Patna High Court
Sital Singh And Ors. vs Ram Prasad Singh And Ors. on 26 April, 1957
Equivalent citations: AIR1957PAT398, AIR 1957 PATNA 398
JUDGMENT Dayal, J.
1. These two first appeals arise out of a decision in Title Suit No. 54 of 1956 of the Subordinate Judge, Second Court, Muzaffarpur.
2. The appellants of First Appeal No. 211 of 1948 instituted the above suit for partition against the appellants of the First Appeal No. 152 of 1948. The plaintiffs are the sons of Jamuna Singh, the deceased brother of Bam Prasad Singh (defendant No. 1). The other respondents are the sons of defendant No. 1 Jamuna and Ram Prasad had one more brother named Gangotri Singh, who died unmarried.
3. The plaintiffs' case, in short, is that the parties have been separate in mess since 1944, but the family is still joint in other respects and 'defendant No. 1 is the Karta thereof, the properties movable and immovable, sought to be partitioned, according to the plaintiffs, are still joint, the total valuation thereof is Rs. 10,101. The immovable properties included both ancestral and self-acquired. Lately, there have been disputes between the parties. Hence the suit. The plaintiffs also seek rendition of accounts from defendant No. 1 in his capacity of Karta of the family.
4. Defendant No. 1 alone contested the suit. He has filed a written statement. According to him, his father Manrup had two marriages and Jamuna, father of the plaintiffs was born by the first wife and he and Gangotri by the second. There used to be differences between Jamuna and his step mother and Jamuna accordingly separated during the life time of his father. It is alleged that, on the death of Manrup, there was a partition, whereby one-third of -the ancestral properties was allotted to the plaintiffs and two-thirds to the defendants and Gangotri, who continued Joint. Later on, a Kora (Ext. A) was prepared in 1328 incorporating the divisions made by partition, Gangotri died sometime after unmarried. The defence case is that the share of Gangotri devolved on defendant No. 1 by survivor ship with the result that the entire two-third share belonged to him. The properties other than ancestral are claimed to be acquisition of his branch. In regard to the movables, defendant No. 1 says that some of them are non-existent and the others belong to him.
5. One of the minor defendants, namely, minor defendant No. 4, has appeared through a pleader-guardian, who has filed a formal written statement.
6. The Court below decreed the suit in part. The relevant portion of the decree runs as follows :
"The plaintiffs are entitled to partition of all the immovable properties excepting the cloth shop at Hajipur and all the movables that may be found excepting the ornaments which may be in possession of the female members of the family. The share of the parties will be half and half. The plaintiffs are not entitled to any accounts. ...."
Thus it appears that the defence case has been substantially disbelieved.
7. As against this decision, the plaintiffs have filed First Appeal No. 211 of 1948 and the defendants have filed First Appeal No. 162 of 1948.
8. The plaintiffs' appeal is only concerned with the cloth shop at Hajipur. The Court below has. held that :
"There is no reliable evidence in this case that the shop was started with the joint family, funds. Witnesses on behalf of the plaintiff have no doubt stated that the shop is a joint family shop. Such assertion by itself cannot be enough. The witnesses do not claim to have seen the account book of the shop. They also do not claim that any investment in the shop-took place in their presence.. In the circumstances, it must be excluded from partition."
9. Mr. Prem Lall, appearing for the appellants in First Appeal No. 211 of 1948, has submitted that the decision of the Court below is clearly erroneous. There was sufficient' nucleous of joint family property which conclusively proves that the shop in question had been started with the aid of the Joint family funds.
10. In Chandradeb Lall v. Nandji Lall, A. I. R. 1950 Pat 33 (A), a Division Bench of this Court has held that:
" ... . when in a suit for a partition a party claims that any particular item of property held by an individual member is a joint family property the burden of proving that It is so rests on the party asserting It. "He must show that the family was possessed of some property with the aid of which the property in question could have been acquired," and it is only after that is shown that the onus shifts to the party alleging self-acquisition to affirmatively make out that the property, was acquired without any aid from the family estate."
"Where the possession of nucleus of Joint family property is either admitted or proved, an acquisition made by a member of the family is presumed to be joint family property. But this is subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. And it is only after the possession of an adequate nucleus is shown, the onus shifts on to the person who claims the property as self-acquisition, affirmatively to make out that the property was acquired without any aid from the family estate."
(See Mayne's Hindu Law and Usage: eleventh edition, pages 359-360.) "A member of a joint family who engages 'in trade can make separate acquisitions of property for his own benefit; and 'unless it can be shown that the business grew from a nucleus of joint family property or that the earnings were blended with Joint family estate, they remain his self-acquired property."
(See Mulla's Principles of Hindu Law, eighth edition, page 257: Section 233, Clause 3.)"
11. Now let us examine the position here. The plaintiffs' case in this regard is stated In para, 5 of the plaint which runs as follows :.
"Some other properties were acquired with the income of the property of the joint family, and a clothshop was started at Hajipur about six years ago, with the joint family fund which is still in existence."
Defendant No. 1, in para. 12 of his written statement, has, averred :
"The plaintiffs' allegation contained in para. 5 of the plaint, is totally wrong and false. Neither was any property acquired with the income' of the joint family nor was the cloth shop which is at Hajipur started with the funds of the joint family. 'Rather the said cloth shop exclusively belongs to defendants 2 and 3 which was started with the personal funds of defendants 2 and 3. It is their exclusive business and even defendant 1 has got no concern and connection with the said shop-keeping business."
'Defendants 2 and 3 have neither filed any written statement nor have they contested the suit.' Defendant 1, who was examined as defence witness 5, has deposed :
"A sum of Rs. 400 or 500 was the, capital of the Hajipur cloth shop......"
Thus, the plaintiffs can succeed only if they can show from the financial position of the family that there was sufficient nucleus, at least, to the extent of Rs. 400 to Rs. 500 in the family from which the cloth shop could have been started.
12. Mr. Prem Lall has shown that there was enough nucleus and, in support of this, he has placed before us Exhibits 5B, B(3), B(1), B(2), B(4), B{5), I and B(6),
13. Exhibit 5 is "or the 11th September 1908 which shows that Rs. 1,390-12-0 was due to Manrup under a mortgage bond dated the 14th June 1905 which Manrup got from Jainarain Singh by Virtue of the sale-deed (Ex. 5). Exhibit B is of the 18th February 1909 which shows that certain Milkiat was purchased by the mother of defendant 1 for Rs. 1,500, Exhibit B (3) shows that Dahaur Singh alias Bam Prasad Singh (defendant 1) purchased some properties for Rs. 100 on the 20th April 1920. Exhibit B(1) shows that 6 kathas 4 dhurs of land was purchased under the name of defendant 1 for Rs. 400 on the 5th December 1929. Exhibit B (2) shows that 4 kathas 12 dhurs of land was purchased for Rs. 253 in the name of the maternal uncle of defendant on the 6th January 1930. Exhibit B (4) shows that 5 kathas of land was purchased in the name of defendant 1 for Rs. 175, of the 24th June 1930. Exhibit B(5) shows that 12 kathas of land was purchased in the name of Ram Prasad Singh for Rs. 232 on the 7th September 1931. Exhibit. I is a money-decree in a Small Cause Court suit dated the 28th August 1934 in favour of defendants 1 to 3 and the decree is for Rs, 545-11-0. Exhibit B (6) shows, that 3 kathas 8 dhurs of land was purchased for Rs. 150 in the name of defendant 1 on the 2nd January 1942.
14. The exhibits referred to and discussed above clearly show that the joint family had sufficient nucleus to start a cloth shop near about 1940 in Hajipur on a capital of Rs. 400 or Rs. 500. No rebutting evidence has been placed before us. Defendants 2 and 3 did not contest the suit. Therefore, on the findings and authorities referred to above,, the only conclusion is that the shop is a joint family property which must be partitioned unless we accept the story of the previous partition., as is alleged by the defendants.
15. Mr. G. P. Das, appearing for the defendants, therefore, has argued the defendants' appeal (First Appeal No. 152 of 1948) in reply to the submission made on behalf of the plaintiff's in their appeal and has contended that there has been previous partition.
16. The case of previous partition, however,, has not been made out; and such a case must fail for the following reasons :
1. In the written statement, Para. 9, defendant No. 1 has stated that Manrup had two wives and that Jamuna Singh was born of the first wife and. defendant No. 1 was born of the second. There, used to be differences between Jamuna and his stepmother and so Jamuna separated during the lifetime of Manrup. The Court below has held, on a full and fair consideration of the evidence, that Manrup had only one wife and Jamuna defendant No. 1 and Gangotri were all born of her. This finding has not been assailed by Mr. Das. Therefore, the reason for the separation goes.
2. In Mt. Bhagwani Kuttwar v. Mohan Singh AIR 1925 P C 132 (B), it has been laid down :
"It is well established law that those who allege that the members of a joint Hindu family had separated must prove, unless it is admitted, that there was a separation at some material time, a separation proved to have taken place at time subsequent to the material time does not shift the burden of proving separation at the material time, on the opposite party."
Now the position here is discrepant, as will appear from reason No. 3.
3. According to the written statement, severance in status took place in the lifetime of Manrupand partition took place sometime before 1328 Fasli (1921) but Kora (Ex. A) was prepared in 1328. According to the deposition of D. W. 5 who is defendant No. 1, the partition took place in 1314=(1907) and the Kora (Ex. A) was drawn up in 1328=(1921), Now Mr. Das, in argument, has contended that separation took place after the death of Manrup. These discrepancies between the pleading, the evidence and the argument taken together with the fact that the reason for the alleged separation has failed goes a long way to discredit, if not to demolish completely, the case of separation and partition,, as alleged by the defendants.
17. In support of the story of partition, Mr. Das has relied on the evidence of defendant No. 1. The latter, in his cross-examination, has stated :
"......Kora was the sole paper regarding the partition. ......I was a Civil Court peon at Hajipur. I was dismissed. I was also prosecuted, under Section 193, I. P. C., for submitting false report. I, was convicted In that case..... I was prosecuted for selling stolen folio stamps......"
Besides being an interested witness, he is not reliable. On his own evidence, he gives a complete go by to the Kora when he says that it is the sole paper regarding the partition. He is clearly lying as will appear when I come to examine the Kora (Ex. A). Mr. Das has, however, relied on the deposition of D. W. 1. He also came to support the Kora (Ex, A). He has denied the suggestion that he is a friend of defendant No. 1. He has denied that he had gone to Bhagalpur with defendant No. 1 to purchase horses Ex. 11 shows that he went with defendant No. 1 to Bhagalpur to purchase horses, In these circumstances, his deposition cannot be relied upon. This is all the oral evidence on which Mr. Das has relied.
18. Mr. Das has further referred to Exs. H, J, and A. Exhibit H is a certified copy of a Sud Bharna bond, executed by the father of the plaintiffs in favour of defendant No. 1 in the year 1928. Apart from the fact that property conveyed by the father of the plaintiffs did not belong to the plaintiffs but belonged to Hardwar, this document is not admissible in evidence. This is merely a certified copy and the loss or destruction of the original has not been proved. Exhibit J is a handnote, said to have been executed by the father of the plaintiffs in 1932. In this document, there is no mention of the payee's name. Therefore, it has no evidentiary value for the point under consideration. Exhibit A, the Kora, is the only document evidencing the partition. Curiously enough, it is on a Sada paper. It, is neither stamped nor registered. The signature of Jamuna on it appears to be of doubtful character, it does not bear the thumb-mark of Jamuna. But, apart from that, the Kora stands condemned by the statements made by defendant No. 1 himself in previous cases between the parties. These depositions are Exs. 3 to 3 (b) and 3 (e). In the deposition, Ex. 3 (a), he first stated:
'"There is no paper of Batwara between-myself and the father of the accused ", meaning the present plaintiffs. He then modified the above statement by saying :
"There is no registered Batwara paper, but there is a Khista paper and in bears the thumb-mark of Jamuna".
The Kora before us does not bear the thumb-mark of Jamuna. More important, however, are the statements of the defendant in Ex. 3 (e), his deposition in a title suit brought by him against Hardwar and the present plaintiffs. His evidence there was that the Panches actually went to the plot's for division and Jhoors were planted somewhere by the Panches and the memorandum itself was drawn only by him and Jamuna and it was not made known to the Panches. Then, again, here he first stated that the copy filed by him was the only Kora prepared regarding the partition. Subsequently, he Stated that two copies of Kora were prepared over the signatures of both parties and one copy was made over to Jamuna an another to him. In the deposition (Ex. 3), however, he appears to have stated that the Kora was prepared in duplicate, one bearing his signature was given to Jamuna and the other bearing Jamuna's signature was given to the defendant. Thus, according to that statement, no copy of the Kora bore signatures of both parties but bore only the signature of one. The Kora before us, however, purports to bear the signatures of both. These statements taken together with the antecedents of defendant No. 1 leave no manner of doubt that the Kora is a fabricated document, and cannot be relied upon.
19. Mr. Das, has however, strongly relied on the judgment (Ex. D) in the suit brought by the defendant against Hardwar in respect of Khata No. 234. The present plaintiffs were defendants second party in that suit and the plaint (Ex. P) and the Judgment taken together show that, in their presence, the defendants alleged that they were separate from them. The question, however, whether Jamuna or the plaintiffs were separate from the defendants or not was not a matter directly and substantially in issue and, apart from certain observations here and there suggesting that the two were separate, there is no clear finding in the judgment. The Judgment of the trial Court (Ex. 12) also shows the same thing. I do not, therefore, see how that Judgment can be relied upon in support of the story of separation and partition.
20. Mr. Das, then, contended that one bigha of land, which defendant No. 1 acquired by the Istamrari Mokarari Patta on the 14th February 1944, as is evidenced by Ex. K, should be held to be the self-acquired property of defendant No. 1. In support of his contention, he referred to para. 7 of the plaint, which -runs as follows :
"During the pendency of the said suit, defendant No. 1 began to ill-treat the plaintiffs, in consequence of which, the plaintiffs became separate in mess from the defendants since the beginning of 1944 .'....."
There is no substance in this contention too. The plaintiffs did not say that there was partition In. the beginning of 1944; There is merely a mention of separation in mess. That does not amount to separation in status. Besides, beginning of 1944 may be even February or March 1944.
21. Mr. Das next cited Bhuru Mal v. Jagannath, A. I. r. 1942 P. C. 13 (C). This case does not demolish the nucleus theory.
22. Thus, on a consideration of all the materials placed before us, I hold that the story of partition is not true and that the parties are still Joint and that the Hajipur cloth shop is a joint family property and the plaintiffs are entitled to a half share in it. .
23. In the result, First Appeal No. 211 of. 1948 is allowed with costs and First Appeal No. 152 of 1948 is dismissed with costs. There will, however, be only one set of hearing fee for both the cases.
Choudhary, J.
24. I agree.