Himachal Pradesh High Court
Parma Nand vs Sudama Ram And Ors. on 30 June, 1993
JUDGMENT Kamlesh Sharma, J.
1. The dispute between the parties is in respect of the following properties:--
(a) Ghair Mumkin Gharat located in Khasra No. 182 measuring 1 Biswa situated in village Sujala.
(b) Land measuring 6 Bighas 8 Biswas comprised in Khasra Nos. 186 to 190 and 192 situate in village Behali.
(c) Land measuring 13 Bighas comprised in Khasra Nos. 20, 21, 39 and 41 situated in village Sujala, Teh. Arki.
2. Admittedly, the properties in dispute were purchased in the individual name of respondent-defendant No. 1 Sudama Ram and are also recorded as such in the revenue record. The claim of the appellant-plaintiff is that the properties in dispute were purchased with the funds of Joint Hindu Family constituted of him, Sudama Ram and pro forma respondent-defendant No. 2 Chaudhary Ram, who are real brothers. Sudama Ram has disputed this claim and asserted that the properties in dispute are his individual properties purchased from his separate income.
3. Both the Courts below have though held that the properties in dispute were purchased at the time when all the three brothers, Parma Nand, Sudama Ram and Chaudhary Ram, were constituting a Joint Hindu Family and that there were lands of Joint Hindu Family which could provide nucleus for the purchase of the properties in dispute, yet, the claim of Parma Nand is rejected that the properties in dispute are Joint Hindu Family properties on the ground that he has failed to prove that the said nucleus was sufficient with which the properties in dispute could be purchased. Both the Courts below have not examined whether Sudama Ram had separate income sufficient to purchase the properties in dispute in his individual name on the ground that this would have been necessary had Parma Nand discharged the onus to prove that the nucleus was sufficient to purchase the properties in dispute. Now, in the present Regular Second Appeal, Parma Nand has challenged these findings.
4. This Court has heard the learned counsel for the parties and gone through the record. According to Sh. Chhabil Dass, learned counsel for Sudama Ram, the findings that Parma Nand has failed to prove that the nucleus was not sufficient to purchase the properties in dispute, are the findings of fact which cannot be interfered with in the exercise of the powers under Section 100, C.P.C. He has supported these findings of the Courts below which, according to him, are based on settled law that there is no presumption that Hindu family, merely because it is joint, possesses any joint property and the burden to prove that a particular property is joint family property is on the person who claims it so, by establishing that there existed joint family property which could provide nucleus to purchase it. Mr. Chhabil Dass has further submitted that since Parma Nand has failed to discharge this onus, his client Sudama Ram need not prove that he had any independent income sufficient to purchase the properties in dispute. On the other hand, Sh. Bhupender Gupta, learned counsel for Parma Nand, has urged that the concurrent findings of fact need to be interfered with as both the Courts below have not only misread the pleadings and the evidence on record but have also adopted a wrong approach to appreciate the facts and circumstances on record and to apply the settled law to them.
5. No doubt, it is well settled by now that there is no presumption that a Joint Hindu Family possesses joint family property. The burden of proving that a particular property is a joint family property is on the person who claims it as such. But if the possession of a nucleus of a joint family property is either admitted or proved, any property acquired by a member of the Joint Hindu Family is presumed to be joint family property. Moreover, the nucleus of the joint family should be such as with its aid, the property in question could be acquired. It is only after the possession of an adequate nucleus is shown that the onus shifts on to the person who claims the property as self-acquired to show that he has purchased the property in question with his individual resources and without the aid of the joint family assets. (Please see: Srinivas Krishnarao Kango v. Narayan Devji Kango, AIR 1954 SC 379; Mallappa Girimallappa Betgeri v. R. Yellappagouda Patil, AIR 1959 SC 906; K. V. Narayanaswami Iyer v. K. V. Ramakrishna Iyer, AIR 1965 SC 289 and Mudigowda Gowdappa Sankh v. Ramachandra Revgowda Sankh (Dead), AIR 1969 SC 1076).
6. There are concurrent findings of both the Courts below which have been accepted by the parties that the properties in dispute were purchased in the years 1966-67, 1968-69 and 1971 respectively when all the three brothers, namely, Parma Nand, Sudama Ram and Chaudhary Ram constituted a joint Hindu family. It is also held concurrently by both the Courts below that there were joint Hindu family properties and those could form the nucleus for the purchase of the properties in dispute. But according to the Courts below, Parma Nand has failed to produce any evidence to show what was the income from the joint Hindu family properties and whether it was sufficient to form the nucleus for the purchase of the properties in dispute. In his written statement Sudama Ram had denied that he, Parma Nand and Chaudhary Ram formed a joint Hindu family, though he has admitted that the properties mentioned in para 3 of the plaint were recorded in their joint ownership. According to him, all the three brothers had their separate income and expenditure from the very beginning and he had purchased the properties in dispute from his separate income. In para 5 of his written statement, he has specifically alleged that, ".....the defendant Sudama used to sell milk and doing cattle business used to earn his living." The particulars of joint Hindu family property which are given in para 3 are proved by the Jamabandis for the years 1974-75, Ex.P.W-1/A, Ex.P.W-1/B and Ex.P.W-1/C. The area of this land comes to about 41 Bighas and about half of it is cultivable and the remaining half is Ghasni. From these facts and other evidence on record that Sudama Ram was residing in the village and managing the lands and affairs of the joint family whereas Parma Nand was serving in the Army and Chaudhary Ram was also in Government service at the relevant time and their families were jointly residing in the village with the family of Sudama Ram, it can be presumed that the joint Hindu family fund consisting of income from the lands and savings of Parma Nand and Chaudhary Ram out of their salaries could provide sufficient nucleus for purchase of the properties in dispute. It is correct that Parma Nand was not able to produce evidence that how much money was sent by him and Chaudhary Ram from time to time but in the opinion of this Court, it is not necessary that every fact should be proved by positive evidence but can be proved by inference from a set of facts.
7. It was never the case of Sudama Ram that joint family property was not sufficient to provide nucleus for the purchase of properties in dispute. His case was that they were separate and he had purchased the properties in dispute with his individual income. Though in his written statement he has stated that he had independent source of income from selling milk and doing cattle business, yet, in his cross-examination he has controverted himself that his earnings of Rs. 400/- to Rs. 500/- from selling milk used to be spent on the maintenance of cows and buffaloes only. His further statement that he used to work as labourer is also of no effect as it is in variance with the pleadings and also lacks particulars. Except his bald statement he has not produced any evidence to corroborate that he had any individual income or source to purchase the properties in dispute.
8. Therefore, in the peculiar facts and circumstances of the case, both the Courts below were not right in holding that Parma Nand has failed to discharge the onus that the nucleus of joint Hindu family fund was not (?) sufficient to purchase the properties in dispute and onus has not shifted on to Sudama Ram to prove that he had purchased the properties in dispute from his individual income. Had the Courts below examined whether Sudama Ram has proved that he had sufficient individual income to purchase the properties in dispute, they would have answered in the negative. Further, both the Courts below have committed factual error in holding that the property in dispute at Sr. No. (b) was purchased on 17th January, 1968 earlier to the receipt of an amount of Rs. 830/- on 27th January, 1968 as redemption money by Sudama Ram therefore, it could not form the nucleus for the purchase of this property as alleged by Parma Nand. The receipt of this amount is proved by Ex.P-1. The property in dispute at Sr.No. (b), which is land measuring 6 Bighas 8 Biswas was purchased by sale deed Mark-A executed and registered on 17th January, 1969 and mutation, Ex.P.W-1/E thereof was attested on 14th February, 1969, about one year after the receipt of the amount on 27th January, 1968. Had the Courts below noticed the correct date of purchase of the property in dispute at Sr. No. (b), they would not have rejected the contention of Parma Nand that it was purchased with redemption money of Rs. 830/- plus contribution of Rs. 200/- by him and Rs. 400/- by Chaudhary Ram. The bald statement of Sudama Ram that this amount of Rs. 830/- was spent by him on the Kirya ceremony of their father is without any corroboration and does not inspire confidence.
9. From the totality of evidence on record, it cannot be said that it is a case in which the nucleus of joint Hindu family property is proved to be insufficient, therefore, onus must shift to Sudama Ram, who is claiming the properties in dispute as his individual properties to prove that he had sufficient individual income or resources to purchase the properties in dispute. As discussed above, Sudama Ram has not been able to show that he had any individual income or resources to purchase the properties in dispute. Hence, the inevitable conclusion is that the properties in dispute purchased by him in his individual name were purchased by the nucleus of the joint Hindu family fund and are joint Hindu family properties to be shared by Parma Nand, Sudama Ram and Chaudhary Ram in equal share.
10. The result of the above discussion is that the appeal is accepted. The decree and judgment dated 31st July, 1984 passed by the District Judge at Nahan and the decree and judgment dated 11th August, 1983 passed by the Sub Judge, Arki, District Solan, are set aside. The suit of the plaintiff is decreed for declaration that the properties in dispute are joint between Sudama Ram, Parma Nand and Chaudhary Ram and they are entitled to these in equal share. Consequential decree for joint possession of these properties, till these are partitioned, is also passed. Costs on parties.