Orissa High Court
Harihar Sethi And Anr. vs Ladukishore Sethi And Ors. on 13 December, 2001
Equivalent citations: AIR2002ORI110, 2002(I)OLR142, AIR 2002 ORISSA 110, (2002) 1 CURCC 517, (2002) 2 CIVILCOURTC 546, (2002) 1 ORISSA LR 142, (2002) 93 CUT LT 261
Author: A.S. Naidu
Bench: Pradipta Ray, A.S. Naidu
JUDGMENT A.S. Naidu, J.
1. Defendants 2 and 3 in a suit for partition, have preferred this First Appeal being aggrieved by the judgment and decree dated November 25, 1997 passed in T. S. No. 52 of 1994 by the Civil Judge (Senior Division), Chhatrapur.
2. Bereft of all unnecessary facts, the case of the parties flowing out of their pleadings is narrated herein below :
Admittedly one Raghu Sethi was the common ancestor. He died long long back leaving behind his only son Bira Sethi. At the time of his death, he owned and possessed a house situated on Patta No. 1470 and some landed propertied appertaining to Patta No. 783. After his death his only son Bira succeeded the same. Bira, during his life time, acquired some more properties. All the properties which were owned and possessed by Bira are morefully described in Schedule A and B of the plaint. Bira expired intestate on February 1, 1983 leaving behind his widow Chandramani (D-4), four sons i.e. Plaintiff No. 1 and Defendant Nos. 1 to 3 and two married daughters (Defendants 5 and 6). It is alleged in the plaint that the plaintiff No. 1 was serving as a Primary School teacher and in the year 1989, he became separate from his brothers. It is averred in the plaint that some properties were purchased subsequently, utilising the joint family nucleus and the same are morefully described in Schedule A-1 of the plaint. Said properties were purchased jointly in the names of Defendants 1 and 3 and wife of Defendant No. 3. It is alleged that after death of Bira, dissensions cropped up amongst the sons and endeavour was made by the village gentry to amicably partition the properties but in vain. Defendants 1 to 3 created stumbling-block and demanded partition of self-acquired properties of plaintiff No. 1 and no amicable partition could be arrived at. Having no other way, the plaintiff No. 1 along with his two sons filed T.S. No. 52 of 1994 for partition of the propertied morefully described in Schedule-A, A-1 and B of the plaint and for allotment of 1/7th share in his favour.
3. After receiving notice of the suit, defendants appeared, and Defendants 1 to 4 filed a joint written statement admitting the relationship of the parties as well as joint ownership of the properties, morefully described in Schedules A and B of the plaint. It is asserted that after death of Bira, the eldest son (D-1) who was serving in Postal Department, was constrained to remain outside the village and plaintiff No. 1 being the second son, managed the joint family properties and virtually became the Karta of the family. It is stated that out of the joint family nucleus, he has purchased landed property morefully described in Schedule-C of the written statement in his name and in the name of his wife. The said properties were jointly cultivated by the defendants and usufructs were enjoyed by the joint family and as such, said properties were also liable for partition. It is also asserted that the properties described in Schedule A-1 of the plaint were purchased out of the amount procured after selling Stridhan properties' belonging to Defendants 2 and 3 and the said properties cannot be construed as joint family properties and are not to be partitioned. On the basis of the aforesaid averments, the Defendants 1 to 4 claimed for partition of entire landed properties described in Schedule A and B of the plaint and Schedule C of the written statement.
Defendants 5 and 6 who are the married daughters of Bira chose not to contest and were set ex parte.
Defendants 7 to 10 are minor children of Defendant Nos. 2 and 3 and they also chose not to file any written statement through their father-guardian, hence a court-guardian was appointed for them who filed a written statement simply denying the averments made in the plaint.
Defendant No. 11 claims to be the adopted son of Baishnab Sethi, the brother of Raghu Sethi, who filed a written statement, inter alia, admitting the averments made in the plaint that the ancestral properties exclusively belonged to Raghu Sethi and he has no share.
Defendant No. 12 is the wife of plaintiff No. 1. She filed a separate written statement. Apart from supporting the plaintiff's case, it was further asserted that the properties morefully described in Schedule-C of the written statement are the self-acquired separate properties of her husband and herself.
Defendant No. 13 is the wife of Defendant No. 3. In her written statement, she supported the plea taken by Defendants 1 to 4 and claimed that the landed properties described in Schedule-A-1 of the plaint are self-acquired properties of Defendant Nos. 2 and 3 and herself and are not liable for partition, not being the joint family properties.
4. After filing of the written statements, the plaintiffs amended the plaint and asserted that out of the salary and other earnings, plaintiff No. 1 had acquired the properties which are morefully described in Schedule-C of the written statement. It is also asserted that his wife has also contributed substantial amount out of her Stridhan for purchasing the properties and both of them remained in exclusive possession of the same and that the said properties are their self-acquired properties, not liable to be partitioned.
5. On the basis of the pleadings, the learned Civil Judge framed only two issues :
(i) Whether the landed properties described in Schedule-C of written statement and A-1 of the plaint are liable for partition ?
(ii) To what relief the plaintiffs are entitled to ?
6. To substantiate their case, the plaintiffs examined two witnesses and exhibited as many as 18 documents. Defendants examined four witnesses and exhibited six documents.
7. The trial court, after threadbare discussion of the evidence, both, oral and documentary and relying upon several decisions cited before him, came to a categorical finding that in view of meagre income of the joint family, no presumption can be drawn that "C" Schedule properties valued more than Rs. 38,000/- could be purchased by aid of joint income and, therefore, burden never shifted to the plaintiff to establish that he had not purchased "C" Schedule properties from the joint family income. The trial court was also satisfied from the materials available on records, that the plaintiff No. 1 purchased "C" Schedule property from his own earning. On the basis of the aforesaid observations, the trial court arrived at a finding that "C" Schedule properties could not be purchased from the joint family income and, therefore, it never acquired the character of joint family properties and are not liable for partition.
The trial court also came to the finding that there was no satisfactory surplus income of the joint family nor any funds were available for purchase of properties morefully described in Schedule A-1 of the plaint and held that the said properties were acquired by the defendants 2 and 3 and the wife of defendant No. 3 out of their own income and are not liable for partition.
The trial court under issue No. 2 held that Bira Sethi was in possession of the properties morefully described in Schedules A and B of the plaint only and the same being the joint family property, are liable for partition. It is further held that the properties appertaining to Patta No. 783 measuring an area of Ac. 3.299 belonged to Raghu Sethi, grand-father of the plaintiff No. 1 and his brothers and sisters and is the ancestral coparcenary property of Bira.
On the basis of the findings arrived at, the trial court passed a preliminary decree in part decreeing 8/35th share of plaintiff No. 1 in the property described in Patta No. 783 of Schedule-A of the plaint and 1/7th share in the rest of the property described in Schedules A and B of the plaint.
Defendants 2 and 3 alone have preferred the present First Appeal on the ground that the trial court erred in not holding that plaintiff No. 1 being the person in management of the suit land, was the "Karta" of the joint family and ordinarily when the properties were acquired by a Karta, burden lies on him to establish that sufficient joint family nucleus was not available from out of which properties could have been purchased. It is submitted that the learned Civil Judge has erred in not holding that the properties described in Schedule-C of the written statement are joint family properties and are liable to be partitioned amongst all the legal heirs of Bira Sethi.
It is pertinent to mention here that the finding of the trial court holding Schedule A-1 properties as self-acquired properties has not been assailed before this Court and the same has become final.
8. Heard Mr. Rath, learned counsel for the appellants. He has strenuously placed before us the averments made in the pleadings as well as the oral evidence adduced by both the parties and submitted that as all the lands were irrigated, yielded crops and that in the absence of Defendant No. 1, who is the eldest member of the family, the plaintiff No. 1 became Karta of the family and exercised control over the income derived from the ancestral joint family property. While acting as such, he had purchased a house site and constructed a building thereon and it should be presumed that the said properties belonged to the joint family. In support of his submission, Mr. Rath has relied upon a decision in the case of Mallesappa Bandeppa Desai and Anr. v. Desai Mallappa lias Mallesappa and Anr., AIR 1961 SC 1268.
9. At the other hand, learned counsel for the respondent No. 1 submitted that the plaintiff not being the eldest son, can never be presumed to be the Karta of the family and as such, the initial onus lies on the appellant to conclusively prove that the Joint family property generated adequate and sufficient surplus income which can form a nucleus for purchasing property morefully described in Schedule-C. It is also submitted that the plaintiff was working as a teacher and drawing a handsome salary. He has also other sources from which he earned considerable amount. His wife had also contributed substantial amount out of her Stridhan amount to purchase the lands morefully described in Schedule-C and last but not the least, he has incurred loans periodically from his G.P.F. for acquiring the lands and constructing the building. It is emphatically submitted that the properties morefully described in Schedule-C are his self-acquired properties and were purchased out of his own income and cannot be considered to be the joint family properties.
10. We have heard learned counsel for the parties at length. We have also carefully examined the evidence, both, oral and documentary. Admittedly, the plaintiff No. 1 was not the eldest son of the family. Article 236 of the Mulla Hindu Law defines "Karta" as follows :
"Art. 236 : Manager - Property belonging to a joint family is ordinarily managed by the father or other Senior member for the time being of the family: The Manager of a joint family is called Karta."
However, it is no more res integra that a senior member of the family may give up his right and a junior member of the family can act as Karta with consent of all the other members. In the present case, the defendants who putforth a claim that the plaintiff acted as Karta of the family, though he is not the eldest member, have totally failed to prove the said fact by adducing cogent evidence. In the absence of any evidence, it is not possible to accept the contention raised by the appellants that the plaintiff, though he was not the senior member of the family, acted as the Karta. The decision cited by the appellants do not apply to the facts of the present case. Law as enumerated under Article 222 of Mulla Hindu Law is well settled that a Hindu, even if be joint, may possess separate property. Such property belongs exclusively to him. No other member of the coparcenary, not even his male issue, acquires any interest in it by birth, and on his death intestate, it passes by succession to his heirs, and not by survivorship to the surviving coparceners.
Also there can be no presumption that the family, because it is joint, possesses joint properties. In a suit for partition, a party who claims that a particular item of property is joint family property, the burden of proving that it is so, rests on the party asserting it. In the present case, it would be apparent from the analysis of evidence that the defendants have totally failed to dislodge the burden and prove that the properties described in Schedule-C of the written statement were acquired by utilising surplus income derived from joint family property.
11. Apart from the aforesaid fact, there is no averment in the written statement that the joint family property was of such nature that out of the income derived therefrom, after meeting all the necessary requirements of the family, any amount became surplus which formed the nucleus for acquiring any other property. Defendant No. 2 who has been examined as D.W. 2 has categorically deposed that he and Defendant No. 3 physically cultivated the landed property of the joint family along with his father upto his death and after his death, he continued to cultivate the whole landed property. Surprisingly, he did not breath a word regarding the income or expenditure. In the cross-examination, however, he has stated that the yield from the joint family properties varied from 30 Bharans to 20 Bharans and at times to 5 Bharans, depending upon monsoon. Thus, it can be safely concluded that after meeting cultivation expenses and utilisation of usufructs for family, consisting of 11 members, hardly anything became surplus. This fact is also admitted by D.W. 2 in his evidence. Admittedly, the land described in Schedules A and B remained in exclusive possession of Defendants 2 and 3 since 1993. They have totally failed to adduce any evidence that in fact, any amount become surplus and/or was utilised by the plaintiff.
At the other hand, the plaintiff-respondent No. 1 is admittedly serving as a teacher and was drawing a substantial amount towards salary. He has also exhibited Exts-6, 7 and 8 which reveal that substantial amount was withdrawn by him as loan from G.P.F. Account. The properties under Ext-E was purchased by plaintiff No. 1 in the year 1985. In the same year, the plaintiff had also incurred loan from the G.P.F. Account.
12. A cumulative assessment of the evidence leads to an irresistible conclusion that the properties described in Schedule-C of the written statement are the self-acquired properties of the plaintiff No. 1. We, therefore, do not find any reason to vary with the finding arrived at by the trial court. There is no quarrel so far as to the finding with regard to share of each of the parties as determined by the trial court under Issue No. 2 and we find no reason to disagree with the said finding and confirm the same.
13. In the result, the First Appeal fails and is dismissed accordingly. No Costs.
Pradipta Ray, J.
14. I agree.
15. First appeal dismissed.