Orissa High Court
Gavala Ankamma And Ors. vs Gavala Mahalaxmi And Ors. on 4 December, 1987
Equivalent citations: AIR1988ORI160, AIR 1988 ORISSA 160
JUDGMENT V. Gopalaswamy, J.
1. The facts giving rise to the present appeal against the confirming judgment of the Additional District Judge, Berhainpur, may be briefly stated as follows : The present respondent 1, the widow of late G, Jagayya, by herself as plaintiff 1, and on behalf of her minor daughter, plaintiff 2 (present respondent 2), filed the Title Suit No. 11 of 1972, a suit for partition, against her father-in-law, Jangalu (defendant 1) and Jangalu's minor son, defendant 2 (present appellant 2), alleging that they are the members of a Mitakshara Hindu Joint Family and the plaint A Schedule properties are the properties of the said joint family, and claiming that as the heirs of late Jagayya (son of Jangalu) they are entitled to a share in the suit properties. That after the death of the original defendant 1 Jangalu, his L.Rs. 1(a) to 1(f), were substituted in his place, and 1(a) and 1(c), his widow and daughter, are the present appellants 1 and 3 respectively. The case of plaintiff 1 (respondent 1) is that after the death of her husband Jagayya in 1967, there were dissensions in the family, when she referred the matter to the Bhadralogs and according to their decision, plaint B Schedule properties were tentatively allotted to her, pending final decision in the matter. Thereafter for the purpose of discharging the loan incurred by her husband she had to sell item No. 6 of the B Schedule properties to one Mari Ankamma, defendant 3 (present respondent 7), under a registered sale deed dated 22-2-1971. The case of the original defendant 1 Jangalu is that the entire suit properties are his self-acquired properties and the same are not available for partition and that there was never any decision by the Bhadralogs to allot B Schedule properties in favour of plaintiff 1, and that the plaintiffs' suit for partition is, therefore, liable to be dismissed. The said Jangalu had filed T. S. No. 37 of 1977 on the file of the Munsif, Berhampur against the widow of Jagayya (as B Schedule properties), Mari Ankamma, as defendant 2, praying for a declaration that the said registered sale deed dated 22-2-1971 is void and not binding on him, and further praying permanent injunction restraining defendant 2 from entering into the land covered by the said sale deed, on the ground that the said item No. 6 of the B Schedule property mentioned in the said registered sale deed dated 22-2-1971 was his self-acquired property. Both the said suits, T. S. No. 37 of 1971 and T. S. No. 11 of 1972 were tried analogously by the Munsif, Berhampur and he passed a common judgment and decree cover both the suits, and dismissed Title Suit No. 37 of 1971 while decreeing Title Suit No. 11 of 1972. As against the judgment and decree passed in Title Suit No. 37 of 1971 dismissing the suit, an appeal was preferred and Title Appeal No. 68 of 1979, on the file of the Additional District Judge, Berhampur is that appeal. As against the judgment and decree, decreeing Title Suit No. 11 of 1972, an appeal was preferred and Title Appeal No. 60 of 1979, on the file of the Additional District Judge, is that appeal. Both the appeals were heard together and the learned Additional District Judge dismissed both the appeals by a common judgment. The present Second Appeal is preferred only against the judgment and decree dated 28-1-1980 and 25-2-1980, respectively, passed in Title Appeal No. 60 of 1979 dismissing the appeal.
2. According to the plaintiff-respondents, the suit properties are the joint family properties of Jangalu and his sons Jagayya and Korleyya and therefore, as the heirs of deceased Jagayya, the plaintiffs are entitled to their legitimate share in the suit properties. Late Jangalu, and after him, his L.Rs. contend that the suit properties, being the self acquired properties of Jangalu, the plaintiffs are not entitled to claim any share therein and, therefore, the suit is liable to be dismissed. Thus it is seen that the main point of dispute between the parties is whether the suit properties are the joint family properties of late Jangalu and his sons or whether they are the self-acquired properties of late Jangalu. Both the courts below found that the suit properties are the joint family properties of Jangalu and his sons and that, therefore, the same are available for partition and it is against such concurrent findings of the courts below, the appellants have preferred the present appeal.
3. In this Court the learned counsel for the appellants contended that the courts below acted illegally in placing the burden of proof on the defendants to prove that the suit properties were not the joint family properties.
4. From the plaint A Schedule it is seen that the total extent of the suit lands is 4.69 acres. Ext. D is the registered sale deed executed by one Subbamma in favour of late Jangalu for an extent of 70 cents of land in the year 1927. Ext. E is another sale deed whereunder one Sukri Naik and his son sold one acre of land in favour of Jangalu in the year 1935. So it is only in relation to an extent of 1 acre 70 cents of land there are sale deeds in favour of Jangalu and as regards the balance extent of about 3 acres of land, the defendants failed to place any reliable evidence to show as to how at all they can claim the same to be the self-acquired properties of Jangalu. So from the proved facts, both the courts below were justified in holding that the said balance extent of about 3 acres of land are the ancestral properties of Jangalu. So what remains to be considered is whether at all the lands acquired by Jangalu, under the registered sale deeds Exts. D and E, can be held to be the salf-acquired properties of Jangalu as claimed by him. It is earlier seen that before the dates of these acquisitions under Exts. D and E, the joint family was found to be in possession and enjoyment of an extent of about 3 acres of land. It is this background that the aspect of burden of proof raised by the appellants merits consideration.
5. As Exts. D and E stood in the name of Jangalu, the initial burden of proving the same to be the joint family properties, no doubt lay on the plaintiff. But then the plaintiff could successfully discharge such initial burden by showing that the joint family had a nucleus of about three acres of land. Both the courts below found that the said quantum of three acres of land was sufficient nucleus for the acquisitions under Exts. D and E. It is relevant to note that only 70 cents of land was purchased in the year 1927 and the balanceone acreofland was purchased about 8 years thereafter. In any event the sufficiency of the nucleus is again a question of fact as observed in Mallappa Girimallappa v. R.. Yellappagouda, AIR 1959 SC 906. So in Second Appeal this Court cannot interfere with the concurrent findings of fact of the courts below that the said extent of about 3 acres of land provided a sufficient nucleus of joint family property out of which the lands covered by registered sale deeds Exts. D and E might have been acquired.
6. In the present case admittedly late Jangalu was the Manager and Karta of the joint family by the relevant dates of the execution of the said deeds Exts. D and R Further, it is earlier seen that the joint family possessed about 3 acres of land which was found to be sufficient nucleus for the acquisition of lands under Exts. D and E. In Mallesappa Bandeppa Desai v. Desai Mallappa, AIR 1961 SC 1268 it was held that where a manager claims that any immovable property has been acquired by him with his own separate funds and and not with the help of the joint family funds of which he was in possession and charee, it is for him to prove by clear and satisfactory evidence his plea that the purchase money proceeded from his separate fund and that the onus of proof must in such a case be placed on the manager and not on his coparceners. Admittedly, the only occupation of late Jangalu was the cultivation of his ancestral family lands and besides the ancestral lands, he had no other independent source of income by the relevant date. So the courts below were right in holding that in view of the admitted and proved facts in the case, the burden of proving that the lands purchased under Exts. D and E were the self-acquisitions of late Jangalu shifts on to the defendants. From the material placed on record, it is seen that the defendants are not able to discharge the burden that lay on them to show that the lands purchased in the name of Jangalu were his self-acquired properties. So, I find that the appellate court did not misplace the burden of proof in arriving at the finding that the lands covered by sale deeds Exts. D and E are also the joint family properties of Jangalu and his sons.
7. The learned counsel for the appellants contended that the learned Additional District Judge ought to have received the two registered sale deeds filed by the appellants as additional evidence on their behalf under Order 41, R, 27, C.P.C.. The said two registered sale deeds are in the name of Jangalu. One of them is of the year 1942 for an extent of 20 cents of land whereas the other is of the year 1968 for an extent of 30 cents of land. It appears that all the relevant documents to be filed in the trial court were with the lawyer and the appellants do not come out with any acceptable explanation as to why at all the said two registered sale deeds were not filed in the trial court itself. The power under Order 41, Rule 27 should be exercised cautiously and sparingly. It should be proved that the evidence sought to be let in was not available at the trial. The rule does not authorise the admission of additional evidence for the purpose of removal of lacunae and filling in gaps in evidence as held by the Supreme Court in State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912 and Dasarathi Chamar v. Balmukunda Das, AIR 1959 Orissa 38. So, considering all aspects of the matters, I find that the learned Additional District Judge was justified in refusing to receive the said registered sale deeds as additional evidence.
8. No other substantial point of law was urged before me by the learned counsel for the appellants.
9. In the result, I find no merit in the appeal and accordingly the same is dismissed, on contest, with costs.