Patna High Court
Kameshwar Nath And Ors. vs Raghubir Mahto And Ors. on 28 August, 1963
Equivalent citations: AIR1964PAT290, AIR 1964 PATNA 290
JUDGMENT Ramratna Singh, J.
1. This miscellaneous second appeal and the civil revision have been heard together as the prayer in both is that the order of tha first appellate Court, namely, the second Additional Subordinate Judge, dated the 9th April, 1962, dismissing the appeal of the appellants in the miscellaneous appeal, who are the petitioners in the civil revision, is without jurisdiction.
2. The respondents first party of the miscellaneous appeal, who are opposite first party, obtained a money decree against respondent second party who is opposite second party; and in execution of that decree a piecs of land belonging to the judgment-debtor measuring 14 katlias in Madhubani town was sold on the 9th July, 1990. The appellants, who are the sons of the judgment-debtor and live jointly with him, filed a miscellaneous case under Order 21 Rule 90, Civil Procedure Code, for setting aside the sale on several grounds. The miscellaneous case was dismissed by the executing Court and its order was upheld by the second Additional Subordinate Judge of Darbhanga. One of the grounds for which the miscellaneous case was dismissed was that, inasmuch as the property in question was the self-acquired property of the judgment-debtor, me interest of the appellants had not been affected by the sale, and, therefore, they had no right to question we sale under Order 21 Rule 90, Civil Procedure Code.
It was alleged by the appellants that the property was held jointly by them and their lather. They did not say as to how the property had been acquired in fact the property had been acquired partly by a sale deed and partly by settlement, both in the name of the judgment-debtor. The sale deed was produced, but no document regarding the settlement is on record. One of the appellants stated that the disputed land was acquired jointly by his family members in the name of his father; but subsequently he said that the land had been purchased with the money of his mother. The learned Subordinate Judge, therefore, rightly observed that the subsequent statement went against the earlier stand of the appellants that the property had been acquired with joint family tunas.
Further, the learned Subordinate Judge pointed out that, according to the evidence of the appellants the family which consisted of the three appellants, their mother and their father had only 4 to 5 bighas of land and no other property; and, therefore, he held that there was not sufficient nucleus with the aid of which any property could be acquired, and that, as the land in dispute was admittedly acquired in the name of the judgment-debtor, who had independent source of income. It was his self-acquired property. The judgment-debtor was admittedly the head-clerk of the Sub-divisional Officer at Madhubani when the property was acquired. Therefore, he had some income from this employment. On the evidence on the record both the Courts below found that the joint family of the appellants had not sufficient nucleus with the aid of which any property could be acquired and the disputed land was the self-acquired property of the judgment debtor in view of this finding of fact, the conclusion that the petitioners had no interest in the land and, therefore, they were not competent to question the sai9 under Order 21 rule 90, Civil Procedure code, is correct.
3. But Mr. Aswini Kumar Sinna, who appeared for the appellants submitted that once it was established that the joint family had some nucleus, even though that nucleus might be land measuring 5 bighas or less, the presumption is that any property acquired in the name of any member of the family subsequently was joint family property, and, therefore, the observation of the learned subordinate Judge that the disputed land would be the self-acquired property of the judgment-debtor, unless it was proved that there was nucleus from which the property could be acquired, was wrong. He submitted that in the instant case there was some nucleus and that was sufficient to place the onus on the decree-holders to prove that the disputed land was the self-acquired property of the judgment-debtor. He relied on the observation of Lord Campbell in the case of Dhurm Das Pandey v. Mt. Shama Soondery Debiah, 3 Moo Ind App. 229 (PC) to the following effect:
"It is allowed that they had some joint property, and there can be no doubt that, under these circumstance the presumption of law is, that all the property they were in possession of was joint property, until it was shown by evidence that one member of the family was possessed of separate property."
There can be no dispute about the principle enunciated in this observation, but, as I shall presently show, it does not contain the entire principle on the subject. Then he referred to the decision of the Privy Council in Amar Nath v. Hukam Chand Nathumal, 2 Pat LT 201 : (AIR 1921 PC 35) where it was held that in a joint Hindu family, the rule is that the acquisitions of the members are joint property and partible, but one of the recognised exceptions is 'gains of science' acquired without detriment to the ancestral estate and that personal earnings and acquisitions may remain partible throughout the unseparated member's life if he was originally equipped for the calling or career in which the gains were made by a special training at the expense of the patrimony in that case the member was held to have special training at the expense of the patrimony inasmuch as he had become a member of the Indian Civil Service at the cost of the joint family. But in the instant case the judgment-debtor had no special training and he was employed as a mere clerk in the office of the Subdivisional Officer at Madhubani where he acquired the disputed land.
The question regarding the presumption arising out of the nucleus of a joint family is now well settled and is fully stated in a decision of the Supreme court in the case of Srinivas Krishnarao v. Narayan Devji, AIR 1954 SC 3/9. Their Lordships said that the proof or 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 any one asserting mat 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 nave 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 whether the evidence adduced by the plaintiff was sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and the extent of the nucleus; and the important thing to consider is the income which the nucleus yields. This decision was followed by the Supreme Court in Mallappa Girimailappa Betgeri v. K. Yenappagonda Patil, AIR 1959 S.C. 906.
In view of the above principle laid down by the Supreme Court, the reasonings and order of the courts below cannot be said to be wrong. in the instant case, the only joint family property consisted of 5 bighas of cutturable land and five members of the family had to be maintained from the income of this property. It appears that 2 kathas 6 dhurs and odd out of the disputed land which measured 14 kathas was purchased by the judgment-debtor Baleshwar Nath in May 1954 under a registered sale deed for Rs. 1500/-. The remaining area of 11 kathas and odd was acquired through settlement; but it is not known what was the cost of that settlement it is obvious that there could be no saving from the income of 5 bighas for the acquisition of the disputed land; and, therefore, the learned Subordinate judge was right in homing that the disputed land was self-acquired property or the Judgment-debtor. Hence, the appellants had no interest in the disputed land and they could not challenge the sale under Order 21, Rule 90, Civil Procedure Code.
4. In the result, both the appeal and the civil revision are dismissed; but costs of this Court will be allowed in the miscellaneous appeal only.