Orissa High Court
Indramani Nayak (After Him) Smt. Susila ... vs Ainthu Nayak And Anr. on 24 December, 1993
Equivalent citations: 1994(I)OLR121
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT A. Pasayat, J.
1. Defendants in a suit for partition are the appellants. Original defendant No. 1 having died during pendency of appeal, his legal representatives have been impleaded as appellants 1(a) to 1(e). The dispute in this appeal relates to only schedule 'Ga' property. Plaintiffs-respondents staked claim over the said property. Defendant No. 1 claimed that it was his self acquired property, while plaintiffs claimed it was acquired out of the joint family funds. Learned Subordinate Judge, Anandapur (hereinafter referred to as "trial Judge)" accepted the stand of the plaintiffs, and that is how the matter is in this Court.
2. Stand of original defendant Mo. 1, Indramani Nayak, was that a part of the Property was his sole and exclusive property, and it was acquired in a revenue sale, out of his own funds accumulated while working for gain at Calcutta. The rest was purchased from one Bhakta Charan Rout for a sum of Rs. 50/-, out of Stridhan of his wife (DW 5). Amongst other issues, the relevant issue in respect of this dispute is issue No. 3 which reads as follows :
"3. Has the plaintiff any share over the 'Ga' schedule property ?"
After stating the findings of the trial Court and discussing the evidence, it is found :
5. There is no presumption that family, because it is joint, possesses joint property or any property. (See K. L. S. W. R. Annamalal Chetty v. K. L. S. W. R. Subramanian Chetty, AIR 1929 PC 1, Bhura Mal v. Jagannath and Ors., AIR 1942 PC 13, Bhagaban Dayal (since deceased) and thereafter his heirs and legal representatives Banagopal Dubey and Anr. v. Mst. Rooti Devi (deceased) and after her death, Mst. Dayavati, her daughter. AIR 1962 SC 287 and Indranarayan v. Roop Narayan and Anr., 1971 (2) SCC 438). When in a suit for partition, a party claims that a particular item of property is joint family property, burden of proving that it so rests on the party asserting it, whenever in any suit or proceeding the dispute is whether certain property is joint family property, or separate property the question upon whom the onus or burden of proof lies naturally arises. The onus is regulated by the general principles embodied in Sections 101 to 104 of the Indian Evidence Act, 1872, viz, the proof of any particular fact lies on the party who alleges it, not on him who denies it. Where however, the Court ought to make any presumption Under Section 114 of the said Act, the burden shifts according to the nature of presumption made. If a presumption arises at all, several questions arise, such as in what direction or rather in favour of what particular state of things is the presumption to be made, within what limits it may have operation, and so on. To render property joint, plaintiff must prove that family was possessed of some property with income of which property could have been acquired or from which presumption could be drawn that all property possessed by family is joint family property or that it was purchased with joint family property or that it was purchased with joint family funds, such as proceeds of sale of ancestral property or by joint labour. None of these alternatives is a matter of legal presumption. It can only be brought to the cognizance of a Court in the same way as any other fact, namely, by evidence. Where it is established or admitted that family possessed some joint property which from its nature and relative value may have formed nucleus from which property in question may have been acquired, presumption aries that it was joint property and burden shifts to the party alleging self-acquisition to establish affirmatively that property was acquired without aid of joint family. (See Srinivas Krishnarao Kango v. Narayan Devi Mango and Ors.,AIR 1954 SC 379). But no such presumption would arise if the nucleus is such that with its help property claimed to be joint could not have been acquired. In order to give ries to the presumption the nucleus must be such that with its help. the property claimed to be joint could have been acquired. An important element for consideration is the income which the nucleus yielded. (See Kuppala Obul Reddy v. Monimala Venkata Narayan Reddy (dead) through Lrs. AIR 1984 SC 1171). These are not abstract questions of law but questions of fact to be determined on the evidence in the case. Existence of some nucleus is that sole criterion to impress subsequent acquisition for family character. What is to be shown is that the family had a result of the nucleus sufficient surplus income from which subsequent acquisitions could be made. This may be shown from the nature and relative value of nucleus itself. Where however, existence of nucleus is shown and no other source of income is disclosed, presumption may be made that nucleus was sufficient to enable the property to be acquired. Where the manager claims that what is acquired is his separate property, he should prove that he acquired it with his separate funds. (See Malleseppa Bondeppa Desai and Anr. v. Desai Mallapa alias Mallesappa and Anr., AIR 1981 SC 1266 and Muddigowda Gowdappa Sankh and Ors. v. Ramchandra Revgowda Sankh (dead) by his legal representatives and Anr., AIR 1969 SC 1976.
6. Coming to facts of the case, observation of learned trial Judge that there was enough profit from Bagayat of joint family is characterised to be an error of record. Evidence of DW 3, son of Indramani is very significant. In paragraph-7 of his cross-examination, he has admitted that he had no personal knowledge as to the source of consi- deration money of property but it was informed that money was brought by his mother as dowry. According to him, the old house collapsed during cyclone of 1971 and new house was constructed seven years prior to the cyclone. Evidence of DW 5, the wife of Indramani is also significant. Firstly, she stated that schedule 'Ga' property was acquired from out of her Stridhan, about 15 to 16 years ago. Again she stated that it was acquired 40years ago from Bhabagrahi Naik for cash consideration. A portion of the land was acquired in revenue sale for Rs. 50/-, and balance was subsequently purchased for Rs. 70/-. In cross-examination she stated that purchase was made about 10 to 15 years ago and the revenue sale also took place 15 to 20 years back. Her evidence is absolutely confusing. At one stage, she stated that purchase was made 15 to 16 years back, but again stated it to be 40 years back. She again reverted back to 15 to 16 years ago. She was stated that purchase was made from Bhabagrahi Naik. So far as nucleus aspect is concerned, evidence of DW 4 i.e. Indramani Naik was to the effect that his wife DW 5 gave Rs. 50/- on one occasion and Rs. 70/- on another occasion for payment of consideration of schedule 'Ga' property. DW 1 is Bhakta Charan Rout who sold the property in 1949. In paragraph-5 of his evidence he has accepted that there was revenue sale of AO.25 decimals of his land. The parties have a Bagayat of mango, bamboo, khambalu and Panasa and the like from where they have some income. He stated that income was distributed amongst branches of plaintiffs and defendants. With reference to his evidence, learned trial Judge held that availability of funds from joint family sources was clearly established. Learned counsel for appellants however. submitted that there was misinterpreta- tion of his evidence and some income has been wrongly interpreted to be "enough income" by learned trial Judge. There can be no doubt that 'some and 'enough' intrinsically convey different meanings, but the fact remains that existence of a joint family property yielding income has been established. The question is adequacy of that source for acquisition. It is not a case where it can be said that there was no income whatsoever of the joint family. Evidence of DW 1 itself shows that it was sufficient enough to be distributed. According to Narottam Naik (DW 3), son of original defendant No. 1, he had no personal* knowledge as to the source of consideration, but he was informed that money was brought by his mother as dowry, which was utilised. I am therefore, of the view that conclusion of learned trial Judge cannot be characterised to be perverse so as to warrant any interference. Additionally, continued possession of plaintiffs in the house is a factor which cannot be lost sight of. Plea about demolition of old house by cyclone and permissive possession of the plaintiffs has been rightly discarded by learned trial Judge with reference to statement of DWs as regards period when the old house was demolished and new house was constructed, and the period from which plaintiffs are in possession.
I find no merit in this appeal which is accordingly dismissed. No costs.