recorded in the impugned
judgement has submitted that there has been error with regard to
recording of payment of consideration money for the registered
sale deeds standing in the name of plaintiff no.2 (Exhibit 1) and
standing in the name of defendant no.2 (Exhibit 2). He submits
that a wrong finding has been recorded that the consideration
money under the registered sale deed was paid by the parties
from their own source of income which was well mentioned in
the sale deed. He submits that upon perusal of the sale deeds
exhibits 1 and 2, there is no such averment/recital contained in
the sale deeds, and therefore, plaintiff no.2 and defendant no.2
in their respective sale deeds, have not disclosed the source of
income. The learned counsel has also submitted that the finding
is also contrary to the explicit recital in the sale deeds inasmuch
as the source of fund has not been disclosed when seen in the
surrounding circumstances.
e) The learned counsel submits that the learned trial court has
failed to consider that the proceeds of rent accruing under
2026:JHHC:6173
exhibit 3-the lease deed, were being continuously and equally
shared between plaintiff no.2 and defendant no.2 on 50:50
basis, although the sale deed standing in the name of plaintiff
no.2 was for 2.50 decimals in plot no.7217 and the sale deed of
defendant no.2 was for 21.5 decimals [7.25 decimals in plot
no.7217, 10.75 decimals in plot no.7208 and 3.50 decimals in
plot no.7209].
f) The learned counsel submits that the sharing of rent on a 50:50
basis, in spite of huge discrepancy with respect to title of
property in terms of area of the leased property when seen
between plaintiff no.2 and defendant no.2 itself demonstrates
that they had joint possession over the property. This also
demonstrates that the income was joint and there was joint
contribution to buy the property in favour of plaintiff no.2 and
defendant no.2, irrespective of their actual area mentioned in
the respective sale deeds.
g) Merely because Exhibit - 1 stood exclusively in the name of
plaintiff no.2 and exhibit 2 stood exclusively in the name of
defendant no.2, the same by itself cannot be said to be a
conclusive proof that there was no unity of title, and no unity of
possession with respect to the suit property i.e. exhibit 1 and
exhibit 2 and that the properties were purchased from their
individual income.
h) It was the specific case of the plaintiffs in the suit that the
properties were purchased from the business run by the father-
in-law of plaintiff no.2 and defendant no.2, and therefore,
merely because the property was purchased partly in the name
of plaintiff no.2 and partly in the name of defendant no.2, the
same cannot be excluded from the contours of joint family
property.
i) The learned trial court failed to consider the consistent conduct
of the parties, which demonstrates jointness of properties. He
submits that the plaintiffs had specifically pleaded and proved
that the rental proceeds under Exhibit 3 were equally divided
2026:JHHC:6173
among the parties, which was an admitted fact. Despite this
undisputed practice, the learned court did not draw the
necessary inference that without joint ownership/joint interest,
such conduct of the parties is not possible in the facts and
circumstances of the case and thereby the learned trial court has
committed serious error in law and fact.
j) The first appeal is a continuation of the suit and every aspect of
fact and law is open for consideration. He submits that any error
in recording facts can be rectified in the first appellate
jurisdiction. The learned counsel then referred to the alleged
inconsistencies in defendants' pleading and evidence, and
submitted that this aspect of the matter has also been ignored by
the learned trial court. The learned counsel submits that in a suit
for partition, every party acquires the status of plaintiff, and
therefore, it cannot be said that inconsistencies in the
defendants' pleading and evidence are required to be ignored
and it is only for the plaintiffs to prove his entire case.
k) The learned counsel has pointed out that the inconsistencies in
defendants' pleadings and evidence have been ignored by the
learned trial court. He submits that the defendants, in their
written statement, unequivocally admitted the existence of
'Ispat Scooters'. However, during evidence, D.W. 1 and D.W. 2
took a complete inconsistent stand by asserting that they had no
knowledge of 'Ispat Scooters'. The learned trial court has failed
to notice this inconsistency and this has resulted in an erroneous
appreciation of evidence, which goes to the root of the matter.
He submits that consequently, the findings recorded by the
learned trial court on the issue relating to possession,
partnership and source of income are also perverse.
l) The learned counsel has relied upon the judgement passed by
the Hon'ble Supreme Court in the case of Krishi Utpadan
Mandi Samiti, Sahaswan, District Badaun Vs. Bipin Kumar
and Anr. reported in (2004) 2 SCC 283 paragraph 7 to submit
2026:JHHC:6173
that the documentary evidence would exclude oral evidence and
has referred to Section 92 of the Evidence Act.
m) The learned counsel has then relied upon the judgement passed
by the Hon'ble Supreme Court in the case of Santosh Hazari
Vs. Purushottam Tiwari reported in (2001) 3 SCC 179
paragraph 15 to submit that if the appraisal of evidence by trial
court suffers from material irregularity or on conjectures and
surmises, the appellate court is entitled to interfere with the
findings of facts. The learned counsel has in particular referred
to page nos.20 and 21 of the impugned judgement where
findings have been recorded and also to paragraphs 16 and 17
of the written statement and further paragraphs 22 and 32 of the
evidence falling in cross-examination of D.W. 1 and paragraph
26 of the evidence falling in cross-examination of D.W. 2.
9. Arguments of the respondents.
I. The defendants filed their written statement and alleged that
there was no question of partition with respect to the suit
property and material facts have been suppressed. The portion
of the suit property standing in the name of defendant no.2 has
been purchased by the defendants from their own income, and
therefore, there was no question of partition and there was no
substantial evidence regarding the purchase of the suit property
from joint income. A plea was also raised that the suit was
liable to be dismissed on account of non-joinder and mis-joinder
of necessary parties.
II. It was asserted that the suit property was not a joint property
and the property was not purchased from joint income of the
plaintiffs and the defendants, and the defendants had purchased
the suit property from their own hard-earned income and no
question arises for partition. It was also asserted that there was
no iota of evidence to substantiate the fact mentioned in the
plaint with respect to the property being joint family property;
the entire contention regarding payment of consideration
amount was false and hypothetical and the plaintiffs have not
2026:JHHC:6173
filed any document regarding the payment of any consideration
amount to the vendor of the sale deed by way of any demand
draft.
III. It was also denied that the multi-storied building was
constructed from joint family income and it was asserted that
the plaintiffs have not filed any chit of document to substantiate
the contention.
IV. It was asserted that the defendants were landlord and they were
bonafide purchasers of the property and they had constructed
the multi-storied building from their own income and let out the
shop to this effect only agreement with ICICI bank have been
prepared by the defendants. It was asserted that there is no unity
of title, community of interest and unity of possession over the
suit land and there was no documentary evidence to substantiate
the same. It was also stated that plaintiff no.1 and defendant
no.1 were never in a estate of jointness, and therefore, no
question arises for inheritance by virtue of jointness of
properties and there is no question of any partition. It was also
asserted in paragraph 15 of the written statement that the true
fact was that no memorandum of partition according to
convenience was prepared and being a landlord of the tenanted
premises defendant no.1 sent a legal notice through his lawyer.
It was also asserted in paragraph 16 of the written statement that
the entire property was purchased by the defendants from their
own income and it was submitted that the plaintiffs mentioned
in the plaint that the "Ispat Scooter" is a partnership firm and
being a partner, the answering defendants purchased the suit
premises and this manner the plaintiffs have no right, title and
interest over the suit property.
V. It was also asserted that the properties not being purchased from
joint fund and income business of "Ispat scooter" and being a
partnership firm, all the partners have equal share distributed
from the income of the business, so no question arises for
treating the properties as joint property from the income of the
2026:JHHC:6173
business of "Ispat scooters". The written statement reveals that
the defendants prayed that the suit be dismissed.
VI. The learned counsel for the respondents while opposing the
prayer of the plaintiffs seeking partition of exhibits 1 and 2,
which are the two registered sale deeds standing in the name of
plaintiff no.2 and defendant no.2 respectively has submitted as
under:
a) The suit property consists of 2 ½ decimals purchased in the
name of plaintiff no.2 and 21 ½ decimals purchased in the
name of defendant no.2 vide separate registered sale deeds
dated 20.12.2003 and 30.12.2003 respectively.
b) The recitals in the registered sale deeds exhibit 1 and
exhibit 2 clearly states that the consideration was paid by
the respective purchasers.
c) The trial court rightly held that defendant no.2 purchased
her portion from her own independent income and the
appellants failed to rebut the presumption of correctness
attached to the registered sale deeds. The learned counsel
submitted that since the two registered sale deeds, exhibits
1 and 2 stood exclusively recorded in the name of plaintiff
no.2 and defendant no.2, who are said to have paid the
consideration amounts, the same cannot form a part of
joint family property, so as to form subject matter of
partition.
d) Plaintiff no.2 and defendant no.2 are not coparceners of the
family. They are daughters in law in the family. It has been
further submitted by the learned counsel for the
respondents that the plaintiffs failed to prove the joint
nucleus or joint fund to claim that Exhibits 1 and 2 were
purchased from such fund. It has been further submitted
that the plaintiffs entire case rested on the assertion that the
consideration money came from the joint income of "Ispat
Scooter". However, the plaintiffs failed to produce any
cogent financial records, books of account or bank
2026:JHHC:6173
statement of 'Ispat Scooter' from 2003 to link the business
income to the specific purchases. In rebuttal to facts
relating to preparation of demand draft, it has been
submitted that mere act of the family member going to
bank to prepare a draft does not prove the source of
money. He has submitted that the trial court rightly
appreciated that the source of fund was not proved to be
the joint business. The plaintiffs failed to prove that the
money debited to prepare those drafts belonged to joint
family fund. It has been submitted by the learned counsel
for the defendants that the source of fund for preparation of
demand draft to pay the consideration money with respect
to Exhibits 1 and 2 was required to be proved and merely
because the amount has been paid through demand draft,
the same does not prove that the property was purchased
from joint family fund or was purchased from the business.
e) The learned counsel has then submitted that there is
complete absence of unity of title and possession. He
submits that the trial court recorded a specific finding that
there is no jointness in title and possession; the plaintiffs
admitted that the multi storied building was constructed on
the land and the defendants asserted that the construction
was made by the defendants. The plaintiffs claimed that
the building was built by the father (Kamal Kumar Kakkar)
but failed to prove through evidence regarding his
investment or even the source of fund to construct the
building.
f) The learned counsel has further submitted that the tenancy
i.e. the lease deed as contained in Exhibit 3, which has
been heavily relied upon by the learned counsel for the
appellants, does not prove joint title over the property. The
mode of payment of rent will not decide upon the factum
of exclusive title and ownership with respect to the
property. It has been submitted that two separate owners of
2026:JHHC:6173
adjacent/combined plots can lease their properties to a
single tenant, as in the instant case to ICICI bank and
receive rent and that this will not make the property a joint
family property. He has submitted that the trial court has
rightly held that the lease deed (Exhibit 3) does not prove
joint ownership in the sense of a joint Hindu family
property. He has further submitted that none of the
witnesses adduced on behalf of the plaintiffs has supported
the case of the plaintiffs with respect to the claim of
plaintiffs that there was unity of title and unity of
possession with respect to the properties which could be
subject matter of partition in a partition suit. The learned
counsel has submitted that the learned trial court has
passed a well-reasoned judgement based on documentary
evidence and the failure of the plaintiffs to discharge the
burden of proving a joint family nucleus is fatal to the case
of the plaintiffs.
g) He has further submitted that the properties standing in the
names of the two daughters in law of the family cannot be
subject matter of partition and they do not constitute a part
of coparcenary property. He has also submitted that the
suit was also bad for non-joinder of necessary parties,
inasmuch as the daughters of the family were not made
parties in the proceedings.
h) He has submitted that in their evidence, it has come that
there were two daughters of the father, Kamal Kumar
Kakkar, but they have not made parties and objection was
raised in the written statement with regard to non-joinder
of necessary parties, but the learned trial court has not
framed any issue to that effect.
10. Upon hearing the learned counsel for the parties and
considering the facts and circumstances of this case, the following
points arise for determination in this case: -
2026:JHHC:6173
(i) Whether there is unity of title and unity of possession
amongst the parties with respect to the scheduled
property covered by exhibit-1 (standing in the name of
plaintiff no.2 wife of plaintiff no.1) and exhibit-2
(standing in the name of defendant no.2 wife of
defendant no.1)?
(ii) Whether the partition suit is bad for non-joinder of
necessary parties (the daughters of the family- two sisters
of plaintiff no. 1 and defendant no.1)?
(iii) Whether the plaintiffs are entitled for ½ share in the suit
property?
11. Case of the Plaintiffs as per plaint
i. Father of plaintiff No.1 and Defendant No.1 and father-in-law of
Plaintiff No.2 and defendant No.2 namely, Kamal Kumar Kakkar
used to do business in the name of "Ispat Scooter" in which plaintiff
no.1 and defendant No.1 were also managing the business with their
father and lived together from the joint fund of income of the
business.
ii. The father of plaintiff No.1 and defendant No.1, decided that the
land should be purchased from the income of the business on which
both brothers agreed therefore with the consent to each other the
father of plaintiff No.1 and defendant No.1 had purchased part of the
suit property in the name of the plaintiff no.2 and part of the suit
property in the name of the defendant no.2. The details of the suit
property reveals that only 2.50 decimals was purchased in the
name of the plaintiff no.2 and 21.5 decimals was purchased in the
name of defendant no.2. It is the case of the plaintiffs that since the
date of purchase of the properties in the name of the plaintiff no. 2
and also in the name of defendant no.2, the plaintiffs and defendants
alongwith their parents came in joint possession over the entire
purchased land i.e. suit land.
iii. Before the purchase of the land, the vendor of the said sale deeds
executed an agreement in favour of plaintiff No.1 on 09.07.2003 and
at the time of agreement, plaintiff No.1 paid the entire consideration
amount to the vendors of the sale deed by way of bank draft and
other mode and thereafter the sale deeds were executed in favor of
plaintiff No.2 and defendant No.2. However, the agreement of sale
has not been exhibited.
iv. The said amount was paid by plaintiff No.1 with the consent of his
father from the joint fund of the income of the business of "Ispat
Scooter" and other, therefore the suit property is the joint property of
the parties and they have been coming in possession over the suit
land jointly according to their convenience however without
partition by metes and bounds.
2026:JHHC:6173
v. After purchase of the land, father of plaintiff No.1 constructed three
storied house on some part of the suit land from the business income
and rest land remained vacate and used by both parties. After
construction, the parties, they let out the 2nd floor of the building to
"M/S Hotel Casablanca" on monthly rent and other building was let
out to one "SHRI RAM FINANCE", "ICICI BANK" etc. and as per
mutual consent, they obtained the rent of the said building according
to their convenience. Not only that Municipal Tax, and other taxes
relating to the suit land was also being paid by the plaintiff. The only
lease agreement which has been exhibited is exhibit-3 which is
with ICICI Bank and executed by plaintiff no. 2 and defendant
no.2.
vi. The suit property is joint property of the parties and they have been
coming in possession over the same according to their convenience
which was purchased by the father of plaintiff No.1 and defendant
No.1 and father-in-law of plaintiff No.2 and defendant No.2 and as
such there is complete unity of title, community of interest and unity
of possession between the parties over the suit land.
vii. In the year 2017, the father of plaintiff No.1 and defendant No.1
namely Kamal Kumar Kakkar died in the state of the jointness and
after his death, the plaintiff and defendant inherited and succeeded
over the entire suit properties according to their convenience, which
is in the knowledge of the entire locality including the defendants
viii. In the month of February 2022, both parties decided to amicably
partition of the suit land therefore memorandum of partition was
prepared according to their convenience but later on the defendants
flatly refused to make partition of the suit properties and thereafter
they claimed the suit land area 21 ½ dec. by saying that the said land
is purchased by defendant No.2 thereafter with greedy view to grab
the rent as well as suit property.
ix. The defendants have got no right to claim over the land or house on
area 21.50 dec. because entire property has been purchased by the
father or father-in-law of both the parties namely Kamal Kumar
Kakkar from the income earned from the business of "Ispat Scooter"
they have got every right of ½ (one-half) share over the suit
properties.
12. Case of the Defendants as per written statement
a. The case of the defendants as per the written statement is that the
Plaintiffs have got no cause of action to sue the present partition sue
against the answering defendants and the plaintiffs filed the suit with
ill and ulterior motive just only illegally want to grab the fifty
percent share in the Schedule-A properties as mentioned in the Plaint
and lay false claim against the answering defendant and in this
regard law is very much clear that the properties which has got no
right then there is no question of partition regarding the suit premises
as against the answering defendant.
2026:JHHC:6173
b. That, the suit is liable to be dismissed for non-joinder and mis-
joinder of necessary party.
c. The suit property are not joint properties and the properties have not
been purchased by joint income of the plaintiffs and defendants and
the defendants had purchased the suit premises from their own hard
earn income so no question arise for the partition of the said
premises.
d. The entire contention regarding the payment of consideration
amount is totally false and hypothetical and the plaintiff has not filed
any documents regarding the payment of any consideration amount
to the venders of the sale deed by way of any demand draft. The
defendants had constructed the multistory building over the suit
premises and the plaintiffs has not filed any chit of documents to
substantiate the contention made in para 4 of the plaint and the
plaintiffs has to prove with valid and Bonafide documents.
e. The true fact is that the defendants being a land lord and Bonafide
purchaser of the said properties and the defendants constructed
multistoried building from their own income and being an owner of
the suit premises let out the shop to this effect only agreement with
ICICI Bank had been prepared by the answering defendants so let
out the shop premises to this bank. It clearly shows the suit premises
has been purchased and constructed by the answering defendants.
f. The suit properties are not a joint property of the parties and rather
the suit premises has not been purchased by the father of the plaintiff
No.-1 and defendant No.-1 so there is no unity of the title
communities of interest and unity of possession over the suit land.
There is no documentary evidence to substantiate the facts.
g. The plaintiff No.-1 and defendant No.-1 were never in a state of
jointness so no question arises of inheritance by virtue of jointness of
properties. The properties were never joint since beginning so no
question arises for partition of the suit properties.
h. No memorandum of partition was ever prepared according to their
convenience.
i. It has been stated that the plaintiff mentioned in the plaint that the
Ispat Scooters is a partnership firm and being a partner's income, the
answering defendant purchased the suit premises and in this manner
the plaintiff has no right title interest of over the suit properties.
j. The properties were not purchased from the joint fund and income of
business of Ispat Scooter. Ispat Scooter being a partnership firm, all
the partners have equal share in the income of this business so no
question arise for the suit properties being joint properties from the
income of business of Ispat Scooter.
k. It was asserted that the properties are not joint properties and the
properties have not been purchased by the joint income of the
plaintiff and defendant and that there was no cause of action to file
the suit. The appellants have laid much stress on the paragraph 16
and 17 of the written statement, which are quoted as under: -
2026:JHHC:6173
"16. That, so far as the contention made in para-9 of the
plaint is concerned the answering defendant submits that
entire contention made in the plaint are totally bogus,
unethical, approach of the plaintiff as a matter of fact the
entire properties has been purchased by the answering
defendant from his own income. It is submitted that the
plaintiff mentioned in the plaint that the Ispat Scooters is a
partnership firm and being a partners income the answering
defendant purchase the suit premises and this manner the
plaintiff has no right title interest of over the suit properties.
17. That, so far as the contention made in para-10 of the
plaint is concerned the answering defendant submits that
entire contention made in the plaint is out of hypothetical,
imaginary and just to ally out false claim the plaintiff
brought this suit before this Ld. Court and the properties not
been purchase in joint fund and income of business of Ispat
Scooter and being a partnership firm all the partners have
equal share has been distributed from the income of this
business so no question arise for that the properties is a joint
properties from the income of business of Ispat Scooter, just
only to lay out the false claim over the suit properties and
just only to harass the answering defendant to lodged the
partition suit but there is no scope to file the captioned suit
against the answering defendant."
Findings of this Court
13. Admittedly, plaintiff no.1 is the husband of plaintiff no.2 and
defendant no.1 is the husband of defendant no.2. The specific case of
the plaintiffs is that the suit property was purchased by father of the
plaintiff no.1 and defendant no.1 in the name of his two daughters-in-
law, that is, partly in the name of plaintiff no. 2 vide sale deed dated
20.12.2003 and partly in the name of defendant no.2 vide sale deed
dated 30.12.2003 with the consent of the plaintiff no.1 and defendant
no.1. It was the specific case of the plaintiffs that the consideration of
both the sale deeds was paid by the father from the business income
run by the father, in the name and style of 'Ispat Scooter' in which the
plaintiff no. 1 and defendant no.1 were also managing the business.
Further, case of the plaintiffs is that from the income of this business,
the father constructed a three storied building on the aforesaid
property and died in the year 2017 in state of jointness. It has been
claimed that the suit property is joint Hindu family property even if it
2026:JHHC:6173
was standing in the name of plaintiff no.2 and defendant no.2 and
plaintiffs have ½ share in the property. Thus, the son, plaintiff no.1
along with his wife claimed ½ share over the suit property leaving ½
share for the defendant no.1 and his wife defendant no.2.
14. On the other hand, the specific case of the defendants is that
there were no unity of title and no unity of possession with respect to
the suit property and the property standing in the name of defendant
no.2 was the self-acquired property of the defendants. It is the further
case of the defendants that the properties were not purchased from the
joint fund and income of business of 'Ispat Scooter'. Further, 'Ispat
Scooter' being a partnership firm as asserted by the plaintiffs, all the
partners have equal share from the income of this business, and
therefore, no question arises that the properties being joint properties
from the income of business of 'Ispat Scooter'. The suit was bad for
non-joinder of necessary parties.
15. It not in dispute that the total suit property is 24 decimals and
only 2.50 decimal was in the name of plaintiff no.2 and remaining
21.50 decimals were in the name of defendant no.2. The plaintiffs
claimed ½ share of 24 decimals by stating that the entire property was
joint family property and the defendants resisted the claim by taking a
stand that 21.50 decimals was the self-acquired property of the
defendants and was not joint family property. The defendants raised
no claim over the property standing in the name of plaintiff no.2. It is
not in dispute that plaintiff no. 1 and defendant no.1 are full brothers
but it has come in evidence of plaintiff no.1, examined as P.W-3 that
they had two unmarried sisters, but the sisters were not made party to
the partition suit although the plaintiffs claimed that the suit property
was joint family property.
16. The plaintiffs have adduced altogether three witnesses. P.W. 3
is plaintiff no.1 himself. P.W. 1 is Ramkant Prasad. P.W. 2 is Mihir
Kumar Singh, who is friend of plaintiff no.1. Plaintiff no.2 has not
been examined although a portion of the suit property is standing in
her name.
2026:JHHC:6173
17. Only three documentary evidences adduced on behalf of the
plaintiffs. Exhibit 1 is the sale deed in the name of plaintiff no.2.
Exhibit 2 is the sale deed in the name of defendant no.2. Exhibit 3 is
the lease deed dated 11.08.2016 executed by plaintiff no.2 and
defendant no.2 in favour of ICICI bank which is the registered
document. Numerous documents have been marked X series which
will be discussed later. So far as the defendants are concerned, two
witnesses have been examined. D.W. 1 is defendant no.1; D.W. 2 is
defendant no.2 and no documentary evidence has been adduced on
behalf of the defendants.
18. The P.W-1 in his examination in chief has stated that he is the
manager of the hotel. He also stated that both the sale deeds (exhibits-
1 and 2) were purchased using the fund of 'Ispat Scooter' with the
consent of their father-in-law namely, Kamal Kumar Kakkar and after
the purchase, both brothers namely, Sanjay Kakkar and Vivek Kakkar
and their father constructed commercial building and they were jointly
doing business and after letting the house on rent, they have been
collecting rent and earning their livelihood. They are also in joint
possession over the vacant land. He further stated that in the year
2004, Binney Kakkar (defendant no.2) and Sonia Kakkar (plaintiff
no.2) jointly gave the building on lease to ICIC Bank which was
renewed in the year 2016 till 2024-25 and the bank and other renters
were running their business. However, during his cross examination
he admitted that he is working at the place of Sanjay Kakkar (plaintiff
no.1) for the last 35-36 years and at present also he was working there.
He stated that plaintiff no.1 possessed the land having one house
purchased from Lata Dutta and also the land having the hotel
measuring 2½ decimals. He further admitted that he is the Manager of
Sanjay Kakkar and gets Rs.8,000/- per month. He stated that plaintiff
no.1 had given money for purchasing the land but the transaction of
money had not taken place in his presence. This court is of the view
that P.W-1 is not a witness to the source of fund for purchase of the
property involved in this case as the transaction of money had not
taken place in his presence. Further, the specific case of the
2026:JHHC:6173
plaintiffs as per the plaint is that the father, with the consent of his
sons, purchased the two properties in the name of his daughters-in -
law out of the business income from the firm 'Ispat Scooters'.
However, this witness has stated in cross examination that it was
plaintiff no.1 who had given money for purchasing the land and has
stated that plaintiff no.1 is the owner of the land of 2 and 1/2
decimals of land on which hotel is standing. It is not in dispute that
2 and ½ decimals of land is standing in the name of plaintiff no. 2
(wife of the plaintiff no.1)
19. P.W-2 claims that he knows both the parties and disputed land
and stated that the father of both the parties namely, Kamal Kumar
Kakkar was the owner of 'Ispat Scooter' and he has friendship with
the Kakkar family for the last 20 years and claims that he fully knows
the joint property and business of both the parties and also the family
and has also stated that when the disputed land was purchased from
the joint fund, the entire transaction was made through Sanjay Kakkar
and since then, they have been in possession jointly and the rent
agreement for the house/ shop/hotel constructed over the disputed land
was prepared jointly and both the parties are jointly collecting the rent.
However, during cross examination he has stated that he does not
know the owners and partners of 'Ispat Scooter' and he has never seen
any document related to rent. This court finds that this witness does
not even know the owners and partners of 'Ispat Scooter' and this
witness is not the witness on the point of source of finance with
respect to the suit property. The plaintiffs have claimed in the plaint
that the father purchased the property in the name of the plaintiff
no.2 and defendant no.2 from the business income of 'Ispat Scooter'
with the consent of his two sons, the plaintiff no.1 and defendant
no.1 and this witness does not even know as to who are the
owners/partners of 'Ispat Scooter'. Moreover, he claims to have
known the Kakkar family for the last 20 years and he deposed in the
year 2023 and the suit property was purchased in the year 2003,
meaning thereby, this witness did not have much acquittance with
2026:JHHC:6173
the Kakkar family in the year 2003 when the property was
purchased.
20. P.W-3 is the plaintiff no. 1 himself and he is the most
important witness from the side of the plaintiffs. He has filed his
examination-in-chief on affidavit stating that he has filed the suit
against the defendants for partition of joint property. He further stated
that Defendant No.1 is his own brother and Defendant No.2 is the wife
of his brother. He knows the disputed property/ land bearing Plot
No.7217, Khata No.84 and Plot Nos.7208 and 7209, Khata No.177
situated at Bye Pass Main Road, Chas, Thana- Chas, Mouza- Chas.
The aforesaid land bearing Plot No.7217, Area 2½ decimals, Khata
No.84 was purchased vide registered Sale Deed No.6557 dated
20.12.2003 in the name of Sonia Kakkar and the land bearing Plot
No.7217 Area 7¼ decimals, Plot No.7208 Area 10.75 decimals and
Plot No.7209 Area 3½ decimals, total area 21.50 decimals, was
purchased vide Sale Deed No.373 dated 30.12.2003 in the name of
Binney Kakkar. The lands of both the sale deeds have been purchased
from the joint fund of 'Ispat Scooter' Firm. He further stated that he
had deposited the amount in Account No.10063 of Canara Bank and
three receipts dated 08.12.2003 were issued. The Demand Drafts dated
08.12.2003, 10.12.2003, 13.12.2003, 15.12.2003 and 19.12.2003 were
issued and the amounts were paid to the land owner namely, Manoj
Kumar Sahu. The following documents were marked X series for
identification: -
Documents Marked for identification
Canara Bank Demand Draft For Identification-X
No.555113 dated 08.12.2003 for
Rs.1,07,850/-
Canara Bank Demand Draft For Identification-X/1
No.555114 dated 08.12.2003 for
Rs.1,07,850/-
Allahabad Bank Demand Draft For Identification-X/2
No.0211750, D.D. Cheque
2026:JHHC:6173
No.985146 dated 10.12.2003 for
Rs.2,95,000/-
Indian Overseas Bank Code For Identification-X/3
No.366, D.D. No.731248 dated
13.12.2003 for Rs.2,40,000
Canara Bank Demand Draft For Identification-X/4
No.555154 dated 15.12.2003 for
Rs.1,65,000/-
Canara Bank Demand Draft For Identification-X/5
No.555182 dated 19.12.2003 for
Rs.2,95,000/-
Canara Bank Demand Draft For Identification-X/6
No.555183 dated 19.12.2003 for
Rs.4,05,000/-
Money Receipt dated 20.12.2003 For Identification-X/7
for Rs.6,00,000/- issued by Manoj
Kumar for sale of Plot Nos. 7208,
7209 and 7217
Vide petition filed before the court, the draft copy of the partition
dated 11.02.2022 was marked X/8 for identification.
P.W-3 has exhibited the certified copy of registered Sale Deed
No.6557 dated 20.12.2003 in the name of Sonia Kakkar as Exhibit-1
and the certified copy of registered Sale Deed No.373 dated
30.12.2003 in the name of Binney Kakkar as Exhibit-2.
He further stated that after purchasing the land, with consent of the
father of both parties, who is also the father-in-law of Plaintiff No.2
and Defendant No.2, one three storeyed pucca house was jointly
constructed and jointly given on lease to Hotel Casablanca and Sriram
Finance, ICICI Bank, etc. and after collecting rent jointly, they have
been distributing the same. He exhibited the certified copy of Lease
Deed No.3839 dated 11.08.2016 by which Binney Kakkar and Sonia
Kakkar has given on lease to ICICI Bank as Exhibit-3.
2026:JHHC:6173
He stated that he has filed the original Malgujari Receipt No.53200
dated 03.01.2015 and the correction letter issued by the Revenue
Karmachari and the original receipt of registered Sale deed No.373.
He further stated that after constructing boundary, the rest 15 decimals
of vacant land situated behind the hotel is being used for shed for
vehicles, generator, etc. and the plaintiffs themselves are paying tax to
the Municipal Corporation and he has filed the photocopy of tax
receipt and one Partnership Deed issued in the year 2012. He further
stated that when Defendant No.1 gave advocate notice dated
30.06.2022 to Sriram Finance, he got surprised to see the notice.
Thereafter, a Panchayati was held in the month of July, 2022 and
Defendant No.1 had agreed for partition and the format of the partition
was prepared, but the defendants refused to make their signatures on
the said Bantannama. Thereafter, the plaintiffs have filed the partition
suit against the defendants for getting half share of the disputed
property, which was purchased from the joint fund and the sale deed
was registered in the name of Sonia Kakkar and Binney Kakkar. After
purchasing the property, both the parties have been peacefully
possessing the property jointly without any hindrance and the said
property is joint at present also and is partitionable in equal shares. He
stated that the claim of the plaintiffs is true and the claim of the
defendants is false.
During his cross-examination, P.W-3 admitted as under: -
a. He is engaged in the business of hotel and they are two brothers
and two sisters namely, Alka Mahendru, Sanjay Kakkar, Vivek
Kakkar and Ritu Malik and all the four persons are married.
b. All the brothers and sisters reside separately and are engaged in
their separate business.
c. He and his brother Vivek Kakkar reside separately in Bokaro
since last 20 years and were separately doing their business.
d. He and his wife Sonia Kakkar are income tax payers and they
are engaged in separate business.
2026:JHHC:6173
e. His brother Vivek Kakkar and his wife Binney Kakkar are also
income tax payers and both are engaged in their business
separately.
f. All the four parties have been paying income tax for the last 30-
35 years.
g. His father has died in the year 2017.
h. He further admitted that there were three partners in 'Ispat
Scooter' Firm namely, Kamal Kumar Kakkar, Sanjay Kakkar
and Vivek Kakkar and all the three partners used to get their
salaries separately and they used to pay income tax separately.
i. He further admitted that his wife Sonia Kakkar had purchased
the land in Exhibit-01 vide Sale Deed No.6557 dated
20.12.2003 from her own income, but not from the income of
her business, and she had paid the stamp duty of Rs.45,450/- for
the land purchased vide Sale Deed No.6557 and she paid
consideration vide D.D. No.555182 dated 19.12.2003
Rs.2,95,000/- of Canara Bank which was given to the seller.
j. He also admitted that the land vide Sale Deed No.373 dated
30.12.2003 mentioned in Exhibit-2 was purchased by Binney
Kakkar from the land owner.
k. He further admitted that it is true that Binney Kakkar had paid
the consideration amount of Rs.4,05,000/- vide Canara Bank
D.D. No.555183 dated 19.12.2003 to the seller for the land
purchased vide Sale Deed No.373 and she had paid the stamp
duty of 1,37,400/- for the Sale Deed No.373.
l. He also admitted that mutations of both the lands were done
under separate names and malgujari receipts are being issued
separately.
m. He further admitted that his wife Sonia Kakkar had given D.D.
No.555182 dated 19.12.2003 (Identification-X/5) to the land
owner namely, Manoj Kumar Sahu for purchasing the land and
the consideration money of Rs.2,95,000/- is mentioned in the
Sale Deed No.6557 dated 20.12.2003.
2026:JHHC:6173
n. He also admitted that the Defendant No.2 Binney Kakkar had
given D.D. No.555183 dated 19.12.2003 for payment of the
consideration money of Rs.2,95,000/- (Identification-X/6) to the
land owner namely, Manoj Kumar Sahu for purchasing the land
which is mentioned in the Sale Deed No.373 dated 30.12.2003.
o. He further admitted that the land bearing Plot No.7217, Area 2
½ decimals, Khata No.84 has been purchased by his wife Sonia
Kakkar from the land owner namely, Manoj Kumar Sahu vide
Sale Deed No.6557 dated 20.12.2003 (Exhibit-1).
p. He also admitted that the land bearing Plot No.7217, Area 7.25
decimals, Khata No.84 and Plot No.7208, Area 10.75 decimals
and Plot No.7209, Area 3.50 decimals, Khata No.177, total
Area 21.50 decimals, has been purchased by Binney Kakkar
from the land owner namely, Manoj Kumar Sahu vide Sale
Deed No.373 dated 30.12.2003 (Exhibit-2).
q. He further admitted that the description of the land is mentioned
as Plot Nos.7217, 7208 and 7209, Khata No.84 in the Schedule
of Exhibit-3 and ICICI Bank has taken lease from this Khata
and plot which is mentioned in the schedule.
r. He admitted that neither of the sale deeds or document bears the
signature of his father.
s. He also admitted that E-stamp of Rs.76,010/- was purchased in
the name of Binney Kakkar vide Certificate No. IN-
JH030021241284380 for Exhibit-3.
t. He further admitted that no partition document of any kind and
no partnership deed of any kind have been prepared for the
land.
21. The Defendants examined 02 witnesses namely, Vivek Kakkar
(DW-1) and Binney Kakkar (DW-2) in support of their case.
22. DW-1 (Vivek Kakkar) filed his examination-in-chief on
affidavit stating that he is Defendant No.1 in the suit and he knows
both the parties and he is well acquainted with the facts of the suit. He
further stated that he has no connection with the aforesaid land, rather
the land bearing Plot No.7217, Khata No.84 and Plot Nos.7208 and
2026:JHHC:6173
7209, Khata No.177, total area 21.5 decimals situated at Mouza- Chas
belongs to Defendant No.2 and she has purchased the same from her
income and it not the joint property of the plaintiffs and the
defendants. He further stated that he has been made Defendant No.1 in
the suit for harassing him, as neither the aforesaid land is in his name,
nor he has any document of the land. As the land belongs to the
Defendant No.2 Binney Kakkar, he has no relation of any kind with
the said land. He further stated that Defendant No.2 has purchased the
aforesaid land on 30.12.2003 from her own income from the land
owners namely, Vinod Prasad Sahu, Pramod Kumar Sahu, Kumud
Prasad Sahu, Dilip Kumar Sahu and Ashim Kumar Sahu through their
Attorney Holder namely, Manoj Kumar Sahu and Manoj Kumar Sahu
himself vide Sale Deed No.373 after payment of the consideration
amount of Rs.4,05,000/- vide D.D. No.555183 dated 19.12.2003 to the
land owner namely, Manoj Kumar Sahu and after registration of the
land, Defendant No.2 Binney Kakkar has possession over it at present.
After purchasing the land, Defendant No.2 has been paying all kinds
of tax including malgujari rent for the said land to the Government of
Jharkhand and the malgujari receipt and all kinds of receipts related to
the land are in her name. He further stated that Defendant No.2 is
doing her business independently and she has purchased the land in
her name from her own income. During cross-examination, he
admitted that he has not filed any document on his behalf in the court.
He also admitted that Binney Kakkar has also not filed any document
in support of her claim. He further admitted that he has no relation
with the land of Binney Kakkar. He admitted at Para-18 that he has no
knowledge that on 11.02.2022, one Sada Bantannama was prepared
between Sonia Kakkar and Binney Kakkar, rather both has separate
lands. He stated at Para-22 that 'Ispat Scooter' Firm did not belong to
them and in para 32 that no one is the owner of 'Ispat Scooter'. He
also admitted at Para-27 that he had sent a legal notice dated
30.06.2022 through his advocate to Shriram Finance, but he has not
filed the same in court. He stated at Paragraphs 30 and 31 that he is
not the owner of the disputed land, rather Binney Kakkar is the owner
2026:JHHC:6173
of the entire building. He further admitted at Para-33 that he is not a
witness in the sale deed executed in the name of Sonia Kakkar and
Binney Kakkar.
23. DW-2 (Binney Kakkar) filed his examination-in-chief on
affidavit stating that she is Defendant No.2 in the suit and she knows
both the parties and she is well acquainted with the facts of the suit.
She further stated that she has purchased the land from her hard-
earned income and the land bearing Plot No.7217, Khata No.84 and
Plot Nos.7208 and 7209, Khata No.177, total area 21.5 decimals is
situated at Mouza- Chas, which she had got registered from the raiyat
on 24.01.2004 and she possesses all the documents of the same. She
further stated that she has been made Defendant No.2 in the suit for
harassing her. She further stated that she has purchased the land from
her money and Sonia Kakkar has purchased her land from her own
money and both have possession over their respective lands. She also
stated that she and Sonia Kakkar have independent existence and both
have separate business. She further stated that on 30.12.2003, she has
purchased the aforesaid land from her own income from the land
owners namely, Vinod Prasad Sahu, Pramod Kumar Sahu, Kumud
Prasad Sahu, Dilip Kumar Sahu and Ashim Kumar Sahu through their
Attorney Holder namely, Manoj Kumar Sahu and Manoj Kumar Sahu
himself vide Sale Deed No.373 after payment of the consideration
amount of Rs.4,05,000/- vide D.D. No.555183 dated 19.12.2003 to the
land owner namely, Manoj Kumar Sahu and after registration of the
land, she has possession over the land at present. After purchasing the
land, she has been paying all kinds of tax including malgujari rent for
the said land to the Government of Jharkhand and the malgujari
receipt and all kinds of receipts related to the land are in her name.
She further stated that she has her independent business and she has
purchased the land in her name from her own income and she also
pays income tax.
During cross-examination, she stated that she is having her online
business in her name since 2018 and before 2018, she was engaged in
the business of tuition. She stated that the Sale deed was executed in
2026:JHHC:6173
2003 and she had paid Rs.4,05,000/- through demand draft to the land
owner. She knows that Sonia Kakkar has sale Deed No.6557 dated
20.12.2003 in her name with respect to Plot No.7217, area 2.5
decimals, Khata No.84. In para 26 she has no knowledge about 'Ispat
Scooter'. She stated that on 11.02.2022, no Bantannama was prepared
between her and Sonia Kakkar. She admitted at Para-33 that the Lease
Deed No.3839 executed in favour of ICICI Bank related to her share
of land and it bears her signature, but both persons signed the deed,
which was prepared by the bank. She further admitted at Para-36 that
since marriage till 1996, the kitchen was common. She also admitted
at Para-39 that the entire building has been constructed over her plot,
which has been given on lease to ICICI Bank. She also admitted that
the documents related to her land i.e. deed, mutation, Register-II, rent
receipt and measurement map were prepared by the Circle Officer,
Bokaro in the year 2023-24 and she got them issued from the
concerned offices.
The point of determination no.(ii)
24. The defendants had raised a specific plea that the suit was bad
for non-joinder of necessary parties and during cross-examination of
P.W.3 Sanjay Kakkar, plaintiff no.1, it has come that there were two
sisters in the family apart from the two brothers i.e. plaintiff no.1 and
defendant no.1. The plaintiffs claimed that the suit property was
purchased by Kamal Kumar Kakkar partly in the name of plaintiff
no.2 Sonia Kakkar his daughter in law and partly in the name of
defendant no.2 Binney Kakkar, another daughter in law and the source
of fund was the business income from the partnership firm namely
'Ispat Scooters' which was the joint family fund. Admittedly, Kamal
Kumar Kakkar, expired in the year 2017 i.e. much prior to filing of the
suit.
25. The partition suit was filed by Sanjay Kumar Kakkar, son of
late Kamal Kumar Kakkar and his wife against Vivek Kakkar, son of
late Kamal Kumar Kakkar and his wife, and the daughters of the
family were not made party in the suit seeking partition although, the
property was claimed to have been purchased by Kamal Kumar
2026:JHHC:6173
Kakkar, in the name of his two daughters in law and it was claimed by
the plaintiffs that the property was a joint family property. In case,
there was unity of title and unity of possession as claimed by the
plaintiffs amongst the plaintiffs, defendants and Kamal Kumar
Kakkar, the daughters in the family were necessary parties in the suit
seeking partition, but were not made parties for the reasons best
known to the plaintiffs. It has come in the cross-examination of P.W. 3
(plaintiff no.1) that Kamal Kumar Kakkar had four children; plaintiff
no.1, defendant no.1 and two married sisters namely Alka Mahendru
and Ritu Malik. Admittedly, these two sisters are not party to the
proceedings.
26. The property is said to have been purchased by Kamal Kumar
Kakkar in the name of his two daughters-in-law and as per the
plaintiffs, the property was joint family property. In such
circumstances, the daughters of Kamal Kumar Kakkar (expired in the
year 2017) were necessary parties as they may have a share if the case
of the plaintiffs as pleaded is found to be correct.
27. Accordingly, this Court is of the considered view that the suit
was bad for non-joinder of necessary parties, and the necessary parties
were the two daughters of Kamal Kumar Kakkar. The issue regarding
non-joinder of necessary parties was not framed by the learned trial
court although such plea was raised by the defendants in the written
statement. However, in view of aforesaid facts and circumstances, this
Court finds that the daughters of Kamal Kumar Kakkar were
necessary parties in the suit and the suit seeking partition was bad for
non-joinder of said necessary parties. The point of determination no.
(ii) is accordingly decided against the appellants (plaintiffs) and in
favour of the respondents (defendants).
Point of determination no. (i)
28. Exhibit 1 reveals that the purchaser of the property is plaintiff
no.2, wife of plaintiff no.1, and the sale consideration in the deed has
been mentioned as Rs.2,95,000/- and as per the deed itself the
consideration is paid by the purchaser to the vendor vide bank draft
2026:JHHC:6173
no.555182 dated 19.12.2003 issued by Canara bank, Bokaro Steel City
Branch.
29. Exhibit 2 which is another sale deed purchased by defendant
no.2, wife of defendant no.1. The consideration amount of
Rs.4,05,000/- is mentioned to have been paid by the purchaser vide
bank draft no.555183 dated 19.12.2003 issued by Canara Bank of
India, Bokaro Steel City Branch. The aforesaid two sale deeds
together constitute the entire suit property partly in the name of
plaintiff no.2 and partly in the name of defendant no.2 and the
consideration was mentioned and paid through bank drafts by the
purchaser.
30. In order to decide as to whether there is any unity of title and
unity of possession with respect to the suit property, the core issue
which is required to be decided is whether the suit properties are joint
family properties or they are the self-acquired property of plaintiff
no.2 and defendant no.2, who are the daughters-in- law of late Kamal
Kumar Kakkar.
31. In the judgement passed by the Hon'ble Supreme Court reported
in (2003) 10 SCC 310, (D.S. Lakshmaiah and Another Vs. L.
Balasubramanyam and Another), the question to be determined in
the appeal before Hon'ble Supreme Court as mentioned in paragraph 7
of the report, was who is required to prove the nature of property
whether it is joint Hindu family property or self-acquired property of
the first appellant.
In the said case before the Hon'ble Supreme Court, the original
plaintiffs were the respondents, who had filed a suit for partition. The
specific case in the plaint was that the property in item no.1 had been
acquired by the plaintiffs and the first defendant out of joint Hindu
family funds, but the first defendant was trying to alienate the suit
property for his self-benefit. During the pendency of the suit, the
property mentioned in item no.1 was sold and the purchaser was made
party. The seller of the property was the first appellant and the
purchaser was appellant no.2 before the Hon'ble Supreme Court.
2026:JHHC:6173
The Hon'ble Supreme Court summarized the legal principle to be
applied while deciding as to whether a property is a self-acquired
property or joint family property. After considering numerous earlier
decisions of the Hon'ble Supreme Court, it has been held in paragraph
18 of the aforesaid judgement that there is no presumption that a
property is joint family property merely because a joint Hindu family
exists. It has further been held that the person, who asserts, has to
prove that the property is a 'joint family property'. The court also held
that if the person asserting the property as 'joint family property'
proves that there was a nucleus with which the 'joint family property'
could be acquired, there would be a 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 of joint family nucleus that was available.
Paragraph 18 of the aforesaid judgement is quoted as under:
"18. 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 of joint family nucleus that was available."
32. In the present case, admittedly a part of the suit property stands
in the name of plaintiff no.2 (the daughter in law of the family) and
another part in the name of defendant no.2 (2nd daughter in law of the
family). It is the specific case of the plaintiffs that the property was
purchased partly in the name of plaintiff no.2 and partly in the name
of defendant no.2 from the income of the firm, namely "Ispat
Scooters". It is further pleaded that the property was purchased by
their father Kamal Kumar Kakkar in the name of plaintiff no.2 and
defendant no.2 with the consent of their husbands i.e. plaintiff no.1
and defendant no.1 respectively.
2026:JHHC:6173
33. On the other hand, the defendants claimed that the property,
which was standing in the name of defendant no.2, was purchased by
her from her own fund and consequently it was the self-acquired
property of defendant no.2.
34. Since the plaintiffs claimed that the suit property was a 'joint
family property', it was for the plaintiffs to prove that the property
was a 'joint family property' and for this purpose, the plaintiffs were
required to prove that there was a nucleus fund belonging to the joint
from which the joint family property could be acquired.
35. In the present case, since the properties were standing in the
name of daughters in law, the onus was on the plaintiffs to prove that
the properties were acquired in their names from the nucleus of funds
available with the joint family. However, in the present case, no
evidence has been led by the plaintiffs to support their specific case in
the plaint that the property was purchased by Kamal Kumar Kakkar in
the names of his daughters-in-law and that the consideration for the
purchase of the property was paid by Kamal Kumar Kakkar. Rather,
the evidence of P.W. 3 (plaintiff no.1) reveals that he asserted that the
suit land was purchased from the joint income of the firm "Ispat
Scooters". He also asserted that an agreement of sale was executed
with the vendor of the property and the consideration was paid by the
plaintiff no 1, but the agreement of sale was never exhibited. P.W. 3
further asserted that the transaction of land price was done in cash as
well as through Canara Bank under account no.10063 of the plaintiff
no.1 and asserted that amount was deposited in Canara bank in the
account of plaintiff no.1 from which demand drafts were prepared to
pay the consideration amount to the vendor namely Manoj Kumar
Sahu and the various demand drafts drawn on Canara Bank /
Allahabad Bank/ Indian Overseas bank and one money receipt dated
20.12.2003 for Rs.6,00,000/- were marked "X" for identification. The
sale deeds do not reveal any cash consideration. It is important to note
that P.W. 3 has been thoroughly cross-examined and during his cross-
examination, he admitted that both the brothers i.e. plaintiff no.1 and
defendant no.1 have been living separately for 20 years and running
2026:JHHC:6173
their independent business; he and his wife are income tax assessees
and both of them run their business separately. Similarly, defendant
no.1 and his wife are also income tax assessees and both of them have
their own separate businesses. He also admitted that he, his wife,
defendant no.1 and wife of defendant no.1 have been paying income
tax for approximately 30-35 years and that their father expired in the
year 2017. He further asserted in his cross-examination that in the firm
"Ispat Scooters" there were three partners namely plaintiff no.1,
defendant no.1 and their father Kamal Kumar Kakkar and all the three
partners received separate remuneration and each of them filed income
tax returns for their respective individual incomes. The aforesaid
evidence of P.W. 3 clearly demonstrates that though he has mentioned
business in the name of "Ispat Scooters" and asserted that it had three
partners, but at the same time, he asserted that all the three partners
received separate remuneration and each of them filed their individual
income tax returns.
36. Further, P.W. 3 has clearly stated in his cross examination in
paragraphs 23 and 24 that the property covered by Exhibit 1 was
purchased by his wife i.e. plaintiff no.2, from her own income and that
she had also paid the required stamp duty. He also asserted that the
consideration amount for the property was paid by demand draft
issued by Canara Bank and the consideration amount was paid by his
wife, plaintiff no.2. Similar statement has been made with respect to
Exhibit 2, which relates to the portion of the suit land purchased by
defendant no.2. The evidence of the plaintiff no.1 (P.W-3) is contrary
to his specific case in the plaint that both the properties were
purchased by the father in the name of his daughters-in-law.
37. The evidence of P.W. 3 reveals that plaintiff no.1 and defendant
no.1 both had independent income from the firm namely "Ispat
Scooters" and they used to file their income tax returns with respect to
such income. It further transpires that this witness has clearly stated in
his cross-examination that the properties standing in the name of
plaintiff no.2 and defendant no.2 through sale deed no.6557 dated
20.12.2003 and sale deed no.373 dated 30.12.2003 respectively were
2026:JHHC:6173
purchased by them from their individual incomes and that they also
paid the stamp duty in connection with the purchase of the property in
their names.
38. Further, the plaintiffs have failed to prove their specific case
that money was paid by their father Kamal Kumar Kakkar to buy the
properties in the names of plaintiff no.2 and defendant no.2. Rather,
this witness with respect to the property purchased in the name of his
wife, plaintiff no.2 has stated that the same was purchased by his wife
in her own name from her own income.
39. Considering the materials on record, this Court finds that the
plaintiffs have failed to discharge their initial onus that though the
property was standing in the name of plaintiff no.2 and defendant
no.2, still it was a joint family property for which the consideration
amount was paid from the corpus of joint family fund. Rather, their
evidence is contrary to their case in the plaint. It is important to note
that no bank statement or other documents has been produced to show
as to what was the income of the firm namely "Ispat Scooters" and
further no evidence has been placed on record to show that the
consideration amount was paid from the account of such firm or was
paid by Kamal Kumar Kakkar as claimed by the plaintiffs in the
plaint.
40. Here is a case where the plaintiffs assert that much more
property was purchased in the name of defendant no.2 and much less
property was purchased in the name of plaintiff no.2 and accordingly
the plaintiffs claimed that the property in the name of plaintiff no.2
and also defendant no.2 are the joint family property which was
required to be divided half and half between the plaintiffs and the
defendants. However, the plaintiffs have clearly failed to prove that
the property was purchased from the joint Hindu family fund. Rather
if the evidence of plaintiff no.1 examined as P.W. 3 is taken into
consideration in totality his evidence is contrary to the specific stand
taken in the plaint that the property was purchased by the father in the
name of his two daughters in laws. This is over and above the fact that
the plaintiffs have also failed to prove that the family possesses
2026:JHHC:6173
sufficient nucleus with the aid of which the member could have made
acquisition as no evidence in connection with income of the firm
namely "Ispat Scooters" was produced or exhibited before the court
and the evidence reveals that the plaintiff no.1 , defendant no.1 and
their father were in partnership business and they all derived income
from the business and filed their independent income tax returns.
41. It is also important to note that the plaintiff claimed that the
construction over a portion of the suit property was done by the father
from the income of "Ispat Scooters" but no such evidence was
produced before the court.
42. So far as Exhibit 3 is concerned, the same is a lease deed
executed by plaintiff no.2 and defendant no.2 jointly in favour of
ICICI bank. The description of the property reveals that area
measuring 2414 sq.ft. of carpet area has been let out to ICICI bank in
the ground floor and the owners are shown as plaintiff no.2 and
defendant no.2 and the lease deed also involved the facilities provided
by lessor to the lessee. The consideration amount with respect to the
property was to be divided half and half between the plaintiff no.2 and
defendant no.2 as per clause 2 of the terms and conditions.
Schedule 1
Within district Bokaro, P.S. Chas, district Sub-registry
of Bokaro at Chas, Mouza Chas, No.30, Khata No.84,
Plot No.7217, Area 7.25 decimal and Samil Khata
No.177, Plot No.7208, Area 10.75 decimal and plot
no.7209 area 3.50 decimals total area 21.5 decimal.
Bye pass road, Chas, Bokaro, Jharkhand - 827013
Within district Bokaro P.S. Chas district Sub-registry
of Bokaro at Chas, Mouza Chas No.30 Khata No.84,
Plot No.7217 Area 2.5 decimals. Bye pass road, chas,
Bokaro, Jharkhand 827013.
(Description of the demised premises under those
presents)
2026:JHHC:6173
ICICI bank ltd. Bye pass road, chas Bokaro, jharkhand
827013 admeasuring ground floor 2414 sq. ft of carpet
area.
Owner: Mrs. Binney Kakkar, wife of Sri Vivek Kakkar
and Mrs. Sonia Kakkar, wife of Sri Sanjay Kakkar.
43. Since the property of the plaintiff no.2 and defendant no.2 were
leased out with construction standing over the first floor of the
constructed area and remaining land being vacant, this Court is of the
considered view that the lease deed does not show that the property
was a joint family property. It is a case where two persons had joined
together to let out their property jointly in favour of ICICI bank and
they decided as to what would be the rent and its description amongst
the two owners.
44. The suit property having been jointly let out to ICICI bank with
respect to ground floor of construction and other amenities/facilities
by itself cannot be said to lead to a conclusion that the property was a
joint family property of the plaintiff no.2 and defendant no.2.
45. The learned trial court has recorded a finding that from perusal
of exhibit- 3, the description of schedule property mentioned is Khata
No. 84, plot no. 7217 area 7.5 decimals and khata no. 177, plot no.
7208 area 10.75 decimals and plot no. 7209 area 3.5 decimal total area
20.5 decimals and the owners of the said property are Binney Kakkar
and Sonia Kakkar i.e., defendant no. 2 and plaintiff no. 2 respectively.
It was also recorded that it appears from exhibit- 3 that only a lease
has been given by way of exhibit- 3 to ICICI bank, but there is no
joint ownership of the said property.
46. However, during the course of arguments and upon perusal of
exhibit- 3, it is apparent that the lease hold property includes the plot
no. 7217 measuring 2.5 decimal and thus, the lease hold property to
ICICI bank includes the property belonging to plaintiff no. 2 and also
defendant no. 2, but certainly there is no indication that the entire
property jointly belongs to plaintiff no. 2 and defendant no. 2. It
appears that plaintiff no. 2 and defendant no. 2 have joined together to
2026:JHHC:6173
enter into a lease deed with ICICI bank through exhibit- 3 although
they are independent owners of their respective portion of the leased
property. The finding of the learned trial court stands accordingly
modified.
47. It has also been pointed out by the learned counsel appearing on
behalf of the appellants that at internal page no. 21 of the impugned
judgment, it has been recorded that the property mentioned in
schedule-A was purchased by plaintiff no. 2 and defendant no. 2 by
their own source of income and this is well mentioned in the sale-deed
i.e., exhibits- 1 and 2.
48. This Court finds that the aforesaid finding of the learned trial
court is to be read in the context. Although the perusal of exhibit- 1
and 2 does not reveal that what was the source of income for plaintiff
no. 2 and defendant no. 2 to buy their respective partition of the
property through exhibits- 1 and 2 respectively. However, the
consideration amount as mentioned in exhibit- 1 is Rs. 2,95,000/-
which has been said to have been paid by the purchaser to the vendor
vide bank draft no. 555182 dated 19.12.2003. Meaning thereby that it
is the purchaser who paid the money to the vendor through bank draft.
Similarly, so far as exhibit- 2 is concerned, the consideration amount
mentioned in the sale-deed is Rs. 4,05,000/- which has been said to
have been paid by the purchaser to the vendor vide bank draft no.
555183 dated 19.12.2003, meaning thereby it is the purchaser who has
paid the consideration amount to the vendor through bank draft. Thus,
this court finds that the perusal of the sale deeds reveal that the
consideration amount was paid by the purchasers through demand
drafts as mentioned in the sale deeds themselves and there is no
evidence on record that the money for the bank drafts were from the
joint family fund although it has not been specifically mentioned in
the sale deed that schedule-A was purchased by plaintiff no. 2 and
defendant no. 2 by their own source of income. The finding of the
learned trial court is modified accordingly.
49. This Court is of the view that the aforesaid modifications in the
finding of the learned trial court does not have much bearing in the
2026:JHHC:6173
matter as the plaintiffs have completely failed to prove their case and
have led evidence contrary to their case made out in the plaint. This
Court is of the considered view that the cross-examination of D.W. 1
at paragraphs 22 and 32 and D.W. 2 at paragraph 26 regarding no
knowledge/disputing the existence of 'Ispat Scooter' has no bearing in
this case. The defendants had taken a stand in written statement in
paragraphs 16 and 17 that 'Ispat Scooter' as per plaintiffs is a
partnership firm and all partners have equal share and the property
was not purchased from any joint family fund. The evidence of P.W. 3
as discussed below will reveal that the aforesaid stand of the
defendants has no relevance and the plaintiffs have failed to prove
their case. Rather, P.W. 3 has deposed against his own case as pleaded
in the plaint during his cross-examination.
50. Learned counsel for the appellants has also pointed out that the
learned trial court failed to consider that the proceeds of rent accruing
under exhibit- 3 were being continuously and equally shared between
the parties on a 50:50 basis and this demonstrated joint possession,
joint income and joint contribution and the learned trial court,
according to the learned counsel for the appellants, has omitted to
consider this crucial aspect which was enough to hold that the
property was a joint family property.
51. This Court is of the considered view that the aforesaid
argument advanced by the learned counsel for the appellants is
completely misplaced in view of the fact that it stands admitted that
exhibit- 3 includes the property of plaintiff no. 2 as well as that of
defendant no. 2 and merely because they have joined together to lease
out the property to ICICI bank and the rent was being shared between
them on 50:50 basis, the same does not demonstrate joint possession,
joint income and joint contribution.
52. P.W. 3 in his evidence has clearly stated that both the plaintiffs
and both the defendants are income tax payers and they have
independent source of income. This is apparent from the cross-
examination of P.W. 3. It is also important to note that admittedly
other portions of the suit property were also rented out to different
2026:JHHC:6173
tenants, but no lease deed or rent agreement have been exhibited
before the court to demonstrate the arrangement of distribution of rent
income from such properties. Otherwise also, merely because the rent
income is shared equally between the plaintiff no. 2 and defendant no.
2 on 50:50 basis, the same does not lead to a conclusion that the
property, which is otherwise separate and separately standing in the
name of two different individuals, would become joint.
53. The crucial point which was required to be proved by the
plaintiffs in order to demonstrate that the property was a joint family
property was the source of fund from which the property was
purchased. It was the specific case of the plaintiffs in the plaint that
the property was purchased by the father of plaintiff no. 1 and
defendant no. 1, with the consent of plaintiff no. 1 and defendant no.
1, partly in the name of plaintiff no. 2 and partly in the name of
defendant no. 2 and the source of fund was income from the firm
namely, Ispat Scooters. The plaintiffs have miserably failed to prove
that the source of fund to purchase the property was joint family fund,
although it stood admitted that there was a business in the name and
style of Ispat Scooters.
54. Further, the P.W. 3, who is plaintiff no. 1, has taken a specific
stand in the evidence that the plaintiff no. 1, defendant no.1 and their
father used to get their salary/remuneration from the firm namely,
Ispat Scooters and they used to file income tax returns in their
individual capacity. It has also come in the evidence of P.W. 3 that
plaintiff no. 2 and defendant no. 2 also filed their independent income
tax returns. Thus, it is apparent that even if there was existence of the
firm namely, Ispat Scooters, the father, plaintiff no.1 and defendant
no.1 were drawing independent income from the firm and they were
independently filing their returns. There is no iota of evidence from
the side of the plaintiffs that the fund to buy the property was provided
by the father namely, Kamal Kumar Kakkar. Thus, although the
business of Ispat Scooters is proved, but there is no proof of existence
of joint family corpus which could have been the source of fund to
buy the properties. Admittedly, the male members of the family were
2026:JHHC:6173
drawing independent income from the business in the capacity of
being partners of the firm "Ispat Scooters" by way of remuneration
and were filing independent income tax return. Thus, the plaintiffs
have failed to discharge their onus to prove that the property was a
joint family property and that there was a nucleus arising out of joint
family income from which the suit properties were purchased partly in
the name of plaintiff no. 2 and partly in the name of defendant no. 2.
In view of the aforesaid findings and in the light of the judgment
passed by the Hon'ble Supreme Court reported in (2003) 10 SCC 310
(D.S. Lakshmaiah and Another Vs. L. Balasubramanyam and
Another), this Court is of the considered view that the impugned
judgment holding that there was no unity of title and unity of
possession with respect to the suit properties and that the suit
properties were not joint family properties does not call for any
interference.
Point of determination no.(iii)-
55. This Court has held as aforesaid that there was no unity of title
and unity of possession with respect to the suit properties. In such
circumstances, the plaintiffs are not entitled to ½ share of the suit
property as claimed through the partition suit.
56. All the points of determination are decided against the
appellants (plaintiffs) and in favour of the respondents (defendants).
57. Accordingly, this appeal is dismissed.
(Anubha Rawat Choudhary, J.)
Pronounced on 09/03/2026
Saurav/-
Uploaded on 10.03.2026
