Patna High Court
Rabindra Pratap Sharma vs Rajesh Kumar Sharma on 9 May, 2012
Equivalent citations: AIR 2012 PATNA 163
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
IN THE HIGH COURT OF JUDICATURE AT
PATNA
FIRST APPEAL No. 200 OF 1980
Against the Judgment and Decree dated 20.12.1979 passed
by Sri Birendra Kumar Sinha 5th Additional Subordinate
Judge, Siwan in title suit No.153 of 1970.
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RABINDRA PRATAP SHARMA .......... Plaintiff-appellant
Versus
RAJESH KUMAR SHARMA & ORS. ......... Defendants-respondents
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********
Appearance :
For the Appellant : Mr. Shashi Shekhar Dwivedi, Sr. Advocate
Mr. Ranjan Kumar Dubey, Advocate with
him.
For the Respondent : Mr. Anish Akhtar, Advocate
No.1 to 3 Mr. Arifdaula Siddique, Advocate
Mr. Mehtab Alam, Advocate
Mr. Ashif Kalim, Advocate and
Mr. Rakesh Chandra, Advocate
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Dated : the 9thday of May, 2012
PRESENT
CORAM : THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO
CAV JUDGMENT
Mungeshwar
1. The plaintiff-appellant has filed this First Appeal against the
Sahoo, J.
impugned Judgment and Decree dated 20.12.1979 passed by Sri Birendra Kumar Sinha, the learned 5th Addl. Subordinate Judge, Siwan in title suit No.153 of 1970 dismissing in part the plaintiff's suit for partition. 2 Patna High Court FA No.200 of 1980 dt.09-05-2012 2 / 18
2. The plaintiff-appellant filed the aforesaid title suit No.153 of 1970 claiming partition of properties mentioned in Schedule I, II and III to the extent of his 1/4th share.
3. The plaintiff claimed his share on the facts inter alia that Devi Sharma had two sons, namely, Shyama Sharma and Raghubir Sharma. The plaintiff and defendant No.1 2 and 3 are sons of Raghubir Sharma and defendant Nos. 4 to 10 are sons and daughters and wife of Shyama Sharma. Both the brothers, namely, Shyama Sharma and Raghubur Sharma had separated in 1945. The properties were also partitioned except ancestral house which remained joint. Shayama Sharma died in the year 1958. Raghubir Sharma died in the year 1961 in jointness with the plaintiff and defendant No.1 to 3. After some time of the death of Raghubir Sharma, the plaintiff and defendant No.1 to 3 separated in family business but there was no partition of the properties of Raghubir Sharma. However, the parties were cultivating the lands according to their convenience. The joint house at Lucknow was occupied by tenants and the defendant No.1 was collecting the rent on behalf of all the defendants and plaintiffs. The defendant No.1 was residing at Lucknow as he was in railway service. For some time past, the intention of the defendant No.1 has become bad and refuse to give true account of collection of rent of Lucknow house, therefore, the plaintiff filed the suit for partition. It may be mentioned here that the facts which are relevant has only been mentioned here and the prior to history of genealogy is not given.
4. The further case of the plaintiff is that the house built over plot No.1037 and the land is also joint family property which was acquired and the house was built with joint family fund. The name of wife of defendant No.1 is simply benamidar.
3 Patna High Court FA No.200 of 1980 dt.09-05-2012 3 / 18
5. On being noticed, the defendant No.1 filed a separate contesting written statement. His case in short is that he entered into railway service in the year 1942 and posted at Lucknow. Out of his own earning, he purchased two blocks of land with houses i.e., plot No.121 and 122 mentioned in Schedule II of the plaint for consideration of Rs.2,000/- in the name of his father, Raghubir Sharma because he was in Central Government service. After purchase, he is living in the house and has also inducted tenants in portion of the house. When he fell in need of money, he borrowed Rs.5,000/- from Pancham Sahu and Makfula deed was executed by his father at his instance. After that the loan was paid back by the defendant and got back the deed. Accordingly, the land and house at Lucknow on plot No.121 and 122 are the self acquired property of this defendant No.1. Neither Raghubir Sharma nor the plaintiff nor the defendant No.2 and 3 have got any right in the said property. The house at Lucknow on plot No.106 is the joint family property which stands in the name of 4 brothers, i.e., the sons of Raghubir Sharma. So far house and land on plot No.1037 at village Kherai is concerned, it is the self acquired property of his wife out of her kosila money and, therefore, the same is her self acquired property. All other matters have been admitted by this defendant.
6. On the basis of these pleadings of the parties, the learned Court below framed the following issues :
(i) Is the suit maintainable as framed?
(ii) Is the suit barred by law of limitation, estoppel etc.?
(iii) Has the plaintiff got any valid cause of action for the suit?
(iv) Is there any unity of title and possession over that suit lands
between the parties?
(v) Does any of the parties possess self acquired properties not liable
for partition?
(vi) To what relief or reliefs the plaintiff is entitled to?
4 Patna High Court FA No.200 of 1980 dt.09-05-2012
4 / 18
7. After trial, the learned Court below recorded finding at paragraph 26 that the plaintiff has totally failed in proving that the properties i.e., the house and land of plot No.121 & 122 at Lucknow was acquired by joint family fund and the land pertaining to village Kherai of plot NO.1037 was also acquired by joint family fund whereas the defendant No.1 has successfully established that the said property at Lucknow was acquired by defendant No.1 out of his own earning and that the property of village Kherai was acquired by his wife Lalmuni Devi out of her own kosila money and the structure thereon was constructed out of her stridhan. Accordingly, the suit has been dismissed with respect to those properties and so far rest is concerned, the suit has been decreed in part.
8. The learned senior counsel, Mr. Dwivedi appearing on behalf of the appellant submitted that the learned Court below has not appreciated the law in proper way and has applied the law in wrong way. According to the learned counsel, the Court below has not considered the fact that the property at Lucknow on plot No.121 and 122 is standing in the name of Raghubir Sharma father of the plaintiff and defendant No.1 to 3. Therefore, the presumption is that Raghubir Sharma was the owner of the property. After his death, the property devolved on his 4 sons equally. The learned Court below wrongly placed onus on the appellant to prove the fact that the property was acquired out of joint family fund. The onus was on the defendant to prove that in fact he has acquired property in the name of father out of his own earning. It is not the case of the plaintiff that the property of Raghubir Sharma was acquired out of joint family fund. So far the property at village Kherai is concerned, admittedly, it is standing in the name of wife of defendant No.1. The sale deed has been produced by the plaintiff and in fact the consideration 5 Patna High Court FA No.200 of 1980 dt.09-05-2012 5 / 18 amount was paid out of joint family fund. To prove the income of the joint family, the parties have adduced evidence but the learned Court below did not consider the evidences on right prospective. The learned Court below rejected the evidences only saying that all these documents do not prove the joint family fund and, therefore held that the properties of Lucknow on plot No.121 & 122 and the property at village Kherai are not joint family property. On these grounds, the learned counsel submitted that the impugned Judgment and Decree are liable to be set aside.
9. On the contrary, the learned counsel appearing on behalf of the respondent submitted that the defendant No.1 is in Government service since 1942 and was posted at Lucknow, therefore, he has purchased the property on plot No.121 and 122 in the name of his father out of his own earning. His father is benamidar and had no money to purchase the said property. Since the plaintiff is claiming partition claiming the property to be joint family property, the learned Court below has rightly placed the onus on him to prove that the property is joint family property and unless he proves this fact that the property is joint family property, it cannot be partitioned. So far property at village Kherai i.e., plot No.1037 is concerned, admittedly, it is standing in the name of wife of defendant No.1 and, therefore unless the declaration is sought for that the property is the joint family property, the same cannot be partitioned. The learned counsel further submitted that the learned trial Court considered all aspects of the matter and then has recorded a finding. In such view of the matter, the First Appeal is liable to be dismissed with cost.
10. In view of the above contentions of the parties, the points arises for consideration in this appeal are :
(i) Whether there is unity of title and possession on the property at Lucknow on plot No.121 & 122 between the parties or whether it 6 Patna High Court FA No.200 of 1980 dt.09-05-2012 6 / 18 is self-acquired property of defendant No.1 in the name of his father, Raghubir Sharma.
(ii) Whether the property, i.e., plot No.1037 of village Kherai standing in the name of Lalmuni Devi is her self-acquired property or is joint family property and liable for partition.
11. Point No. (i) :- It is admitted fact that the properties on plot No.121 and 122 is in the name of Raghubir Sharma, i.e., the father of the plaintiff and defendant No.2 and 3. Raghubir Sharma died in 1961. The suit has been filed in the year 1970 claiming 1/4th share in the said property by the plaintiff. Since the property was purchased in the name of Raghubir Sharma on his death, it will devolve equally on 4 sons according to Hindu Succession Act irrespective of the fact that whether it was purchased out of joint family property or it was purchased by Raghubir Sharma out of his self income. The defendant No.1 is claiming that he has purchased the property out of his own earning. In such circumstances, the burden is on defendant No.1 to prove that in fact his father was benamidar.
12. From perusal of the impugned Judgment, it appears that the learned Court below proceeded to decide this issue quoting the Hindu law to the effect the burden is on the person who is claiming a share to prove that the property was purchased out of joint family fund. In the entire Judgment, the Court below has considered this aspect as to whether the family possess some nucleous to show that the house at Lucknow and Kherai have been acquired out of the joint family fund. In my opinion, this approach of the learned trial Court is entirely wrong approach. The joint family fund or nucleous is relevant for the purpose of consideration regarding the purchase of property at village kherai, i.e., plot No.1037 because it is admittedly purchased in the name of wife of defendant No.1. Therefore, the joint family fund or nucleous is 7 Patna High Court FA No.200 of 1980 dt.09-05-2012 7 / 18 relevant for this property only. So far property at Lucknow on plot No.121 & 122 is concerned, the plaintiff is not required to prove that it was purchased out of joint family fund. As has been stated above, it is admittedly recorded in the name of father of the parties. Since, natural succession is being challenged by defendant No.1 alleging that his father was benamidar and it is his self-acquired property, it is for him to prove this fact that in fact out of his own earning, the property on plot No.121 and 122 were purchased by him. Therefore, the burden is on defendant No.1 to plead about his income, about his saving and to prove that out of this saving, he gave the consideration amount of Rs.2,000/-.
13. Now let us consider the evidences adduced on behalf of the parties in relation to the property at Lucknow on plot No.121 and 122. P.W.2 & 3 have stated that Raghubir Sharma was the karta and till date there has been no partition of his property. P.W.5 has stated that Raghubir Sharma was the karta. P.W.11 who was tenant in the house at Lucknow has stated that parties have two house at Lucknow. He claimed that Raghubir was his Phufa. At paragraph 14, he had stated that his father was tenant for last 30 years. P.W.12 also claimed that he was tenant in the house of Lucknow which is in dispute. P.W.15 is the plaintiff himself. He has fully supported his case that till his father was alive, he was karta. All the properties are joint. All the properties which were acquired were acquired in jointness and all the brothers have got equal share in the property of father. He has stated that the property was purchased in the name of his father by ext.6/A and the consideration amount was given by his father in presence of this witnesses vide paragraph 6. After death of father, the defendant No.1 was managing the family as he was elder brother. At paragraph 16, he has stated that there was 20 biggha ancestral land which was partitioned between Shayama Sharma 8 Patna High Court FA No.200 of 1980 dt.09-05-2012 8 / 18 and his brother, Raghubir Sharma in the year 1945. In that partition, 10 bigghas land was allotted to Raghubir Sharma. This sale deed has been executed in favour of his father on 20th February, 1946 by Ram Khelawan. At the time of registration, this witness had also accompanied to registry office at Lucknow. The sale deed has been proved, ext.6/A. Admittedly, it is in the name of father Raghubir Sharma. The only dispute is that the defendant No.1 is claiming that he has purchased this property out of his own earning in the name of his father. Therefore, the burden as started above is on him to prove. The case of the plaintiff is admitted and according to law on the death of Raghubir Sharma, the property will devolve on 4 brothers equally, if defendant No.1 failed to prove his case. In the written statement at paragraph 9, he has pleaded that he was employed in the year 1942 in railway and out of his earning, he purchased the land and house on plot no.121 and 122 at Lucknow for Rs.2,000/-. He was in service, therefore, he got the sale deed executed in the name of his father. This is only pleading regarding this property.
14. D.W.18 is the defendant No.1. In his evidence, he has stated that at Lucknow, he is employed since 1942. Out of his own earning, he purchased the Lucknow property in 1946 the plot no. is 121 & 122. He claimed that he has paid the money and got the sale deed executed in the name of his father because he was in Government service and there was difficulty in obtaining the sale deed in his name. He denied that the property was purchased out of joint family property. He stated that his father has no saving out of cultivation of joint family land. The sale deed has been produced from the custody of this defendant. From perusal of rest of evidence, it appears that he has only stated about the possession and collection on rent etc. In the examination-in- chief nowhere he has stated about his income, i.e., monthly salary and also 9 Patna High Court FA No.200 of 1980 dt.09-05-2012 9 / 18 the expenditure thereof and monthly saving. Since the onus is on him to prove wherefrom he got this Rs.2,000/-, i.e. to consideration money, he is not required to prove that his father had no income or that there was no joint family income or nucleous nor the plaintiff is required to prove that the joint family had nucleous. The burden is on the defendant No.1. In the pleading as stated above and in the evidence discussed above except this statement that he was employed in railway in 1942, there is nothing about his income or salary and likewise there is nothing that how much he was saving per month. Admittedly, the property has been purchased in February, 1945. In the cross- examination at paragraph 38, he has admitted that he was employed as Apprentice and his monthly salary initially was Rs.10/- till July, 1943. The salary was increased from September 1943 to Rs.33 till April, 1945. D.W.4 has also admitted that Ramraj joined as Apprentice of salary of Rs.10/- per month. This D.W. 18 has also stated that his name has been mutated at Lucknow municipality.
15. The learned counsel for the respondent submitted that in November, 1942, the defendant No.1 joined as Apprentice in railway and according to the calculation as stated by D.W.18 in paragraph 38, the total income of the defendant No.1 comes to Rs.2,178/- A written argument has also been filed on behalf of the defendant-respondent. The learned counsel submitted that out of the said income, the consideration amount of Rs.2,000/- has been paid. So far this submission is concerned, I will later on deal after perusing the other evidences of the witnesses. D.W.3 at paragraph 2 has stated that Ramraj had purchased property from Ram Khelawan. D.W.4 has stated that only Ramraj was in possession of property in question. D.W.5 claiming himself to be a tenant had stated that he used to pay the rent to Ramraj. The evidences of D.W.6 is also in the same line as that of D.W.5. D.W.10 has 10 Patna High Court FA No.200 of 1980 dt.09-05-2012 10 / 18 stated that Rs.1000/- is given to vendor and at that time, Raghubir was not present. D.W.11 and 12 are tenant in the house at Lucknow who have stated that Ramraj was collecting the rent. D.W.13 is cousin brother. At paragraph 2 and 3, he has stated that Ramraj had purchased the property of plot No.1218122. His other brothers have no concern with the property and Raghubir had no fund. This witness at paragraph 12 has admitted that the second marriage of defendant No.1 was held in the year 1950. The other witnesses are on the acquisition of property of plot No.1037 of village Kherai. These are the evidences on the point of acquisition of the property on plot No.121 and 122. No documentary evidence has been produced by the defendant-respondent in support of his income and saving per month. There is no pleading regarding monthly income and expense and saving. The witnesses have stated only that he was employed in railway as Apprentice on monthly salary of Rs.10/- What was his monthly expense is not clear. Admittedly, the family had no residential accommodation at Lucknow. Therefore, the defendant No.1 was expected to have spent towards his accommodation fooding, lodging transportation and clothing. Nothing has been explained by the defendant No.1 that how much he was spending on these accounts and what was his saving per month. In view of this fact, the submission of the learned counsel that on calculation of total income till the date of purchase of the property comes to Rs.2,178/- is not acceptable for the reasons that no account has been given regarding expenditure. It is not his case that he got money from any other person.
16. In view of the above fact only on saying that he had purchased the property in the name of his father or that he paid the consideration amount, it will not be reliable. The evidence must be reliable evidence. Mere saying will not do. The evidence must be acceptable.
11 Patna High Court FA No.200 of 1980 dt.09-05-2012 11 / 18
17. The learned counsel for the respondent submitted that the property has been mutated in the municipality. So far this submission is concerned, it may be mentioned here that how the name of the defendant No.1 has been mutated has not been brought on record. Admittedly, the property is in the name of Raghubir Sharma. On his death, the property will devolve on his 4 brothers. In such circumstances, there must be some basis or any order passed by competent authority showing in what circumstances or on what basis the name of defendant No.1 has been mutated in the municipality. Mere mutation will not do. In other words, only because in the municipality, the name of defendant No.1 has mutated, he will not be declared as the owner of the property exclusively.
18. The learned counsel for the defendant-respondent submitted that the defendant No.1 is in exclusive possession of the property. So far this submission is concerned, admittedly defendant No.1 is employed at Lucknow. It is admitted fact that family is joint. Therefore, possession of one brother does not mean that other brothers were ousted. Since, he was only employed at Lucknow, it is quite natural that he was residing there. But it does not mean that he became the absolute owner.
19. The learned counsel for the respondent submitted that the sale deed was in custody of the defendant No.1-respodnent and he has produced the same in the Court. No doubt while considering the case of benami, the Court has to consider the ingredients like the possession of the property, the party dealing the property and the custody of the title document. But here in the present facts and circumstances of the case, it is admitted case that the title deed is in the name of father, Raghubir Sharma. On the death of father, if the title deed came to be possessed by one of the son, he cannot be allowed to say that because he is possessing the sale deed he is real owner of the 12 Patna High Court FA No.200 of 1980 dt.09-05-2012 12 / 18 property. Admittedly, the property is situated at Lucknow. The sale deed was registered at Lucknow. The defendant No.1 is employed at Lucknow and is residing in the house and, therefore, it is expected that he should be in possession of the title deed also. Admittedly the other brothers including the plaintiffs resides in Bihar but on these facts alone, there can be no presumption that because defendant No.1 is residing at Lucknow and is in possession of title deed, the property has been purchased by him out of his own earning, particularly, when he is not disclosing as to how he managed to pay Rs.2,000/- on the date of purchase of the property in the year 1946. The main ingredients for considering the benami nature of transaction is passing of consideration is to be proved by the person strictly who claimed to be real owner. If he fails to prove the payment of consideration by him, merely on the basis of possession of property or title deed, no finding can be recorded that he is the real owner of the property or that he has paid the consideration amount.
20. The learned counsel for the respondent submitted that the defendant No.1 was residing with his uncle at Lucknow and, therefore, he was not incurring any expenses vide paragraph 38 of D.W.15. It is admitted fact that the defendant No.1 was employed in October, 1942 and the property had been purchased in February, 1946. In such circumstances, particularly when the defendant was employed the submission of the learned counsel for the defendant is not acceptable that defendant No.1 was not incurring any expenses or that he was not spending a farthing. This one line explanation cannot be accepted and it appears that merely because one witness is saying an absurdity the Court cannot accept it as reasonable explanation. This explanation has been given only to patch up the matter that he saved entire 13 Patna High Court FA No.200 of 1980 dt.09-05-2012 13 / 18 income during this long more than 3 years. I, therefore, find no force in the submission of the learned counsel for the respondent.
21. The documentary evidences produced by the defendant relates to the possession of the property which is admitted by the plaintiff. The municipal receipts have been marked as ext. 'C' series. Ext.C/6, ext.C/14, ext.C/8 are municipal receipts standing in the name of Ram Khelawan. The learned counsel for the respondent submitted that the tax have been paid by the defendant No.1. Since the defendant No.1 was residing there, it is quite natural that he was paying the tax and was obtaining the municipal receipts. Likewise the ext. 'D' series are the water tax receipts. These documents only proved that in the name of Ram Khelawan, the vendor of Raghubir Sharma, the municipal tax or water tax were being paid by defendant No.1. Ext. 'R' series are the counter foil of rent receipts. This also only proves that Ramraj was collecting and granting receipts to the tenants. As stated above these documents also only prove that Ramraj was residing at Lucknow, therefore, he was doing the management of the house and was inducting tenants. On these basis, it cannot be said that he became real owner of the property as admittedly neither the father nor the brothers of the defendant No.1 were residing at Lucknow. On the basis of these documents, it cannot be said that the title has been created in favour of the defendant No.1. Ext. 'I' series are the correspondence between Ramraj and Municipal Board, Lucknow. As stated above, these documents do not prove the benami nature of the transaction. At best it can very well be said that the defendant No.1 was residing in Lucknow. It may be mentioned here that it is the specific case of the plaintiff that since defendant No.1 was residing at Lucknow, he was managing as he was elder brother.
14 Patna High Court FA No.200 of 1980 dt.09-05-2012 14 / 18
22. Regarding the mutation of defendant No.1 in the municipality is concerned, the defendant has produced ext. 'M' series. It is admitted fact that the property was in the name of Raghubir Sharma and all these ext. 'M' series excluding some of them are after the institution of the suit. Some of these exhibits are prior to institution of the suit wherein name of Raghubir Sharma has been mentioned and the payment of tax has been mentioned. As stated above on the basis of these ext. 'M' series, which shows the payment of taxes ect., it cannot be said that a title has been created on defendant No.1 or that it can be recorded that he is the real owner of the property. At the cost of repetition, I may mention here that the defendant No.1 must prove that he has paid the consideration amount which he has failed to prove as discussed above.
23. On the contrary, the plaintiff has also produced the rent receipt ext.4 series which are in the name of Raghubir Sharma. It appears that the learned Court below discarded these exhibits on the ground that holding number and plot number has not been mentioned. It may be mentioned here that it is not the case of the defendant that these exhibit 4 series do not relate to the suit property. The plaintiff has also produced the inland letters written by defendant No.1 either to his father or to the plaintiff. These inland letters and post cards have been marked as ext.6 series. From perusal of some of the letters, it appears that accounts was asked for about the rent of Lucknow house and in connection with that there was strain relation. Ext.4/K has been produced by the plaintiff to show that in fact the defendant No.1 was giving account.
24. In view of the above discussion of the documentary evidences produced by the plaintiff, it is clear that the defendant No.1 was giving account about the rent collected by him.
15 Patna High Court FA No.200 of 1980 dt.09-05-2012 15 / 18
25. From perusal of the impugned Judgment, the learned Court below did not discuss at all these documentary evidences on the ground that these documentary evidences do not prove joint family nucleous.
26. It is the case of the defendant that Makfula deed was executed by his father at his instance regarding the property at Lucknow on plot No.121 and 122 when he was in need of money of Rs.5,000/-. The defendant No.1 repaid the said amount and got the Makfula deed. Therefore, it is admitted by defendant No.1 that he was in need of money and his father executed Makfula deed and, therefore, merely because he repaid the amount, it cannot be said that he is the real owner. Admittedly till 1949, the first wife of this defendant No.1 alive. No reason has been assigned as to why instead of purchasing the property in the name of his wife, he claimed to have purchased the property in the name of his father. Nothing has been brought on record to show that there was any bar in purchasing the property by government employee.
27. In view of my above discussion, I find that the defendant No.1 has failed to prove his case that he purchased the property on plot No.121 & 122 at Lucknow in the benami name of his father, Raghubir Sharma. Therefore, the finding of the learned trial Court on this question is hereby reversed. It is held that the plaintiff is entitled for his share to the extent of 1/4th on the house and land on plot No.121 & 122 at Lucknow, i.e., schedule II property. This point is accordingly answered in favour of the appellant.
28. Point No.(ii) :- Admittedly, the sale deed in the name of wife of defendant No.1 is of the year 1954. It is admitted fact that the defendant No.3(d) Lalmuni Devi was married with the defendant No.1 in the year 1950. The consideration amount is Rs.250/- only. To prove the fact that the property has been purchased by the joint family, the appellant have produced witnesses and likewise the defendants have also produced witnesses to show 16 Patna High Court FA No.200 of 1980 dt.09-05-2012 16 / 18 that in fact the property was purchased by Lalumni Devi out of her own money.
29. It may be mentioned here that during the life time of defendant No.1 the wife of defendant No.1 has got no share in the joint family property. Therefore, the plaintiff is claiming that Raghubir Sharma and his 4 brothers who have only the title and interest over the joint family property purchased the property in the name of a family members who has not title or interest. In such circumstances, the plaintiff must first pray for declaration that the property which is standing in the name of female member is benamidar of the co-owner or the coparcener or joint family. No doubt, it is settled law that the property can be purchased by the karta in the name of any of the joint family member or in his own name but since in the present case, the property is standing in the name of a lady who has no interest at all in the joint family property or nucleous thereof during lifetime of her husband, the benami nature has to be proved by the co-owners.
30. In the plaint, nothing has been pleaded as to why the property was not purchased either in the name of karta or in the name of 4 male members who were the coparcener or co-owner. Even if there was sufficient income in the joint family and there was sufficient saving then also the father and his 4 sons were the exclusive owner thereof. In such circumstances, the joint family has to prove firstly that the joint family purchased the property in the benami name of Lalmuni Devi. The other aspect of the matter is that even if the property has been purchased by the joint family then also the presumption will be that the said property was purchased for the benefit of the defendant No.3(d). Unless the joint family proved the fact that it was not purchased for the benefit of wife of defendant NO.1, i.e., defendant No.3(d), the property cannot be presumed to be joint family property.
17 Patna High Court FA No.200 of 1980 dt.09-05-2012 17 / 18
31. In the present case, the defendant has examined the witnesses to prove the fact that defendant No.3(d) had purchased the property out of her own money. D.W.8 Sukha Bhobi claiming himself to be labourer has stated that he had worked in construction work of the house on plot No.1037 and the payment was given by wife of Ramraj. D.W.10 at paragraph 3 has also stated that the property is measuring 6 dhur belong to wife of Ramraj. D.W.14 is own brother of defendant No.3(d). He has stated that his father was jeweler and the defendant No.3(d) got gift at the time of marriage. She got Rs.500/- in mukhdekhi. She also got khoicha money and out of the said money, she purchased the property in question from Jamadar Singh and constructed house. This witness was there to manage the construction. In the cross- examination, he has stated that at the time of Bidaigiri, Rs.1500/- was given to his sister. His sister is not pardanasin. D.W.15 is Lalmuni Devi herself. She has also supported the case that at the time of marriage, she got Rs.1400/- - Rs.1500/- money in khoicha. In sasural also she got 400-500/- in mukhdekhi. She has further stated that she spent Rs.1400-1500/- in construction. Her father has jewellery and grossery shop. D.W.18 has also at paragraph 9 stated that his wife had purchased 6 dhurs land for Rs.250/-. At paragraph 10, he has stated that his wife constructed the room over the said land. At paragraph 11, he has stated that his father-in-law is rich and dealt with in jewellery and grossery as well as agriculture and his wife got money in mukhdekhi.
32. So far the evidences of the plaintiffs are concerned, they have only tried to show that the joint family property had sufficient income. P.W.3 has stated that the lands are fertile lands. Such is the evidence of P.W.4. P.W.10 has stated that he sold property to Raghubir Sharma for Rs.1500/-. Now, therefore, even if the family had sufficient income or that Raghubir Sharma 18 Patna High Court FA No.200 of 1980 dt.09-05-2012 18 / 18 had sufficient income, there can be no presumption that the property purchased in the name of a female member has been purchased out of the joint family property. There is no pleading in the plaint regarding the income of the joint family and also the savings of the joint family. However, some of the witnesses have stated that in partition, Raghubir Sharma got 10 bigghas land whereas some of the witnesses stated that he got 5 bigghas land. On the basis of this evidence, there can be no presumption as stated above. The plaintiff has also not prayed for any declaration that the property is held by defendant No.3(d) as benamidar of the joint family. On the other hand, the defendants have adduced reliable evidence to prove that defendant No.3(d) had sufficient money with her and out of the said money, she purchased the property in question and house was constructed thereof by her.
33. In view of my above discussion, I find that the defendants have been able to prove that the 6 dhurs land of plot No.1037 of village kherai is the self acquired property of Lalmuni Devi, the wife of defendant No.1. The finding of the learned trial Court on this point is, therefore, confirmed.
34. In the result, this appeal is allowed in part. The impugned Judgment and Decree are accordingly modified to the extent that the property on plot No.121 & 122 at Lucknow is joint family property and plaintiff is entitled for his share to the extent claimed. So far property over plot No.1037 of village kheria is concerned, the plaintiff has no right to claim for partition. In the facts and circumstances of the case, the parties shall bear their own costs.
(Mungeshwar Sahoo, J.) Patna High Court, Patna The 9thMay, 2012 Sanjeev/A.F.R.