Patna High Court
Chanderdeb Lall And Ors. vs Nandji Lall And Ors. on 27 July, 1949
Equivalent citations: AIR1950PAT33, AIR 1950 PATNA 33
JUDGMENT Narayan, J.
1. This is an appeal by the defendants arising out of a suit for partition.
2. One Ganpat Lal had five song, Satnarain Lal, Chhabilchand Lal, Ranjil Chand, Ramdayal and Chanderdeo. Satnarain and Chhabilchand died issueless, and the plaintiff is the son of Ramjil Chand, who had another son Makhan Lal, who also died without an issue. Ramdayal is defendant 1 in the suit and Chanderdeo is defendant 2, defendants 3, 4 and 5 being the sons of Chanderdeo. The case made out by the plaintiff was that the five brothers lived joint and that he and the defendants still constitute members of a joint Hindu family. It wag further alleged by the plaintiff that moat of the jote lands and movables in possession of the family had been acquired jointly by the five brothers, and that some of the lands had been purchased in the names of the different members of the family. He wanted a partition of his 5 annas 4 pies share in the family properties. Defendants 2 to 5, who are the appellants before us, contested the suit and their contention was that all the five sons of Ganpat had separated from one another and that the properties standing in the names of the defendants were their self-acquired properties.
3. The Court of first instance the Munsif of Katihar, dismissed the suit, his finding being that the separation between the brothers took place long ago, and that the properties have already been divided. That Court further held that lots 1 and 2 which stood in the name of Ramdayal (defendant 1), lots 3 and 4 which stood in the name of defendant 2, and lot 5 which stood in the name of defendant 3 were the self, acquired properties of these defendants.
4. The lower appellate Court reversed the decision of the Court of first instance. The learned District Judge was of the opinion that the family still continued to be joint and that all these properties were liable to be partitioned as joint family properties.
5. Mr. Raj Kishore Prasad on behalf of the appellants has submitted before us that the lower appellate Court has not considered the evidence properly and that the decision of the lower appellate Court disregards the legal principles on which a case like this bas to be decided.
6. We agree with Mr. Raj Kishore Prasad that it is a fit case which should be sent back to the Court below. The lower appellate Court has begun the discussion of the evidence by referring to the statement of Ramdayal (defendant 1), who is the oldest surviving member of the family and who did not contest the suit but was examined as a witness on behalf of the plaintiff, This witness had filed a petition admitting the claim of the plaintiff, and it appears that the learned District Judge was very much influenced by this admission of defendant 1. But the learned Munsif has pointed out that Ramdayal had stated in his cross-examination that there was never any joint fund belonging to the brothers. The judgment of the learned District Judge does not show that he took any notice of this statement made by Ramdayal and this circumstance alone is sufficient for holding that the case has not been properly considered by the learned District Judge. It seems that the learned District Judge completely overlooked the principle that there is no presumption that the family, because it is joint, possesses joint property or any property and that, when in a suit for partition, a party claims that any particular item of property is a joint family property, the burden of proving that it is so rests on the party asserting it. The plaintiff in this case had, therefore, to establish that the family was possessed of some property with the income of which the properties claimed by him in this suit could have been acquired or from which the presumption could be drawn that all the properties possessed by the family are joint family properties. In the plaint, there is a statement to the effect that most of the jota lands, cattle, carts, horses and houses had been acquired jointly by the five brothers and that some lands were purchased in the name of Satnarain, some in the name of Chhabilchandlal and some in the names of defendants l, 2 and 3, Mr. Harinandan Singh hag relied on this statement in the plaint for the purpose of showing that the plaintiff did not make out a case that these properties were ancestral properties. Now if these properties are properties subsequently acquired, it was absolutely necessary for the plaintiff to show that the family possessed properties with the income of which these properties could be acquired, or joint family fund which could enable them to acquire these properties. The discussion in the judgment of the Court of first instance goes to show that the plaintiff had failed to establish that these properties had been acquired by the joint family with joint family fund or with the income of the joint family properties. Of course, the learned District Judge has also discussed the evidence and has relied on certain documents for the purpose of showing that there was a disruption of the joint family and that the properties were partitioned. But he has not at all considered whether there was sufficient evidence in this case to establish that the family was possessed of joint family properties or funds with which the properties, which are the subject-matter of the suit, could be acquired. On the other hand, the learned District Judge has observed as follows:
"It is true that the family originally had very limited means and at least two of them namely the father of the plaintiff and D. W. 1 served in Darbhanga Raj. They were full brothers and there was nothing surprising if they made a common fund of their earnings and acquired properties out of their earnings in the name of certain members of the joint family."
Firstly, this is no finding at all. The learned District Judge merely thinks that it is possible that out of the common fund of the plaintiff and D. W. 1 these properties might have been acquired. If the properties were acquired only out of the common fund belonging to the plaintiff and D. W. 1, then they would be separate properties of the plaintiff and D. W. 1. The important fact of this case is that out of the five lots which are the subject-matter of the suit, Iota 1 and 2 stand in the name of Ramdayal (defendant 1), lots 3 and 4 stand in the name of Chanderdeo (defendant 2) and lot No. 5 stands in the name of Bansidhar (defendant 3), son of Chanderdeo. As was held by the Madras High Court in the case of Venkataramayya v. Seshamma, I. L. R. (1937) Mad. 1012 : (A. I. R. (24) 1937 Mad. 538), a party alleging that the property held by an individual member of a joint Hindu family is a joint family property must show that the family was possessed of some property with the aid of which the property in question could have been acquired, and that it is only after that is shown that the onus shifts to to the party alleging self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate. In another Madras case, Vythianatha v. Varadaraja, I. L. R. (1938) Mad. 696 : (A. I. R. (25) 1938 Mad. 841), it was held that a party alleging that the property held by an individual member of a joint Hindu family is a joint family property must show that the family was possessed of some nucleus with the aid of which the property in question could have been acquired and that mere existence of a nucleus, however small or insignificant, is not enough. It is to be shown that the nucleus was of such value as could have reasonably formed the basis of the acquisition of the property in question. When this is shown, the onus will shift to the party alleging self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate. Unfortunately, the judgment of the learned District Judge does not show that he was alive to these principles and he misdirected himself when, after pointing out that in all probability these are the self-acquired properties of the plaintiff and D. W. 1, he decreed the plaintiff's claim for partition.
7. In the circumstances the case hag to go back for a fresh decision by the lower appellate Court. We have not decided the questions of fact raised in this case finally, and the lower appellate Court should not feel embarrassed by any observation made by us so far as the facts are concerned. The appeal is allowed and the judgment and the decree of the lower appellate Court are set aside and the case is sent back to that Court for a fresh decision according to law. Costs of this appeal will follow the result.
Reuben, J.
I agree.