Patna High Court
Bishwanath Prasad & Ors vs Triveni Prasad & Ors on 16 July, 2012
Author: V. Nath
Bench: V. Nath
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.79 of 1996
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1. Ishwar Prasad.
2. Sri Bhagwan Prasad, both sons of Bishwanath Prasad, all residents of mohalla-
Trigun Dehri, Kaswa Dehri, P.S.-Dehri, District-Rohtas.
.... .... Appellant/s
Versus
1. Triveni Prasad son of late Damri Ram.
2. Surya Prasad,
3. Bharat Prasad.
4. Satish Prasad, all 2 to 4 sons of Triveni Prasad, all residents of Mohalla-Kashwa
Dehri, P.S. Dehri, District-Rohtas.
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. NAVNEET KUMAR
Mr. Jitendra Prasad Singh
For the Respondent/s : Mr. RAVI SHANKAR DWIVEDI
Mr. Sheela Pandey
Mr. Kumari Vandana
Mr. Kamal Kant Pandey
Mr. Viveka Nand Pathak
Mr. Umesh Kr.Singh
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CORAM: HONOURABLE MR. JUSTICE V. NATH
ORAL JUDGMENT
Date: 16-07-2012 The plaintiffs of T.S. No. 100 of 1989 of the court of Sub- Judge-III, Sasaram, Rohtas have filed this appeal assailing the judgment and decree dated 30.11.1995 by which the suit has been dismissed.
2. The plaintiffs have filed T.S. No. 100 of 1989 praying for declaration that the gift deed dated 09.07.1984 executed by Parvati Devi in favour of Suraj Prasad is illegal and void and not binding Patna High Court FA No.79 of 1996 dt.16-07-2012 2 upon the plaintiffs and further for partition of half share of the plaintiffs in the suit properties averring the facts that the suit properties mentioned in the schedule-ka of the paint belonged to the joint family of Damri Ram who died leaving behind his three sons namely, Harihar Prasad, Triveni Prasad and Bishwanath Prasad in joint possession of the suit properties as coparceners therein. It is the case of the plaintiffs that Damri Ram carried on the ancestral business of kirana through the firm popularly known as M/s Damri Ram Harihar Prasad, and the said business generated much income and there was also much saving. Damri Ram out of joint family fund purchased properties but obtained the sale deeds in the names of his sons Harihar Prasad or Triveni Prasad. However, the purchased properties have always been in possession of the joint family members as joint properties. It is further case of the plaintiffs that Damri Ram died in the year 1975 and after his death his eldest son Harihar Prasad became karta and manager of the joint family but he also died in the year 1980 and thereafter Triveni Prasad became the karta and manager of the family. Harihar Prasad died issueless leaving behind his widow Parvati Devi as his heir. The plaintiffs have further pleaded that differences cropped up between the plaintiff no. 1 Bishwanath Prasad and defendant no. 1 Triveni Prasad and when the plaintiffs demanded partition, the defendants disclosed that Parvati Patna High Court FA No.79 of 1996 dt.16-07-2012 3 Devi had executed a gift deed in favour of the defendant no. 2 Suraj Prasad son of defendant no. 1 Triveni Prasad. On inquiry, the plaintiffs came to know on 13.06.1989 that on 09.07.1984 a gift deed had been executed by Parvati Devi in favour of Suraj Prasad with regard to the part of the suit properties. The plaintiffs have challenged the said gift deed as void and fraudulent document, not executed by Parvati Devi but brought in existence by impersonating her. The plaintiffs have also alleged that even if the alleged gift deed carries thumb impression of Parvati Devi, the same has been obtained by the defendants fraudulently and after misleading the facts.
3. The defendants appeared in the suit and filed joint written statement contesting the claim of the plaintiffs. It is the case of the defendants that the three sons of Damri Ram became separate long long ago and since then have no concern with each other. Since Harihar Prasad was issueless, he used to keep Suraj Prasad with him as his son and Suraj Prasad also treated Harihar Prasad and his wife Parvati Devi as his parents and had performed their last rites. It is the case of the defendants that being pleased with the behaviour of Suraj Prasad, the widow of Harihar Prasad, namely Parvati Devi executed registered gift deed dated 09.07.1994 in his name for the suit properties mentioned in schedule-ka of the plaint and after accepting the said gift, Suraj Prasad has been continuing in possession of the Patna High Court FA No.79 of 1996 dt.16-07-2012 4 gifted properties as donee thereof. It is further case of the defendants that the gifted properties were the self acquired properties of Harihar Prasad. The defendants have also denied the existence of any ancestral business of the family and have asserted that the three sons of Damri Ram used to carry their own business separately, and have also stated that the suit properties have not been acquired out of joint family fund. The defendants have also asserted that even the panches (arbitrators) appointed to resolve the dispute between the parties had held that there was no need for partition and the disputed properties were the self acquired property of Harihar Prasad. The defendants have also emphasized the validity of the gift deed in question and denied the plaintiff's share in the suit properties.
4. In view of the pleadings of the parties, the learned court below framed altogether nine issues out of which issues no.VI,VII,VIII were the material issues which are as follows:-
Issue no. VI:- Is the gift deed dated 09.07.1984 executed by Parvati Devi in favour of defendant Suraj Prasad void and fraudulent?
Issue no. VII:- Are the properties mentioned in schedule-ka of the plaint liable to partition?
Issue no. VIII:- Whether the suit is barred by partial partition?
5. After hearing the parties and considering the evidence, Patna High Court FA No.79 of 1996 dt.16-07-2012 5 the learned court below has come to the conclusion that the gift deed dated 09.07.1984 is not void and fraudulent document and accordingly decided the issue no. VI in favour of the defendants. Further, the learned court below has also held that the suit properties had not been acquired out of joint family fund and the disputed property in plot no. 1348, subject matter of the gift deed, was the self acquired properties of Harihar Prasad. The learned court below has further held that there was no unity of title and possession between the parties over the suit properties and concluded that the suit is bad for partial partition as plot no. 1347 of Mohalla Trigun Dehri has not been included as suit property. Thus, deciding the material issues in favour of the defendants, the learned court below has dismissed the suit by the impugned judgment and decree.
6. Mr. Dhruv Narain, the learned senior counsel appearing on behalf of the plaintiff-appellants has assailed the impugned judgment on the ground that the learned court below has failed to consider the material evidence on record and, in particular, the admissions made by the defendant no. 1, Triveni Prasad. Canvassing the well established principle of Hindu law that a gift of joint family property will be void, the learned senior counsel has urged that there is absolutely no evidence by the defendants to establish the self acquisition of the suit properties by Harihar Prasad or Triveni Prasad. Patna High Court FA No.79 of 1996 dt.16-07-2012 6 It has been submitted that almost all the witnesses of the plaintiffs as well as defendants have accepted that the family of the plaintiffs and defendants had a flourishing business and the defendant no. 1 Triveni Prasad or late Harihar Prasad had no other source of income when the suit properties had been acquired. It has been pointed out that the court below has ignored Ext. 10 which is the order passed by the municipal survey authorities from which it is clear that the suit plot nos. 199 and 200 have been carved out of plot nos.1348 and suit plot nos. 201 and 202 have been carved out of plot no. 1347 in the recent municipal survey. It has been further submitted by the learned senior counsel that the finding by the learned court below that the suit is barred for partial partition as plot no. 1347 has not been included cannot be sustained because even when by typing mistake the old plot no. 1347 could not be mentioned, the recent municipal plot nos. 201 and 202 carved out of the said plot have been mentioned as suit properties in the schedule of the plaint. The learned senior counsel has also urged that once after the existence of sufficient nucleus in the joint family has been admitted or established, the presumption would be in favour of the plaintiffs that the suit properties are the joint family properties and it has been for the defendants to establish, by cogent evidence, their claim of self acquisition of those properties, which they have completely failed. On the basis of aforesaid grounds Patna High Court FA No.79 of 1996 dt.16-07-2012 7 it has been prayed that the impugned judgment and decree is fit to be set aside and the plaintiff be held entitled to the decree as prayed.
7. Mr. Kamla Kant Pandey, the learned counsel appearing on behalf of the defendant-respondents has supported the impugned judgment. The learned counsel has reiterated the reasonings assigned by the learned court below in the impugned judgment and on that basis has prayed that the impugned judgment does not require interference.
8. In view of the rival contentions of the parties, the seminal point for determination in this appeal is as to whether the suit properties are the joint family properties of the family of Damri Ram over which the plaintiffs and the defendants are having unity of title and jointness of possession.
9. It is not disputed that the plaintiffs and defendants are descendents of Damri Ram who died in the year 1975 leaving behind his three sons namely, Harihar Prasad, Triveni Prasad and Bishwanath Prasad as well as his grand sons. It is the specific case of the plaintiffs that Damri Ram had carried on the ancestral business and the joint family firm M/s Damri Ram Harihar Prasad was having a flourishing business in 'kirana' from which the family had much income and savings. It is further case of the plaintiffs that Damri Ram, out of the joint family fund, acquired the suit properties in the names of his sons Patna High Court FA No.79 of 1996 dt.16-07-2012 8 Harihar Prasad or Triveni Prasad which have remained the joint family properties. To the contrary the defendants have come out with the case that there was no joint family business and each of the three sons of Damri Ram had their own separate business and they acquired properties out of their own earnings. The defendants have specifically denied the suit properties to be joint family property.
10. From the description of the suit properties mentioned in schedule-ka of the plaint, it transpires that three separate properties have been mentioned. The first lot consists of a pucca house in ward no. 2 Trigun Dehri, G.T. Road old Dehri, District-Rohtas standing over plot nos. 199, 200, 201 and 202. All these four plots have been shown to have been carved out of old plot no. 1348. The learned senior counsel on behalf of the appellants has submitted that plot nos. 201 and 202 have been carved out of old plot no. 1347 but by typing mistake old plot no. 1348 has been mentioned below these two plots in place of old plot no. 1347. In support of his submission, he has placed reliance upon Ext. 10 which is the order dated 28.08.1989 passed by the municipal survey authority determining the objection of the plaintiff no. 1 Bishwanath Prasad with regard to the entries made in the survey records for the aforesaid four plots i.e. 199, 200, 201 and
202. From this order, it transpires that plot nos. 199 and 200 have been carved out of old plot no. 1348 and plot no. 201 and 202 have Patna High Court FA No.79 of 1996 dt.16-07-2012 9 been carved out of old plot no. 1347. This fact is further corroborated by Ext. 11 which is the municipal survey khatiyan with regard to the four plots. In view of these two exhibits, it is clear that the plaintiffs have included the properties standing over old plot no. 1347 and 1348 by mentioning their new municipal survey plot number and thus there is force in the submission on behalf of the appellants that the mistake in typing the old plot no. 1347 as plot no. 1348 could not be of such propensity as to deprive the plaintiffs of their right, title and interest in the properties over the said plot no. 1347. The other two lots of the suit properties consist of a house in ward no. 13 in mohalla-Shivganj Dehri and a medicine shop.
11. From the pleadings of the parties and the depositions of the plaintiff no. 1, Bishwanath Prasad as P.W.6 and the defendant no. 1, Triveni Prasad as D.W. 18, it becomes manifest that there are three houses in dispute between the parties out of which one house is situated in ward no. 13, plot no. 759 in Mohalla- Shivganj Dehri and two houses in ward no. 11, Mohalla-Trigun Dehri over plot nos. 199, 200, 201 and 202. However, the plaintiff no. 1 and defendant no. 1 both have accepted that the house in ward no. 13 of Mohalla-Shivganj Dehri had already been partitioned, and the plaintiff no. 1 as well as defendant no. 1 have got their separate shares in the said house. In view of this admission, it has been submitted by the learned senior Patna High Court FA No.79 of 1996 dt.16-07-2012 10 counsel for the appellants that the dispute between the parties is now confined to the two houses standing over the abovementioned four plots alone. Admittedly, the sale deed of the house standing over plot no. 1347 stands in the name of the defendant no. 1, Triveni Prasad and the sale deed for the house over plot no. 1348 is in the name of Harihar Prasad. The defendant no. 1, Triveni Prasad in his deposition has stated that house over plot no. 1348 was purchased in the year 1941 and the house over the plot no. 1347 was purchased in the year 1943. The defendants have claimed the said two houses as their self acquired properties and have also denied existence of any joint family fund at the time of acquisition of the two houses. To the contrary the plaintiffs have asserted that the houses over these two plots were acquired through joint family fund by Damari Ram.
12. The law is well settled that there is no presumption that a joint family possesses joint family property and if a property stands in the individual name of a member of a joint family, the property would be taken to be his individual property unless the party, asserting the said property to be joint family property, establishes the existence of nucleus in the joint family sufficient for acquisition of the said property. If such nucleus is established, the burden shifts on the person in whose name the said property stands to establish his case of self acquisition. The Apex Court in the case of Surendra Kumar Vs. Patna High Court FA No.79 of 1996 dt.16-07-2012 11 Phoolchand A.I.R 1996 SC 1148 has succinctly illumined the legal position in this regard as follows:-
It is no doubt true that there is no presumption that a family because it is joint possessed joint property and therefore the person alleging the property to be joint has to establish that the family was possessed of some property with the income of which the property could have been acquired. But such a presumption is a presumption of fact which can be rebutted. But where it is established or admitted that the family which possessed joint property which from its nature and relative value may have formed sufficient nucles from which the property in question may have been acquired, the presumption arises that it was the joint property and the burden shifts to the party alleging self acquisition to establish affirmatively that the property was acquired without the aid of the joint family.
13. In view of the aforesaid principle, it is to be examined whether the plaintiffs have succeeded in establishing existence of sufficient nucleus in the joint family at the time when the suit properties i.e. two houses in plot no. 199, 200, 201 and 202 had been Patna High Court FA No.79 of 1996 dt.16-07-2012 12 acquired. The plaintiffs' witnesses have stated that Damri Ram was joint with his three sons and the joint family had a kirana shop in the name and style of M/s Damri Ram Harihar Prasad and there was good income from the said shop. These witnesses have further stated that out of the income from the kirana shop, property by way of land and houses were acquired. The plaintiff Bishwanath Prasad, as P.W. 6, has also stated in his deposition that joint family had a firm M/s Damari Ram Harihar Prasad which had a kirana shop and there was good income and sufficient saving from that shop. The P.W. 2 Ram Sewak Prasad has stated in cross examination that Damri Ram and his sons had a kirana shop in mohalla-Trigun Dehri, G.T. Road in which Damri Ram and his three sons were the partners. P.W. 3, Mahendra Pd. Gupta has also stated in his cross examination that Damri Ram and his sons had got a kirana shop in their house in mohalla-Trigun Dehri on G.T. Road which had been constructed by Damri Ram and his sons for the purpose of business. He has also stated that Damri Ram died in jointness with his sons. He has also stated that the sons of Damri Ram had no other business except the said kirana shop.
14. At this juncture, it would be pertinent to take into notice the depositions of witnesses of the defendants. D.W. 4, Sukhadeo Pd. Gupta has stated in cross examination that Harihar Patna High Court FA No.79 of 1996 dt.16-07-2012 13 Prasad, Bishwanath Prasad and Triveni Prasad were minors in the year 1945. He has also stated that the families of the plaintiffs and defendants have got three houses in mohalla-Shivganj and Trigun Dehri, and some members resided in the house at mohalla-Shivganj and some persons resided in the house in mohalla-Trigun Dehri. D.W. 5, Ajay Kumar Choudhary has stated in his cross examination that in the house at Mohalla-Trigun Dehri, there are three shops out of which in one shop Ishwar son of the plaintiff no. 1 carries his business and another two shops of kirana and medicines are run by Bharat and Suraj both sons of Triveni Prasad.
15. D.W. 8, Suraj Prasad is the defendant no. 2. He has stated in his cross examination that his grandfather or uncles had no other business except the kirana firm. He has also stated that the land in mohalla-Trigun Dehri was purchased in the year 1941. He has further stated that house at mohalla-Trigun Dehri has been recorded in two holdings but it is in one block wherein one shop of readymade clothes is run by the plaintiffs' son Ishwar Prasad, another shop is run by Triveni Prasad which is a 'kirana' shop and the third shop of medicine is run by the witness Suraj Prasad. He has further stated that the house has got rooms on the upper floor and also a courtyard which are all in one block.
16. The statement made by the defendant no. 1, Triveni Patna High Court FA No.79 of 1996 dt.16-07-2012 14 Prasad as D.W. 18 in his deposition is very significant. He has accepted in his cross examination that Damri Sah used to carry on his business by way of 'Tijarat' and later on established the firm with a kirana shop by the name and style M/s Damari Ram Harihar Prasad. He has also accepted that the said shop was a famous shop of Dehri Bazar and its account was maintained by a Munim. He has also stated that the firm continued for 35 years. He has further accepted that the land with kachha house was purchased in the year 1941 in the name of the elder son Harihar Prasad. He has also stated that Damri Sah carried on his business in the shop in the purchased kaccha house till a pucca house was constructed thereupon whereafter the shop was run in the pucca house. He has also accepted that the earlier shop carried on by Damri Ram was later on converted to a partnership firm. He has also stated that the partition for house in mohalla- Shivganj was held 11 years after 1941. In the partition, the house at mohalla Shivganj was allotted to Triveni Prasad and Bishwanath Prasad, and Damari Sah and Harihar Prasad was not given a share in the said house and he moved out in the house at mohalla Trigun Dehri. He has further stated that plot no. 1347 had been purchased in his name in the year 1943. The material portions of the statements made by the defendant no. 1 in his deposition are as follows:-
Para no. 5**-------------nejh lko vius ?kj dk ekyhd FksA nejh lko 1975 es Patna High Court FA No.79 of 1996 dt.16-07-2012 15 ejsA nejh lko dks fdjkuk nqdku FkkA ------ ;g nqdku fMgjh ctkj dk elgqj nqdku FkkA nqdku dk fglc fdrkc fy[kk tkrk FkkA eqfue dk uke ;kn ugha gS ! ----- ;g firm VqVus ds iwoZ djhc 35 years pyk FkkA blds igys Hkh nejh lko rstkjr djrs FksA /khjs&/khjs ;g rstkjr vkxs pydj firm cu x;k Fkk --- ;g nqdku f=xqu fMgjh esa pyrh Fkh Ward No. 11 holding No. 175 ;g tehu [kjhnxh Fkh ;g 1941 es [kjhnk x;k Fkka nejh lko dk cM+k yM+dk gfjgj izlkn FksA Holding No. 175 dk dsokyk gjfgj izlkn ds uke ls fy[kk x;k FkkA [kjhnxh ds oDr edku dPpk FkkA tc rd iDdk ugha cuk Fkk ml oDr rd nejh lko mlh dPpk edku esa Business djrk FkkA tc iDdk edku cu x;k rks nqdku iDdk esa pyk vk;kA ---------** Para no. 6**----- 1941 lky ds ckn geyksx vyx vyx gq;s FksA 1941 lky ds 11 o'kZ ds ckn geyksx vyx gq, FksA ------- f=xqu fMgjh ds edku esa nks nqdku gSA mlh esa igys fdjkuk dk nqdku FkkA fdjkuk dk nqdku 1982 es VqV x;k gSA 1982 ls lqjt vkSj fo"oukFk dk yM+dk b"koj nqdku djrk gSA Para no. 8 :1347 Plot 1943 esa [kjhnk x;k FkkA bldk dsokyk esjs uke ls gSa bl ij edku 1956&57 esa cuk gS Plot no. 1347-1348 ij tks edku cuk gS og vyx vyx cuk gSA nksuks dk Common Wall gS Plot no. 1348 ij nks nqdku gSA vkSj 1347 ij ,d nqdku gSA Plot No. 1348 ij esjk nqdku gSA-------- ;g 1982 ls py jgk gSA ----**
17. Consideration of the aforesaid statements made by the defendant no. 1 in his deposition along with depositions of the witnesses of the plaintiffs as well as the defendants clearly reveals the fact that Damri Sah had a flourishing business of 'kirana' which he carried on with his three sons and further that the three sons of Damri Sah had no other business except the kirana shop. It is also established Patna High Court FA No.79 of 1996 dt.16-07-2012 16 that the family of Damri Sah had its ancestral house in Mohalla- Shivganj and two houses in Mohalla-Trigun Dehri constructed in one block upon two plots i.e. plot no. 1347 and 1348 purchased by the family in the state of jointness. None of the witnesses of the defendants including the defendant no. 1 has stated that the sons of Damari Sah had separate business in the year 1941 and 1943 and the two houses had been acquired by them out of their own separate income.
18. After the careful consideration of the evidence led by the parties, there is, thus, no scintilla of doubt left that the plaintiffs have succeeded in establishing the existence of the joint family with sufficient nucleus for acquisition of the suit properties. On the other hand, the defendants have not led any evidence to prove their case of previous partition and self acquisition of the suit properties, and instead the evidence led by them show that they had no other business except the joint family business of 'kirana' shop and the suit properties in MS plot no. 199, 200, 201 and 202 carved out of plot nos. 1347 and 1348 had been acquired in the state of jointness and the houses have also been constructed thereupon in the state of jointness. The story of partition and self acquisition as propounded by the defendants is also shattered by the admissions made by the defendant no. 1 and defendant no. 2 in their depositions wherein they have Patna High Court FA No.79 of 1996 dt.16-07-2012 17 accepted that the family members are carrying on their separate business in the shops in the suit houses having two holdings but in one block. This fact is further clarified by the admission of the defendant no. 1 when he has accepted in his deposition that he is running his shop in plot no. 1348 (admittedly acquired in the name of Harihar Prasad) since 1982, and the son of the plaintiff no. 1 as well as the defendant no. 2 are also carrying on their shops. This fact also shows that after the death of Harihar Prasad and his widow Parvati Devi issueless, their shares in the joint family property have dissolved by survivorship on the remaining members of the joint family who have continued in the joint possession of the joint family property i.e. suit properties.
19. On the basis of these conclusions arising after the consideration of the evidence, it is held that the suit properties in new MS plot nos. 199, 200, 201 and 202 are joint family properties in which the plaintiffs have also got their share. As earlier mentioned the plaintiffs and defendants have admitted that the ancestral house in mohalla-Shivganj Dehri has already been partitioned in between them. Further the plaintiffs have led no evidence to show that other suit property i.e. Bhagwan Medical Store is also a joint family property. As such, the plaintiffs are held entitled for a decree of partition of only of the houses standing over new MS Plot no. 199, 200, 201 and Patna High Court FA No.79 of 1996 dt.16-07-2012 18 202 to the extent of their half share.
20. Once after reaching to the conclusion that there has been no partition of the suit house standing over old MS plot no. 1348 (new MS plot no. 199 and 200) the gift deed executed by Most. Parvati Devi in favour of Suraj Prasad cannot be upheld as it is well settled that a gift deed with regard to a joint family property is void ab initio. Accordingly it is held that the gift deed dated 09.07.1984 executed by Most. Parvati Devi in favour of defendant no. 2 Suraj Prasad is a bad document not binding upon the plaintiffs.
21. The learned court below has not considered the evidence on record in their correct perspective and has thus reached to the wrong conclusions. The learned court below has also ignored Ext. 10 and Ext. 11 which are the order passed by the municipal survey authority and municipal survey khatiyan respectively, showing that the new municipal survey plot nos.199 and 200 have been carved out of old MS plot no.1348 and new municipal survey plot nos.201 and 202 have been carved out of old plot no.1347 and has wrongly held that the plaintiffs have not made any claim with regard to plot no. 1347. Thus, the findings of the learned court below have been arrived ignoring the material evidence on record and therefore cannot be sustained.
22. In the result, this appeal is allowed and the impugned judgment and decree passed by the learned court below is set aside. Patna High Court FA No.79 of 1996 dt.16-07-2012 19 The T.S. No. 100 of 1989 is decreed with regard to the suit properties in M.S. plot nos. 199, 200, 201 and 202 and the plaintiffs are held entitled to half share therein. Let a preliminary decree be accordingly prepared. In the facts and circumstances of the case, there shall be no order as to costs.
(V. Nath, J) Devendra/-