Madhya Pradesh High Court
Sudama Shau & Anr., vs Sunderlal Sahu & Ors on 8 February, 2013
Author: K.K. Trivedi
Bench: K.K. Trivedi
HIGH COURT OF MADHYA PRADESH : JABALPUR.
First Appeal No.67/1996
Sudama Sahu
(since deceased through L.Rs and another)
Vs
Sunderlal Sahu
(since deceased through L.Rs and another)
PRESENT :
Hon'ble Shri Justice K.K. Trivedi. J.
Shri Ravish Agrawal, learned Senior counsel assisted
by Shri Kaushutubh Jha, learned counsel for the
appellants.
None for the respondents, though served and earlier
represented.
JUDGMENT
(08.2.2013) This appeal under Section 96 of the Code of Civil Procedure has been filed by the appellants/defendants against the judgment and decree dated 13.12.1995 passed in Civil Suit No.9-A/1984, by the I Addl. Judge to the Court of District Judge Seoni.
2: Facts giving rise to filing of this appeal in brief are that the respondents/plaintiffs Sunderlal and Tikaram filed the suit for declaration of their title over the half of the portion of the suit property, the house, land and movable and also for delivery of possession of the same. It was contended that one Sumatiya Bai was the married wife of Shivram. Out of the wedlock, the original defendants No. 1 and 2, original 2 appellants before this Court, were the two sons born. The husband of Sumatiya Bai died in the year 1945. This Sumatiya Bai remarried to Sukkulal in the year 1946. Out of the said wedlock, the original plaintiffs Sunderlal and Tikaram, the original respondents in appeal, were born. Sumatiya Bai had two daughters from her first husband Shivram, namely, Bhurwati Bai and Budhiya Bai. Budhiya Bai had died. A suit was filed by the original plaintiffs against their father and others claiming partition. In the said Civil Suit, the statements of original plaintiff Sunderlal were recorded on 30.3.1970. Later on, the said suit was dismissed for want of prosecution. The plaintiffs thereafter filed the suit contending that Sukkulal had deserted the mother of the plaintiff Sumatiya Bai, who sought some protection of law and was granted the maintenance under the provisions of Section 488 of the Code of Criminal Procedure as was before the amendment. Since this amount was not being paid, certain recovery proceedings were done and out of the said proceedings, amount of Rs.600-800/- was recovered and paid to said Sumatiya Bai. Since all the family members were living together including the original defendants/appellants before this Court and the plaintiff, respondent in appeal in one house, said Sumatiya Bai made available the funds for establishing a business. A small shop was started on wheeler cart and later on, out of the income of the said shop, the house in suit were purchased. A grossery shop was also established and a hotel was also started. However, later on, the defendants had driven out the respondents/plaintiffs without giving any share and, therefore, for the purposes of claiming their rights, the suit was required to be filed.
3: The appellants/defendants contested the suit by filing their written statements denying the claim made by the 3 respondents and stating that the frivolous claim was made by the respondents in the suit. It was contended that the plaintiffs/respondents had no share in the property of Shivram, who died in the year 1945. The house was constructed by said Shivram and it has to be devolved in the appellants being the legal heirs of said Shivram. Other properties were purchased and made by the appellants from their own earnings and the plaintiffs/respondents had no right over the said property. It was contended that no specific pleadings were made with respect to the joint Hindu family business, nothing was indicated as to how much income was derived out of that business and how the property was purchased by the appellants in their own name. It was categorically contended that the grossery shop was established by the appellants and house was constructed on the land so obtained on lease. Of course, in some of the sale deeds while making the purchase, out of the love and affection, since the plaintiffs/ respondents were also the sons of the mother of the defendants/ appellants, their names were mentioned in one or two sale deeds, but they were also shown to be the son of Shivram, whereas, in fact they were the sons of Sukkulal. It was contended that an imaginary claim is made that out of the maintenance amount paid to the mother of the appellants, the business was started. On the other hand, the statements were made that Sukkulal had never paid any amount of maintenance and he was sent to the jail on account of non-payment of maintenance amount to his wife Sumatiya Bai. Thus, it was contended that the suit was frivolous and was liable to be dismissed.
4: The trial Court framed issues, recorded the evidence and came to the conclusion that property in suit was joint in nature and in fact it was to be devolved in between the 4 appellants and respondents and decreed the suit, hence this appeal by defendants.
5: It is, vehemently, contended by learned Senior counsel for the appellants that in view of the specific law, there was no question of any inference of joint Hindu family property. Reading para 230 of Principle of Hindu Law by Mulla 17th Edition, it is contended by learned senior counsel that if a separate property is acquired in the manner prescribed under the said paragraph, it will be treated as self acquired property and cannot be treated to be joint property. A Government grant is also to be treated as a separate property of a joint Hindu family member and it is not to be included in the joint family property. Drawing attention of this Court to a lease granted in favour of appellants, a document which has been placed on record along with I.A.No.10305/2012 filed under Order 41 Rule 27 of the Code of Civil Procedure, learned Senior counsel has contended that the grant was executed in favour of appellants way back in the year 1961-62 and the same was recorded in the year 1963. The settlement was done in favour of appellants as was clear from the revenue records and, thus, to the said extent the property included in the suit more particularly shown in the plaint map as house constructed on land bearing No.381/1 cannot be said to be joint Hindu family property. As far as the other part shown in the said plaint map is concerned, the other building was in the name of father of the appellants, Shivram and, thus, the respondents/plaintiffs would have no claim over the said land. Again reading the provisions of Hindu Law in paragraph 234, it is contended that for such business, the respondents would be stranger and would not be entitled to claim any right over the said business. It is contended that there is no presumption that a business carried on by a 5 member of a joint Hindu family is joint Hindu family business. If a co-parcener starts the business of joint Hindu property with the consent of other coparceners and the other coparceners do not make any capital contribution to such business, it is held to be not a business started by the coparceners. Referring to the law laid down in the case of Satchidananda Samanta V. Ranjan Kumar Basu and others [AIR 1992 Calcutta 222], Parikshita Mohapatra V. Sita Dei and others [AIR 1971 Orissa 204] and Chattanatha V. Ramchandra (AIR 1955 SC
799). It is contended by learned Senior counsel for the appellants that if the entire evidence is marshaled, it will be clear that the findings recorded by the Court below were totally perverse.
6: The total case of the respondents/plaintiffs was that some money was received by the mother Sumatiya Bai as maintenance from Sukkulal and the said fund was made available to the brothers for starting the joint business. This was to be demonstrated by the respondents as to how much amount was payable to said Sumatiya Bai towards maintenance, how the recovery of the amount was done and how such amount was distributed. Upon their own showing the plaintiffs/respondents have utterly failed to do so. Firstly, the statement of respondent No.1, in the Court where an earlier suit was filed, was placed on record. In the said statement, the respondent No.1 has categorically stated that though an order of payment of maintenance was issued by the competent Court, but the amount was not being paid by Sukkulal and, therefore, recovery proceedings were initiated. He admits in the said statement placed on record as Ex.D/1 that amount was not being paid by the father of the respondents/plaintiffs to his mother. Though the earlier suit was filed by the 6 respondent as indigent person and the said statement was recorded by conducting preliminary enquiry, but Sukkulal himself was there in the Court and he cross examined the respondent No.1. It was categorically said that the mother of the original respondents No. 1 and 2 was driven out of the house by their father Sukkulal and she was not being given any maintenance amount. The respondents themselves were working in a hotel and grossery shop and they were getting cloths and foods from the appellants herein. The plaintiffs/respondents were being looked after by their step brother, the appellants herein, for the last 4-5 years. From this statement, it was clear that no amount was paid towards the maintenance to the mother of the respondents. If any recovery proceedings were done, it was necessary on the part of the respondents to produce some documentary evidence in that respect.
7: As against this admission made in the Court when the statements of respondents were recorded and original plaintiff No.1 Sunderlal was examined, he deposed in the Court that such a statement was made only because the appellants herein have advised him to make such statement. Even when he was shown the certified copy of the statement, he admitted that he has made the statement, but he had not explained anything as to how and why such a statement was made. Law in this respect is very clear. Once an admission is made, the same cannot be withdrawn without giving a cogent reason. An admission is the best evidence that an opposite party can rely upon. In the case of Narayan Bhagwantrao Gosavi Balajiwale V. Gopal Vinayak Gosavi and others (AIR 1960 SC 100), the Apex Court has categorically held that an admission is the best evidence that an opposite party can rely upon and though not conclusive is decisive of the 7 matter, unless successfully withdrawn or proved erroneous. Similar is the view expressed by the Apex Court in the case of United India Insurance Co. Ltd. and another Vs. Samir Chandra Choudhary [(2005) 5 SCC 784], where again the Apex Court referring the decision in the case of Narayan Bhagwantrao Gosavi Balajiwale (supra) has very categorically said that the effect of the admission is that it shifts the onus on the person admitting the fact on the principle that what a party himself admits to be true may reasonably be presumed to be so, and until the presumption is rebutted, the fact admitted must be taken to be established. There must be some clinching evidence to establish that such an admission was made only on the advise of the appellants to gain certain benefits. If nothing is shown by the respondents/plaintiffs, it has to be inferred tht in fact nothing was paid to the mother of the respondents towards the maintenance by her husband and such money was not made available for establishing any business.
8: Further, an imaginary claim cannot be made. The account of joint Hindu family business has to be established, it has to be shown that such funds were made available to make purchase of property out of the said funds. No such evidence is available on record. On the contrary, the appellants have rightly pointed out that even from document relied on by the respondents/plaintiffs Ex.P/3, it would be abundantly clear that land worth Rs.8,000/- was purchased by the appellants in the year 1972 by a registered sale deed and for making such a purchase of land, if it was to be said to be purchased from the joint Hindu family property income, it was to be established by the plaintiffs/respondents that such funds were generated out of the meagre sum of Rs.600/- which 8 according to the plaintiffs/respondents was invested in the joint Hindu family business. Similarly, the land worth Rs.6,750/- was purchased in the year 1975 and again certain purchase was made in the same year for Rs.7,580/- and ultimately, purchases were made in the year 1977 for Rs.500/- and Rs.300/-. Nothing material was placed on record by the respondents/plaintiffs to show that such funds were generated only out of the joint Hindu family business and, thus, in view of the admission of the respondent No.1, in fact, no presumption was to be drawn with respect to the jointness of property.
9: Referring the evidence of the parties, again it is stated that if jointly the evidence is evaluated, it would be clear that the respondents/plaintiffs have utterly failed to prove their claim. On the contrary, the appellants have proved their claim. In the written statement, the specific contentions were raised that a shop was left by father of the appellants Shivram and out of the income of the said shop, the lands were purchased. Subsequently a hotel was constructed on receipt of the grants. Even before the alleged payment of maintenance amount, grant was executed in favour of the appellants by the State authorities in respect of the land which is included in the suit land and, therefore, if overall appreciation of evidence would have been done in appropriate manner, the suit of the respondents was liable to be dismissed.
10 : This Court after marshaling the evidence reached to the conclusion that findings recorded by the Court below in respect of the claim of the respondents/plaintiffs were erroneous. There was no evidence to show that the business was started jointly by the appellants and the respondents out of the funds made available by the mother 9 Sumatiya Bai. On the contrary, there was ample evidence available to show that the business was being done on the shop left behind by Shivram in which the respondents/ plaintiffs have no share whatsoever as Shivram had died in the year 1945 leaving behind the appellants only as his legal heirs. The grant was executed in favour of the appellants only in respect of certain part of the land in suit over which the house is constructed and in absence of any evidence, it cannot be said that the construction of the house or shop was out of the funds of the joint Hindu family business. In fact, there was no joint Hindu family business.
11 : Thus, the findings reached by the Court below are totally perverse. The impugned judgment and decree thus cannot be sustained. Consequently, this appeal is allowed. The impugned judgment and decree dated 13.12.1995 passed in Civil Suit No.9-A/1984 by the I Addl. Judge to the Court of District Judge Seoni, is hereby set aside. The suit of the respondents/plaintiffs is hereby dismissed. However, in the facts and circumstances of the case, parties to bear their own costs.
(K.K. TRIVEDI) Judge 08/2/2013 A.Praj.
10HIGH COURT OF MADHYA PRADESH : JABALPUR.
First Appeal No.67/1996Sudama Sahu (since deceased through L.Rs and another) Vs Sunderlal Sahu (since deceased through L.Rs and another) JUDGMENT Post it for /02/2013 (K. K. Trivedi) Judge 08/02/2013