Allahabad High Court
Ram Kishun And Others. vs The Asstt.Director Consolidation ... on 19 October, 2022
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Court No. - 20 Case :- WRIT - B No. - 3020 of 1982 Petitioner :- Ram Kishun And Others. Respondent :- The Asstt.Director Consolidation Gonda And Others. Counsel for Petitioner :- D.C.Mukherjee,A.N.Mishra,Anand Kumar Tripathi,H.S.Sahai,S.C.Jaiswal,Sachin Srivastava,U.S.Sahai,Uma Shankar Sahai Counsel for Respondent :- C.S.C.,A.Hasan,Pankaj Verma,R.K.Srivastava,Rakesh Kumar Srivastava,V. Krishna Hon'ble Jaspreet Singh,J.
1. Heard Sri U.S. Sahai, learned counsel for the petitioner and Sri Rakesh Kumar Srivastava, learned counsel for the private respondent nos. 3 to 6.
2. By means of this writ petition, the petitioners assail the order dated 05.11.1979 passed by the SOC, Gonda and the order dated 17.06.1982 passed by the DDC Gonda whereby the revision preferred by the petitioners was rejected and the order of the SOC dated 05.11.1979 was affirmed.
3. The dispute in question relates to Khata no. 164 which was recorded in the names of privates respondent nos. 3 to 6 in the basic year.
4. The case of the petitioners is that the property in question belonged to a joint family and the name of Kali Deen was recorded as he was the Karta and in a representative capacity whereas the property in question was purchased by the joint family for the benefit of all the other family members.
5. It is further urged that the Consolidation Officer by means of his order dated 09.01.1978 had upheld the claim of the petitioners and the SOC as well as the DDC have reversed the findings on an erroneous assumption of law.
6. It has also been urged that the evidence on record indicated that the property in question had been procured by the joint family. The evidence also suggested that the predecessors in interest of the parties were living in a joint family and this was enough to establish the existence of joint family from whose funds the property was acquired which remained in the family. Once the existence of a joint family was established it was then the burden on the respondent no. 3 to 6 to establish how they acquired the property by themselves and since the respondents could not indicate as to how they procured the property, the presumption that the property was also of the joint family would be attracted and this aspect of the matter has not been considered by the SOC as well as the DDC which has resulted in sheer miscarriage of justice thereby depriving the petitioners of their rights in the property in question.
7. The learned counsel for the petitioner has relied upon a decision of this Court in the case of Dharmawati Tiwari and others Vs. Prem Shanker Tewari and others reported in (1998) SCC Online All 1362, Bhagwan Dayal and Others Vs. Mst. Reoti Devi and others AIR 1962 SC 287 as well as decision of this Court in the case of Lalta Prasad Vs. Haunsla Prasad reported in (2021) SCC Online All 712 and Nand Lal and Others Vs. DDC, Faizabad reported in 2021 (153) RD 259.
8. The counsel for the respondent nos. 3 to 6 on the other hand controverting the aforesaid submitted that the property in dispute was acquired by the predecessors in interest of the private respondent nos. 3 to 6 namely Kalideen in his own rights.
9. It is also urged that the names of the predecessors in interest of respondent no. 3 to 6 and thereafter his sons remained recorded in the revenue records throughout over a period of 80 years. At no point of time, it was ever disputed that the property belonged to a joint family. It is only in the consolidation operations that the petitioner raised the aforesaid objections.
10. It is also stated that the record would also indicate that only in respect of few plots, the name of some of the petitioners is recorded and that too as ''Marfat'. It is urged that no right or title can be created or vested with any party who has a Marfat entry in his name.
11. It thus suggested that the basic core ingredients to establish the existence of a joint family may not be enough to draw the presumption that the property was also acquired by the joint family. In the aforesaid circumstances, where the petitioners could not establish that the property in question was procured from the joint family funds, it is incorrect to allege that the burden was on the private respondents to establish that the property had been acquired from separate funds.
12. It is urged that both the SOC as well as the DDC has clearly taken note of the evidence available and led by the parties which clearly established that the property remained in the hands of the predecessors in interest of the respondents and was their sole property which was not part of the joint family property, consequently, no rights could be awarded to the petitioners and as such the writ petition deserves to be dismissed.
13. The learned counsel for the respondents has relied upon a decision of the Apex Court in the case of Bhagwat Sharan Vs. Purushottam and Others reported in (2020) 6 SCC 387, Dropadi Devi and others Vs. Shiv Chandra Dixit and others reported in (2020) SCC Online All 104, Ram Prasad and others Vs. DDC, Pratapgarh and others reported in (2019) SCC Online All 4371.
14. The Court has heard learned counsel for the parties and also perused the record.
15. In order to resolve the controversy involved in the present petition, certain brief facts are relevant to be noticed.
16. The property in question is alleged to have originated in the name of Kali Deen. The case of the petitioners is that he was the Karta and his name was recorded in the representative capacity being the head of the joint family whereas the case of the private respondents is that the property belonged to Kali Deen and thereafter his sons Ram Sunder and Ram Shanker and thereafter it devolved on the respondent nos. 3 to 6 and it was never a part of the joint family.
17. The parties have relied upon a pedigree which is also mentioned in paragraph 5 of the petition and was also noticed by the Consolidation Officer in his judgment dated 09.01.1978. From the perusal of the aforesaid pedigree, it would indicate that the parties had a common ancestor namely Sri Sangam.
18. Sri Sangam was survived by his six sons namely Thakur, Kali Deen, Awatar, Guptar, Sheetan and Shree. Since the parties are large in number, therefore, for the sake of convenience, the Court shall refer to the respective parties from the branch that they are claiming i.e. to say from amongst the six sons of Sri Sangam.
19. The record would further indicate that a number of parties have died and the legal heirs have been substituted but for the sake of convenience, the Court shall be referring to the parties as they were originally impleaded in the writ petition.
20. The petitioners nos. 1 to 3 belonged to the branch of Shree. Petitioners Nos. 4 and 5 are from the branch of Kali Deen so also the private respondent nos. 3 to 6.
21. The petitioners nos. 6 to 10 belonged to the branch of Sheetan. The petitioner nos. 11, 12, 13, 14 and 15 also belong to the branch of Sheetan whereas petitioner nos. 16 to 18 are from the branch of Shree and petitioner nos. 19, 20, 21 and 22 are from the branch of Guptar.
22. Upon the commencement of consolidation operations, five sets of objections were filed before the Consolidation Officer. One was filed by Rahas Bihari and others, another was filed by Ram Murat and others, third was filed by Sri Balbhadra and others. Another set of objections was filed by Dhondhe and the last one was filed by Sri Ram Sambhal and others. Each of the objectors claimed their share in the property on the basis of the property being joint. The Consolidation Officer framed four issues and primarily the issue of contention was issue nos. (i), (ii) and (iv) as to whether the objectors were the co-sharers and if so their share. Next was as to whether Ram Murat belonged to the branch of Ram Shanker was the Sirdar on the basis of possession and the next issue was relating to the respective shares of the parties in the property in question.
23. The Consolidation Officer considering the documents filed by the respective parties recorded a finding that the parties did belong to one family as the pedigree was not disputed. It further found that the burden was on the private respondents to indicate as to how the property was acquired by him and his predecessors solely.
24. It also came to the conclusion that the name of Kali Deen was recorded in the representative capacity and thus all the parties had a right in the property and he went on to allow the objections treating the property to be joint and ascertained the share of the respective parties.
25. The private respondents no. 3 to 5 preferred an appeal before the SOC who after considering the respective contentions reversed the judgment passed by the Consolidation Officer and held that the property in question was in the name of Ram Sunder since last 80 years as well as that name of few of the petitioners was recorded in possession as Marfat which could not confer any right or interest to them, coupled with the fact that such a large joint family does not appear to be plausible and for the aforesaid reasons, allowed the appeal by means of judgment dated 05.11.1979.
26. The petitioners separately filed their five revisions which came to be decided on 17.06.1982 and the DDC also affirmed the findings holding that the Marfat entry could not grant any benefit to the petitioners and that there was no material to indicate that the property was acquired from the joint family funds and thus the revisions were dismissed.
27. In order to ascertain the fact whether the property in question was procured from the joint family funds and belong to a joint family, it will be first necessary to take a re-look at the law on the aforesaid points. This Court had the occasion to review the law on the aforesaid point and by referring to various judgments of this Court as well as the Apex Court in the case of Dropadi Devi (Supra) noticed as under:-
"There is a difference between a joint family and a joint family property merely because a joint family exists does not give rise to a presumption that the property also belongs to the joint family. In this regard, this Court draws strength from the decision of the Apex Court in the case of D.S. Lakshmaiah and Another Vs. L. Balasubramanyam reported in 2003 (10) SCC 310, the relevant portion reads as under:-
18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.
Similarly, the Coordinate Bench of this Court in the case of Kunj Bihari Vs. Ganga Sahai Pande reported in 2013 SCC Online Alld. 13489: 2013 (99) ALR 826 wherein tracing the history and considering the earlier decision on the point of Joint Hindu Family and property, the burden of proof etc. This Court has held as under:-
24. The "patriarchal family" may be defined as a group of natural or adoptive descendants, held together by subjection to the eldest living ascendant, father, grand-father, great-grandfather. Whatever be a formal prescription of law, the head of such a group is always in practice, despotic; and he is the object of respect, if not always of affection, which is probably seated deeper than any positive institution. Manu says, "three persons, a wife, a son and a slave, are declared by law to have in general no wealth exclusively their own; the wealth which they may earn is regularly acquired for the man to whom they belong." Narada says, "he is of age and independent, in case his parents be dead; during their lifetime he is dependent, even though he be grown old."
25. The "joint family" is normally a transition form from "patriarchal family". At the death of common ancestors or head of house, if the family chooses to continue united, the eldest son would be the natural head. The former one was head of family by natural authority, the later other can only be so by a delegated authority. He is primus but inter pares. An undivided Hindu family thus is ordinarily joint, not only in estate but in food and worship. The presumption, therefore, is that members of a Hindu family are living in a state of union unless contrary is established. This presumption however varies inasmuch as it is stronger in case of real brother than in case of cousin and farther one go, from the founder of family, the presumption becomes weaker and weaker. However, there is no presumption that a family, because it is joint, possesses joint property. Under Mitakshara Law, possession of property is not necessary requisite for constitution of a joint family, though where persons live together, joint in food and worship, it is difficult to conceive of their possessing no property whatever, such as, at least, ordinary household articles which they would enjoy in common.
32. The joint undivided family is the normal condition of Hindu society as observed in Raghunadha Vs. Brozo Kishroe (1876) 3 IA 154 and Neelkisto Deb Vs. Beerchunder (1989) 12 MIA 523. An HUF is ordinarily joint not only in estate but in food and worship. Unless contrary is established, the presumption is that the members of a Hindu family are living in a state of union (see: Govind Dass Vs. Kuldip Singh AIR 1971 Delhi 151 and Bhagwan Dayal Vs. Mst. Reoti Devi AIR 1962 SC 287). If, however, one of the coparceners is admittedly living separately from other members of the family, neither it can be said that other members do not constitute a Hindu joint family nor the member living separately, who has stripped his relation with the joint family, can be said to be still a coparcener or member of joint family. Simultaneously, merely if some members are working and living at different places, though own a joint family in common, it cannot be said that they do not form a joint Hindu family. Since it is only a presumption, the strength thereof necessarily varies in every case. The presumption of union is stronger in the case of brothers than in the case of cousins and farther one goes from the founder of the family, the presumption becomes weaker and weaker.
33. Brothers may be presumed to be joint but conclusion of jointness with collaterals must be affirmatively proved. The presumption lies strongly in favour of father and son that they are living jointly unless proved otherwise.
34. This presumption, however, does not apply in respect of property. There is no presumption that a family, because it is joint, possess joint property. As per Mitakshara law, the possession of property is not a necessary requisite for the constitution of a joint family, though where persons live together, joint in food and worship, it is difficult to conceive that they are possessing no property whatever, such as ordinary household articles which they would enjoy in common.
35. In Sher Singh Vs. Gamdoor Singh 1997 (2) HLR 81 (SC), the Court said that once existence of a joint family is not in dispute, necessarily the property held by family assumed the character of a coparcenary property and every member of family would be entitled, by birth, to a share in coparcenary property, unless any one of the coparcener pleads, by separate pleadings and proves, that some of the properties or all the properties are his self-acquired properties and cannot be blended in coparcenary property. Merely because the family is joint, there is no presumption of joint property. A Hindu, even if he be joint may possess separate property. Such property belongs exclusively to him. Neither member of the coparcenary, nor his male issue, acquires any interest in it by birth. On his death (intestate), it passes by succession to his heirs and not by survivorship to the surviving coparcener. The existence of joint family does not raise presumption that it owns properties jointly. But once joint family nucleus is either proved or admitted so as to draw inference that such property could have been acquired out of joint family funds, the burden shifts to the party alleging self acquisition, to establish affirmatively, that such property was acquired without aid of joint family. Initial burden always lies upon the party asserting that any item of property is joint family property.
38. In Appalaswami Vs. Suryanarayanamurti and Ors., AIR 1947 PC 189, it was held that Hindu law is very clear. Proof of existence of a joint family does not lead to the presumption that property held by any member of family is joint. The burden rests upon one who asserts that an item of property is joint, to establish that fact. But where it is established that the family possessed some joint property which, from its nature and relative value, may have formed the nucleus, from which 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 joint family property/fund.
39. Again in Srinivas Krishnarao Kango Vs. Narayan Devji Kango AIR 1954 SC 379, it was held that proof of existence of a joint family does not lead to the presumption that property held by any member of family is joint. The burden rests upon anyone asserting that any item of property is joint to establish the fact. But where it is established that the family possessed some joint property which form its nature and relative value, may have formed the nucleus, from which 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 joint family property.
40. The legal proposition which emerges therefrom is that initial burden is on the person who claims that it is joint family property but after initial burden is discharged, the burden shifts to the party claiming that the property was self acquired and without the aid of joint family property/fund.
41. In Rukhmabai Vs. Lala Laxminarayan AIR 1960 SC 335, the Court said:
"There is a presumption in Hindu Law that a family is joint. There can be a division in status among the members of a joint Hindu family by refinement of shares which is technically called "division in status", or an actual division among them by allotment of specific property to each one of them which is described as "division by metes and bounds". A member need. not receive any share in the joint estate but may renounce his interest therein, his renunciation merely extinguishes his interest in the estate but does not affect the status of the remaining members vis- a-vis the family property, A division in status can be effected by an unambiguous declaration to become divided from the others and that intention can be expressed by any process. Though prima facie a document clearly expressing the intention to divide brings about a division in status, it is open to a party to prove that the said document was a sham or a nominal one not intended to be acted upon but was conceived and executed for an ulterior purpose. But there is no presumption that any property, whether movable or immovable, held by a member of, a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property. to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property..." (emphasis added)
28. It is in the aforesaid backdrop if the findings as well as the material on record is assessed, it would be found that there was no evidence brought on record to indicate that the property in question was procured from the joint family nucleus. There is no evidence on record to indicate that the property ever existed in the name of Sangam, the common ancestor. There is not enough evidence to state that Kali Deen was the Karta and he along with his brothers had jointly created a joint family nucleus by which the land was acquired.
29. It is also to be noticed that at the relevant time where the entries relate to 1338, 1333, 1356 and 1359 Fasli, they relate to Gregorian Calender of the year 1926, 1931, 1349, and 1952 respectively.
30. In 1333 and 1338 Fasli year, the Oudh Rent Act was in operation which did not have a concept of heritable tenancy which only came into picture with the advent of United Provinces Tenancy Act, 1939.
31. It would be seen that the entries were recorded in the name of Ram Sunder who is the son of Kali Deen. The private respondents are the descendants of Ram Sunder. From the perusal of the material which was placed on record before the Consolidation Authorities, it would indicate that the names of some of the predecessors of the petitioners was recorded in the Khasra and Khatauni of Fasli year 1333, 1356 and 1359 Fasli under Column (ix) as Marfat entry.
32. The word ''Marfat' has its origin in Arabic which means ''on behalf of'. The law regarding Marfat entry has been considered by this Court in the case of Ram Prasad (Supra) and the relevant portion thereof reads as under:-
"With regard to the purport of ''Marfat' entry this Court may refer to the decision reported in 1983 (1) LCD 372; Bhikhu Vs. Assistant Director of Consolidation and Ors. wherein it was held that ''Marfat' is an Arabic word which translated into English would mean ''through or on behalf of' a person in whose favour their exists such an entry can not be said to be in possession in his own right and such possession would not mature into Adivasi and Sirdari rights. Reference may also be made to another decision reported in 1993 (11) LCD; Ram Lakhan Vs. Deputy Director of Consolidation, wherein, it was held that a ''Marfat' entry does not indicate possession by virtue of right as laid down in Bhikhu's case (supra). The ''Marfat' entries are made in Khasra and not in Khatauni. This aspect of the matter was considered by a Division Bench of this Court in the case of Jagdish Prasad Vs. Board of Revenue and Ors. reported in 1956 ALJ 317 All., wherein after considering paragraph 83 of the Land Records Mannual and various decisions on this point it was held that ''Marfat' is defined in paragraph 83 of the Land Records Manual as a person put by a tenant in cultivating possession of the holding on his behalf. Sometimes a ''Marfatdar' is treated as a pure agent 1953 R.D. 273; Pati Ram Vs. Hira Lal, sometimes he is treated as a licensee 1939 R.D. 533; Hari Nath Singh Vs. Satyadeo Singh and Ors. The relevant extract of the judgment in Jagdish Prasad (supra) is quoted hereinbelow:-
"A ''Marfat' is defined in paragraph 83 of the Land Records Manual as a person put by a tenant in cultivating possession of the holding on his behalf. Sometimes a ''Marfatdar' is treated as a pure agent 1953 A.L.J. (Revenue) (203); Pati Ram Vs. Hira Lal, sometimes he is treated as a licensee (1939 R.D. 533 and 1953 R.D. 273).
If he is purely an agent he cannot be considered to be an occupant because he is merely a custodian on behalf of the tenant. He Cultivates the land as a servant or agent of the tenant at the expense of the tenant and for the benefit of the tenant. The fruits of cultivation go to the tenant. He may or may not charge for his services. He cannot be said to be in occupation of the land.
If he is a ''licensee' and not merely an agent, even then he cannot be said to be an ''occupant' of the land. A licensee is a person who is allowed to make use of a thing in a certain way under certain terms, possession and control over the thing remaining with the owner (see Halsbury's Laws of England, Hailsham Edition, Vol. 20, paras 5 and 6 pp. 8 and 9). "A mere licence does not create any estate or interest in the property to which it relates; it only makes an act lawful which without it would be unlawful" (ibid). A license is a permission under which the licensee takes only the right to use the premises without exclusive possession thereof. Since a licence lacks the quality of exclusive possession, it falls short of true possession or occupancy.
In Part II of the Khatauni are to be mentioned tenants deriving their title from other tenants, or from Sir holders, khudkasht holders, rent-free grantees, grantees at a favourable rate of rent, or lessees under Sec. 252 of the U.P. Tenancy Act. Under this Part, in class (20) are to be mentioned "occupiers" of lands without the consent of the tenant-in-chief. In the Khatauni, no mention is made of persons holding as ''Marfatdars' of ''Sajbidars'. The names of these persons find place in the Khasra only.
Paragraph 83 of the Land Records Manual provides that if the recorded tenant has permitted any person to share in the cultivation of his holding or any part thereof as a partner or ''sajbi', or has put any person "in cultivating possession on his behalf," the name of the sharer or the cultivator will be shown only in the remarks column of the Khasra, the former with the word "Sajbi" and the latter with the word "Marifat". The relationship, if any, with the recorded tenant will also be shown, e.g., "Marfat Ramcharan Bhatija". The name of the Sajbi or Marifat is not to be shown in columns 5 and 6 of the Khasra.
As already stated, Sajbidars or Marfatdars do not claim an interest in the land and are not in exclusive occupation in their own right."
33. Noticing the aforesaid, it would be clear that merely recording of the name under column (ix) as Marfat would not confer any benefit on the petitioners to claim right in the joint family.
34. The submission of learned counsel for the petitioners that it was incumbent upon the respondents to indicate that how they acquired the property does not impress this Court for the reason that the name of Ram Sunder, the descendant of Kali Deen has been recorded in the revenue records for about 80 years and odd which has been clearly noticed by the Consolidation Authorities. It was the plea raised by the petitioners that the prope was belonging to a joint family. It is no doubt true that there is a presumption of a family being joint but this Court is afraid to say that such presumption does not extend to an immovable property. The burden would be on the petitioners to establish that the property was created by joint family funds for the benefit of the joint family. (see Para 10 Bhagwat Sharan Vs. Purushottam in (2020) 6 SCC 387).
35. In order to claim the property being a joint family property, it was incumbent upon the petitioners to show that Kali Deen and his brothers were common in mess and residence and with their common toil, they had created a joint family nucleus from which the property had been acquired. There is no evidence to that effect and as already indicated above, the property not being heritable at the time when the Oudh Rent Act was in operation and without indicating the date of death of various members in the family, it could not be clearly ascertained as to how the petitioners would get a right in the property of which they claim to be joint especially noticing the dictum in the case of Dropadi Devi (Supra).
36. In view of the aforesaid, this Court is not inclined to accept the submissions of learned counsel for the petitioner that the property in question was a joint family property.
37. In view of what has been discussed above, it is clear that the findings recorded by the SOC and the DDC which is based on the material on record does not require any interference. Moreover, the Consolidation Officer while considering the evidence, though, came to the conclusion that since the parties could not dispute the pedigree, hence, they belong to a same family may not require any interference, however, there is no material on record to indicate as to what prompted the Consolidation Officer to arrive at a conclusion that the property was procured by Kali Deen along with his other brothers and how he came to the conclusion that the name of Kali Deen was recorded in a representative capacity. It also did not consider the effect of the revenue records indicating that the name of the predecessors of few of the petitioners was only shown in Colum (ix) as Marfat entry and, therefore, it has merely selectively considered the evidence without taking over all view of the material available on record.
38. In view of the aforesaid, this Court does not find that there is any error committed by the Settlement Officer of Consolidation as well as the Deputy Director of Consolidation while rendering their judgments, accordingly, the petition is devoid of merits and is dismissed.
39. In the facts and circumstances, there shall be no order as to costs.
(Jaspreet Singh, J.) Order Date :- 19th October, 2022 Asheesh