Patna High Court
Pata Sahu And Anr. vs Hiru Sahu And Ors. on 9 March, 1990
Equivalent citations: AIR1991PAT276, I(1993)DMC298, AIR 1991 PATNA 276, (1993) 1 DMC 298 (1992) 1 HINDULR 126, (1992) 1 HINDULR 126
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. These two appeals with the consent of the parties were heard together and are being disposed of by this common judgment.
2. First Appeal No. 17 of 1982(R) arises out of a judgment and decree dated 2-2-1982 passed by Sri N.K. Lal, Subordinate Judge, Gumla in Partition Suit No. 96/56 of 1976-77, whereby and whereunder the said learned court passed a preliminary decree, decreeing of the plaintiffs-respondents' suit for partition declaring their half share in the properties in suit which were fully and in details described in Schedule B, C and D of the plaint, along with the pro forma defendant No. 3.
3. First appeal No. 40 of 1983(R) arises out of a judgment and final decree dated 4-1-1983 passed in the aforementioned suit in the final decree proceedings.
4. The material facts and proceedings leading to these appeal lie in a very narrow compass.
5. According to the plaintiffs, they and the pro forma defendant No. 3 are brothers being sons of Kandra Sahu and are co-sharers of the defendant Nos. 1 and 2.
6. The relationship of the parties will appear from the genealogical table which has been mentioned at the footing of the plaint and reads as follows:--
Teju __________________________________________|____________________________ | | | Laxman Kandra Magan ___|_______________________________ | | Pata Sahu Konda Sahu @ Chokto Sahu D-2 _________________________|______________________________ | | | Hiru Sahu Dharma Sahu Dasai Sahu P-1 P-2 D-3
7. The plaintiffs have alleged that the lands appertaining to Revisional Survey Khata. Nos. 241, 242 were self acquired properties of their father Kandra Sao, It has further been alleged that the lands described in Schedule A of the plaint were acquired by the joint family in the names of defendants Nos. 1 and 2 Pata Sahu and Konda Sahu and the said lands has all along been treated as a joint family properties.
8. It has further been contended that in the year 1968, a dispute arose with regard to the properties described in Schedules and B of the plaint resulting in initiation of a proceeding under Section 145 of the Code of Criminal Procedure, which was registered as case No. 335 of 1968 and by an order dated 18-8-1975, the learned Executive Magistrate in the aforementioned case declared possession of the defendant No. 1 in relation to the aforementioned properties.
9. The lands appertaining to Khata No. 242 was also the subject matter of the aforementioned proceeding under Section 145 of the Code of Criminal Procedure, and, in this view of the matter, the plaintiffs sought for a declaration of title and recovery of possession in respect of the said property in suit. However, the lands appertaining to Khata No. 241 are not the subject matter of the aforementioned suit.
10. As noticed hereinbefore, according to the plaintiffs, the lands under the aforemen-(contd. on col. two) tioned Khatas were self acquired properties of their father Kandra Sahu and therein the defendant-appellants have no interest.
11. In view of the decision of the learned Executive Magistrate in the aforementioned proceeding under Section 145 of the Code of Criminal Procedure, the plaintiffs instituted the aforementioned suit claiming, inter alia, the following reliefs :--
(i) That after declaration of the plaintiffs and pro formadefendant No. 3 title as averred above to the lands of Schedules 'A' and 'B' the plaintiffs and pro forma defendant No. 3 possession over the lands of Schdeule 'A' and over 1/2 share of the lands of Schedule 'B' be recovered.
(ii) That a decree for partition according to the plaintiff's and pro forma defendant No. 3 share which is 1 1/2 in respect of the properties of Schedule 'B' 'C and 'D' be passed and a Commissioner be appointed to effect the partition by metes and bounds and allot a separate Takhta and separate possession be given accordingly.
(iii) That a permanent injunction be granted restraining the defendants Nos. I and 2 from withdrawing the whole one half of the sum of Rs. 1175/-in deposit in the custody of Shri L. Sanai, Executive Magistrate of Gumla and also 10- 1/2 mds paddy in deposit there in the manner stated above in Case No. M. 335 of 1968.
(iv) That a decree for mesne profit pendente lite and future be also granted.
the self acquired property of Kandra Sahu but Teju Sahu had also an interest therein. It was further contended by the defendants that there had been an oral partition amongst the parties long back and in terms whereof separate remarks column of the Revisional Survey Settlement Record of Rights.
It was further contended by the defendant-respondents that the parties have all along been in separate possession of the properties allotted to their share and have also been dealing with the said properties separately.
13. It has further been alleged that even the plaintiffs have transferred their interest by creating deeds of mortgage. The plaintiffs executed separate deeds in favour of Jag-mohan Sao and Bhakhua Kharia and also to Mathura Sao, Ojha Sao, Bacha Sao and others.
14. The defendants further alleged that a Panchayati was convened for the purpose of partitioning the aforementioned properties by metes and bounds and in the said Panchayati of a Panchnama was prepared.
15. According to the defendants, the said Panchnama was filed in another suit but the said documents had somehow gone in custody of the plaintiffs.
16. The defendants further contended that the lands appertaining to Khatas Nos. 57, 59 and 114 are their self acquired properties. It has further been alleged that the plaintiffs are not entitled to recovery of possession or to seek a decree for partition in respect of the lands appertaining to Khata No. 288 as also the lands described in Schedules B, C and D and also the lands appertaining to Khatas Nos. 49, 189, 289, 38 and 257 as half of the aforementioned khatas exclusively belong to their precedecessors.
17. Upon the aforementioned pleading of the parties, the learned trial court framed the following issues for consideration in the suit:
(1) Have the plaintiffs got any cause of action for the suit?
(2) Is the suit barred on account of waiver, estoppel and limitation?
(3) Is the court fees paid in this case sufficient?
(4) Are the plaintiffs and pro forma defendant No. 3 entitled to the declaration of their title to the lands of Schedules 'A' and 'B' and recovery of possession over the lands of Schedule 'A' and 1-1/2 share of the lands of Schedule 'B' (5) Is there unity of title and unity of possession in respect of the lands of Schedules (6) Are the plaintiffs entitled to the sum of Rs. 1175/- and 10-1/2 maunds of paddy or any part thereof in deposit in case No. M 335/87?
(7) Are the plaintiffs entitled to the partition of their share in the properties described in Schedules 'B' and 'C' and 'D' of the plaint?
18. The learned trial Court decided all the issues against the defendant-appellants and in favour of the plaintiffs-respondents. But, it was held that the lands appertaining to Khata No. 242 were also the joint family properties and as such passed a decree for partition in respect of the lands appertaining to aforementioned khata also.
19. Mr. Debi Prasad, the learned counsel appearing on behalf of the appellants submitted that the learned Ural court committed an illegality in granting a decree for partition, in view of the following admitted facts :--
A. The parties had separate mess and residence.
B. The parties have been in separate possession of the properties in suit and have been cultivating their lands separately.
C. They have been paying rent half and half in respect of properties in suit.
D. The parties have entered into separate transaction in relation to the properties which were in their exclusive possession.
20. The learned counsel further submitted that the learned court below committed an irregularity in not taking into consideration the evidenciary value of Ext. F, which is a Sada deed of partition being dated 20th Asadh 2009 Sambat. According to the learned counsel, even if the said deed was not admissible in evidence to prove factum of partition by metes and bounds, the same at least is admissible in evidence for proving the separation in the joint family.
21. The learned counsel further submitted that even in the record of rights, which was marked as Ext G and also as Ext, 2, separate possession of the parties have been recorded.
22. It was further contended that the learned court below committed an irregularity in holding that the lands appertaining to Khata No. 242 were not the self acquired properties of Kandra Sahu, inasmuch as, it has not been held that there was any joint nucleus of the family which was sufficient enough to acquire the said properties.
23. According to the learned counsel, the plaintiffs have not brought any evidence whatsoever on record with regard to the existence of a joint family nucleus.
24, Mr. Laxmi Narayan, the learned counsel appearing on behalf of the respondents, on the other hand, submitted that it is true that the parties have been in possession of land separately, but under the Hindu Law, a joint family carries a presumption of jointness and as such it was necessary for the plaintiff to prove that there had been a partition amongst the co-sharers by metes and bounds.
25. The learned counsel further submitted that it is not a fact that there had been a separation of land inasmuch as, joint rent used to be paid upon to the year 1966-67 and only thereafter, the plaintiffs begun to pay rent separately.
26. The learned counsel further submitted that lands under Khata No. 282 was joint and as such the parties must be presumed to have a joint family fund.
27. The learned counsel further submitted that so far as the separate transaction of the properties are concerned, all the deeds of sale were executed by the defendants in the names of their sons. The learned counsel submitted that the plaintiffs had only executed deeds of mortgage in the years 1971-73 as has been held by the learned trial court in paragraph 16 of his judgment.
28. The learned counsel further drew my attention to the evidence of P.W. 5 and submitted that from his evidence, it would appear that parties have not all along been possessing the same lands but there had been inter change of possession by the parties.
29. The learned counsel, in this connection, has drawn my attention to paragraph 14 of the deposition of D.W. 1. The learned counsel further in support of the aforementioned proposition relied upon a decision of the Supreme Court in Gur Narain Das v. Gur Tahal Das, AIR 1952 SC 225, Bikunth Nath Paramanik (dead) by his L. Rs. as heirs v. Sashi Bhusan, AIR 1972 SC 2531 and Section 233(2) and Section 327 of the Mulla's Hindu Law.
30. In view of the rival contentions of the parties the main question which arises for consideration is as to whether, in the facts and circumstances of this case, the suit for partition filed by the plaintiffs-respondents was maintainable.
31. There cannot be any doubt that there is a presumption of a joint family continuing to be joint. It is also well known that the person who sets up the plea of partition must prove the same.
32. However, as it is evident from Section 233 of the Mulla's Law that a presumption of jointness is the greatest in the case of father and sons and the strength of the presumption necessarily varies in every case.
33. The presumption is stronger in the case of brothers than in the case of cousins and the further one goes from the founder of the family, the presumption becomes weaker and weaker.
34. It has been held in a number of cases that brothers' are for the most part undivided; second cousins are generally separated and the third cousins are for the most part separated.
35. In the instant case, the defendants had raised a plea of partition both prior to and after the final publication of revisional survey settlement record of rights.
36. The revisional survey settlement record of rights were finally published in the years 1934-35,
37. In the instant case, the appellants have brought on record a Sada document showing the partition of the joint family by metes and bounds. However, the said document is an unregistered one. It is true that if a partition is effected by virtue of a document in writing, the same would require registration. However, an unregistered partition deed is admissible in evidence for the purpose of showing that the parties intended to separate amongst themselves.
38. It is now well known that a partition amongst the coparceners takes place when they in unequivocal terms declare their intention to separate.
Reference in this connection may be made to Siromani v. Hemkumar, AIR 1968 SC 1299.
39. In the instant case, the parties have admitted that for a long time, they are having separate mess and residence and had also been cultivating their lands separately.
40. It is true that in law a mere declaration of intention to separate although constitutes a partition so far as Mitakhasara coparcenary family is concerned, but only thereby a partition by metes and bonds cannot be proved.
41. Reference in this connection may be made to Kalyani v. Narayanam, AIR 1980 SC 1173, wherein the law has been laid down in the following terms at page 1177 :--
"Partition is a word of technical import in Hindu Law. Partitition in one sense is a severance of joint status and coparcener of a coparcenary is entitled to claim it as a matter of his individual volition. In this narrow sense all that is necessary to constitute partition is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severally. Such an unequivocal intention to separate brings about a disruption of joint family status, at any rate in respect of separating member or members and thereby puts an end to the coparcenary with right of survivorship and such separated member holds from the time of disruption of joint family as tenant-in-common. Such partition has an impact on devolution of share of such member. It goes to his heirs displacing survivorship. Such partition irrespective of whether it is accompanied or followed by division of properties by metes and bounds covers both a division of right and division of property. A disruption of joint family status by a definite and unequivocal indication to separate implies separation in interest and in right, although, not immediately followed by a de facto actual division of the subject matter. This may at any time, be claimed by virtue of the separate right. A physical and actual division of property by metes and bounds follows from disruption of status and would be termed partition in a broader sense."
42. However, it is well known that although separate mess, separate residence, separate cultivation and separate transactions, of the properties by themselves may not be conclusive proof of partition but taking into consideration the cumulative effect thereof, the same may lead to an inference of partition.
43. Reference, in this connection may be made to Gangabai v. Fakirguda Somayapa-guda Desai AIR 1930 PC 73, Girija Nandan v. Girdhari Singh AIR 1951 Patna 277, Ram-jhari Kuer v. Deyanand Singh, AIR 1946 Patna 278 and Arjun Mahto v. Monda Mahtain, AIR 1971 Patna 215.
44. In the instant case, as conceded by Mr. Narayan that only lands appertaining to Khata No. 288 were joint but therein also separate possession of the parties have been recorded.
45. As noticed hereinbefore, by reason of Ext. F, the parties sought to partition the properties by metes and bounds. The learned trial court did not accept the said document principally on two grounds namely (1) that the same was an unregistered document and (2) the original thereof was not produced.
46. Ext. F is a certified copy of the deed of partition. The "appellants have brought on record the evidence to show that the said deed of partition was filed in another suit, the same some how gone in possession of the plaintiffs who are withholding the same for reasons best known to them.
47. In this view of the matter, in ray opinion, the genuineness of the said document cannot be questioned and although the said deed is inadmissible in evidence for the purpose of proving partition by metes and bounds but the same is admissible for showing that thereby the parties to the said deed made an unequivocal declaration of their intention to separate. Such a declaration of intention to separate by a document in writing does not require registration.
48. The aforementioned deed, as noticed hereinbefore, is dated 20th Asadh, 2009 Sambat i.e. the said deed had been executed sometimes in the year 1943. In this connection, it may further be noticed that even during pendency of the suit, Pata Sao and others sold a portion of their interest. The said deed of sale dated 2-5-1978 has been marked as Ext. 4.
49. It further appears that there had been several sale deeds executed by the defendant-appellants during pendency of this suit. This Court is also entitled to take into consieration the subsequent events in order to consider the conduct of the parties in dealing with the properties in suit which were in their separate and exclusive possession.
50. It is true, as has been contended by Mr. Narayan that the said deeds have been executed by the defendants in the favour of their sons but the very fact that the defendnats had been transferring the properties which were in their possession from the year 1948 goes to show that the parties have been dealing with their properties separately. Admittedly the plaintiffs also in the year 1971-73 executed deeds of mortgage in favour of strangers to the family.
51. By reason of a deed of mortgage also, the mortgagor not only transfers some of his interest in favour of the mortgagee but in case of usufructury mortgage puts the mortgagee in possession of the properties in question.
52. Further, in this case, the parties have been contributing their shares of rent and admittedly at least from 1965-67, the plaintiffs themselves began to pay rent separately. The said rent receipts are Ext. 1 series.
53. It is not correct, as has been contained by Sri Narayan that the appellants have admitted that they had half shares in Khata Nos. 49, 189, 289, 38 and 297. The statements made in Para 14 were made in reply to the statements made in para 6 of the plaint.
54. Paragraph 6 of the plaint reads as follows:
"That it has become necessary for the plaintiffs to seek recovery of possession after declaration of title of the entire lands of Schedule 'A' and 1/2 share of the lands of Schedule 'B'. The plaintiffs and pro forma defendant No. 3 arc entitled to a partition by metes and bounds of the lands of Schedules 'B'''C and 'D' also. The Schedule 'D' lands comprise those plots of Khata No. 288 and which did not figure in 145 and 144, Cr.P.C. and also lands under Khatas Nos. 49,189 and 289."
55. Only in reply to the statements made in the aforementioned paragraph 6 of the plaint, the defendant in paragraph 14 of the written statement stated as follows : --
"That statements in para 6 is not admitted, the plaintiffs cannot recover possession after 145, Cr.P.C. decision without paying ad volerum court fee. They are not entitled to seek partition. Khata No. 288, and lands of Schedules B, C, D and Khatas Nos. 49, 189, 289, 38 and 297 half of Khata are exclusive property of defendant Pata Sao and his brothers."
56. It is, therefore, clear that in the aforementioned paragraph 6 of the plaint and paragraph 14 of the written statement, the parties had been dealing with the matter relating to the right of the plaintiffs to recover possession in respect of properties appertaining to Khatas mentioned therein as an adverse order has been passed as against the plaintiffs with regard to possession, in relation to the said lands, which were the subject matter of the aforementioned proceedings under Section 145 of the Code of Criminal Procedure.
57. The learned court below, unfortunately failed to take into consideration the effect of the aformentioned Ext. F in its proper perspective.
58. Thus, in the instant case, there are evidences on record to show which have been accepted by both the parties that not only the parties had been in separate mess and separate residence, but they had also been cultivating their lands separately and have entered into separate transactions with third parties.
59. As noticed hereinbefore, even during the pendency of the suit, there had been inter se transaction amongst the co-sharers.
60. Further, the learned court below does not appear to have given cogent reasons for non acceptance of the aforementioned unregistered deed of partition.
61. In a deed of partition, what is necessary is to division of the properties. A deed of partition as scuh does not have to be for consideration, But it is evident from the said deed that thereby certain lands have been transferred by the plaintiffs.
62. As noticed hereinbefore, the said document could be used for two purposes, namely, in order to show that the joint status of the parties have come to an end and secondly, the parties have inter changed their possession with regard to their title of lands.
63. It appears that the defendants have filed various other documents to show that the parties have been dealing with the properties in their possession individually and claiming exclusive right, in resepct thereof Ext. J/9 is the certified copy of the order sheet of case No. Rev. R. No. 1 of 1955-1956. Ext. N is the report of Circle Officer, Gurnla dated 31-1-1955 fifed in the aforementioned case, Ext. N/l is the order dated 15-3-1955, passed in the aforementioned Case No. Rev. R..No. 1 of 1955-56.In the said proceeding. Niru Teli, the plaintiff raised a plea before the Circle Inspector, Gumla dated 1-2-1955 alleging that the defendant No. 1 had been encroaching upon the lands of Khata No. 242 belonging to the plaintiffs and in that case, by the aforementioned order dated 15-3-1955, the parties were directed to seek their remedy before the civil court.
64. There had also been several criminal cases amongst the parties. Hiru Teli and Pata Sao lodged a criminal case against the plaintiffs and others under Sections 379 and 147 of the Penal Code wherein the plaintiffs were convicted. The subject matter of theft was the crops standing on Khatas Nos. 242, 114 and 288. From the judgment passed in the aforementioned criminal case as also in Criminal Appeal No. 181/44 of 1968-69, it appears that the plaintiffs had been convicted in the said cases.
65. The judgment of the learned trial court and the appellate court in the aforesaid criminal cases were marked as Exts. I and 1/3. These orders, however, appear to have been set aside in a criminal revision application by this Court being Cr. Rev. No. 2561 of 1969 which was marked as Ext. 5.
66. Ext. I./1 is the certified copy of the judgment in a criminal case initiated by plaintiff No. 1 Hir Sahu against Harihar Sahu purported to be under Sections 457 and 511 of the Penal Code being G.R. Case No. 534p of 1967, wherein the accused persons were acquitted.
67. Ext. K is the statement of the aforementioned Hiroo Sahu, plaintiff No. 1 in that case.
68. Further, the defendants have filed various other documents to show that they have independently been fighting several litigations against other parties in respect of Khata No. 114.
69. Ext. 1/4 is the judgment dated 26-9-1950 in Title Suit No. 26/45 of 1949-50 in favour of defendant Pata Sahu. Ext. M is the decree passed in the aforementioned suit Ext. H and H/ 1 are the Dakahaldayani reports respectively given in the Execution case on execution of the aforementioned decree.
70. Ext. J/l is the certified copy of the judgment passed in the Case No. 227 of 1950 in favour of Mani Sahu and against Pata Sahu. Ext. J/2 is the judgment passed in G. R Case No. 353 of 1967 against Pata Sahu alone. It appears that one Bhanoo Telin wife of Sanichrj Teli filed the aforementioned case.
71. From, Exts. J/5, J/3, 3/10, J/11, which are judgments and orders passed in T. S. No. 14 of 1967, it appears that in respect of a portion of the propeties in suit, one Ghasi Teli filed a suit against Pata Sao alone. In that suit the plaintiff tried to get himself impleaded as a party but did not succeed as is evident from Ext. J/l0.
Ext. J is a judgment passed in a criminal case initiated by one Ghasi Teli against the defendant No. 1 and others.
Ext. 1/7 is the certified copy of the judgment passed in a complaint case bearing No. C-I12 of 1962 wherein the defendant No. 1 who was the accused therein, was found to be in possession of certain forest lands.
72. Though the judgments of the criminal court are not binding upon the civil courts, but from the said judgments it is clear that the parties have been fighting litigations since 1946, which ipso facto militate against the case of joint possession of the parties. Further from the judgment passed in the civil litigations amongst the parties to the suit and with outsiders, it is clear that therein the parties and the defendant No. 1 had been set up his own independent claim in the properties involved in the said litigations.
73. The learned court below on the basis: of various documents on record, came to the conclusion that the parties have been holding separate status since 1945 but there has been no partition between the parties by mates and bounds of the lands possessed by them prior to 1945.
74. It is, therefore, clear that if the parties had separated themselves and had been dealing with the properties separately and if the parties have been claiming title in themselves in respect of several properties as being their self acquired properties, there cannot be any doubt that there had been a complete partition by and between themselves by metes and bounds.
75. In respect of the lands appertaining to Khata No. 114, the learned court below himself had accepted that the defendants have been in possession of the properties as the sons of Pata Sahu namely Harihar Sahu and his other son were serving in the army since 1954.
The defendants have further proved by bringing on records the receipt books which are Exts. D and D/2 to show that the defendant No. I had been dealing with certain wood products and thereby doing a separate business.
76. The learned court below, however, held that except the lands of Khata No. 114, the defendants have not brought any evidence on record to show that there had been any self acquired property made by them.
77. He, therefore, held that any property which was acquired by the defendant before the revisional survey settlement record of rights must be held to be the joint family properties.
78. Unfortunately, the learned trial court has not considered the effect of the aforementioned documents at all. If the parties have separated themselves even prior to the Cadestral Survey Settlement Record of Rights and only some properties were joint but even in respect whereof separate possession has been recorded, there cannot be any doubt that the joint status came to an end and further in view of the fact that parties have been enjoining their property separately, the question of acquisition of any proeprty from joint family fund did not arise.
79. As a matter of fact, the burden of proof was upon the plaintiffs to show that despite separation in the family in respect of some of the properties, a joint nucleus was sufficient for purchasing the properties standing in the name of the defendants existed.
80. In this context, it is worth while to mention that even the plaintiffs have claimed that the properties appertaining to Khatas Nos. 241 and 242 are their self acquired properties. As noticed hereinbefore the plaintiffs have not even made the lands appertaining to Khata No. 241 subject matter of the suit.
81. It is now well known that properties standing in the name of the co-sharers is not presumed to be a joint family property.
82. Sub-section (2) of Section 233(2) and Section 327 of Mulla's Hindu Law, upon which strong reliance has been placed by Mr. Narayan reads as follows :--
Section 233(2) "There is no presumption that a family, because it is joint, possesses joint porperty or any property. When in a suit for partition, a party claims that any particular item of the property is joint family property, or when in a suit on a mortgage, a party contends that the property mortgaged is joint family property, the burden of proving that it is so rests on the party asserting it."
Section 327.
"1. The clearest case is where the members of a joint family divide the joint property by metes and bounds, and each member is in separate possession and enjoyment of the share allotted to him on partition. Permanency is an essential feature, though not the sole test, of an arrangement of outright partition.
2. The next case is of the kind dealt with by the Privy Council in Appovier v. Rama Subba Aiyan, that is the case where they agree to hold that joint property in defined shares as separate owners. Such a writing operates in law as a partition though the property is not physically divided. This is a case where the agreement declares on the face of it the intention of the parties to hold the joint property as separate owners, and no evidence is admissible of the subsequent acts of the parties to control or alter the effects of the documents.
3. The third case is of the kind dealt with by the Privy Council in Doorga Parshad v. Kundan, that is the case where the agreement is in writing, but the document does not declare on the face of it the intention of the parties to hold the joint property as separate owners. In such a case, when the question arises as to whether the document operates as a partition, the intention of the parties is to be inferred from (1) the document and from (2) their subsequent acts.
Where an instrument of partition after giving one member his share provided that the rest of the property was to be divided in a particular manner and that the remaining member should live like an ordinary undivided family subject to survivorship, it was held by the Privy Council that there was no partition between the other members.
4. The last case is of the kind dealt with by the Privy Council in Ganesh Dutt v. Jewach, that is, the case where there is no writing at all. In such a case, when the question arises as to whether there has been a partition or not, the intention of the parties as to separation can only be inferred from their acts. The question is one of fact to be decided with due regard to the cumulative effect of all the facts and circumstances and primarily the burden of showing that there has been a partition is on the person setting it up.
In case of old transactions when no contemporaneous documents are maintained and when most of the active participants in the transactions have passed away, though, the burden still remains on the person who asserts that there was a partition, it is permissible to fill up gaps in the evidence more readily by reasonable inferences from the evidence on record than in a case where the evidence is not obliterated or lost by passage of time."
83. The aforementioned paragraphs of Mulla's Hindu Law are indicative of the fact that the burden of proof was upon the plaintiff to show that the properties standing in the name of the defendants were the joint family properties.
84. The plaintiffs cannot be permitted to blow hot and cold at the same time, i.e. while contending that the properties standing in their name are their self acquired properties, at the same time contending that the properties standing in the name of defendants are the joint family properties.
85. In Triveni Mishra v. Rampujan Mishra, AIR 1970 Patna 13, a Division Bench of this Court held as follows (at pages-.'15,&
16):-
"It is well settled that even in case of members of a joint Hindu family, there is no bar to the acquisition of separate properties by individual members. But in such a case if it is found that the joint family had a sufficient nucleus which left sufficient surplus income from which subsequent acquisitions could be made, there would be a presumption that the subsequently acquired properties are also joint family properties and the onus would shift on the member claiming any such acquisition as his separate property to prove that it is so.
In this connection, it may be mentioned that as held by the Supreme Court in the case of Shrinivas Kishna Rao v. Narayan, 1955 SCR 1: AIR 1954 SC 379 and as also pointed out in the Mulla's Principles of Hindu Law at page 261 (13th Edition), the mere existence of some nucleus is not the sole criterion to impress subsequent acquisitions a family character and what is to be shown is that the family had as a result of nucleus, sufficient income from which the subsequent acquisition could be made."
86. Similarly, in Shibram Missir v. Tula-ram Missir, AIR 1980 Patna 237, a Division Bench of this Court held as follows (at page 240) :--
"In the case of Karoo Singh v. Ujagir Singh, 1954 BLJR 352 : AIR 1954 Pat 524, it was observed by a Bench of this Court that mere proof of the existence of a joint family does not lead to the presumption that the property held by any member of the family is joint, and the burden rests upon the person asserting that any item of property is joint to establish that there was a nucleus of joint family property and that nucleus was such as did or might have contributed to the property which it was sought to prove as belonging to the joint family. The Division Bench referred to the case of Vythianatha lyer v. Vardaraja lyer, AIR 1938 Mad 841, with approval, where it was observed that where it is established that the family possessed some joint properties which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self acquisition to establish affirmatively that the property was acquired without the aid of the joint family property."
87. It is, therefore, clear that the burden was upon the plaintiff to show that there existed any joint nucleus and not upon the defendant as purported to have been held by the learned court below.
88. Even in the decision of Gur Narain Das v. Gur Tahal Das, AIR 1952 SC 225, upon which great reliance has been placed by Mr. Laxmi Narain, it was held in the facts of that case that although partition by metes and bounds were not proved, two brothers separated amongst themselves.
89. In Vaikuntha Nath Paramanik (dead) by his L. Rs. and heirs v. Sashi Bhusan Paramanik (dead) by his L. Rs, AIR [972 SC 2531, the Supreme Court has again held that if ajoint nucleus is proved when ajoint family is found to be in possession of nucleus sufficient to make the impugned acquisitions then a presumption arises that the acquisitions standing in the names of the persons who were in the management of the family properties are family acquisitions. It is, therefore, absolutely clear that the burden of proof was upon the plaintiff to show that there had been a joint nucleus and the same was sufficient to acquire the properties by the joint family in the name of the coparceners. In law, no presumption of existence of a joint nucleus can be raised, more so in acase where there had been disruption in the joint family status.
90. As noticed hereinbefore, in the instant case, the plaintiffs have miserably failed to prove the existence of any joint nucleus far less the fact that the joint family was in possession of nucleus sufficient to make the impugned acquisitions and, in this view of the matter, the question of raising a presumption that the acquisitions which stand in the name of defendants were made from joint family fund does not arise.
91. As noticed hereinbefore, even accord-ing to the plaintiffs and also from the findings of the learned trial court, it becomes evident that the parties have separated themselves from a long time and had been in separate possession of lands. They have also dealing with the properties separately. There had been litigations inter se amongst the parties relating to the properties which are also to be joint family properties. As noticed hereinbefore, even in some cases, the plaintiff claimed themselves to be the absolute owner in respect of properties in suit which they now claim to be joint family properties.
92. It is further evident from the evidences brought on record that the defendants had all along been contending that the parties have dealing with the lands separately and the defendant No. 1 had been fighting various litigations with the third parties in relation to the lands which were in his possession.
93. In my opinion, therefore, on the facts' and circumstances of this case, it must be held that there had been a partition by metes and bounds amongst the parties and all the acquisitions standing in the names of the defendant or the plaintiffs are their self acquired properties.
94. Mr. Debi Prasad, the learned counsel appearing on behalf of the appellants frankly stated that in the event it be held that there had been a partition amongst the joint family properties which is the case of the defendant, he would not be in a position to support the findings of the learned trial court to the effect that the lands appertaining to Khata No. 242 of village Omra P.S. Palkot Distt. Gumla were not the self acquired properties of the plaintiffs.
95. In the result, this appeal is allowed in part and the judgment and decree passed by the learned trial court is set aside and it is declared that the plaintiffs are only entitled to get a declaration of their title in respect of properties appertaining to Khata No. 242 of village Omra P.S. Palkot, and, further they are entitled to obtain a decree for recovery of possession in respect of the said properties alone. However, the prayer of the plaintiffs for a decree for partition must be rejected.
96. The plaintiffs' suit, therefore, stands decreed to the aforementioned extent only.
In the facts and circumstances of the case, the parties shall bear their own costs throughout.