Ramesh Chand vs Mool Chand (D) Ramwati Bai & Ors.
2023 Latest Caselaw 7006 MP

                               1


     IN THE HIGH COURT OF MADHYA PRADESH
                 A T JA BALPUR
                          BEFORE
       HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                   ON THE 1st OF MAY, 2023
                  SECOND APPEAL No. 780 of 1999

BETWEEN:-
RAMESH     CHAND,     S/O
GHASIRAM AGED ABOUT 42
YEARS,       OCCUPATION
TEACHER   R/O   JAWAHAR
WARD BINA DISTRICT SAGAR
(MADHYA PRADESH)
                                                  .....APPELLANT
(BY SHRI SAKET AGARWAL - ADVOCATE)

AND
1.    MOOLCHAND
      (DECEASED)   THROUGH
      L.RS.  RAMWATI     BAI
      WIDOW      OF    LATE
      MOOLCHAND,       AGED
      ABOUT     59    YEARS
      (MADHYA PRADESH)
2.    SANTOSH   S/O   LATE
      MOOLCHAND         R/O
      RAMWARD          BINA
      DISTRICT      SAGAR
      (MADHYA PRADESH)
3.    RAJESH    S/O   LATE
      MOOLCHAND         R/O
      RAMWARD          BINA
      DISTRICT      SAGAR
      (MADHYA PRADESH)
                                            .....RESPONDENTS
     (NONE)

"Reserved on : 20.04.2023"
                                   2


"Pronounced on : 01.05.2023".
      This appeal having been heard and reserved for judgment, coming on
for pronouncement this day, the court passed the following:
                                JUDGMENT

1. This Second Appeal has been filed against the Judgment and Decree dated 23-2-1999, passed by 5th Additional District Judge, Sagar Camp Khurai in Civil Appeal No. 52A/1998 arising out of Judgment and Decree dated 27-9-1997 passed by Civil Judge Class 1 Khurai Camp, Bina Distt. Sagar, in Civil Suit No. 98A/1997.

2. The appellant is the plaintiff who has lost his case from both the Courts below.

3. The appellant/plaintiff filed a suit for possession pleading interalia that he is the owner of the house in dispute. The said house was purchased by his father in his name by registered sale deed dated 27-3-1959 and possession was taken. Since, the plaintiff was minor, therefore, the name of his father was recorded in the records of Municipal Council, Bina. The defendant is the relative of the plaintiff and he was permitted to reside in the house till he constructs his own house. He was permitted to occupy the house about 6-7 years back, but he has not vacated the same and is deliberately not constructing his house. On 10-7-1990, the defendant has encroached upon the first floor of the house also. The defendant in reply to the notice, has falsely denied the ownership of the plaintiff. That the plaintiff wants the house in question for his own residential purposes. By way of amendment it was also pleaded that the father of the plaintiff was earning by residing separately from the defendant and had purchased and constructed the house out of his own income. Even if it is presumed that

the father of the plaintiff and Moolchand had 1/5th share, then the defendant could not have got more than 3x30 and after separating the ½ share of the plaintiff, only 1 ½ x 30 would have left for the defendant and it was impossible to construct the house. The father of the plaintiff and the defendant had already separated prior to purchase of the house in question. The father of the plaintiff had voluntarily purchased a plot of 600 sq. ft. in the name of defendant in Chhoti Bajaria. Therefore, it was claimed that the defendant has no share in the house in question.

4. The defendant filed his written statement and claimed that at the time of purchase of the house in question, the father of the plaintiff and the defendant were the members of Joint Hindu Family. The sale deed was got executed in the name of the defendant. However, the property was purchased from the income of Joint Hindu Family Property. The house was jointly constructed by the father of the plaintiff and the defendant. It was pleaded that the defendant is in possession since 1959 and has not encroached upon any part of the same. In the year 1963, verbal partition took place between the father of the plaintiff and defendant and the house in question came to the share of the defendant. Since, the plaintiff is his nephew, therefore, he was permitted to run a shop situated in front. The same has been let out by the plaintiff and has charged Rs. 5000/- by way of security amount. It was pleaded that the father of the plaintiff and the defendant had 1/5th share in the house and the remaining members of the family have 4/5th share. The father of the plaintiff, the defendant and their mother had filed a civil suit against the other members of the family which was registered as C.S. No. 133A/1959 and by Judgment and Decree dated 29-11-1957, the share of the father of the plaintiff, defendant and mother

was held to be 1/5 and the remaining 4/5th share was declared to be of other members of the family. Later one, the other members of the family sold their share which was purchased in the name of the plaintiff.

5. The Trial Court after framing issues and recording evidence, dismissed the suit.

6. Being aggrieved by Judgment and Decree passed by the Trial Court, the Appellant filed an appeal which too has been dismissed.

7. This Second Appeal was admitted on the following Substantial Questions of Law :

(i) Whether under the facts and circumstances of the case, the suit property could be purchased by the appellant from the Joint Hindu Family Fund ?

(ii) Whether the document Ex. P.1, dated 27-3-1959 itself shows that the sale deed was executed after a decree of partition in Civil Suit No. 133-A of 1957 was passed wherein the four shares in the suit property belonging to the members of the Joint Hindu Family were sold to the appellant for a consideration of Rs. 2,800/-?

(iii) Whether in view of Ex. P/1, dated 27-3-1959, the respondents had any right to claim a share in the suit property after sale of the property by the co-sharers to the appellant ?

8. The Civil Suit No. 133-A of 1957 was filed by Ghasiram, Moolchand and Smt. Sarju against Shanker, Brijlal, Ghasita, Smt. Mahroniwali, Bhagwandas, Smt. Kali Toranwali, Bhaiyalal, Kishanlal, Gopilal, Roshanlal, Gori, Mannu and Smt. Nauni Dulaiya. As per the preliminary decree, Ex. D.2, 1/5th share was given to Ghasiram, Moolchand and Smt. Sarju, whereas 1/5th share was given to Shanker, 1/5th share to Brijlal, Ghasita, and Smt. Mahroniwali, 1/5th share Bhagwandas and Smt. Kali Toranwali, and remaining 1/5th share to

Bhaiyalal, Kishanlal, Gopilal, Roshanlal, Gori, Mannu and Smt. Nauni Dulaiya. Lateron, Shanker, Brijlal, Ghasita, Smt. Mahroniwali, Bhagwandas, Smt. Kali Toranwali, Bhaiyalal, Kishanlal, Gopilal, Roshanlal, Gori, Mannu and Smt. Nauni Dulaiya sold their share to Ghasiram, Moolchand and their mother Sarju and the sale deed was executed in the name of the plaintiff. There is no evidence on record to suggest that any partition took place between Ghasirm (father of plaintiff) and Moolchand (Defendant). By decree passed in C.S. No. 133-A of 1957, since, 1/5th share was given to father of plaintiff namely Ghasiram, Moolchand (Def) and their mother Smt. Sarju, therefore, it is clear that there was no severance of joint status of father of plaintiff and Moolchand (Defendant).

9. Since, the property in dispute was purchased from the other co- sharers namely Shanker, Brijlal, Ghasita, Smt. Mahroniwali, Bhagwandas, Smt. Kali Toranwali, Bhaiyalal, Kishanlal, Gopilal, Roshanlal, Gori, Mannu and Smt. Nauni Dulaiya therefore, now the only question for consideration is that whether father of Plaintiff, namely Ghasiram was the exclusive owner of the property or it was purchased from the funds of Joint Hindu Family.

10. It is the case of the defendant that the property in dispute was purchased from the funds of Joint Hindu Family Property.

11. The Supreme Court in the case of Bhagwat Sharan v. Purushottam, reported in (2020) 6 SCC 387 has held as under :

10. At the outset we may note that a lot of arguments were addressed and judgments were cited on the attributes of HUF and the manner in which it can be constituted. In view of the facts narrated above, in our view, a large number of these

arguments and citations need not be considered. The law is well settled that the burden is on the person who alleges that the property is a joint property of an HUF to prove the same.

Reference in this behalf may be made to the judgments of this Court in Bhagwan Dayal v. Reoti Devi1. Both the parties have placed reliance on this judgment. In this case, this Court held that the general principle is that a Hindu family is presumed to be joint unless the contrary is proved. It was further held that where one of the coparceners separated himself from other members of the joint family there was no presumption that the rest of coparceners continued to constitute a joint family. However, it was also held that at the same time there is no presumption that because one member of the family has separated, the rest of the family is no longer a joint family. However, it is important to note that this Court in Bhagwati Prasad Sah v. Dulhin Rameshwari Kuer, it held as follows : (SCC p. 491, para 10) "10. ... Except in the case of reunion, the mere fact that separated coparceners chose to live together or act jointly for purposes of business or trade or in their dealings with properties, would not give them the status of coparceners under the Mitakshara law."

11. The Privy Council in Randhi Appalaswami v. Randhi Suryanarayanamurti held as follows : (SCC OnLine PC) "... The Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property."

The aforesaid view was accepted by this Court in Shrinivas Krishnarao Kango v. Narayan Devji Kango.

12. In D.S. Lakshmaiah v. L. Balasubramanyam5 this Court held as follows : (D.S. Lakshmaiah case, SCC p. 317, para 18) "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." Similar view was taken in Rukhmabai v. Lala Laxminarayan and Appasaheb Peerappa Chamdgade v. Devendra Peerappa Chamdgade. The law is thus well settled that the burden lies upon the person who alleges the existence of the Hindu Undivided Family to prove the same.

13. Normally, an HUF can only comprise of all the family members with the head of the family being karta. Some property has to be the nucleus for this joint family. There is cleavage of opinion as to whether two brothers of a larger group can form a joint family. But assuming that such a joint family could have been formed by Madhav Prashad and Umrao Lal the burden lies heavily on the plaintiff to prove that the two of them joined together to form an HUF. To prove this, they will have to not only show jointness of the property but also jointness of family and jointness of living together.

12. In the present case, it is the case of the plaintiff himself that his father namely Ghasiram and defendant Moolchand and their mother were declared 1/5th share in the property and the remaining property was sold by other co-sharers. It is the case of the plaintiff that the property in question was purchased by his father from his own income, whereas it is the case of the defendant that the property in dispute was purchased from the funds of

Joint Hindu Family Property. The jointness of families of Ghasiram and Moolchand is the case of both the parties. Therefore, now the only question for consideration is that whether any partition had taken place between Ghasiram and Moolchand or not?

13. It is the case of the defendant that partition took place and the disputed house came to his share. However, it is the case of Ghasiram that he had purchased the property from his own funds.

14. Ghasiram (P.W.2) in para 5 of his examination in chief admitted that the house in dispute is an ancestral house but immediately he took a stand that it is the property of the members of his bloodline which was purchased by him. He admitted that a decree was passed that he and his brother Moolchand has 1/5th share in the house and also admitted that Moolchand has share in the property in dispute. He further admitted that he is having one more ancestral house which is in his possession and is residing all alone in the said ancestral house. However, he denied the suggestion that it was decided that Moolchand would get the house in question and Ghasiram (P.W.2) would get another ancestral house situated in Jawaharnagar. Thereafter, he admitted that the defendant is residing in the house in question, but again he took a self contradictory stand that the defendant is residing in another ancestral house situated in Jawaharnagar.

15. Rameshchand (P.W.1) has also admitted that he has another ancestral house in which he and his father are residing.

16. Babulal Namdeo (P.W.3) has stated that the defendant is residing in the house in dispute whereas the plaintiff is residing with his father in another house. He also admitted enmity between Ghasiram (P.W.2) and Moolchand/Defendant.

17. Sobharam (P.W.4) has stated that Ghasiram (P.W.2) had constructed a house and he was the labourer working there. His wages were paid by Ghasiram. However, in cross-examination, it was admitted by this witness, that although his wages were being paid by Ghasiram (P.W.2) but the defendant was residing there. Ghasiram (P.W.2) has admitted that when the property in dispute was purchased, there was only a hut and house was constructed thereafter.

18. Thus, it is clear that the plaintiff and defendant have two ancestral houses out of which one is in possession of plaintiff and another is in possession of the defendant. Further even at the time of construction of house, the defendant was residing there.

19. Moolchand (D.W.1) has stated that on the verbal instructions of their mother, he is occupying the house in dispute whereas the plaintiff and Ghasiram (P.W.2) are residing in another ancestral house situated in Jawaharnagar.

20. In view of the various admissions made by Ramesh chand (P.W.1) and Ghasiram (P.W.2) and their witnesses Babulal (P.W.3) and Sobharam (P.W.4) it is clear that Moolchand had share in the house in dispute. The father of the plaintiff and Moolchand had another ancestral house. A family settlement was done by their mother and the house in question was given to the defendant and the house situated in Jawaharnagar was given to Ghasiram (P.W.2). Prior to this family settlement, there is nothing on record to suggest that any partition had taken place. There is nothing on record that Ghasiram (P.W.2) and Moolchand (D.W.1) were having separate business. Thus, it is clear that the house in question was purchased out of the funds of Joint Hindu Family Property.

21. Accordingly, all the three Substantial Questions of Law are answered in Negative.

22 Ex consequenti, the Judgment and Decree dated 23-2-1999, passed by 5th Additional District Judge, Sagar Camp Khurai in Civil Appeal No. 52A/1998 and Judgment and Decree dated 27-9-1997 passed by Civil Judge Class 1 Khurai Camp, Bina Distt. Sagar, in Civil Suit No. 98A/1997 are hereby affirmed.

23. The appeal fails and is hereby Dismissed.

                                                  (G.S. AHLUWALIA)
HEMANT SARAF                                              JUDGE
2023.05.02 10:24:27
+05'30'
HS